Eleventh Circuit -- Shade Lawal v. U.S. Attorney General

Shade Lawal v. U.S. Attorney General

Ninth Circuit -- PEDRO TAMAYO-TAMAYO V. ERIC H. HOLDER JR.

PEDRO TAMAYO-TAMAYO V. ERIC H. HOLDER JR.

Eighth Circuit -- William NMI Paul, Jr. v. Forrest C. Allred

Court summary:

[PUBLISHED] [Federman, Author, with Kressel and Schermer, Bankruptcy Judges]
Bankruptcy Appellate Panel. Bankruptcy court did not err in denying debtor's homestead exemption as the record showed he had abandoned the property as his homestead by removing himself with no fixed or actual intent to return.

William NMI Paul, Jr. v. Forrest C. Allred

Eighth Circuit -- Frank Hohn v. BNSF Railway Company

Court summary:

[PUBLISHED] [Wollman, Author, with Bye and Benton, Circuit Judges]
Civil case - Employment Discrimination. Plaintiff's Nebraska law Whistleblower claim was untimely and the district court did not err in granting defendant's motion for summary judgment on the claim; district court did not err in excluding evidence of the Whistleblower complaint in the trial of plaintiff's disability discrimination claim; defendant's judgment on plaintiff's disability discrimination claim is affirmed, as the evidence supported the jury's finding that plaintiff could not perform the essential functions of the locomotive machinist position with or without a reasonable accommodation.

Frank Hohn v. BNSF Railway Company

Seventh Circuit -- USA v. Lamar E. Sanders

Any error on photo lineup and in-court ID was harmless.

Limitation on mention of witness' priors during cross doesn't implicate Confrontation Clause, as the impeachment theory was presented without the priors.

No abuse of discretion in denying reverse 404B evidence for gov't witness, as only a 'gossamer thread' connected priors to present crime.

Sentencing -- "not less than 20 years" doesn't amend earlier 25 year minimum statute.

USA v. Lamar E. Sanders

Seventh Circuit -- Mauricio Moral-Salaz v. Eric Holder

Immigration -- statutory bar to review of removal order prohibits review, as the merits are directly implicated.

Mauricio Moral-Salaz v. Eric Holder

Seventh Circuit -- USA v. Casey Hunter

"Can you call my attorney" is an unambiguous invocation of the right to counsel.

USA v. Casey Hunter

Seventh Circuit -- Farrokh Yassan v. J.P. Morgan Chase

Removal of dismissed action - subsequent to dismissal - equitably revested jurisdiction in the state court.

Dismissal of employment claim on merits upheld given waiver.

Farrokh Yassan v. J.P. Morgan Chase

Seventh Circuit -- Buddha Entertainment v. Gus A. Palo

Easterbrook -- Deft claiming excusable neglect in receipt of papers must plead and prove circumstances.

Buddha Entertainment v. Gus A. Palo

Sixth Circuit -- USA v. Timothy Sims

Error in exclusion of evidence from pr0n case, as the deft could have taken the requisite substantial step without actually meeting all of the statutory elements.

Dissent, no abuse of discretion, as court just made the call on the evidence at the pretrial stage.

USA v. Timothy Sims 

Fourth Circuit -- US v. Larry Deffenbaugh

For purposes of proving conspiracy to make a false report to the Coast Guard, prosc need not prove that the conspirators intended a Federal authority to receive the distress call.

Sentence not erroneous.

US v. Larry Deffenbaugh

Fourth Circuit -- US v. Michael Bernard

Standard for mentally trouble deft to go pro se is whether they have the wits to waive counsle, not the wits to  represent themselves.

Dissent -- Trial court understood this to be a mandatory rule, and didn't look to see whether further, permissive scrutiny should have been applied.

US v. Michael Bernard

Second Circuit -- Mitchell v. Lyons Prof’l Servs., Inc.

Error in court's denying writ of execution -- as a technique to sanction counsel.

Mitchell v. Lyons Prof’l Servs., Inc.

First Circuit -- Latson v. Plaza Home Mortgage, Inc.

Souter, pinch hitting on loans case.

Pre-loan conduct by lender not covered by the state implied warranty of good faith and fair dealing.

Statute of limitations has run.

Latson v. Plaza Home Mortgage, Inc. 

First Circuit -- Gilberti v. Coppola

Rule 11 sanctions upheld for untenable claims of usury and conversion.

