Sixth Circuit -- Nora Ettienne v. Eric Holder, Jr.

BIA individualized determinations means that Article III courts can't assess agency congruence with precedent.

Nora Ettienne v. Eric Holder, Jr.

Fifth Circuit -- David Wilson v. Gerald Birnberg, et al

No procedural/substantive DP/EP violation in refusal to list candidate on primary ballot.

Candidate put wring address.

Not a property right.

David Wilson v. Gerald Birnberg, et al

Fifth Circuit -- Don Wesley v. General Drivers, et al

S1981 action by employee against union for insufficient representation TKO'd for lack of comparator.

Don Wesley v. General Drivers, et al

Fifth Circuit -- American Home Assurance Co., et al v. Cat Tech, L.

District Court erred in granting summary judgment, as arbitration outcome was too vague to establish whether contractual term was triggered.
 
American Home Assurance Co., et al v. Cat Tech, L.

Third Circuit -- USA v. Daniel Siddons

"Because my attorney wasn't ready for trial" not a valid reason to withdraw plea.

No ex post facto violation where sentencing bump not in existence at the time of crime is applied, so long as the crime is part of continuing related conduct later sentenced according to the latest version of the Guidelines.

No error in obstruction bump, sentence substantively reasonable.

USA v. Daniel Siddons

First Circuit -- Sony BMG Music Entertainment v. Tenenbaum

Errata.

Sony BMG Music Entertainment v. Tenenbaum

First Circuit -- Osorio v. One World Technologies, Inc.

Defective design plaintiff need not prove that alternative design meets state law test for viability.

Alternative design establishes that claim is not an impermissible categorical liability claim.

Court did not abuse discretion in allowing plaintiffs counsel to say "send a message."

No error in allowing witness to testify as to some machinery-related things.


Osorio v. One World Technologies, Inc.

Second Circuit -- John J. Fiero and Fiero Brothers, Inc. v. FINRA

FINRA has no statutory authority to bring an Article III action to collect a fine.

John J. Fiero and Fiero Brothers, Inc. v. FINRA

Another day

10/3 & 10/4  11th DC & FED CIRC. posted tomorrow.

-TMB

Tenth Circuit - Henry vs. City of Albuquerque

No error in judgment as a matter of law on S1983 claims

Excessive force jury instruction was sufficient.


Henry vs. City of Albuquerque

Ninth Circuit -- WASHINGTON STATE V. CHIMEI INNOLUX CORP.

Parens Patriae suits are not class actions within the meaning of CAFA.

WASHINGTON STATE V. CHIMEI INNOLUX CORP.

Ninth Circuit -- SUZLON ENERGY LTD V. MICROSOFT CORPORATION

ECPA applies to communications of foreign citizens as well.

SUZLON ENERGY LTD V. MICROSOFT CORPORATION

Ninth Circuit -- USA V. CORY KING

Drinking Water Act survives Commerce Clause challenge.

False statement to state inspector qualifies under federal statute.


USA V. CORY KING

Ninth Circuit -- USA V. DWIGHT GILCHRIST

No error in application of Obstruction sentencing bump where deft had given the information in a civil suit, unaware of the criminal investigation.


USA V. DWIGHT GILCHRIST

Ninth Circuit -- REBECCA RICKLEY V. COUNTY OF LOS ANGELES

Errata.


REBECCA RICKLEY V. COUNTY OF LOS ANGELES

Ninth Circuit -- CONSTANTINO CARRERA V. ROBERT AYERS, JR.

Ineffective assistance claim does not survive Strickland presumptions.


Dissent: Does too.


CONSTANTINO CARRERA V. ROBERT AYERS, JR.

Eighth Circuit - United States v. Ronald Shepard

No error in finding of supervised release violation - deft started another business & committed mail fraud.

United States  v.  Ronald Shepard

Eighth Circuit -- Reshetar Systems, Inc. v. Scott Alfred Thompson

No error in Bankruptcy Court holding that contractor did not have a fiduciary relationship with builder which would bar the later discharge of the debt.

Reshetar Systems, Inc.  v.  Scott Alfred Thompson

Seventh Circuit -- USA v. Jack M. Lee

Government restitution cannot attach more than 25% of the weekly periodic disbursements from pension plan.

USA v. Jack M. Lee

Seventh Circuit -- Kristine P. Purcell v. Bank of America

District Courts ingenuity in construing "laws" as applying to statues not common law (in order to preserve certain state claims against preemption) was error.  

Non-preemptive ground of the more specific of two statutes survives the general preemption of the more broad statute.

Kristine P. Purcell v. Bank of America

Seventh Circuit -- Affymax, Inc. v. Ortho-McNeil Pharm

District Court erred in setting aside arbitration result.

Affymax, Inc. v. Ortho-McNeil Pharm

Seventh Circuit -- Michael Marcavage v. City of Chicago

No 1A or EP violation for anti-gay protesters, given narrow tailoring & lack of comparators.

No downward limit to size of group for which a permit is needed.  Slight circuit split.

Remand for reassessment of 1A claims for Gateway Park protest.

Michael Marcavage v. City of Chicago

Sixth Circuit -- Van Hook v. Bobby

No Brady violation in withheld psychological report, as preponderance of evidence still has deft as sane.

Ineffective assistance claims procedurally defaulted.


Van Hook v. Bobby 

[Thou shalt not kill.  - TMB]

ixth Circuit -- Tony Davis v. Blaine Lafler

Sufficient evidence for carjacking conviction.

No ineffective assistance, as not calling the witness might have been a strategic call.

Concur/Dissent - Evidentiary hearing on ineffective assistance could establish prejudice prong.

Dissent - Drinking a glass of water while looking through a window doesn't necessarily make one a "lookout."


Tony Davis v. Blaine Lafler

Fifth Circuit -- HD Smith Whsle Drug, et al

 When bankruptcy trustee took the property, the creditors lien was unenforceable as against a homestead under Texas law.  


(Maybe.  TMB is in a hurry tonight.)


Other issues not preserved and submitted correctly for appeal.

HD Smith Whsle Drug, et al

Third Circuit -- Raritan Baykeeper v. NL Ind Inc

District Court erred in citing abstention when punting environmental suit.

Raritan Baykeeper v. NL Ind Inc

Third Circuit -- Muhammad Malik v. Atty Gen USA

No error in IJ's credibility determinations as to the validity of a marriage.


Muhammad Malik v. Atty Gen USA