Federal Circuit -- IN RE LEITHEM

Although the Board cited the same prior art and statute as the examiner, the grounds were different enough to justify remand so that claimant can respond properly.

IN RE LEITHEM

Eleventh Circuit -- USA v. Kifah Wael Jayyousi

Convictions of defts (including Jose Padilla) upheld, remand for sentencing adjustment.

(112 pp. )

Dissent: "Hard facts make bad law."  Agent testimony was closing in disguise.

USA v. Kifah Wael Jayyousi

Eleventh Circuit -- Trailer Bridge, Inc. v. Illinois National Insurance Company

No duty to defend, as CEO statement was not an advertisement.

Trailer Bridge, Inc. v. Illinois National Insurance Company

Tenth Circuit -- Southern Ute Indian Tribe v. Sebelius

HHS is required to enter into contract with tribe to allow the tribe to take over health care provisioning.


Southern Ute Indian Tribe v. Sebelius

Ninth Circuit -- JUAN TAPIA LUNA V. ERIC H. HOLDER JR.

Statutory deadline in Immigration Act is valid.

JUAN TAPIA LUNA V. ERIC H. HOLDER JR.

Ninth Circuit -- INTERMOUNTAIN FAIR HOUSING V. BOISE RESCUE MISSION

Sectarian drug treatment center and homeless shelter can show preference to those of its religion.

No violation of FHA.

INTERMOUNTAIN FAIR HOUSING V. BOISE RESCUE MISSION

Ninth Circuit -- USA V. JERRY POOL

Order.

USA V. JERRY POOL

Seventh Circuit -- H. Stanard v. Keith Nygren

Extraordinarily bad briefs TKO claim and prompt order to show cause why atty should not be disbarred.

H. Stanard v. Keith Nygren

Seventh Circuit -- Quality Oil, Incorpo v. Kelley Part

Handwritten notation added to contract is too counterintuitive to be enforced.

Quality Oil, Incorpo v. Kelley Part

Seventh Circuit -- David Show v. Ford Motor Company

Defective design claims under Illinois law require expert testimony.

David Show v. Ford Motor Company

Fifth Circuit -- In Re: Tony Sparks

Second or successive habeus permitted -- Scotus holding in Graham is a new rule entitled to retroactive enforcement.

In Re: Tony Sparks

Fifth Circuit -- George Williams v. Executive Risk Spclt Ins Co.

Remand justified under CAFA due to local controversy exception.

Arbitration is not a class-action based activity, it therefore does not frustrate the remand.

George Williams v. Executive Risk Spclt Ins Co.

Fifth Circuit -- USA v. Patrick Conn

No error in calculation of meth amounts.

No substantive error in sentence as comparator was not a managerial-type in the operation.

Ineffective assistance beat pursued on collateral appeal.

USA v. Patrick Conn

Fifith Circuit -- Tommy Tolbert v. National Union Fire Insurance

 Insufficient contradition/ambiguity in insurance plan to justify state statutory claim.


Unconscionability claim TKO'd, as the conduct was not at the time of the sale, as Texas law requires.

Tommy Tolbert v. National Union Fire Insurance

Fifith Circuit -- PACE v. Exxon Mobil Corp.

Union cannot compel arbitration on grievances given good-faith claim threshold requirement in the CBA.


PACE v. Exxon Mobil Corp.

Fourth Circuit -- Mohammed Aziz v. Alcolac, Incorporated

Torture Victims Protection Act does not apply to corporations.

Plain language of Act.

Aiding and Abetting covered by Alien Tort Statute.

Requisite intent standard from the Rome Statute.


Mohammed Aziz v. Alcolac, Incorporated

Third Circuit -- Carlen Higgs v. Atty Gen USA

Order, caption change.

Carlen Higgs v. Atty Gen USA

First Circuit -- Haley v. City of Boston

Qualified immunity to police on Brady claim, as it had not yet been extended past prosecutors.

No qualified immunity on deliberate suppression.

No immunity for municipality

Haley v. City of Boston

First Circuit -- US v. Luna

Errata.

