Ninth Circuit -- LI V. HOLDER

Petitioner's method of illegal entry was so dangerous to himself that it justifies deportation.

Court has jurisdiction after denial of relief but during pendency of DHS background checks

LI V. HOLDER

Ninth Circuit -- ELIN PHIFER V. ICELANDAIR

Errata.

ELIN PHIFER V. ICELANDAIR

Eighth Circuit -- United States v. Patricia Brown

Victim's age is a sentencing factor, not an Apprendi element that must be proven beyond a reasonable doubt.

Seeing brass knuckles and knife in flashlight beam through car window was sufficient probable cause for officer to search car.

No error in not severing assault from murder, as evidence of either would have been admissible in trial of the other.


United States v. Patricia Brown

Seventh Circuit -- USA v. Azureeiah O'Connor

Evidence in record establishes that there was no Speedy Trial Act violation, as judge issued continuance for kosher reasons, although not formally placing them in the record until later.

No 6A speedy trial violation, as deft was responsible for much of the delay.

Joint venture instruction challenge waived, as trial counsel agreed to instruction.

Sufficient evidence.

No surplussage in indictment.

USA v. Azureeiah O'Connor

Seventh Circuit -- Nature Conservancy v. Wilder

Laches defense to claim for damages for breach (rather firmly) denied for lack of proof of prejudice.

Nature Conservancy v. Wilder

Seventh Circuit -- Juan Torres-Tristan v. Eric Holder,

Circuit Courts do not have jurisdiction to review denial of U-Visas (issued for cooperating with criminal investigations).

Juan Torres-Tristan v. Eric Holder,

Seventh Circuit -- Christian Arroyo v. USA

FTCA claim not time-barred, as SOL accrued upon subjective discovery of injury, within range of objectively reasonable time-frame for discovery.

Poz: extended special concurrence / accrual dicta

Christian Arroyo v. USA

Seventh Circuit -- USA v. Buruji Kashamu

Foreign magistrate's finding in extradition proceedings that there was insufficient evidence to extradite (as deft's brother might have committed the crimes) does not collaterally estop US from continuing to attempt to extradite him from other nations.

USA v. Buruji Kashamu

Seventh Circuit -- USA v. James McKenzie

For sentencing guidelines purposes, the amount of cocaine that the conspiracy tried to steal was the reasonably foreseeable amount, not the agreed upon amount.

USA v. James McKenzie

Seventh Circuit -- Pamela Harris v. Pat Quinn

State as employer may require employees to contribute fair share monies to union - no First Amendment violation.

Claims of nonunionized sectors not yet ripe, as the state has not formally demanded such contributions yet.

Pamela Harris v. Pat Quinn

Third Circuit -- Cheikh Diop v. US Immigration and Customs Enf

Statute mandating that removable persons who commit certain crimes must be detained does not justify incarceration for more than two years - 5A Due Process kicks in.

Cheikh Diop v. US Immigration and Customs Enforcement

First Circuit -- Sterling Merchandising, Inc. v. Nestle SA

No standing for antitrust claim based on speculative market harms where prices fell and supply rose in the near term.

Sterling Merchandising, Inc. v. Nestle SA

First Circuit -- Wright v. Marshall

No ineffective assistance in not objecting to witness' adoption of ADA suggestion on direct.  

No ineffective assistance in not objecting to certain evidence.

Ni ineffective assistance in not requesting misidentification instruction.

Wright v. Marshall

First Circuit -- US v. Mubayyid

Government variance from the particular object of the conspiracy alleged in the indictment should not have barred conviction on a narrower conspiracy.

In that the tax fraud question was at most arguably ambiguous, its ambiguity was properly a matter for the jury.

Sufficient evidence for tax convictions.

Gov't had only to prove concealment of either of two facts described in the conjunctive in the indictment.  (A double preposition, yes.  Moving on.)

Harmless error in admission of phone conversation.

Deft argument that terrorist-type evidence presented to establish conspiracy created a retroactive misjoinder id TKO'd by circuit reversal on conspiracy, above


US v. Mubayyid 
US v. Al-Monla 
US v. Muntasser 
US v. Muntasser 
US v. Mubayyid

Federal Circuit -- CARDIOSOM, L.L.C. V. U.S.

