Fourth Circuit -- Sharon Burnette v. Helen Fahey

 Dissent from denial of en banc on issue of Due Process rights for parole denial.


Sharon Burnette v. Helen Fahey

Third Circuit -- In Re: Pharmacy Benefit

Dismissal of suit subsequent to order to arbitrate makes the arbitration order reviewable.

Order to compel arbitration was error, as litigation had been ongoing for more than ten months, and the equities of the case argue for waiver of right to arbitrate.


In Re: Pharmacy Benefit v.

Second Circuit -- McElwee v. County of Orange

ADA accommodation for autistic gentleman in work program -

1 - No issue of qualifying disability, as the conduct makes the plaintiff ineligible to be considered for the specialized program he is working with.

2 - Accommodations unreasonable as a matter of law.

McElwee v. County of Orange

Second Circuit -- United States v. Siddiqui

Presumption against extraterritoriality doesn't apply to criminal offenses, and this type of offense (shooting Americans) is prone to occurrence outside the US, so extraterritorial application is OK. 

Even in active theatres of war. 

This includes firearms offenses.

Documents planning mass destruction are in to show motive.

Competence to stand trial means that the decision to testify is competently made, even over defense counsel objection.  (Limited to facts of case - judge did not err in allowing.)

Unmirandized & medicated statements in as voluntary.

Terrorism sentencing bump properly  made.

United States v. Siddiqui

Interlocutory Lacuna Continues

This hiatus will last at least another week.  Miles to go before I sleep, and all that.

Lull Impending

OK, Global Legal Community, given that today was hugely unproductive, and I need the time to do some outlining, I'm officially declaring a weeklong lacuna for this blog, backdated to when I left off last Thursday.  As it happens, it's traditional to take a sabbatical stretch after 1500 opinions or so - give the elves in the server time to get out and stretch their legs, that kind of thing.

When we reboot at the end of the week, I'll post links to all of the opinions that dropped in the interval, so that the search function (see the box near the bottom of the page) will cover the opinions.  I may also do a quick tagging of the opinions to keep the categories somewhat comprehensive. (Though for the purposes of detrimental reliance, as legally unreliable as ever.)

Addio! 

Perhaps Monday

Global Legal Community - afraid that things will have to be pushed back another day, as TMB got back from the opera at 1AM, and this Malbec isn't going to drink itself.  Cheerio.

Today's Opinions Posted Tomorrow

If the crick don't rise.

Federal Circuit -- FORD-CLIFTON V. DEPT. OF VETERANS AFFAIRS

Board did not err in denying late pro se petition.

Board's dismissal under law of case was in fact dismissal for res judicata.

FORD-CLIFTON V. DEPT. OF VETERANS AFFAIRS

Tenth Circuit -- Cypert v. Independent School District

No procedural Due Process claim for dismissed employee.

No proof of discriminator or free speech retribution.

Cypert v. Independent School District

Ninth Circuit -- USA V. LILA RIZK

No error in admission of summary charts.

Appraiser had knowlege of ends of conspiracy.

Appraiser knew ends of false appraisals were frauds on bank.

No plain error in ordering restitution past the release of claims negotiated in the civil trial, but civil restitution should have been subtracted from criminal.

USA V. LILA RIZK

Ninth Circuit -- USA V. WILKES

Remand to determine if deft's witness should have been granted use immunity.

No Brady violation, as not material.

Denial of many prosc. misconduct claims.

Quid pro quo bribery and misrepresentation satisfy Skilling's narrowing of honest services.

Sufficient evidence?kosher jury instructions for money laundering.


USA V. WILKES

Eighth Circuit -- United States v. Brandon Bennett

 Drug sufficiently similar to drug on schedule to permit use of sentencing guideline.

United States v. Brandon Bennett

Fifth Circuit -- Rommel Griffin, Sr. v. United Parcel Service, Inc.

 Diabetic not disabled under the ADA.

Accommodation was reasonable.

Rommel Griffin, Sr. v. United Parcel Service, Inc.

Fifth Circuit -- USA v. Shawna Tickles

 Conduct predating the FSA but sentenced after the FSA is not sentenced according to the FSA.

Dissent: But it should be.

USA v. Shawna Tickles
USA v. Jabar Gibson

Fifth Circuit -- USA v. Roberto Zamora, et al

 Informant tip and surveillance information provided reasonable suspicion for traffic stop.

