Update

As the vast team of minions and dogsbodies here at MB Central continue to put things back together again, we will have reduced service for most of the coming week.  Our target is to have a link to each opinion posted within 24 hours.  By the end of the week, we will return to posting summaries, but we may add an intermediate step of one-line descriptions to help our tired masses of readers separate the wheat from the chaff, opinions-wise.

Full speed ahead,

MB

Tenth Circuit -- Diverse and unknown cases

Unknown whether these are published or not - they dropped when the blog was down:

01/03/2013

 12-1079  Wehrley vs. American Family Mutual Ins.
 12-6121  United States vs. Van Tuyl
 12-1151  Grady vs. Garcia
 12-5053  United States vs. Montgomery
 12-5037  United States vs. Montgomery


We'll post the Eleventh, Federal, and DC Circuits at the beginning of next week.  Normal service shall be restored shortly.

MB

Tenth Circuit -- Auraria Student Housing v. Campus Village Apartments, LLC

Auraria Student Housing v. Campus Village Apartments, LLC

Tenth Circuit -- Lynch v. Barrett

Lynch v. Barrett

Ninth Circuit -- GREGORY DICKENS V. CHARLES L. RYAN

GREGORY DICKENS V. CHARLES L. RYAN

Ninth Circuit -- KWAI WONG V. DAVID BEEBE

KWAI WONG V. DAVID BEEBE

Ninth Circuit -- JENNIFER HENDERSON V. DEBORAH K. JOHNSON, WARDEN

JENNIFER HENDERSON V. DEBORAH K. JOHNSON, WARDEN

Ninth Circuit -- USA V. CHAO FAN XU

USA V. CHAO FAN XU

Ninth Circuit -- MANUEL TERENKIAN V. THE REPUBLIC OF IRAQ

MANUEL TERENKIAN V. THE REPUBLIC OF IRAQ

Seventh Circuit -- USA v. James Nduribe

USA v. James Nduribe

Seventh Circuit -- USA v. Juan Ramirez-Fuentes

USA v. Juan Ramirez-Fuentes

Seventh Circuit -- Robert Gessert v. USA

Robert Gessert v. USA

Sixth Circuit -- Universal Health Group v. Allstate Insurance Company

Universal Health Group v. Allstate Insurance Company 

Fifth Circuit -- USA v. Ernest Wampler

USA v. Ernest Wampler

Fifth Circuit -- USA v. Gabriel Andres

USA v. Gabriel Andres

Fifth Circuit -- Albemarle Corporation v. United Steel Workers

Albemarle Corporation v. United Steel Workers

Fifth Circuit -- Lifecare Mgmt Services, L.L.C. v. Ins Mgmt Adminis

Lifecare Mgmt Services, L.L.C. v. Ins Mgmt Adminis

Fourth Circuit -- US v. Harold Ford

US v. Harold Ford

Fourth Circuit -- US v. Deshawn Greene

US v. Deshawn Greene

Fourth Circuit -- US v. Saraeun Min

US v. Saraeun Min

Fourth Circuit -- US v. Giuseppe Pileggi

US v. Giuseppe Pileggi

Fourth Circuit -- US v. Prentiss Watson

US v. Prentiss Watson

Second Circuit -- Swartz v. Insogna

Swartz v. Insogna

First Circuit -- Beyond Nuclear v. US Nuclear Regulatory Commission

Beyond Nuclear v. US Nuclear Regulatory Commission 

First Circuit -- Knowlton v. Shaw

Knowlton v. Shaw 

First Circuit -- Martinez Lopez v. Holder

Martinez Lopez v. Holder 

First Circuit -- Murray v. US

 Murray v. US 

First Circuit -- Union de Empleados de Muelles v. UBS Financial Services Inc.

Union de Empleados de Muelles v. UBS Financial Services Inc. 

Hiatus

MB reluctantly reports that due to an unfortunate, somewhat Newtonian, encounter between his bicycle and a taxicab door, the blog will likely be inactive until Monday.  A day later, the only lingering effects seem to be  damage to the knitted gloves and the electronics that were in the bag, but the loss of the latter is proving somewhat problematic.

People of the legal blogosphere, I shall return.

Yr. Obt. Svt.,

MB

Nnth Circuit -- USA V. CHARLES YI

As deft commented on the likelihood of the dangerous compound being in the building the first time that he walked through it, no error in the court's willful blindness instruction.