Gilberti v. Coppola

First Circuit -- US v. Ramirez

Sentencing --

Burglary is a crime of violence for purposes of the sentencing bump.

Remand, as amended judgment unclear as to status of a certain enhancement.

US v. Ramirez

First Circuit -- US v. Rios-Ortiz

Crim -- sufficient evidence for existence of a single conspiracy during the relevant timeframe.

US v. Rios-Ortiz 

First Circuit -- Rubin v. Harvard University

Plaintiffs cannot attach articles in a museum, as the foreign sovereign with an interest in the articles has not formally asserted that interest, and so the articles are not reachable under the statutory carve-out to the FSIA.

Rubin v. Harvard University 

Out of time

9, 10 & seq tomorrow.

MB

Eighth Circuit -- Victor Santiago v. Daniel Blair

U.S. Court of Appeals Case No: 11-3693 U.S. District Court for the Eastern District of Missouri - St. Louis [PUBLISHED] [Wollman, Author, with Beam and Loken, Circuit Judges]
Civil Case - qualified immunity. On appeal from denial of qualified immunity, claim of excessive force is remanded to district court for determination whether circumstances support a reliable inference of an unnecessary and wanton infliction of pain; denial of qualified immunity on deliberate indifference claim is reversed; denial of qualified immunity on First Amendment retaliation claim relating to death threats for filing excessive force grievance and relating to placement in cell without personal property, proper bedding, a working sink or working toilet are affirmed; and retaliatory discipline claim fails as a matter of law because some evidence supported disciplinary violation.

Victor Santiago v. Daniel Blair

Sixth Circuit -- Carol Smith v. Perkins Board of Education

ADA and IIED -- dismissal of complaint  at summary judgment was error.

Carol Smith v. Perkins Board of Education 

Sixth Circuit -- USA v. James Gamble

Pr0n restitution payments remanded for showing of proximacy of cause between dfeft conduct and victim harm.

 USA v. James Gamble 

Sixth Circuit -- Timothy Pagliara v. Johnston Barton Proctor and Rose

Fraud -- Bald assertions don't sufficiently state a state breach of fiduciary duty claim.

Professional services exception to statute bars statutory claim.

Timothy Pagliara v. Johnston Barton Proctor and Rose 

Sixth Circuit -- Yellowbook Inc. v. Steven Brandeberry

Trademark - Contract transferred the mark in its entirety.

Yellowbook Inc. v. Steven Brandeberry 

Fifth Circuit -- Lisa Learmonth v. Sears, Roebuck & Co.

State statutory cap on non-economic damages is kosher under SOP and state constitution, despite the fact that the state supreme court held that the lack of explicit designation of damages as non-economic in the present case meant that the issue wasn't presented.

Lisa Learmonth v. Sears, Roebuck & Co.

Second Circuit -- NLRB v. Special Touch Home Care Servs., Inc.

Labor law -- employer's individual call-in rule cannot be enforced to make strike no-show an unprotected activity.  Home health aides who don't provide notice, however, create an imminent danger and are therefore unprotected.

NLRB v. Special Touch Home Care Servs., Inc.

Second Circuit -- Mark Maraschiello v. City of Buffalo Police Department

Under Title VII, a general overhaul of department-wide promotion criteria is not a race-based adverse action specific enough to survive summary judgment.

Mark Maraschiello v. City of Buffalo Police Department

Second Circuit -- Taveras v. UBS AG et al.

ERISA plan fiduciaries should not be accorded presumption of prudence for offering stock in the company, as the Plan didn't explicitly reference it as an option.

Taveras v. UBS AG et al.

DC Circuit -- American Electric Power Serv. v. FCC

Agency decision upheld as consistent with statute and precedent, and more rational than previous policy.

American Electric Power Serv. v. FCC

Eleventh Circuit -- Luis W. LeBron v. Secretary, Florida Departtment of Children and Families

No error in preliminary injunction barring suspicion-less drug testing for government assistance recipients.

Concurrence: Injuction only -- state's rational basis is not a sufficient justification for the 4A violation.

Luis W. LeBron v. Secretary, Florida Departtment of Children and Families

Eleventh Circuit -- Flintlock Construction Services, LLC v. American Safety Risk Retention Group, Inc., et al.

Motion for summary judgment not a basis for amending complaint without leave.

Flintlock Construction Services, LLC v. American Safety Risk Retention Group, Inc., et al.

