Federal Circuit -- Conservation Force v. Kenneth Salazar

 Suit didn't qualify as a citizen suit under the Endangered Species Act, so no fees for Plaintiff.

Specific statutory duties that Agcy omitted weren't sufficient nonfeasance to trigger award of fees for citizen suit.

Much close parsing of the relevant statutes.

Conservation Force v. Kenneth Salazar

Tenth Circuit -- Clayton v. Jones

Where counsel tells client that he'll be home by Christmas with a guilty plea, and a life sentence results, and counsel then doesn't file a direct appeal after explicit instruction, it's ineffective assistance.

(Plaintiff has been imprisoned for 30 years.)

Remand so lower court can explain why it ordered withdrawal of plea as opposed to out of time appeal.

Clayton v. Jones

Ninth Circuit -- YVON WAGNER V. COUNTY OF MARICOPA

Reference to forced changing-of-clothes of mentally ill jail inmate should have been in for the truth of the matter asserted, not just for mental state.

Reference to pink underwear of inmates should have been allowed.

Barring doc from arguing that the experience killed the inmate was a correct application of Daubert, but he should have been allowed to say that it would have been stressful for him.

Court TKO'ing the plaintiff's rebuttal was uncool.

Dissent -

No offer of proof as to actual belief of victim means that it wasn't hearsay - victim might not have actually believed it.

State of mind exception to hearsay doesn't allow discussion of circumstances leading to the state of mind.

Doc's testimony would have been too speculative, given Daubert findings.

Not allowing the Plaintiff a rebuttal argument wasn't an abuse of discretion.

YVON WAGNER V. COUNTY OF MARICOPA

Ninth Circuit -- ESTATE OF HENRY BARABIN V. ASTENJOHNSON INC

Where expert was DQ'ed pretrial but then later allowed, a Daubert hearing should have been held before letting the expert go to the jury.

Concurrence: Yes, and also explain why evidence of collateral sources of income was excluded after widow claimed destitution.

Concurrence: Yes, but no need for a new trial.  Just have the Daubert hearing and take it from there.


ESTATE OF HENRY BARABIN V. ASTENJOHNSON INC

Seventh Circuit -- Iain Walker v. Norene Walker

District Court erred in saying that the family lived in Australia, and therefore in barring ICARA/Hague return of the children to the US.

State court judgment not a final determination for purposes of the Hague Convention.

Letter between the parents referencing custody should have been barred under FRE as an offer to settle.

Iain Walker v. Norene Walker

Sixth Circuit -- USA v. Real Prop. & Residence

Interlocutory sale of yacht during pendency of civil and criminal actions kosher.

USA v. Real Prop. & Residence

Sixth Circuit -- Debra Kohl v. USA

Testing IED's involves decisionmaking on an operational level, and is therefore within the discretionary activities exception to FTCA.

Debra Kohl v. USA

Test

Testing Facebook/Twitter restart.

End of day

Also decisions in 10th, 11th, and Federal Circ.  I'm at end of day, though.  Addio.

Ninth Circuit -- ALOE VERA OF AMERICA, INC. V. USA

Jurisdiction proper over matter corollary to bankruptcy proceeding.

"Anticipated" income can be included in the judgment despite statutory prohibition on unvested funds being considered.

ALOE VERA OF AMERICA, INC. V. USA

Ninth Circuit -- ROBERT SCHOLZ & CAROLYN SCHOLZ

A pending general investigation is not enough to trigger inquiry notice for the subject of unauthorized disclosures - the plaintiff needed a clearer sign that unauthorized disclosures had been made before the SOL clock starts.

Grant of immunity to govt for unauthorized disclosures of tax info would defeat the purpose of the statute.



ROBERT SCHOLZ & CAROLYN SCHOLZ V.

Eighth Circuit -- Ansu Abraham v. United States

No Padilla question, as the PSR said that there would be likely deportation, and deft reviewed the PSR.

Ansu Abraham  v.  United States

Sixth Circuit -- Coalition to Defend Affirmative Action v. Regents

State constitutional referendum mandating race-neutral admission unconstitutional, as it offends federal constitution.

[This summary prepared from the first paragraph, as it's a long read, and MB is in a hurry.]

Coalition to Defend Affirmative Action v. Regents

Sixth Circuit -- USA v. Sathon Evans

 Ohio 'assaulting a police officer' statute is a crime of violence for sentencing guidelines purposes.

