Crick rose

To put it mildly.  Next update no sooner than Thursday.  Onward.

MB

Limited Service continues

Some in-depth, some headlines.  Next update Monday PM, if the crick don't rise.

MB

Federal Circuit -- HALL V BED BATH

Patent.

HALL V BED BATH 

DC Circuit -- USA v. David Duvall

Crack/cocaine sentencing under plea deal not required to be revisited.

USA v. David Duvall

DC Circuit -- USA v. Kevin Ring

Lawful campaign contributions more probative than prejudicial.

No explicit quid pro quo required for Honest Services.

Expediting visa application sufficient consideration for illegal gratuity statute.

USA v. Kevin Ring

DC Circuit -- A. Farouki v. Petra Intl Banking Corp.

Ongoing loan collection efforts do not toll the statute of limitations.

A. Farouki v. Petra Intl Banking Corp.

DC Circuit -- Noel Canning v. NLRB

NLRB recess appointments TKO'd.  Big news.  MB looks forward to reading this one.

Noel Canning v. NLRB

DC Circuit -- American Petroleum Institute v. EPA

Congressional directive to promote new technology doesn't mean that agency can make overly optimistic predictions.

American Petroleum Institute v. EPA

Eleventh Circuit -- USA v. Michael Jimenez

Misappropriation of funds conviction reversed - gov't agency purchasing book written by the spouse of an employee of the agency doesn't suffice.

USA v. Michael Jimenez

Eleventh Circuit -- Mark F. Bailey, et al. v. ERG Enterprises, LP, et al.

Mortgage note venue selection only binds obligors on the note.

Bank fraud claims too distant from the transaction to be governed by forum selection terms. No equitable estoppel as the bank's involvement was ex ante and at most a but/for cause of the transaction.  Insufficient concert for the estoppel claim.



Mark F. Bailey, et al. v. ERG Enterprises, LP, et al.

Tenth Circuit -- United States v. Smith

Dismissal without prejudice of mistried counts upheld, despite Speedy Trial Act -- Deft argued that 5A rights as to sentencing factors on the un-mistried counts were imperiled, but this comes from the retrial itself, not the violation of the Speedy Trial Act.

No error in including transactions not in the indictment in the Fraud sentencing.

United States v. Smith

Eighth Circuit -- Sean Deckard v. Interstate Bakeries Corp.

No error in denying claim that worker did not receive COBRA notices, as no prejudice.  No fees, either.

Dissent: Yes and yes.



Sean Deckard v. Interstate Bakeries Corp.

Fourth Circuit -- Kamal Patel v. Janet Napolitano

Chevron deference to BIA holding that one cannot become a national by simply showing permanent allegiance.  Birth or naturalization only.

Kamal Patel v. Janet Napolitano

Fourth Circuit -- In Re: 2703(d) Application

No statutory or common-law right to access 2703(d) orders in a pending investigation.

Concurrence: No common law right at all.

In Re: 2703(d) Application

Fourth Circuit -- Aaron Tobey v. Terri Jones

If you arrest someone at airport screening who has the Fourth Amendment written on his chest, no Qualified Immunity on the First Amendment claim.

Dissent: No one told the dude to take his clothes off.

Aaron Tobey v. Terri Jones 

Fourth Circuit -- John Merzbacher v. Bobby Shearin

Habeas denied, as state court determination that Petitioner might not have accepted plea deal at center of Ineffective Assistance claim was not unreasonable.  Also, offer was too nascent and ill-defined.

John Merzbacher v. Bobby Shearin

Second Circuit -- In re Payne

Public reprimand of solo with Immigration practice.

In re Payne

First Circuit -- US v. Rivera-Orta

Appeal waiver upheld given good colloquy.

Ineffective Assistance shouldn't be raised on direct appeal.

 US v. Rivera-Orta 

Limited Service continues

Still only headlines, but longer ones.  Next update quite likely tomorrow PM.

Cheers,

MB

Eleventh Circuit -- St. Joseph Hospital, Augusta, Georgia, Inc., et al v. Health Management Associates, Inc.

Parol words and deeds insufficient to overcome both lack of writings and a signed letter of intent obligating the parties to make writings before anything becomes binding.  K and estoppel claims duly TKO'd.

St. Joseph Hospital, Augusta, Georgia, Inc., et al v. Health Management Associates, Inc.

Tenth Circuit -- United States v. McGlothin

No plain error in allowing prior firearms "Incidents" in as more probative than prejudicial.

United States v. McGlothin

Ninth Circuit -- MATTEL, INC. V. MGA ENTERTAINMENT, INC.

Mutual trade-secret-thievery isn't tied to the same set of facts, so the counterclaim wasn't compulsory.

Copyright prevailing party doesn't have to prove frivolity/bad faith to get fees.


MATTEL, INC. V. MGA ENTERTAINMENT, INC.

Ninth Circuit -- ANTWION THOMPSON V. D. RUNNEL

Habeas waiver/forfieture of claims --

The AEDPA/Habeas standard of clearly established federal law &c, &c is not a procedural defense but an adjudicative standard.  The court can therefore identify that law without reference to the parties' arguments below.

