Seventh Circuit -- USA v. Victor M. Diaz-Rios

Sentencing -  Court should have considered minor-participant reduction.

USA v. Victor M. Diaz-Rios

Seventh Circuit -- Hans Rapold v. Baxter International

Employment discrimination / Title VII.

Hans Rapold v. Baxter International

Seventh Circuit -- Jose Matamoros v. Greg Grams

When mistakenly terminated parole is restored nunc pro tunc, but parolee doesn't yet have notice, crime committed in interval is still subject to enhancements for parole.

Jose Matamoros v. Greg Grams

Sixth Circuit -- U.S. Citizens Association v. Kathleen Sebelius

Standing for interlocutory appeal on health care reform, District Court correctly held that there was no interest in expressive/intimate association with physicians; no liberty/privacy interest.

U.S. Citizens Association v. Kathleen Sebelius 

Sixth Circuit -- 600 Marshall Entertainment v. The City of Memphis

Challenge to adult dancing -- no prior restraint, not vague, no procedural DP, but the there is standing to challenge the underlying statute although the zoning ordinance is the proximate bar to the conduct.

600 Marshall Entertainment v. The City of Memphis 

Sixth Circuit -- Martinique Stoudemire v. Mich. Dep't of Corrections

Prisoner S1983 claim.

Martinique Stoudemire v. Mich. Dep't of Corrections 

Sixth Circuit -- Kelly Volpe v. Ginine Trim

No double jeopardy in convictions for operating vehicle under the influence and vehicular homicide.

Kelly Volpe v. Ginine Trim 

Fifth Circuit -- Levy Gardens Partners 2007, LP v. Lewis Title Insu

Whether insurance policy covers merely monetary losses to title of property or consequential claims as well.

Levy Gardens Partners 2007, LP v. Lewis Title Insu

Fifth Circuit -- Francis Barker, Jr. v. Hercules Offshore, Inc., et

Claim under tort, statute, and general maritime law -- properly removed, no error in summary judgment for deft.

Francis Barker, Jr. v. Hercules Offshore, Inc., et

Fifth Circuit -- Clinton Growers, et al v. Pilgrims Pride Corporati

Written contracts barred estoppel claim.

Clinton Growers, et al v. Pilgrims Pride Corporati

Fifth Circuit -- USA v. Wayne Stoker

Sufficient evidence for witness intimidation, but not entirely a crime of violence.

USA v. Wayne Stoker

Fifth Circuit -- USA v. Cristobal Cervantes, et al

Crim -- jury selection, prior bad acts, trial conduct, sentencing.

USA v. Cristobal Cervantes, et al

Fifth Circuit -- USA v. Omar Alvarez

No flexibility in statutory deadline to challenge forfeiture where principal is a minor.

USA v. Omar Alvarez

Fifth Circuit -- USA v. Janice Demmitt

Crim -- money laundering, wire fraud.

USA v. Janice Demmitt

Fifth Circuit -- Uwe Taylor v. Michael Astrue, Commissioner

ALJ did not go against medical opinions in denying benefits.

Uwe Taylor v. Michael Astrue, Commissioner

Fifth Circuit -- USA v. Jesus Garza

Sentencing court inappropriately considered rehabilitative program length.

USA v. Jesus Garza

Fifth Circuit -- USA v. Mark Snarr, et al

Crim -  Wire fraud, money laundering.

USA v. Mark Snarr, et al

Fourth Circuit -- William Meyers, Sr. v. Baltimore County, Maryland

Error  in grant of qualified immunity to police officer who tasered suspect ten times.

William Meyers, Sr. v. Baltimore County, Maryland

Fourth Circuit -- Manuel Mondragon v. Eric Holder, Jr

BIA correctly denied petitioner's attempt to introduce affidavit into modified categorical analysis of prior conviction.