Ohio drug sale statute that includes offering to sell qualifies under federal drug sale statute.  No circuit split for contrary holding in 5th Circuit, as intent to offer to sell is different from intent to sell.

USA v. Sathon Evans

Sixth Circuit -- Samuel Moreland v. Margaret Bradshaw

Death penalty habeus -

Sufficient evidence, eyewitnesses, etc.

No Due Process claim even absent AEDPA deference on competence of young witness.

State law barring expert witness from impugning accuracy of eyewitness doesn't rise to level of fundmenatal fairness.

Crime scene photos did not improperly sway judges - no ineffective assistance for failure to object.

Police testimony as to post-Miranda silence did not improperly sway panel.

Bench trial means that allowing prosc to use invocation as proof of sobriety didn't sway the verdict.  The judges would have not considered any inappropriate evidence.

No ineffective assistance in sentencing phase.


 Samuel Moreland v. Margaret Bradshaw

Fourth Circuit -- Sharon Burnette v. Helen Fahey

 Dissent from denial of en banc on issue of Due Process rights for parole denial.


Sharon Burnette v. Helen Fahey

Third Circuit -- In Re: Pharmacy Benefit

Dismissal of suit subsequent to order to arbitrate makes the arbitration order reviewable.

Order to compel arbitration was error, as litigation had been ongoing for more than ten months, and the equities of the case argue for waiver of right to arbitrate.


In Re: Pharmacy Benefit v.

Second Circuit -- McElwee v. County of Orange

ADA accommodation for autistic gentleman in work program -

1 - No issue of qualifying disability, as the conduct makes the plaintiff ineligible to be considered for the specialized program he is working with.

2 - Accommodations unreasonable as a matter of law.

McElwee v. County of Orange

Second Circuit -- United States v. Siddiqui

Presumption against extraterritoriality doesn't apply to criminal offenses, and this type of offense (shooting Americans) is prone to occurrence outside the US, so extraterritorial application is OK. 

Even in active theatres of war. 

This includes firearms offenses.

Documents planning mass destruction are in to show motive.

Competence to stand trial means that the decision to testify is competently made, even over defense counsel objection.  (Limited to facts of case - judge did not err in allowing.)

Unmirandized & medicated statements in as voluntary.

Terrorism sentencing bump properly  made.

United States v. Siddiqui

Interlocutory Lacuna Continues

This hiatus will last at least another week.  Miles to go before I sleep, and all that.

Lull Impending

OK, Global Legal Community, given that today was hugely unproductive, and I need the time to do some outlining, I'm officially declaring a weeklong lacuna for this blog, backdated to when I left off last Thursday.  As it happens, it's traditional to take a sabbatical stretch after 1500 opinions or so - give the elves in the server time to get out and stretch their legs, that kind of thing.

When we reboot at the end of the week, I'll post links to all of the opinions that dropped in the interval, so that the search function (see the box near the bottom of the page) will cover the opinions.  I may also do a quick tagging of the opinions to keep the categories somewhat comprehensive. (Though for the purposes of detrimental reliance, as legally unreliable as ever.)

Addio! 

Perhaps Monday

Global Legal Community - afraid that things will have to be pushed back another day, as TMB got back from the opera at 1AM, and this Malbec isn't going to drink itself.  Cheerio.

Today's Opinions Posted Tomorrow

If the crick don't rise.

Federal Circuit -- FORD-CLIFTON V. DEPT. OF VETERANS AFFAIRS

Board did not err in denying late pro se petition.

Board's dismissal under law of case was in fact dismissal for res judicata.

FORD-CLIFTON V. DEPT. OF VETERANS AFFAIRS

Tenth Circuit -- Cypert v. Independent School District

No procedural Due Process claim for dismissed employee.

No proof of discriminator or free speech retribution.

Cypert v. Independent School District

Ninth Circuit -- USA V. LILA RIZK

No error in admission of summary charts.

Appraiser had knowlege of ends of conspiracy.

Appraiser knew ends of false appraisals were frauds on bank.

No plain error in ordering restitution past the release of claims negotiated in the civil trial, but civil restitution should have been subtracted from criminal.

USA V. LILA RIZK

Ninth Circuit -- USA V. WILKES

Remand to determine if deft's witness should have been granted use immunity.