US v. Luna

Second Circuit -- Tchitchui v. Holder

Opening a profitable internet cafe in Guatemala counts as permanent settlement in a third country, and can bar asylum claim.

Tchitchui v. Holder

Second Circuit -- United States v. Elbert

When deft's counsel files Anders motion and there are no non-frivolous issues for appeal, remand is not required if sentence departs downward from guidelines without explanation.  Game over.


Gov't had filed motion for summary affirmance.



United States v. Elbert

Eleventh Circuit -- Serrano v. U.S. Attorney General, et al.

Skidmore deference to BIA statutory interpretation holding that, for adjustment of status, an alien must have been inspected and admitted to the country. 

(Illegal entry TKO's the deal.)

 

Serrano v. U.S. Attorney General, et al.

Ninth Circuit -- COMITE DE JORNALEROS V. CITY OF REDONDO- APPENDIX

Appendices.

COMITE DE JORNALEROS V. CITY OF REDONDO- APPENDIX

Ninth Circuit -- ELLIS V. COSTCO WHOLESALE

Female employees of Costco challenge inequitable promotion polices by class action.

Plaintiffs have standing.

Terminated employees are bad class reps for injunctive relief.

Remand for (1) rulings on common question of law/fact;  (2) whether individualized damages permit certification of a 23(b)(2) class; (3) typicality of class reps.


ELLIS V. COSTCO WHOLESALE

Ninth Circuit -- COMITE DE JORNALEROS V. CITY OF REDONDO

Municipal restrictions on day-laborers seeking work on the sidewalk are insufficiently narrowly-tailored regulations of content-neutral speech.

Concurrence in J: Designated place for day laborers would solve.

Special Concurrence:  It is content-based, but if it's content-neutral, there's a lack of alternative means of expression.

[Interesting - both the Concurrence in Judgment and the Special Concurrence seem to substantially join the majority's reasoning.  So, at least in the Ninth, these are (1) two different things and (2) much less dissenting than one might usually think.]

Deep Dissent [that's what Chief K calls it]: Nothing in the First Amendment prevents government from requiring that sidewalks be used for walking.


COMITE DE JORNALEROS V. CITY OF REDONDO

Eighth Circuit -- David H. Heide v. David L. Juve

 Where creditor lent money to debtor to keep the car dealership afloat, whether the loans were to the individual or the corporation is a matter for trial.

David H. Heide v. David L. Juve

Eighth Circuit -- Lawrence Danduran, Jr. v. Kip M. Kaler

Conversion of personalty to exempt status cannot be constructive - courts can't impute it, it has to be actual.

Bankruptcy appellate panel can't make factual findings.

Lawrence Danduran, Jr. v. Kip M. Kaler

Eighth Circuit -- United States v. Levi Smith

Deft didn't register under SORNA - most sentencing conditions upheld, one struck as overbroad.

Standing for Printz challenge to SORNA, but TKO'd on merits, as states can opt for noncompliance and sacrifice federal funding.

United States v. Levi Smith

Eighth Circuit -- United States v. Sholom Rubashkin

Where judge was involved in ex parte pretrial proceedings with prosecution and ICE, jury verdict was not irrevocably tainted.

Probable acquittal is a necessary condition for 33(b) motion for new trial.

No abuse of discretion in scheduling trial on financial charges before immigration ones.

No error in admission of evidence on immigration charges in financial trial.

No plain error in intent jury instructions.

Money laundering charges did not merge with the other crimes.

No substantive/procedural error in sentence.

United States v. Sholom Rubashkin

Seventh Circuit -- Mondrea Vinning-El v. John Evans

Where prisoner requests vegan diet that he claims is required by his interpretation of his faith, a chaplain who finds the request to be not credible is granted qualified immunity if he made the decision by gauging the prisoner's sincerity, but not if he based it on his interpretation of the religion.

Mondrea Vinning-El v. John Evans

Seventh Circuit -- Trevor Ryan v. USA

Where a prisoner claims to have instructed his lawyer to file an appeal, two months is not an unreasonable length of time to allow the prisoner to discover that the lawyer hasn't.

