United States v. Jesus Benitez-De Los Santos
Sentence Report held to be a qualified document for Shepard analysis of priors.
No error in counting prior despite possible plea of nolo contendre, where there was a conviction.
Sentence not substantively unreasonable.
Recent Precedential Slip Opinions from the U.S. Circuit Courts of Appeals.
Thursday, August 18, 2011
Eighth Circuit -- United States v. Jesus Benitez-De Los Santos
Eighth Circuit -- Adam Walker v. Bradley Barrett
Adam Walker v. Bradley Barrett
Missouri SOL on sex abuse runs from the time that a reasonably prudent person would ascertain the harm, which, absent proof of memory issues, runs from time of offense, tolled until majority. Federal claims time barred as they follow closest state SOL.
Missouri abuse law does not apply to nonperpatrator defts.
No error in denying motion to amend, as it wouldn't have cured.
Missouri SOL on sex abuse runs from the time that a reasonably prudent person would ascertain the harm, which, absent proof of memory issues, runs from time of offense, tolled until majority. Federal claims time barred as they follow closest state SOL.
Missouri abuse law does not apply to nonperpatrator defts.
No error in denying motion to amend, as it wouldn't have cured.
Eighth Circuit -- United States v. Bobby Springston
United States v. Bobby Springston
Error in barring sex offender from accessing internet without permission where no proof that deft has ever used a computer.
Barring contact with minors and requiring treatment not supported by evidence in record.
Error in barring sex offender from accessing internet without permission where no proof that deft has ever used a computer.
Barring contact with minors and requiring treatment not supported by evidence in record.
Eighth Circuit -- Mike Buetow v. A.L.S. Enterprises, Inc.
Mike Buetow v. A.L.S. Enterprises, Inc.
Error to the District Court, as although Lanham Act literal falseness awakens a favorable presumption, a finding of irreparable injury is still required for issuance of an injunction.
Error to base finding of literal falseness on dictionary definitions - falseness must be more unambiguous than that.
Concur/Dissent: Claims were more than puffery
Error to the District Court, as although Lanham Act literal falseness awakens a favorable presumption, a finding of irreparable injury is still required for issuance of an injunction.
Error to base finding of literal falseness on dictionary definitions - falseness must be more unambiguous than that.
Concur/Dissent: Claims were more than puffery
Eighth Circuit -- Liberty Mutual Insurance Co. v. Pella Corporation
Liberty Mutual Insurance Co. v. Pella Corporation
Mother of 7, 2 of which suffer from autism seeking discharge of 300K in student debt.
No error in consideration of recent past when evaluating undue hardship for discharge of student loans.
Possible error in double-counting methodology harmless error.
Special concurrence - they have an expensive car, but ECMC stipulated to odd income levels, so no remedy.
Mother of 7, 2 of which suffer from autism seeking discharge of 300K in student debt.
No error in consideration of recent past when evaluating undue hardship for discharge of student loans.
Possible error in double-counting methodology harmless error.
Special concurrence - they have an expensive car, but ECMC stipulated to odd income levels, so no remedy.
Eighth Circuit -- United States v. Darwin Huggans
United States v. Darwin Huggans
No error in not dismissing for bad indictment where conspiracy charge has specific timeframe, but no list of co-conspirators or specific concrete step in furtherance.
No error in denial of bill of particulars for same.
No error on denial of severance of counts, as deft did not establish specific evidence that was prejudicial.
Sufficient evidence.
No error in barring deft from challenging lack of equitable tolling of time to challenge priors.
No error in denying new trial based on newly discovered impeaching ev.
No error in not reviewing PSRs in camera where no clear request was made.
No error in not dismissing for bad indictment where conspiracy charge has specific timeframe, but no list of co-conspirators or specific concrete step in furtherance.
No error in denial of bill of particulars for same.
No error on denial of severance of counts, as deft did not establish specific evidence that was prejudicial.
Sufficient evidence.
No error in barring deft from challenging lack of equitable tolling of time to challenge priors.
No error in denying new trial based on newly discovered impeaching ev.
No error in not reviewing PSRs in camera where no clear request was made.
Seventh Circuit -- USA v. Bolivar Benabe
USA v. Bolivar Benabe
No error in empaneling anonymous jury.
No error in excluding defts who did not agree to be nondisruptive from courtroom . No 6A error in issuing the order prior to the beginning of trial (basing it on pretrial conduct), FRCrimP error in same was harmless.
No error in admitting ID based on photo lineup followed by live lineup when there are six months in between.
No error in pattern aiding & abetting instruction instead of RICO-specific one.
No error in court adding a Pinkerton instruction for penalty phase that was not contemplated at close of guilt phase.
No error in providing jury with partial transcripts.
No error in not holding hearing on potential intrinsic juror biases, where vooir dire responses were truthful.
No error in empaneling anonymous jury.
No error in excluding defts who did not agree to be nondisruptive from courtroom . No 6A error in issuing the order prior to the beginning of trial (basing it on pretrial conduct), FRCrimP error in same was harmless.
No error in admitting ID based on photo lineup followed by live lineup when there are six months in between.
No error in pattern aiding & abetting instruction instead of RICO-specific one.
No error in court adding a Pinkerton instruction for penalty phase that was not contemplated at close of guilt phase.
No error in providing jury with partial transcripts.
No error in not holding hearing on potential intrinsic juror biases, where vooir dire responses were truthful.
Seventh Circuit -- USA v. Mariano Morales
USA v. Mariano Morales
[NB - another decision released today appears to indicate that this is a nonprecedential decision - please see the "precedential status" note on the top of the page.]
Quick read:
No presumption against empaneling an anonymous jury - insufficient explanation here held harmless, though.
Among other things, disparity-of-evidence (where proper limiting instructions were given), prima facie lengthening of trial, and possibility of a non-anonymous jury in putative second trial are insufficient grounds for finding improper joinder.
Where one deft is considerably more violent than his co-defts, no error in denying severance and thereby making him look bad by comparison.
No abuse of discretion in not investigating report of intra-jury chattering where the accusation arose after the verdict.
Where testimony establishes that deft engaged in illegal activity, no possible error in being told that he went to jail for it.
District court holding that deft's bad acts were coterminous with the conspiracy was error, as it was not included in PSR for deft to challenge. Harmless, though.
Sufficient evidence.
Deference to District Court holding that some possibly random acts were connected to the gang scene & therefore conspiratorial.
Mere inactivity through "retirement" insufficient to effectuate withdrawal from conspiracy.
No disparity in special verdict findings on conspiracy and ultimate sentence.
No requirement on parties to "sterilize" testimony - inflammatory stuff was part & parcel.
Despite lack of district court findings on the hard edge of the conspiracy, finding that certain acts were within it was kosher.