No Brady violation, as not material.

Denial of many prosc. misconduct claims.

Quid pro quo bribery and misrepresentation satisfy Skilling's narrowing of honest services.

Sufficient evidence?kosher jury instructions for money laundering.


USA V. WILKES

Eighth Circuit -- United States v. Brandon Bennett

 Drug sufficiently similar to drug on schedule to permit use of sentencing guideline.

United States v. Brandon Bennett

Fifth Circuit -- Rommel Griffin, Sr. v. United Parcel Service, Inc.

 Diabetic not disabled under the ADA.

Accommodation was reasonable.

Rommel Griffin, Sr. v. United Parcel Service, Inc.

Fifth Circuit -- USA v. Shawna Tickles

 Conduct predating the FSA but sentenced after the FSA is not sentenced according to the FSA.

Dissent: But it should be.

USA v. Shawna Tickles
USA v. Jabar Gibson

Fifth Circuit -- USA v. Roberto Zamora, et al

 Informant tip and surveillance information provided reasonable suspicion for traffic stop.

No error in denial of venue instruction. (Conspiracy)

Sufficient evidence on conspiracy - past owner of car was member, fingerprints and forensic evidence on notebook.

Sufficient evidence for use of a firearm in furtherance, as the gun was loaded.

No error in denial of mistrial after testimony that deft had a criminal history.

USA v. Roberto Zamora, et al

Second Circuit -- Gray v. Citigroup, Inc.

ERISA Administrator did not abuse discretion in including company stock as a retirement option.

No fiduciary obligation to disclose confidential information.

Concur/Dissent - No presumption of prudence means that there is an affirmative duty of communication - must disclose dangers to company.

Gray v. Citigroup, Inc.

Second Circuit -- Cunney v. Bd. of Trs. of Vill. of Grand View

Zoning regulation void for vagueness - no specific indication of measuring point for maximum height.

Not saved by core meaning.

Cunney v. Bd. of Trs. of Vill. of Grand View

Secind Circuit -- Gearren v. McGraw-Hill Cos., Inc.

Inclusion of employer stock in retirement plan options was kosher, as the corporate situation appeared less than dire.

Gearren v. McGraw-Hill Cos., Inc.

Federal Circuit -- SANOFI-AVENTIS V. APOTEX INC.

As prejudgment interest is a form of damages, contract between parties limiting damages limits interest.

District Court did not err in barring counterclaim.

SANOFI-AVENTIS V. APOTEX INC.

Eleventh Circuit -- Ehlen Floor Copvering, Inc., et al v. Innovative Pension Strategies

Preeemption by ERISA gives federal jurisdiction.

Where the parties agree that Section VI lists the services that are subject to mandatory arbitration, and there is no Section VI, there is no arbitration.

Ehlen Floor Copvering, Inc., et al v. Innovative Pension Strategies

Tenth Circuit -- Sorenson Communications, Inc. v. FCC

FCC ratemaking upheld as neither arbitrary nor capricious.

Sorenson Communications, Inc. v. FCC

Tenth Circuit -- United States v. Chavez

Anonymous tip provided sufficient reasonable suspicion for stop; information gained in Terry stop gave probable cause for arrest.

Sentencing Commission inclusion of attempted crimes as drug trafficking predicates not unconstitutional.

United States v. Chavez

Tenth Circuit -- United States v. Marrufo

Sentencing bump for using a firearm applies where the offense is hiding a firearm.


 United States v. Marrufo

Ninth Circuit -- DALE FOSSEN V. BLUE CROSS AND BLUE SHIELD OF

State health insurance law preempted.


DALE FOSSEN V. BLUE CROSS AND BLUE SHIELD OF

Ninth Circuit -- GARY SMALLWOOD V. ALLIED VAN LINES, INC.

Carmack Amendment bars arbitration clause, as interstate shipper has a right to choose forum.

GARY SMALLWOOD V. ALLIED VAN LINES, INC.

Eighth Circuit -- United States v. Baltazar Jimenez-Perez

Sentencing court erred by not recognizing power to vary downward based on lack of fast-track program.

United States v. Baltazar Jimenez-Perez

Seventh Circuit -- Peter Palka v. City of Chicago

Summary judgment proper on a S1983 "municipal inaction theory" - mere attempt to bootstrap a Monell claim.

