First Circuit -- Gonzalez-Droz v. Gonzalez-Colon

Puerto Rico Board of Medical Examiners' ruling that only surgeons accredited in plastic surgery or dermatology are allowed to practice cosmetic medicine survives rational basis review.

Not unconstitutionally vague.

No requirement of pre-deprivation hearing.

Claim of inadequate notice is sheer persiflage - actual knowledge established.

Insufficiently conscience-shocking to be a substantive due process violation.

Not retaliation for suit, as foreordained.

 Gonzalez-Droz v. Gonzalez-Colon

First Circuit -- The Capability Group, Inc. v. American Express Travel

Errata

The Capability Group, Inc. v. American Express Travel

Second Circuit -- United States v. Page

Where there is a logical connection between the gun and the crime, trial court is not required to sever or bifurcate a felon-in-possession charge, so long as a proper limiting instruction is given. 


United States v. Page

Second Circuit -- Natural Res. Def. Council v. EPA

Small sample size tests of pesticide provide insufficient data to waive statutory tenfold children's safety factor.

Arbitrary & capricious.

Natural Res. Def. Council v. EPA

Federal Circuit -- ULTRAMERCIAL, LLC. V. HULU, LLC.

System of providing internet AV content in exchange for ads is not too abstract to be patented.

ULTRAMERCIAL, LLC. V. HULU, LLC.

Ninth Circuit -- UTAM, Ltd. v. Commissioner, IRS

Errata

UTAM, Ltd. v. Commissioner, IRS

Ninth Circuit -- BRENDA MARIE JONES

At confirmation of Chapter 13 plan, at least some of the estate vested in the debtor, and the tax man could have taken his bit.  As he didn't, and the case is past the three year look-back, the debt is discharged in the present Chapter 7 plan.

BRENDA MARIE JONES

Ninth Circuit -- USA V. PABLO RUIZ-APOLONIO

Forcible rape is categorically a crime of violence for purposes of sentencing enhancement.

USA V. PABLO RUIZ-APOLONIO

Ninth Circuit -- USA V. ALBERTO AYALA-NICANOR

Willful infliction of corporal injury on a spouse remains categorically a crime of violence for purposes of sentence enhancement.

USA V. ALBERTO AYALA-NICANOR

Ninth Circuit -- USA V. HOMERO TAFOYA-MONTELONGO

Attempted sexual abuse of a child is a crime of violence for purposes of sentence enhancement.

USA V. HOMERO TAFOYA-MONTELONGO

Ninth Circuit -- ENRIQUE TRIGUEROS V. DERRAL ADAMS

Request for informal briefing on merits by government establishes timeliness of habeus petition.

Timeliness was briefed, and was the RFD of lower court denial.

Court takes judicial notice of these filings.

ENRIQUE TRIGUEROS V. DERRAL ADAMS

Ninth Circuit -- USA V. RICARDO MARTINEZ

Errata.

USA V. RICARDO MARTINEZ

Ninth Circuit -- HABIBI V. HOLDER

For purposes of assessing whether an alien has committed a crime for which the term of imprisonment is at least a year, leap years don't count.  365 flat.

HABIBI V. HOLDER

Ninth Circuit -- KATHLEEN NICHOLS V. LAURA DANCER

A government worker has a protected First Amendment interest in the ability to silently sit next to her boss before the school board fires him.

KATHLEEN NICHOLS V. LAURA DANCER

Ninth Circuit -- HENRY SAMUELI V. CIR

A purported securities loan with a fixed term of at least 250 days and possibly as long as 450 days, entered into not for the purpose of providing the borrower with access to the lent securities, but instead for the purpose of avoiding taxable income for the lender (does not qualify) for nonrecognition treatment as a securities loan pursuant to § 1058 of the Internal Revenue Code.

HENRY SAMUELI V. CIR

Eighth Circuit -- Lisa Schmidt v. Des Moines Public Schools

Noncustodial out of state parent didn't incur loss of due process when denied a single three hour visitation.

Post-deprivation hearing suffices for procedural due process where visitation terminated.

Lisa Schmidt   v.   Des Moines Public Schools

Eighth Circuit -- Semi-Materials Co., Ltd v. MEMC Electronic Materials, Inc

When reckoning commissions, 'delivered by' may not actually require delivery - another carrier might ship.  It's an issue for trial.

