DC Circuit

The DC Circuit server is down at 8:46PM ET -- your correspondent is therefore going to the gym and will add these cases next week.

Eleventh Circuit -- State of Florida v. Dept of HHS

Q: What's 304 pages long and holds the individual health care mandate unconstitutional?

A:  State of Florida v. Dept of HHS

Tenth Circuit -- United States v. Hoskins (Jodie)

United States v. Hoskins (Jodie)

No error in court declining to consider hypothetical tax returns and instead accepting gov'ts estimate of loss.

Tenth Circuit -- Chevron Mining Inc. v. United Mine Workers of America

Chevron Mining Inc. v. United Mine Workers of America

Arbitrator's resolution draws its essence from the CBA.

Ninth Circuti -- STEVE BALDWIN V. KATHLEEN SEBELIUS

STEVE BALDWIN V. KATHLEEN SEBELIUS

(Quick skim of intro)

No standing for challenges to the health care act, as individual has not proved that he doesn't & will not have insurance and company hasn't proved it is of sufficient size.

Ninth Circuit -- NYOKA LEE V. CORINTHIAN COLLEGES

NYOKA LEE V. CORINTHIAN COLLEGES

(Very quick skim)

College alleged to have paid recruiters in violation of statute --

Given vagueness  of criteria, compensation ratings do not find safe harbor, as it might shield impermissible acts.

Leave to amend the complaint should have been granted - scienter may be established in subsequent amendments.

Ninth Circuit -- USA V. CARLOS MARGUET-PILLADO

USA V. CARLOS MARGUET-PILLADO

Error in not giving derivative citizenship jury instruction, as it had not been conclusively established in first trial.

Ninth Circuit -- ALADS V. COUNTY OF LOS ANGELES

ALADS V. COUNTY OF LOS ANGELES

Policemen suspended during pendency of felony charge against them and who retired before resolution of the question may pursue S1983 claim for lack of sufficient post-termination processes.

Dissent - no protected interest in being paid while in the dock.

Ninth Circuit -- PINTO V. HOLDER

PINTO V. HOLDER

Where BIA hold for deportation and remands for IJ consideration of voluntary departure, order is sufficiently final.  

Eighth Circuit -- United States v. Kevin Price

United States v. Kevin Price

No error in sentencing - deft argument that semiautomatics are less dangerous than handguns is unavailing.

Eighth Circuit -- United States v. Danny Reaves

United States v. Danny Reaves

No error in limiting cross, as sufficient ev against witness was already in record, No Brady violation as not material, No error in jury instruction on witness tampering, sufficient evidence, ineffective assistance should be addressed on collateral challenge.

Eighth Circuit -- Joan Najbar v. The United States

Joan Najbar v. The United States

Postal matter exception to FTCA bars suit against gov't for returning a soldier's letter to sender marked "deceased."

Eighth Circuit -- Vincent Ofor v. U.S. Bank, N.A.

Vincent Ofor v. U.S. Bank, N.A.

Signatures on mortgage forms & power of atty were kosher / not timely raised.

Sufficient TILA statutory notification on foreclosure.

Eighth Circuit -- NLRB v. Leiferman Enterprises, LLC

NLRB v. Leiferman Enterprises, LLC

Substantial evidence for NLRB fact-intensive finding of successor-in-interest.  Employer claims of insufficient glazier continuity unavailing.

Eighth Circuit -- Carolyn Schubert v. Auto Owners Insurance Company

Carolyn Schubert v. Auto Owners Insurance Company

Good-faith allegations of pleading as to vexatious refusal to pay claim suffice for establishing 75K amount in controversy.

Insurance provision limiting recovery to half of policy where interest in the property has substantially changed is void since contrary to state law.

Policy provision  is not overly vague.

Eighth Circuit -- G. Latta Bachelor v. Regions Bank

G. Latta Bachelor v. Regions Bank

Despite possible mismanagement of the estate, executrix' actions did not vitiate the spendthrift thrift of which she was the beneficiary - its proceeds can therefore not be attached by executrix' creditors.