Title 7 claims barred by res judicata.

Peter Palka v. City of Chicago

Seventh Circuit -- William Shaffer v. American Medical

District Court erred in dismissing FMLA claim, as employer's memo might have been falsely backdated.


Memorandum protected by A/C privilege - crime/fraud not applicable.



William Shaffer v. American Medical

Seventh Circuit -- Bruce Barton v. Zimmer, Inc

 ADEA claims TKO'd for causation.

Bruce Barton v. Zimmer, Inc

Seventh Circuit -- USA v. Calvin Brown

Fair Sentencing Act still not retroactive in the Seventh Circuit.

Sentencing court had discretion not to impose fines.

USA v. Calvin Brown

Fifth Circuit -- USA v. Miguel Carrillo

 "I wish I had a lawyer . . ." not a sufficient request for counsel under Miranda.

Police did not mislead by saying counsel was categorically unavailable for parole revocation hearing.

No error in giving of flight instruction.

Gov't's inadequate 404(b) notice harmless error.

Harmless error in admission of prior meth distribution conviction in trial for meth distribution.

No error in supervised release condition that barred deft from alcohol. 

USA v. Miguel Carrillo

Third Circuit -- USA v. Melvin Lewis

Sentencing bump for committing a crime while out on pretrial release can extend sentence beyond statutory maximum.


USA v. Melvin Lewis

First Circuit -- Spencer v. Roche

Where the warrant is for an examination of the bowels, the parts of the stomach visible in the X-ray are in plain view, constitutionally speaking.

Spencer v. Roche

First Circuit -- US v. Stergios

Sufficient evidence that bank was FDIC-insured where proof of such insurance predating offense and at time of trial.

Requesting mailed ATM cards that were later used fraudulently satisfies furtherance requirement of mail faud statute.

Ebay fraud justifies supervised-release restrictions on internet access.

Inclusion of 1.4m check in loss amounts (which doubled the guidelines range) was within court's discretion.


US v. Stergios

First Circuit -- Redondo Waste Systems, Inc. v. Lopez-Freytes

Dismissal upheld, as none of the captioned defts were alleged to have done anything wrong.

Redondo Waste Systems, Inc. v. Lopez-Freytes

Eleventh Circuit -- White Springs Agricultural Chemicals, Inc. v. Glawson Investments Corp.

No basis to review arbitration award, as all issues were properly submitted.

White Springs Agricultural Chemicals, Inc. v. Glawson Investments Corp.

Tenth Circuit -- Dish Network Corporation v. Arch Specialty Insurance Co.

Patent infringement can trigger duty to defend by way of an advertising injury claim.

Dish Network Corporation v. Arch Specialty Insurance Co.

Tenth Circuit -- Cordova-Soto v. Holder, Jr.

BIA holding that a procedurally correct but substantively unlawful entry into the country was an illegal entry is not unreasonable.

Cordova-Soto v. Holder, Jr.

Ninth Circuit -- TROY MATTOS V. DARREN AGARANO

Qualified immunity to tasering police officers.

Concurrence:  A pregnant woman parked in front of a school was tasered for refusing to sign a parking ticket or get out of her car.

Concur/Dissent (Chief K): Ever tried to get a pregnant woman out of a car?

Concur/Dissent: Disputed issues of material fact in one of the cases.

TROY MATTOS V. DARREN AGARANO

Eighth Circuit -- Libertarian Party of ND v. Alvin Jaeger

 Substantial burden of requiring primary candidates to score 1% of the vote to get on the ballot is justified by state interests.

No unconstitutional burden in limiting voters to one primary election.

As law applies equally, not equal protection violation.

Libertarian Party of ND v. Alvin Jaeger

Eighth Circuit -- Kendrick Story v. David Norwood

Although presence of injury is not a threshold requirement for claim against prison guard for violence, lack of injury can disprove prisoner's claim.

Kendrick Story v. David Norwood

Fifth Circuit -- USA v. Robert Macias, Jr.

 Series of irrelevant questions during Terry stop unconstitutionally prolonged it.

USA v. Robert Macias, Jr.

Fifth Circuit -- Noel Austin v. Burl Cain, Warden

 No double jeopardy where there is a possible theory of the second crime that does not involve the first being a predicate for it.