No error in willful blindness instruction referencing simple carelessness.

No error in imposing sentencing bump for risk of harm to unprotected workmen.

As deft directed the renovations, and wasn't just the check signer, no error in imposition of leader sentencing bump.

USA V. CHARLES YI

Ninth Circuit -- ERIC PETZSCHKE V. CENTURY ALUMINUM COMPANY

Tracing of shares to specific issue doesn't state a claim where aftermarket shares were purchased from a company in a de facto joint venture with the issuing entity -- the company might have had other holdings of the stock.

Traceability speaks to statutory standing under S11, not Article III standing.

ERIC PETZSCHKE V. CENTURY ALUMINUM COMPANY

Ninth Circuit -- FREEMAN INVESTMENTS, L.P. V. PACIFIC LIFE INSURANCE COMPANY

Exlcusive federal jurisdiction over securities fraud class-actions does not bar state suit where the plaintiff is arguing a point of contract interpretation and good faith/fair dealing, and not scienter for fraud.

Claim was in connection with the purchase or sale of securities, as the insurer used the income from policyholders to purchase securities.

Dismissal of class action with prejudice was error if individual claims were viable.

FREEMAN INVESTMENTS, L.P. V. PACIFIC LIFE INSURANCE COMPANY

Ninth Circuit -- USA V. ROBERT PLEASANT

As Petitioner was sentenced under the Career Offender provisions of the drug law subsequently amended by the Fair Sentencing Act, the sentence was based on the amended provision despite a reference in the plea agreement to a non-amended portion of the Act.

The reference to the non-amended provision, however, establishes it as the applicable range as distinct from the agreed-upon range, foreclosing any revisiting of the sentence, as the applicable range wasn't amended.

USA V. ROBERT PLEASANT

Eighth Circuit -- RaShina Young v. Michael J. Astrue

ALJ developed record sufficiently by considering skills generally needed for the task without reference to findings of specific injuries and incapacities of Petitioner.

Dissent: Nope.


RaShina Young  v.  Michael J. Astrue

Eighth Circuit -- Dennis Siegel v. Connecticut General Life Ins.

Claim fiduciary appointment was appropriately executed by the terms of the plan.

Administrator did not abuse discretion in denying benefits absent proof that depression had disabled the claimant.

As there was no material evidence of bias, court did not abuse discretion in denying deposition of plan expert.

Dennis Siegel  v.  Connecticut General Life Ins.

Seventh Circuit -- Peter Poole, III v. Debbie Issacs

[This case is listed as posting today,but in fact was posted and summarized a few days ago.]

Seventh Circuit -- Neil Aslin v. Financial Industry

As agency designation of broker as being from a restricted firm  is no longer in force, the claim is moot.

No reasonable expectation that this plaintiff will be subject to the same designation, so the situation is not capable of repetition yet evading review.

Neil Aslin v. Financial Industry

Sixth Circuit -- Sheryl Taylor v. Timothy Geithner

Congress has not explicitly waived sovereign immunity for Title VII Breach of Settlement claims -- relevant administrative regulation does not specify any Article III remedy.

Fifty-two job applications (denied) coeval with the protected activity is sufficient to create a justiciable issue of retaliation.

Concur/dissent - No proof that plaintiff was qualified for jobs or suffered harm by the denial, no hard proof of adverse action within time period.  Temporal proximity alone not enough to establish causation.


Sheryl Taylor v. Timothy Geithner

Fourth Circuit -- US v. Prentiss Watson

Three hour warant-less detention in convenience store after protective sweep while police waited for warrant was a violation of 4A.

As there was no break in the causal chain from the illegal arrest, Mirandized statements should have been excluded. 

Not harmless.

Dissent: Detention was reasonable under Summers.


US v. Prentiss Watson

Fourth Circuit -- US v. Giuseppe Pileggi

Where appeals court vacates the sentence but not the restitution lower court normally does not have jurisdiction to alter the restitution amount.

As the government had means and incentive to contest restitution on appeal, restitution cannot be adjusted on remand absent instructions from the court of appeals.

Concurrence in J: General remand allows general revision of sentence, this was a specific remand.

US v. Giuseppe Pileggi

First Circuit -- Wu v. Holder

Ineffective Assistance and Due Process claims waived for not being raised during administrative proceeding.

