Sixth Circuit -- USA v. Kwame Williams

Deft's giving false name to magistrate judge at preliminary proceeding was not material to any substantive issue, so the Obstruction sentencing bump was error.

USA v. Kwame Williams 

Fourth Circuit -- Georgia Pacific Consumer v. von Drehle Corporation

District court should not have allowed amendment of claim to include preclusion affirmative defense, as the other case was decided 16 months before the motion.  Not revived by intervening case.  Error for court to consider sua sponte.

Georgia Pacific Consumer v. von Drehle Corporation

Third Circuit -- USA v. Billy Reynolds

Attorney General's rule on offender registration could not survive even the most deferential review.

Agency's perception of urgency is insufficient standing alone to justify agency's invocation of good cause to avoid notice & comment.

USA v. Billy Reynolds

Third Circuit -- Tamika Covington v. Int'l Assoc Approved Basketba

Title VII dismissal reversed -- female referee challenging all-male policy.

Insufficient agency to state claim against athletic conference and supervening basketball officials union.

Tamika Covington v. Int'l Assoc Approved Basketba

First Circuit -- In Re: Bulger

Mandamus to remove judge in RICO case who worked as prosecutor during time of the alleged offenses.  Standard: no reasonable reading of the record supports judge's refusal to recuse self.

In Re: Bulger

Other cases in...

8th, 9th, 11th, and Fed.  Still working on diminished resources.

MB

Eighth Circuit -- United States v. Terry Golden

From the Court:

PUBLISHED] [Murphy, Author, with Loken and Colloton, Circuit Judges]
Criminal case - Sentencing. The 2010 Guideline amendments did not affect defendant's statutory minimum sentence which remained at 240 months and the district court did not err in denying his motion for a further reduction.

United States v. Terry Golden

Seventh Circuit -- Kelly S. Thomas v. Dushan Zatecky

Kelly S. Thomas v.   Dushan Zatecky

Seventh Circuit -- Donald Tompkins v. Central Laborers' Pension Fun

Donald Tompkins v.   Central Laborers' Pension Fun

Seventh Circuit -- David Furry v. USA

David Furry v.   USA

Sixth Circuit -- Karen Howell v. Reuben Hodge

Denial of habeas for ineffective assistance, as no prejudice, given bias of state law against diversion to mental health system.

Concur: State record is well developed.  [Maybe.  Quick skim.]

 Karen Howell v. Reuben Hodge 

Sixth Circuit -- Eleanor Fulgenzi v. PLIVA, Inc.

Generic drug manufacturer had duty to warn after maker of the original product updated its warnings.

 Eleanor Fulgenzi v. PLIVA, Inc. 

Second Circuit -- L.I. Head Start Child Dev. Servs., Inc. v. Econ. Opportunity Comm'n of

Administrators breached their fiduciary duty to underfunded plan; action not barred by statute of limitations; petitioners have standing.

L.I. Head Start Child Dev. Servs., Inc. v. Econ. Opportunity Comm'n of

Second Circuit -- Thurber v. Aetna Life Ins. Co.

ERISA -- plan does not have to notify participant of reservation of discretion in order to gain the benefit of deference on review.

Plan by its terms retains an equitable lien on overpayments.  An action to recover them can therefore be an equitable counterclaim.

Thurber v. Aetna Life Ins. Co.

First Circuit -- Paolino v. JF Realty, LLC

Compliance with the Clean Water Act's notice of suit requirements is to be assessed equitably, not as a jurisdictional requirement mandating strict adherence to the statute.

Paolino v. JF Realty, LLC 

First Circuit -- US v. Chambers

Court 'defenestrates' attempt to withdraw plea waiver, despite movant's contention that he thought that the sentencing guidelines were mandatory.

US v. Chambers 

First Circuit -- Barclays Bank PLC v. Poynter

Contract provisions requiring lender to provide advance notice of intent to sell apply only to actions initiated pursuant to that subpoint -- it doesn't impose an umbrella notification requirement.

Barclays Bank PLC v. Poynter 

First Circuit -- US v. Mills

No error in not disclosing CI identities, given gov't interest.

No error in calculation of drug quantities.

US v. Mills 

Eighth Circuit -- Alejandro Gutierrez-Vidal v. Eric H. Holder, Jr.

