One Day More

Instead of today's planned post listing Tuesday's & Wednesday's opinions, we'll go for the trifecta tomorrow.

MB

Rest of Monday

Third Circuit:

USA v. Albert Savani -- Crack/cocaine resentencing - where original sentence was below mandatory minimums due to substantial assistance departure, no bar to resentencing.

Fourth Circuit:

US v. Ever Medina   -- Diversionary disposition is a valid predicate.
US v. Frank Chatmon -- Medication for competency.

Sixth Circuit:

Peabody Coal Company v. Dir., OWCP   -- Statute of limitations on health claim.  
Bryan Pazdzierz v. First Am. Title Ins. 

Seventh Circuit:

USA v.   Javier Munoz
Jacqueline Johnson v.   Chicago Board of Education

Eighth Circuit (From site):

122274P.pdf  06/10/2013  United States  v.  Shawn Mackey
   U.S. Court of Appeals Case No:   12-2274
   U.S. District Court for the District of South Dakota - Rapid City   
   [PUBLISHED] [Colloton, Author, with Bright and Loken, Circuit Judges]
   Criminal case - Criminal law. The district court did not err in applying
   the criteria set forth in Sell v. United States, 539 U.S. 166 (2003) when it
   granted the government's motion to medicate defendant involuntarily to
   restore his competency to stand trial.

126070P.pdf  06/10/2013  Felicia McIntosh  v.  John LaBarge, Jr.
   U.S. Court of Appeals Case No:   12-6070
   U.S. Bankruptcy Court for the Eastern District of Missouri - St. Louis   
   [PUBLISHED] [Saladino, Author, with Kressel and Shodeen,
   Bankruptcy Judges]
   Bankruptcy Appellate Panel. Order confirming debtor's Chapter 13
   plan over her objection is affirmed; where debtor concedes that one or
   more of her proposed additions to the plan were appropriately rejected,
   the concession is fatal to her appeal as a court must accept or reject a plan
   as a whole; contrary to debtor's assertions, the model plan form used in
   the Eastern District of Missouri does not infringe upon a debtor's
   substantive rights under the Code.

Ninth Circuit:

CHRISTOPHER JONES V. E. MCDANIEL
ELISNED CORRO-BARRAGAN V. ERIC H. HOLDER JR.
USA V. JOSE MUNIZ-JAQUEZ

Tenth Circuit:

United States v. Zhou

Eleventh Circuit:

Maria Teresa Davila v. Maria Claudia Menendez, et al

Federal Circuit:

ORGANIC SEED GROWERS AND TRADE v. MONSANTO COMPANY [OPINION]


Tuesday & Wednesday's opinions will be listed on Wednesday afternoon.  


(If the crick don't rise.)


-MB

Second Circuit -- In re Quebecor World (USA), Inc.

To be exempt from avoidance in bankruptcy, a securities-related payment need be either to a financial institution or for the benefit of a financial institution.

In re Quebecor World (USA), Inc.

First Circuit -- Goldstein v. Galvin

An official who litigates a claim in an official capacity is not precluded from relitigating the claim in a personal capacity.

Administrator does not automatically receive absolute immunity when performing adjudicative function.  Elected office no bar to absolute immunity.

Inclusion of plaintiff's name on press release not a basis for a 1A retaliation claim.

Goldstein v. Galvin 

TK

Full rundown of the week posted tomorrow. Must run. 

MB

[Update: Nope - moving on, starting with Monday's decisions.]

Fourth Circuit -- American Petroleum Institute v. Roy Cooper, III

Preemption --

Ability of regulated parties to "opt out" of part of statute does not preclude preemption analysis.

As government encourages ethanol blending, it isn't adulteration and is therefore not preempted by anti-adulteration statute.

Lanham Act preemption a matter for trial.

American Petroleum Institute v. Roy Cooper, III

Third Circuit -- Brittany Morrow v. Barry Balaski

No S1983 remedy for racial harassment by fellow students, as there is an insufficient special relationship / no state-created danger.

Concurrence: Stare decisis / en banc threshold not reached.  ("Sure error")

Concur/Dissent: Special relationship created.

Dissent: Special relationship & state-created danger.

Dissent: Duty of care.

Brittany Morrow v. Barry Balaski

Super-Short Form -- Monday & Tuesday

Just the list.  - MB

First Circuit:

Weiss v. DHL Express, Inc. 
US v. Mahoney 

Second Circuit:

VRG Linhas Aereas S.A. v. MatlinPatterson Global Opportunities Partners II
Ali v. Fed. Ins. Co.
Vincent v. Yelich; Earley v. Annucci

Third Circuit:

Interfaith Comm Orgn v. Honeywell Intl Inc

Fourth Circuit:

Westmoreland Coal Company v. Jarrell Cochran
SG Homes Associates, LP v. Michael Marinucci

Fifth Circuit:

Asbert Joseph v. Eric Holder, Jr.

