Nonth Circuit -- SANTIAGO LOPEZ V. PACIFIC MARITIME ASSOCIATION

Errata.


SANTIAGO LOPEZ V. PACIFIC MARITIME ASSOCIATION

Ninth Circuit -- FATHER M V. VARIOUS TORT CLAIMANTS

Bankruptcy court did not err in ordering disclosure of a name of an active priest suspected of abuse; error in ordering disclosure of retired priest's name.

FATHER M V. VARIOUS TORT CLAIMANTS

Ninth Circuit -- SYLVESTER MAYA V. CENTEX CORPORATION

Homeowners have standing to claim that developers knowingly sold homes to people who were incapable of paying for them, thereby decreasing the economic value and desirability of the plaintiffs' homes.

SYLVESTER MAYA V. CENTEX CORPORATION

Ninth Circuit -- USA V. KEVIN DUGAN

No constitutional bar to criminalizing possession of guns by drug users.

USA V. KEVIN DUGAN

Ninth Circuit -- DIANA KOLEV V. PORSCHE CARS NORTH AMERICA, IN

Skidmore-ish deference to FTC finding that pre-dispute mandatory arbitration provisions in Warranty Act not mandatory.

Dissent: I wouldn't do that if I were you.


DIANA KOLEV V. PORSCHE CARS NORTH AMERICA, IN

Ninth Circuit -- MARIAM MARONYAN V. TOYOTA MOTOR SALES, U.S.A., IN

Warranty Act requirement of ADR not a jurisdictional bar.

Dissent:  Absent exhaustion of FTC claims on warranty mechanism, plaintiff must pursue claim through company's mechanism.

MARIAM MARONYAN V. TOYOTA MOTOR SALES, U.S.A., IN

Ninth Circuit -- USA V. ROBERT BAKER

 Collection of DNA inappropriate probation condition.

USA V. ROBERT BAKER

Ninth Circuit -- USA V. CRISTOPHER IBARRA-PINO

No error in exclusion of evidence and instruction on duress where deft had reasonable opportunity to notify authorities.

Concurrence in J (K) - Hearsay, anyways.

USA V. CRISTOPHER IBARRA-PINO

Ninth Circuit -- ANDREA SHERMAN V. SECURITIES AND EXCHANGE COMMIS

Exception to bankruptcy discharge ban for securities violation only applies where debtor committed the violation.

Dissent - Not supported by text of statute.


ANDREA SHERMAN V. SECURITIES AND EXCHANGE COMMISSION

Eighth Circuit -- Ellis Barber v. C1 Truck Driver Training LLC

Title VII suit TKO'd by non-pretextual employer justifications.

Ellis Barber v. C1 Truck Driver Training LLC

Eighth Circuit -- United States v. Jamie Smith

 Gun + meth in the house = sentencing bump.

District Court did not err in entering money judgment in lieu of unrecoverable forfeit funds.

United States v. Jamie Smith

Eighth Circuit -- Cornelius Bennett v. Nucor Corporation

Title VII/S 1981 dismissal upheld.

The District Court did not employ a per se rule in admitting evidence of discrimination against nonparties.

Nonparty affidavits of discrimination against third parties not hearsay.

No error in denial of class of all african-american employees.

No error in summary judgement on S1981 & Title VII disparate impact claims.

Cornelius Bennett v. Nucor Corporation

Seventh Circuit -- Blanca Gomez v. St. Vincent Health

Errata.

Blanca Gomez v. St. Vincent Health

Seventh Circuit -- USA v. Donald Kubeczko

Error in court lengthening sentence so that prisoner can receive treatment.

Determinations on fitness for release should generally be made shortly before release.


USA v. Donald Kubeczko

Seventh Circuit -- Meanith Huon v. Johnson & Bell,

District Court's stay under abstention was error - the roughly similar state court proceding does not relieve the federal court of the responsibility for jurisdiction.

(Law firm associate claiming performance evaluations were intentional infliction of emotional distress.)

Meanith Huon v. Johnson & Bell,

Seventh Circuit -- USA v. Matthew Scott

Challenge to sentencing bump for defrauding 50+ TKO'd by PSR stipulation that deft defrauded 50+ people.