[PUBLISHED] [Beam, Author, with Riley, Chief Judge, and Bye, Circuit Judge Petition for Review - Immigration. Considering the efforts police made to arrest and prosecute members of the Shining Path group who attacked petitioner, the record does not indicate that the government of Peru condoned the group's actions or demonstrated a complete helplessness to protect petitioner, and the BIA did not err in finding petitioner had not established either past persecution or a well-founded fear of future persecution.

Alejandro Gutierrez-Vidal v. Eric H. Holder, Jr.

Eighth Circuit -- Natasha Dallas v. American General Life

[PUBLISHED] [Riley, Author, with Wollman and Melloy, Circuit Judges]
Civil case - Insurance. Under Missouri law, payment of a policy'sfirst premium is a condition precedent to the validity of the policy, and the district court did not err in finding that plaintiff's failure to make the first payment voided the policy; plaintiff failed to present a submissible case of estoppel or waiver under Missouri law.

Natasha Dallas v. American General Life

Eighth Circuit -- United States v. Patricia Robertson

[PUBLISHED] [Loken, Author, with Smith and Benton, Circuit Judges]
Criminal case - Criminal law and Sentencing. In prosecution charging defendant with misapplying funds belonging to her Tribe's Low Income Home Energy Assistance program, the district court's instructions defining the elements of the offense were not erroneous as they fairly and adequately instructed the jury on the mens rea element of the offense; district court did not err in rejecting defendant's "good faith defense" instruction; there was ample evidence to support a special condition of probation banning alcohol use.

United States v. Patricia Robertson

Eighth Circuit -- Tarek Al-Birekdar v. Chrysler Group, LLC

Court Summary:

[PUBLISHED] [Melloy, Author, with Riley, Chief Judge, and Wollman, Circuit Judge]
Civil case - Employment Discrimination. Jury instructions submitting plaintiff's claim that Chrysler terminated him in retaliation for a previously filed charge of discrimination with the Missouri Commission on Human Rights were not erroneous; evidence was sufficient to support plaintiff' verdict under the Missouri Human Rights Act's contributing factor standard; evidence was sufficient to support the jury's award of damages; evidence was not sufficient to support a finding that Chrysler acted with an evil motive or deliberate indifference to plaintiff's rights and the court did not err in refusing to submit plaintiff's punitive damages claim to the jury; district court did not err in reducing plaintiff's attorneys' fee request; plaintiff's request for attorneys' fees for time spent on post-trial motions and appellate work remanded for further consideration.

Tarek Al-Birekdar v. Chrysler Group, LLC

Sixth Circuit -- Charles Gayheart v. Commissioner of Social Security

SSA -- ALJ did not weigh opinions of treating physicians (among other things) properly.  Remand.

Charles Gayheart v. Commissioner of Social Security 

Sixth Circuit -- Thomas Alfes v. ECMC

FRCP/Bankruptcy -- amendment of claim relates back, as no unfair surprise to adversary.

Thomas Alfes v. ECMC 

Fifth Circuit -- Smith Maritime, Inc. v. L/B Kaitlin Eymard

Torts -- as the product injured itself, no liability to the manufacturer.

Smith Maritime, Inc. v. L/B Kaitlin Eymard

Fourth Circuit -- William MacDonald v. Tim Moose

Virginia anti-sodomy statute falls under facial challenge.

Dissent -- Habeas standard is that there can be no fair-minded disagreement -- state court ruling to contrary entitled to deference.

William MacDonald v. Tim Moose

Third Circuit -- K. A. v. Pocono Mountain School Distric

First/Fourteenth Amendment -- injunction upheld allowing fifth-grader tio distribute Christmas party invitations. Tinker test.

K. A. v. Pocono Mountain School Distric

Second Circuit -- Carroll v. County of Monroe

Fourth Amendment -- shooting the dog isn't a seizure.

Carroll v. County of Monroe

No Posting Today

Today's published Circuit opinions will be posted and tagged tomorrow.

MB

DC Circuit -- Amer. Fed. of Govt. Employees v. Eric Shinseki

Filing unfair labor practice complaints on the basis of desired support of an outside union doesn't per se implicate the right to bargain collectively at this particular workplace.

Amer. Fed. of Govt. Employees v. Eric Shinseki

DC Circuit -- MBIA Insurance Corporation v. FDIC

Contracts of institutions being managed by the FDIC are not necessarily approved by the FDIC (and therefore given priority in wind-up) by being merely countenanced by the FDIC.