Trevor Ryan v. USA

Seventh Circuit -- Robert Dickerson v. Board of Trustees

Mentally disabled custodian's ADA claims TKO'd by poor job performance record.

Robert Dickerson v. Board of Trustees

Sixth Circuit -- Mark Storey v. Douglas Vasbinder

No habeus on ineffective assistance given overwhelming evidence of guilt at trial.

An intervening direct appeal resets the 'second or successive' count to zero.  Circuit split flagged.

Dissent: Strickland doesn't require certainty of acquittal absent the ineffective assistance; majority opinion was too short.

Mark Storey v. Douglas Vasbinder

Fifth Circuit -- William Amacker, et al v. Renaissance Asset, et al

 Actual knowledge is required for scienter for aiding and abetting under the Commodities Exchange Act.

William Amacker, et al v. Renaissance Asset, et al

First Circuit -- Sony BMG Music Entertainment v. Tenenbaum

Napster sharing verdict largely upheld, remand on damages.

Statutory damages under the Copyright Act survive Feltner 7th Amendment challenge.

Act's prohibitions encompass consumer copiers.

Proof of harm not required for award of statutory damages.

No error in jury instructions setting forth range of statutory damages.

Infringement is willful if it is knowing.

Error to the District Court for considering whether damages offended due process before considering remittitur.

Sony BMG Music Entertainment v. Tenenbaum

First Circuit -- Gonzalez-Droz v. Gonzalez-Colon

Puerto Rico Board of Medical Examiners' ruling that only surgeons accredited in plastic surgery or dermatology are allowed to practice cosmetic medicine survives rational basis review.

Not unconstitutionally vague.

No requirement of pre-deprivation hearing.

Claim of inadequate notice is sheer persiflage - actual knowledge established.

Insufficiently conscience-shocking to be a substantive due process violation.

Not retaliation for suit, as foreordained.

 Gonzalez-Droz v. Gonzalez-Colon

First Circuit -- The Capability Group, Inc. v. American Express Travel

Errata

The Capability Group, Inc. v. American Express Travel

Second Circuit -- United States v. Page

Where there is a logical connection between the gun and the crime, trial court is not required to sever or bifurcate a felon-in-possession charge, so long as a proper limiting instruction is given. 


United States v. Page

Second Circuit -- Natural Res. Def. Council v. EPA

Small sample size tests of pesticide provide insufficient data to waive statutory tenfold children's safety factor.

Arbitrary & capricious.

Natural Res. Def. Council v. EPA

Federal Circuit -- ULTRAMERCIAL, LLC. V. HULU, LLC.

System of providing internet AV content in exchange for ads is not too abstract to be patented.

ULTRAMERCIAL, LLC. V. HULU, LLC.

Ninth Circuit -- UTAM, Ltd. v. Commissioner, IRS

Errata

UTAM, Ltd. v. Commissioner, IRS

Ninth Circuit -- BRENDA MARIE JONES

At confirmation of Chapter 13 plan, at least some of the estate vested in the debtor, and the tax man could have taken his bit.  As he didn't, and the case is past the three year look-back, the debt is discharged in the present Chapter 7 plan.

BRENDA MARIE JONES

Ninth Circuit -- USA V. PABLO RUIZ-APOLONIO

Forcible rape is categorically a crime of violence for purposes of sentencing enhancement.

USA V. PABLO RUIZ-APOLONIO

Ninth Circuit -- USA V. ALBERTO AYALA-NICANOR

Willful infliction of corporal injury on a spouse remains categorically a crime of violence for purposes of sentence enhancement.

USA V. ALBERTO AYALA-NICANOR

Ninth Circuit -- USA V. HOMERO TAFOYA-MONTELONGO

Attempted sexual abuse of a child is a crime of violence for purposes of sentence enhancement.

USA V. HOMERO TAFOYA-MONTELONGO

Ninth Circuit -- ENRIQUE TRIGUEROS V. DERRAL ADAMS

Request for informal briefing on merits by government establishes timeliness of habeus petition.

