Short Form: Thursday

Second Circuit:

Rosario-Mijangos v. Holder -- Immigration/ Administrative.  Substantial evidence for IJ's finding that the paperwork was in order and represented a valid waiver.  Voluntary return to foreign country after waiving hearing is sufficient process to hold that subsequent absence breaks constant physical presence requirement. 

United States v. Wilson -- Crack/cocaine sentencing adjustment.  As it is not a true re-sentencing, court hearing the motion can properly consider behavior occurring prior to the original sentencing. 

Third Circuit:

New Vista Nursing and Rehabili v. NLRB -- NLRB recess appointments -  The jurisdictional limitation on the Board is the statutory requirement that three members act - slightly different than DC Circuit's quorum analysis.  Presumption of regularity means that the order took effect when it was dated.  Definition of "recess not textually committed to the president / unmanageable.  Recess Clause is limited to inter-session appointments, as the purpose of the limitation on the power is to preserve the "advise and consent" role of the Senate (a role which would be bypassed with a broader reading) and the text refers to the "next" session.  Dissent: Pro forma sessions were not contemplated by founders, and they don't offer a chance for advice & consent.

Fourth Circuit:

Ronnie Dooley v. Hartford Accident & Indemnity --- Insurance coverage stacking - contract referencing stacking of policies is not made sufficiently ambiguous to allow the claim where it refers to a limit that is not supplied in the document, since the statute referred to in the document explicitly pairs IM/UIM liability with general liability defined elsewhere in policy.

Fifth Circuit:

Louisiana Generating, L.L.C., et al v. Illinois Un --- Environmental Insurance - Duty to defend where policy obligates insurer to defend against pollution harms where potential prospective/injunctive relief is pollution-derived.  No holding on whether indemnification against civil penalties is against NY public policy.

Cibolo Waste, Incorporated, et al v. City of San A --- Appellant does not have standing to raise a Dormant Commerce Clause claim against a facially nondiscriminatory statute unless it is engaged in interstate commerce. 

Sixth Circuit:

USA v. Sidney Brown   4A - sufficiently credible information from informant for warrant; no error in denialof Franks hearing, as the questionable information wasn't necessarily a dispositve element of sufficient probable cause; No miscarriage of justice (deft counsel didn't renew motion to acquit) in holding that gun under mattress on second floor of house was strategically placed to be of aid in drug transactions, as it was a small house.

Eighth Circuit:

United States  v.  Kurt Alexander - Crim/Drugs - Ban on using buyer/seller relationship as sole proof of conspiracy only refers to isolated transactions - large amounts and frequent transactions can prove the conspiracy.  No error in sentencing enhancements, (guns, leadership) within-guidelines sentence not substantively unreasonable.

Tenth Circuit:

Roosevelt-Hennix v. Prickett -- S1983 - Sufficient evidence for denial of qualified immunity where plaintitff's version of events is credible to a potential factfinder, clearly reveals actions in violation of rights.

DC Circuit:

In Re: Sealed Case  -- Denial of motion to return materials allegedly seized in excess of warrant is not sufficiently final and reviewable, as it is tied to the tactics of the pending case, and there is no clear independent need for the return of the documents.  Third-party (Perlman) motion to invoke privilege cannot be used to compel return of documents under 41(g).

Federal Circuit:

FORRESTER ENVIRONMENTAL v. WHEELABRATOR TECHNOLOGIES   Jurisdiction - No 'arising-under' jurisdiction under patent law where the alleged violation is overseas without any prospect of the product being imported.

NSK CORPORATION v. USITC -- Antidumping - substantial evidence that UK ball-bearings would skew the market.  Court of International Trade and subsequent reviewing courts should show deference to the US International Trade Commission.

Eleventh Circuit -- Miccosukee Tribe of Indians of Florida v. USA, et al.

Complaint sub-Iqbal in clarity, but can be sufficiently assessed for appellate review.

Easements outside of trial record cannot be basis for claim of improper regulatory action.

Corps cannot take tribal interests in land without Due Process.

Due Process claim dispositively marred by vagueness, ambiguity, citing of wrong Amendment.


