Second Circuit -- Selevan, et. al v. New York Thruway Authority (NYTA), et al.

Discount on toll bridge for island residents doesn't violate Dormant Commerce Clause.

Nonresidents' comparatively higher tolls give standing.

No strict scrutiny, as not a significant restriction on travel.

Toll discount sufficiently relates to actual usage and cost.

Selevan, et. al v. New York Thruway Authority (NYTA), et al.

Second Circuit -- Johnson v. Priceline.com, Inc.

Class-action against "name your own price" internet travel booking service doesn't state a claim, since there is no valid agency relationship created between the customer and the service -- the customer retains no ability to direct the activity of the service.

Johnson v. Priceline.com, Inc.

Other Decisions

Eleventh:

Atheists of Florida, Inc., et al. v. City of Lakeland, Florida, et al.

USA v. Jonas Coronado-Cura

DC:

USA v. Jason Reynolds

Federal Circuit:


IN RE HUBBELL [ERRATA] P
POWER INTEGRATIONS, INC. V. FAIRCHILD SEMICONDUCTOR INTERNATIONAL, INC.
INRE: TIMOTHY OWENS [OPINION]
MARVIN BRANDT v. US [OPINION]

MB

Ninth Circuit -- SHELLEY RUBIN V. CITY OF LANCASTER

Privately-led prayers at the beginning of City Council meetings not an Establishment of Religion.

SHELLEY RUBIN V. CITY OF LANCASTER

Ninth Circuit -- HYUK LIM V. ERIC H. HOLDER JR.

Immigration -- service in South Korean army doesn't qualify for the service exception to the continuous presence rule.  Rational basis review.

HYUK LIM V. ERIC H. HOLDER JR.

Ninth Circuit -- SERVICES EMPLOYEES INTERNATION V. SAL ROSSELLI

Federal labor law creates umbrella union fiduciary duty to constituent unions themselves, not just the rank and file.

SERVICES EMPLOYEES INTERNATION V. SAL ROSSELLI

Ninth Circuit -- USA V. RAYMOND RUIZ, JR.

No error in denial of unanimity instruction on felon-in-possession charge - jurors free to vote based on any testimony referencing any part of the alleged ten-minute span.

No harmful error in proscutor's  PPT slide saying that an acquittal would require jurors to find that police lied on the stand.

No error in prosc closing.

USA V. RAYMOND RUIZ, JR.

Ninth Circuit -- USA V. ETHAN JINIAN

Deft's deposit of checks into his bank account triggered the wire fraud statute, given the subsequent interbank wire transfers.

Concurrence -- clearly, the scheme was to avoid scrutiny of the deposits by breaking them up.

USA V. ETHAN JINIAN

Eighth Circuit -- Universal Cooperatives, Inc. v. AAC Flying Service, Inc.

Crop dusters owed no duty of care to manufacturer of the chemical.

Off-tatget spraying not a deceptive trade practice under state statute.

Arkansas likely would not recognize a third-party claim exception to the American rule in fees, i.e. deft can't sue a third party to reclaim the fees.

Universal Cooperatives, Inc. v. AAC Flying Service, Inc.

Seventh Circuit -- Brian Teed v. Thomas & Betts Power Solutions

FLSRA successor liability applies even when the successor disclaims the debt, unless there is good cause otherwise.


Brian Teed v.   Thomas & Betts Power Solutions

Seventh Circuit -- City of Livonia Employees' Ret v. Boeing Company

Securities - 10(b) pleading doesn't state a claim when the only source for the claim denies everything when deposed by deft's attorneys.

Earlier dismissal (without prejudice) cures procedural fault in second dismissal (with prejudice).

Remand for Rule 11 sanctions determination despite lack of sanctions in initial decision.  PLSRA mandate that the judge consider sanctions means that an implicit denial of sanctions is appealable.

City of Livonia Employees' Ret v.   Boeing Company

Sixth Circuit -- Henry Hodges v. Roland Colson

Denial of Habeas upheld.