Jury could rightly find that vendor had apparent authority.


Semi-Materials Co., Ltd   v.   MEMC Electronic Materials, Inc

Eighth Circuit -- United States v. Mark Rublee

 If sentence imposed according to law, deft cannot challenge amount of 35(b) reduction.

United States v. Mark Rublee

Seventh Circuit -- Frank Van Den Bosch v. Rick Raemisc

Qualified immunity for prison staff who banned prisoner advocacy newsletter.

Ban on third-party correspondence with other inmates (documents passed through an intermediary) upheld.

Frank Van Den Bosch v. Rick Raemisc

Seventh Circuit -- Cheryl Burns v. Orthotek, Inc

Although ERISA requires that any transfer of benefits authorization must be witnessed, where the participant (here also the representative) submits the form with the signature of the authorizing party, the submittal operates as a witnessing.

Cheryl Burns v. Orthotek, Inc

Seventh Circuit -- USA v. Kenneth Clark

Probable cause for search of truck, as although CI was a newbie and got a few facts wrong, police listened in on the conversation where the CI set up the buy with the deft.

No error in limiting cross when it got too personal for witness - ample opportunity to impeach other ways.

USA v. Kenneth Clark

Seventh Circuit -- Herman Nelson v. Janet Napolitano

Voluntarily dismissed suit cannot be reinstated under 60(b) except in extraordinary circumstances.

As counsel misread 60(b) and made a strategic decision to not reveal reasons for staying action, this one doesn't qualify as extraordinary.

Herman Nelson v. Janet Napolitano

Fifth Circuit -- George Dulin v. Bd of Cmsnr of the Greenwood

Proof of discrimination and evidence of pretextual nature of employer's justification for termination creates a triable issue.

Brief per curiam - earlier opinion vacated.

George Dulin v. Bd of Cmsnr of the Greenwood

Fifth Circuit -- Richard Frame, et al v. City of Arlington

 ADA Title II provides a private right of action against governments that construct inaccessible sidewalks and parking lots - the right accrues when the potential plaintiff knows or should have known of the inaccessibility.

Dissent: Statute only refers to public "services" - a sidewalk is not a service.

Richard Frame, et al v. City of Arlington

Third Circuit -- USA v. Vincent Fumo

Errata.

USA v. Vincent Fumo

Third Circuit -- USA v. Ruth Arnao

Errata


USA v. Ruth Arnao

Second Circuit -- Hill v. Curcione.

Untimely prisoner grievance meets exhaustion requirements if accepted and handled by administration.

No deliberate indifference on part of docs.

Claims against one employee not exhausted, as prison grievance didn't mention him.



Hill v. Curcione.

Second Circuit -- Commodity Futures Trading Commission v. Walsh, et al.

As NY Court of Appeals has now held that divorce agreement can cleanse the transferred fruits of fraud where the receiving spouse gets the funds in exchange for valuable consideration, District Court injunctions are out the window.

Commodity Futures Trading Commission v. Walsh, et al.

9/14 8th 9th and 10th Circuit Opinions Posted 9/15

[TMB had to knit up the ravelled sleeve of care.]

Seventh Circuit -- Jamie Jardine v. Mike Dittmann

 Withheld trace evidence of prostitution on the sheets not sufficiently material for Brady claim.

Jamie Jardine v. Mike Dittmann

Sixth Circuit -- Maria Arnold v. James Wilder

Possible lack of probable cause to arrest where mother argues with policeman over rowdy kids.  (Mother subsequently allegedly tackled, placed in choke-hold, handcuffed, put in patrol car and pepper-sprayed.)

Arresting officer can be liable for malicious prosecution.

Introduction of covenant not to sue generated during criminal process was proper, as it went to malicious prosecution - not in for the usual reasons settlement offers are in for.

Remittur was appropriate, but too large.

Maria Arnold v. James Wilder

Sixth Circuit -- USA v. Gary Dudeck, Jr.

Remand to see if receipt of pr0n and possession of same was separate conduct or double jeopardy.

Sentence not procedurally/substantively unreasonable.

USA v. Gary Dudeck, Jr.

Fourth Circuit -- Lori Kennedy v. St. Joseph's Ministries, Inc

Religious organization exemption in Title VII bars suit for dismissal and consequent harms.

