Federal Circuit -- RADIO SYSTEMS CORP V LALOR [OPINION]

RADIO SYSTEMS CORP V LALOR [OPINION]

DC Circuit -- In re: Sealed Case

In re: Sealed Case

DC CIrcuit -- Kaiser Foundation Hospitals v. Kathleen Sebelius

Kaiser Foundation Hospitals v. Kathleen Sebelius

Eleventh Circuit -- Reinaldo Ramon Lamonica, et al. v. Safe Hurricane Shutters, Inc., et al.

Illegal immigrants not barred from recovery of back wages under FLSA under in pari delicto.

No error in jury instructions on individual liability & methodology.

Many other issues.  Running short on time.

Concur/Dissent on jury instructions & employer liability.

Reinaldo Ramon Lamonica, et al. v. Safe Hurricane Shutters, Inc., et al.

Eleventh Circuit -- Alabama Environmental Council, et al. v. U.S. Environmental Protenction Agency

Clean Air Act -- EPA action was ultra vires.

Alabama Environmental Council, et al. v. U.S. Environmental Protenction Agency

Ninth Circuit -- LIBERTARIAN PARTY LOS ANGELES V. DEBRA BOWEN

Daubert, Batson, and the English Rule.

Company was a party to settlement agreement given timely joinder.

If denial of peremptory strike was error (given the lack of subjective bias), it was harmless.

Challenges to market definition go to merits, not decision to allow under Daubert.

Sufficient evidence for award of lost profits.

Attorney's fees are procedural (not substantive) under Alaska's choice of law scheme, and therefore apply over the foreign rule drawn from the law generally being applied in the case.

LIBERTARIAN PARTY LOS ANGELES V. DEBRA BOWEN

Ninth Circuit -- LIBERTARIAN PARTY LOS ANGELES V. DEBRA BOWEN

Petition signature-seekers have standing for pre-enforcement federal challenge to state law  requiring that they be a resident of the area in question, given concrete plans to get signatures, and the threat of legal action if they do so.

LIBERTARIAN PARTY LOS ANGELES V. DEBRA BOWEN

Eighth Circuit -- George Donner v. Alcoa, Inc

As injured employee has already elected to receive workman's comp, attempted joinder of employer to defeat diversity would be fraudulent.

George Donner v. Alcoa, Inc

Eighth Circuit -- Minnesota Majority v. Joe Mansky

Polling place is a nonpublic forum.  Restriction on political statements (t-shirts, etc) upheld.

Dismissal of as-applied challenge reversed, as court improperly considered materials outside the pleadings.

Void-for-vagueness requires deliberate indifference -- the statute empowering polling-place workers to enforce the rules did not rise to this level.

Minnesota Majority v. Joe Mansky

Seventh Circuit -- John Dennison v. MONY Life Retirement Income Se

Posner solves ERISA quandry with Farnsworth on Contracts, viz:

Despite explicit provision in Plan barring retroactive rejiggering of benefits, Plan can adjust returns, as the lump sum payout is not an accrued benefit.  Consistent practice of parties to the contract justifies same outcome for a parallel benefit.

Theory of conflict of interest too thin to justify additional discovery.

John Dennison v.   MONY Life Retirement Income Se

Seventh Circuit -- Jose Marin-Rodriguez v. Eric Holder, Jr.

Immigration -- fraudulently obtaining a Social Security card is a crime of moral turpitude.

Jose Marin-Rodriguez v.   Eric Holder, Jr.

Seventh Circuit -- USA v. Edwin Sanchez

Revisions to sentencing guidelines do not trigger ex post facto clause.  Circuit split flagged.

Sentencing bump for maintaining a building to use for drug distribution (as opposed to a residence) should consider not just frequency of use but general scope.

No procedural sentencing error as District Court knew that it could consider codefts differently.

No substantive sentencing error, given that sentence was on low end of guidelines range.