Trial court had discretion to bar voir dire question asking about defts with murder priors, as deft had murder priors.

Claim that juror voted because of arthritis pain procedurally defaulted, as no there was cause for omission of claim in state Habeas.

Plea-stage ineffective assistance (deft pled to qualifying offense) defaulted as to facial invalidity; as to Strickland, pleading could have been a strategic choice.  No prejudice.

No error in denial of hearing on competency and ineffective assistance.

Henry Hodges v. Roland Colson 

[Thou shalt not kill.  -MB]

Third Circuit -- USA v. Nathaniel Benjamin

Constructive possession (inside house) of guns and drugs upheld.

Felon-in-possession is a continuing activity -- it therefore merges with the possession-in-house charge.

References to parolee status not unduly prejudicial.


USA v. Nathaniel Benjamin

First Circuit -- Reynoso v. Holder

Immigration -- substantial evidence that marriage was a sham.  False statements of fact before agency established categorical bar to finding of good moral character.

 Reynoso v. Holder 

First Circuit -- US v. Sparks

Good-faith exception to the Exclusionary Rule applies to GPS tracker placement.

Circuit precedent (a 'beeper,' not a GPS system, one day of tracking as opposed to eleven) entitled police to believe that they could do it.

US v. Sparks 

Federal Circuit -- DAWSON V. DAWSON AND BOWMAN

Patent interference -- it's not just inventing something, it's knowing that it can be used for a certain purpose.

Dissent -- relation to practice relates back to time of complete conception for purposes of time of invention.

[Maybe.  As always, entertainment purposes only.]

DAWSON V. DAWSON AND BOWMAN

Ninth Circuit -- LUVDARTS LLC V. AT&T MOBILITY, LLC

Mobile messaging and copyright --

No vicarious infringement, given lack of feasible monitoring system.

No contributory, as indifference is not willful blindness.

LUVDARTS LLC V. AT&T MOBILITY, LLC

Ninth Circuit -- KEVIN MILES V. CHARLES RYAN

Habeas denial upheld, as omission of addiction evidence might have been a strategic choice, as it would undercut the clean-cut image.

Dissent: Lack of investigation of deft's history.

KEVIN MILES V. CHARLES RYAN

[thou shalt not kill.  -MB]

Ninth Circuit -- ROBERT PEREZ V. NIDEK CO., LTD.

Off-label use of medical device doesn't state a claim under medical experimentation statute.

Federal statutes preempt lack of disclosure claim.

ROBERT PEREZ V. NIDEK CO., LTD.

Ninth Circuit -- In re: DAVID C. WELSH and SHARON N. WELSH

Bankruptcy -- Chapter 13 inquiry as to good faith cannot look to retention of SSI income, payments for luxury goods.

In re: DAVID C. WELSH and SHARON N. WELSH

Eighth Circuit -- North American Banking Co. v. Brian Leonard

Bankruptcy -- possessory lien extinguished when the holder of the interest gave the property to the Trustee.

North American Banking Co. v. Brian Leonard

Eighth Circuit -- Jerry Wright v. First Student, Inc.

Reversal of dismissal of claim by plaintiff proceeding IFP -- no showing as to whose fault it was that papers weren't served.

Jerry Wright v. First Student, Inc.

Eighth Circuit -- United States v. Ricky Johnson

Police report alone insufficient to establish conduct justifying parole revocation, absent showing as to availability of officers.  Remand without opportunity to present more.

United States v. Ricky Johnson

Eighth Circuit -- Iowa League of Cities v. EPA

No deference to agency on question of whether new interpretation is a new legislative rule.

Analysis in letters to legislator qualifies as same.

Iowa League of Cities v. EPA

Seventh Circuit -- Peter Gakuba v. Charles O'Brien

S1983 claims against prosecutor in pending prosecution stayed under Younger abstention.

Peter Gakuba v.   Charles O'Brien

Seventh Circuit -- Harlis Woods v. Illinois Department of Childre

SOL for all S1983 cases in Illinois is 2 years -- individual category-specific statutes shouldn't govern.

