Eighth Circuit -- United States v. Roger Bugh

Sufficient evidence to reject entrapment defense, as deft had aired plans to illegally sell firearm before being approached by the CI.

Aggressive pursuit of investigation was not outrageous governmental conduct sufficient to overturn the conviction.

No Due Process violation in gov't destruction of tapes, as deft didn't establish bad faith or exculpatory value.

Non-residential burglaries are valid ACCA predicates. 

United States  v.  Roger Bugh

Eighth Circuit -- United States v. Anthony Akiti

Sufficient evidence that getwaway driver aided and abetted.  Reasonable jury could have found that given the contqacts before the crime, the aider/abettor knew the principal to be armed.

Sufficient evidence for obstruction, given conversations with wife.

United States  v.  Anthony Akiti

Eighth Circuit -- United States v. Joseph Young

No error in denial of severance for multiple bank robberies, as evidence of each would likely have been admissible in all.

Given that he was alleged to have worn the same clothing in prior robberies, no error in allowing evidence of prior bad acts - baseball cap and flannels were sufficient signature.

Within guidelines sentence not an abuse of discretion.

Joseph Young

Sixth Circuit -- USA v. Kenneth Cochrane

Scope and duration of Terry stop was legit, given diligence of officers.

Consent was voluntary as there was no evidence that def thought that police had the power to search regardless of answer.

Within guidelines sentence substantively reasonable; sentencing court must give some indication as to the rationale for imposing consecutive sentences - remand.

USA v. Kenneth Cochrane

Sixth Circuit -- Keith Mitan v. Fed. Home Loan Mortgage Corp.

End of the redemption period for a foreclosed property does not end standing to challenge the sale where the sale is in violation of the foreclosure statute and therefore void ab initio.

Keith Mitan v. Fed. Home Loan Mortgage Corp.

Federal Circuit -- PRESIDIO COMPONENTS V. AMERICAN TECHNICAL CERAMICS

No error in finding of infringement, as a substantially monolithic component might not be entirely monolithic.

Substantial evidence for lost profits finding.

Finding of no competition  for purposes of irreparable harm conflicts with finding of competition for purposes of damage award.

Error in denial of injunction.

As amendments to the statute apply retroactively, plaintiff has no cause of action.



PRESIDIO COMPONENTS V. AMERICAN TECHNICAL CERAMICS

Federal Circuit -- IN RE MARSHA FOX

No error in denial of registration of mark with obscene double entendre.

IN RE MARSHA FOX

Eleventh Circuit -- Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta v. The Florida Friory of the Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, the Ecumenical Order

No fraud on the PTO, given the subjective good faith of the signer.

Visual similarity of marks cannot be the only criterion in Langham Act confusion of marks claim.

Harmless error in allowing lay witness to testify as to historical matters.

Trial court shouldn't have looked things up on the internet.

(Bonus: citation to the Henrican Act of Supremacy)

Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta v. The Florida Friory of the Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, the Ecumenical Order

Eleventh Circuit -- Angela Harris, et al. v. Liberty Community Management, Inc.

Management company's collection of debts for the homeowners association was incidental to the fiduciary relationship ad therefore not covered under FCRA.

No violation of state statute.

Angela Harris, et al. v. Liberty Community Management, Inc.

Tenth Circuit -- Schwartz v. Booker

No error in denial of qualified immunity, as state incurs special relationship with foster child at placement, making all subsequent state actors liable.

Sufficient evidence for abdication of duty.  Right was clearly established.



Schwartz v. Booker

Tenth Circuit -- The Estate of B.I.C. v. Gillen

Error for District Court to grant qualified immunity to social worker in death of abused child, as state-created danger exception applies.

Given preponderance of facts, social worker should have known that she was violating clearly established law.

No specific intent to interfere with familial relationships, so no claims under Due Process.

Claim accrues with the death, not with the conduct.

Concurrence: Right, but inaction can't be considered affirmative conduct.


The Estate of B.I.C. v. Gillen

Tenth Circuit -- Fireman's Fund v. Thyssen Mining Construction

Joint venture partner's acts in the forum were not taken in furtherance of the company's interests, therefore not enough minimum contacts for personal jurisdiction.