As regulation at time of letter's receipt held that date-stamp was sufficient proof of time of receipt, and petitioner has not offered sufficient proof to establish a claim of clerical mistake, date-stamp establishes claim as untimely.

Wu v. Holder

Sixth Circuit -- USA v. Bryan Ross

Given prior abuse of attorney process and prior colloquy, trial court correctly allowed deft to proceed pro se after minimal colloquy.

Deft has a constitutional, non-waiveable right to counsel at competency hearing, even where court has legitimately allowed him or her to proceed pro se to that point.

Standby counsel did not provide meaningful adversarial testing of the case against deft.

As competency hearing is a critical stage, vacation and reversal is required for denial of counsel.

No abuse of discretion in allowing polygraph agreement into evidence.

No Speedy Trial Act claim, as not in bad faith.

No abuse of process in denial of subpoena

A few other things, including a 

Dissent.



USA v. Bryan Ross

1500

1500 Cases

Well, somewhere around the Ninth Circuit, we passed 1,500 posts.  Taking into account the occasional announcement post and the fact that the blog started off as a one-page-per-day operation, it seems appropriate to mark the milestone here.  Off to secure a bottle of finest plonk to celebrate.

-MB

Federal Circuit -- ABRAMS V. SOCIAL SECURITY ADMIN.

Chevron deference to agency determination that not implementing instructions as to case management is good cause sufficient for ALJ's removal.

Substantial evidence for agency's so finding when ALJ didn't speed up docket after instructed to do so in email.

ABRAMS V. SOCIAL SECURITY ADMIN.

DC Circuit -- Sharon Rollins v. Wackenhut Services, Inc.

Issuance of gun to employee was not enough to defeat per se rule that suicide is an intervening cause sufficient to bar negligence liability - trial court correctly dismissed claim sua sponte.

Certification of question to DC Ct. App. inappropriate.

Leave to amend properly denied, as request was made in the alternative at the end of another motion, and no copy of the proposed amendment was attached to the motion.

No error in denial with prejudice, given unlikely nature of claim.

Concurrence - many thoughts on 12(b)(6), inter alia,  if dismissal of claim is on motion, plaintiff has leave to amend.


Sharon Rollins v. Wackenhut Services, Inc.

DC Circuit -- Vernon Earle v. DC

S1983 Vienna Convention consular notification claim accrues with arrest.  It is not ongoing, neither is it tolled on the basis of fraudulent concealment of the right.

Vernon Earle v. DC

DC Circuit -- Black Beauty Coal Company v. MSHR

Combustible materials and a burning smell in the mine were enough for the violation - no need for actual combustion or proof that the materials had been there awhile.

Circumstantial evidence can be proof of inadequate training.

High negligence finding supported by substantial evidence.

Black Beauty Coal Company v. MSHR

DC Circuit -- USA v. Ernest Moore

No plain error in trial judge's mis-description of elements of the crime during plea colloquy, as deft did not establish harm from the error to substantial rights.

Deft's dispute as to priors in the PSR was waived at sentencing, despite lack of any strategic reason for him to have done so.

Excision of language from plea agreement granting restitution to all claimants does not mean that deft does not consent to judge ordering restitution to all claimants.

Order of judgement not citing plea agreement as basis for restitution was properly made under authority granted in plea agreement.

Counsel's apparent unfamiliarity with sentencing guidelines insufficient to establish ineffective assistance.

USA v. Ernest Moore

Eleventh Circuit -- Florida Transportation Services, Inc. v. Miami-Dade County

In-state company has sufficient prudential standing to challenge exclusionary licensing scheme under the Dormant Commerce Clause.

Local permitting scheme that excludes new entrants to the market plainly imposes a burden on interstate commerce, regardless of where the existing and potential entrants to the market are incorporated.

No local benefit rationally furthered by the licensing scheme.

Market participant exception doesn't apply, as the locality doesn't provide stevedoring services.

Lost profits properly awarded, given likelihood of licensure and proven willingness of market participants to do business with new entrants to the market.

Florida Transportation Services, Inc. v. Miami-Dade County

Eleventh Circuit -- Ronald Bert Smith v. Commissioner, Alabama Department of Corrections

Filing of Habeas petition without fee does not toll the AEDPA one year clock.

Where in-state counsel is possibly incompetent, lack of pro hac vice status for out-state-counsel does not allow court to find abandonment sufficient to equitably toll the AEDPA deadline.