Seventh Circuit:

USA v.   Javier Zamudio
USA v.   Ricardo Garcia-Segura
USA v.   Jeffrey Weaver
Shu Han Liu v.   Eric H. Holder, Jr.
Anil Goyal v.   Gas Technology Institute

Eighth Circuit (from site):

136012P.pdf   06/04/2013  Laura Mehlhaff  v.  Forrest Allred
  U.S. Court of Appeals Case No:  13-6012
  U.S. Bankruptcy Court for the District of South Dakota - Pierre    
  [PUBLISHED] [Federman, Author, with Schermer and Shodeen,
  Bankruptcy Judges]
  Bankruptcy Appellate Panel. Bankruptcy court did not err in
  determining debtor's prepetition claim against her former spouse for
  alimony was property of the bankruptcy estate pursuant to 11 U.S.C. Sec.
  541(a)(1), and the order directing her to turn that claim over to the trustee
  is affirmed.

121383P.pdf   06/03/2013  James Bradshaw  v.  FFE Transportation Services, I
  U.S. Court of Appeals Case No:  12-1383
                         and No:  12-2161
  U.S. District Court for the Western District of Arkansas - Hot Springs    
  [PUBLISHED] [Riley, Author, with Wollman and Gruender, Circuit Judges]
  Civil case - Torts. District court did not abuse its discretion by deciding
  defendants had waived their objections to plaintiff's medical witnesses by
  failing to make these objections at the time set in the district court's
  discovery scheduling order; nor did the court err in declining to reopen
  discovery after declaring a mistrial in the first trial; no error, under the
  circumstances of the case, in allowing a doctor to use undisclosed
  anatomical drawings at the second trial as the court properly limited
  testimony on the drawings and gave the jury an instruction that the
  drawings did not amount to substantive evidence; defendants did not
  sufficiently articulate a Rule 26(a)(2)(B)(iii) objection to the drawings.
 
122450P.pdf   06/03/2013  United States  v.  Delmarcus Johnson
  U.S. Court of Appeals Case No:  12-2450
  U.S. District Court for the District of Minnesota - St. Paul    
  [PUBLISHED] [Smith, Author, with Melloy and Benton, Circuit Judges]
  Criminal case - Criminal case. There was a factual basis for defendant's
  guilty plea and no Rule 11(b)(3) error occurred; district court did not
  abuse its discretion by denying defendant's motion to withdraw his plea.

Ninth Circuit:

STEVE HARRIS V. AMGEN, INC.	10-56014	Los Angeles District Court	Civil		06/04/2013
RONALD DEERE V. VINCE CULLEN	10-99013	Los Angeles District Court	Prisoner Death Penalty		06/03/2013
HIGHER TASTE V. CITY OF TACOMA	11-36046	Tacoma District Court	Civil		06/03/2013
USA V. KELECHI AJOKU	11-50230	Los Angeles District Court	Criminal		06/03/2013
USA V. PEDRO CABRERA-GUTIERREZ	12-30233	Spokane District Court	Criminal		06/03/2013
USA V. SHIRLEY MORGAN	12-10056	Tucson District Court	Criminal		06/03/2013

Tenth Circuit:

 11-9524  Lockheed Martin v. DOL
 11-2055  Pahls v. Thomas

Eleventh Circuit:

USA v. Lonnie Whatley

DC Circuit:

10-3010USA v. Ian Watson

12-7064Louis Cannon v. DC

Federal Circuit:

REGENTS OF UNIV. OF MINNESOTA v. AGA MEDICAL CORPORATION [OPINION]

Super-Short Form: Rest of Thursday, all of Friday

Apparently, some Circuits are clearing their desks today, and MB has things to do and promises to keep, so, for the first time ever (if memory serves), just the list.

First Circuit:

In Re: Request from the United v. 
Stor/Gard, Inc. v. Strathmore Ins. Co. 
Heineman-Guta v. Guidant Corporation 
US v. Torres-Pagan 

Second Circuit:

Liberty Synergistics Inc. v. Microflo Ltd.
Terra Firma Investments v. Citigroup
State Employees Bargaining Agent Coalition v. Rowland
United States v. Defreitas
Kelly-Brown, et al. v. Winfrey, et al.

Third Circuit:

In re: Asbestos Prod Liability v.
MD Mall Associates v. CSX Trans Inc

Fourth Circuit:

The North Carolina State Board v. FTC
Stephanie Crockett v. Mission Hospital, Inc. 

Fifth Circuit:

EEOC v. Houston Funding II, Limited, et al
Rachel Juino v. Livingston Prsh Fire District
Reynaldo Ramirez v. Jim Wells County, Texas

Sixth Circuit:

Sharon Hall v. Lynne Callahan 
Donna Manwaring v. Erick Martinez 
USA v. Carolyn Moore 
USA v. Daryl Foster 
Burenjargal Dugarsuren v. Eric Holder, Jr. 
Omar Ide Abdou v. Eric Holder, Jr. 

Seventh Circuit:

Valentin Bitsin v.   Eric Holder, Jr.
Sams Hotel Group, LLC v.   Environs, Inc.

