Published Circuit Opinions - July 6

Second Circuit:

Kirk v. New York Dep’t of Educ.

Canadian veterinarian entitled to fees as "prevailing party" in suit arguing anti-Canadianite discrimination even though he subsequently Americanized himself.

Alliance for Open Society International v. U.S. Agency

 Requiring gov't aid recipients to have an anti-prostitution policy is unconstitutional compelled speech, injunction upheld for likely success on merits.  Loooong dissent: Adequate alternative channels & no direct requirement for speech = vacate & remand.

United States v. Bailey

Detention under Summers  incident to search of premises can be nearby but outside the premises (i.e. blocks away - the 8th &10th Circuits' bright line curb rule is wrong, wrong, wrong). 

First Circuit: 

US v. Carrero-Hernandez 

45 in a residential zone is enough to get you a two-level sentencing bump for reckless endangerment, evidence of effective bossin' will get you the four-level bump for leading & organizing.

US v. Molignaro

(Souter) Rehabilitation and treatment cannot justify a longer sentence at resentencing.

Third Circuit:

Joseph Brown v. Comm Social Security 

Social Security ALJ review - District Court's mistaken review under substantial error instead of de novo is harmless error.

Fourth Circuit:

West Virginia HHS v. Kathleen Sebelius 

We conclude that the Medicaid Act plainly authorizes CMS to disallow payments to a state when that state overpays a provider, regardless of whether the state has recovered from a provider or a third party—or, indeed, recovered from anyone at all. --  Board's decision not arbitrary & capricious.

Herb Lux v. Charles Judd

 Election law - residency requirement for witnesses to petition signatures challenged.  (1) Third parties (those not the candidate) lack standing, as seeing another person on the ballot vs. being able to write them in is insufficient injury, (2) future redistricting doesn't make the candidate's claim moot.  Remand to determine if locals can be required to attest to the petition-signin'.

Bruce Matson v. Diego Alarcon

Severance pay is earned for bankruptcy prioritization purposes on the date of termination, not during the time of employment.

Fifth Circuit:

Tracy Barker v. Halliburton Company, et al 

(From yesterday.) 

Under Texas law, a loss of consortium claim derives from a tort action- it cannot derive from a Title VII claim.

Sixth Circuit: 

USA v. Juan Marrero 

Circuit knocks out various pro-se-sounding claims one by one.  (e.g. ineffective assistance, bad search, bad interrogation, retroactive application of more lenient sentencing law.)

 Uyi Dugboe v. Eric Holder, Jr. 

Court has review power over Immigration Law Judge venue transfer decision - but no error here on slapdowns of motions for remand, venue transfer & challenge to witholding of deportation

Eugene Stansberry v. Air Wisconsin Airlines Corp

"Association discrimination" claim under ADA denial under summary judgment upheld, as no reasonable inference of causation for employee's termination.

Warren Henness v. Margaret Bagley 

Habeus procedural challenges denied in death penalty case.  Thou shalt not kill.

David Williamson, III v. NLRB

Union's disciplinary action against member upheld against NLRA challenge, as the member was gathering information, not negotiating (and therefore not shielded from retribution by the Act.)

Seventh Circuit:

George Ryan v. USA

Former Gov's collateral attack on jury instructions for the mail fraud conviction denied as original jury could have convicted under the current caselaw (Skilling).

Rhonda Ezell v. City of Chicago

Chicago's ban on firing ranges implicates a core element of Second Amendment protections. Special concurrence: Especially when gun owners in the city are required to maintain proficiency on gun ranges.

Michael Brooks v. City of Aurora, I

Misbehavior during arrest TKO's a Section 1983 claim, and pepper spray was kosher at the time.

Sharon Bogan v. City of Chicago

Ultimate burden of proving lack of exigent circumstances in a warrantless search remains with plaintiff. 

Eighth Circuit

United States  v.  Roman Cavanaugh, Jr.

Prior tribal court misdemeanor convictions count towards habitual offender status.

Jim Rues  v.  Larry Denney

Attorney miscalculation can't toll habeus filing deadline, a new study isn't new news for the new court.

In re: Zurn Pex Plumbing

"Tailored" Daubert for two experts prior to class certification was appropriate, certification of 

not-yet-leaking plaintiffs was also appropriate.  Dissent: no and no.

Paula Kingman  v.  Dillards, Inc.