[NB - another decision released today appears to indicate that this is a nonprecedential decision - please see the "precedential status" note on the top of the page.]
Quick read:
No presumption against empaneling an anonymous jury - insufficient explanation here held harmless, though.
Among other things, disparity-of-evidence (where proper limiting instructions were given), prima facie lengthening of trial, and possibility of a non-anonymous jury in putative second trial are insufficient grounds for finding improper joinder.
Where one deft is considerably more violent than his co-defts, no error in denying severance and thereby making him look bad by comparison.
No abuse of discretion in not investigating report of intra-jury chattering where the accusation arose after the verdict.
Where testimony establishes that deft engaged in illegal activity, no possible error in being told that he went to jail for it.
District court holding that deft's bad acts were coterminous with the conspiracy was error, as it was not included in PSR for deft to challenge. Harmless, though.
Sufficient evidence.
Deference to District Court holding that some possibly random acts were connected to the gang scene & therefore conspiratorial.
Mere inactivity through "retirement" insufficient to effectuate withdrawal from conspiracy.
No disparity in special verdict findings on conspiracy and ultimate sentence.
No requirement on parties to "sterilize" testimony - inflammatory stuff was part & parcel.
Despite lack of district court findings on the hard edge of the conspiracy, finding that certain acts were within it was kosher.
Seventh Circuit -- Kevin Sroga v. Timothy Weiglen
Kevin Sroga v. Timothy Weiglen
Dismissal of S1983 action based on 4A for three arrests was kosher, as internal police memo did not raise the bar for arresting for disorderly conduct, a ready explanation does not always erase probable cause, and there was sufficient ambiguity as to whether the signs in a police parking lot sufficiently heralded the exclusion of interlopers.
Dismissal of S1983 action based on 4A for three arrests was kosher, as internal police memo did not raise the bar for arresting for disorderly conduct, a ready explanation does not always erase probable cause, and there was sufficient ambiguity as to whether the signs in a police parking lot sufficiently heralded the exclusion of interlopers.
Seventh Circuit -- Anchor Bank, FSB v. Clark Hofer
Anchor Bank, FSB v. Clark Hofer
Inference of scienter sufficient to survive 9(b) where there is an accelerating synchronicity certain to affect the market.
To plead loss, plaintiff must merely contend that the deft is one plausible cause of loss.
Inference of scienter sufficient to survive 9(b) where there is an accelerating synchronicity certain to affect the market.
To plead loss, plaintiff must merely contend that the deft is one plausible cause of loss.
Sixth Circuit -- Scott Gerber v. James Riordan
Scott Gerber v. James Riordan
While motion to vacate default judgment was an insufficient general appearance to consent to jurisdiction, a general appearance in support of the motion was sufficient for jurisdiction.
Concurrence - one-line Entry of Appearance insufficient for jurisdiction, but contemporaneous motion to enforce settlement sufficeth.
While motion to vacate default judgment was an insufficient general appearance to consent to jurisdiction, a general appearance in support of the motion was sufficient for jurisdiction.
Concurrence - one-line Entry of Appearance insufficient for jurisdiction, but contemporaneous motion to enforce settlement sufficeth.
Sixth Circuit -- Henry Ford Health System v. HHS
Henry Ford Health System v. HHS
“My effort is in the direction of simplicity,” once wrote the namesake of the Henry Ford Hospital. Henry Ford, My Life and Work 13 (Garden City Publ’g Co. 1922). Mr. Ford apparently had nothing to do with the creation of the Medicare program.
Chevron deference to HHS determination that pure research activities are not subject to Medicare reimbursal under PPACA.
“My effort is in the direction of simplicity,” once wrote the namesake of the Henry Ford Hospital. Henry Ford, My Life and Work 13 (Garden City Publ’g Co. 1922). Mr. Ford apparently had nothing to do with the creation of the Medicare program.
Chevron deference to HHS determination that pure research activities are not subject to Medicare reimbursal under PPACA.
Fourth Circuit -- US v. Torrance Hill
US v. Torrance Hill
Police officers' subjective belief that the arrestee would not be at home is sufficient to defeat the probable cause/reasonable expectation requirement for entering the house to execute an arrest warrant.
Damaged door frame, muffled voices inside, nonresponsiveness to officers' calls, and what might have been the sound of a latch being pulled are insufficient grounds for entry due to exigency.
Remand for development of the record as to whether subsequent consent cleared the taint of the initial entry.
Dissent - totality-of the-circumstances test establishes enough evidence of reasonable belief deft would be inside. Noises probative of presence.
Police officers' subjective belief that the arrestee would not be at home is sufficient to defeat the probable cause/reasonable expectation requirement for entering the house to execute an arrest warrant.
Damaged door frame, muffled voices inside, nonresponsiveness to officers' calls, and what might have been the sound of a latch being pulled are insufficient grounds for entry due to exigency.
Remand for development of the record as to whether subsequent consent cleared the taint of the initial entry.
Dissent - totality-of the-circumstances test establishes enough evidence of reasonable belief deft would be inside. Noises probative of presence.
First Circuit -- State of California et al. v. Amgen, Inc
First Circuit -- US v. Santiago-Miranda
US v. Santiago-Miranda
US v. Irizarry-Corchado
Family coercion, drug use, and lack of sleep does not establish involuntariness of plea or impugn the colloquy.
US v. Irizarry-Corchado
Family coercion, drug use, and lack of sleep does not establish involuntariness of plea or impugn the colloquy.
First Circuit -- Roman-Oliveras v. PREPA
Roman-Oliveras v. PREPA
Due Process theory cannot save a S1983 action on appeal, as it wasn't in the original short, plain statement.
Removal from position and repeated demands for psychiatric examination can sufficiently establish a plausible S1983 claim for schizophrenia.
Like Title VII, the ADA imposes liability only on employers, not other individuals.
Due Process theory cannot save a S1983 action on appeal, as it wasn't in the original short, plain statement.
Removal from position and repeated demands for psychiatric examination can sufficiently establish a plausible S1983 claim for schizophrenia.
Like Title VII, the ADA imposes liability only on employers, not other individuals.
Second Circuit -- Cash v. Cnty. of Erie
Cash v. Cnty. of Erie
In a S1983 action at summary judgment stage, where there have been relevant past disciplinary issues that have not risen to the level of assault, a prison administration's continued policy of allowing one-on-one contact with prisoners can represent sufficient indifference to an affirmative duty to protect.
Not preserving objection to special verdict form prior to beginning of deliberation forfeits the appeal.
No error in special verdict form conflating policy and causation where the two are distinguished in the jury instructions.
"Moving force" for Monell liability is fairly described as "proximate cause."