USA v.   Edwin Sanchez

Seventh Circuit -- Beverly Stayart v. Google Incorporated

Internet user's attempt to sue Google for search returns on her name TKO'd as (1) she made her name a matter of public concern by filing a similar suit and (2) connection to advertising revenues is incidental, not substantial.

Beverly Stayart v.   Google Incorporated

Fourth Circuit -- Francine Helton v. AT&T Inc.

ERISA -- no absolute bar to appellate review of evidence extrinsic to the administrative record.

Plan language allowed award of retroactive benefits.

Francine Helton v. AT&T Inc.

Third Circuit -- USA v. Barry Sussman

Federal interest in frozen assets (gold) later illicitly reclaimed was sufficient to make them federal property under the theft statute, as the bank was merely a repository, and the federal agency held a court order giving it ownership of the assets.

Reclaiming the contents of the safe deposit box was obstruction of justice, as it prevented satisfaction of judgment against deft.

Missing transcript sections could not contain material capable of prejudice.

Jury instructions for obstruction, etc were kosher.

USA v. Barry Sussman

Third Circuit -- James Freeman v. Pittsburgh Glass Works LLC

Article III court retained jurisdiction over arbitration as it administratively closed the case, as opposed to dismissing it.

Argument of waiver was itself waived in the court below.

Campaign contribution from party to arbitration did not impugn impartiality.  (Bonus - opposing counsel donated five times as much.)

No fraudulent inducement to accept the arbitration outcome.

James Freeman v. Pittsburgh Glass Works LLC

Second Circuit -- Winfield, et al. v. Trottier

S1983 -- reversal of denial of qualified immunity.

Consent to search of car could not reasonably be construed to extend to piece of mail in the car.

Winfield, et al. v. Trottier

Second Circuit -- Yeldon v. Fisher

Pro se litigant checked "no consent" on consent form for referral to magistrate, but didn't subsequently object.  The defect is jurisdictional, and the magistrate's holding is null.

Yeldon v. Fisher

First Circuit -- Tsai v. Holder

Immigration -- no error in IJ's holding that foreign hospital documents were insufficiently authenticated ; nor in adverse credibility findings vs. petitioner.

Tsai v. Holder 

Out of time

Eighth Circuit -- Tabby Butler v. Crittenden County, Arkansas

Tabby Butler v. Crittenden County, Arkansas U.S. Court of Appeals Case No: 12-1993 U.S. District Court for the Eastern District of Arkansas - Jonesboro [PUBLISHED] [Murphy, Author, with Loken and Colloton, Circuit Judges]
Civil case - civil rights. Since plaintiff's race and gender discrimination claims under Section 1983 are based on alleged constitutional violations, she was not required to comply with Title VII's procedural requirements, such as filing her action within 90 days of receiving a right to sue letter, in order to maintain them; while plaintiff suffered tangible job detriments in the form of a suspension and termination, she failed to show that her rejection of her supervisor's advances caused the detriments; plaintiff's allegations of different treatment were insufficient to establish a prima facie case of discrimination on the basis of her sex and race; retaliation claim under Section 1981 rejected; First Amendment claim under Section 1983 rejected as the comments in question were made as part of her official duties and were not immunized under the First Amendment.

Fourth Circuit -- Henry Pashby v. Albert Delia

Challenge to state rules for Federal relief.

Not moot, as the pending changes in state procedure will still leave petitioners with an interest, and the situation is capable of repetition, despite pendite lite reversals by arbitrators.

No need to exhaust APA remedy, as courts have held the policy to violate federal law.  No need to exhaust administrative remedies generally, as the challenge is to the policy change, not the individual denial of benefits.

Class certification not reviewed, as not sufficiently intertwined.

Where a preliminary injunction preserves the status quo (bars the implementation of a policy), it is prohibitory, not mandatory.  (Slightly lower standard of review.)

Requirements for preliminary injunction met.

