Second Circuit -- John Wiley & Sons, Inc. v. Supap Kirtsaeng

Per curiam short reversal after Scotus remand.  Brief summary of Scotus holding on copyright/ first sale.

John Wiley & Sons, Inc. v. Supap Kirtsaeng

Second Circuit -- United States v. Lifshitz

After revocation of supervised release, sentencing court cannot lengthen the new sentence for rehabilitative needs.

Discussion of rehabilitation during sentencing is not proof that sentencing was a factor in the sentence length -- merely a prudent judicial practice.

United States v. Lifshitz

Second Circuit -- Young v. Conway

Concurrence/dissent from denial of en banc for Wade/4A claim.  A must-read.

Dissent 1: Fourth Amendment claims are barred from Habeas challenge unless there was no full and fair opportunity to litigate the question in the state court.  State interpretation was correct, in addition to not unreasonable.  Pinholster bars consideration of extrinsic social science evidence.  Circuit split alleged on whether Stone threshold is waivable.

Dissent 2: Yep.

Concurrence responds point by point.  Also points out that en banc is a high threshold.

Young v. Conway

Short Form: Friday and Monday

First Circuit:

US v. Francois  -- No abuse of discretion in denying new appointed counsel; despite sub-par Faretta warning, no error in allowing deft to go pro se; sufficient factual basis for jury instruction on flight; voluntary appearance at police station to report a crime doesn't trigger Miranda; remand for sentence in excess of maximum.

Calderon-Serra v. Wilimington Trust Company  -- For-profit securities issued by a nonprofit do not trigger protections under the Trust Indenture Act.

Liu v. Holder  -- Immigration: Adverse credibility finding of court below was supported by substantial evidence.

Somascan, Inc. v. Philips Medical Systems  -- FRCP: no error in denying leave to amend the complaint long after the deadline.  

Lund v. Fall River, MA -- (Souter) Boils off at two: Site identified as alternate development area for adult-themed business was both reasonable and constitutional.

Second Circuit:

National Organization for Marriage, Inc. v. Walsh -- PAC challenge to restrictive statute is ripe, given the likelihood that it would be applied to them; Dissent: no state agency has said that it would apply.

Santana v. Holder -- Second Degree Arson is a crime of violence for immigration purposes; Even if you set fire to your own property, it could spread.

Paskar v. USDOT -- Administrative Law - Agency letter insufficiently final for purposes of appellate review.

Third Circuit:

Michel Sylvain v. Atty Gen USA -- Immigration authorities retain power to detain those subject to removal after the person in question has been released from custody; Statute saying that the detention must happen "when" released doesn't set a firm deadline.

Fourth Circuit:

Josephine Spaulding v. Wells Fargo Bank, N.A.  -- Claim not stated for mortgage fraud: (1) Breach of implied contract; (2) Negligence; (3) State statute; (4) Negligent misrepresentation; (5) Fraud.

Fifth Circuit:

R&L Investment Property, L.L.C v. Guy Hamm, et al -- Ratification of promissory note after discovering error in permit means that the purchaser has no fraud claim based on sub-par permitting of site.

Madhwa Raj v. LSU, et al -- Employment claim against a university - sovereign immunity bars most claims; Title VII claim not stated, as nothing in claim to suggest discriminiatory animus.

Frank Teta v. Michelle Chow -- Class actions / bankruptcy - court should consider bankruptcy-related factors (procedural options, cost to estate) when assessing class certification.  Remanded because insufficiently explained. CIJ.

USA v. Richard Scruggs -- White collar: Skilling challenge TKO'd, as the crime in question was bribery; pre-Skilling guilty plea doesn't establish sufficient cause for collateral challenge; Sufficient evidence to disprove actual innocence claim; Statute not overbroad enough to chill political speech.

Sixth Circuit:

Harold Wallace v. Midwest Fin. & Mortg. Serv.  -- Lender's allegedly inflated assessment of property was sufficiently proximate to petitioner's losses that a civil RICO claim is stated; State law conspiracy claims dismissed.

Seventh Circuit:

Central States, Southeast and v.   Charles Nagy -- Entrepreneur's leasing of property was trade or business sufficient to trigger personal liability for later ERISA shortfall.

Jimmy Smith, Jr. v.   Sangamon County Sheriff's Dept -- No S1983 claim based on post-arrest assault committed by inmate detained prior to trial, as no systematic disregard of obvious risks in the jail's sorting system.

Linda White v.   Marshall & Ilsley Corporation -- Continuing to offer company stock in the retirement plan during a 54% decrease in price is not a breach of fiduciary duty under ERISA.