Tenth Circuit -- Stewart Title v. Dude

Where loan application requires disclosure of prior loans, and applicant does not disclose a prior loan, a separate area of the form excepting certain loans doesn't bar justifiable reliance by the lender on applicant's omission in the first area.  Nor does faulty recordation.

Stewart Title v. Dude

Tenth Circuit -- Full Life Hospice v. Sebelius

Dismissal without leave to amend of administrative challenge upheld, as the statutory clock had run.

Full Life Hospice v. Sebelius

Tenth Circuit -- United States v. Addison

Sufficient evidence for embezzlement ; no 6A Public Trial violation in excluding co-deft who was granted mistrial.

United States v. Addison

Tenth Circuit -- Case v. Hatch

Denial of 'actual innocence' Habeas as recantations and new DNA evidence cannot be considered, and Brady violation not necessarily outcome-determinative.

Concurrence -- de novo review of merits at second/successive stage wastes judicial resources.

Case v. Hatch

Ninth Circuit -- GINGER MCCALL V. FACEBOOK, INC.

Dissent from denial of en banc -- cy pres class action settlement requiring donations to charitable foundations is not reasonably certain to advance the interests of class members.

GINGER MCCALL V. FACEBOOK, INC.

Seventh Circuit -- Milwaukee Police Ass v. Board

Where a plaintiff settles a procedural Due Process claim, the plaintiff's union's challenge to the same action becomes moot.

Milwaukee Police Ass v. Board 

Seventh Circuit -- Dishon McNary v. Marcus Hardy

Denial of ineffective assistance Habeas claims -- (1) no prejudice; (2) state court assessment of counsel's strategic choices was reasonable; (3) specific situation underlying the claim wasn't raised in state collateral challenge ; (4) (Appellate) Strategic choice call by state review was reasonable.

Dishon McNary v. Marcus Hardy

Sixth Circuit -- Lee Moore v. Betty Mitchell

Reversal of Habeas grants as - more or less - (1) procedurally defaulted, since state court holding that there was no prejudice is upheld under 'AEDPA deference'; (2) Habeas record here can't look beyond trial record.

[There's more here, but we're in a hurry.  As always, entertainment value only.  MB]

Lee Moore v. Betty Mitchell 

Sixth Circuit -- Martha Vassalle v. Midland Funding LLC

District court erred in accepting class action settlement, given disparity in payments between named and unnamed class members.

Certification was error -- representatives not adequate; class action not the superior method.

No abuse of discretion in denying discovery for intervenor.

Martha Vassalle v. Midland Funding LLC 

Fifth Circuit -- Western Real Estate Equities v. Village at Camp Bo

Bankruptcy -- deliberate creation of an impaired class of creditors is not bad faith per se.

Western Real Estate Equities v. Village at Camp Bo

Fifth Circuit -- Gary Klein v. Nabors Drilling USA, L.P.

Arbitration agreement binds, despite the fact that the agreement contemplates other options as well.

Gary Klein v. Nabors Drilling USA, L.P.

Fourth Circuit -- US v. Under Seal

Offender registration for juveniles -- no violation of Federal confidentiality laws; non-punitive, and therefore permissible.

US v. Under Seal

Fourth Circuit -- Mehdi Noohi v. Toll Bros., Inc

Class action -- arbitration agreement unenforceable for lack of consideration.

Mehdi Noohi v. Toll Bros., Inc

Fourth Circuit -- Building Graphics, Inc. v. Lennar Corporation

Copyright: Building floor plans

No claim for copying in fact, as access not proven

Building Graphics, Inc. v. Lennar Corporation

Fourth Circuit -- Patricia Moore-King v. County of Chesterfield, VA

Although fortune-telling is not proven to be inherently deceptive and is therefore the subject of First Amendment protections, county restrictions were permissible as regulations of professional speech.

Equal Protection: Rational BAsis ; RILUPA & Religion 1A: Nope.

Patricia Moore-King v. County of Chesterfield, VA

Second Circuit -- U.S. Smokeless Tobacco Mfg. Co., et al. v. City of New York

Local law restricting tobacco flavoring not preempted by Federal law restricting flavoring of tobacco.

Saving clause saves anyway.

U.S. Smokeless Tobacco Mfg. Co., et al. v. City of New York

First Circuit -- Commonwealth of Massachusetts v. US Nuclear Regulatory Commission

NRC denial of reopening of nuclear power administrative contention wasn't arbitrary/capricious.