Manuel Mondragon v. Eric Holder, Jr

Fourth Circuit -- Bethel World Outreach v. Montgomery County Council

Zoning / RILUPA

Bethel World Outreach v. Montgomery County Council

Second Circuit -- Kleinman v. Elan Corp., plc

Securities class action -- press releaase was not materially misleading.

Kleinman v. Elan Corp., plc

First Circuit -- Canning, III v. Beneficial Maine, Inc.

Creditor's refusal to take the property or release the lien does not result in a discharge injunction violation, whatever that might be.

Canning, III v. Beneficial Maine, Inc. 

First Circuit -- Patrick v. Rivera-Lopez

Hague Convention custody suit.

Patrick v. Rivera-Lopez 

First Circuit -- Patel v. Holder

Whether conspiracy/larceny is a crime of moral turpitude for immigration purposes.

Patel v. Holder 

First Circuit -- RTR Technologies, Inc. v. Helming

Liability for bad tax advice, attorneys' fees for the suit.

RTR Technologies, Inc. v. Helming 

First Circuit -- US v. Tum

Crim -- wire fraud / conspiracy

US v. Tum 

First Circuit -- Drumgold v. Callahan

S1983 Brady claim against homicide detective remanded for jury instruction on causation.

Drumgold v. Callahan 

Limited Service Update

Just as a reminder, the site is on limited service, due to equipment troubles occasioned by a bit of a dust-up between a bicycling MB and a taxicab.  We expect to return to full summaries within a few weeks.  The remainder of this week's opinions will be summarized tomorrow.

MB

Seventh Circuit -- USA v. Raphael Patton

"Deer in headlights" look justified pat-down.

USA v. Raphael Patton

Seventh Circuit -- Eugene Crane v. Travis Crowell

Citation served on judgment debtor is a lien on their bank accounts under Illinois law.

Eugene Crane v. Travis Crowell

Sixth Circuti -- Vision Processing, LLC v. Christie Groves

Methods of proof and claim for pneumoconiosus.  (A disease miners get.)

Vision Processing, LLC v. Christie Groves 

Fifth Circuit -- USA v. Mark Snarr, et al

Direct appeal of capital sentence -- jury selection; lesser-included offense; aggravating factors; Death Penalty Act unconstitutional; improper exclusion of victim character evidence; funds for investigators.

[Don't kill.  MB]

USA v. Mark Snarr, et al

Fifth Circuit -- USA v. Land

Homeowners association did not suffer a Taking when members' properties were taken.

USA v. Land

Fifth Circuit -- John Brown v. Natl Railroad Passenger Corp.

Expert testimony insufficiently validated under Daubert.  Railway intersection sufficiently clear to justtfy summary judgment.

John Brown v. Natl Railroad Passenger Corp.

Fourth Circuit -- Ophelia De'Lonta v. Gene Johnson

Prisoner gender reassignment delay/denial sufficiently states a claim.

Ophelia De'Lonta v. Gene Johnson

Third Circuit -- Association New Jersey Rifle a v. Governor of the State of New J

As state gun control law regulates, as opposed to prohibits, no preemption by Federal prohibition.

Gun paperwork not so onerous as to imperil lifelibertyproperty.

Association New Jersey Rifle a v. Governor of the State of New J

Third Circuit -- Randy Mulholland v. Government County of Berks

Rogue caseworker doesn't make county liable under S1983.  Procedural & Substantive DP claims.

Randy Mulholland v. Government County of Berks

Third Circuit -- In Re: Diet Drugs

Whether Settlement Agreement barred a subsequent products liability suit.  No duty on court to reform Settlement Agreement.

In Re: Diet Drugs

Second Circuit -- McCoy v. United States

Prevailing professional norms for Habeas Ineffective Assistance are those prevailing at the time of the decision.  Later changes clarifying the law do not impose a retroactive duty on counsel to revisit his/her decisions.

McCoy v. United States

Second Circuit -- Secrest v. Merck, Sharp & Dohme Corp.

Expert witness in product liability -- sham issue of fact doctrine under Florida law.

Secrest v. Merck, Sharp & Dohme Corp.