Eighth Circuit:

(From court website)

111382P.pdf   04/22/2013  United States  v.  Chevie Kehoe
  U.S. Court of Appeals Case No:  11-1382
  U.S. District Court for the Eastern District of Arkansas - Little Rock    
  [PUBLISHED] [Wollman, Author, with Riley, Chief Judge, and
  Melloy, Circuit Judge]
  Prisoner case - Habeas. In Young v. Bowersox, 161 F.3d 1159 (8th Cir.
  1998), this court rejected the argument that an ineffective assistance
  counsel claim based on a Batson error should be considered a structural
  error entitled to a presumption of prejudice and determined that to
  succeed on such a claim, the petitioner must demonstrate a reasonable
  probability that the results of the proceeding would have been different;
  here, in order to succeed on his claim of ineffective assistance of counsel,
  Kehoe must demonstrate that he suffered prejudice as a result of his
  attorney's actions in striking potential jurors on the basis of their race in
  violation of Georgia v. McCollum, 505 U.S. 42 (1992), and he failed to
  do so.

121416P.pdf   04/22/2013  Clarinet  v.  Essex Insurance Co.
  U.S. Court of Appeals Case No:  12-1416
  U.S. District Court for the Eastern District of Missouri - St. Louis    
  [PUBLISHED] [Riley, Author, with Wollman and Melloy, Circuit Judges]
  Civil case - Insurance. The district court did not err in determining that
  coverage was barred under the "owned property exclusion" in the policy.

122613P.pdf   04/22/2013  United States  v.  David Allen
  U.S. Court of Appeals Case No:  12-2613
  U.S. District Court for the Eastern District of Arkansas - Little Rock    
  [PUBLISHED] [Murphy, Author, with Smith and Gruender, Circuit Judges]
  Criminal case - Criminal law. Probable cause existed to arrest
  defendant for possession of counterfeit checks, and the search of his car
  was a lawful search incident to arrest as the officers had reason to believe
  the vehicle contained evidence of the offense; the luggage stored on the
  motel luggage cart could be searched as there was a reasonable
  probability that the evidence on the cart would have been discovered after
  defendant's arrest during an inventory search.

122796P.pdf   04/22/2013  Rosa Gutierrez  v.  Eric H. Holder, Jr.
  U.S. Court of Appeals Case No:  12-2796
  Petition for Review of an Order of the Board of Immigration Appeals    
  [PUBLISHED] [Gruender, Author, with Murphy and Smith, Circuit Judges]
  Petition for Review - Immigration. Petitioner failed to establish that it
  would have been unreasonable for her to relocate in Columbia as required
  under the federal regulations outlining the eligibility requirements for
  withholding of removal - 8 C.F.R. Sec. 1208.16(b)(2) - and the IJ and
  BIA did not err in finding she was not eligible for withholding of
  removal; further, proceeding to the merits of her claim, the record showed
  she had not suffered past persecution which would create a presumption
  that she has a well-founded fear of future persecution and she had not
  shown a clear probability of future persecution on a protected ground; no
  error in denying CAT relief.

123634P.pdf   04/22/2013  John Arnzen, III  v.  Charles Palmer
  U.S. Court of Appeals Case No:  12-3634
  U.S. District Court for the Northern District of Iowa - Sioux City    
  [PUBLISHED] [Arnold, Author, with Bye and Benton, Circuit Judges]
  Civil case - Civil rights. In action by patients at the Iowa Commitment
  Unit for Sex Offenders challenging the placement of video cameras in the
  facility's restrooms, the district court did not err in granting a preliminary
  injunction ordering that cameras in "traditional style" bathrooms (as
  opposed to "dormitory style" restrooms) be pointed at the ceiling or
  covered with a lens cap, as capturing images of patients in single-user
  restrooms violated the patients' reasonable expectations of privacy.
 

113860P.pdf   04/19/2013  Juan Martinez Carcamo  v.  Eric H. Holder, Jr.
  U.S. Court of Appeals Case No:  11-3860
  Petition for Review of an Order of the Board of Immigration Appeals    
  [PUBLISHED] [Riley, Author, with Colloton and Gruender, Circuit Judges]
  Petition for Review - Immigration. Assuming petitioners' accounts of
  the ICE officers' conduct are true, any Fourth Amendment violations they
  suffered were not sufficiently egregious to entitle them to the remedy they
  seek - exclusion of decisive evidence in their civil removal proceeding;
  while both the IJ and the BIA erred in their treatment of petitioners'
  testimony, the errors did not require a remand because they were not
  prejudicial since they were relevant only to petitioners' Fourth
  Amendment claims and did not go to the factual finding upon which they
  were removed - namely, that they are aliens who entered the U.S. without
  proper admission; the court had no jurisdiction under 8 U.S.C. Sec. 1252
  over petitioners' claim that the IJ deprived them of due process by failing
  to shift the burden of proof once they made a prima facie case of a Fourth
  Amendment violation as they had failed to raise the issue at the
  administrative level.

123546P.pdf   04/19/2013  Union Electric Company  v.  AEGIS Energy Syndicate 1225
  U.S. Court of Appeals Case No:  12-3546
  U.S. District Court for the Eastern District of Missouri - St. Louis    
  [PUBLISHED] [Per Curiam - Before Bye, Arnold and Benton, Circuit Judges]
  Civil case - Insurance. Endorsement in which the parties agreed to
  submit to the jurisdiction of the courts of the State of Missouri entirely
  supplanted the agreement's mandatory arbitration provision.