Given ambiguity in shielding statute, Tucker Act jurisdiction remains for suit alleging breach by government.

CARDIOSOM, L.L.C. V. U.S.

Federal Circuit -- AIA ENGINEERING LTD. V. MAGOTTEAUX INTERNATIONAL S/A

Because the district court erred in construing the claim term “solid solution,” and thus erred in determining that the reissued claims impermissibly recaptured surrendered subject matter, we reverse and remand.

AIA ENGINEERING LTD. V. MAGOTTEAUX INTERNATIONAL S/A

Federal Circuit -- CLASSEN IMMUNOTHERAPIES, INC. V. BIOGEN IDEC

Although the presence of a mental step does not in itself DQ the patent, the process must bring the idea to application.

[Again, folks, Patent Law isn't one our strong suits here.  And by "strong suits", we mean "things we have the slightest clue about."]

CLASSEN IMMUNOTHERAPIES, INC. V. BIOGEN IDEC

DC Circuit -- David Bowie v. Charles Maddox

Government employee has no First Amendment basis for refusal to sign an affidavit in an employment discrimination.

Big ol' circuit split.

David Bowie v. Charles Maddox

Eleventh Circuit -- Arturo Jose Carrizo vs US Attorney General

Substantial evidence supports Immigration adverse credibility finding.

Arturo Jose Carrizo vs US Attorney General

Tenth Circuit -- Hull v. IRS

IRS properly withheld FOIA information, as the request on its face sought only a third party's return information.

Hull v. IRS

Tenth Circuit -- United States v. Irvin

Harmless error in introduction of business record, another record was kosher.

Detailed challenges to sufficiency of evidence and sentencing.

United States v. Irvin

Tenth Circuit -- Mascorro v. Billings

Qualified immunity denied, as no reasonable officer would have thought that pursuit of a minor for a minor traffic offense justified warrantless entry into home.


Mascorro v. Billings

Ninth Circuit -- EDWIN LOCKETT V. KEITH ERICSON

4th Amendment S1983 Plaintiff does not have to prove that conviction was reversed where plea was nolo contendre, as the bad search was not an element of conviction.

Appeal waiver in criminal action does not encompass civil claims.

California motor vehicle convictions can't be used for collateral estoppel.


EDWIN LOCKETT V. KEITH ERICSON

Ninth Circuit -- PEDRO JOSE HERNANDEZ-CRUZ V. ERIC H. HOLDER JR.

Order, errata.

PEDRO JOSE HERNANDEZ-CRUZ V. ERIC H. HOLDER JR.

Eighth Circuit -- United States v. Azizia Peterson

 Selective prosecution claim TKO'd for lack of proven animus.

United States v. Azizia Peterson

Eighth Circuit -- Sarah Illig v. Union Electric Company

 The statute of limitations for trespass accrues upon the first action that would give a reasonably diligent owner notification of the trespass.  

Company held easement for purpose X, purpose gradually changed to Y, gov't approved use for Y, X abandoned.  Claim accrues with publication of gov't decision.

Repeated intrusions are necessary for continuous trespass - continuing presence of electrical lines insufficient.

Sarah Illig v. Union Electric Company

Eighth Circuit -- Anantkumar Patel v. Eric H. Holder, Jr

 Strong presumption of effective service arises when immigration notifications are sent via certified mail.

Anantkumar Patel v. Eric H. Holder, Jr

Eighth Circuit -- United States v. James Van Elsen

 No error in excluding evidence that deft repaid embezzled retirement funds, as intent to permanently deprive is not an element of the crime.

United States v. James Van Elsen

Eighth Circuit -- Donovan New v. United States

 Counsel did not provide ineffective assistance.

Donovan New v. United States

Eighth Circuit -- Ali Bazzi v. Tyco Healthcare Group

Dismissed employee's subjective belief of wrongdoing is insufficient to trigger Missouri public policy exception to employment at will.

Ali Bazzi v. Tyco Healthcare Group

Seventh Circuit -- Gloria Rodas v. Swedishamerican

Where a case is removed for federal court under the Federal Officer statute, defects in the original state court jurisdiction do not become derivative jurisdictional impediments unless they are latent and persistent in the federal action.