Miccosukee Tribe of Indians of Florida v. USA, et al.

Ninth Circuit -- NICKLOS CIOLINO V. THEODORE FRANK

Under CAFA, court can't award lodestar fees for any portion of the recovery which is in the form of coupons to class members without first assessing the value of the coupons.

Dissent:  This provision of CAFA only applies to non-lodestar (percentage) fees.

NICKLOS CIOLINO V. THEODORE FRANK

Ninth Circuit -- VICTOR TAPIA MADRIGAL V. ERIC HOLDER, JR.

Immigration -- actions in foreign country should be assesed in their totality when assessing persecution.

Although being a former narcotics law enforcement officer doesn't qualify as a political belief, it does qualify as a social group.

VICTOR TAPIA MADRIGAL V. ERIC HOLDER, JR.

Ninth Circuit -- CAHTO TRIBE OF THE LAYTONVILLE V. AMY DUTSCHKE

No APA appeal possible to BIA on dis-enrollment from Indian tribe, as the tribal constitution only allows for  review of denial of membership.

CAHTO TRIBE OF THE LAYTONVILLE V. AMY DUTSCHKE

Seventh Circuit -- USA v. Ron Collins

Sufficient foundation for taped phone calls, as there was custody and control of the tapes after they arrived from the informant in Mexico.  Gaps in custody go to weight, not admissibility.

Law enforcement expert testimony at trial as to the argot on the tapes did not impermissibly go to intent.

Manager/supervisor sentencing bump upheld, as there were minions involved.

USA v.   Ron Collins

Fifth Circuit -- Reynaldo Ramirez v. Jim Wells County, Texas

Qualified immunity for policemen on false arrest claim, as arrest (mit taser) was justified due to the resisting of arrest (pulling arm out of policemen's grasp).

Excessive force claim survives, as the plaintiff apparently didn't resist after the arm-pull and before being tasered while lying on the ground, handcuffed.

Dissent: The policeman might have thought that the plaintiff was planning to resist arrest at some point in the future.

Reynaldo Ramirez v. Jim Wells County, Texas

Fifth Circuit -- Wellogix, Inc. v. BP America, Inc.

Violation of trade secret finding upheld.  Court hints that after PF case is established for the existence of the secret, burden is on the deft to prove that prior public patents were sufficient prior disclosure.

Expert was sufficiently qualified as general computer expert to testify to existence of the trade secret -- no experience needed in the specific industry.

Documents properly allowed, despite possibility that they led to improper basis for verdict.

No Due Process violation in lack of remitteur for punitive damages, as they were under the compensatory damages.

Wellogix, Inc. v. BP America, Inc.

Fourth Circuit -- Ohio Valley Environmental Coalition v. US Army Corps of Engineers

Agency took a sufficiently hard look.

Concurrence: Reversing substantive decisions on hard look review encourages agency opacity.

Ohio Valley Environmental Coalition v. US Army Corps of Engineers

Fourth Circuit -- Jerome Williams v. Jon Ozmint

S1983 -- qualified immunity to prison officials, as there is no constitutional right to inmate visitation.

Not exempt from mootness considerations as capable of repetition & evading review as further invocation of the policy can only happen from inmate misconduct.

Jerome Williams v. Jon Ozmint

Third Circuit -- Robert Lassiter v. City of Philadelphia

No error in trial court raising statute of limitations defense sua sponte in early trial management proceeding and allowing deft to amend pleading.

Robert Lassiter v. City of Philadelphia

Second Circuit -- United States v. Rodriguez

Within-guidelines sentence held substantively reasonable -- deft had argued that it should have run concurrently or partially concurrently with state term.

United States v. Rodriguez

Second Circuit -- Commonwealth of the Northern Mariana Islands v. Canadian Imperial Bank of

Brief per curiam opinion based on answers to questions certified to New York.  Relevant answer: turnover orders can't be directed to parent companies, as the relevant statute discusses possession of the asset, not control of the asset.

Commonwealth of the Northern Mariana Islands v. Canadian Imperial Bank of

Second Circuit -- Ransmeier v. UAL Corporation, et al.

