Published Circuit Opinions - July 7

Second Circuit:

Gallop v. Cheney

The entire Second Circuit declines to recuse itself from a 9/11 conspiracy case.  Attorney ordered to show cause why this one doesn't go to eleven.

Gomez-Beleno v. Holder

Costs and fees to prevailing party in an immigration case, as the government's position wasn't substantially justified.

MLSMK Investment Co. v. JP Morgan Chase & Co.

Madoff litigation - civil RICO conspiracy to "fleece" claim booted as precluded by the PLSRA RICO amendment.

Walters v. Indus. & Commercial Bank of China, Ltd.

 FSIA - China granted immunity based on third party assertion, execution of judgement against Chinese assets blocked.

We identify no doctrinal bar to a district court’s applying execution immunity on its own initiative consistent with the terms of the FSIA.

 First Circuit:

US v. Holmes 

If you have three guns, you have a sentencing enhancement - no need for the possession to be charged, so long as it's part of the same course of conduct or common scheme or plan.

Berkshire Medical Center, Inc. v. U.W. Marx, Inc. 

When you install a poor hospital floor, you have to put in a new one, not just patch the cracks where they appear.

 Frappier v. Countrywide Home Loans

Dismissal of predatory lending claim reversed in part. 

Third Circuit:

Prometheus Radio Project v. FCC

Omnibus review of recent FCC rulemakings.  Need more noticin' & commentin' next time.

Fourth Circuit:

Andria Priestley v. Michael Astrue

Out of state attorneys who did work and signed stuff get fees under EAJA, even where they didn't seek pro hac vice admission.  Dissent - local rules consitute "special circumstances" under the Act.

Fifth Circuit:

Continental Casualty Co. v. Consolidated Graphics

Duty to defend - In Texas, an advertising injury requires dissemination.

Rommel Amos v. Joe Thornton 

16 months between arrest and trial won't get you a speedy trial and/or ineffective assistance of counsel Great Writ - it's not objectively unreasonable in Mississippi..

USA v. Welles Bacon

(Extraordinaily) bad deeds 30 years ago can be considered for "pattern of activity" sentencing enhancement.

Sixth Circuit:

USA v. Robert Daniels  

"Motor City Miink," a Detroit pimp, needed to check the ages of his employees more carefully. Reversed as to one count, as the CEE requires that all conspirators "act in concert."

Seventh Circuit:

USA v. Kenneth Taylor

Conviction under general sodomy law can be a Tier III sex offense, since the judge can consider the charging instruments (revealing it to be rather forcible) & not registering = bad police karma.

USA v. Branden King

Charging instruments usually can't be considered under ACCA.  Dictum, as offense was intrinsically violent.

Gaetano Alioto v. Town of Lisbon

 Motions to Dismiss should be responded to.  (Deft's plan here - move to amend the pleading, then appeal the denial of the motion.)

Eighth Circuit:

(Nine published decisions in one day means MB cuts & pastes clerk summaries.)

United States  v.  Alvin Eason

  Criminal case - Sentencing. Defendant's Tennessee burglary conviction
   qualified as a violent felony under the Armed Career Criminal Act;
   defendant's plea agreement did not waive his right to challenge the
   reasonableness of his sentence; sentence was not greater than necessary to
   achieve sentencing goals and was not substantively unreasonable.

United States  v.  Karina Sanchez-Gonzalez

   Criminal case - Criminal law and sentencing. Court would not consider
   claim of ineffective assistance of counsel at trial as that claim requires
   further development of the factual record and should be raised in a
   Section 2255 proceeding; district court did not err in concluding
   defendant was not entitled to safety-valve sentencing based on its finding
   that she failed to provide the government with truthful and consistent
   information; court would not address a claim of error concerning denial of
   a two-level reduction for acceptance of responsibility as defendant could
   not be sentenced below the statutory minimum in light of the district
   court's denial of safety-valve sentencing

Monarch Fire Protection Dist.  v.  Freedom Consulting & Auditing

   Civil case - torts. District court did not err in granting defendant
   summary judgment on plaintiff's claim for conversion as plaintiff failed to
   establish the elements of conversion under Missouri law; Missouri
   Supreme Court would require an indemnity clause to contain express
   language referencing litigation between the parties before interpreting it to
   allow a party to recover attorneys' fees incurred in an action asserting its
   rights under the contract; here the indemnity clause does not contain such
   language and the court did not err in denying a request for fees. Judge
   Gruender, concurring in part and dissenting in part.