MBIA Insurance Corporation v. FDIC

DC Circuit -- Camille Grosdidier v. Broadcasting Board of Governors

District Court correctly found no discrimination in Title VII claim, as the legitimacy of the comparator couldn't be disproved.

Bad faith not required for negative inference instruction from spoiliation where there is duty to preserve.  (Dicta, as harmless error.)

Camille Grosdidier v. Broadcasting Board of Governors

Eleventh Circuit -- USA v. Rick A. Kuhlman

Noncustodial sentence for white collar medical fraud held substantively unreasonable.

USA v. Rick A. Kuhlman

Tenth Circuit -- Toone v. Wells Fargo Bank, N.A

Assignments / endorsements on a note can be examined at Motion to Dismiss stage so long as the authenticity of the instrument is not in question.

Other substantive and procedural challenges TKO'd.

Toone v. Wells Fargo Bank, N.A

Tenth Circuit -- United States v. Loughrin

Bank fraud does not require intent that the bank itself should be the one defrauded.

No Speedy Trial Act violation.

United States v. Loughrin

Ninth Circuit -- USA V. MARCEL KING

Probation condition upholding suspicionless search of residence upheld.

Dissent -- language of waiver, equates probationers with parolees.


USA V. MARCEL KING

Ninth Circuit -- USA V. HOWARD COTTERMAN

Away-from-border border search of laptop computer was not an extended border search, and therefore still required only reasonable suspicion.

Password protection doesn't suffice for same, but can factor into the totality.

C/D/CIJ -- Standard for search is too low.

D -- Standard too vague

USA V. HOWARD COTTERMAN

Ninth Circuit -- JOSE GONZALEZ-CERVANTES V. ERIC HOLDER, JR.

No error in BIA holding that state would not reasonably apply misdemeanor sexual battery statute to non-turpitudinous conduct.

Dissent: But it has in the past.

JOSE GONZALEZ-CERVANTES V. ERIC HOLDER, JR.

Eighth Circuit -- United States v. Paul Beard

Given poor quality of police video, the pre-stop circumstances credited by the trial court are not discredited.

United States v. Paul Beard

Seventh Circuit -- Gary Vaughn v. Thomas Vilsack

Title VII -- no retaliation claim, given subsequent inappropriate workplace behaviour by plaintiff.

Gary Vaughn v.   Thomas Vilsack

Seventh Circuit -- Toy A. Collins v. American Red Cross

Summary judgment against Title VII claims upheld -- plaintiff's subsequent statements that employer was 'out to get minorities' were unprotected.  No animus demonstrated to later report unfavorable to employee.

Toy A. Collins v.   American Red Cross

Fourth Circuit -- Raymond James Financial v. Peter Cary

FINRA arbitration rule doesn't apply, as the securities were purchased on information from an acquaintance of the employees of the covered company, not from the company itself.

Raymond James Financial v. Peter Cary

Third Circuit -- Leon Kendall v. Daily News Publishing Co

Virgin Islands court misapplied law, but harmless error as sme outcome under correct defamation-by-implication rule, viz: plaintiffs must plead and prove intent-- something more than actual knowledge of falsity.

Leon Kendall v. Daily News Publishing Co

Third Circuit -- Mark Maniscalco v. Brother Intl Corp

Interest analysis, not domicile, governs choice of law in products liability action.

Mark Maniscalco v. Brother Intl Corp

Third Circuit -- Valerie Montone v. City of Jersey City

District court erred in not favoring non-movant when considering summary judgment.

Gender discrimination claims were speech on a matter of public concern.

Plaintiffs challenging promotion scheme have both article III and zone of interests prudential standing.  Genuine issue of fact as to whether political affiliation was improperly considered.

Valerie Montone v. City of Jersey City

Second Circuit -- Christian Louboutin S.A. v. Yves Saint Laurent Am. Holding, Inc.

Denial of injunction upheld, as the patent is for a shoe the red sole of which contrasts with the color of the rest of the shoe, and the product in question is completely red.

Christian Louboutin S.A. v. Yves Saint Laurent Am. Holding, Inc.

Federal Circuit -- GLOBAL COMMODITY GROUP LLC v. US [OPINION]

Statute set antidumping threshold for citric acid from PRC at 40%, company offloaded a mix of 35% PRC citric acid, and 65% other citric acid.  Court here upholds ruling under substantial evidence review that this isn't a 'blend' under the statute, as they didn't mix the citric acid with anything.  For next time, MB suggests vodka.