As Canadian courts might bar the claim, dismissal under forum non conveniens was erroneous.

Fireman's Fund v. Thyssen Mining Construction

Ninth Circuit -- METRO ONE TELECOMMUNICATIONS, V. CIR

Net operating losses can't be applied to previous years' taxes.

Legislative intent, plain meaning.

METRO ONE TELECOMMUNICATIONS, V. CIR

Eighth Circuit -- United States v. Marc Engelmann

Court erred in denying evidentiary hearing on whether sequestration violation justified new trial.

Dissent: Nope.

United States  v.  Marc Engelmann

Seventh Circuit -- Norman Bernstein v. Patricia Banker

Environmental statute (CERCLA) limits claimants to a contribution claim when both a contribution claim and a recovery claim are possible.

The claim accrues not on the execution of the settlement agreement, but upon the performance of the consideration required by the agreement.

No abuse of discretion in not striking argument in summary reply brief, as it had been raised earlier.

Where they contradict, SOL derives from the type of claim, not the provisions of the statute.

Given a series of cleanup orders, the claim accrues separately with each order.

Conditional cross-appeal will lie despite finding in the party's favor at trial, as the conditional cross-appeal sought dismissal with prejudice.

Despite overlapping facts, the issues are too different for issue & claim preclusion.

Norman Bernstein v. Patricia Banker

Seventh Circuit -- USA v. Blazej Wasilewski

No error in imposing position-of-trust sentencing bump for a bank's assistant branch manager's embezzlement of 40K.

Court's expressed regret at sentence length was not a statement that it viewed the guidelines range as mandatory.

USA v. Blazej Wasilewski

Sixth Circuit -- Arthur Bell v. Carol Howes

Attorney not mentioning potentially exculpatory evidence at trial is not in itself proof that the information wasn't disclosed.  Habeas reversed, as the events are not therefore an unreasonable application of Brady.

Existence of undisclosed principal insufficient to toll AEDPA under actual innocence claim.

Arthur Bell v. Carol Howes

Sixth Circuit -- Dennis Freudeman v. Landing of Canton

No error in res ipsa jury instruction, as the medication wrongly taken was within the exclusive control of the nursing home.

Hostile cross by the court did not reflect egregious bias.

No error in jury instruction on punitive damages.

Statutory cap on punitive damages as percentage of total award does not include damages from wrongful death claim.

Dennis Freudeman v. Landing of Canton

Fifth Circuit -- Dennis Melancon, et al v. City of New Orleans, et

Freely revocable taxi licenses are not a cognizable property interest under Louisiana law, despite the existence of a secondary market.

Licensing by the city or the state is not the extension of a contractual offer. Hence, no impairment of contract by subsequent modification of regulatory scheme.

Taxi upgrade ordinances do not present irreparable injury sufficient for an injunction.

Dennis Melancon, et al v. City of New Orleans, et

Fifth Circuit -- Netsphere, Inc. v. Jeffrey Baron

If a litigant allegedly tries to frustrate bankruptcy proceedings by repeatedly retaining new counsel, the court cannot attempt to control this by putting all of his personal assets into receivership.  

No evidence that property was being moved outside of the court's jurisdiction.

Fees of the recievership (probably mostly) to the deft, though, as it's an equitable call, and move was good-faith reaction to the deft's improper acts.
 

Netsphere, Inc. v. Jeffrey Baron

Fourth Circuit -- US v. Carter Tillery

Theft of $40 from dry cleaners satisfies Hobbs Act robbery jurisdictional predicate, as it depleted the assets of an interstate business.

Sufficient evidence, given the witness ID.

Jury instructions asking for unanimous verdict in order to avert mistrial don't violate rule against court inquiring into the vote.

Intentional flight form law enforcement counts as violent crime for sentencing.

US v. Carter Tillery

Fourth Circuit -- Kay Butler v. US

Agency benefits award has no preclusive effect on plaintiff's subsequent Article III FTCA action.  The statute says that the agency determination binds all claims to the agency, not claims against it.

Kay Butler v. US

Second Circuit -- Longman v. Wachovia Bank, N.A.

No private right of action in FCRA provision.

Trial court did not abuse discretion in denying leave to amend the complaint.