American Civil Liberties Union  v.  Javed Mohammad

   Civil case - civil procedure. While the parents of the charter school may
   have had standing to intervene in an action by the ACLU challenging
   certain of the school's policies on the ground they violated the
   Establishment Clause, the district court did not err in denying the parents'
   motion to intervene on the ground the motion was untimely.

Manley Stowell  v.  Paul Huddleston, M.D

    Civil case - Torts. District court did not abuse its discretion by finding
   that plaintiff's medical expert was not qualified as he had no practical
   experience or knowledge of what is usually and customarily done by
   orthopedic surgeons in circumstances presented in plaintiff's case; nor did
   the court abuse its discretion by concluding that the expert could not cure
   this deficiency by relying on outside sources of information, such as
   medical journals and statistics; claim that plaintiff did not need to present
   expert testimony to establish a prima facie case under Minnesota law is
   rejected as plaintiff had to produce expert testimony to establish that the
   risk of blindness was one that the defendant had a duty to disclose.

Gary Quinnett  v.  State of Iowa

    Civil case - Family Medical Leave Act. State regulations, a state benefits
   website and a benefits guide were insufficient to show that the State of
   Iowa had waived his Eleventh Amendment immunity with respect to suits
   brought under the Family Medical Leave Act's self-care provisions.

Suzanne Clark  v.  Iowa State University

   Civil case - Employment discrimination. District court did not err in
   dismissing plaintiff's "freestanding" due process claim or in denying her
   post-trial motion; however, the court erred in dismissing her state-law
   wrongful discharge claims against defendants Geoffroy and Callahan in
   their individual capacities. Judge Loken, concurring.

United States  v.  Joe Cruz

   Criminal case - Criminal law. District court did not abuse its discretion
   by denying defendant's motion to withdraw his guilty plea as his
   allegations did not establish a fair and just reason to withdraw the plea.

Hawkeye-Security Insurance Co.  v.  Donald Bunch

   Civil case - Insurance. District court did not err in finding coverage did
   not attach because Bunch lacked authority to permit the person driving
   the car at the time of the accident to use the vehicle as a second permittee;
   defendant was not entitled to uninsured and underinsured motorist
   coverage because the policy in question was not ambiguous.

United States  v.  Terry Mortensen

  Criminal case - Sentencing. Claims of Rule 11 error rejected. 

Ninth Circuit:

RICHARD HURLES V. DORA SCHRIRO

Trial judge denies death penalty deft's request for a second chair,  proceeds to file a response 

in special action defending the decision, is denied standing and reversed, proceeds to run trial 

and sentence deft to death.   Yeah, that's a Habeus.   (btw: thou shalt not kill.)

Tenth Circuit:

United States v. Soza 

Results of pre-Gant bad search allowed under good faith exception.

Eleventh Circuit:

Estate of Kyle Thomas Brennan etc., v. Church of Scientology Flag Service Organization, Inc.  

District Court can't enjoin a state proceding to preserve an attorney's representation (barred by the state judge) of a party before the District Court.  Y'know, federalism and all.

Conner v. Hall 

Georgia temporarily kept from executing a prisoner with possible mental retardation, given that it didn't come up at trial.  (Ironically, only because Georgia hasn't made a practice of denying Habeus under default for such things.)  (Btw, thou shalt not kill.)

 

Alan Horowitch v. Diamond Aircraft Industries, Inc. 

Questions on atty's fees certified to Florida S. Ct.,  reply paid.

 

Patsy Croom vs William F. Balkwill, Clifford Legg, et al 

2 hour Summers detention of suspect's 63 year old mother upheld.

 

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.