Note - open question as to whether more than 50 lost money on the deal.

Not substantively unreasonable.


USA v. Matthew Scott

Seventh Circuit -- Joseph O'Leary v. Accretive Health

Title VII and S1981 retaliation claims TKO'd on summary judgment, as none of the behaviour observed and reported by the former employee were violations of the Acts.

Performance claims not pretextual.

Joseph O'Leary v. Accretive Health

Seventh Circuit -- Efrain Morales v. Yolande Johnson

No relief on ineffective assistance claim.

No proof proscs used perjured testimony.

Efrain Morales v. Yolande Johnson

Seventh Circuit -- Dakota, Minnesota & v. Wisconsin Dakota, Minnesota & v. Wisconsin

Trade usage of moniker of company to denote its manufacturing plant not sufficiently established.


No trespass, as plaintiff didn't have exclusive right to the rail spur.


Dakota, Minnesota & v. Wisconsin

Seventh Circuit -- Susie Weitzenkamp v. Unum Life

Self-reported illness policy limitation does not apply to fibromyalgia, as it is independently ascertainable.

Lien on SSA proceeds kosher, as it's indirect.

Cross-appeal was illicitly seeking additional grounds of favorable judgment.


Benefits reinstated.


Susie Weitzenkamp v. Unum Life

Sixth Circuit -- Richard Cole v. Commissioner of Social Security

Denial of benefits not supported by substantial evidence where views of treating physician are not accorded proper weight.


 Richard Cole v. Commissioner of Social Security

Sixth Circuit -- Lala Smith v. Wyeth, Inc.

State law failure-to-warn pharma claims preempted under Pliva.

Name-brand pharma manufacturers not liable for faults of derivative generics.


Lala Smith v. Wyeth, Inc. 
 Alice Wilson v. Pliva, Inc.  
 Dennis Morris v. Wyeth, Inc.

Sixth Circuit -- USA v. Donnell Young

No 6A/statutory speedy trial violation.  Eleven years from indictment to judgement.

3.5 month voir dire was not attempt to short-circuit statutory clock.

USA v. Donnell Young

Third Circuit -- In Re: Lemington Home

Given red flags, old-age home's directors not shielded under business judgement rule.

Whether board members benefited personally is a matter for trial - determines whether the adverse interest exception to in pari delicto applies.

In Re: Lemington Home

Third Circuit -- Shireesha Reddy Cheruku v. Atty Gen USA

Skidmore-ish deference to BIA finding that staute bars grant of lawful permanent residency.

BIA not estopped by prior representations.

Shireesha Reddy Cheruku v. Atty Gen USA

First Circuit -- Zimmermann v. Epstein Becker and Green, P.C.

Constructive trust cannot claw back payments made to attorneys, et al., prior to beginning of trust.

Statutory claims cannot reach those monies either, given current form of pending class action..

Zimmermann v. Epstein Becker and Green, P.C. 
Zimmermann v. BDO Seidman, LLP 

First Circuit -- Portugues-Santana v. Rekomdiv International, Inc.

Jury finding of dolo upheld.

The standard of proof for dolo is vague.

Dolo.

Remand to determine if damages should be offset by other payments.


Portugues-Santana v. Rekomdiv International, Inc.

First Circuit -- Velazquez-Ortiz v. Vilsack

Title VII discrimination claim not properly exhausted.

Rejection for promotion 8 months after filing suit insufficient proof of retaliation, as no proof that supervisors knew of claim.

No reasonable factfinder would buy the ADEA claim.

Velazquez-Ortiz v. Vilsack

First Circuit -- US v. Hersom

Statute making it a crime to burn a building whose owners receive federal assistance applies during the entire pendency of the loan, no matter that the final disbursement had been made.

 US v. Hersom

Second Circuit -- UBS Fin. Servs. Inc. v. West Virginia Univ. Hosps., Inc.

Issuer of securities is a customer under FINRA rules given ancillary elements of transaction, arbitration required.

Validity of forum selection clause a matter for arbitration.

Dissent - FINRA rules might not bind beyond the immediate transaction; injunction barring arbitraiton pending resolution of claim justified.


