Eleventh Circuit -- USA v. Charles Willis

USA v. Charles Willis

No standing for ineffective assistance habeus, as it wasn't in the COA.

Resentencing is not a pretext for relitigating corollary issues by bootstrapping them to the permitted claim.

Deft's receipt of the PSR (nine days) inside of the statutory 10 day period was harmless error.

No error in sentence as court stated that it had the power to vary downwards & didn't.

Ninth Circuit -- Johnson v. Liberty Mutual Fire Insur. Co.

 Johnson v. Liberty Mutual Fire Insur. Co.

No c/a for spoilation tort where insurance company does not retain taillights after testing - plaintiffs had wanted to use them in a later suit, and they had been discarded.  No foreseeability.

Ninth Circuit -- RONALD YONEMOTO V. DEPARTMENT OF VETERANS AFFAIRS

RONALD YONEMOTO V. DEPARTMENT OF VETERANS AFFAIRS

Agency cannot satisfy FOIA request by offering to make the documents available to requestor in his capacity as an employee of the agency.

Remand for certain emails expurgaged according to exemption 6 of FOIA (personnel/medical), as there's insufficient proof in the record to justify.

Ninth Circuit -- BEATRICE MIRANDA V. KURT BRAATZ

BEATRICE MIRANDA V. KURT BRAATZ

Habeus grant reversed, as tribal courts are permitted to impose multiple yearlong sentences for discrete violations of the law, even though they emanate from the same occurrence.

Ninth Circuit -- A. OLIVER V. RALPHS GROCERY COMPANY

A. OLIVER V. RALPHS GROCERY COMPANY

Sufficient injury-in-fact for ADA claim.

No error in court not considering ADA barriers listed in expert report but not listed in claim - notice.

Violations of MUTCD are not per se violations of the ADA.

Ninth Circuit -- CRYSTAL AMMONS V. STATE OF WASHINGTON DEPARTMENT

CRYSTAL AMMONS V. STATE OF WASHINGTON DEPARTMENT OF SOCIAL AND HEALTH SERVICES

No qualified immunity for supervisor of psychatric facility where allegation of past abuse was known and evidence of present improper relationship was present. 

Qualified immnuity for Director of Nursing who had better scientific data suggesting present abuse, but did not know of past allegation.

Long dissent: Qualified immunity for the supervisor.

Ninth Circuit -- GEORGE SOULIOTES V. ANTHONY HEDGPETH

GEORGE SOULIOTES V. ANTHONY HEDGPETH

Order - vacating of decision given en banc holding in another case.

Eighth Circuit -- Wanda Slater v. Republic-Vanguard Insurance Co

Wanda Slater v. Republic-Vanguard Insurance Co

Diversity jurisdiction was not destroyed during trial, as $100 retained interest was insufficient to keep non-diverse party from being merely nominal.

Legal issue of whether duty to defend was triggered by contractual exception is insufficiently developed for consideration.

Under Texas law, where a "completed operations" term in policy bars recovery for goods once they are off the seller's site, it similarly bars actions based on services which would have been provided prior to the removal of the product from the site.

Eighth Circuit -- Fair Isaac Corporation v. Experian Information Solutions

Fair Isaac Corporation v. Experian Information Solutions

Even if the plaintiff is the target of an anti-competitive conspiracy, they still must demonstrate cognizable harm under Sherman Act (increased prices, etc) for standing.

Hypothetical future damages from inadequate data is an insufficient harm for suit against collusion among data providers.

No error in finding the "300-850" trademark to be merely descriptive.

Sufficient evidence for fraud on the Patent Office in assertions of proprietary use of "300-850"

No licensee estoppal basis for denying challenge to mark, as (1) entity raising the challenge wasn't proved to be an alter ego of the licensee, and (2) if the mark is invalid by one of the challenges, estopping one of several  plaintiff from challenging doesn't get you much.

No false advertising.

No abuse of discretion in not awarding fees to prevailing party, even though fraud on the Patent Office was proven,

Seventh Circuit -- Lisa Hicks v. Avery Drei, LLC

Lisa Hicks v. Avery Drei, LLC

Claim for vacation pay in the first year TKO'd by agreement with employer that there would be no vacation pay in the first year.

Allegedly spurious supplemental response provided by deft at end of discovery period not grounds for reversal, as forfeited for not including the relevant parts of the record with the appeal, and not enough of a miscarriage of justice to justify reversal for plain error.

No error in court's finding that enterprise was not subject to the FLSA.

Special concurrence - Enough evidence in the record for FLSA coverage.

Seventh Ciruit -- Sarah Bertanowski v. Spin Master

Sarah Bertanowski v. Spin Master

Parents whose kids weren't injured by recalled defective toy have standing under the Consumer Protection Act, as they paid more for the (cheap) toy than they might otherwise have done.