Eighth Circuit:

122514P.pdf  05/31/2013  Moussa Diallo  v.  Eric H. Holder, Jr.
   U.S. Court of Appeals Case No:   12-2514
   Petition for Review of an Order of the Board of Immigration Appeals   
   [PUBLISHED] [Shepherd, Author, with Riley, Chief Judge, and Loken,
   Circuit Judge]
   Petition for Review - Immigration. The court lacks jurisdiction to
   review discretionary denials of adjustment of status, and the petition
   for review is denied.

Ninth Circuit:

ASIL MASHIRI V. DEPARTMENT OF EDUCATION

JESSE ENGEBRETSON V. MIKE MAHONEY

CLASSIC CONCEPTS V. LINEN SOURCE, INC.

RAMON MACIAS-CARREON V. ERIC HOLDER, JR.

USA V. JOHN MALONEY

RONALD FOURNIER V. KATHLEEN SEBELIUS

TIMOTHY GANTT V. CITY OF LOS ANGELES

(There might have been something published in the Tenth yesterday.)

Eleventh Circuit:

William Reaves v. Secretary, Florida Department of Corrections

DC Circuit:

Natl Shooting Sports Found. v. B. Todd Jones

Wendy Wagner v. Federal Election Commission

Summaries TK.  Outside chance.

- MB

Wednesday's Published Opinions

[Plus a whigging of opinions from today, where available.  "Whigging" being the diminutive collective noun that we just made up.]

First Circuit:

Cruz-Vazquez v. Mennonite General Hospital,  -- Release of patient with alarming symptoms, even on advice of patient's treating physician, states a claim under the federal hospital emergency treatment statute.

Second Circuit:

United States v. Rosen -- White Collar - Payments to public officials for assistance "as  opportuities arise" counts as bribery under the statute, not overly vague.  Sufficient evidence.

Hooks v. Forman, Holt, Eliades & Ravin, LLC -- Consumer dispute of debt need not be written under FDCPA.  Prospective-only request denied.

United States v. Stith & Brantley (5/30) -- Sentencing -- Substantial Assistance is the only downward departure that can be considered when calculating amended Guidelines range.

Third Circuit:

Libertarian Party of Virginia v. Charles Judd -- Election Law - Residency requirement for petition witnesses is sufficient injury for standing; Petition collecter's game knee didn't TKO standing; Requirement does not pass strict scrutiny.

US v. Arturo Castellanos -- 4A - Owner of car that was being shipped to him (under alias) had no reasonable expectation of privacy in the car's gas tank.  Dissent: Did so.

US v. Jermar Jones -- Other party's statements in taped prison phone call were not testimonial in nature, and therefore do not trigger the Confrontation Clause; Seating of juror who stated doubts about illegal immigration didn't make it an unfair trial; Sentencing.

Fifth Circuit:

Philip Lively -- Bankruptcy
Ryan Crostley, et al v. Lamar County Texas, et al -- S1983 False arrest/imprisonment claims.

Sixth Circuit:

Maxie Higgason v. Vanderbilt Mortgage and Finance  -- One paragraph per curiam, no law.
USA v. George Dodson, III  -- Guns / mistake of law.
USA v. Christopher Osteen -- Sentence enhancement reasonable, given injury to police.
Rasins Landscape & Associates v. Michigan Department of Transportation -- Whether contractor can sue to prevent govt from contracting further with subcontractors who haven't paid the plaintiff.  Nope.  Redressibility.  (5/30)
USA v. Francis Sharrak -- Tax / sentencing. (5/30)

Seventh Circuit:

CFTC v.   Worth Bullion Group Inc. -- Bullion hawkers are not "financial institutions" under the statute, and therefore cannot redact customer names from subpoenaed records.

USA v.   Victoria Harris -- White colar sentencing - married couple is two people for purposes of tallying victims of fraud.

Eduardo Navejar v.   Akinola Iyiola -- Test for whether prisoner should receive counsel for claims is whether the prisoner is capable of litigating the claim, not an objective assessment of the claim's difficulty.

USA v.   Francis Schmitz -- Sentencing - "Factor creep," scope of fraud.

USA v.   Franchie Farmer -- Crim - Sufficient evidence; When evidence of premature decision by a juror is adduced, the court cannot inquire into how the decision affected deliberations - rather, the court should objectively assess how damaging the premature decision would likely have been.

USA v.  Daniel Delaney  (Concurrence) -- (Posner) - Malice aforethought / heat of passion 

Eighth Circuit (From site):

121332P.pdf  05/29/2013  United States  v.  Ronnie Benson
   U.S. Court of Appeals Case No:   12-1332
   U.S. District Court for the Eastern District of Arkansas - Little Rock   
   [PUBLISHED] [Colloton, Author, with Chief Judge Riley and Smith,
   Circuit Judges]
   Criminal Case - crack cocaine reduction. Because defendant failed to
   present evidence to support a finding that he was accountable for fewer
   than 3,000 kilograms of marijuana equivalent, the district court did not
   err in denying reduction of his sentenced under the amended guidelines. 
   Judge Smith dissents.
  