UBS Fin. Servs. Inc. v. West Virginia Univ. Hosps., Inc.

Second Circuit-- United States v. al Kassar

Statute barring conspiracy to kill Americans applies extraterritorially.

Jurisdictional nexus defined by aims of conspiracy.

Entrapment and unproved element challenges rejected.

No outrageous conduct in extended sting operation.

No error in denying pretrial hearing on jurisdictional defenses, as no material facts at issue.

No constitutional or legal error in barring classified evidence of prior good acts.

Conspiracy to acquire SAM's is a crime, since the statute uses the word conspiracy.

Authorization by undercover agents doesn't mean that the arms deal was approved by the US.

Both elements of statutory scienter were in the instructions, though not divided into two parts.

Evidence sufficient unto the conviction.


United States v. al Kassar

Announcement

The management of the site wishes to announce that due to entirely foreseen circumstances, tonight's posts aren't going to happen.   Tomorrow's posts will incorporate today's opinions as well as whatever opinions for yesterday that were not posted.  The management has absolutely no regret for any inconvenience caused, and is certain to do something like this again quite soon. 

Second Circuit -- Amnesty Int’l USA et al. v. Clapper et al.

83 Page denial of en banc, including controlling opinion.

Holding of earlier decision was basically that group had standing for facial challenge to congressional surveillance act because of fear of surveillance and costs incurred in avoiding the possibility.


Amnesty Int’l USA et al. v. Clapper et al.

Tech issues...

Serendipitously, tech issues have appeared just as I decided to abandon this for the evening.  Rest of the 7th, 8th, 9th, 11th & Fed. Ct. posted tomorrow.    ###

Seventh Circuit -- Bruce McCree v. Lieutenant Grissom

Multiple motions and claims based on denial of access to the courts TKO'd since prisoner was able to file multiple motions and claims.

Bruce McCree v. Lieutenant Grissom

Sixth Circuit -- Lucius Crump v. Blaine Lafler

Michigan's parole system does not create a liberty interest in expected parole given uncertainty & discretion.

Dissent - Statutory presumption that parole will be granted to high-probability candidates.

 Lucius Crump v. Blaine Lafler

Third Circuit -- Minard Run Oil Company v. US Forest Service

District Court injunction upheld barring the Forest Service from holding off on drilling permits until environmental impact study is completed.

Minard Run Oil Company v. US Forest Service

Second Circuit -- Red Earth LLC v. USA

No abuse of discretion in preliminary injunction barring implementation of tobacco excise measure.


Red Earth LLC v. USA

Second Circuit -- United States v. Thomas Archer

No error in instruction on knowledge of visa fraud by attorney - general knowledge instruction did not prompt jury towards implying actual knowledge given small size of solo practitioner's office.

No error in denial of instruction that atty's are not held to a higher standard of truth-seeking with respect to client statements.

Sufficient evidence for the jury to find that attorney knew of visa applications.

Error in hundred document, & obstruction of justice sentencing bumps.


United States v. Thomas Archer

Federal Circuit -- IN RE LEITHEM

Although the Board cited the same prior art and statute as the examiner, the grounds were different enough to justify remand so that claimant can respond properly.

IN RE LEITHEM

Eleventh Circuit -- USA v. Kifah Wael Jayyousi

Convictions of defts (including Jose Padilla) upheld, remand for sentencing adjustment.

(112 pp. )

Dissent: "Hard facts make bad law."  Agent testimony was closing in disguise.

USA v. Kifah Wael Jayyousi

Eleventh Circuit -- Trailer Bridge, Inc. v. Illinois National Insurance Company

No duty to defend, as CEO statement was not an advertisement.

Trailer Bridge, Inc. v. Illinois National Insurance Company

Tenth Circuit -- Southern Ute Indian Tribe v. Sebelius

HHS is required to enter into contract with tribe to allow the tribe to take over health care provisioning.


Southern Ute Indian Tribe v. Sebelius

Ninth Circuit -- JUAN TAPIA LUNA V. ERIC H. HOLDER JR.

Statutory deadline in Immigration Act is valid.

JUAN TAPIA LUNA V. ERIC H. HOLDER JR.

