Limited Service Continues

Next update will be Thursday Friday Sunday, at soonest.  'Not single spies, but in battalions.'

MB

Federal Circuit -- ARKEMA INC. v. HONEYWELL INTERNATIONAL INC. [OPINION]

Patent.

ARKEMA INC. v. HONEYWELL INTERNATIONAL INC. [OPINION]

DC Circuit -- USA v. Joshua Godoy

Imprecise colloquy TKO's appeal waiver.

Outside of guidelines sentence sufficiently explained.

Restitution from prison labor was not a stated goal of the sentence.

USA v. Joshua Godoy

DC Circuit -- Shekita Dyson v. DC

Agency investigation does not equitably toll the Title VII statute of limitations where plaintiff is inactive.

Shekita Dyson v. DC

Eleventh Circuit -- Janet Feliciano, et al v. City of Miami Beach, et al

Plaintiff's uncorroborated statements can suffice at summary judgment stage for denial of qualified immunity in S1983 action alleging violations of 4A.

Janet Feliciano, et al v. City of Miami Beach, et al

Eleventh Circuit -- Harry Elwood Penney v. Secretary, Department of Correctioins, et al

Untimely motion did not toll the AEDPA one-year clock.

Harry Elwood Penney v. Secretary, Department of Correctioins, et al

Eleventh Circuit -- Jiaren Shi v. U.S. Attorney General

Physical abuse by foreign police was, as a matter of law, persecution.

Jiaren Shi v. U.S. Attorney General

Tenth Circuit -- Hansen v. PT Bank Negara Indonesia

Website of foreign bank not self-authenticating.

No jurisdiction under Foreign Sovereign Immunity Act, as all of the transactions were fraudulent, and therefore, no commercial activity with direct effects.

Hansen v. PT Bank Negara Indonesia

Tenth Circuit -- United States v. Lor

New impeachment evidence that emerges after 4A suppression hearing is not grounds for a collateral challenge to the verdict, as it speaks neither to the constitutionality of the police conduct nor the guilt/innocence of the deft.

United States v. Lor

Ninth Circuit -- USA V. TYMOND PRESTON

Habeas -- Apprendi did not create clearly established law holding that sentencing factors are subject to double jeopardy restrictions.

USA V. TYMOND PRESTON

Ninth Circuit -- USA V. TYMOND PRESTON

Crim --

Diminished mental competency not enough to TKO confession

Jury trial/confrontation waivers were good;

Hearsay in under excited utterance.

Sentence substantively questionable -- terms of lifetime supervision harsh for deft in 20's.

Dissent -- coerced confession

USA V. TYMOND PRESTON

Eighth Circuit -- Zachary Smith v. State of Missouri

Despite bankruptcy, state properly took $45 from inmate in compliance with statute authorizing recoupment of costs of incarceration, as the $45 was billed against post-petition costs incurred.

Zachary Smith v. State of Missouri

Eighth Circuit -- Susan Reindl v. Hartford Life and Accident Ins

ERISA administrator's determination that letter from lawyer was not sufficient administrative appeal is reasonable.

Susan Reindl v. Hartford Life and Accident Ins

Eighth Circuit -- Tanya Bosley v. Cargill Meat Solutions Corp.

Petitioner did not give employer sufficient notification of the FMLA leave request; exceptions don't apply.

Tanya Bosley v. Cargill Meat Solutions Corp.

Eighth Circuit -- James Trickey v. Kaman Industrial Technologies

Punitive damages award in employment discrimination action does not shock the conscience; hearsay not prejudicial enough to warrant new trial; Rule 59(e) was the wrong motion when seeking to convert fees from lodestar of the forum to lodestar of the law firm.

James Trickey v. Kaman Industrial Technologies

Eighth Circuit -- Janet Lundquist v. University of SD Sanford

Where state permits suits against otherwise immune unincorporated partnerships, informal partnerships which are reachable through other statutory grants of jurisdiction (here, school reached through the Board of Regents) can only be reached in that manner.

Janet Lundquist v. University of SD Sanford

Seventh Circuit -- Robert Farnik v. FDIC

Where plaintiff sues successor bank, but the FDIC as receiver ultimately becomes the deft, FINRA administrative exhaustion requirements for the FDIC suit apply.

Robert Farnik v. FDIC

Sixth Circuit -- USA v. Benji Stout

Escape qualifies as a a crime of violence.

Dissent: Maybe for ACCA, but not here.

USA v. Benji Stout 

Third Circuit -- Daniel Sherzer v. Homestar Mortgage Services

To rescind loan under TILA, the notice of rescission must be sent within the three-year window.  (Timing of suit irrelevant.)