Ninth Circuit:

ROBERT RADCLIFFE V. EXPERIAN INFORMATION SOLUTIONS
USA V. ROBERTO BUSTOS-OCHOA
USA V. EDDIE MCCLENDON

Tenth Circuit:

[Hard to tell from the website which decisions were published and which were unpublished.]

Eleventh Circuit:

In re: Warren Lee Hill, Jr.
Darwin Gilberto Ruiz-Turcios v. US Attorney General

DC Circuit:

Owner-Op Indepen Drivers Assoc v. FMCSA
International Brotherhood of Teamsters v. DOT
USA v. Robert Legg
David De Csepel v. Republic of Hungary

Federal Circuit:

LAZARE KAPLAN INTERNATIONAL, I v. PHOTOSCRIBE TECHNOLOGIES, INC. [OPINION]
ASPEX EYEWEAR, INC. v. ZENNI OPTICAL INC. [OPINION]
WIND TOWER TRADE COALITION V. U.S. [ORDER]

Next update tomorrow afternoon.  Today's and tomorrow's.  Long form.

-MB

Next update Tuesday AM

Will cover Friday and Monday.

-MB

No update tomorrow

Friday's posted on Saturday.

-MB

Fourth Circuit -- US v. Trino Medina-Campo

Sentencing -- whether solicitation is a qualifying prior for a certain enhancement.

US v. Trino Medina-Campo

Federal Circuit -- K-TECH v. TIME WARNER CABLE & DIRECTV [OPINION]

Patent pleading standards.


K-TECH v. TIME WARNER CABLE & DIRECTV [OPINION]

Federal Circuit -- MARIE CONFORTO v. MSPB [OPINION]

Agency correctly held that it did not have jurisdiction over claim, as petitioner did not establish that she was forced to retire.

Dissent: No jurisdiction for Court in mixed-motive cases.


MARIE CONFORTO v. MSPB [OPINION]

Ninth Circuit -- USA V. MICHAEL BARNES

Parole hearing was sufficiently custodial as to extrinsic matter to trigger Miranda protections.

Agents inappropriately delayed giving the warnings.  ("Two-step")

Admission of confession not harmless error.

USA V. MICHAEL BARNES

Ninth Circuit -- USA V. MARIANO ANGUIANO-MORFIN

Jury instruction that translates statutory requirement of willfulness with "voluntary and deliberate" passes muster.

No plain error in prosc. questioning of defense expert witness as to the veracity of deft, given that the expert's conclusions implicated deft's veracity.

USA V. MARIANO ANGUIANO-MORFIN

Eighth Circuit - -David Heide v. David Juve

Bankruptcy --

After initial agreement, there was no implicit affirmation of solvency and terms with each re-extension of credit sufficient to constitute a fraudulent representation that would except the loan from dischargeability.

The deal made in Vegas to buy used cars was a one-off between the two parties, and therefore a personal debt.

David Heide v. David Juve

Seventh Circuit -- USA v. Johnnie Collins

Excessive force during the arrest still not a reason to exclude the evidence in the Seventh Circuit.

USA v.   Johnnie Collins

Sixth Circuit -- USA v. Kenneth Rose

Fourth Amendment --

Warrant resulting from an affidavit that omitted the deft's address is valid under the good faith exception.

No error in denial of Franks hearing requested because of  inconsistencies in witness statements -- the underlying events have been proven by other evidence.

Pr0n statute still valid under interstate commerce power.

USA v. Kenneth Rose 

First Circuit -- Rocket Learning, Inc. v. Rivera-Sanchez

Qualified immunity for gov't official who issued standards for education providers.

Insufficient proof of bad faith for equal protection challenge to allegedly discriminatory rulemaking.

Relevant certification is not a license, so insufficient property interest for a procedural due process claim.

No commercial free speech claim based on providers' inability to sufficiently tout their products.

Rocket Learning, Inc. v. Rivera-Sanchez 

First Circuit -- Johnson v. University of Puerto Rico

Discrimination / Title VII

A Ph.D is a facially reasonable and legitimate requirement for a tenure-track position at a university.

Johnson v. University of Puerto Rico 

First Circuit -- Woodward v. Emulex Corporation

FRCP -- Age discrimination suit.

Motion to compel was duplicative of information requested elsewhere.  Interrogatories similarly properly limited.

No error in quashing of depositions, given lack of notice.

Layoff not pretextual, as the company's limitation of sales in the area was a signal of reduced commerce, not an attempt to minimize the employee's role.

No valid comparators (or "congeners").

Corporate statements not proof of animus.

Woodward v. Emulex Corporation 

First Circuit -- US v. Whitlow

Offender registration --

Delegation to the AG of rulemaking power on retroactivity was constitutional.

Agency notice-and-comment did not assume the result.

Obligation under the Act to register isn't contingent on the mandate being made retroactive by the registering state.

US v. Whitlow 

First Circuit -- US v. Zehrung

Sentencing -- trial court insufficiently explained justification for sentencing enhancement based on the deft's official position, given that discretion and control are different things.