Eighth Circuit -- Donald Moeller v. Douglas Weber

Donald Moeller v. Douglas Weber

 Where death penalty juror asks about possibility of parole and judge refers them to the verdict form which says "life imprisonment without parole," no clear violation of law.

Nonparticipation in Daubert hearing & lax challenge to soil samples were strategic choices, not ineffective assistance .

 No abuse of discretion in allowing expert to work for both sides.

Aggravating factors did not have to be in the indictment when included in a notice 8 months before trial.

[Thou shalt not kill. - TMB]

Eighth Circuit -- Fond Du Lac Band v. Myron Frans

Fond Du Lac Band v. Myron Frans

 Minnesota may tax out-of-state pension monies received by Band members on the reservation. 

Constitutional claim - Minnesota and US citizenship, while legislatively allowing for the retention of tribal property, create a nexus sufficient for the state to tax Band members.

Statutory - Off-reservation character of the pension .allows state to tax.

Dissent - Every Single Other Case on the Subject Says You Guys Are Wrong. (Paraphrase, natch.)

Seventh Circuit -- USA v. Kenneth Gaytan

USA v. Kenneth Gaytan

 Where the drug buy happens inside a car - outside of video surveillance but within audio surveillance - gov't does not have to call CI who made the buy to establish sufficient evidence.

No confrontation clause issue on taped statements of CI, as although testimonial, they weren't in for the truth of the matter asserted.

No Old Chief-type  error in agents testifying to events inside the car as opposed to the CI doing so.

Possible inadmissible expert testimony by agent translating drug argot harmless error.

Seventh Circuit -- Aurora Blacktop Inc. v. American Southern Insurance

Aurora Blacktop Inc. v. American Southern Insurance

Removal is proper despite lack of party who should be joined, as party was never served in state action - additionally, parties waived the issue by not challenging removal within 30 days.

Under Illinois law, language in the surety must reference third parties in order for them to have third party standing for enforcement - subsequent letters of the direct beneficiary are irrelevant, as the intention at the time of contract is the deciding fact.

Seventh Circuit -- Susie Weitzenkamp v. Unum Life

Susie Weitzenkamp v. Unum Life

Goinig to en banc - prior opinion withdrawn.

Sixth Circuit -- In re: Elizabeth Collins

In re: Elizabeth Collins 

Bankruptcy trustee's status as a hypothetical judicial lien creditor perfected as the date of filing means that an allegation that another creditor was not perfected as of date of filing means that a 12(b)(6) dismissal of the trustee's assertion of priority is durn wrongheaded.

Ambiguity as to who held the mortgage paper on the date of filing meas that , prior to summary judgment, the court must determine the proper holder at the time.

No error in bankruptcy court setting aside default judgment under 60(b)(6) when all parties agree that the entity had no interest or claim in anything on the date of filing.

Sixth Circuit -- Pipefitters Local 636 v. Blue Cross Blue Shield of Mich

Pipefitters Local 636 v. Blue Cross Blue Shield of Mich 

 Class certification reversed - the fact-specific question of whether an entity was acting as an ERISA fiduciary means that the class is not a superior method of adjudication.  Given legitimate variation sin facts, non-class action would not subject deft to incompatible standards of conduct/conflicting affirmative duties.

Sixth Cicuit -- Dora Giraldo v. Eric Holder, Jr.

 Dora Giraldo v. Eric Holder, Jr. 

 No statutory bar to jurisdiction where IJ grants withholding of removal and BIA reverses and remands for consideration of voluntary departure - th BIA order is sufficiently final.  BUT prudential considerations counsel against jurisdiction, since statute forfeits voluntary departure upon filing of appeal, and allowing intermediate appeals would be a means of circumventing this restriction.