Not preserving an inconsistency objection prior to discharge of jury forfeits the appeal.
Even where form is labeled "special verdict form," appeals court can interpret as general verdict form with specific interrogatories.
Where instruction specifically says that negligence is a lesser standard than deliberate indifference, no Seventh Amendment violation in special verdict finding deliberate indifference but not negligence.
Dissent: Unfairly creates strict liability standard for municipalities with respect to an ever-present danger.
In a S1983 action at summary judgment stage, where there have been relevant past disciplinary issues that have not risen to the level of assault, a prison administration's continued policy of allowing one-on-one contact with prisoners can represent sufficient indifference to an affirmative duty to protect.
Not preserving objection to special verdict form prior to beginning of deliberation forfeits the appeal.
No error in special verdict form conflating policy and causation where the two are distinguished in the jury instructions.
"Moving force" for Monell liability is fairly described as "proximate cause."
Not preserving an inconsistency objection prior to discharge of jury forfeits the appeal.
Even where form is labeled "special verdict form," appeals court can interpret as general verdict form with specific interrogatories.
Where instruction specifically says that negligence is a lesser standard than deliberate indifference, no Seventh Amendment violation in special verdict finding deliberate indifference but not negligence.
Dissent: Unfairly creates strict liability standard for municipalities with respect to an ever-present danger.
Second Circuit -- United States v. Matthew Marino
United States v. Matthew Marino
No error in District Court holding that although concrete steps in Misprision of Felony prosecution happened outside the charged time of the offense, they can help to indirectly establish scienter during the charged time (implicit , not stated directly in opinion).
Mandatory Victims Restitution Act -
For misprision, no need to prove individual reliance of victims, presumably if they had known of the fraud, they would not have invested the money.
Presumption is that a whistleblower's whistleblowing would be curative.
Positive steps to conceal fraud can establish MVRA cause-in-fact.
Losses were foreseeable to a reasonable person in defts position.
No error in District Court holding that although concrete steps in Misprision of Felony prosecution happened outside the charged time of the offense, they can help to indirectly establish scienter during the charged time (implicit , not stated directly in opinion).
Mandatory Victims Restitution Act -
For misprision, no need to prove individual reliance of victims, presumably if they had known of the fraud, they would not have invested the money.
Presumption is that a whistleblower's whistleblowing would be curative.
Positive steps to conceal fraud can establish MVRA cause-in-fact.
Losses were foreseeable to a reasonable person in defts position.
Second Circuit -- City of New York v. Group Health Inc.
City of New York v. Group Health Inc.
City of New York challenges merger on monopoly grounds.
(1) Purchasing strategy of a single buyer (here, the plaintiff) is insufficient basis to define the tying market.
(2) Leave to amend properly denied as the defect would not be remedied, extraordinary discovery would be required, and the movant waited too durn long to file the motion.
City of New York challenges merger on monopoly grounds.
(1) Purchasing strategy of a single buyer (here, the plaintiff) is insufficient basis to define the tying market.
(2) Leave to amend properly denied as the defect would not be remedied, extraordinary discovery would be required, and the movant waited too durn long to file the motion.
Second Circuit -- Brown v. Eli Lilly & Co.
Brown v. Eli Lilly & Co.
Heavy-duty FRCP.
Quick read:
(1) Consent order stamped by clerk of court / staff attorney claiming not to prejudice future appeals and referencing 42(b) does not preclude entry of final judgment, despite assertions by court staff that the (somewhat flawed) entry of final judgment was a nullity. Appeals clock runs from flawed filing.
(2) Action can be non-diverse at time of removal to fed courts as long as the non-diversity is cured before final judgment. [If TMB's memory serves, this might be a circuit split - there was something in dicta from one of the other circuits in the last few days about diversity being requisite at both removal and judgment to survive appeals challenge.]
(3) Actions of co-defts whose time to appeal has passed cannot be re-examined to create a PF case for deft still in the thick of things.
Heavy-duty FRCP.
Quick read:
(1) Consent order stamped by clerk of court / staff attorney claiming not to prejudice future appeals and referencing 42(b) does not preclude entry of final judgment, despite assertions by court staff that the (somewhat flawed) entry of final judgment was a nullity. Appeals clock runs from flawed filing.
(2) Action can be non-diverse at time of removal to fed courts as long as the non-diversity is cured before final judgment. [If TMB's memory serves, this might be a circuit split - there was something in dicta from one of the other circuits in the last few days about diversity being requisite at both removal and judgment to survive appeals challenge.]
(3) Actions of co-defts whose time to appeal has passed cannot be re-examined to create a PF case for deft still in the thick of things.
Wednesday, August 17, 2011
Eleventh Circuit -- USA v. Charles Willis
USA v. Charles Willis
No standing for ineffective assistance habeus, as it wasn't in the COA.
Resentencing is not a pretext for relitigating corollary issues by bootstrapping them to the permitted claim.
Deft's receipt of the PSR (nine days) inside of the statutory 10 day period was harmless error.
No error in sentence as court stated that it had the power to vary downwards & didn't.
No standing for ineffective assistance habeus, as it wasn't in the COA.
Resentencing is not a pretext for relitigating corollary issues by bootstrapping them to the permitted claim.
Deft's receipt of the PSR (nine days) inside of the statutory 10 day period was harmless error.
No error in sentence as court stated that it had the power to vary downwards & didn't.
Ninth Circuit -- Johnson v. Liberty Mutual Fire Insur. Co.
Johnson v. Liberty Mutual Fire Insur. Co.
No c/a for spoilation tort where insurance company does not retain taillights after testing - plaintiffs had wanted to use them in a later suit, and they had been discarded. No foreseeability.
No c/a for spoilation tort where insurance company does not retain taillights after testing - plaintiffs had wanted to use them in a later suit, and they had been discarded. No foreseeability.
Ninth Circuit -- RONALD YONEMOTO V. DEPARTMENT OF VETERANS AFFAIRS
RONALD YONEMOTO V. DEPARTMENT OF VETERANS AFFAIRS
Agency cannot satisfy FOIA request by offering to make the documents available to requestor in his capacity as an employee of the agency.
Remand for certain emails expurgaged according to exemption 6 of FOIA (personnel/medical), as there's insufficient proof in the record to justify.
Agency cannot satisfy FOIA request by offering to make the documents available to requestor in his capacity as an employee of the agency.
Remand for certain emails expurgaged according to exemption 6 of FOIA (personnel/medical), as there's insufficient proof in the record to justify.
Ninth Circuit -- BEATRICE MIRANDA V. KURT BRAATZ
BEATRICE MIRANDA V. KURT BRAATZ
Habeus grant reversed, as tribal courts are permitted to impose multiple yearlong sentences for discrete violations of the law, even though they emanate from the same occurrence.