GLOBAL COMMODITY GROUP LLC v. US [OPINION]

Federal Circuit -- IN RE HUBBELL [OPINION]

Patent.  Mit dissent.

IN RE HUBBELL [OPINION]

Ninth Circuit -- JANET BELL V. CITY OF BOISE

Homeless S1983 plaintiffs challenging enforcement of camping regulations against them are not barred from Federal review under Rooker-Feldman, as they are not challenging the legal conclusions of the relevant state court holdings.

Special Police Order limiting  implementation of local ordinance does not make the controversy moot.

JANET BELL V. CITY OF BOISE

Ninth Circuit -- ALEX CORNS V. LABORERS INTERNATIONAL UNION

So long as the members of the Local are members of a supervening union group as well, the umbrella group can impose fair fees under the Federal statute without observing the constitutional rules of the Local.

Concur in J -- The dues increase under the statute isn't a function of the Local at all, but of the larger group.

ALEX CORNS V. LABORERS INTERNATIONAL UNION

Ninth Circuit -- MARVIN WALKER V. MICHAEL MARTEL

Reverasal of Habeas grant for Ineffective Assistance -- shackling under clothing was visible to jury, but insufficient prejudice.

Dissent -- Should redo the penalty phase.

MARVIN WALKER V. MICHAEL MARTEL

Eighth Circuit -- Shaunta Hudson v. United Systems of Arkansas

Sufficient evidence for judgment for plaintiff on Title VII claims;

No error in denying remittur, as award was within the scope of the jury's discretion.

Shaunta Hudson v. United Systems of Arkansas

Fifth Circuit -- Ronald Curtis, et al v. W. Anthony, et al

Section 1983 action against police and municipality for rigged dog-scent lineups.  Municipality cleared, officer, not so much.

Ronald Curtis, et al v. W. Anthony, et al

Fourth Circuit -- US v. Eduardo Rangel-Castaneda

Statutory Rape in Tennessee isn't categorically a crime of violence.

US v. Eduardo Rangel-Castaneda 

Fourth Circuit -- Thomas Francis v. Allstate Insurance Company

Attorneys fees count here for the amount in controversy computation, as caselaw allows recovery of fees.

Choice of law assigned by forum's rules under Klaxon.

Renter's insurance doesn't cover tort defamation suits, as the statements were made deliberately.

Thomas Francis v. Allstate Insurance Company

Third Circuit -- Taibu Grant v. Melvin Lockett

No Brady claim on Habeas, as opposing witness' priors could have been discovered with reasonable diligence.

Granted for Ineffective Assistance on same grounds, though.

Taibu Grant v. Melvin Lockett

Federal Circuit -- RADIO SYSTEMS CORP V LALOR [OPINION]

RADIO SYSTEMS CORP V LALOR [OPINION]

DC Circuit -- In re: Sealed Case

In re: Sealed Case

DC CIrcuit -- Kaiser Foundation Hospitals v. Kathleen Sebelius

Kaiser Foundation Hospitals v. Kathleen Sebelius

Eleventh Circuit -- Reinaldo Ramon Lamonica, et al. v. Safe Hurricane Shutters, Inc., et al.

Illegal immigrants not barred from recovery of back wages under FLSA under in pari delicto.

No error in jury instructions on individual liability & methodology.

Many other issues.  Running short on time.

Concur/Dissent on jury instructions & employer liability.

Reinaldo Ramon Lamonica, et al. v. Safe Hurricane Shutters, Inc., et al.

Eleventh Circuit -- Alabama Environmental Council, et al. v. U.S. Environmental Protenction Agency

Clean Air Act -- EPA action was ultra vires.

Alabama Environmental Council, et al. v. U.S. Environmental Protenction Agency

Ninth Circuit -- LIBERTARIAN PARTY LOS ANGELES V. DEBRA BOWEN

Daubert, Batson, and the English Rule.

Company was a party to settlement agreement given timely joinder.

If denial of peremptory strike was error (given the lack of subjective bias), it was harmless.

Challenges to market definition go to merits, not decision to allow under Daubert.

Sufficient evidence for award of lost profits.

Attorney's fees are procedural (not substantive) under Alaska's choice of law scheme, and therefore apply over the foreign rule drawn from the law generally being applied in the case.