Agency took hard look as required by NEPA.

Commonwealth of Massachusetts v. US Nuclear Regulatory Commission

Current M.O.

Around 2 or 3 PM every working day, we post quick summaries of and links to published decisions of the U.S. Circuit Courts of Appeal.  These are quick summaries, and are not to be relied upon for any purpose.  There is no guarantee that all decisions will be listed, or that the summaries will not be flat wrong.  This is quick work in bulk.  There is a (notably non-comprehensive) search function at the top of the page that can be used to find recent slip decisions referencing various topics in the law.  No part of this website is legal advice.

We make ye kindly welcome.

MB

Tenth Circuit -- Berneike v. CitiMortgage, Inc.

No error in District Court considering papers outside pleadings as the relevant data was included in papers incorporated into the pleadings.

Chevron deference to Agency rule requiring borrower complaints to go to a certain address.

State law claim properly dismissed, as there are better remedies and the statute's reach is unclear.  This discernible from state Supreme Court holdings, so no preemption issue.

No error in denial of leave to amend, as party did not provide the gist/drift of potential amendments to the claim.

Berneike v. CitiMortgage, Inc.

Ninth Circuit -- SONOMA COUNTY ASSOCIATION OF R V. SONOMA COUNTY

District Court should have granted leave to amend complaint for the purposes of establishing that a county created an implied contract to provide health benefits.

SONOMA COUNTY ASSOCIATION OF R V. SONOMA COUNTY

Ninth Circuit -- SHANNA KUXHAUSEN V. BMW FINANCIAL SERVICES NA LLC

As initial pleading in state class action was silent as to the loss sustained by individual class members, CAFA eligibility was not established, and the removal clock did not start ticking.

Pre-suit documents do no qualify for the statutory exception to rule that CAFAbility is established from the pleadings.

SHANNA KUXHAUSEN V. BMW FINANCIAL SERVICES NA LLC

Eighth Circuit -- United States v. Aaron Anderson, Jr.

As re-sentencing court's finding of facts was not clearly at odds with facts found in first proceeding, no error in denial of resentencing for crack/cocaine adjustment, given that the original offense could qualify for a higher minimum under the new rule.

United States v. Aaron Anderson, Jr.

Eighth Circuit -- Melvin Folkerts v. City of Waverly

Police contact and charging decisions as to mentally disabled petitioner insufficiently conscience-shocking for S1983 claim.

As this is a narrow range of facts, and there were no violations of rights established in the present claim, no claim against municipality for 'culture of indifference.'

Police adjustments to procedure sufficed for ADA/ Rehabilitation Act requirements.

Melvin Folkerts v. City of Waverly

Seventh Circuit -- Nazirmohammad I. Vah v. Eric H. Holder

Immigration / India

No error in Board holding that the sectarian violence in former country wasn't instigated by folks that the government was unwilling or unable to control.

Nazirmohammad I. Vah v. Eric H. Holder

Seventh Circuit -- USA v. Zhaofa Wang

No clear error in sentencing bump for false document production in excess of 100, although deft only handled 15 of the customers.

No clear error in denial of minor participant sentencing reduction, given scope of deft's knowledge.

USA v. Zhaofa Wang

Sixth Circuit -- Freedom From Religion Foundation v. City of Warren

Holiday display is government speech, and therefore pagan proposal was not impermissibly rejected.

No Establishment of religion involved.

 Freedom From Religion Foundation v. City of Warren 

Third Circuit -- Neal Crispin v. Commissioner of Internal Revenue

No clear error in Tax Court holding that a loan had no economic substance, as the deft never attempted to collect the proceeds and court findings on general credibility.

Penalty properly applied, as underreporting resulted from said insubstantiality.

Reliance on official opinion of no avail given the broad caveats in the opinion.

Neal Crispin v. Commissioner of Internal Revenue

First Circuit -- Brown v. State of RI

Prisoner claim should have been given a chance to amend, as opposed to summary dismissal.  Although the remedy was impossible, the harm might have been real.

Brown v. State of RI 

First Circuit -- US v. Fiume

As the underlying base crime ("wherefore base?") is generic, a sentencing bump fr an element also included in the base offense is not impermissible double counting.

US v. Fiume 

Milepost

Well, somewhere in the last few dozen posts, we passed 2,000 decisions.  And there was much rejoicing.