Habeus grant reversed, as tribal courts are permitted to impose multiple yearlong sentences for discrete violations of the law, even though they emanate from the same occurrence.
Ninth Circuit -- A. OLIVER V. RALPHS GROCERY COMPANY
A. OLIVER V. RALPHS GROCERY COMPANY
Sufficient injury-in-fact for ADA claim.
No error in court not considering ADA barriers listed in expert report but not listed in claim - notice.
Violations of MUTCD are not per se violations of the ADA.
Sufficient injury-in-fact for ADA claim.
No error in court not considering ADA barriers listed in expert report but not listed in claim - notice.
Violations of MUTCD are not per se violations of the ADA.
Ninth Circuit -- CRYSTAL AMMONS V. STATE OF WASHINGTON DEPARTMENT
CRYSTAL AMMONS V. STATE OF WASHINGTON DEPARTMENT OF SOCIAL AND HEALTH SERVICES
No qualified immunity for supervisor of psychatric facility where allegation of past abuse was known and evidence of present improper relationship was present.
Qualified immnuity for Director of Nursing who had better scientific data suggesting present abuse, but did not know of past allegation.
Long dissent: Qualified immunity for the supervisor.
No qualified immunity for supervisor of psychatric facility where allegation of past abuse was known and evidence of present improper relationship was present.
Qualified immnuity for Director of Nursing who had better scientific data suggesting present abuse, but did not know of past allegation.
Long dissent: Qualified immunity for the supervisor.
Ninth Circuit -- GEORGE SOULIOTES V. ANTHONY HEDGPETH
GEORGE SOULIOTES V. ANTHONY HEDGPETH
Order - vacating of decision given en banc holding in another case.
Order - vacating of decision given en banc holding in another case.
Eighth Circuit -- Wanda Slater v. Republic-Vanguard Insurance Co
Wanda Slater v. Republic-Vanguard Insurance Co
Diversity jurisdiction was not destroyed during trial, as $100 retained interest was insufficient to keep non-diverse party from being merely nominal.
Legal issue of whether duty to defend was triggered by contractual exception is insufficiently developed for consideration.
Under Texas law, where a "completed operations" term in policy bars recovery for goods once they are off the seller's site, it similarly bars actions based on services which would have been provided prior to the removal of the product from the site.
Diversity jurisdiction was not destroyed during trial, as $100 retained interest was insufficient to keep non-diverse party from being merely nominal.
Legal issue of whether duty to defend was triggered by contractual exception is insufficiently developed for consideration.
Under Texas law, where a "completed operations" term in policy bars recovery for goods once they are off the seller's site, it similarly bars actions based on services which would have been provided prior to the removal of the product from the site.
Eighth Circuit -- Fair Isaac Corporation v. Experian Information Solutions
Fair Isaac Corporation v. Experian Information Solutions
Even if the plaintiff is the target of an anti-competitive conspiracy, they still must demonstrate cognizable harm under Sherman Act (increased prices, etc) for standing.
Hypothetical future damages from inadequate data is an insufficient harm for suit against collusion among data providers.
No error in finding the "300-850" trademark to be merely descriptive.
Sufficient evidence for fraud on the Patent Office in assertions of proprietary use of "300-850"
No licensee estoppal basis for denying challenge to mark, as (1) entity raising the challenge wasn't proved to be an alter ego of the licensee, and (2) if the mark is invalid by one of the challenges, estopping one of several plaintiff from challenging doesn't get you much.
No false advertising.
No abuse of discretion in not awarding fees to prevailing party, even though fraud on the Patent Office was proven,
Even if the plaintiff is the target of an anti-competitive conspiracy, they still must demonstrate cognizable harm under Sherman Act (increased prices, etc) for standing.
Hypothetical future damages from inadequate data is an insufficient harm for suit against collusion among data providers.
No error in finding the "300-850" trademark to be merely descriptive.
Sufficient evidence for fraud on the Patent Office in assertions of proprietary use of "300-850"
No licensee estoppal basis for denying challenge to mark, as (1) entity raising the challenge wasn't proved to be an alter ego of the licensee, and (2) if the mark is invalid by one of the challenges, estopping one of several plaintiff from challenging doesn't get you much.
No false advertising.
No abuse of discretion in not awarding fees to prevailing party, even though fraud on the Patent Office was proven,
Seventh Circuit -- Lisa Hicks v. Avery Drei, LLC
Lisa Hicks v. Avery Drei, LLC
Claim for vacation pay in the first year TKO'd by agreement with employer that there would be no vacation pay in the first year.
Allegedly spurious supplemental response provided by deft at end of discovery period not grounds for reversal, as forfeited for not including the relevant parts of the record with the appeal, and not enough of a miscarriage of justice to justify reversal for plain error.
No error in court's finding that enterprise was not subject to the FLSA.
Special concurrence - Enough evidence in the record for FLSA coverage.
Claim for vacation pay in the first year TKO'd by agreement with employer that there would be no vacation pay in the first year.
Allegedly spurious supplemental response provided by deft at end of discovery period not grounds for reversal, as forfeited for not including the relevant parts of the record with the appeal, and not enough of a miscarriage of justice to justify reversal for plain error.
No error in court's finding that enterprise was not subject to the FLSA.
Special concurrence - Enough evidence in the record for FLSA coverage.
Seventh Ciruit -- Sarah Bertanowski v. Spin Master
Sarah Bertanowski v. Spin Master
Parents whose kids weren't injured by recalled defective toy have standing under the Consumer Protection Act, as they paid more for the (cheap) toy than they might otherwise have done.
Although the Rules Enabling Act means that the District Court is not free to impose its own analysis at class certification over Rule 23 considerations of best remedy, 23(a)(4) allows courts to functionally consider the same reasoning.
Different state remedies make class unworkable.
Parents whose kids weren't injured by recalled defective toy have standing under the Consumer Protection Act, as they paid more for the (cheap) toy than they might otherwise have done.
Although the Rules Enabling Act means that the District Court is not free to impose its own analysis at class certification over Rule 23 considerations of best remedy, 23(a)(4) allows courts to functionally consider the same reasoning.
Different state remedies make class unworkable.
Sixth Circuit -- Abu-Ali Abdur'Rahman v. Roland Colson
Abu-Ali Abdur'Rahman v. Roland Colson
Death penalty deft's cumulative error arguments under Brady and prosecutorial misconduct can't be considered as they weren't raised in state courts and they're not on the COA.
No Brady violation where co-deft statements indicating deft went to locus in quo as member of anti-crime group (which proscs denied at trial) weren't released to deft, as deft knew that co-deft had discussed the group with prosecutors.