Although the Rules Enabling Act means that the District Court is not free to impose its own analysis at class certification over Rule 23 considerations of best remedy, 23(a)(4) allows courts to functionally consider the same reasoning.

Different state remedies make class unworkable.

Sixth Circuit -- Abu-Ali Abdur'Rahman v. Roland Colson

Abu-Ali Abdur'Rahman v. Roland Colson

Death penalty deft's cumulative error arguments under Brady and prosecutorial misconduct can't be considered as they weren't raised in state courts and they're not on the COA.

No Brady violation where co-deft statements indicating deft went to locus in quo as member of anti-crime group (which proscs denied at trial) weren't released to deft, as deft knew that co-deft had discussed the group with prosecutors.

Deft's attempts at self-harm after arrest (not remembered by deft) are not grounds for a Brady violation, as they were mentioned in available reports not sought by deft's counsel & not material proof of mental illness.

Extraordinarily forceful dissent --

Cumulative Brady: covered by the COA, whole-record analysis makes the prosc's omissions enough for violation.  5th Circuit has considered similar hybrid claims.

[Thou shalt not kill.  TMB]

Sixth Circuit -- Edward Kizer v. Shelby County Government

Edward Kizer v. Shelby County Government

No property interest in civil service employment, as the position was unclassified, and plaintiffs never challenged the designation - no equitable remedy from state "policy of inactivity" precluding challenge. 

Fourth Circuit -- US v. Jason Simmons

US v. Jason Simmons

When assessing priors (here for sentencing under the Controlled Substances Act), the prior sentence must be considered absent any aggravating factor enhancements not applied by the sentencing court, nor is it legit for the second court to consider hypothetical aggravating factors.

Dissent one (short) - plain language - statute says "punishable by"

Dissent two - When Scotus remanded 'in light of' a certain decision, that's not a positive command - in that the (now-controlling) decision was immigration, not crim and had a differently structured statute,it's not a slam dunk.

Third Circuit -- Michael McKenna v. City of Philadelphia

Michael McKenna v. City of Philadelphia

Where a participant in the dismissal of an employee is motivated by animus, a subsequent disciplinary procedure cannot immunize the termination from considerations of that animus - it remains a matter of proximate cause.

Third Circuit -- Animal Science Prod Inc v. China Minmetals Materials Imports

Animal Science Prod Inc v. China Minmetals Materials Imports

District Court's Sherman Act jurisdiction over foreign mineral price-fixing is a question for merits, not a matter to be decided under subject matter jurisdiction.  12(b)(6), not 12(b)(1)  (this shifts the presumptions and reduces the court's ability to go all sua sponte on the question).

Third Circuit -- Eustace Simon v. Atty Gen USA

Eustace Simon v. Atty Gen USA

The availability of a visa is one of many factors to be considered in granting a continuance in an immigration proceeding, and is not of itself dispositive.  

Third Circuit -- Gray Holdco Inc v. Cassady

Gray Holdco Inc v. Cassady

"No waiver" term in contract does not bar consideration of whether party invoking arbitration unduly prejudiced by delay the determination.

The amount of time between beginning the litigation and invoking arbitration is not of itself dispositive, but given the lively motion practice, the court found both substantive and procedural prejudice.

First Circuit -- Kaplan v. First Hartford Corp.

Kaplan v. First Hartford Corp.

Affirmed per curiam with no discussion.

First Circuit -- Kindelan v. Disability Management

Kindelan v. Disability Management 

A week after clean bill of heath, extraordinary self-reported pain is not grounds for coverage where doc doesn't run any further tests.

First Circuit -- Vazquez-Rijos v. Anhang

Vazquez-Rijos v. Anhang 

Dismissal for missed deadlines & poor case management upheld.

Second Ciruit -- Cox v. Warwick Valley Cent. School Dist.

Cox v. Warwick Valley Cent. School Dist.

District Court summary judgment of S1983 claims against school administrators upheld.

No First Amendment issue, as removing the student from the classroom for the afternoon in response to a an essay topic is a decision due due unusual deference, and does not constitute retaliation.


Parents retained custody of child during coerced psychological examination, so no 14A deprivation.

Second Circuit -- In re Literary Works in Elect. Databases Copyright Litig.

In re Literary Works in Elect. Databases Copyright Litig.

In Tasini, Scotus held that contributors to periodicals might be due recompense for the conversion of their work into subsequently sold electronic forms.  Here, the Second Circuit rules that a class of these contributors was improperly certified.

Held:


The release of future claims by the class was kosher, as tied to the same factual predicate.


The de facto subclass of claimants holding unregistered claims are unduly hurt by a contingent term in the deal which would further cap their recovery after the percentage of monies due them relative to the rest of the class was determined.  Certification was therefore an abuse of discretion under the adequacy requirement.


Partial dissent: The contingent term reflected a value judgment just as valid as the percentage call.  No DP violation in settlement.