Remand without vacatur to allow correction of Rule 65 defects in injunction.



Henry Pashby v. Albert Delia

Second Circuit -- Bechtel v. Admin. Review Bd.

To state a claim for retaliation under Sarbanes-Oxley whistleblowing prohibition, there must be protected activity of which employer was aware, subsequent adverse action to which the protected activity was a contributing factor.  PF claim can then be rebutted by employer's proof that it would have happened anyway.

As, apparently, it did in this case.  Despite the ALJ applying the wrong test.

Bechtel v. Admin. Review Bd.

Second Circuit -- Mayor and City Council of Baltimore, Maryland et al., v. Citigroup, Inc.,

Allegations that large buyers acted in concert to stop buying securities prior to market crash does not state a claim for violation of the Sherman Act, as it does not raise a plausible inference that discovery will reveal illegal conduct.

Mayor and City Council of Baltimore, Maryland et al., v. Citigroup, Inc.,

Out of Time

MB is still working under diminished resources -- apologies, but 8, 9, 10, 11 DC & FED skipped today.  Ciao.

MB

Seventh Circuit -- USA v. Danny Turner

SCOTUS remand -- Confrontation Clause error on expert cross was harmless.

USA v. Danny Turner

Seventh Circuit -- Juana Sanchez v. Prudential Pizza,

In Rule 68 motion "claims for relief" do not necessarily include fees.

Juana Sanchez v. Prudential Pizza,

Seventh Circuit -- Caterpillar Financia v. Peoples Nat

Posner quotes "As You Like It," writes secured transactions opinion -- viz:

Two creditors claimed an interest, second one held a good note subordinating a third's interest -- but that note subordinated the holder's interest to the other original creditor.  So it's arguing for partial subordination. Incidental arguments on PMSI and SIV fall by the wayside.  No partial subordination, says Posner, since a note holding that the priority order is ABC can't result in a priority order of  BAC or BCA , even given lost quarto suggesting BAC.

Caterpillar Financia v. Peoples Nat

Sixth Circuit -- Juana Villegas v. The Metro. Gov't of Nashville

8th Amendment claim for being shackled during childbirth -- summary judgment for plaintiff reversed, remanded.

Juana Villegas v. The Metro. Gov't of Nashville 

Sixth Circuit -- Sarunas Abraitis v. USA

Tax -- although the administrative exhaustion requirement is not jurisdictional, claim is waived for not being raised in District Court, and because this particular deadline is not subject to equitable tolling.

Sarunas Abraitis v. USA 

Sixth Circuit -- Dwayne Ballinger, Jr. v. John Prelesnik

Habeas -- District Court erred in holding evidentiary hearing, as state Habeas had resolved the issue on its merits.

Dwayne Ballinger, Jr. v. John Prelesnik 

Fourth Circuit -- US v. Robert Mann

Crack/cocaine sentencing adjustment. Court did not err in interpreting it's earlier findings of fact.

US v. Robert Mann

Fourth Circuit -- Scott Andochick v. Ronald Byrd

ERISA does not preempt post-distribution suits for proceeds against fiduciaries.  (Here, to get previously declined funds as part of marital settlement.)

Scott Andochick v. Ronald Byrd

Second Circuit -- McMillan v. City of New York

Reversal of dismissal of ADA claim -- arriving late to work might be a reasonable accomodation, given plaintiff's prescribed meds.

McMillan v. City of New York

Second Circuit -- County of Erie v. Colgan Air, Inc.

County barred from plane-crash cleanup reimbursement under 'free public services' doctrine.

County of Erie v. Colgan Air, Inc.

Second Circuit -- United States v. Nouri

No plain error in post-Skilling fraud instruction that didn't limit honest services to bribes & kickbacks.

Same with including honest services element in instruction for securities fraud.

Court correctly instructed on finding fiduciary obligations.

No error in denial of deft's requested instruction distinguishing "incidental to" / "in connection with."