Deft's attempts at self-harm after arrest (not remembered by deft) are not grounds for a Brady violation, as they were mentioned in available reports not sought by deft's counsel & not material proof of mental illness.
Extraordinarily forceful dissent --
Cumulative Brady: covered by the COA, whole-record analysis makes the prosc's omissions enough for violation. 5th Circuit has considered similar hybrid claims.
[Thou shalt not kill. TMB]
Death penalty deft's cumulative error arguments under Brady and prosecutorial misconduct can't be considered as they weren't raised in state courts and they're not on the COA.
No Brady violation where co-deft statements indicating deft went to locus in quo as member of anti-crime group (which proscs denied at trial) weren't released to deft, as deft knew that co-deft had discussed the group with prosecutors.
Deft's attempts at self-harm after arrest (not remembered by deft) are not grounds for a Brady violation, as they were mentioned in available reports not sought by deft's counsel & not material proof of mental illness.
Extraordinarily forceful dissent --
Cumulative Brady: covered by the COA, whole-record analysis makes the prosc's omissions enough for violation. 5th Circuit has considered similar hybrid claims.
[Thou shalt not kill. TMB]
Sixth Circuit -- Edward Kizer v. Shelby County Government
Edward Kizer v. Shelby County Government
No property interest in civil service employment, as the position was unclassified, and plaintiffs never challenged the designation - no equitable remedy from state "policy of inactivity" precluding challenge.
No property interest in civil service employment, as the position was unclassified, and plaintiffs never challenged the designation - no equitable remedy from state "policy of inactivity" precluding challenge.
Fourth Circuit -- US v. Jason Simmons
US v. Jason Simmons
When assessing priors (here for sentencing under the Controlled Substances Act), the prior sentence must be considered absent any aggravating factor enhancements not applied by the sentencing court, nor is it legit for the second court to consider hypothetical aggravating factors.
Dissent one (short) - plain language - statute says "punishable by"
Dissent two - When Scotus remanded 'in light of' a certain decision, that's not a positive command - in that the (now-controlling) decision was immigration, not crim and had a differently structured statute,it's not a slam dunk.
When assessing priors (here for sentencing under the Controlled Substances Act), the prior sentence must be considered absent any aggravating factor enhancements not applied by the sentencing court, nor is it legit for the second court to consider hypothetical aggravating factors.
Dissent one (short) - plain language - statute says "punishable by"
Dissent two - When Scotus remanded 'in light of' a certain decision, that's not a positive command - in that the (now-controlling) decision was immigration, not crim and had a differently structured statute,it's not a slam dunk.
Third Circuit -- Michael McKenna v. City of Philadelphia
Michael McKenna v. City of Philadelphia
Where a participant in the dismissal of an employee is motivated by animus, a subsequent disciplinary procedure cannot immunize the termination from considerations of that animus - it remains a matter of proximate cause.
Where a participant in the dismissal of an employee is motivated by animus, a subsequent disciplinary procedure cannot immunize the termination from considerations of that animus - it remains a matter of proximate cause.
Third Circuit -- Animal Science Prod Inc v. China Minmetals Materials Imports
Animal Science Prod Inc v. China Minmetals Materials Imports
District Court's Sherman Act jurisdiction over foreign mineral price-fixing is a question for merits, not a matter to be decided under subject matter jurisdiction. 12(b)(6), not 12(b)(1) (this shifts the presumptions and reduces the court's ability to go all sua sponte on the question).
District Court's Sherman Act jurisdiction over foreign mineral price-fixing is a question for merits, not a matter to be decided under subject matter jurisdiction. 12(b)(6), not 12(b)(1) (this shifts the presumptions and reduces the court's ability to go all sua sponte on the question).
Third Circuit -- Eustace Simon v. Atty Gen USA
Eustace Simon v. Atty Gen USA
The availability of a visa is one of many factors to be considered in granting a continuance in an immigration proceeding, and is not of itself dispositive.
The availability of a visa is one of many factors to be considered in granting a continuance in an immigration proceeding, and is not of itself dispositive.
Third Circuit -- Gray Holdco Inc v. Cassady
Gray Holdco Inc v. Cassady
"No waiver" term in contract does not bar consideration of whether party invoking arbitration unduly prejudiced by delay the determination.
The amount of time between beginning the litigation and invoking arbitration is not of itself dispositive, but given the lively motion practice, the court found both substantive and procedural prejudice.
"No waiver" term in contract does not bar consideration of whether party invoking arbitration unduly prejudiced by delay the determination.
The amount of time between beginning the litigation and invoking arbitration is not of itself dispositive, but given the lively motion practice, the court found both substantive and procedural prejudice.
First Circuit -- Kindelan v. Disability Management
Kindelan v. Disability Management
A week after clean bill of heath, extraordinary self-reported pain is not grounds for coverage where doc doesn't run any further tests.
A week after clean bill of heath, extraordinary self-reported pain is not grounds for coverage where doc doesn't run any further tests.
Second Ciruit -- Cox v. Warwick Valley Cent. School Dist.
Cox v. Warwick Valley Cent. School Dist.
District Court summary judgment of S1983 claims against school administrators upheld.
No First Amendment issue, as removing the student from the classroom for the afternoon in response to a an essay topic is a decision due due unusual deference, and does not constitute retaliation.
Parents retained custody of child during coerced psychological examination, so no 14A deprivation.
District Court summary judgment of S1983 claims against school administrators upheld.
No First Amendment issue, as removing the student from the classroom for the afternoon in response to a an essay topic is a decision due due unusual deference, and does not constitute retaliation.
Parents retained custody of child during coerced psychological examination, so no 14A deprivation.
Second Circuit -- In re Literary Works in Elect. Databases Copyright Litig.
In re Literary Works in Elect. Databases Copyright Litig.
In Tasini, Scotus held that contributors to periodicals might be due recompense for the conversion of their work into subsequently sold electronic forms. Here, the Second Circuit rules that a class of these contributors was improperly certified.
Held:
The release of future claims by the class was kosher, as tied to the same factual predicate.
The de facto subclass of claimants holding unregistered claims are unduly hurt by a contingent term in the deal which would further cap their recovery after the percentage of monies due them relative to the rest of the class was determined. Certification was therefore an abuse of discretion under the adequacy requirement.
Partial dissent: The contingent term reflected a value judgment just as valid as the percentage call. No DP violation in settlement.
In Tasini, Scotus held that contributors to periodicals might be due recompense for the conversion of their work into subsequently sold electronic forms. Here, the Second Circuit rules that a class of these contributors was improperly certified.
Held:
The release of future claims by the class was kosher, as tied to the same factual predicate.
The de facto subclass of claimants holding unregistered claims are unduly hurt by a contingent term in the deal which would further cap their recovery after the percentage of monies due them relative to the rest of the class was determined. Certification was therefore an abuse of discretion under the adequacy requirement.