US v. Zehrung 

Short Form -- Tuesday's and Wednesday's Opinions

Second Circuit -- 

In re Terrorist Attacks on September 11, 2001 (Asat Trust Reg., et al.) -- Lack of personal jurisdiction over most defendants due to lack of purposeful direction towards the forum state.

In re Terrorist Attacks on September 11, 2001 (Saudi Joint Relief Comm.,  -- Noncommercial tort exception to the FSIA does not apply, as the tortious conduct was abroad.  "Whole tort rule."

In re Terrorist Attacks on September 11, 2001 (Al Rajhi Bank, et al.) -- Dismissal of statutory & common law claims upheld.  Terrorism was not a violation of customary international law onm the date in question.  

Morning Mist Holdings Ltd. v. Krys -- Bankruptcy proceeding in British Virgin Islands sufficient for statutory stay of US proceedings.

United States v. Cho -- Sufficient evidence for trafficking in persons conviction; No DP violation in barring defense at trial; Sentence upheld.

United States v. Weingarten -- Accompanying person in interstate commerce not a lesser included offense of trafficking person in interstate commerce.

Third Circuit -- 

Gail Vento v. Director of VI Bureau of Inter -- Defts were sufficiently domiciled in British Virgin Islands for tax purposes.  Not so their kin.

Fourth Circuit -- 

Not yet posted for today.  Nothing published yesterday.

Fifth Circuit -- 

Ins Co. of the State of PA, et al v. Dir, Off of W -- Administrative law - disability claim.

Penny Morris, et al v. Wyeth, Incorporated, et al -- Pharma liability - claims that generic makers didn't sufficiently warn consumers are preempted; circuit split indicated on claims of breach of express warranty.

Hari Aum, L.L.C. v. First Guaranty Bank -- Debt was properly secured under Louisiana law by use of multiple indebtedness mortgage.

USA v. Rene Sanchez -- Sentence is reasonable,a s sentencing court considered duress arguments at the time.

David Morales v. Rick Thaler, Director  -- Denial of Habeas -  there was no ineffective assistance contrary to Scotus holdings at voir dire, since the right to a jury trial is waiveable.

Sixth Circuit -- 

Aleksandr Yeremin v. Eric Holder, Jr.  -- Immigration - provision of false documents is a crime of moral turpitude for purposes of removal from the country.

Seventh Circuit --

(No 4/17 opinions up yet)

Katherine Lees v.   Carthage College -- FRE - Portions of expert testimony admissible under Daubert.

USA v.   Roman O. Conaway -- Sentencing - Judge properly considered diminished mental capacity arguments.

Robert Leimkuehler v.   American United Life Insuranc -- ERISA - entity not a plan fiduciary

Renee Majors v.   General Electric Company -- Workplace discrimination/retaliation.

Eighth Circuit (from court summaries) -- 

122175P.pdf   04/17/2013  United States  v.  Rodney Goodwin
  U.S. Court of Appeals Case No:  12-2175
  U.S. District Court for the District of North Dakota - Bismarck    
  [PUBLISHED] [Benton, Author, with Smith and Melloy, Circuit Judges]
  Criminal case - Criminal law. Evidence was sufficient to support
  defendant's conviction for attempted transportation of a minor with the
  intent to engage in sexual activity; challenge to jury instruction rejected

122062P.pdf   04/16/2013  United States  v.  Michael Seibel
  U.S. Court of Appeals Case No:  12-2062
  U.S. District Court for the District of South Dakota - Pierre    
  [PUBLISHED] [Wollman, Author, with Bye and Benton, Circuit Judges]
  Criminal case - Criminal law. District court properly excluded evidence
  of prior sexual abuse of the victims under Rule 403; district court's
  decision to admit negative test results of the victim's bedding, but
  exclude evidence that another individual's semen was found, was neither
  arbitrary nor disproportionate to the purpose Rule 412 was designed to
  serve, and the ruling was not error; claim that the district court erred
  in refusing to admit defendant's evidence that the victims had acquired
  sexual knowledge from others was not preserved for review; evidence was
  sufficient to support defendant's convictions for two counts of sexually
  abusing minors; district court did not err in denying defendant's motion
  for new trial based on a recantation by one victim on the grounds the
  recantation was not credible and was instigated by defendant and his wife.
 

Ninth Circuit -- 

ASSOCIATED GENERAL CONTRACTORS V. CALIFORNIA DEPARTMENT OF TRANSPORTATION

DONALD WIGE V. CITY OF LOS ANGELES

ALEJANDRO RODRIGUEZ V. TIMOTHY ROBBINS

ERIC PETZSCHKE V. CENTURY ALUMINUM COMPANY

MHC FINANCING LP V. CITY OF SAN RAFAEL

TARLA MAKAEFF V. TRUMP UNIVERSITY, LLC

Tenth Circuit -- 

United States v. Madrid

Eleventh Circuit -- 

USA v. Derrick Dajuan Hall

Tiara Condominium Association, Inc. v. Marsh & McLennan Companies, Inc.
National Labor Relations Board v. Hartman and Tyner, Inc., et al
Anderson Ferreira v. U.S. Attorney General

Federal Circuit -- 

BIOGEN IDEC INC. v. GLAXOSMITHKLINE LLC [OPINION]
BAYER HEALTHCARE PHARMA v. WATSON PHARMA [OPINION]


Back to normal service tomorrow, perhaps.