Harlis Woods v.   Illinois Department of Children

Seventh Circuit -- Liberty Mutual Insurance Co. v. American International Group

Easterbrook: Class action dismissed, pursuant to stipulation agreement among almost all of the parties.

Posner, dissenting: Um, maybe we should read the stip.



Liberty Mutual Insurance Co. v.   American International Group

Seventh Circuit -- USA v. Guy Westmoreland

No 6A violation in 8 year delay in FRCrimP Rule 33 motion -- no prejudice, and no chance of being freed sooner on reversal, given unchallenged counts.

No violation of right to counsel for collateral challenge filed simultaneously with (represented) direct appeal, as counsel was free to decline to help with unwise motion.

USA v.   Guy Westmoreland

Sixth Circuit -- In re: Creekside Senior Apts.

Dismissal of Bankruptcy petition for cause upheld, given, among other things, debtor bad faith.

 In re: Creekside Senior Apts.

Sixth Circuit -- Thomas Judge v. Metropolitan Life Insurance Co.

ERISA --  denial of benefits upheld, as there was a deliberate, principled process.

Dissent:  Substantive errors in Plan's ruling.

Thomas Judge v. Metropolitan Life Insurance Co. 

Fourth Circuit -- Candice Hardwick v. Martha Heywar

Tinker test allows local school to ban clothing with the Confederate flag on it.

Candice Hardwick v. Martha Heywar

Fourth Circuit -- Washington Gas Light Company v. Prince George's County Council

Burford abstention (don't frustrate state administrative procedures) upheld, as state judicial zoning review statutory question turns on term frequently used in zoning disputes.

No preemption of zoning by federal pipelines statute, as the federal statute is solely concerned with safety, and another statute doesn't include local companies..



Washington Gas Light Company v. Prince George's County Council 

Fourth Circuit -- Charlotte McCauley v. Home Loan Investment Bank, FSB

Mortgage borrower's state unconscionability claim preempted by federal law, bu t not the fraud claim.

Claim sufficiently stated for heightened pleading under 9(b).

Charlotte McCauley v. Home Loan Investment Bank, FSB

Third Circuit -- USA v. Louis Manzo

No fees & cost-shifting for an allegedly bad-faith federal prosecution -- since the judge explicitly declined to dismiss the remaining counts, gov't could go ahead.

Sloppiness is not necessarily spoiliation.

USA v. Louis Manzo

Second Circuit -- Doe v. Guthrie Clinic Ltd.

Question certified to NY Court of Appeals -- whether there's a c/a against a corporation for breach of fiduciary duty when an employee, acting ultra vires, discloses information without authorization.

Doe v. Guthrie Clinic Ltd.

Other decisions today

Ninth:

COLUMBIA PICTURES INDUSTRIES, V. GARY FUNG

GLENN TIBBLE V. EDISON INTERNATIONAL

Eleventh:

Collegiate Licensing Company v. American Casualty Co. of Reading Pennsylvania, et al.

Federal Trade Commission v. Abbvie Products LLC

FED:

NATIONAL ORG OF VETERANS ADVOC v. SHINSEKI [ORDER]

SLATTERY V US [OPINION]


Apologies, folks.  Back to speed soon.

MB

Seventh Circuit -- Ehnae Northington v. H & M International

As the discrimination complained of wasn't a Title VII violation, the complaint wasn't a protected activity.

Ehnae Northington v.   H & M International

Seventh Circuit -- USA v. Andrzej Pietkiewicz

General denial insufficient for refusal of bona fide motion for downward variance -- some explanation must be given.

USA v.   Andrzej Pietkiewicz

Seventh Circuit -- Larry Harmon v. Ben Gordon

Basketball player manager's change in percentage take didn't transform the deal into a lifetime contract.

Larry Harmon v.   Ben Gordon

Seventh Circuit -- USA v. John Munson

Trebling of damages under False Claims Act is contract-standard difference in value, not gross amount of the fraud.