Timeliness was briefed, and was the RFD of lower court denial.

Court takes judicial notice of these filings.

ENRIQUE TRIGUEROS V. DERRAL ADAMS

Ninth Circuit -- USA V. RICARDO MARTINEZ

Errata.

USA V. RICARDO MARTINEZ

Ninth Circuit -- HABIBI V. HOLDER

For purposes of assessing whether an alien has committed a crime for which the term of imprisonment is at least a year, leap years don't count.  365 flat.

HABIBI V. HOLDER

Ninth Circuit -- KATHLEEN NICHOLS V. LAURA DANCER

A government worker has a protected First Amendment interest in the ability to silently sit next to her boss before the school board fires him.

KATHLEEN NICHOLS V. LAURA DANCER

Ninth Circuit -- HENRY SAMUELI V. CIR

A purported securities loan with a fixed term of at least 250 days and possibly as long as 450 days, entered into not for the purpose of providing the borrower with access to the lent securities, but instead for the purpose of avoiding taxable income for the lender (does not qualify) for nonrecognition treatment as a securities loan pursuant to § 1058 of the Internal Revenue Code.

HENRY SAMUELI V. CIR

Eighth Circuit -- Lisa Schmidt v. Des Moines Public Schools

Noncustodial out of state parent didn't incur loss of due process when denied a single three hour visitation.

Post-deprivation hearing suffices for procedural due process where visitation terminated.

Lisa Schmidt   v.   Des Moines Public Schools

Eighth Circuit -- Semi-Materials Co., Ltd v. MEMC Electronic Materials, Inc

When reckoning commissions, 'delivered by' may not actually require delivery - another carrier might ship.  It's an issue for trial.

Jury could rightly find that vendor had apparent authority.


Semi-Materials Co., Ltd   v.   MEMC Electronic Materials, Inc

Eighth Circuit -- United States v. Mark Rublee

 If sentence imposed according to law, deft cannot challenge amount of 35(b) reduction.

United States v. Mark Rublee

Seventh Circuit -- Frank Van Den Bosch v. Rick Raemisc

Qualified immunity for prison staff who banned prisoner advocacy newsletter.

Ban on third-party correspondence with other inmates (documents passed through an intermediary) upheld.

Frank Van Den Bosch v. Rick Raemisc

Seventh Circuit -- Cheryl Burns v. Orthotek, Inc

Although ERISA requires that any transfer of benefits authorization must be witnessed, where the participant (here also the representative) submits the form with the signature of the authorizing party, the submittal operates as a witnessing.

Cheryl Burns v. Orthotek, Inc

Seventh Circuit -- USA v. Kenneth Clark

Probable cause for search of truck, as although CI was a newbie and got a few facts wrong, police listened in on the conversation where the CI set up the buy with the deft.

No error in limiting cross when it got too personal for witness - ample opportunity to impeach other ways.

USA v. Kenneth Clark

Seventh Circuit -- Herman Nelson v. Janet Napolitano

Voluntarily dismissed suit cannot be reinstated under 60(b) except in extraordinary circumstances.

As counsel misread 60(b) and made a strategic decision to not reveal reasons for staying action, this one doesn't qualify as extraordinary.

Herman Nelson v. Janet Napolitano

Fifth Circuit -- George Dulin v. Bd of Cmsnr of the Greenwood

Proof of discrimination and evidence of pretextual nature of employer's justification for termination creates a triable issue.

Brief per curiam - earlier opinion vacated.

George Dulin v. Bd of Cmsnr of the Greenwood

Fifth Circuit -- Richard Frame, et al v. City of Arlington

 ADA Title II provides a private right of action against governments that construct inaccessible sidewalks and parking lots - the right accrues when the potential plaintiff knows or should have known of the inaccessibility.

Dissent: Statute only refers to public "services" - a sidewalk is not a service.

Richard Frame, et al v. City of Arlington

Third Circuit -- USA v. Vincent Fumo

Errata.