Sixth Circuit -- Gary Otte v. Mark Houk

Gary Otte v. Mark Houk 

 No error in State court finding that deft's waiver of trial by jury was sufficiently knowing, despite antipsychotic meds.

No ineffective assistance in not bringing in a substance abuse expert to testify - would have been cumulative.

Not introducing evidence as to upbringing at penalty phase was a strategic choice, not ineffective assistance.

Miranda challenge arguing drug & alcohol withdrawal TKO'd.

[Thou shalt not kill.  -TMB]

Sixth Circuit -- Sean Taylor v. Kennth T. McKee, Warden

Sean Taylor v. Kennth T. McKee, Warden

Where state has a contemporaneous objection rule, lack of objection defaults subsequent habeus claim.

Ineffective assistance claim can't save the procedural default, as it wasn't exhausted at the state level.  

Ineffective assistance claim on collateral attack, claiming that trial-level ineffective assistance wasn't pursued TKO'd  as there is no right to appeal counsel.

No requirement that prisons provide those capable of writing legal briefs. 

Sixth Circuit -- USA v. Gardner

USA v. Gardner 

Categorically, earlier conviction for battery too broad to qualify as a prior for mandatory minimum for possession of child pr0nography.

Procedural problems with state PSR (missing court stamp, no sign that deft assented to terms) mean that it cannot be used to establish the prior.

Sixth Circuit -- USA v. Dawn Hanna

USA v. Dawn Hanna 

Misspelling of name in email attachment does not mean that the warrant was groundless.

Email warrant did not have to be pinpont specific or divided by subject of emails.

No error in exclusion for relevance of testimony from head of larger company saying that he had been similarly misled.

Where (90 month) sentencing error results from deft's requests, doctrine of invited error precludes fix on appeal.

National security sentencing bump for violating the Iraq embargo upheld.

No Brady violation.

Where the criminality of the act comes from an executive order, collaboration in the crime by members of the executive does not make it lawful.

Fifth Circuit -- USA v. James Brown

USA v. James Brown

(Enron litigation)

Where the evidence is, on its surface, inculpatory, no Brady violation in suppression.

Cumulative evidence insufficient to give a definite and firm conviction of a different outcome - no Brady violation.

Fourth Circuit -- Natalie Dellinger v. Science Applications International

Natalie Dellinger v. Science Applications International

Prospective employee ("contingently approved") cannot claim retaliation under FLSA.

Dissent: The term "employee" is sufficiently broad in the statute.

First Circuit -- US v. Luna

US v. Luna 

Sufficient evidence to find that a local policeman carrying an FBI credential as part of a task force deputation is a federal officer for purposes of statute prohibiting assaulting the Feds. 

 No reversible error where ammunition is admitted without chain of custody foundation if a subsequent witness testifies to its unique features.

No hearsay  in gov't "interstate nexus" expert relying on third-party information.

For ACCA priors - an offense which involves threatening gestures can be an offense which involves the threat or use of force.

Second Circuit -- U.S. v. Simels

U.S. v. Simels

Govt used confidential informant who conversed with the suspect's attorney - led to obstruction of justice charges against atty for attempting to bribe & threaten witnesses.

No holding on whether attorney can assert third-party standing to argue client's 6A harms.


Atty's misrepresentation to prison officials as to another client  justified the investigation of the attorney.


No privileged information passed, so no 6A violation.


No error in allowing CI to testify to unrelated intimidation against him.


No error in restricting atty deft to yes/no, in order to diffuse the tension between the witness and the prosecutor.


No error in allowing wiretaps barred by Title III in for impeachment.

As import ban statute prohibits items that "can be used" to do certain things, inoperable objects are not covered.


Sufficient evidence of a substantial step towards witness intimidation.


Where judge agrees to recommend imprisonment at a certain location, and it subsequently comes to light that the location requires a BOP waiver which the judge declines to issue, no error in sentencing under a misapprehension.


Sentence at bottom of range not unreasonable.