USA v.   John Munson

Sixth Circuit -- Frank Foster v. Nationwide Mutual Insurance Co.

FLSA exemption for "investigators" upheld for insurance investigators.  Independent discretion in furtherance of business interests.  Court cannot assess whether that independence has been undercut by company policies, as it's a question of fact.

Frank Foster v. Nationwide Mutual Insurance Co. 

Fourth Circuit -- Melissa Trail v. Local 2850 UAW

Petitioner's claim against union officials is individual, not collective, and  the malfeasance doesn't threaten the general health of the union.  Ergo, no claim under union-specific legislation.

Melissa Trail v. Local 2850 UAW

Fourth Circuit -- Raymond Woollard v. Denis Gallagher

Reversal of summary judgment -- Maryland's good-and-substantial-reason requirement for gun carrying permits does not impermissibly infringe on 2A rights.

As-applied and facial challenges TKO'd.

Intermediate scrutiny, viz - "reasonably adapted."


Raymond Woollard v. Denis Gallagher

Fourth Circuit -- Dennis Glynn v. EDO Corporation

No whistleblower protection for DoD contractor, as the flaws pointed out were iterative potential improvements, and not fatal flaws, and therefore there was no viable qui tam suit.

No material fraud in paperwork, pace DoD crim investigation.

Dennis Glynn v. EDO Corporation

Second Circuit -- Scottsdale Ins. Co. v. R.I. Pools Inc.

Defects in installation count as 'accidents' for purposes of swimming pool insurer's duty to defend.

Scottsdale Ins. Co. v. R.I. Pools Inc.

Second Circuit -- Natural Resources Defense Council, Inc. v. U.S. Food and Drug

Advocacy group has Article III standing to challenge regulatory inaction on dangerous chemical, as its members might be exposed to it.  No such standing for challenge to chemical that might eventually produce antibiotic-resistant bacteria, as the connection to the group's members is contingent.

Natural Resources Defense Council, Inc. v. U.S. Food and Drug

Second Circuit -- Parisi v. Goldman, Sachs & Co.

Title VII pattern-or-practice is a method of proof, and not a substantive claim.  Arbitration agreement that forecloses such a claim/proof is therefore enforceable.

Parisi v. Goldman, Sachs & Co.

Reminder -- Coverage

Under the New System, missed days are missed days.  3/21 Opinions only today.  Unless there's extra time.  Capriccio.

MB

No Postings Today

Sufficient is the day, but not always the barrister's.

MB

Ninth Circuit -- GULBRANDSON V. RYAN

Denial of Habeas upheld.

Not calling a certain guilt-stage witness was possibly a strategic call, as it might have caused prejudice against deft -- therefore not an unreasonable application of Strickland.

Not recalling medical expert at penalty phase -- same.

Not recalling medical expert in penalty phase was waived in state Habeas -- raising another issue from the same affidavit was not enough to trigger state review.

No error in denial of evidentiary hearings for Federal Habeas.

Victim impact evidence not unduly prejudicial.

Second/successive denied as (1) not new; (2) reasonable factfinders can disagree.

DISSENT: Further exploration on not recalling the medical expert.



GULBRANDSON V. RYAN

Eighth Circuit -- Gear Automotive v. Wilshire Insurance Company

Sole owner and member of automobile dealership is an employee for purposes of the employee exclusion on the general liability insurance policy.

In brief, "Robert generally engaged in the same daily duties as his brother Darrell, which primarily consisted of selling cars."

Gear Automotive v. Wilshire Insurance Company

Seventh Circuit -- Johnson Controls, Incorporated v. Edman Controls, Incorporated

Arbitration binds, as sensible, and according to the law, and whatnot.

Johnson Controls, Incorporated v.   Edman Controls, Incorporated

Second Circuit -- United Steel v. Cookson America, Inc.

Union has Article III (under 'benefit of the bargain' analysis) and statutory standing to challenge employer's retirement plan.  Consent of union membership (possibly) not required.