Double costs sanction against attorney and client for Motion for Recusal held to be antisemitic in character.  Client sanctioned as well, given experience in litigation and close work on the brief.

Ransmeier v. UAL Corporation, et al.

Short Form: Tuesday

First Circuit:

One and Ken Valley Housing v. ME State Housing Authority  -- Federal ingredient jurisdiction; state public housing authority had sufficient authority to determine variance between assisted and unassisted housing rates; simple agency calculation is sufficient deliberative process.

Second Circuit:

Hofmann v. Sender -- Hague Convention - the intent of the family to relocate to New York was conditioned upon the entire family relocating to New York; Children have not become acclimatized to NY to a degree warranting that they should remain here.

United States of America v. City of New York -- Firefighter discrimination - In responding to a pattern-or-practice claim, employer can use any evidence that tends to rebut the inference, including intent-based evidence; Decisions on qualified immunity should center on whether the willful actions of the official impacted the right, not whether their intent was demonstrably wrong; given size of city, specific evidence needed to produce genuine issue of material fact as to the mayor's role; Concur/Dissent: To rebut disparate impact claim, deft should minimize the proof, not present nondiscriminatory rationale.

SEC v. Bankosky -- SEC ban upheld.  Traditional six-factor test may be supplemented by new 9-factor test.

Fifth Circuit:

USA v. Servando Alvarado-Casas -- No clear error in acceptance of guilty plea, flawed sentencing colloquy did not influence decision to plead guilty.

Sixth Circuit:

Uwe Romeike v. Eric Holder, Jr.  -- German harassment of home-schoolers insufficient to bar deportation.

USA v. Sherry Washington  -- White collar - Money laundering, conspiracy.

Larry Crouch v. Honeywell International, Inc. 

Seventh Circuit:

Otto May, Jr. v.   Chrysler Group LLC

Ninth Circuit:

FOX INSURANCE COMPANY, INC. V. CENTERS FOR MEDICARE AND MEDIC

Tenth Circuit:

Koessel v. Sublette County Sheriff's Dept

In re: Weathersby v. 

Eleventh Circuit:

Bruce Rich v. Secretary, Florida Department of Corrections, et al.

DC Circuit:

Blue Ridge Env. Defense League v. Nuclear Regulatory Commission -- Administrative law - agency properly declined to issue EIS, given unsupported nature of complaint; intervention in hearing process properly denied.

Short on time today.  Mea maxima culpa.  Better tomorrow.

MB

Federal Circuit -- MOTIVA, LLC v. ITC [OPINION]

Absent prospect of licensing, litigation costs spent in protecting a patent don't themselves count towards a domestic market for the licensing.

MOTIVA, LLC v. ITC 

Tenth Circuit -- Brecek & Young Advisor, Inc. v. Lloyds of London Syndicate 200

Where insurance policy unambiguously considers actions related where they have any factual elements in common, two arbitrations referencing the same parties during the same time period are interrelated, even where the substance of the first arbitration would not put the plaintiff on notice of the charges in the second.

Under New York law, the defense that a matter is not outside coverage, as the insurer has heretofore defended claims based on it, is estoppel, not waiver.

In an estoppel claim based on the insurer's conduct of a second matter, the court should address the degree of detrimental reliance incurred by the first insured, so long as any detrimental reliance was possible.  [We're stating this one a bit freely.  Entertainment purposes only.  Eds.]

Brecek & Young Advisor, Inc. v. Lloyds of London Syndicate 200

Ninth Circuit -- RAFAEL GONZALEZ V. CITY OF ANAHEIM

Fatal shooting was not an exercise of excessive force / DP deprivation, as officers were justified in the use of physical force to that point in the encounter, and the decedent was attempting to drive off with an officer in the passenger seat.

Dissent: At 3 to 6 miles per hour.

RAFAEL GONZALEZ V. CITY OF ANAHEIM

Eighth Circuit -- United States v. Frank Martin

Where deft does not allege but/for causation of guilty plea, colloquy that doesn't mention statutory minimum triggered by ACCA is not plainly erroneous if the term for that count of the indictment was to run concurrently with the penalties imposed on the other counts.