No error in denial of venue instruction. (Conspiracy)

Sufficient evidence on conspiracy - past owner of car was member, fingerprints and forensic evidence on notebook.

Sufficient evidence for use of a firearm in furtherance, as the gun was loaded.

No error in denial of mistrial after testimony that deft had a criminal history.

USA v. Roberto Zamora, et al

Second Circuit -- Gray v. Citigroup, Inc.

ERISA Administrator did not abuse discretion in including company stock as a retirement option.

No fiduciary obligation to disclose confidential information.

Concur/Dissent - No presumption of prudence means that there is an affirmative duty of communication - must disclose dangers to company.

Gray v. Citigroup, Inc.

Second Circuit -- Cunney v. Bd. of Trs. of Vill. of Grand View

Zoning regulation void for vagueness - no specific indication of measuring point for maximum height.

Not saved by core meaning.

Cunney v. Bd. of Trs. of Vill. of Grand View

Secind Circuit -- Gearren v. McGraw-Hill Cos., Inc.

Inclusion of employer stock in retirement plan options was kosher, as the corporate situation appeared less than dire.

Gearren v. McGraw-Hill Cos., Inc.

Federal Circuit -- SANOFI-AVENTIS V. APOTEX INC.

As prejudgment interest is a form of damages, contract between parties limiting damages limits interest.

District Court did not err in barring counterclaim.

SANOFI-AVENTIS V. APOTEX INC.

Eleventh Circuit -- Ehlen Floor Copvering, Inc., et al v. Innovative Pension Strategies

Preeemption by ERISA gives federal jurisdiction.

Where the parties agree that Section VI lists the services that are subject to mandatory arbitration, and there is no Section VI, there is no arbitration.

Ehlen Floor Copvering, Inc., et al v. Innovative Pension Strategies

Tenth Circuit -- Sorenson Communications, Inc. v. FCC

FCC ratemaking upheld as neither arbitrary nor capricious.

Sorenson Communications, Inc. v. FCC

Tenth Circuit -- United States v. Chavez

Anonymous tip provided sufficient reasonable suspicion for stop; information gained in Terry stop gave probable cause for arrest.

Sentencing Commission inclusion of attempted crimes as drug trafficking predicates not unconstitutional.

United States v. Chavez

Tenth Circuit -- United States v. Marrufo

Sentencing bump for using a firearm applies where the offense is hiding a firearm.


 United States v. Marrufo

Ninth Circuit -- DALE FOSSEN V. BLUE CROSS AND BLUE SHIELD OF

State health insurance law preempted.


DALE FOSSEN V. BLUE CROSS AND BLUE SHIELD OF

Ninth Circuit -- GARY SMALLWOOD V. ALLIED VAN LINES, INC.

Carmack Amendment bars arbitration clause, as interstate shipper has a right to choose forum.

GARY SMALLWOOD V. ALLIED VAN LINES, INC.

Eighth Circuit -- United States v. Baltazar Jimenez-Perez

Sentencing court erred by not recognizing power to vary downward based on lack of fast-track program.

United States v. Baltazar Jimenez-Perez

Seventh Circuit -- Peter Palka v. City of Chicago

Summary judgment proper on a S1983 "municipal inaction theory" - mere attempt to bootstrap a Monell claim.

Title 7 claims barred by res judicata.

Peter Palka v. City of Chicago

Seventh Circuit -- William Shaffer v. American Medical

District Court erred in dismissing FMLA claim, as employer's memo might have been falsely backdated.


Memorandum protected by A/C privilege - crime/fraud not applicable.



William Shaffer v. American Medical

Seventh Circuit -- Bruce Barton v. Zimmer, Inc

 ADEA claims TKO'd for causation.

Bruce Barton v. Zimmer, Inc

Seventh Circuit -- USA v. Calvin Brown

Fair Sentencing Act still not retroactive in the Seventh Circuit.

Sentencing court had discretion not to impose fines.

USA v. Calvin Brown

Fifth Circuit -- USA v. Miguel Carrillo

 "I wish I had a lawyer . . ." not a sufficient request for counsel under Miranda.

Police did not mislead by saying counsel was categorically unavailable for parole revocation hearing.

No error in giving of flight instruction.

Gov't's inadequate 404(b) notice harmless error.

Harmless error in admission of prior meth distribution conviction in trial for meth distribution.