Longman v. Wachovia Bank, N.A.

Second Circuit -- Olin Corp. v. Am. Home Assurance Co.

Single seepage across many years is a single occurrence as defined in the contract.  Seepage that continues after the coverage period of the contract therefore results in liability where the contract provides for coverage of post-contractual damages from harms within the time of the contract.

Provisions barring coverage where prior insurance exists are not triggered until prior lower-level policies exhaust their limits.



Olin Corp. v. Am. Home Assurance Co.

Second Circuit -- Bacolitsas v. 86th and 3rd Owner, LLC

Interstate Land Sales Full Disclosure Act mandates that the description of the lot be sufficient for recordation, not that the document itself be capable of recordation.  Harmless error in the description of the condo being sold is therefore not grounds for rescission of the sale.

Bacolitsas v. 86th and 3rd Owner, LLC

DC Circuit -- Ampersand Publishing, LLC v. NLRB

First Amendment means that editorial content of newspaper / editorial discretion of employees cannot become a term or condition of bargaining.

No Section 7 protection for such a claim even if other objectives are mixed in.

As union was formed to give the workers editorial control, employer does not have to prove that their actions were motivated by 1A concerns.


Ampersand Publishing, LLC v. NLRB

DC Circuit -- Calpine Corporation v. FERC

Agency's ruling that it did not have jurisdiction to implement a tariff given the court's recent holding to that effect was not arbitrary/capricious.

Calpine Corporation v. FERC

Ninth Circuit -- Stewart v. Beach

Official's simple denial of grievance insufficient personal involvement for S1983 liability.

Lack of interlocutory appeal of qualified immunity doesn't make the trial judge's decision binding as law of the case.

Court did not err in asking whether it was clearly established that the conduct would violate the right as opposed to asking whether the conduct would violate a clearly established right.

RLUIPA doesn't allow claims against individual defts.

Stewart v. Beach

Tenth Circuit -- United States v. Jones

No per se violation of the Fourth Amendment when Missouri Police officers, thinking that they are in Missouri, effect a search in Kansas.

Deft was not seized when accosted in alley behind the house by police officers saying that they were there for the contraband.

Drug priors, a visit to a shop called "Grow Your Own," and deft's cursing when told that the police were there for the MJ plants sufficed for the Terry stop.

Police statements of investigative intent we not sufficient to make the consent to the search of the home involuntary.

Turning and walking into the house sufficiently demonstrated implied consent to the search.

Extrajuridictional acts by the police officers did not taint the warrants.

United States v. Jones

Ninth Circuit -- USA V. ROBERTO BUSTOS-OCHOA

Where deportation predicate offense is not established as a predicate before the Immigration Judge, but is still as a matter of law a good predicate, petitioner cannot collaterally challenge the order of removal, as petitioner waived the opportunity for relief immediately subsequent to the deportation hearing, even if not informed of the opportunity. 

[Maybe. And the fact that we sometimes hedge on these quick summaries shouldn't establish that the non-hedged summaries are good ones.  Entertainment purposes only.]

No Apprendi error in sentencing factors.




USA V. ROBERTO BUSTOS-OCHOA

Seventh Circuit -- Gavino Cruz-Moyaho v. Eric Holder

Board appropriately considered petitioner's evidence.

No jurisdiction over Board's declining to act sua sponte - only over actions sua sponte.

Class-of-one claim insufficient for Equal Protection.

Gavino Cruz-Moyaho v. Eric Holder

Seventh Circuit -- USA v. David Craig

Within guidelines imposition of consecutive sentences not unreasonable. 

Posner, concurring: De facto life sentences bad - economic and social costs.

USA v. David Craig

Sixth Circuit -- Yu Zhang v. Eric Holder, Jr.

BIA abused discretion in holding that a foreign nation's discrimination against religious leadership does not establish that laity would face similar hostility.

BIA requirement that letters documenting foreign government's abuses be notarized (presumably by officers of said government) is erroneous.

Yu Zhang v. Eric Holder, Jr.

Sixth Circuit -- Remark, LLC v. Adell Broadcasting Corporation

As there was no evidence that parties reserved their approval of the settlement agreement until the final signing of the document, unsigned settlement agreement can bind -- drafting and then sending the final agreement to the other party, who then signed, was sufficient offer and acceptance.

