DC Circuit -- Amer. Fed. of Govt. Employees v. Eric Shinseki

Filing unfair labor practice complaints on the basis of desired support of an outside union doesn't per se implicate the right to bargain collectively at this particular workplace.

Amer. Fed. of Govt. Employees v. Eric Shinseki

DC Circuit -- MBIA Insurance Corporation v. FDIC

Contracts of institutions being managed by the FDIC are not necessarily approved by the FDIC (and therefore given priority in wind-up) by being merely countenanced by the FDIC.

MBIA Insurance Corporation v. FDIC

DC Circuit -- Camille Grosdidier v. Broadcasting Board of Governors

District Court correctly found no discrimination in Title VII claim, as the legitimacy of the comparator couldn't be disproved.

Bad faith not required for negative inference instruction from spoiliation where there is duty to preserve.  (Dicta, as harmless error.)

Camille Grosdidier v. Broadcasting Board of Governors

Eleventh Circuit -- USA v. Rick A. Kuhlman

Noncustodial sentence for white collar medical fraud held substantively unreasonable.

USA v. Rick A. Kuhlman

Tenth Circuit -- Toone v. Wells Fargo Bank, N.A

Assignments / endorsements on a note can be examined at Motion to Dismiss stage so long as the authenticity of the instrument is not in question.

Other substantive and procedural challenges TKO'd.

Toone v. Wells Fargo Bank, N.A

Tenth Circuit -- United States v. Loughrin

Bank fraud does not require intent that the bank itself should be the one defrauded.

No Speedy Trial Act violation.

United States v. Loughrin

Ninth Circuit -- USA V. MARCEL KING

Probation condition upholding suspicionless search of residence upheld.

Dissent -- language of waiver, equates probationers with parolees.


USA V. MARCEL KING

Ninth Circuit -- USA V. HOWARD COTTERMAN

Away-from-border border search of laptop computer was not an extended border search, and therefore still required only reasonable suspicion.

Password protection doesn't suffice for same, but can factor into the totality.

C/D/CIJ -- Standard for search is too low.

D -- Standard too vague

USA V. HOWARD COTTERMAN

Ninth Circuit -- JOSE GONZALEZ-CERVANTES V. ERIC HOLDER, JR.

No error in BIA holding that state would not reasonably apply misdemeanor sexual battery statute to non-turpitudinous conduct.

Dissent: But it has in the past.

JOSE GONZALEZ-CERVANTES V. ERIC HOLDER, JR.

Eighth Circuit -- United States v. Paul Beard

Given poor quality of police video, the pre-stop circumstances credited by the trial court are not discredited.

United States v. Paul Beard

Seventh Circuit -- Gary Vaughn v. Thomas Vilsack

Title VII -- no retaliation claim, given subsequent inappropriate workplace behaviour by plaintiff.

Gary Vaughn v.   Thomas Vilsack

Seventh Circuit -- Toy A. Collins v. American Red Cross

Summary judgment against Title VII claims upheld -- plaintiff's subsequent statements that employer was 'out to get minorities' were unprotected.  No animus demonstrated to later report unfavorable to employee.

Toy A. Collins v.   American Red Cross

Fourth Circuit -- Raymond James Financial v. Peter Cary

FINRA arbitration rule doesn't apply, as the securities were purchased on information from an acquaintance of the employees of the covered company, not from the company itself.

Raymond James Financial v. Peter Cary

Third Circuit -- Leon Kendall v. Daily News Publishing Co

Virgin Islands court misapplied law, but harmless error as sme outcome under correct defamation-by-implication rule, viz: plaintiffs must plead and prove intent-- something more than actual knowledge of falsity.

Leon Kendall v. Daily News Publishing Co

Third Circuit -- Mark Maniscalco v. Brother Intl Corp

Interest analysis, not domicile, governs choice of law in products liability action.

Mark Maniscalco v. Brother Intl Corp

Third Circuit -- Valerie Montone v. City of Jersey City

District court erred in not favoring non-movant when considering summary judgment.

Gender discrimination claims were speech on a matter of public concern.

Plaintiffs challenging promotion scheme have both article III and zone of interests prudential standing.  Genuine issue of fact as to whether political affiliation was improperly considered.

Valerie Montone v. City of Jersey City

Second Circuit -- Christian Louboutin S.A. v. Yves Saint Laurent Am. Holding, Inc.

Denial of injunction upheld, as the patent is for a shoe the red sole of which contrasts with the color of the rest of the shoe, and the product in question is completely red.

Christian Louboutin S.A. v. Yves Saint Laurent Am. Holding, Inc.

Federal Circuit -- GLOBAL COMMODITY GROUP LLC v. US [OPINION]

Statute set antidumping threshold for citric acid from PRC at 40%, company offloaded a mix of 35% PRC citric acid, and 65% other citric acid.  Court here upholds ruling under substantial evidence review that this isn't a 'blend' under the statute, as they didn't mix the citric acid with anything.  For next time, MB suggests vodka.

GLOBAL COMMODITY GROUP LLC v. US [OPINION]

Federal Circuit -- IN RE HUBBELL [OPINION]

Patent.  Mit dissent.

IN RE HUBBELL [OPINION]

Ninth Circuit -- JANET BELL V. CITY OF BOISE

Homeless S1983 plaintiffs challenging enforcement of camping regulations against them are not barred from Federal review under Rooker-Feldman, as they are not challenging the legal conclusions of the relevant state court holdings.

Special Police Order limiting  implementation of local ordinance does not make the controversy moot.

JANET BELL V. CITY OF BOISE

Ninth Circuit -- ALEX CORNS V. LABORERS INTERNATIONAL UNION

So long as the members of the Local are members of a supervening union group as well, the umbrella group can impose fair fees under the Federal statute without observing the constitutional rules of the Local.

Concur in J -- The dues increase under the statute isn't a function of the Local at all, but of the larger group.

ALEX CORNS V. LABORERS INTERNATIONAL UNION

Ninth Circuit -- MARVIN WALKER V. MICHAEL MARTEL

Reverasal of Habeas grant for Ineffective Assistance -- shackling under clothing was visible to jury, but insufficient prejudice.

Dissent -- Should redo the penalty phase.

MARVIN WALKER V. MICHAEL MARTEL

Eighth Circuit -- Shaunta Hudson v. United Systems of Arkansas

Sufficient evidence for judgment for plaintiff on Title VII claims;

No error in denying remittur, as award was within the scope of the jury's discretion.

Shaunta Hudson v. United Systems of Arkansas

Fifth Circuit -- Ronald Curtis, et al v. W. Anthony, et al

Section 1983 action against police and municipality for rigged dog-scent lineups.  Municipality cleared, officer, not so much.

Ronald Curtis, et al v. W. Anthony, et al

Fourth Circuit -- US v. Eduardo Rangel-Castaneda

Statutory Rape in Tennessee isn't categorically a crime of violence.

US v. Eduardo Rangel-Castaneda 

Fourth Circuit -- Thomas Francis v. Allstate Insurance Company

Attorneys fees count here for the amount in controversy computation, as caselaw allows recovery of fees.

Choice of law assigned by forum's rules under Klaxon.

Renter's insurance doesn't cover tort defamation suits, as the statements were made deliberately.

Thomas Francis v. Allstate Insurance Company

Third Circuit -- Taibu Grant v. Melvin Lockett

No Brady claim on Habeas, as opposing witness' priors could have been discovered with reasonable diligence.

Granted for Ineffective Assistance on same grounds, though.

Taibu Grant v. Melvin Lockett

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