No error in supervised release condition that barred deft from alcohol. 

USA v. Miguel Carrillo

Third Circuit -- USA v. Melvin Lewis

Sentencing bump for committing a crime while out on pretrial release can extend sentence beyond statutory maximum.


USA v. Melvin Lewis

First Circuit -- Spencer v. Roche

Where the warrant is for an examination of the bowels, the parts of the stomach visible in the X-ray are in plain view, constitutionally speaking.

Spencer v. Roche

First Circuit -- US v. Stergios

Sufficient evidence that bank was FDIC-insured where proof of such insurance predating offense and at time of trial.

Requesting mailed ATM cards that were later used fraudulently satisfies furtherance requirement of mail faud statute.

Ebay fraud justifies supervised-release restrictions on internet access.

Inclusion of 1.4m check in loss amounts (which doubled the guidelines range) was within court's discretion.


US v. Stergios

First Circuit -- Redondo Waste Systems, Inc. v. Lopez-Freytes

Dismissal upheld, as none of the captioned defts were alleged to have done anything wrong.

Redondo Waste Systems, Inc. v. Lopez-Freytes

Eleventh Circuit -- White Springs Agricultural Chemicals, Inc. v. Glawson Investments Corp.

No basis to review arbitration award, as all issues were properly submitted.

White Springs Agricultural Chemicals, Inc. v. Glawson Investments Corp.

Tenth Circuit -- Dish Network Corporation v. Arch Specialty Insurance Co.

Patent infringement can trigger duty to defend by way of an advertising injury claim.

Dish Network Corporation v. Arch Specialty Insurance Co.

Tenth Circuit -- Cordova-Soto v. Holder, Jr.

BIA holding that a procedurally correct but substantively unlawful entry into the country was an illegal entry is not unreasonable.

Cordova-Soto v. Holder, Jr.

Ninth Circuit -- TROY MATTOS V. DARREN AGARANO

Qualified immunity to tasering police officers.

Concurrence:  A pregnant woman parked in front of a school was tasered for refusing to sign a parking ticket or get out of her car.

Concur/Dissent (Chief K): Ever tried to get a pregnant woman out of a car?

Concur/Dissent: Disputed issues of material fact in one of the cases.

TROY MATTOS V. DARREN AGARANO

Eighth Circuit -- Libertarian Party of ND v. Alvin Jaeger

 Substantial burden of requiring primary candidates to score 1% of the vote to get on the ballot is justified by state interests.

No unconstitutional burden in limiting voters to one primary election.

As law applies equally, not equal protection violation.

Libertarian Party of ND v. Alvin Jaeger

Eighth Circuit -- Kendrick Story v. David Norwood

Although presence of injury is not a threshold requirement for claim against prison guard for violence, lack of injury can disprove prisoner's claim.

Kendrick Story v. David Norwood

Fifth Circuit -- USA v. Robert Macias, Jr.

 Series of irrelevant questions during Terry stop unconstitutionally prolonged it.

USA v. Robert Macias, Jr.

Fifth Circuit -- Noel Austin v. Burl Cain, Warden

 No double jeopardy where there is a possible theory of the second crime that does not involve the first being a predicate for it.

Concurrent sentence doctrine declined.

Noel Austin v. Burl Cain, Warden

Fifth Circuit -- Countrywide Home Loans v. Lawrence Velazquez, et a

Lending agreement provided for fees.


Countrywide Home Loans v. Lawrence Velazquez, et a

Fifith Circuit -- Spencer ad hoc Equity Com v. Idearc, Incorporated

 Equitable mootness (not Article III mootness) TKO's challenge to bankruptcy plan.

Spencer ad hoc Equity Com v. Idearc, Incorporated

Fifth Circuit -- Dewey Weaver v. Texas Capital Bank, N.A.

 Debtor's claim that surrender of collateral satisfies required payout under Plan, though not barred by Rooker-Feldman, is barred by res judicata. 

Surrender of collateral is a defense to payment - claim was waived when not raised in bankruptcy court.

Dewey Weaver v. Texas Capital Bank, N.A.

Secind Circuit -- Giovanniello v. ALM Media, LLC

TCPA claims borrow the statute of limitations of the forum state where there is a specific SOL for the violation charged.

Concur in J: No need to reach, claim is stale in either case.