Concurrent sentence doctrine declined.

Noel Austin v. Burl Cain, Warden

Fifth Circuit -- Countrywide Home Loans v. Lawrence Velazquez, et a

Lending agreement provided for fees.


Countrywide Home Loans v. Lawrence Velazquez, et a

Fifith Circuit -- Spencer ad hoc Equity Com v. Idearc, Incorporated

 Equitable mootness (not Article III mootness) TKO's challenge to bankruptcy plan.

Spencer ad hoc Equity Com v. Idearc, Incorporated

Fifth Circuit -- Dewey Weaver v. Texas Capital Bank, N.A.

 Debtor's claim that surrender of collateral satisfies required payout under Plan, though not barred by Rooker-Feldman, is barred by res judicata. 

Surrender of collateral is a defense to payment - claim was waived when not raised in bankruptcy court.

Dewey Weaver v. Texas Capital Bank, N.A.

Secind Circuit -- Giovanniello v. ALM Media, LLC

TCPA claims borrow the statute of limitations of the forum state where there is a specific SOL for the violation charged.

Concur in J: No need to reach, claim is stale in either case.

Giovanniello v. ALM Media, LLC

Second Circuit -- Collazo v. Pagano

Prisoner claims dismissed for absolute prosecutorial immunity count as "strikes."


Collazo v. Pagano

Federal Circuit -- TRUSTED INTEGRATION, INC. V. U.S.

As the evidence for one of the claims in a suit was insufficient to prove any of the pending claims in other Federal Courts, there was no statutory bar to the jurisdiction of the Court of Federal Claims over that specific claim.

TRUSTED INTEGRATION, INC. V. U.S.

DC Circuit -- Latif v. Obama

Classified Opinion Not Available to Public

Latif v. Obama

Ninth Circuit -- USA V. CHARLES CARPER

No procedural/substantive error in sentence for exporting night-vision equipment.

USA V. CHARLES CARPER

Ninth Circuit -- JEWISH WAR VETERANS OF THE UNI V. CITY OF SAN DIEGO

Denial of en banc.

Dissent:  Secular use of the area around the religious symbol has made it secular.  Symbol has been there for 100 years.

JEWISH WAR VETERANS OF THE UNI V. CITY OF SAN DIEGO

Eighth Circuit -- Mark Broom v. Larry Denney

District court correctly denied Batson habeus, as there were sufficient distinguishing features in the comparator.

Mark Broom v. Larry Denney

Eight Circuit -- Midwest Railcar Repair, Inc. v. South Dakota Dept. of Revenue

 The 4-R restrictions on railroad taxes do not apply to an entity which merely provides repair and maintenance to railroads.

DISSENT - Increases end cost to railroad entity.

Midwest Railcar Repair, Inc. v. South Dakota Dept. of Revenue

Eighth Circuit -- Carlos Sanchez v. Northwest Airlines, Inc.

 District Court erred in dismissing ADA complaint, as, although deft went bankrupt, the claim was incurred in the ordinary course of business, exempting it from being the subject of a required administrative claim.

Carlos Sanchez v. Northwest Airlines, Inc.

Third Circuit -- William Barber, Jr. v. Eric Shinseki, et al

 Errata. 

William Barber, Jr. v. Eric Shinseki, et al

Third Circuit -- Paola Oviedo v. Gregg Hallbauer, et al

US removal of case from State to Federal Court did not vest jurisdiction in the federal court, as the case had reached final judgment in the state venue.

Paola Oviedo v. Gregg Hallbauer, et al

First Circuit -- US v. Harris

No error in judge not holding competency hearing sua sponte given that deft was prononced sane by expert.

Having counsel answer plea in original arraignment was not reversible error.

Speedy Trial Act appropriately tolled.

No error in accepting waiver of additional time to prepare via colloquy.

Reference by witness to deft's declining to provide DNA wasn't prejudicial, appropriately cured, invited by deft's opening statement.

Sufficient evidence.

No ineffective assistance in introduction of culpability-establishing statement, given that counsel might have thought that the witness would testify later.

US v. Harris

First Circuit -- Bonefont-Igaravidez v. International Shipping Corp.

Summary judgment on age discrimination  claims was correct, as no proof of pretext was offered other than dissimilar comparators.


Bonefont-Igaravidez v. International Shipping Corp.