Sixth Circuit -- Frank Foster v. Nationwide Mutual Insurance Co.

FLSA exemption for "investigators" upheld for insurance investigators.  Independent discretion in furtherance of business interests.  Court cannot assess whether that independence has been undercut by company policies, as it's a question of fact.

Frank Foster v. Nationwide Mutual Insurance Co. 

Fourth Circuit -- Melissa Trail v. Local 2850 UAW

Petitioner's claim against union officials is individual, not collective, and  the malfeasance doesn't threaten the general health of the union.  Ergo, no claim under union-specific legislation.

Melissa Trail v. Local 2850 UAW

Fourth Circuit -- Raymond Woollard v. Denis Gallagher

Reversal of summary judgment -- Maryland's good-and-substantial-reason requirement for gun carrying permits does not impermissibly infringe on 2A rights.

As-applied and facial challenges TKO'd.

Intermediate scrutiny, viz - "reasonably adapted."


Raymond Woollard v. Denis Gallagher

Fourth Circuit -- Dennis Glynn v. EDO Corporation

No whistleblower protection for DoD contractor, as the flaws pointed out were iterative potential improvements, and not fatal flaws, and therefore there was no viable qui tam suit.

No material fraud in paperwork, pace DoD crim investigation.

Dennis Glynn v. EDO Corporation

Second Circuit -- Scottsdale Ins. Co. v. R.I. Pools Inc.

Defects in installation count as 'accidents' for purposes of swimming pool insurer's duty to defend.

Scottsdale Ins. Co. v. R.I. Pools Inc.

Second Circuit -- Natural Resources Defense Council, Inc. v. U.S. Food and Drug

Advocacy group has Article III standing to challenge regulatory inaction on dangerous chemical, as its members might be exposed to it.  No such standing for challenge to chemical that might eventually produce antibiotic-resistant bacteria, as the connection to the group's members is contingent.

Natural Resources Defense Council, Inc. v. U.S. Food and Drug

Second Circuit -- Parisi v. Goldman, Sachs & Co.

Title VII pattern-or-practice is a method of proof, and not a substantive claim.  Arbitration agreement that forecloses such a claim/proof is therefore enforceable.

Parisi v. Goldman, Sachs & Co.

Reminder -- Coverage

Under the New System, missed days are missed days.  3/21 Opinions only today.  Unless there's extra time.  Capriccio.

MB

No Postings Today

Sufficient is the day, but not always the barrister's.

MB

Ninth Circuit -- GULBRANDSON V. RYAN

Denial of Habeas upheld.

Not calling a certain guilt-stage witness was possibly a strategic call, as it might have caused prejudice against deft -- therefore not an unreasonable application of Strickland.

Not recalling medical expert at penalty phase -- same.

Not recalling medical expert in penalty phase was waived in state Habeas -- raising another issue from the same affidavit was not enough to trigger state review.

No error in denial of evidentiary hearings for Federal Habeas.

Victim impact evidence not unduly prejudicial.

Second/successive denied as (1) not new; (2) reasonable factfinders can disagree.

DISSENT: Further exploration on not recalling the medical expert.



GULBRANDSON V. RYAN

Eighth Circuit -- Gear Automotive v. Wilshire Insurance Company

Sole owner and member of automobile dealership is an employee for purposes of the employee exclusion on the general liability insurance policy.

In brief, "Robert generally engaged in the same daily duties as his brother Darrell, which primarily consisted of selling cars."

Gear Automotive v. Wilshire Insurance Company

Seventh Circuit -- Johnson Controls, Incorporated v. Edman Controls, Incorporated

Arbitration binds, as sensible, and according to the law, and whatnot.

Johnson Controls, Incorporated v.   Edman Controls, Incorporated

Second Circuit -- United Steel v. Cookson America, Inc.

Union has Article III (under 'benefit of the bargain' analysis) and statutory standing to challenge employer's retirement plan.  Consent of union membership (possibly) not required.

United Steel v. Cookson America, Inc.

Second Circuit -- SEC v. Lynn A. Smith, et al.

No appeal possible for Rule 11 sanctions under collateral order doctrine, as not nonreviewable, and they implicate the merits of the underlying action.

Court can, however, hear challenge to sanction against a trustee where inextricably intertwined with an injunction.

Sufficient evidence for sanctions against trustee.

SEC v. Lynn A. Smith, et al.

No Posting Today

Still on reduced machinery, and neither Daryl Larry, his brother Daryl, nor his other brother Daryl is available to cover.  Enjoy the Ides.

MB

Eleventh Circuit -- USA v. Louis Jean Hippolyte

Denial of resentencing for crack/cocaine, as the FSA changes to the mandatory minimums under which deft was sentenced aren't retroactive.

USA v. Louis Jean Hippolyte

Eleventh Circuit -- Mr. Julien Michel Belleri v. USA, et al.

Where citizenship is jurisdictional element of claim, revocation during pendency of suit requires assessment of potential claim to derivative citizenship where tenable.

Mr. Julien Michel Belleri v. USA, et al.

Eleventh Circuit -- Chadrick Calvin Cole v. U.S. Attorney General

Juvenile conviction counts for immigration purposes.