Where the federal court could have asserted jurisdiction over the original claim, the removed claim is kosher.

Salaried physicians are covered by the Illinois Good Samaritan Act, despite the fact that no fees are accepted for services.


Gloria Rodas v. Swedishamerican

Sixth Circuit -- Golden Living Center-Frankfort v. Sec'y of HHS

Sufficient evidence to warrant administrative penalties for nursing home.


Golden Living Center-Frankfort v. Sec'y of HHS

Third Circuit -- Laura Symczyk v. Genesis Healthcare

Collective (class-ish) action under FLSA is not made moot by a settlement with putative representative prior to certification so long as at least one other person opts-in to the suit prior to certification.

Laura Symczyk v. Genesis Healthcare

Third Circuit -- Mitchell Partners LP v. Irex Corp

Under Pennsylvania law, minority shareholders seeking appraisal may also pursue a breach of fiduciary duty claim.

Dissent: Post-merger, appraisal is the only remedy available.

Mitchell Partners LP v. Irex Corp

First Circuit -- City Sanitation, LLC v. Allied Waste Services of MA

The right to sue in tort cannot be passed to a secured creditor as proceeds of original collateral.  

Not stating the issue in a first-tier bankruptcy appeal waives it for subsequent appeals.

Bankruptcy settlement was within discretion of court.


City Sanitation, LLC v. Allied Waste Services of MA

First Circuit -- Coffill v. Coffill

Summary judgment claiming defective powers of attorney to be scriveners error is inappropriate, as signatory alleges fraud, and therefore reformation (according to signatories' mindset) is problematic.

Coffill v. Coffill

First Circuit -- US v. Butler-Acevedo

 No abuse of discretion in sentencing court limiting its consideration of deft's history & characteristics to behaviour on supervised release.


Other misc sentencing issues.


US v. Butler-Acevedo

Tenth Circuit -- United States v. Hong

Padilla v. Kentucky is a new rule, but it doesn't apply retroactively to cases on collateral review.

Split with Third Circuit, which recently held it to be an old rule.


United States v. Hong

Tenth Circuit -- Sigala v. Bravo

No tolling for habeus petition where deft was informed of proceeding which could result in amended judgment and sentence, but didn't follow up to discover the new judgment and sentence.

Sigala v. Bravo

Tenth Circuit -- United States v. Acosta-Gallardo

Crim - conviction upheld against several challenges.

[Sorry, TMB running low on time.  In the mix: Brady violation, sufficient evidence, morphing indictment.]


United States v. Acosta-Gallardo

Tenth Circuit -- Miami Tribe of Oklahoma v. United States

No error in holding that BIA can cancel land transfer to tribe where it has valid policy concerns to do so.

Gov't can appeal even where, in the end, it substantially prevails in first action.


Miami Tribe of Oklahoma v. United States

Tenth Circuit -- United States v. Cordery

Error in increasing length of sentence for rehabilitative purposes.


United States v. Cordery

Ninth Circuit -- BARBEE LYON V. CHASE BANK USA, N.A.

Error in dismissal of state debt collection statute action, as although the statute doesn't protect against efforts to collect false debts, there is no evidence in the record that the plaintiff's debt is false.

Detrimental reliance need not be shown for verdict of actual damages under FCBA.

BARBEE LYON V. CHASE BANK USA, N.A.

Ninth Circuit -- USA V. KEVIN CROWDER

Ignorance of the sexual offender registration laws is no excuse.

USA V. KEVIN CROWDER

Eighth Circuit -- Rick D. Lange v. Inova Capital Funding, LLC

Bankruptcy - no error where preferential transfer was held to be avoidable.


Rick D. Lange v. Inova Capital Funding, LLC

Eighth Circuit -- Rodney Boettcher v. Michael J. Astrue

Denial of Social Security benefits supported by substantial evidence.

Dissent: No it wasn't.


Rodney Boettcher v. Michael J. Astrue

Eighth Circuit -- United States v. Matthew Eric Linngren

Earlier criminal sexual conduct conviction can be predicate for pr0n sentencing enhancement if earlier charging documents establish relevant intent.