Daniel Sherzer v. Homestar Mortgage Services

Second Circuit -- United States v. Broxmeyer

Dissent from denial of en banc -- 32 years for high school athletics coach's questionable image procurement.

Preceded by lengthy concurrence.

United States v. Broxmeyer

First Circuit -- Silverstrand Investments v. Amag Pharmaceuticals, Inc.

Securities -- to survive motion to dismiss, Section 503 claim, there must be a known risk factor impacting present or future interests.  And there was.

Silverstrand Investments v. Amag Pharmaceuticals, Inc. 

Limited Service Update

Still a few cases in the backlog from the DC Circuit & Federal Circuit last week.  TK.

MB

Federal Circuit -- ACCENT PACKAGING V LEGGETT & PLATT

Patent.

ACCENT PACKAGING V LEGGETT & PLATT 

Eleventh Circuit -- Terry Wayne Duckworth v. Allianz Life Insurance Company of North America, et al

Non-ERISA long-term disability benefits should be offset - the question is not whether a program mentioned in the statute in pari materia provides similar benifits, but whether the statute itself is similar.

Terry Wayne Duckworth v. Allianz Life Insurance Company of North America, et al

Eleventh Circuit -- Robin L. Williams, John Duncan Fordham v. USA

Collateral challenge to Honest Services fraud conviction -- Jury could not have used the later-overruled theory to convict, so no cause/prejudice sufficient for Habeas.

Robin L. Williams, John Duncan Fordham v. USA

Eleventh Circuit -- Aracelys C. Toro v. Secretary, U.S. Department of Homeland Security, et al.

Petitioner has no claim under Cuban Refugee Adjustment Act; no Equal Protection claim as there is a rational basis for the distinction under the statute.

Aracelys C. Toro v. Secretary, U.S. Department of Homeland Security, et al.

Ninth Circuit -- CENTER FOR BIOLOGICAL DIVERSIT V. KEN SALAZAR

Preliminary injunction appellate rulings did not create any law of the case relevant to the merits of final challenge to agency rulings.

Statute does not require a new plan of operations when re-starting closed mine.

No new NEPA filing required -- categorical exclusion applies.


CENTER FOR BIOLOGICAL DIVERSIT V. KEN SALAZAR

Eighth Circuit -- United States v. Glen Allen

Police had probable cause for Terry stop given the MJ-trafficking patterns observed -- police contention and District Court holding that speeding was the cause notwithstanding.

United States v. Glen Allen

Eighth Circuit -- Matt Luiken v. Domino's Pizza, LLC

Given variances in the transactions, certifying Dominos delivery drivers as a class to assert their right to the "delivery fee" was erroneous.

Matt Luiken v. Domino's Pizza, LLC

Seventh Circuit -- John Rutherford v. Judge & Dolph

Labor -- Where the union is not a necessary party to the suit against the employer, an action by plaintiff against both the union and the employer is not a hybrid action under the LMRA.

CBA had expired before the claim accrued.

John Rutherford v. Judge & Dolph

Seventh Circuit -- Pethinaidu Veluchamy v. FDIC

APA claim against FDIC - Corporate barred, as it (1) seeks monetary damages; (2) wasn't administratively exhausted; and (3) challenges actions taken as a regulator, which is not cognizable under the statute.

Pethinaidu Veluchamy v. FDIC

Seventh Circuit -- USA v. Eric Schuster

Crim -- Pr0n conviction affirmed as to substance & sentence.

USA v. Eric Schuster

Seventh Circuit -- Aaron Espenscheid v. DirectSat USA

Given complex proposed bifurcation scheme, class/collective de-certification was correct, says Posner.

Aaron Espenscheid v. DirectSat USA

Fourth Circuit -- Morgan Keegan & Company, Inc. v. Louise Silverman

FINRA arbitration terms do not attach when the deft merely provided counsel on the transaction -- they are not "customers."

Morgan Keegan & Company, Inc. v. Louise Silverman

Fourth Circuit -- US v. Rodney Williamson

Crim -- Issue is post-indictment, pre-arrest tapings with confidential informant.  Scotus remanded, holding that 6A right to counsel had attached on indictment.  District court affirmed conviction.  CA affirms here.

6A -- Although introduction of the recordings was plain error, it wasn't the kind of plain error that impacts substantial rights.

5A -- No coercion.

No right to counsel in Rule 33 "new evidence" proceedings.