122292P.pdf  05/29/2013  Spirit Lake Tribe of Indians  v.  The NCAA
   U.S. Court of Appeals Case No:   12-2292
   U.S. District Court for the District of North Dakota - Fargo   
   [PUBLISHED] [Benton, Author, with Smith and Melloy, Circuit Judges]
   Civil Case - civil rights. Elders of Standing Rock tribe sought to enforce
   settlement agreement between the NCAA and the University of North
   Dakota and enjoin retirement of use of the Fighting Sioux name and sued
   under 42 U.S.C. sec. 1981. District court's grant of summary judgment
   to NCAA is affirmed, as elders committee did not show NCAA failed to
   show discriminatory intent, committee was not entitled to due process as
   a nonmember, and NCAA did not violate the laws of the land or it own
   constitution and bylaws.

Ninth Circuit:

USA V. DAYVEN JOSEPH -- Drug statute does not require that sentences be served consecutively.

JEFFREY BIGGS V. SECRETARY OF CALIFORNIA -- Habeas - whether change to parole procedures triggered Ex Post Facto review.


Tenth Circuit:

United States v. Tingey -- Trusts.


Howard v. Zimmer, Inc. -- Brief reversal after answer on malpractice question certified to state.


Eleventh Circuit:

American Federation of State, County and Municipal Employees Council 79, et al v. Rick Scott -- Suspicion-less drug testing of state employees.

USA v. Alland Philidor -- White collar sentencing.



Next update tomorrow afternoon/evening. Apologies for all the short-form.

-MB

No posts today

Today's opinions will be posted tomorrow morning. 

-MB

Rest of Tuesday

Seventh:

USA v.   William Martin 
Daryise Earl v.   Racine County Jail

Eighth (From site, with edits):

121583P.pdf  05/28/2013  David Meyer  v.  U.S. Bank National Assoc.
   U.S. Court of Appeals Case No:   12-1583
   U.S. District Court for the District of Nebraska - Omaha   
   [PUBLISHED] [Colloton, Author, with Loken and Bright, Circuit Judges]
   Civil Case - diversity. District court's grant of summary judgment to
   bank is affirmed, as all claims against the bank were released in
   forbearance agreements and agreements were not void because of any
   duress caused by alleged forgery. The alleged forgery was immaterial to
   the claim.
  
121956P.pdf  05/28/2013  Robert Kramer, III  v.  National Credit Systems
   U.S. Court of Appeals Case No:   12-1956
   U.S. District Court for the Southern District of Iowa - Davenport   
   [PUBLISHED] [Colloton, Author, with Loken and Melloy, Circuit Judges]
   Civil Case - Computer Fraud and Abuse Act. After a bench trial,
   judgment in favor of National Credit Systems on claim it conducted a
   spam e-mail campaign that harmed Kramer's business is affirmed. 
   District court findings that NCS principals testimony were more credible
   are not clearly erroneous. Documentary evidence did not contradict
   testimony. District court did not err in concluding that NCS salesmen
   were independent contractors, not employees, as sales force was not
   obliged to follow manual or accept direction from principals and weight
   of evidence establishes an independent contractor arrangement.
  
122175P.pdf  05/28/2013  United States  v.  Rodney Goodwin
   U.S. Court of Appeals Case No:   12-2175
   U.S. District Court for the District of North Dakota - Bismarck   
   [PUBLISHED] [Benton, Author, with Smith and Melloy, Circuit Judges]
   Criminal Case - conviction. District court properly denied Rule 29
   motion for judgment of acquittal, as sufficient evidence was presented to
   support jury verdict for attempting transportation of a minor with intent to
   engage in s activity under 18 USC 2423(a), evidence supported that
   defendant acted with intent to engage in s activity for which any
   person could be charged with a criminal offense, and defendant could
   have been charged under North Dakota law. Although insufficient
   evidence was presented to support an intent to create pr0n,
   alternative jury instruction supports conviction. District court did not
   plainly err in submitting entire statute, even though only part applied to
   defendant.
 
123152P.pdf  05/28/2013  United States  v.  Robin Brooks, Jr.
   U.S. Court of Appeals Case No:   12-3152
   U.S. District Court for the Southern District of Iowa - Des Moines   
   [PUBLISHED] [Gruender, Author, with Loken, Circuit Judge, and
   Phillips, District Judge]
   Criminal Case - conviction. Need not determine whether cell phone is a
   container for purposes of automobile exception to warrantless search
   because subsequent warrant was an independent source for the evidence
   and independent source requirements were met. District court did not
   abuse its discretion in admitting evidence of cell phone photos and video
   because evidence was intrinsic to charged crimes of bank robbery and
   firearm possession offenses. Admission of evidence from GPS tracking
   device was not an abuse of discretion; courts may take judicial notice of
   the accuracy and reliability to GPS technology, proper foundation was
   laid, business records exception to hearsay rules applied and
   confrontation clause did not apply as the GPS reports were non-
   testimonial. Denial of motion for mistrial based on violation of the
   sequestration order was not an abuse of discretion. Judgment of acquittal
   was properly denied, as there was more than sufficient evidence to
   support bank robbery gun possession convictions. 
 