-MB

Monday's Opinions -- Short Form

First Circuit -- 

Craker v. DEA  -- Administrative law; Medical Marihuana
Rosenthal v. O'Brien  -- Crim - ineffective assistance at trial & appeal for insufficient waiver of right to testify
 Freeman v. Town of Hudson  -- No S1983 claim from municipality actions to enforce restrictions on land use (unauthorized treehouse)
Rios-Pineiro v. US  -- Tort suit against gov't by terminated employee; administrative board's findings bind by collateral estoppel.

Second Circuit -- 

United States v. Douglas -- Sentencing --- above-guidelines sentence substantively reasonable

Fourth Circuit -- 

Village of Bald Head Island v. U.S. Army Corps of Engineers   -- Alleged violations of agreement by Corps during development work are insufficiently final for APA review; Also insufficiently maritime for maritime jurisdiction.
US v. Donald Cone -- Sufficient evidence for counterfeiting trade goods, but material alteration of goods bearing a legit mark isn't covered by the criminal counterfeiting statute.

Fifth Circuit --

USA v. Mark Milan -- Crim -- Voir dire, public trial, probative/prejudicial questions on cross, sufficient evidence.  Error to sentence for both weapons possession and the weapons enhancement for the drug charge.
Anthony Carter v. Luminant Power Services Co.  -- S1983/88 No fee-shifting for mixed-motive retaliation claims.


Seventh Circuit -- 

USA v.   Ronald Zitt -- No error in denial of mistrial where police informant blurts out that he was in jail at the same time as the deft (interesting solution recommended -- judge counsels witness before testimony as to prohibited facts); Court invokes appeal waiver sua sponte (it wasn't in the Anders brief of withdrawing counsel) to TKO pro se appeal.
Torray Stitts v.   Bill Wilson  -- Strickland claim granted for insufficient investigation of alibi

Eighth Circuit -- 

Stanley Joseph v. Kenneth Allen -- Denial of S1983 claims based on police intervention in domestic dispute.

Ninth Circuit  --

USA V. GARRIDO  -- White collar crim - reversal of Honest Services under Skilling; Bribery conviction affirmed, as it doesn't require an official act.
FAYELYNN SAMS V. YAHOO! INC. -- ECPA -  data provider compliance with subpoena is protected by 'good faith compliance' statutory shield, despite open question as to whether it had a presence in the foreign state sufficient for jurisdiction.  

Tenth Circuit -- 

United States v. Lucero  -- Sentencing -- motion to reduce sentence doesn't require use of the new crack/cocaine minimums.
Spacecon Specialty Contractors v. Bensinger -- Union filmmaker had no actual malice and made a film on a matter of public concern - summary judgment on defamation claim affirmed.  Dissent: the actual malice is an issue for trial.

Eleventh Circuit -- 

Leticia Morales v. Zenith Insurance Company  -- Questions certified to Florida Supreme Court re: insurance, workman's comp.  SASE enclosed.
Merle Wood and Associates, Inc. v. Trinity Yachhts, LLC -- Statute of limitations -- clam for unjust enrichment/ quantum meruit accrues with provision of services (building of luxury yacht) not conferral of actual benefit (delivery of luxury yacht).

Next update tomorrow afternoon -- today's decisions and tomorrow's decisions, hopefully long form.

-MB

Sixth Circuit -- Carrie Warf v. United States Dep't of Veterans Affairs

Discrimination/retaliation/unequal pay claims against Veterans Administration TKO'd.

Carrie Warf v. United States Dep't of Veterans Affairs 

Sixth Circuit -- USA v. Dennis Grigsby

Reversal for forced psychotropic medication of pretrial detainee for purposes of competency.  Remand with an eye to civil commitment.

USA v. Dennis Grigsby 

Sixth Circuit -- Michael Conlin v. Mortgage Electronic Registration

Claim of  robo-signing/ bad assignment insufficient to state a claim for fraud after statutory six-month window has closed.

Michael Conlin v. Mortgage Electronic Registration 

Sixth Circuit -- Tanya Martin v. City of Broadview Heights

Denial of qualified immunity for police officers who, confronted with a man without clothing who was asking to be arrested, tackled the fellow and lay on top of him, eventually resulting in his death.

Tanya Martin v. City of Broadview Heights 

Sixth Circuit -- Jeannette Martello v. Joshua Santana

Fee-splitting agreement between non-admitted JD/MD and law firm is void as against public policy.

Fraud claims time-barred, as the plaintiff should have been alerted by earlier shortfalls.

 Jeannette Martello v. Joshua Santana 

Fifth Circuit -- USA v. Song Chon, et al

Crim -- sufficient evidence for conspiracy where innkeeper and employees had knowledge of the alien-smuggling operation.

Procedural/substantive errors to sentences denied.