Ninth Circuit -- INTERMOUNTAIN FAIR HOUSING V. BOISE RESCUE MISSION

Sectarian drug treatment center and homeless shelter can show preference to those of its religion.

No violation of FHA.

INTERMOUNTAIN FAIR HOUSING V. BOISE RESCUE MISSION

Ninth Circuit -- USA V. JERRY POOL

Order.

USA V. JERRY POOL

Seventh Circuit -- H. Stanard v. Keith Nygren

Extraordinarily bad briefs TKO claim and prompt order to show cause why atty should not be disbarred.

H. Stanard v. Keith Nygren

Seventh Circuit -- Quality Oil, Incorpo v. Kelley Part

Handwritten notation added to contract is too counterintuitive to be enforced.

Quality Oil, Incorpo v. Kelley Part

Seventh Circuit -- David Show v. Ford Motor Company

Defective design claims under Illinois law require expert testimony.

David Show v. Ford Motor Company

Fifth Circuit -- In Re: Tony Sparks

Second or successive habeus permitted -- Scotus holding in Graham is a new rule entitled to retroactive enforcement.

In Re: Tony Sparks

Fifth Circuit -- George Williams v. Executive Risk Spclt Ins Co.

Remand justified under CAFA due to local controversy exception.

Arbitration is not a class-action based activity, it therefore does not frustrate the remand.

George Williams v. Executive Risk Spclt Ins Co.

Fifth Circuit -- USA v. Patrick Conn

No error in calculation of meth amounts.

No substantive error in sentence as comparator was not a managerial-type in the operation.

Ineffective assistance beat pursued on collateral appeal.

USA v. Patrick Conn

Fifith Circuit -- Tommy Tolbert v. National Union Fire Insurance

 Insufficient contradition/ambiguity in insurance plan to justify state statutory claim.


Unconscionability claim TKO'd, as the conduct was not at the time of the sale, as Texas law requires.

Tommy Tolbert v. National Union Fire Insurance

Fifith Circuit -- PACE v. Exxon Mobil Corp.

Union cannot compel arbitration on grievances given good-faith claim threshold requirement in the CBA.


PACE v. Exxon Mobil Corp.

Fourth Circuit -- Mohammed Aziz v. Alcolac, Incorporated

Torture Victims Protection Act does not apply to corporations.

Plain language of Act.

Aiding and Abetting covered by Alien Tort Statute.

Requisite intent standard from the Rome Statute.


Mohammed Aziz v. Alcolac, Incorporated

Third Circuit -- Carlen Higgs v. Atty Gen USA

Order, caption change.

Carlen Higgs v. Atty Gen USA

First Circuit -- Haley v. City of Boston

Qualified immunity to police on Brady claim, as it had not yet been extended past prosecutors.

No qualified immunity on deliberate suppression.

No immunity for municipality

Haley v. City of Boston

First Circuit -- US v. Luna

Errata.

US v. Luna

Second Circuit -- Tchitchui v. Holder

Opening a profitable internet cafe in Guatemala counts as permanent settlement in a third country, and can bar asylum claim.

Tchitchui v. Holder

Second Circuit -- United States v. Elbert

When deft's counsel files Anders motion and there are no non-frivolous issues for appeal, remand is not required if sentence departs downward from guidelines without explanation.  Game over.


Gov't had filed motion for summary affirmance.



United States v. Elbert

Eleventh Circuit -- Serrano v. U.S. Attorney General, et al.

Skidmore deference to BIA statutory interpretation holding that, for adjustment of status, an alien must have been inspected and admitted to the country. 

(Illegal entry TKO's the deal.)

 

Serrano v. U.S. Attorney General, et al.

Ninth Circuit -- COMITE DE JORNALEROS V. CITY OF REDONDO- APPENDIX

Appendices.

COMITE DE JORNALEROS V. CITY OF REDONDO- APPENDIX

Ninth Circuit -- ELLIS V. COSTCO WHOLESALE

Female employees of Costco challenge inequitable promotion polices by class action.

Plaintiffs have standing.

Terminated employees are bad class reps for injunctive relief.

Remand for (1) rulings on common question of law/fact;  (2) whether individualized damages permit certification of a 23(b)(2) class; (3) typicality of class reps.