Ninth:
 
USA V. VENANCIO ROJAS-PEDROZA 
JESUS LEYVA V. MEDLIN INDUSTRIES INC 
MILO STANLEY V. CHARLES RYAN 
 
DC:

11-1314 -- Tenneco, Inc. v. NLRB

11-5264 -- Brian Davis v. US Sentencing Commission

12-1129 -- Assoc. of Battery Recyclers v. EPA

12-1337 -- Comcast Cable Communications, v. FCC

12-1339 -- Morpho Detection, Inc. v. TSA

12-5095 -- Sierra Club v. Department of Agriculture

 
 
Apologies for the list at the end.  "Either rain, or snow, or heat, or 
gloom of night. . ."
 
MB

Sixth Circuit -- USA v. Gabrion

Commission of crime in non-death-penalty state is inadmissible as mitigation.

No error in voir dire.

No Apprendi error

No basis for evaluation of present competency.

No abuse of discretion in excluding deft from part of penalty phase after he punched lawyer.

No error in expert scope.

C in J, Dissent.

 USA v. Gabrion

Sixth Circuit -- Vanderbilt Mortgage and Fin. v. James Westenhoefer

Line not perfected, despite notation on title, as state law requires filing in the purchaser's county of residence.

Vanderbilt Mortgage and Fin. v. James Westenhoefer

Fifth Circuit -- Glory Truong v. Bank of America, N.A., et al

Claim that bank misled the state court as to authenticity of document is not, under Rooker-Feldman, barred  from federal review.

But state statute bars claims.

Glory Truong v. Bank of America, N.A., et al

Third Circuit -- Dawn Guidotti v. Legal Helpers Debt Resolution

Where, from the face of the pleadings, parties' consent to arbitration is clear, motion to compel arbitration can be adjudicated under 12(b)(6) standard, but if unclear or respondent can cast doubt, then additional discovery is warranted.

Dawn Guidotti v. Legal Helpers Debt Resolution

Third Circuit -- Jorge Lupera-Espinoza v. Attorney General United States

Immigration -- Serving five years for an aggravated felony is a categorical bar under 1990 statute to withholding of deportation.  Circuit split flagged, underplayed.

Jorge Lupera-Espinoza v. Attorney General United States

(Very) Short Form: Friday

Very short form.  Just the list, basically.

First Circuit:

US v. Murphy-Cordero  -- As sentence length was a material term of the deal, court's rejection of the recommendation meant that the appeals waiver was also off.  Sentencing.
Javed v. Holder  -- Immigration
Massachusetts Retirement v. CVS Caremark Corporation  -- Securities class-action - causation
Royal Car Rental, Inc. v. Banco Popular de Puerto Rico  -- No subject matter jurisdiction over actions of successor bank. 

Second Circuit:

Rivera v. United States -- Given limited retroactivity, changes in state drug sentencing laws do not retroactively alter the status of the law as an ACCA predicate.

Third Circuit:

USA v. Mark Ciavarella, Jr.

Fourth Circuit:

VRCompliance LLC v. Homeaway, Inc.
Painter's Mill Grille, LLC v. Howard Brown
Angela Johnson v. American United Life Insurance
Grayson Consulting, Inc. v. Wachovia Securities, LLC 
Malcolm White v. Soudabeh White

Sixth Circuit:

Grant, Konvalinka & Harrison v. Banks 
 In Re: Vertrue Inc. Marketing v. 

Seventh Circuit:

Pedro Ramos v.   City of Chicago

Eighth Circuit (Summary from site):

124020P.pdf  05/24/2013  United States  v.  Jeremiah Wroblewski
   U.S. Court of Appeals Case No:   12-4020
   U.S. District Court for the Northern District of Iowa, Waterloo   
   [PUBLISHED] [Per Curiam - Before Shepherd, Arnold and Melloy,
   Circuit Judges]
   Criminal case - Sentencing. The district court did not err in imposing a
   special condition of supervised release which ordered defendant to have
   no contact with his girlfriend as he had a history of domestic violence
   and one of his supervised-release violations was related to an altercation
   with the woman; however, that portion of the restriction prohibiting
   defendant from having any contact with her family was more restrictive
   than necessary and is reversed.

Ninth Circuit:

MANAGED PHARMACY CARE V. KATHLEEN SEBELIUS

INSTITUTE OF CETACEAN RESEARCH V. SEA SHEPHERD CONSERVATION SOCI

Eleventh Circuit:

Darwin Gilberto Ruiz-Turcios v. U.S. Attorney General

Niny J. Motta v. USA

DC Circuit:

Makhtar Al-Wrafie v. Barack Obama

American Federation of Govern v. Secretary of the Air Force

Apologies for all the short form updates of late -- we try to avoid it, as it makes the tags less useful.  Back to long form next week.  Probably.

-MB

Short Form: Wednesday & Thursday

Very short form today, as heading out to concert -- just getting the list out there.