USA v. Song Chon, et al

Fifth Circuit -- Robert Antoine v. First Student, Incorporated

Title VII reasonable accommodation -- Seventh Day Adventist / school bus driver.

Reasonable question as to whether shift swaps were a reasonable accommodation.

Robert Antoine v. First Student, Incorporated

Second Circuit -- Sotomayor v. City of N.Y.

(Gladys Sotomayor.)

Cursory upholding of dismissal of discrimination/retaliation claim at summary judgment stage.

Sotomayor v. City of N.Y.

First Circuit -- US v. Dapolito

Considering the totality, no justification for Terry stop, given that the encounter grew less suspicious as it progressed.

Dissent:  There was no stop until the arrest.

US v. Dapolito 

First Circuit -- Hanson v. Astrue

SSA -- Skilled worker qualified for semi-skilled tasks, given administrative definition of the tasks.

Hanson v. Astrue 

First Circuit -- US v. Palmquist

As investigation was relating to a separate criminal investigation and not an employment matter, civilian Veterans Dept employee doesn't have a 5A claim to suppress fruits of workplace interview.

Restitution not offset by amount of related unclaimed benefits.

US v. Palmquist 

First Circuit -- US v. Rodriguez-Reyes

Crim -- sufficient evidence for conspiracy

Substantive challenges to sentences denied.

US v. Rodriguez-Reyes 

Sixth - Eleventh, DC, Fed. 4/9-10

TK, tomorrow.

-MB

Fifth Circuit -- In Re: FEMA Trailer

Discretionary function exception bars tort claim suits for chemical exposure during resettlement.

In Re: FEMA Trailer

Fifth Circuit -- Hornbeck Offshore Services, et al v. Kenneth Salaz

To determine if a judicial order has been violated, courts should  look to totality of circumstances.

Hornbeck Offshore Services, et al v. Kenneth Salaz

Third Circuit -- Karim Eley v. Charles Erickson

Crim -- Sufficient evidence for participation in conspiracy.

Habeas granted for prejudice due to co-deft's confessions -- incorrect anonymization at trial.

Karim Eley v. Charles Erickson

Third Circuit -- USA v. Corbin Thomas

District courts have subject matter jurisdiction over requests for an extension of time to file a 2255 motion, even prior to the commencement of the Habeas petition -- though civil, it is a continuation of the criminal action.

USA v. Corbin Thomas

Second Circuit -- Paskar v. USDOT

As administrator's letter doesn't create a legal right, impose an obligation, or create a legal relationship, it's not a reviewable final order.

Paskar v. USDOT

Second Circuit -- Molchatsky, et al. v. United States

SEC investigations of the Madoff ponzi scheme -- Feds are immune from suit, given discretionary functions exception..

Molchatsky, et al. v. United States

Second Circuit -- JS v. T’Kach

Termination from witness protection program can't be challenged statutorily, given jurisdiction-strip --  doesn't state a claim for procedural due process either.  Error to dismiss without allowing leave to replead claims based on subsequent incidental confinement.

Concurrence in J:  The lack of a judicial remedy is troubling,.

JS v. T’Kach

First Circuit -- Guaman v. Holder, Jr.

Immigration --- substantial evidence for adverse finding on credibility of petitioner.  Inconsistencies not due to PTSD/bad translation.

Guaman v. Holder, Jr. 

First Circuit -- Medina-Rivera v. MVM, Inc.

Title VII -  summary judgment for gender discrimination upheld.

No obligation on federal courts to follow Puerto Rico standards on summary judgment.

Medina-Rivera v. MVM, Inc. 

Next update

All of Monday's published opinions have been posted.  Next update Wednesday night.  (Will try to list both today's and tomorrow's.)

If the crick don't rise.  

-MB

Federal Circuit -- GENARO VAZQUEZ-CLAUDIO v. SHINSEKI [OPINION]

Veteran's PTSD claim -- no error in agency holding that the list of symptoms in the regulation is more important than the listed areas in which the symptoms occur (home, work, etc.)



GENARO VAZQUEZ-CLAUDIO v. SHINSEKI [OPINION]

Tenth Circuit -- Abernathy v. Wandes

Habeas -- claim exhaustion under S2255 isn't excused by law of the case that would compel an opposite result -- it's still a legitimate procedural vehicle, so a second-or-successive isn't allowed under S2241.

(Maybe.  Entertainment purposes only, as always.)

Abernathy v. Wandes

Tenth Circuit -- Taylor v. Roswell Independent School

Bar to student-distributed anti-abortion materials upheld.

(Not overly vague, pre-approval was licit, disruption was correctly predicted, no EP, since no comparator.)

Taylor v. Roswell Independent School

Ninth Circuit -- ALLIANCE OF NONPROFITS FOR INS V. BRETT BARRATT

As state statute barring "first dollar" insurance policies issuance by entities not licensed to do business in the state does not state a policy justification for barring out-of-state entities, it is preempted by federal risk-retention organization statute.

To get fees under S1983 for a preemption claim, the entity itself must have the specific right to be free of state regulation -- zone of interests conferred by statute isn't enough.