United Steel v. Cookson America, Inc.

Second Circuit -- SEC v. Lynn A. Smith, et al.

No appeal possible for Rule 11 sanctions under collateral order doctrine, as not nonreviewable, and they implicate the merits of the underlying action.

Court can, however, hear challenge to sanction against a trustee where inextricably intertwined with an injunction.

Sufficient evidence for sanctions against trustee.

SEC v. Lynn A. Smith, et al.

No Posting Today

Still on reduced machinery, and neither Daryl Larry, his brother Daryl, nor his other brother Daryl is available to cover.  Enjoy the Ides.

MB

Eleventh Circuit -- USA v. Louis Jean Hippolyte

Denial of resentencing for crack/cocaine, as the FSA changes to the mandatory minimums under which deft was sentenced aren't retroactive.

USA v. Louis Jean Hippolyte

Eleventh Circuit -- Mr. Julien Michel Belleri v. USA, et al.

Where citizenship is jurisdictional element of claim, revocation during pendency of suit requires assessment of potential claim to derivative citizenship where tenable.

Mr. Julien Michel Belleri v. USA, et al.

Eleventh Circuit -- Chadrick Calvin Cole v. U.S. Attorney General

Juvenile conviction counts for immigration purposes.

Pointing a gun is an aggravated felony for immigration purposes.

No error in BIA denial of relief.

Chadrick Calvin Cole v. U.S. Attorney General

Ninth Circuit -- USA V. EDGAR ALVIREZ, JR.

Indian tribes cannot produce documents that are self-authenticating by statute.

Deft not harmed by having to avoid multiple interrogation defense for fear of reference to otherwise inadmissible polygraph.

Injury to ankle requiring screws is serious bodily injury for purposes of sentencing.

USA V. EDGAR ALVIREZ, JR.

Ninth Circuit -- ASIL MASHIRI V. DEPARTMENT OF EDUCATION

Neither Mandamus statute nor sue-or-be-sued provision of organic act allows Mandamus action to compel issuance of a student loan, as the petitioner didn't establish a statutory right to the remedy.  (Which would have allowed a bypass of sovereign immunity.)

ASIL MASHIRI V. DEPARTMENT OF EDUCATION

Ninth Circuit -- SILVA MAMIGONIAN V. MICHAEL BIGGS

Website qualifies for ISP safe-harbor under DMCA.

SILVA MAMIGONIAN V. MICHAEL BIGGS

Ninth Circuit -- SILVA MAMIGONIAN V. MICHAEL BIGGS

Habeas grant in Capital case -- Brady/Giglio on prosecution witness' prior bad acts.

Kozinski concurs with his own opinion, holding confession inadmissable under Miranda.

SILVA MAMIGONIAN V. MICHAEL BIGGS

Ninth Circuit -- SILVA MAMIGONIAN V. MICHAEL BIGGS

District Court jurisdiction-strip for immigration by REAL-ID act upheld.  But denial of adjustment of status (or something along those lines) is a final agency action and therefore reviewable under the APA.

SILVA MAMIGONIAN V. MICHAEL BIGGS

Eighth Circuit -- United States v. Martin Wilson

Thus spake the Clerk of the Court:  

[PUBLISHED] [Shepherd, Author, with Wollman and Gruender, Circuit Judges]
Criminal case - Sentencing. District court articulated sufficient justifications for the imposition of a no-contact provision in defendant's supervised release; any error in extending the no-contact order to cover defendant's term of imprisonment was harmless as there was no evidence that the order had any impact on defendant during his now-completed prison sentence.

United States v. Martin Wilson

Eighth Circuit -- Edgarline Dunbar v. Wells Fargo Bank, N.A.