MB

Federal Circuit -- SHARP ELECTRONICS CORPORATION v. ARMY [OPINION]

SHARP ELECTRONICS CORPORATION v. ARMY [OPINION]

DC Circuit -- Nick Koretoff v. Tom Vilsack

Nick Koretoff v. Tom Vilsack

Eleventh Circuit -- USA v. Yuri Izurieta, et al

USA v. Yuri Izurieta, et al

Eleventh Circuit -- Michael Turner v. Warden Coleman FCI

Michael Turner v. Warden Coleman FCI 

Eleventh Circuit -- Chau Kieu Nguyen v. JP Morgan Chase Bank, NA

Chau Kieu Nguyen v. JP Morgan Chase Bank, NA

Tenth Circuit -- Peterson v. Garcia

Carrying of concealed firearms not protected by 2A / Privileges/Immunities.

Peterson v. Garcia

Eighth Circuit -- United States v. Jerrell Moore

[PUBLISHED] [Arnold, Author, with Smith and Melloy, Circuit Judges]
Criminal case - Sentencing Guidelines. District court may make supplemental findings in a resentencing proceeding under 18 U.S.C. Sec. 3582(c)(2) if the findings are necessary to deciding the motion and do not contradict any findings made at the sentencing; here, the district court was authorized to make the findings, and the record provided ample evidence for the court's supplemental findings.

United States v. Jerrell Moore

Eighth Circuit -- United States v. Leo Villarreal

[PUBLISHED] [Smith, Author, with Beam and Loken, Circuit Judges]
Criminal case - Criminal law. Speedy Trial Act claim rejected as the continuances granted in the case served the ends of justice and were excludable under the speedy-trial calculation under 18 U.S.C. Sec. 3161(h)(7)(A); Indictment was sufficient to allege an offense under 18 U.S.C. Sec. 2241(a)(1); Evidence was sufficient to support defendant's conviction for attempted sexual abuse under 18 U.S.C. Sec. 2242(B); claim of fatal variance between indictment and proof rejected.

United States v. Leo Villarreal

Eighth Circuit -- Brian Farrington v. Officer Steven Smith

Court Summary (as MB is running late)

Civil case - Civil Rights. In suit alleging the defendant police officer used excessive force, the district court did not err in allowing the officer to testify as to his purported mental state regarding the situation and plaintiff's actions as much of the evidence was elicited by plaintiff's counsel, the information provided context for the officer's actions and the jury was instructed not to consider the officer's state of mind, intention or motivation; no error in permitting the officer to testify regarding possible "weaponization" of cell phones; no error in refusing plaintiff's proposed revised Eighth Circuit Jury Instruction Number 16 on excessive force as the instruction actually given was supported by the law and evidence; conclusion that the district court did not err in denying plaintiff's motion for a new trial on his excessive-force claim was dispositive of his claim that other officers failed to protect him from the use of excessive force.

Brian Farrington v. Officer Steven Smith

Seventh Circuit -- Lorene Mann v. Meldon Vogel

Plaintiff had liberty interest when regulators briefly closed child-care center -- 'stigma plus'

Sufficient Due Process accorded, however.

Lorene Mann v. Meldon Vogel

Seventh Circuit -- http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=12-1254_002.pdf

35B motion converted to Habeas sua sponte.

Not second/successive, as claim did not become ripe until gov't incorrectly made 35B motion.

BUT time-barred under one-year rule.

USA v. Khaled Obeid

Seventh Circuit -- Northeastern Rural E v. Wabash

Electricity provision contract presents question of state law, not federal law.

Northeastern Rural E v. Wabash 

Fifth Circuit -- USA v. Mark Woerner

Good faith exception applies to warrant obtained on the basis of deft statements later determined to be the fruit of an illegal search.  Case by case, not categorical.

Sufficient evidence, pr0n counts not multiplicitous.

USA v. Mark Woerner

Fifth Circuit -- Mid-Continent Casualty Co. v. Eland Energy Inc.

Insurer does not breach duty of good faith and fair dealing by settling third party claims on the side to the limit of coverage, despite contractual duty to defend.

Choice of law assigned under interest analysis. Texas wins.

Misrepresentations were not a 'producing cause' of the allegedly tortious settlement offers.

Mid-Continent Casualty Co. v. Eland Energy Inc., e