Ronald Bert Smith v. Commissioner, Alabama Department of Corrections

Tenth Circuit -- Kirch v. Embarq Management CO

There is no aiding and abetting liability under ECPA.

As an ISP generally has access to its customers' data, there can be no improper acquisition of the contents of  that data under ECPA.

Kirch v. Embarq Management CO

Tenth Circuit -- United States v. Washington

Oklahoma juvenile conviction for pointing weapon dismissed after deft served probation functions as a valid ACCA predicate.

United States v. Washington

Tenth Circuit -- Jefferson County School v. Elizabeth E.

For a expenses at a second school to be reimbursable under IDEA, courts merely consider whether specifically designed instruction is provided and whether services are provided in order to help the child benefit from those services.

Exigent admission to inpatient medical facility without notice to the school district does not violate 10-day notice provision.

Where the District does not inform the parents of intent to evaluate, no violation of the statute in not making the child available for evaluation.

Jefferson County School v. Elizabeth E.

Ninth Circuit -- ABDUL ALOCOZY V. USCIS

When government allows alien to avoid deportation for a criminal offense, this does not operate as a waiver barring consideration of the offense in subsequent naturalization proceedings.

Retroactive cancellation of the statutory provision allowing government to waive deportation does not mean that alines who utilized it had a valid expectation that it would bar consideration of the matter during naturalization proceedings.

ABDUL ALOCOZY V. USCIS

Ninth Circuit -- USA V. JASON LEE

Guilty plea where the charging document articulates several theories of the crime, only some of which establish it as a predicate for a subsequent sentencing, is insufficient to establish the predicate under modified categorical review.

Where statute allows for reduced sentence where certain findings are made - findings that would remove the conviction as a predicate - and the reduced sentence is made without findings on the record, the reduced sentence in itself is insufficient to disqualify the conviction as a valid predicate.

No error in denial of entrapment instruction.

USA V. JASON LEE

Ninth Circuit -- OSCAR ROJAS V. ERIC H. HOLDER JR.

Immigration judge properly considered evidence in pending criminal trial of petitioner, as it was probative.

No denial of Due Process in the criminal action from IJ's consideration.

OSCAR ROJAS V. ERIC H. HOLDER JR.

Eighth Circuit -- United States v. Derek Allmon, Sr.

Sentencing court cannot sua sponte impose a post-sentencing restriction on prisoner communication.  (Barring communication with everyone except counsel of record.)

United States  v.  Derek Allmon, Sr.

Eighth Circuit -- M.M. v. Dist 0001 Lancaster Co. School

Administrative finding that a certain educational tactic was counterproductive is not in itself proof that the school district's educational plan to the contrary was not in good faith.

Notice of meetings and chance to give views was sufficiently meaningful participation as required by statute.

M.M.  v.  Dist 0001 Lancaster Co. School

Seventh Circuit -- USA v. Adebisi Adigun

Even absent colloquy informing deft of the waiver, a guilty plea without a written agreement preserving certain grounds for appeal operates as an unconditional guilty plea waiving all ex ante non-jurisdictional grounds for appeal.

This is jurisdictional - open question as to whether government can waive it, but as govt hasn't in this case, court has no subject matter jurisdiction to hear a suppression challenge.

Courts reasons for denying downward variance make erroneous imposition of old statutory minimum sentence harmless error.

USA v. Adebisi Adigun

Seventh Circuit -- Peter Poole, III v. Debbie Issacs

Imposition of a modest fee for medical services does not violate the 8th Amendment.

Peter Poole, III v. Debbie Issacs

Fourth Circuit -- US v. Gary Gillion

Proffer agreement that by its terms contemplates trial binds post-indictment, requiring deft to take polygraph.

Statements were hamless anyway.

Interposing a similarly-named shell corporation between customer and employer for purposes of siphoning profits is fraud on the employer; the employer has a property interest.

Misstatements (forged signatures, use of certain kinds of checks) were sufficiently material.

Mailings from the shell corporation sufficient for mail fraud trigger.

US v. Gary Gillion

Fourth Circuit -- Beach First National Bancshares v. Michael Anderson

Bankruptcy trustee of parent corporation has standing for breach of fiduciary duty suit against directors of subsidiary bank taken over by the FDIC only with respect to a real estate transaction that affected the rights of the parent corporation.