Partial dissent: The contingent term reflected a value judgment just as valid as the percentage call. No DP violation in settlement.
Tuesday, August 16, 2011
Federal Circuit -- CYBERSOURCE CORP. V. RETAIL DECISIONS, INC.
CYBERSOURCE CORP. V. RETAIL DECISIONS, INC.
Patent denied as a vague mental process as opposed to a machine or transformation, despite the fact that it references the internets.
Patent denied as a vague mental process as opposed to a machine or transformation, despite the fact that it references the internets.
DC Circuti -- Grant Anderson v. Eric Holder, Jr.
Grant Anderson v. Eric Holder, Jr.
DC implementation of sex offender registration law held to be civil regulation, not criminal & punitive, as a result, plaintiff has no ex post facto claim to bar registration.
DC implementation of sex offender registration law held to be civil regulation, not criminal & punitive, as a result, plaintiff has no ex post facto claim to bar registration.
DC Circuit -- Forsyth Memorial Hospital, Inc v. Kathleen Sebelius
Forsyth Memorial Hospital, Inc v. Kathleen Sebelius
Denial of rehearing en banc.
Dissent: Retroactive rulemaking can't be legitimated by adoption in post-hoc adjudications.
Denial of rehearing en banc.
Dissent: Retroactive rulemaking can't be legitimated by adoption in post-hoc adjudications.
Tenth Circuit -- Aviva Life & Annuity Company v. FDIC
Aviva Life & Annuity Company v. FDIC
FDIC determination (reversing earlier lower-level findings) that accounts are not entitled to annuity protections given lack of designation in bank records as annuities is not arbitrary/capricious.
FDIC determination (reversing earlier lower-level findings) that accounts are not entitled to annuity protections given lack of designation in bank records as annuities is not arbitrary/capricious.
Ninth Circuit -- BRUCE DOUGHERTY V. CITY OF COVINA
BRUCE DOUGHERTY V. CITY OF COVINA
Charge of child molestation insufficient grounds for a warrant to search computer for pr0n. Circuit split flagged. Qualified immunity, though, as matter of first impression in the Circuit.
Charge of child molestation insufficient grounds for a warrant to search computer for pr0n. Circuit split flagged. Qualified immunity, though, as matter of first impression in the Circuit.
Eighth Circuit -- United States v. Marcellus Watson
United States v. Marcellus Watson
No Confrontation Clause violation where state does not produce objects that police testify to seeing on deft's person (photo of gun on cell phone, belt holster).
No error in introduction of videotape on which officers inform deft that another person alleges that deft shot at them.
Blanket self-authenticating paragraph suffices to authenticate several official documents.
Possession of firearm while drug-runnin' gets the sentencing bump for prior crimes of violence.
No Confrontation Clause violation where state does not produce objects that police testify to seeing on deft's person (photo of gun on cell phone, belt holster).
No error in introduction of videotape on which officers inform deft that another person alleges that deft shot at them.
Blanket self-authenticating paragraph suffices to authenticate several official documents.
Possession of firearm while drug-runnin' gets the sentencing bump for prior crimes of violence.
Eighth Circuit -- Iowa Assurance Corporation v. City of Indianola
Iowa Assurance Corporation v. City of Indianola
City land use ordinance requiring all properties with a certain kind of racing car to be fenced in is not a regulatory taking under Loretto as there's no exclusion, or under Nollan as there is no sacrifice of property.
City land use ordinance requiring all properties with a certain kind of racing car to be fenced in is not a regulatory taking under Loretto as there's no exclusion, or under Nollan as there is no sacrifice of property.
Eighth Circuit -- Badger Capital, LLC v. Chambers Bank of North AR
Badger Capital, LLC v. Chambers Bank of North AR
No error in dismissal of investors' claim of fraudulent concealment as there was no evidence that the bank saw papers constructively establishing its escrow agency in a relevant transaction.
No error in dismissal of investors' claim of fraudulent concealment as there was no evidence that the bank saw papers constructively establishing its escrow agency in a relevant transaction.
Eighth Circuit -- United States v. A. Stover, Jr.
United States v. A. Stover, Jr.
No need for court to precisely track the injunction statute when issuing findings in support of the injunction.
No error in permanent injunction requiring affirmative conduct - notifications to tax clients and the government.
Requiring IRS approval for future tax schemes is not an impermissible interbranch delegaiton.
Free Speech argument waived, foreclosed by precedent as tax preparation is commercial speech.
No need for court to precisely track the injunction statute when issuing findings in support of the injunction.
No error in permanent injunction requiring affirmative conduct - notifications to tax clients and the government.
Requiring IRS approval for future tax schemes is not an impermissible interbranch delegaiton.
Free Speech argument waived, foreclosed by precedent as tax preparation is commercial speech.
Eighth Circuit -- Erdman Company v. Phoenix Land & Acquisition
Erdman Company v. Phoenix Land & Acquisition
No error in district court finding that compulsory arbitration on counterclaims would prejudice the pending civil action - further, there is no need to prove prejudice to bar compulsory arbitration where a party attempts to pursue a remedy simultaneously through arbitraiton and litigation.
No error in district court finding that compulsory arbitration on counterclaims would prejudice the pending civil action - further, there is no need to prove prejudice to bar compulsory arbitration where a party attempts to pursue a remedy simultaneously through arbitraiton and litigation.
Labels:
Arbitration,
Circuit Split,
Contract Interpretation
Eighth Circuit -- Archie Bear v. John Fayram
Archie Bear v. John Fayram
No error in District Court's holding that the text of the AEDPA statute was in the prison library.
The fact that AEDPA is tolled only at the time of filing a state habeus petition derives clearly from the statute - lack of clarifying caselaw in the library did not constitute a denial of access to the courts.
No error in District Court's holding that the text of the AEDPA statute was in the prison library.
The fact that AEDPA is tolled only at the time of filing a state habeus petition derives clearly from the statute - lack of clarifying caselaw in the library did not constitute a denial of access to the courts.
Seventh Circuit -- Linda Florek v. Village of Mundelein
Linda Florek v. Village of Mundelein
No error in dismissal of Fourth Amendment S1983 claim against police for not getting aspirin to person at scene of warranted search. Plaintiff had asked for aspirin, and was later taken to hospital after reporting chest pains.
No error in court barring expert testimony on the appropriate length of time between door-knocking and battering-ram-battering.
No error in dismissal of Fourth Amendment S1983 claim against police for not getting aspirin to person at scene of warranted search. Plaintiff had asked for aspirin, and was later taken to hospital after reporting chest pains.
No error in court barring expert testimony on the appropriate length of time between door-knocking and battering-ram-battering.