United States  v.  Frank Martin

Sixth Circuit -- Platinum Sports Ltd v. Rick Snyder

Federal District Court stipulation agreement holding state statutes facially unconsitutional and enjoining enforcement means that subsequent challenge to the statutes lacks standing -- no injury.

(State lawmaker had been collecting signatures on petition asking for enforcement of the statute.)

Platinum Sports Ltd v. Rick Snyder 

Fourth Circuit -- Ali Karimi v. Eric Holder, Jr

Immigration -- Under either categorical or modified categorical review, state second-degree assault conviction was not for a crime of violence, as the grabbing of a hand is not, in itself, a violent act.

Dissent:  AG has moved for remand, and Scotus is pondering a relevant question.  Abstain. (Courteously.)

Ali Karimi v. Eric Holder, Jr

First Circuit -- PHL Variable Insurance Company v. P. Bowie 2008 Irrevocable

Under state law, a party is not required to return all consideration received when seeking rescission of contract -- court sitting in equity has power to fashion appropriate relief.

An action for rescission is not subject to the state election of remedies rule --  it is not an action on the contract, but rather an attempt to put the parties in the place they would have been absent the contract.

PHL Variable Insurance Company v. P. Bowie 2008 Irrevocable 

First Circuit -- US v. Zavala-Marti

Court cannot impose general sentence in excess of the statutory minimums for any of the charges in the indictment based on drug amounts in excess of the amounts charged in the indictment.

In sentencing, court cannot rely on information gained from ex parte meeting with probation department without giving the deft a chance to challenge the information.

US v. Zavala-Marti 

First Circuit -- US v. Candelaria-Silva

For sentencing purposes, personal ties to the leaders of a drug conspiracy is insufficient to establish culpability for the entire amount of drugs handled by the conspiracy.

US v. Candelaria-Silva 

2,500 or so

Sometime yesterday, we passed 2,500 posts.  (It's best to mark the milepost a bit inaccurately than not to mark it at all -- at least from a traveller's point of view.)

The objective of the blog remains the same as it was at launch -- a quick summary of and link to the day's published decisions from Circuit Courts of Appeal.  We're aware that some Circuits' web links are dynamically generated, and that they might not last more than a day or so, but if you click the subject tabs above, you can get a rough sampling of recent decisions on a given subject.  

As always, entertainment purposes only -- it is most emphatically not the purpose of this blog to say what the law is.

And we thank you for your support.

-MB

Federal Circuit -- CLS BANK INTERNATIONAL v. ALICE CORPORATION [OPINION]

CLS BANK INTERNATIONAL v. ALICE CORPORATION [OPINION]

Federal Circuit -- SANOFI-AVENTIS DEUTSCHLAND v. GENENTECH, INC. [OPINION]

SANOFI-AVENTIS DEUTSCHLAND v. GENENTECH, INC. [OPINION]

DC Circuit -- So. California Edison Company v. FERC

So. California Edison Company v. FERC

Ninth Circuit -- PERRY MCCULLOUGH V. CONRAD GRABER

Habeas challenge arguing that petitioner should have been included in presently defunct pilot alternative sentence program is properly dismissed as moot where court can deny eligibility on the merits using plain language of statute.

PERRY MCCULLOUGH V. CONRAD GRABER

Eighth Circuit -- Ron Meyers v. Tom Roy

State offender registration statute cannot be challenged under S1983, as the deft had the opportunity to litigate the underlying claim on direct appeal.

 Ron Meyers  v.  Tom Roy

Eighth Circuit -- Jane Doe I v. Jeremiah J. Nixon

Winning a preliminary injunction does not suffice to get fees under S1988 even where subsequent adverse holdings were the result of abstention.

Voluntary cessation of threat of prosecution resulting in a finding that the claim was moot is not a victory that would shift costs under S1988.

District court correctly held that fears of future prosecution were speculative.

Jane Doe I  v.  Jeremiah J. Nixon

Seventh Circuit -- Royce Brown v. John F. Caraway

Habeas challenge to fundamentally defective sentencing enhancement can be made by using the "actual innocence" provision of the Habeas statute.  Faulty 'career offender' bump qualifies.