Pointing a gun is an aggravated felony for immigration purposes.

No error in BIA denial of relief.

Chadrick Calvin Cole v. U.S. Attorney General

Ninth Circuit -- USA V. EDGAR ALVIREZ, JR.

Indian tribes cannot produce documents that are self-authenticating by statute.

Deft not harmed by having to avoid multiple interrogation defense for fear of reference to otherwise inadmissible polygraph.

Injury to ankle requiring screws is serious bodily injury for purposes of sentencing.

USA V. EDGAR ALVIREZ, JR.

Ninth Circuit -- ASIL MASHIRI V. DEPARTMENT OF EDUCATION

Neither Mandamus statute nor sue-or-be-sued provision of organic act allows Mandamus action to compel issuance of a student loan, as the petitioner didn't establish a statutory right to the remedy.  (Which would have allowed a bypass of sovereign immunity.)

ASIL MASHIRI V. DEPARTMENT OF EDUCATION

Ninth Circuit -- SILVA MAMIGONIAN V. MICHAEL BIGGS

Website qualifies for ISP safe-harbor under DMCA.

SILVA MAMIGONIAN V. MICHAEL BIGGS

Ninth Circuit -- SILVA MAMIGONIAN V. MICHAEL BIGGS

Habeas grant in Capital case -- Brady/Giglio on prosecution witness' prior bad acts.

Kozinski concurs with his own opinion, holding confession inadmissable under Miranda.

SILVA MAMIGONIAN V. MICHAEL BIGGS

Ninth Circuit -- SILVA MAMIGONIAN V. MICHAEL BIGGS

District Court jurisdiction-strip for immigration by REAL-ID act upheld.  But denial of adjustment of status (or something along those lines) is a final agency action and therefore reviewable under the APA.

SILVA MAMIGONIAN V. MICHAEL BIGGS

Eighth Circuit -- United States v. Martin Wilson

Thus spake the Clerk of the Court:  

[PUBLISHED] [Shepherd, Author, with Wollman and Gruender, Circuit Judges]
Criminal case - Sentencing. District court articulated sufficient justifications for the imposition of a no-contact provision in defendant's supervised release; any error in extending the no-contact order to cover defendant's term of imprisonment was harmless as there was no evidence that the order had any impact on defendant during his now-completed prison sentence.

United States v. Martin Wilson

Eighth Circuit -- Edgarline Dunbar v. Wells Fargo Bank, N.A.

 Le Court dit:

[PUBLISHED] [Gruender, Author, with Wollman and Shepherd, Circuit Judges]
Civil case. Dismissal for failure to state a claim affirmed on the basis of this court's prior opinions in Karnatcheva v. J.P. Morgan, 704 F.3d 545 (8th Cir. 2013) and Murphy v. Aurora Loan Servs, LLC 699 F.3d 1027 (8th Cir. 2011); district court was well within its discretion to impose sanctions where plaintiff's counsel engaged in fraudulent joinder to avoid federal jurisdiction and filed a complaint "blatantly premised on the show-me-the-note theory'" previously rejected by this court and the Minnesota Supreme Court.

Edgarline Dunbar v. Wells Fargo Bank, N.A.

Eighth Circuit -- Aaron Deroo v. United States

Court Summary:

PUBLISHED] [Benton, Author, with Murphy and Shepherd, Circuit Judges]
Prisoner case - habeas. Government's argument that this case should have been dismissed as a second or successive habeas is rejected because the present claim had not arisen when the earlier Section 2255 was filed; while it had arisen when Deroo filed a Section 2241 with the Seventh Circuit, a Section 2255 motion is not a second or successive application where the previous petition sought relief under Section 2241; however, Deroo could have discovered the claim that his Presentence Report was erroneous years before he filed this motion, and the district court did not err in concluding it was untimely; Deroo failed to establish the elements of equitable tolling.


Aaron Deroo v. United States

Eighth Circuit -- Thomas Morelos v. United States

Also sprach the Court clerk:

[PUBLISHED] [Bye, Author, with Murphy and Shepherd, Circuit Judges]
Prisoner case - habeas. Claim that trial counsel was ineffective regarding impeachment and cross-examination rejected; claim of ineffective assistance during closing argument is based on an inaccurate statement of the government's burden at trial and is rejected; any argument that the government did not prove the type of methamphetamine involved in the offense is meritless and counsel could not be ineffective in deciding not to raise the issue; court concludes that counsel's decision not to independently withdraw over the fact that he had prosecuted Morales in state court was within the range of professional assistance; nor was counsel's decision not to withdraw over the suspensions of his licenses in Nebraska and South Dakota beyond the range of professional assistance; because all of Morales's grounds for his claims of ineffective assistance of trial counsel are unavailing, he cannot show that he suffered any prejudice from the manner in which counsel handled his direct appeal; claims of prosecutorial misconduct rejected without comment.

Thomas Morelos v. United States

Seventh Circuit -- USA v. Anthony Banas

Below-guidelines white collar sentence upheld.

USA v.   Anthony Banas

Sixth Circuit -- John B. v. Mark Emkes

Ending of consent decree which federalized aspects of state's Medicaid program upheld.

John B. v. Mark Emkes 

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.