Dissent: Error to look to the probable cause part of the charging document.

United States v. Matthew Eric Linngren

Eighth Circuit -- Paula Dupont v. Fred's Stores of Tennessee

Waiver of contributory liability claim in pleadings does not foreclose introduction of relevant evidence of the plaintiff's actions.

No error in denial of res ipsa instruction.

Paula Dupont v. Fred's Stores of Tennessee

Eighth Circuit -- Vickie Fields v. Bill Abbott

Jail administrators entitled to qualified immunity from S1983 claim of state-created danger by guard hurt by inmates' actions.

Vickie Fields v. Bill Abbott

Eighth Circuit -- United States v. Christopher Carter

No procedural or substantive error in sentencing.

Dissent - error in calculation of guidelines range, sentence provision barring deft from working at banks was unreasonable.

United States v. Christopher Carter

Eighth Circuit -- United States v. Clifton Taylor

 Multiple denials of request for substitute counsel do not make a subsequent decision to go pro se involuntary.

United States v. Clifton Taylor

Eighth Circuit -- Green Tree Servicing v. Pillsbury-Landmark Towers

When a lease is cancelled in bankruptcy, a third party obliged by the terms of the lease to attorn to another entity upon its succession to the freehold is not so bound, as the lease is merely cancelled, and the entity does not separately succeed to the freehold.


Green Tree Servicing v. Pillsbury-Landmark Towers

Eighth Circuit -- United States v. Eric Kelley

Warrant for nighttime search did not violate 4A, as magistrate specifically authorized nighttime search.

Sentence not substantively unreasonable.

United States v. Eric Kelley

Eighth Circuit -- United States v. Randy Johnson, Jr

Court adopts "overwhelming or incontrovertible" standard for assessing whether evidence is sufficient to convict despite flawed jury instruction.

Circuit split flagged.

Dissent - Majority analyses without giving the gov't every favorable inference & presumption, as required by sufficient-evidence review.

United States v. Randy Johnson, Jr

Eight Circuit -- United States v. John Jefferson

Sufficient evidence for wire fraud.

Uncharged conduct can be used to calculate amount of loss for sentencing.

Restitution can exceed declared losses.  (Implies gains from uncharged conduct)

In-guidelines sentencing range not unreasonable.


United States v. John Jefferson

Seventh Circuit -- Yan Lin v. Eric Holder, Jr

When assessing credibility of claim of forced abortion, immigration officials should treat contrary evidence as a negative inference that may be overcome with additional corroboration.


Yan Lin v. Eric Holder, Jr

Sixth Circuit -- Philip Charvat v. NMP, LLC

 Federal courts have statutory jurisdiction under the Telephone Consumer Protection Act.

Damages sufficient for diversity jurisdiction.

Pendant state claim valid.

Invasion of privacy claim not barred as a matter of law.

Concurrence - Majority went too far into merits. 

Philip Charvat v. NMP, LLC

Sixth Circuit -- Maureen Hergenreder v. Bickford Senior Living Group

No binding arbitration requirement where agreement was in document referenced in employee handbook.

Maureen Hergenreder v. Bickford Senior Living Group

Sixth Circuit -- LaTasha Adams v. Karen Hanson

Absolute immunity for prosecutor in S1983 suit by witness detained for twelve days as a result of the prosecutor's representations to the judge.

LaTasha Adams v. Karen Hanson

Fifth Circuit -- Atif Rana v. Eric Holder, Jr.

An alien convicted of possessing 30g of marihuana can have the conviction waived for immigration purposes.  Once.

Sequence of events - conviction #1, waiver, adjustment of status, conviction #2, left country, refused readmission.

Atif Rana v. Eric Holder, Jr.

Fifth Circuit -- Gary Simmons v. Christopher Epps

Although there was insufficient evidence for the aggravating circumstance which permitted the death penalty, the error was harmless, as another potential aggregator was sufficiently in the record.

Exclusion of a video made immediately afterwards expressing remorse wasn't contrary to clearly established law.

[Thou shalt not kill.  TMB]

Gary Simmons v. Christopher Epps

First Circuit -- Delia v. Verizon Communications, Inc.