Circuit split flagged.

Recklessness' inclusion in arson statute makes it ineligible for career offender enhancement.  (Both enumerated and resuidual.)

Futility of making the collateral challenge under the present theory during initial Habeas review excuses waiver.

Royce Brown v.   John F. Caraway

Seventh Circuit -- USA v. Michael Roux

Judge appropriately limited evidence as to prior bad acts to motive and identity.

Uncharged nature of prior bad acts not dispositive.

Arrest photos admissible for purposes of identifying deft in crime photos.

Prosc reference to jail telephone calls not grounds for mistrial.

Cross of deft did not implicate right to remain silent.

USA v.   Michael Roux

Fourth Circuit -- L.S. v. Pamela Shipman

Where the Secretary has decided to comply with an injunction restoring Medicaid services, state agency has no standing to challenge the injunction.

Litigation decisions can constitute final agency action for purposes of review when tantamount to a specific policy choice.

Would be an advisory opinion anyway.

L.S. v. Pamela Shipman

Fourth Circuit -- Timothy Branigan v. Bryan Davis

As they are unsecured interests, value-less liens can be stripped off in Chapter 20 proceedings even absent possibility of final discharge.  Courts must first value the interest.

Dissent: Liens with no present value therefore worse off than unsecured interests.

Timothy Branigan v. Bryan Davis

Sixth Circuit -- Frances Spurlock v. David Fox

School bussing -- Even where policymakers considered racial data, classification of students by location of home does not amount to classification by race.

Where the plan has indicia of legitimate intent, there is no segregative intent unless there is an overwhelming or suspicious concentration that leaves no room for inference to the contrary.

School under-utilization suffices for rational basis.

Frances Spurlock v. David Fox 

Sixth Circuit -- USA v. Tyree Washington

Difference in skin tone did not make photo lineup impermissibly suggestive.

Sufficient evidence for intent element of carjacking statute where touching victim and brandishing weapon are both established.  Where one not established, finder of fact can find general threat suffices.

Lenity counsels that the ordering of convictions in a simultaneous verdict should be arranged to favor the defendant when calculating total length of sentence.


 USA v. Tyree Washington 

Sixth Circuit -- Lee Gardner v. Heartland Industrial Partners

ERISA does not preempt state-law tortious interference claim.

Lee Gardner v. Heartland Industrial Partners 

Sixth Circuit -- Donnetta Smith v. Stoneburner

Ambiguity as to what the suspect said at the door of the house before police entered is the epitome of a triable fact.

Where narratives are disparate, it's not therefore a close call that should be granted S1983 immunity under lenity, but rather an issue for the trial.

No immunity for warrantless arrest made by reaching across the threshold of the door.

Arrest quite possibly involved excessive force.

Bad faith is a triable question.

 Donnetta Smith v. Stoneburner 

Sixth Circuit -- USA v. Kenneth Kennedy

Mail and wire fraud statutes cover both fraudulent loans and fraudulent investments.

Subjective good faith in scheme's fraudulent premise does not exculpate.

Deft had no right under FRCrimP to know vote-count/holdout revealed in jury note.

No error in denial of juror interview.

For purposes of sentencing enhancements, specific knowledge of funds acquired by scheme is not necessary.  Merely that they were reasonably forseeable outcomes of the scheme.

Sophistication & Obstruction sentencing bumps upheld.

USA v. Kenneth Kennedy 

Second Circuit -- RLI Insurance Co. v. JDJ Marine, Inc.

No extension of time to file brief absent (new) extraordinary circumstances where parties selected return date for answer, and prior extension was given, even though parties consented to the extension.

No reinstatement of case where filing deadline has passed even though court denied motion for extension of time to file after the deadline to file.

(Circuit-specific rules, not so much FRCP.)

RLI Insurance Co. v. JDJ Marine, Inc.

Short Form - Rest of Thursday

Short on time today, so...