(So held on vacatur reconsideration, incidentally.)

Dissent:  State chose to identify another legal standard, and is bound to that choice.  Waived is waived.

ANTWION THOMPSON V. D. RUNNEL

Fourth Circuit -- Gretchen Stuart v. Janice Huff

No abuse of discretion in denying intervention in abortion litigation.  State AG is a government agency with the same ultimate objective.  And a General, to boot.

Gretchen Stuart v. Janice Huff 

Third Circuit -- Connelly v. Steel Valley School Dist

State's (or Commonwealth's, as the case may be) setting of teacher salaries based on level of in-state experience upheld under rational basis.  Incidental burden on travel, not enough to trigger the test.  Scheme looks to place of teaching experience, not place of residency.

Connelly v. Steel Valley School Dist

Second Circuit -- Communications Network International, Ltd. V. MCI Worldcom Communications

When not getting the notice required by statute was the movant's fault, District Court erred in extending the time to file.

Communications Network International, Ltd. V. MCI Worldcom Communications

Limited Serice continues

Entirely unreliable headlines only, folks.  Next update tomorrow afternoon.

And we thank you for your support.

MB

Federal Circuit -- SOVERAIN SOFTWARE V NEWEGG

E-patents.


SOVERAIN SOFTWARE V NEWEGG 

Federal Circuit -- REXNORD INDUSTRIES V KAPPOS

Patent.

REXNORD INDUSTRIES V KAPPOS 

DC Circuit -- Americans for Safe Access v. DEA

Disabled veteran has standing to challenge agency denial of rescheduling of MJ from being a Class One drug.  On merits, agency action, while possibly a bummer, dude, was not arbitrary/capricious.

Americans for Safe Access v. DEA

DC Circuit -- TC Ravenswood, LLC v. FERC

FERC rulemaking upheld under abuse of discretion.

TC Ravenswood, LLC v. FERC

DC Circuit -- Sierra Club v. EPA

Challenge to rulemaking under Clean Air Act.  Agency, Plaintiff, and Intervenor all asking for different things.

Sierra Club v. EPA

DC Circuit -- Honeywell International, Inc. v. EPA

Transfers under cap-and-trade regulatory scheme upheld.

Honeywell International, Inc. v. EPA

Eleventh Circuit -- Norman Merle Grim, Jr. v. Secretary, Florida Department of Corrections

Habeas challenge to bench findings of aggrivating factors for capital sentence.  Upheld, as the basis for the findings was a jury conviction/recommendation.  Aggrivating factors not clearly specified in indictment -- not unconstitutional as a violation of clear Scotus holdings, as there are no clear Scotus holdings.

[thou shalt not kill.  -MB]

Norman Merle Grim, Jr. v. Secretary, Florida Department of Corrections

Ninth Circuit -- ALASKA SURVIVAL V. STB

NEPA challenge to STB action -- (1) challenge permitted under ICCTA but (2) agency upheld.

ALASKA SURVIVAL V. STB

Eighth Circuit -- John Williams v. United States

Recent SCOTUS holdings on ineffective assistance at the plea stage have not changed the law for purposes of Habeas.

John Williams  v.  United States

Seventh Circuit -- John Doe v. Prosecutor, Marion Co.

State ban on registered offenders' use of social networking sites unconstitutional.

John Doe v. Prosecutor, Marion Co.

Seventh Circuit -- USA v. Jeffery L. Dickerson

Selling drugs for guns violates the law, too.

USA v. Jeffery L. Dickerson

Seventh Circuit -- Anthony Smith v. John Wilson

For title VI action, finding that the injury would have occurred even absent the manifest discriminatory actions = judgment for deft.

Anthony Smith v. John Wilson

Seventh Circuit -- Charles Adams v. Raintree Vacation

Brief per curiam denial of en banc with some additional holdings as to facts.

Charles Adams v. Raintree Vacation

Fifth Circuit -- Ergon-West Virginia, Inc. v. Dynegy Marketing

Contract did not require counterparty to cover during force majure event.

Ergon-West Virginia, Inc. v. Dynegy Marketing

Fourth Circuit -- US v. Bruce Abramski, Jr.

Crim -- firearms law, 4A challenge.

US v. Bruce Abramski, Jr.

Fourth Circuit -- US v. Christian Allmendinger

White collar conviction upheld.

US v. Christian Allmendinger

Fourth Circuit -- UBS Financial Services, Incorporated v. Carilion Clinic

Participants in bond issue have duty to arbitrate under FINRA.

UBS Financial Services, Incorporated v. Carilion Clinic

Fourth Circuit -- Dawn Brown v. Town of Cary

Municipal sign ordinance passes intermedite scrutiny 1A test.

Dawn Brown v. Town of Cary

Third Circuit -- Robert Zimmerman v. Norfolk Southern Corporation

Antitrust -- whether Plaintiff had standing due to injury as participant in relevant market.

Robert Zimmerman v. Norfolk Southern Corporation

Third Circuit -- Robert Zimmerman v. Norfolk Southern Corporation

The degree to which Federal railrioad legislation preempts state tort claims.