Dissent - Interlocutory appeal to resolve is inappropriateness - should remand to see if merits survive summary judgment.

Lori Kennedy v. St. Joseph's Ministries, Inc

Third Circuit -- Township of Lyndhurst v. Priceline.com Inc

District Court was correct to bar suit by municipality against merchant for tax that the state was charged with collecting.  (Prudential standing.)

Township of Lyndhurst v. Priceline.com Inc

[Though this decision is marked as released today, TMB knows he has read it before - possibly an errata?]

First Circuit -- PowerComm, LLC v. Holyoke Gas & Electric

SS1981/1983 Claims that contractor was terminated due to racial discrimination TKO'd by lack of showing of harm - the termination was a standstill following a major accident, and the subsequent contract award wasn't guaranteed.

No hostile work environment for named plaintiff (the company) - proof by individual worker insufficient.


 PowerComm, LLC v. Holyoke Gas & Electric

First Circuit -- Airframe Systems, Inc. v. L-3 Communications

As plaintiff did not provide copies of the registered work in copyright infringement pleadings, District Court was right to TKO the claim for lack of proof of substantial similarity.

No error in not granting fees to prevailing party.

Airframe Systems, Inc. v. L-3 Communications

First Circuit -- Coscia v. Town Of Pembroke, MA

No Due Process violation for S1983 action when arrestee commits suicide 14 hours after release.

Coscia v. Town Of Pembroke, MA

Second Circuit -- Downs v. Lape

New York rule requiring contemporaneous objection to preserve public trial claim for state habeus serves a legitimate end.

Dissent: Exclusion of family members was exorbitant error.

Downs v. Lape

DC Circuit -- Northeast Hospital Corporation v. Kathleen Sebelius

HHS 2004 rulemaking on overlapping Medicare parts A & C is impermissibly retroactive - agency is bound to prior practice.

Concurrence - language of statute governs.

Northeast Hospital Corporation v. Kathleen Sebelius

DC Circuit -- Wilfred Rattigan v. Eric Holder, Jr

 Order - rebriefing

Wilfred Rattigan v. Eric Holder, Jr

Ninth Circuit -- LOCAL JOINT EXECUTIVE BOARD V. NLRB

Employer violated 8(a)(5) of NLRA by ceasing dues check-off prior to bargaining to impasse.

No need to wait for Board to muster three votes - court rules on merits.

LOCAL JOINT EXECUTIVE BOARD V. NLRB

Ninth Circuit -- BRADLEY JOHNSON V. POWAY UNIFIED SCHOOL DISTRICT

High school calculus class is not a limited public forum for teacher's religious speech.


BRADLEY JOHNSON V. POWAY UNIFIED SCHOOL DISTRICT

Ninth Circuit -- LARRY MOORE V. MARICOPA COUNTY SHERIFF'S

Dismissals for lack of subject-matter-jurisdiction do not count as strikes for proceeding IFP.


LARRY MOORE V. MARICOPA COUNTY SHERIFF'S

Ninth Circuit -- E.T. V. TANI CANTIL-SAKAUYE

Challenge to state juvie justice system properly dismissed under Younger prudential abstention.


E.T. V. TANI CANTIL-SAKAUYE

Ninth Circuit -- USA V. GABRIEL ALVAREZ-MORENO

The critical factor in Younger prudential abstention is not the violation of state laws, but rather the state's executive interest in seeing those particular laws enforced.

Pending state mandamus claims do not relieve federal court of obligation to hear claim.


USA V. GABRIEL ALVAREZ-MORENO

Ninth Circuit -- USA V. GABRIEL ALVAREZ-MORENO

When deft doesn't file jury trial waiver, his bench trial verdict stands, subject to appeal.  Trial court's declaration of mistrial and order of new trial was error as double jepoardy.

USA V. GABRIEL ALVAREZ-MORENO

Ninth Circuit -- KRISTIN ROSSUM V. DEBORAH PATRICK

En banc affirms District Court in brief per curiam.

Dissent (Long) - Federal habeus evidentiary hearing justified.

KRISTIN ROSSUM V. DEBORAH PATRICK

Ninth Circuti -- HECTOR REINA-RODRIGUEZ V. USA

Circuit caselaw rule on whether certain burglary convictions are crimes of violence for sentencing predicate purposes has retroactive effect - it is a new rule, not application of an old rule to new facts.