Giovanniello v. ALM Media, LLC

Second Circuit -- Collazo v. Pagano

Prisoner claims dismissed for absolute prosecutorial immunity count as "strikes."


Collazo v. Pagano

Federal Circuit -- TRUSTED INTEGRATION, INC. V. U.S.

As the evidence for one of the claims in a suit was insufficient to prove any of the pending claims in other Federal Courts, there was no statutory bar to the jurisdiction of the Court of Federal Claims over that specific claim.

TRUSTED INTEGRATION, INC. V. U.S.

DC Circuit -- Latif v. Obama

Classified Opinion Not Available to Public

Latif v. Obama

Ninth Circuit -- USA V. CHARLES CARPER

No procedural/substantive error in sentence for exporting night-vision equipment.

USA V. CHARLES CARPER

Ninth Circuit -- JEWISH WAR VETERANS OF THE UNI V. CITY OF SAN DIEGO

Denial of en banc.

Dissent:  Secular use of the area around the religious symbol has made it secular.  Symbol has been there for 100 years.

JEWISH WAR VETERANS OF THE UNI V. CITY OF SAN DIEGO

Eighth Circuit -- Mark Broom v. Larry Denney

District court correctly denied Batson habeus, as there were sufficient distinguishing features in the comparator.

Mark Broom v. Larry Denney

Eight Circuit -- Midwest Railcar Repair, Inc. v. South Dakota Dept. of Revenue

 The 4-R restrictions on railroad taxes do not apply to an entity which merely provides repair and maintenance to railroads.

DISSENT - Increases end cost to railroad entity.

Midwest Railcar Repair, Inc. v. South Dakota Dept. of Revenue

Eighth Circuit -- Carlos Sanchez v. Northwest Airlines, Inc.

 District Court erred in dismissing ADA complaint, as, although deft went bankrupt, the claim was incurred in the ordinary course of business, exempting it from being the subject of a required administrative claim.

Carlos Sanchez v. Northwest Airlines, Inc.

Third Circuit -- William Barber, Jr. v. Eric Shinseki, et al

 Errata. 

William Barber, Jr. v. Eric Shinseki, et al

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

US removal of case from State to Federal Court did not vest jurisdiction in the federal court, as the case had reached final judgment in the state venue.

Paola Oviedo v. Gregg Hallbauer, et al

First Circuit -- US v. Harris

No error in judge not holding competency hearing sua sponte given that deft was prononced sane by expert.

Having counsel answer plea in original arraignment was not reversible error.

Speedy Trial Act appropriately tolled.

No error in accepting waiver of additional time to prepare via colloquy.

Reference by witness to deft's declining to provide DNA wasn't prejudicial, appropriately cured, invited by deft's opening statement.

Sufficient evidence.

No ineffective assistance in introduction of culpability-establishing statement, given that counsel might have thought that the witness would testify later.

US v. Harris

First Circuit -- Bonefont-Igaravidez v. International Shipping Corp.

Summary judgment on age discrimination  claims was correct, as no proof of pretext was offered other than dissimilar comparators.


Bonefont-Igaravidez v. International Shipping Corp.

Second Circuit -- Gallop v. Cheney

Sanctions ordered, adjudged and decreed against counsel for frivoluos and vexatious filings in 9/11 conspiracy theory case.  

Counsel of Record's urging that the entire Second Circuit recuse itself from the case was in bad faith - for the next year, counsel must notify any court in the circuit before which he appears of the sanctions.

Order to show cause why similar sanctions should not issue for de facto lead counsel.

Gallop v. Cheney

Eleventh Circuit -- Delgado v. Florida Department of Corrections

No double jeopardy where Appeals Court sets aside the conviction for a faulty legal theory as opposed to an insufficiency of the evidence.

State's theory on burglary was TKO'd on appeal - felony murder and premeditated murder were tied to it.  (The latter as an included offense.)

Delgado v. Florida Department of Corrections 

 [Thou shalt not kill.  TMB.]

Tenth Circuit -- Twigg v. Hawker Beechcraft Corporation

District Court correctly TKO'd S1981 and FMLA retaliation claims for lack of proof.

Twigg v. Hawker Beechcraft Corporation

Ninth Circuit -- USA V. MICHAEL MCENRY

District Court erred in sentencing deft convicted of noncommercial piloting without a license according to the range for interfering with the safety of an aircraft - the correct comparator is piloting a commercial airplane without a license.