Matter of law appropriate for summary judgment.

Concur: Parol evidence other than the sending of the final instrument is a question for the finder of fact.



 Remark, LLC v. Adell Broadcasting Corporation

Sixth Circuit -- Erie County v. Morton Salt Inc.

Pleadings in an antitrust claim need not contain evidence that tends to exclude the possibility of lawful behavior - this is the summary judgment rule, not the motion to dismiss rule.

12(b)(6) rule is that pleadings must plausibly raise an inference of unlawful agreement.

Bidding irregularities insufficient -- plausibly lawful parallel conduct.

Plaintiff municipality's disinclusion from allegedly prejudicial statutory scheme goes to merits, not standing, as the harm of the statutory scheme comes from the conspiracy alleged.

 Erie County v. Morton Salt Inc.

Sixth Circuit -- Jeff Dye v. Office of the Racing Comm'n

Employer's discontinuance of banked-time payroll system is sufficient threat for a 1A retaliation claim.

Time lapse of two months is sufficient to prove causation.  Two years is per se not.

Trial court erred in granting SJ for deft, as jury could have found liability on 1A claim.

District Court erred in denying claim based on the fact that petitioner did not actually profess allegiance to the party in question - it suffices that the employer thought that he did.

Concur/dissent: No, it doesn't.


Jeff Dye v. Office of the Racing Comm'n

Fifth Circuit -- USA v. Travis McCabe (12/17)

No claim for improper joinder despite lack of conspiracy charge, given the continuity of the facts between the incidents.

Given the cumulative prejudicial evidence, trial court erred in denying the renewal of the motion to sever.

 Insufficient evidence for backward-looking denial of access to the courts claim (police destruction of corpse), as the government never defined what the prospective S1983 cause of action might be.

Trial court did not plainly err in holding that burning the car was a seizure.

No error in holding that federal obstruction statute does not require that the deft intended to obstruct a specifically federal investigation.

Obstruction statute not overly vague, sufficiently grammatical.

Sentencing bump for aggravating factor does not violate Double Jeopardy.

Trial court did not err in ordering new trial for fabricating police report when a second report turned up. 

USA v. Travis McCabe

Fourth Circuit -- US v. Osama Ayesh

Extraterritorial application of fraud statutes comported with the statutes and with due process.

Statements made during 5 hour interrogation after 19 hour (non-custodial) plane flight were voluntary for Miranda purposes.

Sufficient evidence for fraud conviction even where the government eventually received the services - diversion of the funds with intent suffices.

US v. Osama Ayesh

Second Circuit -- Gashi v. Holder

 A list of cooperating potential witnesses for an international tribunal is considered a protected social group when considering deportation of a member of that group.

Status made the petitioner visible to potential persecutors.

Immutable status, as they all witnessed certain acts.

Gashi v. Holder

Second Circuit -- Konowaloff v. Metropolitan Museum of Art

Claim properly dismissed on 12(b)6, as it was clear from the face of the pleadings that the Act of State doctrine barred the suit.

When a successor government does not repudiate a seizure of its predecessor, challenge to the seizure is still barred under the Act of State doctrine.

Konowaloff v. Metropolitan Museum of Art

First Circuit -- Shay v. Walters

Tort claim time-barred, as SOL not tolled for alcoholism, and deft was on notice of the claim shortly after it accrued.

Element of defamation claim not met given fictional name in roman a clef.  Conduct not defamatory, either.

NIED claim derivative of the defamation claim.

Shay v. Walters

Federal Circuit -- CHANGSHOU WUJIN FINE CHEMICAL FACTORY CO., LTD. V. U.S.

CHANGSHOU WUJIN FINE CHEMICAL FACTORY CO., LTD. V. U.S.

Federal Circuit -- INTEL CORP. V. NEGOTIATED DATA SOLUTIONS, INC.

INTEL CORP. V. NEGOTIATED DATA SOLUTIONS, INC.

Federal Circuit -- IGT V. ALLIANCE GAMING CORP.

IGT V. ALLIANCE GAMING CORP.