US v. Rodney Williamson

Limited Service Continues

TK -- Two more in the 11th from last week, plus DC and Federal from last week.  Next update of the e'er rolling stream probably Monday.

MB

Eleventh Circuit -- USA v. Jason Dennis McGuire

O'Connor pinch-hits -- shooting in the direction of a police helicopter is statutorily an attempt to damage/destroy it, and categorically a crime of violence.

USA v. Jason Dennis McGuire

Eleventh Circuit -- Cynergy, LLC v. First American Title Insurance Company

Bank might have had knowledge of lack of access to property upon taking title, insurance claim by holder in possession therefore potentially invalid.

Affidavit might have been admissible, as notice provisions are keyed on fair warning.



Cynergy, LLC v. First American Title Insurance Company

Tenth Circuit -- Burnett v. Mortgage Electronic

Complaint does not set forth sufficient specific violations of FDCPA; same for state law claims.

Burnett v. Mortgage Electronic

Tenth Circuit -- United States v. Ruby

No statutory or common law bar to hearsay in sentencing proceeding at issue.

United States v. Ruby

Tenth Circuit -- United States v. Brody

Deft must provide relevant trial record for the appeal.

United States v. Brody

Ninth Circuit -- USA V. SAMUEL DAVIS

Even if same agency receives forfeiture and restitution, no double recovery.

Concur - scope of forfeiture here was perhaps broad, opinion not precedential for that.

USA V. SAMUEL DAVIS

Ninth Circuit -- JOSE LOPEZ-VASQUEZ V. ERIC H. HOLDER JR.

Subsequent state court revision of sentence to misdemeanor too ambiguous to qualify subsequent conviction under Federal First Offender Act.

Concur: Agency should reopen.

JOSE LOPEZ-VASQUEZ V. ERIC H. HOLDER JR.

Ninth Circuit -- REX CHAPPELL V. R. MANDEVILLE

Summary Judgment for prison guards on S1983 claim, as certain conduct prohibitions not clearly established.

Concur -- No DP violation in subjecting to "contraband watch"

Dissent -- No DP violation, but 8A is a closer question.

REX CHAPPELL V. R. MANDEVILLE

Ninth Circuit -- USA V. JOHN DOE

Crim - Public Authority affirmative defense ("they said I could") must be carried by a preponderance, no plain error in the relevant jury instruction; remand for Brady violation; procedural violations in sentence.

USA V. JOHN DOE

Ninth Circuit -- JESSICA KRAMER V. TOYOTA MOTOR CORPORATION

District Court had the authority to decide whether arbitration was required; Manufacturer cannot use estoppel to compel arbitration based on an agreement between dealer and purchaser -- insufficiently intertwined.

JESSICA KRAMER V. TOYOTA MOTOR CORPORATION

Ninth Circuit -- USA V. JORGE JESUS-CASTENEDA

Witness' disguise while testifying did not violate Confrontation Clause.

USA V. JORGE JESUS-CASTENEDA

Ninth Circuit -- BARRAGAN-LOPEZ V. HOLDER

California False Imprisonment ("you can check out any time you want....") is categorically a qualifying prior crime of violence for Immigration purposes.

BARRAGAN-LOPEZ V. HOLDER

Ninth Circuit -- MATILDE CARRILLO DE PALACIOS V. ERIC HOLDER, JR.

Immigration admissibility -- voluntary departure prior to an order of deportation is still a deportation; no error in retroactive application of precedent, as petitioner could not have relied on contrary precedent; BIA interpretation reasonable

MATILDE CARRILLO DE PALACIOS V. ERIC HOLDER, JR.

Ninth Circuit -- DICHTER-MAD FAMILY PARTNERS V. USA

Brief per curiam -- discretionary action exception to FTCA, denial of discovery.

DICHTER-MAD FAMILY PARTNERS V. USA

Eighth Circuit -- BSI Constructors v. Hartford Fire Insurance Co.

Faulty workmanship provision in policy barred recovery; no ambiguity raised by question of losses consequential to barred losses; no vexatious refusal to pay, as claim was stated.

BSI Constructors  v.  Hartford Fire Insurance Co.

Eighth Circuit -- Heubel Materials Handling Co v. Universal Underwriters Insurance

Duty to defend -- control of suit; insurer therefore not able to implead third party claim.

Heubel Materials Handling Co  v.  Universal Underwriters Insurance

Eighth Circuit -- United States v. Gilbert Crow Eagle, Jr.

Testimony as to prior bad acts properly admitted; past allegations appropriately precluded; no error in sentencing.

United States  v.  Gilbert Crow Eagle, Jr.