Second Circuit -- Kirkendall v. Halliburton, Inc.

ERISA -- where Plan participant reasonably interprets Plan as not requiring administrative exhaustion, participant not required to administratively exhaust.  Also a plan-specific holding.

Kirkendall v. Halliburton, Inc.

Second Circuit -- Mary Jo C. v. New York State and Local Retirement System et ano.

Title II of the ADA does not apply to employment discrimination.  ADA standards can sometimes necessitate violating state law.

Mary Jo C. v. New York State and Local Retirement System et ano.

Second Circuit -- United States v. Dupree

State court order admissible - not hearsay - as it was offered to show that deft was on notice, not to prove the facts underlying the order.  Also a verbal act.

United States v. Dupree

Second Circuit -- Osterweil v. Bartlett

O'Connor pinch-hits, upholding certified question to NY Court of Appeals on handgun restrictions.

Osterweil v. Bartlett

Second Circuit -- Garcia v. Hartford Police Dep’t

Racial discrimination, 1A rights of public officials -- matters o' public concern vel non.

Garcia v. Hartford Police Dep’t

First Circuit -- US v. Kravetz

Disclosure request for docs in pending criminal case.  Sentencing memos are public documents.  Other documents, not so much -- special need showing required.

US v. Kravetz 

First Circuit -- US v. Figueroa

Crim -- Wiretap good, no error in denial of Franks hearing.

US v. Figueroa 

First Circuit -- Gerald v. University of Puerto Rico

Discrimination -- Title VII, retaliation, discharge, state claims.

Gerald v. University of Puerto Rico 

First Circuit -- US v. Guevara

Crim --- Conspiracy, affirmative defenses of withdrawal & entrapment.

US v. Guevara 

Crick rose

To put it mildly.  Next update no sooner than Thursday.  Onward.

MB

Limited Service continues

Some in-depth, some headlines.  Next update Monday PM, if the crick don't rise.

MB

Federal Circuit -- HALL V BED BATH

Patent.

HALL V BED BATH 

DC Circuit -- USA v. David Duvall

Crack/cocaine sentencing under plea deal not required to be revisited.

USA v. David Duvall

DC Circuit -- USA v. Kevin Ring

Lawful campaign contributions more probative than prejudicial.

No explicit quid pro quo required for Honest Services.

Expediting visa application sufficient consideration for illegal gratuity statute.

USA v. Kevin Ring

DC Circuit -- A. Farouki v. Petra Intl Banking Corp.

Ongoing loan collection efforts do not toll the statute of limitations.

A. Farouki v. Petra Intl Banking Corp.

DC Circuit -- Noel Canning v. NLRB

NLRB recess appointments TKO'd.  Big news.  MB looks forward to reading this one.

Noel Canning v. NLRB

DC Circuit -- American Petroleum Institute v. EPA

Congressional directive to promote new technology doesn't mean that agency can make overly optimistic predictions.

American Petroleum Institute v. EPA

Eleventh Circuit -- USA v. Michael Jimenez

Misappropriation of funds conviction reversed - gov't agency purchasing book written by the spouse of an employee of the agency doesn't suffice.

USA v. Michael Jimenez

Eleventh Circuit -- Mark F. Bailey, et al. v. ERG Enterprises, LP, et al.

Mortgage note venue selection only binds obligors on the note.

Bank fraud claims too distant from the transaction to be governed by forum selection terms. No equitable estoppel as the bank's involvement was ex ante and at most a but/for cause of the transaction.  Insufficient concert for the estoppel claim.



Mark F. Bailey, et al. v. ERG Enterprises, LP, et al.

Tenth Circuit -- United States v. Smith

Dismissal without prejudice of mistried counts upheld, despite Speedy Trial Act -- Deft argued that 5A rights as to sentencing factors on the un-mistried counts were imperiled, but this comes from the retrial itself, not the violation of the Speedy Trial Act.

No error in including transactions not in the indictment in the Fraud sentencing.