Tenth Circuit -- United States v. Farr

No error in admission of prior bad acts.

Sufficient evidence for tax charge.

No error in the IRS' seking of civil rather than criminal penalties.

Law of Case doctrine bars Double Jeopardy claim.

United States v. Farr

Tenth Circuit -- Gonzales v. City of Albuquerque

Where Employee Manual says that a certain class of workers is eployed at will and lists grounds for immediately ending their employment, no expectation of employment is created.

No implied expectation either.

Gonzales v. City of Albuquerque

Tenth Circuit -- United States v. Santistevan

Giving police a letter from one's lawyer saying that one does not want to talk to them is sufficient invocation of the right to counsel.

Dissent: Not if you do it silently.

United States v. Santistevan

Ninth Circuit -- USA V. JORGE OLIVA

Knowledge of specific copyright and the forum state of the copyright holder is sufficient purposeful direction  to bring claim under the jurisdiction of the long-arm statute of that forum.


USA V. JORGE OLIVA

Eighth Circuit -- Super Wings International v. J. Lloyd International, Inc.

Claim of lack of consideration on the contract doesn't prevail, as the performance of the obligation was attempted.

Super Wings International  v.  J. Lloyd International, Inc.

Eighth Circuit -- United States v. Robert Montgomery

Deft's challenge to the PSR was to the actus reus, not the mens rea - the intent alleged can therefore be used to establish the conviction as an ACCA predicate.

Within-guidelines sentence not unreasonable.

United States  v.  Robert Montgomery

Eighth Circuit -- Randy Russell v. Whirlpool Corp.

Expert who did not apply a particular customary standard is not therefore barred -- the only requirement of the precedent is that where the standard is applied, it should be done correctly.

Expert testimony can derive from the expert's casual observation of the scene.

Where the fridge is the most charred, sufficient evidence for the finder of fact to decide the issue of where the fire started based on res ispa loquitor.

Witnesses' reference to 'the theory' was not a sufficiently improper barred reference to past problems with the device.

Randy Russell  v.  Whirlpool Corp.

Eighth Circuit -- Shannon Jacks v. Meridian Resource Company

Appeals court has jurisdiction over order of remand to state courts, as remand under local-controversy provision of CAFA is not a divestment of subject-matter jurisdiction.

Federal health plan carriers are not separate entities doing business under a regulatory scheme -- they exercise delegated powers of the government -- removal to federal court is therefore possible under Federal Officer grounds.



Shannon Jacks  v.  Meridian Resource Company

Seventh Circuit -- Brian Burd v. Gail Sessler

No basis for a S1983 damages claim for lack of access to the prison library absent proof that the underlying appeal was likely to succeed.

Such claim is barred even where no collateral relief is possible if the petitioner earlier had the option of seeking collateral relief and decided not to.


Brian Burd v. Gail Sessler

Sixth Circuit -- Crystal Dixon v. University of Toledo

As Human Resources official was a policymaker speaking on a matter of policy, comments in speech are not protected under 1A.

Vague claims that the institution has too much discretion in the matter are not sufficient to move past summary judgment.

No Equal Protection claim, as no valid comparator.

Crystal Dixon v. University of Toledo

Fourth Circuit -- US v. Kristen Smith

Possible error in allowing expert testify without prior disclosure as to generic alcohol metabolization rates was harmless.

Per se requirment in drunk driving statute does not trigger prosc duty to offer a relation-back testimony to establish inebriation at the time of accident - totality suffices.

No error in denying jury instruction on relation back where proof by totality was possible.

US v. Kristen Smith

Fourth Circuit -- David Evans v. Patrick Baker

(10 page caption.  Duke Lacrosse case.)

In a S1983 action, the claim of a police/prosecutor conspiracy does not make the police liable for actions taken after the prosecutor's independent decision to seek an indictment.  This decision breaks the causal chain and eliminates proximate cause, giving the police qualified immunity.

Police reliance on nurse' report doesn't DQ the warrant under Franks.

Disinclusion of potentially exculpatory evidence doesn't trigger Franks - no duty to disclose all.

Police defts' omissions in affidavits weren't enough to trigger Franks, so they get QI.

Absent individual claims, no Monell liability.