ALLIANCE OF NONPROFITS FOR INS V. BRETT BARRATT

Ninth Circuit -- USA V. HORACIO YUMAN-HERNANDEZ

Sentencing entrapment (govt attempting to increase the mandatory minimum) can be avoided if the deft can establish either lack of intent or lack of capability.

USA V. HORACIO YUMAN-HERNANDEZ

Seventh Circuit -- Richard M. Fogel v. Ronald Shabat

Bankruptcy --  appointment of an interim trustee does not lengthen or toll the statute of limitations for filing an avoidance claim, though equitable tolling is available.

Richard M. Fogel v.   Ronald Shabat

Seventh Circuit -- USA v. Randy Meherg

Possession of cocaine and aggrivated stalking are valid ACCA predicates.  Modified categorical (PSR).

USA v.   Randy Meherg

Seventh Circuit -- NES Rentals Holdings, Incorpor v. Steine Cold Storage, Incorpora

Indemnification clause in contract not a sufficiently knowing and explicit agreement under Indiana law where the counterparty's sole negligence is excepted, but not shared negligence.

NES Rentals Holdings, Incorpor v.   Steine Cold Storage, Incorpora

Seventh Circuit -- Leon Modrowski v. John Pigatto

At summary judgment, non-movant must go beyond the pleadings to establish tenable claim -- reiterating pleadings doesn't satisfy.

Leon Modrowski v.   John Pigatto

Sixth Circuit -- USA v. City of Detroit

Unions can intervene after the court issues an order abrogating some CBA's, but the scope of intervention is limited.

Dissent -- scope issues were not briefed - better to reverse under Rule 19 -- not joining an indispensable party.

USA v. City of Detroit 

Sixth Circuit -- Mark Kerman v. CIR

Tax -- no substance to the shelter, so the penalty for understating assets applies.  Circuit split on this noted.

Mark Kerman v. CIR 

Sixth Circuit -- El Camino Resources, LTD. v. Huntington National Bank

Under Michigan law, aiding and abetting unlawful conversion requires actual knowledge, and there was no evidence that fraudster's bank had such knowledge.

Preliminary bankruptcy holding that bank had not acted in good faith not binding on the civil case at summary judgment.

El Camino Resources, LTD. v. Huntington National Bank 

Tuesday is the new Monday

Monday's opinions will be listed Tuesday morning.

MB

All Opinions

Time is short, and many opinions rolled today, so -- (very) short form:

First --
US v. Baird   -  Guns -- deft should have gotten an 'innocent possession' instruction.
US v. Morales-Cruz  -- Sentencing - conditions on supervised release.
Gianfrancesco v. Wrentham, MA  -- Equal Protection and Due Process claims by potentially over-regulated restaurant owner TKO'd.

Second --
Federal Housing Fin. Agency v. UBS Americas Inc.  -- Statute of limitations/repose, Appointments challenge
United States v. Westchester County, New York  --  Federal housing consent decree litigation
Mercer v. Gupta -- Securities - whether a 'beneficial owner'

Third --
Timothy Ross v. David Varano -- Habeas, equitable tolling
Grane Health Care v. NLRB

Fourth --
Southern Walk at Broadlands v. Openband at Broadlands, LLC 
Lansdowne on the Potomac v. Openband at Lansdowne, LLC

Fifth --
First National Bank, et al v. Polk Mechanical Comp 

Sixth --
Commonwealth of Kentucky v. Tracfone Wireless, Inc.
USA v. Derrick Hammond 

Seventh --
USA v.   Kurt Scheuneman
Anthony Maniscalco v.   Jay Simon
USA v.   Nicolas Gomez
Bankmanagers Corporation v.   Federal Insurance Company

Eighth -- [text from court site]

121857P.pdf 04/05/2013 Southern Wine and Spirits, etc v. Mountain Valley Spring Company U.S. Court of Appeals Case No: 12-1857 and No: 12-1915 U.S. District Court for the Western District of Arkansas - Hot Springs [PUBLISHED] Gruender, Author, with Wollman and Shepherd, Circuit Judges]
Civil case - Contracts. For the court's prior opinion in the case, see Southern Wine & Spirits of Nevada v. Mountain Valley Spring Co., 646 F.3d 526 (8th Cir. 2011). District court order denying Southern's motion for attorneys' fees is affirmed, as the district court was within its discretion in finding that neither party in the case qualified as the prevailing party under Nevada law.

Ninth --

FIREBAUGH CANAL WATER DISTRICT V. USA  -- Deference to Dept of Interior
CARLOS CASTRO V. CAL TERHUNE -- Prison anti-gang statutes not void for vagueness

Tenth --

 11-3258  United States v. Patterson

DC Circuit --

11-7127Magloire Etoh v. Fannie Mae








12-1284Marc Barnes v. Commissioner, IRS




Federal Circuit -- 

INRE: STEVE MORSA [OPINION]

Go, stranger, and tell the Spartans that at least we got the titles posted.

-MB

Federal Circuit -- BRUCE SAFFRAN v. JOHNSON & JOHNSON [OPINION]

Patent.