Sufficient evidence, sentence reasonable.

United States v. Nouri

Out of time

One more in the 8th, readers are commended to the circuit websites for 9, 10, 11, DC & Fed.  Good weekend!

MB

Eighth Circuit -- Neal Roberts v. United States

U.S. Court of Appeals Case No: 11-2054 U.S. District Court for the Eastern District of Arkansas - Little Rock [PUBLISHED] [Bye, Author, with Smith and Colloton, Circuit Judges]
Civil case - False Claims Act. The district court did not err in finding relators were entitled to a portion of the government's recovery under the False Claims Act, as the defective pricing claim the government brought was related to relators' suit; the court rejects the idea that Rule 9(b)'s heightened pleading requirement plays a part in determining whether a relator is entitled to share in settlement proceeds resulting from a qui tam action in which the government elects to intervene. Judge Colloton, dissenting.

Neal Roberts v. United States

Eighth Circuit -- Carlos Manuel Calles Quinteros v. Eric H. Holder, Jr.

Court Summary:

U.S. Court of Appeals Case No: 11-1875 and No: 11-3425 Petition for Review of an Order of the Board of Immigration Appeals [PUBLISHED] [Smith, Author, with Loken and Beam, Circuit Judges]
Petition for Review - Immigration. Petitioner failed to show a well- founded fear of future persecution and the BIA's decision denying asylum, withholding of removal and CAT relief is affirmed.

Carlos Manuel Calles Quinteros v. Eric H. Holder, Jr.

Seventh Circuit -- Parvati Corporation v. City of Oak

Parvati Corporation v. City of Oak

Seventh Circuit -- SEC v. First Choice Managem

SEC v. First Choice Managem

Fifth Circuit -- Nelson Gongora v. Rick Thaler, Director

Habeas  -- conviction vacated due to prosc comments in closing on deft not testifying.

Nelson Gongora v. Rick Thaler, Director

Fourth Circuit -- US v. Tyrone Moore

Crim -- newly discovered evidence justifies retrial.

US v. Tyrone Moore

Fourth Circuit -- Municipal Association of SC v. USAA General Indemnity Company

Federal flood insurance premiums trigger sovereign immunity, given how closely the companies are intertwined with the FG, therefore municipality cannot base business license tax levels on premium levels.

Municipal Association of SC v. USAA General Indemnity Company

Fourth Circuit -- ESA Environmental Specialists v. The Hanover Insurance Company

Bankruptcy -- voidable transfer

ESA Environmental Specialists v. The Hanover Insurance Company

Third Circuit -- Ray Caprio v. Healthcare Revenue Recovery Group

Debt Collection Act.

Ray Caprio v. Healthcare Revenue Recovery Gr

Second Circuit -- Lundy v. Catholic Health System of Long Island Inc.

FLSA overtime claim must allege that plaintiff worked overtime.

Supplementary state claims should not have been completely dismissed with prejudice, given different gap-time rules.

Mailing of allegedly short paychecks doesn't state a RICO claim.

Lundy v. Catholic Health System of Long Island Inc.

Second Circuit -- United States v. Robles

Crim -- consecutive mandatory minimums for gun charges in same proceeding upheld.

United States v. Robles

Second Circuit -- New Jersey Carpenters v. Royal Bank of Scotland

Securities -- shoddy mortgage portfolio states a case, statements were material.

New Jersey Carpenters v. Royal Bank of Scotland

Second Circuit -- City Wide Transit, Inc. v. Comm’r

Tax.

City Wide Transit, Inc. v. Comm’r

First Circuit -- Bluetarp Financial, Inc. v. Matrix Construction Co., Inc.

Personal Jurisdiction over out-of-state party.

Bluetarp Financial, Inc. v. Matrix Construction Co., Inc. 

First Circuit -- US v. Gates

Speedy Trial Act

US v. Gates 

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