Governmental endorsement in liability insurance policy means that the purchase of the policy did not forfeit sovereign immunity.

State malicious prosecution tort claim partially prevails.

There is no common law obstruction of justice tort available against a police officer during the course of an investigation.

Court declines to exercise pendant jurisdiction over state constitutional claims - and as the claims are at the stage of motion to dismiss, they're nonfinal for purposes of appeal.

Concurrence: Yep.

Concurrence/Dissent: Would have dismissed state common law claims as well.

David Evans v. Patrick Baker

First Circuit -- Evanston Insurance Company v. Jasmine Company, Inc.

As, depending on the presumption, early comments might or might not have brought the harassment outside of the insurer's duty to defend, cross-motions for Summary Judgment denied.

Evanston Insurance Company v. Jasmine Company, Inc.

First Circuit -- US v. Powers

Evidence that attorney knew of the situation is insufficient on its own to justify an advice-of-counsel instruction where the lawyer doesn't testify.

IRS agents can testify as to ultimate decisions of the factfinder when it's about tax matters.

Trial court imposed reasonable limits to keep other witnesses from giving opinions as to ultimate matters.

Trial court appropriately limited debate on question of document's admission.

US v. Powers

First Circuit -- US v. Burgos

Insufficient evidence that deft willingly joined conspiracy.  Remanded with instructions to acquit.


US v. Burgos

First Circuit -- US v. Guadalupe

No sentencing error, as the obstruction of justice bump wasn't a factor int the sentence ultimately awarded (under ACCA).

US v. Guadalupe

Second Circuit -- Server Down

The Second Circuit server has been down for a couple hours -- any opinions that rolled today will be listed Monday, so long as the crick don't rise.  Addio!

Federal Circuit -- ASTRAZENECA V. AUROBINDO

Drug patent valid, as although the solution might have been an obvious one to try, it would have required a venture into a new and promising field of experimentation

No inequitable conduct, as although the withheld citation was possessed and discussed,  likely inference of malice is lacking.

Reissue was valid, as the lawyers had an inadequate grasp of the law. 

[When reading a patent case, MB can relate to that.  Again, entertainment purposes only.]

US based Hatch-Waxman ANDA claimant has liability on the claim, given the identity of interests with the foreign subsidiary for whom the claim was ostensibly filed.

Concurrence:  US based ANDA claimant has liability because it intends to actively engage in the subsequent production of the generic.

Dissent - Reissue was bad given lack of due diligence


ASTRAZENECA V. AUROBINDO

DC Circuit -- Jamal Kifafi v. Hilton Hotel Retirement Plan

As the modification to an ERISA plan during the pendency of class certification for an action challenging the plan claimed that the prior arrangement was legal, the change did not make the suit moot, as the company's understanding of the relevant law apparently doesn't preclude further problems in this area.

Where there are three ways of a plan complying with the relevant statute, a court's order that it undertake one in particular is a fair exercise of equitable powers.

Beneficiaries' receipt of payments indicating an unfairly backloaded plan did not cause the claim to accrue for purposes of the statute of limitations where identifying the difference would require the application of complex law to complex facts.

Beneficiaries who participated in the plan prior to the administrator's making of a statement that proved noncompliance with the statute are also eligible for relief, if the scheme was essentially the same during their participation.

When imposing an equitable remedy, a court may hold that participants in an illicitly backloaded plan can mature out of the injury by accruing benefits during the later (inappropriately) lucrative payment periods.

Trial court did not abuse discretion in barring nonunion years of work from claim at class certification, as nonunion service was not itself inherently part of the claim.

Jamal Kifafi v. Hilton Hotel Retirement Plan

DC Circuit -- Marilyn Vann v. Department of the Interior

Ex Parte Young claim against chief of Indian tribe may proceed without necessary joinder of the tribe itself, as joinder is barred by sovereign immunity.

Marilyn Vann v. Department of the Interior

DC Circuit -- Malla Pollack v. Thomas Hogan

Ultra vires action by officers of the federal government creates an exception to Sovereign Immunity, even absent proof of consequent Constitutional harm.