Eighth Circuit -- Raymond Kelley v. Centennial Bank

No abuse of discretion in Bankruptcy Court's holding that a requirement that the debtor abandon a property means that it should be conveyed to the bank, not that it should be released from the estate.

Raymond Kelley  v.  Centennial Bank

Eighth Circuit -- Moussa Fofana v. Eric H. Holder, Jr.

Due Process challenge to Immigration Law Judge adverse credibility finding requires proof that the ILJ completely disregarded a relevant fact -- bad balancing insufficient.

Moussa Fofana  v.  Eric H. Holder, Jr.

Eighth Circuit -- Michael Barrett, IV v. Donald Claycomb

Injunction against mandatory drug testing program TKO'd, since the challenge was on behalf of putative future participants, and therefore a facial challenge to the law -- sufficient likely success on merits therefore can't be established.

Michael Barrett, IV  v.  Donald Claycomb

Eighth Circuit -- Catherine Leapheart v. Tyrone Williamson

Legislative immunity for city council after modifying terms of vacant position in the middle of the search, since the reporting obligations were changed as well.

Catherine Leapheart  v.  Tyrone Williamson

Eighth Circuit -- United States v. Bryan Chappell

ACCA predicates committed on the same day are distinct.

United States  v.  Bryan Chappell

Eighth Circuit -- United States v. Ralph Frisch

No error in 25 month sentence for bilking the SSA for sham disability.

United States  v.  Ralph Frisch

Eighth Circuit -- United States v. Viengxay Chantharath

Crim -- prejudicial variance; 4A; limiting instructions; sentencing.

 United States  v.  Viengxay Chantharath

Eighth Circuit -- Natalia Karnatcheva v. JP Morgan Chase Bank

District court did not err in finding fraudulent joinder for diversity.

Iqbal threshold not reached by pleading's contention of note acceleration -- merits not reached.

Natalia Karnatcheva  v.  JP Morgan Chase Bank

Eighth Circuit -- United States v. David Foote

Misdemeanor possession of MJ counts as a prior that potentially disqualifies from safety valve sentencing relief.

United States  v.  David Foote

Eighth Circuit -- Purnie Peterson v. CitiMortgage, Inc.

To quiet title, you have to plead your possession in order to state a claim.

Purnie Peterson  v.  CitiMortgage, Inc.

Limited Service Continues

Last week's opinions from the 8th, 9th, et seq. tomorrow.  Monday afternoon, perhaps back on the same-day clock.  Headlines only, natch.

MB

Seventh Circuit -- Eugene Devbrow v. Eke Kalu

SOL clock for prisoner deliberate-indifference medical claim does not begin to run until the prisoner learns of the injury.

Eugene Devbrow v. Eke Kalu

Seventh Circuit -- USA v. Kenneth Block

Sentencing -- court properly considered factors/disparities.

USA v. Kenneth Block

Seventh Circuit -- USA v. John Dean

Sentencing court properly considered factors.

USA v. John Dean

Seventh Circuit -- USA v. Joshua Vidal

Sentencing -- remanded for trial court to consider psych history.

USA v. Joshua Vidal

Seventh Circuit -- Julie McArdle v. Peoria School Dist

Employment -  First Amendment, tortious interference, breach.

Julie McArdle v. Peoria School Dist

Seventh Circuit -- William Grote, III v. Kathleen Sebelius

ACCA

William Grote, III v. Kathleen Sebelius

Seventh Circuit -- USA v. Victor M. Diaz-Rios

Sentencing -  Court should have considered minor-participant reduction.

USA v. Victor M. Diaz-Rios

Seventh Circuit -- Hans Rapold v. Baxter International

Employment discrimination / Title VII.

Hans Rapold v. Baxter International

Seventh Circuit -- Jose Matamoros v. Greg Grams

When mistakenly terminated parole is restored nunc pro tunc, but parolee doesn't yet have notice, crime committed in interval is still subject to enhancements for parole.

Jose Matamoros v. Greg Grams

Sixth Circuit -- U.S. Citizens Association v. Kathleen Sebelius

Standing for interlocutory appeal on health care reform, District Court correctly held that there was no interest in expressive/intimate association with physicians; no liberty/privacy interest.

U.S. Citizens Association v. Kathleen Sebelius 

Sixth Circuit -- 600 Marshall Entertainment v. The City of Memphis

Challenge to adult dancing -- no prior restraint, not vague, no procedural DP, but the there is standing to challenge the underlying statute although the zoning ordinance is the proximate bar to the conduct.

600 Marshall Entertainment v. The City of Memphis