 Le Court dit:

[PUBLISHED] [Gruender, Author, with Wollman and Shepherd, Circuit Judges]
Civil case. Dismissal for failure to state a claim affirmed on the basis of this court's prior opinions in Karnatcheva v. J.P. Morgan, 704 F.3d 545 (8th Cir. 2013) and Murphy v. Aurora Loan Servs, LLC 699 F.3d 1027 (8th Cir. 2011); district court was well within its discretion to impose sanctions where plaintiff's counsel engaged in fraudulent joinder to avoid federal jurisdiction and filed a complaint "blatantly premised on the show-me-the-note theory'" previously rejected by this court and the Minnesota Supreme Court.

Edgarline Dunbar v. Wells Fargo Bank, N.A.

Eighth Circuit -- Aaron Deroo v. United States

Court Summary:

PUBLISHED] [Benton, Author, with Murphy and Shepherd, Circuit Judges]
Prisoner case - habeas. Government's argument that this case should have been dismissed as a second or successive habeas is rejected because the present claim had not arisen when the earlier Section 2255 was filed; while it had arisen when Deroo filed a Section 2241 with the Seventh Circuit, a Section 2255 motion is not a second or successive application where the previous petition sought relief under Section 2241; however, Deroo could have discovered the claim that his Presentence Report was erroneous years before he filed this motion, and the district court did not err in concluding it was untimely; Deroo failed to establish the elements of equitable tolling.


Aaron Deroo v. United States

Eighth Circuit -- Thomas Morelos v. United States

Also sprach the Court clerk:

[PUBLISHED] [Bye, Author, with Murphy and Shepherd, Circuit Judges]
Prisoner case - habeas. Claim that trial counsel was ineffective regarding impeachment and cross-examination rejected; claim of ineffective assistance during closing argument is based on an inaccurate statement of the government's burden at trial and is rejected; any argument that the government did not prove the type of methamphetamine involved in the offense is meritless and counsel could not be ineffective in deciding not to raise the issue; court concludes that counsel's decision not to independently withdraw over the fact that he had prosecuted Morales in state court was within the range of professional assistance; nor was counsel's decision not to withdraw over the suspensions of his licenses in Nebraska and South Dakota beyond the range of professional assistance; because all of Morales's grounds for his claims of ineffective assistance of trial counsel are unavailing, he cannot show that he suffered any prejudice from the manner in which counsel handled his direct appeal; claims of prosecutorial misconduct rejected without comment.

Thomas Morelos v. United States

Seventh Circuit -- USA v. Anthony Banas

Below-guidelines white collar sentence upheld.

USA v.   Anthony Banas

Sixth Circuit -- John B. v. Mark Emkes

Ending of consent decree which federalized aspects of state's Medicaid program upheld.

John B. v. Mark Emkes 

Sixth Circuit -- USA v. Kwame Williams

Deft's giving false name to magistrate judge at preliminary proceeding was not material to any substantive issue, so the Obstruction sentencing bump was error.

USA v. Kwame Williams 

Fourth Circuit -- Georgia Pacific Consumer v. von Drehle Corporation

District court should not have allowed amendment of claim to include preclusion affirmative defense, as the other case was decided 16 months before the motion.  Not revived by intervening case.  Error for court to consider sua sponte.

Georgia Pacific Consumer v. von Drehle Corporation

Third Circuit -- USA v. Billy Reynolds

Attorney General's rule on offender registration could not survive even the most deferential review.

Agency's perception of urgency is insufficient standing alone to justify agency's invocation of good cause to avoid notice & comment.

USA v. Billy Reynolds

Third Circuit -- Tamika Covington v. Int'l Assoc Approved Basketba

Title VII dismissal reversed -- female referee challenging all-male policy.

Insufficient agency to state claim against athletic conference and supervening basketball officials union.

Tamika Covington v. Int'l Assoc Approved Basketba

First Circuit -- In Re: Bulger

Mandamus to remove judge in RICO case who worked as prosecutor during time of the alleged offenses.  Standard: no reasonable reading of the record supports judge's refusal to recuse self.

In Re: Bulger

Other cases in...

8th, 9th, 11th, and Fed.  Still working on diminished resources.

MB