Seventh Circuit -- Lady Di's Incorporat v. Enhanced Services Billing
Lady Di's Incorporat v. Enhanced Services Billing
When filing a class-action suit against a company for putting unauthorized services on your phone bill, first make sure that you didn't order the services. In an astonishing display of gumption, plaintiffs press on.
Court holds that the state phone billing regulation isn't fit to borrow for proof of unjust enrichment and/or deception, as the statute applies to phone companies, not the service-provider defts here. As there's not provable foul, there's insufficient commonality for certification.
When filing a class-action suit against a company for putting unauthorized services on your phone bill, first make sure that you didn't order the services. In an astonishing display of gumption, plaintiffs press on.
Court holds that the state phone billing regulation isn't fit to borrow for proof of unjust enrichment and/or deception, as the statute applies to phone companies, not the service-provider defts here. As there's not provable foul, there's insufficient commonality for certification.
Sixth Circuit -- USA v. Steven Green
USA v. Steven Green
Former serviceman tried under statute giving federal criminal jurisdiction to those not covered by UCMJ but who committed offenses while in the services.
Held:
Standing - military constructive waiver of jurisdiction did not operate to guarantee the jurisdiction of the district court.
Deft's discharge was valid, despite missing some elements required by Army rules, as there was a valid discharge certificate, final accounting of pay, and "a clearing process."
The Act giving the federal criminal courts jurisdiction does not violate SOP, despite the level of discretion afforded the Executive in deciding whether to join UCMJ defts to civilian defts.
No 14A violation under class-of-one -- as the charging decision happened after discharge, there was no similarly situated comparator - additionally, no ill-will, and insufficient proof of arbitrariness.
No Due Process violation by Army's discharge then prosecution, as the discharge happened before the crimes came to light.
(Prosecution in Iraq impossible, given immunity of soldiers.)
Concurrence - Majority disses the army in dicta & I don't join that line of the opinion.
Former serviceman tried under statute giving federal criminal jurisdiction to those not covered by UCMJ but who committed offenses while in the services.
Held:
Standing - military constructive waiver of jurisdiction did not operate to guarantee the jurisdiction of the district court.
Deft's discharge was valid, despite missing some elements required by Army rules, as there was a valid discharge certificate, final accounting of pay, and "a clearing process."
The Act giving the federal criminal courts jurisdiction does not violate SOP, despite the level of discretion afforded the Executive in deciding whether to join UCMJ defts to civilian defts.
No 14A violation under class-of-one -- as the charging decision happened after discharge, there was no similarly situated comparator - additionally, no ill-will, and insufficient proof of arbitrariness.
No Due Process violation by Army's discharge then prosecution, as the discharge happened before the crimes came to light.
(Prosecution in Iraq impossible, given immunity of soldiers.)
Concurrence - Majority disses the army in dicta & I don't join that line of the opinion.
Sixth Circuit -- Nat'l Air Traffic Controllers v. Sec., Dep't of Transportation
Nat'l Air Traffic Controllers v. Sec., Dep't of Transportation
Suit by air controllers challenging the privatization of a certain classification of air traffic control towers.
Held - a statute which implicitly legitimized the privatization is on-point, as it should be broadly construed.
Standing - as none of the individual plaintiffs can now claim a harm, and the organizational standing was predicted on a question of law that has been resolved, earlier court decisions holding that plaintiffs had Article III and prudential standing do not bind as the law of the case. Properly moot.
Suit by air controllers challenging the privatization of a certain classification of air traffic control towers.
Held - a statute which implicitly legitimized the privatization is on-point, as it should be broadly construed.
Standing - as none of the individual plaintiffs can now claim a harm, and the organizational standing was predicted on a question of law that has been resolved, earlier court decisions holding that plaintiffs had Article III and prudential standing do not bind as the law of the case. Properly moot.
Fifth Circuit -- ASARCO, Incorporated, et al v. ASARCO, L.L.C., et
ASARCO, Incorporated, et al v. ASARCO, L.L.C., et
Bankruptcy court reimbursement order sufficiently final for appellate jurisdiction - circuit split with C2 flagged.
Reimbursement for due diligence to all bidders in a multi-step auction is properly a business judgment expense, not an administrative cost for the estate.
Bankruptcy court reimbursement order sufficiently final for appellate jurisdiction - circuit split with C2 flagged.
Reimbursement for due diligence to all bidders in a multi-step auction is properly a business judgment expense, not an administrative cost for the estate.
Fourth Circuit -- National Electrical Manufacturers v. US Department of Energy
National Electrical Manufacturers v. US Department of Energy
Chevron deference to agency ruling on the sizes of electric motors covered by a rulemaking. Legislative history suggesting otherwise dissed.
Dissent: Whole Act, Legislative History, prior agency holdings otherwise.
Chevron deference to agency ruling on the sizes of electric motors covered by a rulemaking. Legislative history suggesting otherwise dissed.
Dissent: Whole Act, Legislative History, prior agency holdings otherwise.
Third Circuit -- Brandao v. Atty Gen USA
Brandao v. Atty Gen USA
Where an illegitimate child immigrates with his parent who is subsequently naturalized prior to his 18th birthday, derivative citizenship cannot be granted if the law in their home country does not recognize illegitimacy.
Where an illegitimate child immigrates with his parent who is subsequently naturalized prior to his 18th birthday, derivative citizenship cannot be granted if the law in their home country does not recognize illegitimacy.
Third Circuit -- Karen V. Cappuccio v. Prime Capital Funding, LLC. et
Karen V. Cappuccio v. Prime Capital Funding, LLC. et
Mortgage/ TILA claim.
As threshold matter, the appeals clock runs not from the time when judgment is entered against all defendants, but from when final liability (more than ministerial functions) is apportioned.
The testimony of the borrower is sufficient to burst the bubble of the presumption of receipt - jury instruction suggesting otherwise is error.
Mortgage/ TILA claim.
As threshold matter, the appeals clock runs not from the time when judgment is entered against all defendants, but from when final liability (more than ministerial functions) is apportioned.
The testimony of the borrower is sufficient to burst the bubble of the presumption of receipt - jury instruction suggesting otherwise is error.
Third Circuit -- USA v. Michael Waller
USA v. Michael Waller
Error in jury instruction on Intent which said that jury should consider anything the deft said or didn't say, as this implicates post-Miranda silence. Vacate and remand, as gov't must prove beyond reasonable doubt that the error was harmless, and ain't no way that's gonna happen.
Error in jury instruction on Intent which said that jury should consider anything the deft said or didn't say, as this implicates post-Miranda silence. Vacate and remand, as gov't must prove beyond reasonable doubt that the error was harmless, and ain't no way that's gonna happen.