Malla Pollack v. Thomas Hogan

DC Circuit -- Khairulla Khairkhwa v. Barack Obama

No clear error in District Court's holding that petitioner, a former provincial Governor was more likely than not a part of the Taliban forces.

Khairulla Khairkhwa v. Barack Obama

DC Circuit -- PMCM TV, LLC v. FCC

Agency erred in barring transfer of company's broadcast licenses to non-proximate states.

Achieves the intent of the legislation - better allocation of the stations across the states.

PMCM TV, LLC v. FCC

DC Circuit -- Medco Health Sol. of Las Vegas v. NLRB

When an employee wears a union t-shirt critical of an employee incentives program but created by another shop owned by the same company, it is concerted activity.

Non-monetary incentive/recognition program is a term or condition of employment, as it is an attempt to improve productivity.

Less deference due Board on employee/customer relations than on management/employee relations.

Board erred in striking down blanket ban on provocative and insulting clothing - more evidence needed on effect on customers of the business.

Medco Health Sol. of Las Vegas v. NLRB

Eleventh Circuit -- Robert Alan Witcher, et al. v. Valery W. Early, III

As petitioner kept luxury items (tractor, RV, camper) and was therefore able to pay their debts to some degree, the Chapter 7 Bankruptcy petition was an abuse of process under the totality standard, even if not under the means-test standard.

Robert Alan Witcher, et al. v. Valery W. Early, III

Eighth Circuit -- Robert Cochran v. Dave Dormire

State court's decision that counsel's lack of objection to critical testimony was not ineffective assistance was not unreasonable.

State court's decision that apparent lack of interview of alibi witness by deft counsel was not ineffective assistance was not unreasonable.

Where the alibi is for the 'early evening' and the crime was at or around 6:30, the alibi is not exclusive with the crime. (Burglary, shooting, etc)

Robert Cochran  v.  Dave Dormire

Seventh Circuit -- Martin Woolley v. Dave Rednour

Where state lower court court finds ineffective assistance and the Court of Appeals expressly declines to reach the issue, federal Habeas review is de novo.

When the response to well-signalled critically inculpatory evidence at a trial in a capital case is not a strong cross and an expert witness in rebuttal, but rather a sketch on a legal pad shown during closing, that's ineffective assistance.

No prejudice, though, as the deft is the only one who could have contradicted the story, and he didn't take the stand, and absent disproof, the confession - whether or not written to protect the other suspect, the deft's wife - would have ensured the verdict.

Martin Woolley v. Dave Rednour

Sixth Circuit -- Art Shy v. Navistar Int'l

Health plan administrator, functioning as ERISA fiduciary, is not due deference on interpretation of plan terms, as grant of authority to do so is not express and clear.

Substituting Medicare for the plan's prescription plan benefit was a major change, not an administrative one.

District Court had jurisdiction to enforce terms of Settlement Agreement, as the contest was not one of individual eligibility for the plan but overall interpretation.

Equitable relief to the class as a whole did not constitute monetary damages.

Where plan members were subjected to premia in violation of the consent decree, court did not err in awarding judgment without an evidentiary hearing to determine if those costs had been offset.


Art Shy v. Navistar Int'l

Fourth Circuit -- James Blakely v. Robert Wards

Summary Judgment dismissals count as strikes for purposes of the frivolous litigation provisions of PLRA.

Key is whether the decision facially establishes that court held the criteria to be met.

James Blakely v. Robert Wards

Fourth Circuit -- US v. Nicolas Carpio-Leon

Illegal aliens do not have the 2A right to bear arms.

Right is limited to law-abiding members of the political community.

Deference to political branches on matters of immigration.

Statute survives rational basis, as illegal guns are a burden on commerce and a threat to government officials.


US v. Nicolas Carpio-Leon

Fourth Circuit -- Ashland Facility Operations v. NLRB

Election results not tainted, as NAACP official was not an apparent agent of the union when racially inflected comments were made.

Comments were about working conditions at the facility and therefore not per se inflammatory.

Heightened scrutiny does not apply where racially based comments were made by a third party.  Circuit split flagged.

Comments were outside critical period of election anyway.

No  abuse of discretion in the ALJ's limitaiton of the subpoena duces tecum to documents relating to the critical period of the election.

Ashland Facility Operations v. NLRB