Damages for caused by falling rack at Dillard's upheld, depite evidence of prior injuries to plaintiff; 

1M consortium award reversed & remanded.  (Must have been some amazing consortium.)

Ninth Circuit:

NRDC V. WEST COAST SEAFOOD PROCESSORS

Plaintiff: Hey, I want to intervene.  Court: You can't.  Plaintiff: Why?  Court: Case is finished, dude.

Dissent: Capable of repetition, yet evading review.

Tenth Circuit

ATK Launch Systems v. EPA

Clean Air Act challenge transferred to the DC Circuit.

Eleventh Circuit

USA v. Carmelina Vera Rojas 

Sua sponte, the Fair Sentencing Act held to apply to those not yet sentenced when the Act took effect.
The necessary inference is that the will of Congress was for the FSA to halt unfair sentencing practices immediately.

Published Circuit Opinions - July 5

Second Circuit:

NML Capital, Ltd. v. Banco Central de la República Argentina

FISA - attachment of funds in a Soveregn's central bank.

Because BCRA’s sovereign immunity over the FRBNY Funds has not been waived and the

FRBNY Funds are property of BCRA held for its own account under 28 U.S.C. § 1611(b)(1), we
hold that the FRBNY Funds are immune from attachment and restraint.

First Circuit:

Spooner v. EEN, INC.

Lodestar award of fees by District Court affirmed.

. . . they have not shown (indeed, they have made no effort to show) that the rates requested were esurient. These failures are a testament to the fairness of the district court's tamisage.

 South Shore Imported Cars, Inc v. Volkswagen of America, Inc. 

(Souter)  Automobile manufacturer not necessarily  bound by franchise agreement when the end of the business is in sight.

Third Circuit:

Pierre Joseph v. Hess Oil VI Corp

Extra time for appeal under statutory jurisdiction grant from the Court of the Virgin Islands is not to be granted.  Except for this time.

Fourth Circuit:

US v. Lashawn Divens

Sentencing Guidelines - deft. guilty plea can compel reduction under 3E1.1(b) without govt discretion.

Accordingly, under § 3E1.1(b) the Government retains discretion to refuse to move for an additional one-level reduction, but only on the basis of an interest recognized by the guideline itself—not, as with § 5K1.1, on the basis of any conceivable legitimate interest.

US v. Tiffanie Brack

Abuse of trust enhancement applies to someone who poses as a bail bondsman.  Contender for schmuck of the year.

Seventh Circuit:

USA v. Walter Hill

Deputy liquor commissioner can be  "high" office for sentencing guidelines purposes.

Schreiber Foods, Inc v. Lei Wang
After selling faulty ingredient for infant formula to a Chinese company who then refused delivery, the vendor files suit against a middleman for false representation.  Posner, J.: "O no you di'int."  

(Economic loss doctrine bars recovery in tort under Wisc. law.)

Roberthenry Davis, S v. Time Warner

Section 1981 & Title VII claims' dismissal on summary judgment upheld, given questionable transaction engaged in by employee.

USA v. Stephen Waltower

Acquitted conduct can constitutionally be considered in sentencing.  (For the non-acquitted parts, natch.)

Eighth Circuit, as described by the Clerk:

101440P.pdf   07/05/2011  Jeanette Jackson  v.  United Parcel Service
   U.S. Court of Appeals Case No:  10-1440
   U.S. District Court for the Eastern District of Arkansas - Little Rock    
   [PUBLISHED] [Shepherd, Author, with Bright and Gruender, Circuit Judges]
   Civil case - Employment discrimination. Plaintiff was not a viable
   candidate for promotion in 2004 and was not similarly situated to
   candidates who were considered; as a result, she failed to make a prima
   facie case of race or sex discrimination with respect to the promotions of
   the other candidates; the continuing violation doctrine does not apply to
   failure-to-promote claims, which arise from discrete employment actions;
   plaintiff failed to make a prima facie case of retaliation; district court did
   not abuse its discretion by striking plaintiff's statement of disputed facts
   for failure to comply with local court rules.
  