Sixth:

Ivy Bailey v. Edward Callaghan  -- No First Amendment / Equal protection (Rational Basis) claim against school district's unwillingness to withhold union dues.  Dissent.

Les Kepley v. Gerald Lanz -- Since shareholders of closely held corporation had to sell at a loss, they had distinct harms as opposed to harms derived from harms to the corporation.  Decision under Delaware law, as Kentucky courts would likely apply it.

Seventh:

Qiu Chen v.   Eric Holder, Jr.  -- Posner - immigration/forced sterilization.

Eighth: (From site)

121555P.pdf   05/09/2013  Thomas P. Cawley  v.  Frank Celeste
   U.S. Court of Appeals Case No:  12-1555
   Appeal from the Bankruptcy Appellate Panel for the Eighth Circuit    
   [PUBLISHED] [Colloton, Author, with Riley, Chief Judge, and
   Gruender, Circuit Judge]
   Civil case - Bankruptcy. All of the elements of North Dakota's res
   judicata standard were met in this case, and the state court judgment was
   entitled to preclusive effect under the full faith and credit statute - 28
   U.S.C. Sec. 1738.

122334P.pdf   05/09/2013  Affordable Communities of MO  v.  Federal Nat'l. Mortgage Assoc.
   U.S. Court of Appeals Case No:  12-2334
   U.S. District Court for the Eastern District of Missouri - St. Louis    
   [PUBLISHED] [Murphy, Author, with Smith and Gruender, Circuit Judges]
   Civil case - Contracts. The district court did not err in finding plaintiff
   had failed to plead facts establishing that defendant EFA was Fannie
   Mae's agent in connection with a loan plaintiff obtained; viewing the
   contract language in the context of the entire written document and
   considering the likely intent of the parties, the court concludes the
   agreement was ambiguous as to whether the phrase "condemnation sale"
   included a sale in lieu of condemnation, and the district court erred in
   dismissing plaintiff's claim that Fannie Mae breached the contract;
   district court did not err in dismissing plaintiff's breach of implied
   covenant of good faith and fair dealing claim or its claim for unjust
   enrichment.

Ninth:

USA V. IRVIN SANDOVAL-ORELLANA  -- California s-xual penetration statute is a crime of violence for immigration purposes.

RIGHTHAVEN LLC V. WAYNE HOEHN -- Copyright/ Standing - assignment of right to sue without assignment of the underlying rights does not give standing.

MARTIK SARGSYAN V. ERIC H. HOLDER JR. -- Cryptic denial of fees.

Federal:

GENERAL DYNAMICS CORPORATION v. LEON PANETTA, SECRETARY OF DEF [OPINION]

Fifth Circuit -- Mary Ainsworth v. Cargotec USA, Incorporated

Reasonable expectation of substantial sales in a jurisdiction suffices for personal jurisdiction under "stream of commerce" theory.

Mary Ainsworth v. Cargotec USA, Incorporated

Fourth Circuit -- US v. Nicole Grant

Anticipated prospective tax refunds are not sufficient basis for revision of restitution order where the circumstances were in evidence at sentencing and no new findings are made as to the impact on the deft's ability to pay.

US v. Nicole Grant 

Third Circuit -- National Amusements Inc v. Borough of Palmyra

No pre-closing notification was needed under procedural Due Process to close the market, given the discovery of unexploded munitions.

Closing market did not require compensation under Takings Clause, as it was a core public safety function.

Even given a low probability of harm from the explosives, the standard of review under state statute's arbitrary and capricious analysis is whether a reasonable finder of fact could conclude that closure was necessary.

Although the market eventually won right to reopen, since S1983 claims were denied on the merits, no award of interim fees.

National Amusements Inc v. Borough of Palmyra

Second Circuit -- United States v. Steele

When resentencing (here for crack/cocaine), court should not apply any downward departures applied in previous sentencing -- with the exception of the substantial assistance downward departure.

United States v. Steele

Second Circuit -- United States v. Figueroa

Where prisoner stipulates to conduct sanctions incurred during time of incarceration, District Court can properly deny crack/cocaine resentencing for otherwise eligible deft.