BRUCE SAFFRAN v. JOHNSON & JOHNSON [OPINION]

Ninth Circuit -- NORTH EAST MEDICAL SERVICES, I V. CALIFORNIA DEPARTMENT OF HEALT

Health clinics cannot recoup monies paid to the state 11th Amendment bars the suit, as the funds would be taken from the state treasury.

NORTH EAST MEDICAL SERVICES, I V. CALIFORNIA DEPARTMENT OF HEALT

Ninth Circuit -- PETER KNAPPE V. USA

Executor's reliance on accountant's advice as to tax deadline does not excuse the late filing -- deadlines are not a substantive matter.

PETER KNAPPE V. USA

Eighth Circuit -- United States v. William Mefford

Conditions imposed on supervised release not overbroad.

United States v. William Mefford

Eighth Circuit -- United States v. Roberto Rodriguez

Handcuffing during traffic stop did not make it an arrest.

Probable cause for automobile exception search, as deft admitted to having contraband in the car.

Sources sufficed for warrant.

Many sentencing challenges.

United States v. Roberto Rodriguez

Seventh Circuit -- USA v. Steven Dotson

As the dilapidated gun pointed by the deft could still be regarded as something capable of firing bullets and was not beyond repair, it qualifies under the statute.

USA v.   Steven Dotson

Seventh Circuit -- Rebecca Pepper v. Carolyn W. Colvin

No error in ALJ's denial of disability claim.

Rebecca Pepper v.   Carolyn W. Colvin

Seventh Circuit -- USA v. Geoffrie Allen Lee Dill

Alternate juror's presence in jury room did not constitute a Constitutional violation, as the juror did not participate in or affect the deliberations.

USA v.   Geoffrie Allen Lee Dill

Seventh Circuit -- Betty Jordan v. Kelly Binns

Multi-step hearsay analysis.  Ultimately harmless error.

Betty Jordan v.   Kelly Binns

Seventh Circuit -- Solomon Monroe v. Randy J. Davis

Denial of Habeas --

As appellate holding was consistent with time of arrest stipulated to by the parties, the state courts gave the question a full and fair adjudication, despite error by trial court.

No ineffective assistance, as the putative additional witness wouldn't have done much for the case.

Conviction of murder on accountability theory upheld, as the deft's gang had a preexisting common plan to harm the victim.

Solomon Monroe v.   Randy J. Davis

Seventh Circuit -- Lisa Williamson v. Mark Curran, Jr.

As plaintiff's pleadings establish that deputies had reasonable grounds to suspect plaintiff to have stolen the horse, no S1983 claim.

Lisa Williamson v.   Mark Curran, Jr.

Sixth Circuit -- SEC v. Sierra Brokerage Services, Inc

SEC shift in theory of the case at the summary judgment stage from fraud-based to non-fraud-based (investors as stockholders) did not unduly harm deft's ability to defend.

Broker was a control person under Rule 144, given shareholder agreement.

Stock powers made broker a beneficial owner of the securities.

Sufficient scienter for injunction.

SEC v. Sierra Brokerage Services, Inc 

Sixth Circuit -- Cumberland River Coal Co. v. The Federal Mine Safety and He

Order of relief for mine worker upheld, as ALJ credited medical evidence to the contrary.  No impermissible imposition of business judgment.

Cumberland River Coal Co. v. The Federal Mine Safety and He 

Fourth Circuit -- Ashley II of Charleston LLC v. PCS Nitrogen Incorporated

Successor corporation did not assume clear contractual responsibility for predecessor's toxic waste liabilities, as the asset sale was treated as if it were hypothetically a stock swap.  Still responsible, though, after weighing the other evidence.

Extensive grading and construction is enough to make one a responsible party - no need to prove that soil was actually imported.

Adjacent leasehold should be considered part of the site.

Duty of care towards the waste is that of a similarly situated reasonable person.

No error in imposition of joint & several liability, as the inquiry was detailed and fact-specific.

Ashley II of Charleston LLC v. PCS Nitrogen Incorporated 

Third Circuit -- Akers National Roll Company v. United Steel, Paper and Forest

Deference to arbitrator's decision, as an arbitration outcome derives its essence from the CBA if it could in any way rationally derive from it.  Arbitrator could therefore look to past practice of parties.

Akers National Roll Company v. United Steel, Paper and Forest

Third Circuit -- West Run Student Housing v. Huntington National Bank

Conclusory allegations that contractor disclosed information to a competitor insufficient to state a claim.  Corroboration required.

No breach of the implied warranty of good faith and fair dealing in providing financing to a competitor.

At the motion to dismiss stage, the court cannot look beyond the four corners of the pleading -- statements in original pleading later superseded by amended pleading are therefore not binding judicial admissions.

West Run Student Housing v. Huntington National Bank

First Circuit yesterday

These appeared in the First after we went to press yesterday:

Aetna, Inc. v. Pfizer, Inc., et al 

Harden Manufacturing Co. v. Pfizer, Inc. 

Kaiser Foundation Health Plan v. Pfizer, Inc. 

Acosta-Ramirez v. Banco Popular de Puerto Rico 

- MB