Third Circuit -- Secretary of Labor v. ConocoPhillips Bayway Refinery
Secretary of Labor v. ConocoPhillips Bayway Refinery
Company fined by DOL for asbestos violations, but reversed by OSHA Commission, which held that the Department must identify the case-specific scenario for asbestos harms.
The Court here reverses the Commission, holding that where the company has actual or constructive knowledge of the violation, violates standards, and engages in work presumed to pose a danger of asbestos release, no case-specific evidence need be adduced.
Company fined by DOL for asbestos violations, but reversed by OSHA Commission, which held that the Department must identify the case-specific scenario for asbestos harms.
The Court here reverses the Commission, holding that where the company has actual or constructive knowledge of the violation, violates standards, and engages in work presumed to pose a danger of asbestos release, no case-specific evidence need be adduced.
First Circuit -- US v. Berk
US v. Berk
Errata, viz:
On Page 15, footnote 7, line 7, "it an was error" should read "it was an error."
Errata, viz:
On Page 15, footnote 7, line 7, "it an was error" should read "it was an error."
First Circuit -- US v. Dellosantos
US v. Dellosantos
US v. Szpyt
Appellants argue insufficiency of the evidence, but Court holds instead that the evidence at trial prejudicially varied from the charges in the indictment . The indictment charged that the two defts conspired to distribute cocaine and MJ - here, the Court holds that these were two separate conspiracies, and the disparity between the unitary conspiracy alleged and the double conspiracy proven is sufficient to vacate the convictions.
Concur/dissent - defts had sufficient awareness of the multiple plans to make it a single conspiracy.
US v. Szpyt
Appellants argue insufficiency of the evidence, but Court holds instead that the evidence at trial prejudicially varied from the charges in the indictment . The indictment charged that the two defts conspired to distribute cocaine and MJ - here, the Court holds that these were two separate conspiracies, and the disparity between the unitary conspiracy alleged and the double conspiracy proven is sufficient to vacate the convictions.
Concur/dissent - defts had sufficient awareness of the multiple plans to make it a single conspiracy.
Second Circuit -- In re: Bernard L. Madoff Inv. Sec. LLC
In re: Bernard L. Madoff Inv. Sec. LLC
The Dickensian-named ponzi windup continues.
Here, customers appealed a bankruptcy court ruling that the amount owed them should be determined by the amount of money they deposited with the scheme, not the amount of money in their statements (inflated by fictitious earnings). First, the court holds that they are customers for purposes of the statute, as the monies were deposited for the purpose of investing in securities. Second, the court ratified the 'net investment' method of calculating net equity, but limited its decision to extraordinary cases such as this where the books were so thoroughly and capriciously cooked.
The Dickensian-named ponzi windup continues.
Here, customers appealed a bankruptcy court ruling that the amount owed them should be determined by the amount of money they deposited with the scheme, not the amount of money in their statements (inflated by fictitious earnings). First, the court holds that they are customers for purposes of the statute, as the monies were deposited for the purpose of investing in securities. Second, the court ratified the 'net investment' method of calculating net equity, but limited its decision to extraordinary cases such as this where the books were so thoroughly and capriciously cooked.
Monday, August 15, 2011
DC Circuit -- Estate of Mark Parsons v. Palestinian Authority (8/12)
Estate of Mark Parsons v. Palestinian Authority
Family of man killed while providing security for a State Department convoy in the Gaza Strip filed suit against the PLO under the Anti-Terrorism Act of 1991 on theories of both material support and conspiracy - District Court granted summary judgment to defts, Circuit reverses on material support, but in tangled melange of dissents, declines to speak to scienter requirement.
Family of man killed while providing security for a State Department convoy in the Gaza Strip filed suit against the PLO under the Anti-Terrorism Act of 1991 on theories of both material support and conspiracy - District Court granted summary judgment to defts, Circuit reverses on material support, but in tangled melange of dissents, declines to speak to scienter requirement.
DC Circuit -- In re: Antoine Jones
In re: Antoine Jones
Dismissal of a S1983 claim on the grounds that it would amount to a collateral attack on conviction counts as one of the PLRA three strikes.
Dismissal of a S1983 claim on the grounds that it would amount to a collateral attack on conviction counts as one of the PLRA three strikes.
DC Circuit -- DHS v. FLRA
DHS v. FLRA
No review of finding that reassignment of DHS workers was an unfair labor practice, as (1) the working agreement was not a CBA, and therefore could not represent negotiated assent to the change and (2) the change in work was significant enough.
No review of finding that reassignment of DHS workers was an unfair labor practice, as (1) the working agreement was not a CBA, and therefore could not represent negotiated assent to the change and (2) the change in work was significant enough.
DC Circuit -- In re: David Kissi (8/12)
In re: David Kissi
In re: David Kissi
PLRA three strikes rule applies to mandamus filing fees related to pending civil actions.
In re: David Kissi
PLRA three strikes rule applies to mandamus filing fees related to pending civil actions.
Eleventh Circuit -- USA v. Robert D. Singletary
USA v. Robert D. Singletary
Restitution order of 1M set aside.
It thus appears that the court merely intuited losses of $1 million for purposes of its § 2B1.1(b)(1) determination and then used that figure in awarding the United States forfeiture.
(In fairness, gov't had asked for 3M)
Restitution order of 1M set aside.
It thus appears that the court merely intuited losses of $1 million for purposes of its § 2B1.1(b)(1) determination and then used that figure in awarding the United States forfeiture.
(In fairness, gov't had asked for 3M)
Tenth Circuit -- Larry Snyder and Company v. Miller
Larry Snyder and Company v. Miller
Wher flaws are later found in construction, the specific remedy terms in the sub contract govern - not the general flow-through term binding all subs and contractors to the project developers' decisions.
Wher flaws are later found in construction, the specific remedy terms in the sub contract govern - not the general flow-through term binding all subs and contractors to the project developers' decisions.
Tenth Circuit -- United States v. Cooper
United States v. Cooper
Tax & wire fraud -
Sufficient evidence.
No Brady violation where the evidence is cumulative to other stff in the record calling the deft a schmuck - insufficiently stark contrast to provide a new angle on the impeachment of the witness.
Warrant not defective, as specific grounds were cited, not mere conclusions.
Warrant sufficintly particular (when read in the context of the affadvits).
No error in denial of Franks hearing.
Tax & wire fraud -
Sufficient evidence.
No Brady violation where the evidence is cumulative to other stff in the record calling the deft a schmuck - insufficiently stark contrast to provide a new angle on the impeachment of the witness.
Warrant not defective, as specific grounds were cited, not mere conclusions.
Warrant sufficintly particular (when read in the context of the affadvits).
No error in denial of Franks hearing.
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