Second Circuit:

United States v. Johnson -- Sentencing - SOP challenge to Commission authority
Walker v. Schult -  S1983 - prison overcrowding
United States v. Bogle - Brief per curiam - Guns/Felons 
United States v. Shellef -- Speedy Trial Act
Executive Plaza, LLC v. Peerless Ins. Co. -- Insurance coverage - Question certified to New York

Fourth Circuit:

Justin Wolfe v. Harold Clarke  -- Habeas - District Court erred in barring retrial, arguing that the Constitutional violations had crystallized around the events.  Best remedy is to release & allow retrial.  Dissent: No abuse of authority in barring retrial.

Sixth Circuit:

Wayne LaFountain v. Shirlee Harry, et al   -- Court can allow prisoner to amend claim screened under PLRA.
Carrie Schlaud v. Rick Snyder  -- Denial of class certification for child-care workers, as not all were in favor of union.
 Indiana State District Council v. Omnicare, Inc.  -- Securities - S11 is a strict liability, no scienter need be pleaded/proved
Exact Software North America, v. Infocon Systems, Inc.  -- FRCP - Stipulated settlement did not deprive the court of jurisdiction; attorney fee question is supplemental, court can resolve despite non-diversity of parties
National Viatical, Inc. v. Universal Settlements  -- FRCP - Denial of injunction upheld

Seventh Circuit:

USA v.   Jose Rosales --  Sentencing
USA v.   Hubert Davenport -- Crim - various challenges
Tommy Morris v.   Salvatore Nuzzo -- Fraudulent joinder / Choice of Law
USA v.   Juan Flores-Olague -- Sentencing - Mainitnaing property for drug use enhancement
USA v.   Ruby Parker - Crim - speedy trial, sentencing, sufficient evidence
Omar Hakim v.   Accenture United States Pension - ERISA - claims release

Eighth Circuit: (From Site):

123232P.pdf   05/23/2013  Buddy Bean Lumber Company  v.  Axis Surplus Insurance Company
  U.S. Court of Appeals Case No:  12-3232
  U.S. District Court for the Western District of Arkansas - Hot Springs    
  [PUBLISHED] [Murphy, Author, with Smith and Gruender, Circuit Judges]
  Civil case - Insurance. The proper interpretation of the coinsurance
  provision in the policy in question depends on whether the insured has
  filed an actual cash value claim or a replacement cost claim; here, where
  the insured filed a claim for the actual cash value of stolen electrical wire,
  the term "value" in the coinsurance policy should be read to mean the
  actual cash value of the insured's mills; based on this interpretation, the
  insured was not subject to a coinsurance penalty on its claim and was
  entitled to receive the value of the wire minus its deductibles and any
  interim payment it had received.

123113P.pdf   05/22/2013  Mark Robbins  v.  Randy Becker, Sr.
  U.S. Court of Appeals Case No:  12-3113
  U.S. District Court for the Eastern District of Missouri - St. Louis    
  [PUBLISHED] [Riley, Author, with Bye and Benton, Circuit Judges]
  Civil case - Civil rights. The district court's analysis denying
  defendants' motion for summary judgment based on qualified
  immunity is so scant that the court cannot affirm or reverse
  the order, and the matter is remanded for a more detailed
  consideration and explanation.

123524P.pdf   05/22/2013  Bryan Gallimore  v.  Eric H. Holder, Jr.
  U.S. Court of Appeals Case No:  12-3524
  Petition for Review of an Order of the Board of Immigration Appeals    
  [PUBLISHED] [Riley, Author, with Melloy and Shepherd, Circuit Judges]
  Petition for Review - Immigration. The criminal alien bar found in 8
  U.S.C. Sec. 1252(a)(2)(C) precludes this court's review of the BIA's
  decision on CAT relief; to the extent petitioner challenges the legal
  standard used by the BIA, the court rejects the challenge on its merits.

Ninth Circuit (Top paragraph of Reporter's Summary):
FAUZIA DIN V. JOHN F. KERRY -- The panel reversed the district court’s order granting the
Government’s motion to dismiss, on the basis of consular
nonreviewability, United States citizen Fauzia Din’s claims
for a writ of mandamus directing the Government to
adjudicate the visa application she filed on behalf of her
husband Kanishka Berashk and for a declaratory judgment
under the Administrative Procedure Act.

MICHAEL HEDLUND V. THE EDUCATIONAL RESOURCES INST -- Reversing the district court’s judgment, the panel held
that the bankruptcy court did not err in granting a partial
discharge of the debtor’s student loans under 11 U.S.C.
§ 523(a)(8).

SERVICES EMPLOYEES INTERNATION V. SAL ROSSELLI -- The panel affirmed the district court’s judgment, after a
jury trial, in an action under § 501 of the Labor Management
Reporting and Disclosure Act against local union officials
who diverted union resources in an attempt to establish a new
competing local union

Eleventh Circuit:
Wells Fargo Bank, N.A. v. Neil C. Gordon --- Brief per curiam after answer to quesitons certified to Ga.
USA v. Pedro Diaz-Calderone -- Under modified categorical, aggravated battery is qualifying prior crime of violence.
Cheers -- 

MB

(Very) Short Form: Tuesday

First Circuit:

Young v. Wells Fargo Bank  -- Change in loan payments at the end of the initial period did not breach the contract; Delay in notification of new payment obligations states a claim for breach; Statutory claim duplicative of breach claim; No breach of implied covenant of good faith/fair dealing; No IIED claim; Sufficient injury to state claim for debt collection act violation.