Look to the categorical offense, not the conduct.


USA V. MICHAEL MCENRY

Ninth Circuit -- USA V. GREGORY REYES

No prosecutorial misconduct in advancing theory of self-dealing despite structural bars in the operation which woould have barred self-dealing - govt was forthright.


No prosecutorial misconduct in testimony, as not demonstrably false.

No error in materiality finding, given impact on general financials.

Restatement of earnings not dispositive, but part of the total mix.


USA V. GREGORY REYES

Ninth Circuit -- USA V. LENNY URENA

No abuse of discretion in not issuing self-defense instruction where deft was prisoner responding to a slur with a shank.

No error in limiting cross of MD to extent of injuries, not cause of injuries.

No procedural error in sentence, as change in guideline was not retroactive.


USA V. LENNY URENA

Ninth Circuit -- MONTANA CONSUMER COUNSEL V. FERC

Chevron deference to administrative order setting reasonable pricing in light of market rates.


No burden on agency to verify markets empirically.


MONTANA CONSUMER COUNSEL V. FERC

Eighth Circuit -- Christian Escoto-Castillo v. Janet Napolitano

 Petition for immigration review TKO'd for not exhausting administrative remedies & requiring grounds not in the record.


(Said grounds: state court sentencing order of 364 days, and the predicate requires a one year sentence.)


Christian Escoto-Castillo v. Janet Napolitano

Eighth Circuit -- Chanh Lovan v. Eric H. Holder, Jr.

 Where deportation waivers were available prior to non-retroactive repeal of enabling statute, the particulars of a petition must be weighed as they would have been prior to the repeal - not according to the later administrative rules designed to exclude those categories of offenses covered by the earlier statute.

Chanh Lovan v. Eric H. Holder, Jr.

Eighth Circuit -- SEC v. Sherwin Brown

 District Court did not err in issuing summary judgment without allowing deft to respond, as deft invoked 5A after responding to the interrogatory that he now wishes to use.

Disgorgement was appropriate remedy.

Dissent - Inadequate showing of need for equitable remedy of disgorgement; striking pre-5A interrogatories overbroad.

SEC v. Sherwin Brown

Fifth Circuit -- Robert Evans, et al v. Sterling Chemicals, Inc.

Asset Purchase Agreement effectively amended ERISA plan.

Although subsequent rejection in bankruptcy negatived the contractual basis of the agreement, the ERISA guarantee is stronger.

Robert Evans, et al v. Sterling Chemicals, Inc.

Fifth Circuit -- Oscar Jimenez, et al v. Texas Alcoholic Beverage Comm.

 No plain error in District Court's S1983 instruction that reasonable suspicion was required for strip-searches of prisoners suspected of minor offenses.

Even though instruction was in accord with precedent, no futility exception - objection was not preserved at trial.

No abuse of discretion in instruction holding that Hindering Apprehension was a minor offense as a matter of law.

Dissent - Objection preserved, decision not in accord with Scotus precedent holding that the criterion is the effective operation of the detention facility, not the specific crime of the prisoner. 

Dissent 2 - Not in accord with the Scotus precedent.

Dissent 3 - Search not required if detainee doesn't enter general population.

Oscar Jimenez, et al v. Texas Alcoholic Beverage Comm.

First Circuit -- US v. Pleau

Once the Federal Government has sought custody of a prisoner under the IAD, it cannot by writ of ad prosequendum circumvent the statutory power of a Governor to decline to surrender custody.

Appropriate standard is that for advisory writs, not usual madamus/prohibition.

Absent IAD, State would have to honor the writ.

DISSENT:  Writ has been validly issued.

US v. Pleau 

[Thou shalt not kill.  - TMB]

First Circuit -- US v. Rodriguez

Massachusetts Larceny From the Person statute is an ACCA predicate.

US v. Rodriguez

First Circuit -- Bucci v. US

Habeus 6A claim resulting from the partial closure of the courtroom during jury selection (abundance of venirepersons) was procedurally defaulted given lack of objection at trial.

Ineffective assistance claim does not save, as counsel might have reasonably have decided not to object.

No error in conducting 2255 hearing without petitioner.

Remand for hearing as to whether codeft's counsel was in the room at the time.

No Article III violation in the room being closed by clerk.

No Brady violation - no prejudice.

No coercion of prosc. witness.

Bucci v. US