101743P.pdf   07/05/2011  Warner Bros. Entertainment  v.  X One X Productions
   U.S. Court of Appeals Case No:  10-1743
   U.S. District Court for the Eastern District of Missouri - St. Louis    
   [PUBLISHED] [Gruender, Author, with Benton and Shepherd, Circuit Judges]
   Civil case - Copyrights. Given the undisputed evidence regarding
   distribution of publicity materials for the Wizard of Oz and Gone with the
   Wind, as well as the Tom & Jerry cartoons at issue in the case, these
   publicity materials are in the public domain; Dorothy, Tin Man, Cowardly
   Lion and Scarecrow from the Wizard of Oz, Scarlett O'Hara and Rhett
   Butler from Gone with the Wind, and Tom and Jerry each exhibit
   consistent, identifiable traits in the films that are sufficiently distinctive to
   merit character protection under the respective film copyrights; at the very
   least, the scope of the film copyright covers all visual depictions of the
   characters, except for any aspects of the characters that were injected into
   the public domain by the publicity materials; the Tom and Jerry publicity
   materials were generic and their visual depictions and characteristics
   derive from works still covered by the statutory copyright; as a result,
   their underlying characters are not in the public domain until the
   copyrights on the cartoons expire; the publicity photos and materials for
   Gone with the Wind are no more than pictures of the actors in costume
   and the only images in the public domain are the precise images in the
   publicity materials; the characters' visual appearances in the publicity
   materials for The Wizard of Oz do not present the requisite consistency to
   establish any copyrightable elements of the film's character's visual
   appearances and the only images in the public domain are the precise
   images in the publicity materials; therefore, any visual depiction in
   defendant's consumer materials that is a recognizable copyrighted
   character from Gone with the Wind or Wizard of Oz, other than a faithful
   copy of the public domain image, has copied original elements from the
   film; plaintiff's products that reproduce one image from an item of
   publicity material as an identical two-dimensional image do not violate
   plaintiff's copyright and, the portion of the district court's permanent
   injunction prohibiting such depictions is vacated; products containing
   composites of protected and public domain images do infringe plaintiff's
   copyright and were properly enjoined; creation of three-dimensional items
   from the publicity items relies on protected images and other information
   from the films, and such items were properly enjoined; injunction
   concerning Tom & Jerry materials is modified to permit production and
   sale of two-dimensional items based on the first, generic depictions in the
   poster for the film Puss Gets the Boot.
  
101981P.pdf   07/05/2011  Lloyd Grass  v.  Robert Reitz
   U.S. Court of Appeals Case No:  10-1981
   U.S. District Court for the Eastern District of Missouri - St. Louis    
   [PUBLISHED][Gruender, Author, with Bye and Colloton, Circuit Judges]
   Prisoner case - habeas. District court erred in finding prisoner had not
   exhausted his state remedies and the matter is reversed and remanded for
   further proceedings; prisoner pursued his Foucha due-process challenge to
   the denial of unconditional release through one complete round of the
   State's established appellate review process and thus exhausted the claim.
   Judge Colloton, concurring in the judgment.
  
102169P.pdf   07/05/2011  United States  v.  Jose Bonilla-Siciliano
   U.S. Court of Appeals Case No:  10-2169
   U.S. District Court for the Western District of Missouri - Kansas City    
   [PUBLISHED] [Colloton, Author, with Gruender and Shepherd,
   Circuit Judges]
   Criminal case - Criminal law. District court did not err in denying
   defendant's request to submit a defense of necessity as he failed to show
   that a real and specific threat to his safety existed; district court did not
   abuse its discretion in denying defendant's morning-of-trial motion for a
   continuance.

Ninth Circuit: 

PLANES V. HOLDER

 Immigration - (1) conviction is sufficiently final even if resentencing is not complete, and  (2) absent legal 

or Consitutional claim, federal courts cannot review final removal orders. 

USA V. CALVIN EVANSTON
After an Allen charge, a District Court cannot inquire into the reasons for the deadlock and allow additional argument on those questions.

USA V. NAJEEB RAHMAN
 Absent showing of ineffective assistance, appeal of deft's motion to withdraw his guilty plea barred by waiver of appeals in said plea agreement. 

Tenth Circuit:

United States v. Thomas
Citing Sykes, held that running away might very well now be a violent crime in Kansas.

Salazar v. Butterball, LLC
Whether poultry processors' clothes-changing time should be on the clock.
We hold that, where a CBA is silent on the issue and there is no other agreement regarding donning and doffing pay, a custom or practice of non-compensation exists for § 203(o) purposes if there was an established practice of noncompensation prior to the execution of the CBA.