Clukey v. Camden, ME  -- S1983: Breach suit not a sufficient remedy for Due Process claim for re-employment by state.

Second Circuit:

CARCO GROUP, Inc., et al. v. Maconachy -- Torts - No PX/CZ; Full salary not a reliable measure of general damages for faithless servant claim; Demial of interest and 20% across-the-board reduction in fees reversed.

Williams v. Comm'r -- No error in denial of face-to-face hearing before assessing tax levy.

Third Circuit:

In Re:Majestic Star Casino LLC v. -- Bankruptcy - No standing, as an S-Corporation status is not property, and there can therefore be no voidable transfer of property due to the change of a corporate status.

Hart v. Electronic Arts Inc -- In balancing Free Speech against a claim for the appropriation of likeness, courts should consider whether the use is transformative - whether ingredient or product imbued with new meaning. (Video games.)

Fifth Circuit:

Natl Rifle Assn of America Inc, et al v. Steven Mc -- Guns - carry right for 18-20 falls outside of 2nd Amendment protections; substantial tailoring enough for intermediate scrutiny; No equal Protection violation as plaintiffs did not carry burden of proving lack of rational basis.

Robert Howard v. Kathleen Blanco, et al -- As the decision as to parole is ultimately discretionary, no ex post facto violation from the change of commutation procedures.

Martha Haire v. Bd Supr LA State University -- Error to dismiss Title VII gender suit against university police department, as the racial animus of offensive comment can be imputed to the ultimate decision-maker; Genuine issue of material fact as to retaliation claim.

Mike Hooks Dredging Co., Inc. v. Eckstein Marine S -- Admiralty - Mooring of dredge in narrows created presumption of fault in the collision - the fact that it was not obstructing traffic is irrelevant; Hole in vessel not significant enough to justify lenity under emergency actions; No abuse of discretion in allowing erxpert witness; FRCP 14(c) does not bar third-party liability.

Eighth Circuit (From site):

111460P.pdf   05/21/2013  Michael Nack  v.  Douglas Walburg
   U.S. Court of Appeals Case No:  11-1460
   U.S. District Court for the Eastern District of Missouri - St. Louis    
   [PUBLISHED] [Melloy, Author, with Wollman and Colloton, Circuit Judges]
   Civil case - Telephone Consumer Protection Act of 1991. District court
   erred in granting defendant summary judgment on plaintiff's claim that
   his receipt of one fax advertisement from defendant which did not
   contain the opt-out language mandated by 47 C.F.R. Sec.
   64.1200(a)(3)(iv) violated the Telephone Protection Act as amended by
   the Junk Fax Prevention Act of 2005; the regulation, as written, requires
   the opt-out language even if the sender received prior express
   authorization to send the fax; this plain-language interpretation of the
   regulation is consistent with the FCC's proffered interpretation of the
   regulation; at this stage of the matter, the court could not entertain
   arguments that the unambiguous regulation is contrary to unambiguous
   statutory language or that the application of the regulation was arbitrary
   or capricious as such challenges would be precluded by the Hobbs Act. 
  
122641P.pdf   05/21/2013  United States  v.  Adam Winarske
   U.S. Court of Appeals Case No:  12-2641
   U.S. District Court for the District of North Dakota - Bismarck    
   [PUBLISHED] [Holmes, Author, with Wollman and Colloton, Circuit Judges]
   Criminal case - Criminal law. Based on information provided by an
   informant, officers had probable cause to arrest defendant for illegally
   possessing a firearm; the officers had ample cause to believe the
   informant was reliable since he had provided accurate information in the
   past, officers had verified certain information he had provided regarding
   defendant, and defendant had shown up at the time and in the location the
   informant had set for a firearm deal; search of defendant's girlfriend's
   vehicle was constitutional as officers had reasonable cause to believe it
   contained evidence of the offense.
  
122813P.pdf   05/21/2013  Brian Ulrich  v.  Pope County
   U.S. Court of Appeals Case No:  12-2813
   U.S. District Court for the District of Minnesota - Minneapolis    
   [PUBLISHED] [Holmes, Author, with Wollman and Colloton, Circuit Judges]
   Civil case - Civil rights. Defendant police officers had arguable
   probable cause to arrest Ulrich for violating a restraining order and were
   entitled to qualified immunity on his claim that his arrest violated his
   Fourth Amendment rights; even assuming plaintiff suffered a
   constitutional deprivation, the district court did not err in dismissing his
   claim against the County since he failed to allege facts in his complaint
   that would demonstrate the existence of a County policy or custom that
   caused the deprivation; the defendant officers were performing
   discretionary, rather than ministerial, functions when they determined that
   Ulrich should be incarcerated following his arrest, and that were entitled
   to official immunity on Ulrich's false imprisonment claim.
  