United States v. Figueroa

Eighth Circuit -- Michele Hathorn v. Corwin Petty

Bankruptcy -- filing of challenge was timely.

Michele Hathorn  v.  Corwin Petty

Eighth Circuit -- United States v. Alireza Bakhtiari

Sentencing -- Within-guidelines sentence affirmed.

United States  v.  Alireza Bakhtiari

Eighth Circuit -- United States v. John Arrocha

Decision to tow vehicle was permissible, and evidence was therefore admissible as fruits of inventory search.

United States  v.  John Arrocha

Eighth Circuit -- Miles LaCross v. City of Duluth

S1983 suit after tasering of suspect - at the time of offense, officer could reasonably have believed that a tasering that inflicted minimal injury (as distinct from not employing excessive force) was not unconstitutional.

Taser not sui generis for excessive force claims.  Same analysis as other weapons.

Miles LaCross  v.  City of Duluth

Eighth Circuit -- Primitivo Alavez-Hernandez v. Eric H. Holder, Jr.

Immigration -- Mexico - past incidents in village against evangelicals do not justify withholding of removal, as relocation to city is possible.

Primitivo Alavez-Hernandez  v.  Eric H. Holder, Jr.

Eighth Circuit -- Luisa Chavez-Lavagnino v. Motivation Education Training

Complete diversity must exist at the time of removal to federal court -- subsequent move by party doesn't cure.

 Luisa Chavez-Lavagnino  v.  Motivation Education Training

Federal Circuit -- USHIP INTELLECTUAL PROPERTIES v. US

Patent -- validation of parcel receipt.

USHIP INTELLECTUAL PROPERTIES v. US 

Federal Circuit -- DECKERS OUTDOOR CORPORATION v. US

As a matter of law, slip-on shoes can be either shoes or boots.  Battle of dictionary definitions.

Dissent: Nope.  Legislative intent.

DECKERS OUTDOOR CORPORATION v. US 

Eleventh Circuit -- Franklin Owusu-Ansah v. The Coca-Cola Company

To have standing under the ADA's provision barring examination or inquiry into medical condition, plaintiff need not demonstrate that they have a disability protected under the ADA.

Employer's inquiry in this case was reasonable, given employee's statements.

Franklin Owusu-Ansah v. The Coca-Cola Company

Ninth Circuit -- THOMAS GOLDSTEIN V. CITY OF LONG BEACH

For purposes of S1983, California District Attorneys act as local policymakers (not state agents) when developing policies related to the use of jailhouse informants.

Concurrence -- California Supreme Court holding suggesting the contrary is imprecise in defining policy-making role of the DA.

THOMAS GOLDSTEIN V. CITY OF LONG BEACH

Seventh Circuit -- USA v. Charles Goodwin

Sentencing --

Offender registration law not an unconstitutional delegation of legislative authority.

Not registering is not a s-x offense.

Supervised release conditions reversed.

USA v.   Charles Goodwin

Seventh Circuit -- USA v. Tyrone Reynolds

Sentencing --

Leader of kidnapping troupe appropriately received leadership sentencing enhancement, but ransom sentence enhancement reversed, as there was no ransom demand communicated to a third party.

USA v.   Tyrone Reynolds

Seventh Circuit -- Terri Basden v. Professional Transportation

Plaintiff did not have a claim for discrimination under the ADA after only a preliminary diagnosis of disabling disease.

Plaintiff was ineligible for FMLA claim as she had not been employed for one year.

Terri Basden v.   Professional Transportation

Third Circuit -- USA v. Diego Duque-Hernandez

No plain error in modified-categorical approach to assessing drug trafficking enhancement based on a drug distribution prior.

USA v. Diego Duque-Hernandez

Third Circuit -- ACS Recovery Services, Inc., et al v. Larry Griffi

ERISA --

Claim for relief under the statute suffices for jurisdiction irrespective of final decision on merits.

Constructive trust can be imposed as equitable relief against Participant's trust which received commingled funds from a tort recovery, since the Administrator had a right to recover earlier payments.

Concur/dissent -- recovery from individuals, not the trust.

Concur/dissent -- Commingled funds in special needs trust are unreachable.