United States v. Smith

Eighth Circuit -- Sean Deckard v. Interstate Bakeries Corp.

No error in denying claim that worker did not receive COBRA notices, as no prejudice.  No fees, either.

Dissent: Yes and yes.



Sean Deckard v. Interstate Bakeries Corp.

Fourth Circuit -- Kamal Patel v. Janet Napolitano

Chevron deference to BIA holding that one cannot become a national by simply showing permanent allegiance.  Birth or naturalization only.

Kamal Patel v. Janet Napolitano

Fourth Circuit -- In Re: 2703(d) Application

No statutory or common-law right to access 2703(d) orders in a pending investigation.

Concurrence: No common law right at all.

In Re: 2703(d) Application

Fourth Circuit -- Aaron Tobey v. Terri Jones

If you arrest someone at airport screening who has the Fourth Amendment written on his chest, no Qualified Immunity on the First Amendment claim.

Dissent: No one told the dude to take his clothes off.

Aaron Tobey v. Terri Jones 

Fourth Circuit -- John Merzbacher v. Bobby Shearin

Habeas denied, as state court determination that Petitioner might not have accepted plea deal at center of Ineffective Assistance claim was not unreasonable.  Also, offer was too nascent and ill-defined.

John Merzbacher v. Bobby Shearin

Second Circuit -- In re Payne

Public reprimand of solo with Immigration practice.

In re Payne

First Circuit -- US v. Rivera-Orta

Appeal waiver upheld given good colloquy.

Ineffective Assistance shouldn't be raised on direct appeal.

 US v. Rivera-Orta 

Limited Service continues

Still only headlines, but longer ones.  Next update quite likely tomorrow PM.

Cheers,

MB

Eleventh Circuit -- St. Joseph Hospital, Augusta, Georgia, Inc., et al v. Health Management Associates, Inc.

Parol words and deeds insufficient to overcome both lack of writings and a signed letter of intent obligating the parties to make writings before anything becomes binding.  K and estoppel claims duly TKO'd.

St. Joseph Hospital, Augusta, Georgia, Inc., et al v. Health Management Associates, Inc.

Tenth Circuit -- United States v. McGlothin

No plain error in allowing prior firearms "Incidents" in as more probative than prejudicial.

United States v. McGlothin

Ninth Circuit -- MATTEL, INC. V. MGA ENTERTAINMENT, INC.

Mutual trade-secret-thievery isn't tied to the same set of facts, so the counterclaim wasn't compulsory.

Copyright prevailing party doesn't have to prove frivolity/bad faith to get fees.


MATTEL, INC. V. MGA ENTERTAINMENT, INC.

Ninth Circuit -- ANTWION THOMPSON V. D. RUNNEL

Habeas waiver/forfieture of claims --

The AEDPA/Habeas standard of clearly established federal law &c, &c is not a procedural defense but an adjudicative standard.  The court can therefore identify that law without reference to the parties' arguments below.

(So held on vacatur reconsideration, incidentally.)

Dissent:  State chose to identify another legal standard, and is bound to that choice.  Waived is waived.

ANTWION THOMPSON V. D. RUNNEL

Fourth Circuit -- Gretchen Stuart v. Janice Huff

No abuse of discretion in denying intervention in abortion litigation.  State AG is a government agency with the same ultimate objective.  And a General, to boot.

Gretchen Stuart v. Janice Huff 

Third Circuit -- Connelly v. Steel Valley School Dist

State's (or Commonwealth's, as the case may be) setting of teacher salaries based on level of in-state experience upheld under rational basis.  Incidental burden on travel, not enough to trigger the test.  Scheme looks to place of teaching experience, not place of residency.

Connelly v. Steel Valley School Dist

Second Circuit -- Communications Network International, Ltd. V. MCI Worldcom Communications

When not getting the notice required by statute was the movant's fault, District Court erred in extending the time to file.

Communications Network International, Ltd. V. MCI Worldcom Communications