123267P.pdf   05/21/2013  United States  v.  Michael Never Misses A Shot
   U.S. Court of Appeals Case No:  12-3267
   U.S. District Court for the District of South Dakota - Pierre    
   [PUBLISHED] [Holmes, Author, with Wollman and Colloton, Circuit Judges]
   Criminal case - Sentencing. District court did not err in imposing an
   upward departure based on its determination that defendant's criminal
   history category substantially understated the seriousness of his record
   and the likelihood he would commit future offenses; no error in imposing
   an upward departure based on Guidelines Sec. 5K2.0(a)(1)(A) based on
   the court's determination that this was not a typical false statement case
   since it involved an elaborate set of lies which interfered with an active
   FBI murder investigation and accused two innocent individuals of
   multiple murders; sentence was substantively reasonable.
  
123853P.pdf   05/21/2013  Gerald Geier  v.  Missouri Ethics Commission
   U.S. Court of Appeals Case No:  12-3853
   U.S. District Court for the Western District of Missouri - Jefferson City    
   [PUBLISHED] [Shepherd, Author, with Colloton, Circuit Judge, and
   Rose, District Judge]
   Civil case - Injunctions. Where the Missouri Ethics Commission had
   brought an enforcement action against plaintiff and a political action
   committee for failure to file ongoing reports and other documentation, the
   district court did not err in abstaining from plaintiffs' injunction action on
   the ground the state proceedings, through the administrative and appellate
   process, provided an adequate forum for plaintiffs to raise constitutional
   issues; district court did not err in denying plaintiffs' motion to amend
   their complaint as the matter had been dismissed; even if the action had
   not been completely dismissed, any error in denying the motion to amend
   was harmless as the proposed amendment was futile.

Ninth Circuit (from site):

LAWRENCE V. HOLDER -The panel denied Alfredo Rolando Lawrence’s petition
for review of the Board of Immigration Appeals’ decision
finding him ineligible for INA § 212(c) relief, because he is
an aggravated felon who filed his application for relief after
November 29, 1990. The panel held that the term “admissions” in § 212(c)’s
effective date provision refers to the date that an alien seeks
relief, and thus the aggravated felony bar applies to
applications filed after November 29, 1990, regardless of the
date the alien was initially admitted to the United States.

ANTONIO HINOJOS V. KOHL'S CORPORATION -- The panel reversed the district court’s dismissal of claims under California’s Unfair Competition Law, Fair Advertising
Law, and Consumer Legal Remedies Act brought by a
plaintiff in a putative class action against Kohl’s Department
Stores alleging false advertising.
The panel applied the California Supreme Court’s holding
in Kwikset Corp. v. Superior Court, 246 P.3d 877 (Cal. 2011),
and held that when a consumer purchases merchandise on the
basis of false price information, and when the consumer
alleges that he would not have made the purchase but for the
misrepresentation, he has standing to sue under the Unfair
Competition Law and Fair Advertising Law because he has
suffered an economic injury. The panel also reversed the
district court’s dismissal of plaintiff’s Consumer Legal
Remedies Act claims. Finally, the panel denied defendant’s
motion to certify the issues to the California Supreme Court
both on the merits and because of the circumstances attendant
to its filing (where defendant only requested certification for
the first time after oral argument).
Judge Wardlaw concurred in the majority opinion, except
that she concurred only as to the result in Part III, which
denied Kohl’s request to certify the state law standing
requirements for review by the California Supreme Court.
Judge Wardlaw would simply deny the request as untimely.

PAUL ISAACSON V. TOM HORNE - The panel reversed the district court’s order denying
declaratorya nd injunctive relief to plaintiffs and held that the
Constitution does not permit the Arizona legislature to
prohibit abortion beginning at twentyweeks gestation, before
the fetus is viable.
The panel held that under controlling Supreme Court
precedent, Arizona may not deprive a woman of the choice to
terminate her pregnancy at any point prior to viability. The
panel held that Arizona House Bill 2036, enacted in April
2012, effects such a deprivation by prohibiting abortion from
twenty weeks gestational age through fetal viability. The
panel held that the twenty-week law is therefore
unconstitutional under an unbroken stream of Supreme Court
authority, beginning with Roe v. Wade, 410 U.S. 113 (1973),
and ending with Gonzales v. Carhart, 550 U.S. 124 (2007). 
Concurring, Judge Kleinfeld stated that the current state
of the law compelled him to concur, and that what controls
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Tenth Circuit:

United States v. Baker

Enterprise v. Warrick

Eleventh Circuit:

John Ferguson v. Secretary, Florida Department of Corrections

Pedro Machado Alturo, et al v. US Attorney General

DC Circuit:

Gregory English v. DC

Judicial Watch, Inc. v. Department of Defense

Deutsche Bank National Trust v. FDIC

Federal Circuit:

DOUGLAS DYNAMICS v. BUYERS PRODUCTS COMPANY

TELIERS DE LA HAUTE-GARONNE v. BROETJE AUTOMATION USA INC.

Ran a bit short of time today.  Tomorrow's will be either later in the evening or posted Thursday.  Still facing equipment troubles.  New Macbook Pros can be sent to the author, Poste Restante, Gotham.  Onward.

-MB