ACS Recovery Services, Inc., et al v. Larry Griffi

Second Circuit -- Weber v. SEFCU

Creditor must return repossessed articles to trustee or debtor-in-possession upon learning of the filing of Chapter 13 petition -- no affirmative suit by trustee or debtor-in-possession is required.

Minor circuit split flagged.

Belief that additional security was needed before release of the property does not excuse the retention.

Intention to retain the property made this a willful act, subject to penalties and costs.

Weber v. SEFCU

Second Circuit -- Edelhertz v. City of Middletown

Short per curiam -- zoning change with minimal notification didn't offend Due Process, as it was prospective in nature and generally applicable.

Edelhertz v. City of Middletown

First Circuit -- Nikitine v. Wilmington Trust Company

Denial of leave to amend without showing of cause one year after filing of suit upheld.

Nikitine v. Wilmington Trust Company 

First Circuit -- Bacardi International Limited v. V. Suarez & Co., Inc.

Parties to an arbitration are not, per se, required parties that must be joined for the judicial confirmation of the arbitrator's decision.  Decided without remand.

Federal action stayed due to parallel suit in state courts.

Bacardi International Limited v. V. Suarez & Co., Inc. 

First Circuit -- US v. LaPlante

Fraudulent misrepresentation theory of mail fraud does not add an element of misrepresentation to the common-law elements of mail fraud.

No need for unanimity jury  instruction as to which statement in particular was fraudulent.

No ineffective assistance claim based on deft's introduction of prior bad acts, as other evidence was overwhelming.

US v. LaPlante 

The Rest of Today's Decisions

Ninth:

USA V. VICTOR SIVILLA

Tenth:

FTC v. Chapman
Squires v. Breckenridge Outdoor Educ Cntr

Eleventh:

John D. Dupree v. Warden, Attorney General, State of Alabama

DC:

USA v. Larry Brinson-Scott
Judith Barnett v. PA Consulting Group, Inc.
Natl Assoc. of Manufacturers v. NLRB

Federal Circuit:

BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC 

- MB

Eighth Circuit -- Andrea Olsen v. Capital Region Medical Center

Discrimination --

No age discrimination / ADA claim for plaintiff subject to seizures, as they are not qualified to do the job when subject to seizures.

Andrea Olsen  v.  Capital Region Medical Center

Seventh Circuit -- USA v. Jeremiah Dorai Jacob

Appeal dismissed, as defendant is apparently now a fugitive.

USA v.   Jeremiah Dorai Jacob

Seventh Circuit -- Jose J. Loera, Jr. v. USA

Dismissal of indictment was insufficiently final judgment on the merits to allow for automatic exclusion of evidence barred in the first proceeding under exclusionary rule.

As there was no prejudice or invidious intent behind the delay, no basis for ineffective assistance claim on Speedy Trial Act violation.

Jose J. Loera, Jr. v.   USA

Sixth Circuit -- USA v. Stephen Graham-Wright

Court can use results of pretrial psychiatric examination requested by and available only to the defense (and court) in sentencing.

Dissent: Fifth Amendment.

USA v. Stephen Graham-Wright 

Fifth Circuit -- USA v. Wen Liu

Harmless error to exclude expert testimony of expert with limited personal knowledge of the facts.  Competency determines admissibility, familiarity with case determines weight given.

USA v. Wen Liu

Third Circuit -- USA v. Albert Savani

Sentencing.

Deft was sentenced to under mandatory minimums due to cooperation.  Guidelines ranges for the relevant offenses subsequently were lowered.  Deft can move for review of sentence under statute permitting such review where the "applicable guidelines range" has changed, as the mandatory minimum is not the "guidelines" range.

Concurrence: No need to invoke lenity.

Circuit split flagged.

USA v. Albert Savani

Second Circuit -- United States v. Chu

Sentencing --

Acceptance of responsibility sentencing reduction may be denied to an otherwise qualifying defendant who attempts a similar crime in the interval.  (Smuggling drugs into detention facility.)

Substantively reasonable, correct calculation of amount of drugs.

United States v. Chu