ELLIS V. COSTCO WHOLESALE

Ninth Circuit -- COMITE DE JORNALEROS V. CITY OF REDONDO

Municipal restrictions on day-laborers seeking work on the sidewalk are insufficiently narrowly-tailored regulations of content-neutral speech.

Concurrence in J: Designated place for day laborers would solve.

Special Concurrence:  It is content-based, but if it's content-neutral, there's a lack of alternative means of expression.

[Interesting - both the Concurrence in Judgment and the Special Concurrence seem to substantially join the majority's reasoning.  So, at least in the Ninth, these are (1) two different things and (2) much less dissenting than one might usually think.]

Deep Dissent [that's what Chief K calls it]: Nothing in the First Amendment prevents government from requiring that sidewalks be used for walking.


COMITE DE JORNALEROS V. CITY OF REDONDO

Eighth Circuit -- David H. Heide v. David L. Juve

 Where creditor lent money to debtor to keep the car dealership afloat, whether the loans were to the individual or the corporation is a matter for trial.

David H. Heide v. David L. Juve

Eighth Circuit -- Lawrence Danduran, Jr. v. Kip M. Kaler

Conversion of personalty to exempt status cannot be constructive - courts can't impute it, it has to be actual.

Bankruptcy appellate panel can't make factual findings.

Lawrence Danduran, Jr. v. Kip M. Kaler

Eighth Circuit -- United States v. Levi Smith

Deft didn't register under SORNA - most sentencing conditions upheld, one struck as overbroad.

Standing for Printz challenge to SORNA, but TKO'd on merits, as states can opt for noncompliance and sacrifice federal funding.

United States v. Levi Smith

Eighth Circuit -- United States v. Sholom Rubashkin

Where judge was involved in ex parte pretrial proceedings with prosecution and ICE, jury verdict was not irrevocably tainted.

Probable acquittal is a necessary condition for 33(b) motion for new trial.

No abuse of discretion in scheduling trial on financial charges before immigration ones.

No error in admission of evidence on immigration charges in financial trial.

No plain error in intent jury instructions.

Money laundering charges did not merge with the other crimes.

No substantive/procedural error in sentence.

United States v. Sholom Rubashkin

Seventh Circuit -- Mondrea Vinning-El v. John Evans

Where prisoner requests vegan diet that he claims is required by his interpretation of his faith, a chaplain who finds the request to be not credible is granted qualified immunity if he made the decision by gauging the prisoner's sincerity, but not if he based it on his interpretation of the religion.

Mondrea Vinning-El v. John Evans

Seventh Circuit -- Trevor Ryan v. USA

Where a prisoner claims to have instructed his lawyer to file an appeal, two months is not an unreasonable length of time to allow the prisoner to discover that the lawyer hasn't.

Trevor Ryan v. USA

Seventh Circuit -- Robert Dickerson v. Board of Trustees

Mentally disabled custodian's ADA claims TKO'd by poor job performance record.

Robert Dickerson v. Board of Trustees

Sixth Circuit -- Mark Storey v. Douglas Vasbinder

No habeus on ineffective assistance given overwhelming evidence of guilt at trial.

An intervening direct appeal resets the 'second or successive' count to zero.  Circuit split flagged.

Dissent: Strickland doesn't require certainty of acquittal absent the ineffective assistance; majority opinion was too short.

Mark Storey v. Douglas Vasbinder

Fifth Circuit -- William Amacker, et al v. Renaissance Asset, et al

 Actual knowledge is required for scienter for aiding and abetting under the Commodities Exchange Act.

William Amacker, et al v. Renaissance Asset, et al

First Circuit -- Sony BMG Music Entertainment v. Tenenbaum

Napster sharing verdict largely upheld, remand on damages.

Statutory damages under the Copyright Act survive Feltner 7th Amendment challenge.

Act's prohibitions encompass consumer copiers.

Proof of harm not required for award of statutory damages.

No error in jury instructions setting forth range of statutory damages.

Infringement is willful if it is knowing.

Error to the District Court for considering whether damages offended due process before considering remittitur.

Sony BMG Music Entertainment v. Tenenbaum

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