Errata.


Delia v. Verizon Communications, Inc.

First Circuit -- US v. Shields

Errata

US v. Shields

First Circuit -- US v. D'Andrea

Errata

US v. D'Andrea
US v. Jordan

Federal Circuit -- CLARK V. U.S.

Decision barring National Guard members from reimbursement for time spent taking correspondence courses upheld.

Not a violation of Mandate Rule or law of the case, as appeals court hadn't spoken to that part of merits.

CLARK V. U.S.

Federal Circuit -- IN RE AOYAMA

Patent stuff.  Chenery doesn't overly limit review.

Error in overbroad construction of claim.
Insufficient disclosure of algorithm.
Chenery does not bar appellate decision on different grounds than the Board considered.
Dissent: Ab initio raising of issues on appeal unfair to parties, barred by jurisdictional statute.

IN RE AOYAMA

Federal Circuit -- TODD CONSTRUCTION, L.P. V. U.S.

Contractor evaluations sufficiently relate to the contract at issue for the Court to have jurisdiction under Tucker Act / CDA.

No standing, as defenses to individual negative evaluations do not sum up to a coherent challenge to the evaluations themselves as arbitrary and capricious.

TODD CONSTRUCTION, L.P. V. U.S.

Eleventh Circuit -- USA v. Ali Shaygan

District Court abused discretion when it imposed sanctions against US for an objectively reasonable prosecution .  

Assignment of costs and fees to US under Hyde Act was error, as there was no conscious wrongdoing.

Due Process error in not warning proscs that they were facting a public reprimand.

No reassignment at this point.

Dissent/special concurrence - bad faith provision in Hyde Act allows broader application than conscious wrongdoing.

USA v. Ali Shaygan

Eleventh Circuit -- Lindo v. NCL (BAHAMAS), LTD.

Contract term mandating arbitration in Nicaragua (under Bahamian law) of Jones Act claims enforced as not against public policy.

Strong presumption for arbitration clause enforcement.

Statutory claims are arbitrable.

Not unconscionable agreement.

Pubic policy defense is to be made at time arbitration award, not time of compelling arbitration.

No subject-matter exception for arbitrating Jones Act claims.  

Dissent: prospective waiver of statutory rights violates public policy.

Lindo v. NCL (BAHAMAS), LTD.

Eleventh Circuit -- Eloy Rojas Mamani v. Jose Carlos Sanchez Berzain

 ATS claim TKO'd at pleadings under Iqbal

Plaintiffs haven't pleaded facts sufficient to establish that defts specifically are subject to suit.

Killing of 70 to restore social order isn't a crime against humanity.


Eloy Rojas Mamani v. Jose Carlos Sanchez Berzain

Tenth Circuit -- James River Insurance Company v. Rapid Funding, LLC

 Petition for limited rehearing & rehearing en banc denied.

James River Insurance Company v. Rapid Funding, LLC

Ninth Circuit -- INTERNATIONAL UNION OF PAINTER V. J&R FLOORING, INC.

Challenge to card-check vote conducted under CBA is primarily contractual , and should be resolved through arbitration.


Substantial evidence for Board finding that since employer didn't follow own version of disputed card-check rules, union should be recognized.

Ordering all employers to arbitration creates unitary solution.



INTERNATIONAL UNION OF PAINTER V. J&R FLOORING, INC.

Ninth Circuit -- AGUILAR-TURCIOS V. HOLDER

Order withdrawn, supplementary briefing ordered.

AGUILAR-TURCIOS V. HOLDER

Eighth Circuit -- Michael Fisette v. Jasmine Keller

 Chapter 13 debtor can strip off completely unsecured claims (senior lien-holder's claim outpaces value of property) against principal residence.

Effective upon completion of plan, not formal discharge.

Michael Fisette v. Jasmine Keller

Eighth Circuit -- John Patrick Murphy v. John King

Thirty year execution of sentence upon probation violation upheld against 8A cruel & unusual habeus petition - the claim is procedurally barred, as not advanced on direct appeal or state collateral attacks.

Doesn't qualify for miscarriage of justice exception, as deft agreed to initial sentencing deal.


John Patrick Murphy v. John King