LIBERTARIAN PARTY LOS ANGELES V. DEBRA BOWEN

Ninth Circuit -- LIBERTARIAN PARTY LOS ANGELES V. DEBRA BOWEN

Petition signature-seekers have standing for pre-enforcement federal challenge to state law  requiring that they be a resident of the area in question, given concrete plans to get signatures, and the threat of legal action if they do so.

LIBERTARIAN PARTY LOS ANGELES V. DEBRA BOWEN

Eighth Circuit -- George Donner v. Alcoa, Inc

As injured employee has already elected to receive workman's comp, attempted joinder of employer to defeat diversity would be fraudulent.

George Donner v. Alcoa, Inc

Eighth Circuit -- Minnesota Majority v. Joe Mansky

Polling place is a nonpublic forum.  Restriction on political statements (t-shirts, etc) upheld.

Dismissal of as-applied challenge reversed, as court improperly considered materials outside the pleadings.

Void-for-vagueness requires deliberate indifference -- the statute empowering polling-place workers to enforce the rules did not rise to this level.

Minnesota Majority v. Joe Mansky

Seventh Circuit -- John Dennison v. MONY Life Retirement Income Se

Posner solves ERISA quandry with Farnsworth on Contracts, viz:

Despite explicit provision in Plan barring retroactive rejiggering of benefits, Plan can adjust returns, as the lump sum payout is not an accrued benefit.  Consistent practice of parties to the contract justifies same outcome for a parallel benefit.

Theory of conflict of interest too thin to justify additional discovery.

John Dennison v.   MONY Life Retirement Income Se

Seventh Circuit -- Jose Marin-Rodriguez v. Eric Holder, Jr.

Immigration -- fraudulently obtaining a Social Security card is a crime of moral turpitude.

Jose Marin-Rodriguez v.   Eric Holder, Jr.

Seventh Circuit -- USA v. Edwin Sanchez

Revisions to sentencing guidelines do not trigger ex post facto clause.  Circuit split flagged.

Sentencing bump for maintaining a building to use for drug distribution (as opposed to a residence) should consider not just frequency of use but general scope.

No procedural sentencing error as District Court knew that it could consider codefts differently.

No substantive sentencing error, given that sentence was on low end of guidelines range.

USA v.   Edwin Sanchez

Seventh Circuit -- Beverly Stayart v. Google Incorporated

Internet user's attempt to sue Google for search returns on her name TKO'd as (1) she made her name a matter of public concern by filing a similar suit and (2) connection to advertising revenues is incidental, not substantial.

Beverly Stayart v.   Google Incorporated

Fourth Circuit -- Francine Helton v. AT&T Inc.

ERISA -- no absolute bar to appellate review of evidence extrinsic to the administrative record.

Plan language allowed award of retroactive benefits.

Francine Helton v. AT&T Inc.

Third Circuit -- USA v. Barry Sussman

Federal interest in frozen assets (gold) later illicitly reclaimed was sufficient to make them federal property under the theft statute, as the bank was merely a repository, and the federal agency held a court order giving it ownership of the assets.

Reclaiming the contents of the safe deposit box was obstruction of justice, as it prevented satisfaction of judgment against deft.

Missing transcript sections could not contain material capable of prejudice.

Jury instructions for obstruction, etc were kosher.

USA v. Barry Sussman

Third Circuit -- James Freeman v. Pittsburgh Glass Works LLC

Article III court retained jurisdiction over arbitration as it administratively closed the case, as opposed to dismissing it.

Argument of waiver was itself waived in the court below.

Campaign contribution from party to arbitration did not impugn impartiality.  (Bonus - opposing counsel donated five times as much.)

No fraudulent inducement to accept the arbitration outcome.

James Freeman v. Pittsburgh Glass Works LLC

Second Circuit -- Winfield, et al. v. Trottier

S1983 -- reversal of denial of qualified immunity.

Consent to search of car could not reasonably be construed to extend to piece of mail in the car.

Winfield, et al. v. Trottier

Second Circuit -- Yeldon v. Fisher

Pro se litigant checked "no consent" on consent form for referral to magistrate, but didn't subsequently object.  The defect is jurisdictional, and the magistrate's holding is null.

Yeldon v. Fisher

First Circuit -- Tsai v. Holder

Immigration -- no error in IJ's holding that foreign hospital documents were insufficiently authenticated ; nor in adverse credibility findings vs. petitioner.

Tsai v. Holder