HECTOR REINA-RODRIGUEZ V. USA

Eighth Circuit -- United States v. Joshua Huerta

When the name on the return address didn't match the FBI/USPS database & the addressee's phone number was nonworking, sufficient grounds for reasonable suspicion.

United States v. Joshua Huerta

Eighth Circuit -- Watkins Incorporated v. Chilkoot Distributing, Inc.

Where one party to existing contract sends form letter to another party requesting updated information due to loss of materials from a flood and encloses a new contract, validity of the signed second contract is a matter for trial.

Watkins Incorporated v. Chilkoot Distributing, Inc.

Seventh Circuit -- Lindquist Ford, Inc v. Middleton Motors

Assignment of quantum meruit was error, as the equities were not with the plaintiff.

[Subtext: damages came back almost identical after initial remand.]


Lindquist Ford, Inc v. Middleton Motors

Seventh Circuit -- Jason Senne v. Village of Palatine,

Going to en banc - prior holding vacated.

Jason Senne v. Village of Palatine,

Seventh Circuit -- State of Michigan v. United States

Rerelease.  See 8/24.

State of Michigan v. United States

Sixth Circuit -- Bobby Sheppard v. Margaret Bagley

Ohio Supreme Court did not incorrectly apply clearly established law in denying Habeus on grounds that a juror consulted outside expert on paranoid schizophrenia during penalty phase.

Summary rejection of state habeus claim  means reasonable basis for denial of claim is the federal standard.

Family history cumulative & irrelevant.


No error in state not considering age (18) at time of offense when re-weighing aggravating factors with mitigating factors after determination of minimal prosecutorial misconduct.

No error in exclusion of juror who would not vote for death if deft was repentant.

Concurrence: Clarification on juror ex parte; evidence should be limited to that obtained for state habeus.

Dissent - Counsel was barred from fully litigating ex parte claim by state procedural rule barring collateral attacks on issues already raised in a motion for new trial.


Bobby Sheppard v. Margaret Bagley


[Thou shalt not kill.  -TMB]

Third Cicuit -- USA v. Barron Walker

Not the brother's jailkeeper - no error on denial of severance on grounds that the codeft brother had escaped from pretrial detention.  

CI's testimony that one of the brothers had carried a gun during a drug transaction and it was visible to the other sufficed for possession and constructive possession. 

Expert testimony that cocaine originated outside of Pennsylvania based on sufficiently reliable methods.

Sufficient evidence for Hobbs Act conviction (robbery in restraint of interstate commerce) where defts robbed first-time drug dealer whose product came from out of state.

No Brady violation where gov't doesn't tell deft that CI was caught with cocaine base in pocket just before sting operation.

USA v. Barron Walker

Third Circuit -- Mt Holly Gardens Citizens v. Twp Mount Holly

Title VIII and 14A Equal Protection challenge to loss of public housing for redevelopment.

Composition of waiting lists for public housing enought to get past summary judgment on disparate impact.

Mt Holly Gardens Citizens v. Twp Mount Holly

Second Circuit -- Serricchio v. Wachovia Securities, LLC

Upon return from service, USERRA claimant who had a large book of commission-based business is not sufficiently reemployed by simply being offered the same commission level.

It is within equitable powers of the court to order return at fixed salary as opposed to commission - no abuse of discretion.

No error in USERRA-specific jury instructions.


Serricchio v. Wachovia Securities, LLC

Federal Circuit -- QVD FOOD CO., LTD. V. U.S.

No error in Commerce's ruling on Vietnamese fish antidumping action.

No obligation to correct ministerial error where the error was clear in earlier proceeding.

Dissent: Yer numbers are wrong.

QVD FOOD CO., LTD. V. U.S.

Federal Circuit -- HOLMES V. U.S.

Tucker Act jurisdiction lies for breach of Title VII settlement agreement.

Circuit split flagged.

No presumption that such claims are monetary, but these are.

There is an inherent reasonability standard in the "inherently unknowable" test - here, plaintiff had no way to know of claim until it came to his attention

HOLMES V. U.S.

Eleventh Circuit -- USA vs David W. Webb

No error in denial of instruction on but/for causation in physician prosecution for patient death from unauthorized meds.  It need only result.

No ineffective assistance, as evidence was slam-dunk.

Concur/dissent - px/cz is the standard.