USA v. Vincent Fumo

Third Circuit -- USA v. Ruth Arnao

Errata


USA v. Ruth Arnao

Second Circuit -- Hill v. Curcione.

Untimely prisoner grievance meets exhaustion requirements if accepted and handled by administration.

No deliberate indifference on part of docs.

Claims against one employee not exhausted, as prison grievance didn't mention him.



Hill v. Curcione.

Second Circuit -- Commodity Futures Trading Commission v. Walsh, et al.

As NY Court of Appeals has now held that divorce agreement can cleanse the transferred fruits of fraud where the receiving spouse gets the funds in exchange for valuable consideration, District Court injunctions are out the window.

Commodity Futures Trading Commission v. Walsh, et al.

9/14 8th 9th and 10th Circuit Opinions Posted 9/15

[TMB had to knit up the ravelled sleeve of care.]

Seventh Circuit -- Jamie Jardine v. Mike Dittmann

 Withheld trace evidence of prostitution on the sheets not sufficiently material for Brady claim.

Jamie Jardine v. Mike Dittmann

Sixth Circuit -- Maria Arnold v. James Wilder

Possible lack of probable cause to arrest where mother argues with policeman over rowdy kids.  (Mother subsequently allegedly tackled, placed in choke-hold, handcuffed, put in patrol car and pepper-sprayed.)

Arresting officer can be liable for malicious prosecution.

Introduction of covenant not to sue generated during criminal process was proper, as it went to malicious prosecution - not in for the usual reasons settlement offers are in for.

Remittur was appropriate, but too large.

Maria Arnold v. James Wilder

Sixth Circuit -- USA v. Gary Dudeck, Jr.

Remand to see if receipt of pr0n and possession of same was separate conduct or double jeopardy.

Sentence not procedurally/substantively unreasonable.

USA v. Gary Dudeck, Jr.

Fourth Circuit -- Lori Kennedy v. St. Joseph's Ministries, Inc

Religious organization exemption in Title VII bars suit for dismissal and consequent harms.

Dissent - Interlocutory appeal to resolve is inappropriateness - should remand to see if merits survive summary judgment.

Lori Kennedy v. St. Joseph's Ministries, Inc

Third Circuit -- Township of Lyndhurst v. Priceline.com Inc

District Court was correct to bar suit by municipality against merchant for tax that the state was charged with collecting.  (Prudential standing.)

Township of Lyndhurst v. Priceline.com Inc

[Though this decision is marked as released today, TMB knows he has read it before - possibly an errata?]

First Circuit -- PowerComm, LLC v. Holyoke Gas & Electric

SS1981/1983 Claims that contractor was terminated due to racial discrimination TKO'd by lack of showing of harm - the termination was a standstill following a major accident, and the subsequent contract award wasn't guaranteed.

No hostile work environment for named plaintiff (the company) - proof by individual worker insufficient.


 PowerComm, LLC v. Holyoke Gas & Electric

First Circuit -- Airframe Systems, Inc. v. L-3 Communications

As plaintiff did not provide copies of the registered work in copyright infringement pleadings, District Court was right to TKO the claim for lack of proof of substantial similarity.

No error in not granting fees to prevailing party.

Airframe Systems, Inc. v. L-3 Communications

First Circuit -- Coscia v. Town Of Pembroke, MA

No Due Process violation for S1983 action when arrestee commits suicide 14 hours after release.

Coscia v. Town Of Pembroke, MA

Second Circuit -- Downs v. Lape

New York rule requiring contemporaneous objection to preserve public trial claim for state habeus serves a legitimate end.

Dissent: Exclusion of family members was exorbitant error.

Downs v. Lape

DC Circuit -- Northeast Hospital Corporation v. Kathleen Sebelius

HHS 2004 rulemaking on overlapping Medicare parts A & C is impermissibly retroactive - agency is bound to prior practice.

Concurrence - language of statute governs.

Northeast Hospital Corporation v. Kathleen Sebelius

DC Circuit -- Wilfred Rattigan v. Eric Holder, Jr

 Order - rebriefing

Wilfred Rattigan v. Eric Holder, Jr