Beach First National Bancshares v. Michael Anderson

Federal Circuit -- CW ZUMBIEL V. KAPPOS

Adding a finger flap to a carton was a sufficiently obvious move, regardless of how the carton was intended to be carried, especially as there's no particular reason that the carton should be carried in that way.

Adding flap dispenser to carton similarly obvious.

Preamble to claim appropriately considered.

Dissent: It's a box with holes in it at obviously logical points.

CW ZUMBIEL V. KAPPOS

Tenth Circuit -- Blehm v. Jacobs

When assessing substantial similarity in a copyright action, specific protectible elements rather than general assessments must be considered.

Blehm v. Jacobs

Tenth Circuit -- Hill v. Vanderbilt Capital Advisors

Dismissal/remand for lack of standing is at least colorably a dismissal for lack of subject matter jurisdiction and therefore unreviewable.

Post-removal addition of a uniquely federal cause of action does not allow for review of subsequent unreviewable remand.

Exception to nonreviewability of remand requires divisible orders - elements of a single claim dismissed by a single order cannot be separately assessed.

Hill v. Vanderbilt Capital Advisors

Ninth Circuit -- KEVIN COOPER V. MICHAEL RAMOS

Collateral challenge to conviction under S1983 by an as-applied challenge to state DNA testing statute is barred under Rooker-Feldman as a de facto federal review of (not appealed) state court judgement.

Dismissal without prejudice as to not-barred claims but silent as to leave to amend is sufficiently final for appeal.

No error in denial of leave to amend, as the claim was not salvageable.


KEVIN COOPER V. MICHAEL RAMOS

Seventh Circuit -- USA v. Fairly Earls

Limiting instruction was sufficient to allow evidence of potential state sentence for unrelated bad acts, as it was evidence of deft's motive to flee with fake passport data.

Police ID at trial of deft in photographs was harmless error.

For sentencing purposes, underlying conviction in the relevant section need not have already been obtained.  Language suggesting otherwise is surplussage because of  the cross-reference.

USA v. Fairly Earls

Seventh Circuit -- Ohio Chemical Servic v. Falconbridg

A company's agreement with a distributor that the distributor should reduce its own production levels of the material being distributed is not price fixing and therefore not a per se violation of the Sherman Act.

Trial court does not need to provide extensive reasoning for holding that antitrust case will be decided according to rule of reason rather than per se.


Ohio Chemical Servic v. Falconbridg

Seventh Circuit -- Ronald Slade v. Board of School Dir

Negligence is not a sufficient basis for a S1983 suit.

Plaintiff's enticement claims properly dismissed before trial.

Ronald Slade v. Board of School Dir

Seventh Circuit -- Arthur Lewis, Jr. v. City of Chicago

(b)(2) Class action intervention untimely subsequent to entry of final judgement where the potential intervenors had notice that they were not within the class as amended and the final relief was reasonable with respect to those affected.

Arthur Lewis, Jr. v. City of Chicago

Sixth Circuit -- In re: Joel DeGroot

Bankruptcy Court has discretion under statute to consider an unscheduled asset abandoned to a (non-creditor) third party.

 In re: Joel DeGroot

Second Circuit -- United States v. Metter

US Attorney's certification to an interlocutory appeal on suppression is conclusive proof of materiality and a sufficient showing as to good faith.

United States v. Metter

First Circuit -- Marek v. State of Rhode Island

For a Takings Clause action to be ripe, plaintiff must have exhausted all state court remedies for just compensation.

Undeveloped mechanisms for state court remedies are not therefore futile.

Road expansion scheme tied to cancelled plans for residential development cannot be reviewed as capable of repetition yet evading review.

Marek v. State of Rhode Island

First Circuit -- Awuah v. Coverall North America, Inc.

Neither Federal not Massachusetts law requires any heightened notice for arbitration clauses in commercial agreements.

Awuah v. Coverall North America, Inc.

Tenth Circuit -- Frontier State Bank Oklahoma v. FDIC

Statute bars Article III review of FDIC minimum capital requirements, as there are no discoverable standards to assess them.

Board & ALJ skepticism as to revenue model was reasonable.

FDIC's requirement that bank both increase capital and decrease risk was reasonable.

Agency decisions on liquidity reasonable, as the substantial evidence supporting the agency's conclusions can be a macro assessment of total risk as opposed to assessment of individual strategies.

Given findings on capital, liquidity and risk, per se substantial evidence for mismanagement.

Frontier State Bank Oklahoma v. FDIC