Robert Zimmerman v. Norfolk Southern Corporation

Second Circuit -- Bakoss v. Lloyds of London

As the FAA doesn't define the term "arbitration," courts should look to federal common law to define the term.

Bakoss v. Lloyds of London

First Circuit -- Robinson v. Cook

S1983 action for allegedly bad arrest/seizure.

Robinson v. Cook 

First Circuit -- Paca v. Holder, Jr.

Immigration -- timeliness of filing.

 Paca v. Holder, Jr. 

First Circuit -- US v. Flores-Machicote

Souter upholds above-guidelines sentence.

US v. Flores-Machicote 

Next Update Wednesday

Tuesday's and Wednesday's opinions will be posted on Wednesday afternoon.

MB

New Land Speed Record

Covering last two days -- quick glance summaries.  Don't even think about relying on this stuff.  We'll get back in the fast lane soon.  [/Gratuitous New Dr. Who reference]

MB

Federal Circuit -- STEPHENSON V. OPM

Agency erred in saying that benefit didn't have to be recalculated to account for cessation of SSA payments.

STEPHENSON V. OPM

Federal Circuit -- MERLIN INTERNATIONAL, INC. V. NAPOLITANO

Per curiam affirmed without opinion.

MERLIN INTERNATIONAL, INC. V. NAPOLITANO

Federal Circuit -- SHREVE V. SHINESKI

Per curiam affirmed without opinion.

 SHREVE V. SHINESKI

Federal Circuit -- ALLFLEX USA V. AVID IDENTIFICATION

50K "Appeal Consideration" payment not enough to make it a live controversy.  Ergo moot.

ALLFLEX USA V. AVID IDENTIFICATION

Eleventh Circuit -- United Fire and Casualty Company v. Whirlpool Corporation

District Court should not have excluded all of expert witness'  testimony.

United Fire and Casualty Company v. Whirlpool Corporation

Eleventh Circuit -- Solomon Sims, Jr. v. MVM, Inc.

Age Discrimination Act.

Solomon Sims, Jr. v. MVM, Inc.

Ninth Circuit -- RICHARD HURLES V. CHARLES L. RYAN

Habeas / judicial ethics.  When a judge is named in an interlocutory action and files a responsive pleading in that action, state court errs in allowing said judge to impose death penalty.

[Thou shalt not kill.  MB]

RICHARD HURLES V. CHARLES L. RYAN

Ninth Circuit -- USA V. DAMIEN ZEPEDA

Whether a tribe is federally recognized is a question of fact for the jury.

USA V. DAMIEN ZEPEDA

Ninth Circuit -- ANTHONY ALPHONSUS V. ERIC HOLDER, JR.

Immigration / Bangladesh

ANTHONY ALPHONSUS V. ERIC HOLDER, JR.

Ninth Circuit -- USA V. OSCAR GALLEGOS-GALINDO

Sexual offense a valid Immigration predicate under modified categorical approach.

USA V. OSCAR GALLEGOS-GALINDO

Ninth Circuit -- EDWARD FURNACE V. PAUL SULLIVAN

Prisoner claim -- there is a right to be free of pepper spray, there is quite possibly not a right to a vegetarian breakfast.

EDWARD FURNACE V. PAUL SULLIVAN

Ninth Circuit -- JOHN FAULKNER V. ADT SECURITY SERVICES, INC.

State claim removed to Federal Court has leave to amend to reach Iqbal threshold.

JOHN FAULKNER V. ADT SECURITY SERVICES, INC.

Eighth Circuit -- United States v. Carlos Ponce

Possession of meth not a lesser included of possession with intent to distribute.

[Party name ensures SCOTUS cert.]

United States  v.  Carlos Ponce

Seventh Circuit -- Wisconsin Education v. Scott Walker

In which the Wisconsin anti-union law is upheld.

Wisconsin Education v. Scott Walker

Seventh Circuit -- Linda Roddy v. Michael Astrue

Substantial evidence vel non on SSA decision.

Linda Roddy v. Michael Astrue

Seventh Circuit -- Yi Chen v. Eric Holder, Jr.

Immigration/ China.

Yi Chen v. Eric Holder, Jr.

Seventh Circuit -- USA v. Darrick Boroczk

Pr0n sentencing.

USA v. Darrick Boroczk

Seventh Circuit -- Asim Chaudhry v. Eric Holder, Jr.

Invasion of privacy claim for being filmed without consent.

Asim Chaudhry v. Eric Holder, Jr.

Seventh Circuit -- Alonzo Suggs v. USA

Whether a Habeas challenge filed after one collateral challenge that resulted in resentencing is second/successive if it only challenges underlying conviction.

Alonzo Suggs v. USA

Sixth Circuit -- Robert Stocker, II v. USA

Tax.

Robert Stocker, II v. USA 

Fifth Circuit -- ?

Range of opinions show as posted yesterday, but they look like they've all already been issued.

http://www.ca5.uscourts.gov/Opinions.aspx?View=Last7

Fourth Circuit -- US v. Antwan Jackson

Confrontation Clause exception for when deft makes the witness unavailable doesn't require that witness unavailability be the sole motive of deft's actions.

US v. Antwan Jackson