(Especially quick skim - long decision.)

USA vs David W. Webb

Tenth Circuit -- United States v. Burleson

Warrants check for jaywalking pedestrians during Terry stop was justified, as inter alia, the dog might have been stolen.

United States v. Burleson

Ninth Circuit -- KARUK TRIBE OF CALIF V. USFS

Going to en banc.

KARUK TRIBE OF CALIF V. USFS

Ninth Circuit -- CHEVRON U.S.A. INC. V. M&M PETROLEUM SERVICES, INC.

Spurious counterclaim under Petroleum Marketing Practice Act suffices for award of fees to prevailing party.  

Absent counterclaim, no.

CHEVRON U.S.A. INC. V. M&M PETROLEUM SERVICES, INC.

Ninth Circuit -- GINA FIORE V. ANTHONY WALDEN

Bivvens action against Atalanta-based customs check for prosecution of travelers returning home to Nevada from San Juan with gambling winnings upheld.

Forfeiture order directed at Nevada residents suffices for personal jurisdiction of Nevada courts.

Dissent: No, it doesn't.

GINA FIORE V. ANTHONY WALDEN

Ninth Circuit -- LUIS ROSAS-CASTANEDA V. ERIC HOLDER, JR.

Errata.

LUIS ROSAS-CASTANEDA V. ERIC HOLDER, JR.

Ninth Circuti -- LOUIS VUITTON MALLETIER, S.A. V. AKANOC SOLUTIONS, INC.

Express finding of intent not required for contributory copyright & trademark infringement.

Judge was correct to set aside copyright infringement verdict, as there was no proof that the deft operated the servers on which the infringement was hosted.

No error in instruction not distinguishing website host from website which harms trademark, the second could not exist without the first.

Statutory damages authorized for contributory infringement.

LOUIS VUITTON MALLETIER, S.A. V. AKANOC SOLUTIONS, INC.

Seventh Circuit -- Kevin Arnett v. Thomas Webster

Where prison medical facilities were slow in treating inmate with rheumatoid arthritus, the claim may proceed, but qualified immunity for the doctor, given lack of specific proof of deliberate indifference.

Kevin Arnett v. Thomas Webster

Seventh Circuit -- USA v. Fontez Combs

Given that the trial court approves please, a deft who does not preserve an issue for appeal by conditional guilty plea unwaiveably waives his right to later attempt to suppress evidence in challenging his sentence.

(Proscs cannot waive the lack of waiver.)

USA v. Fontez Combs

Sixth Circuit -- Dian Sabo v. City of Mentor

Qualified immunity decision insufficiently final for review, as it rests on disputed facts.

Denial of QI on state law claims upheld.

 Dian Sabo v. City of Mentor

Sixth Circuit -- USA v. Pamela Holder

AUSA's unprofessional lack of clarity as to whether a certain witness was given immunity not sufficiently material for Brady violation.

This also TKO's ineffective assistance claim along same lines.

USA v. Pamela Holder

Fifth Circuit -- Milan Dediol v. Best Chevrolet Incorporated, et al

A claim for hostile work environment can proceed under ADEA.

Sufficient evidence in record to survive summary judgment.

Milan Dediol v. Best Chevrolet Incorporated, et al

Fifth Circuit -- Paola Oviedo v. Gregg Hallbauer, et al

Removal to federal court is improper at the stage of motion to set aside default judgment. (Where State court has otherwise completely disposed of the case.)

Paola Oviedo v. Gregg Hallbauer, et al

Fifth Circuit -- USA v. Moises Garcia

Crack/Cocaine disparity sentencing reduction.

Court properly understood guidelines, knew it had the freedom to depart.

No Separation of Powers issue, as Congress specifically delegated power to the Sentencing Commission to make rules regarding discretion.

USA v. Moises Garcia

First Circuit -- OfficeMax, Inc. v. Levesque

Office supply store employees' noncompete clause accrued not at the time of their discharge, but from the takeover of the office supply store by another corporation.

OfficeMax, Inc. v. Levesque

First Circuit -- US v. Garcia-Ortiz

Conviction on two counts, the second of which is a lesser included of the first - absent specific legislative permission - is double jeopardy.

No error in denying minor participant sentence reduction, given fulness of participation.

Evidence of rehabilitation not irresistible.

US v. Garcia-Ortiz