Published Circuit Opinions - July 25

Third Circuit:

Jesus Alberto Flores-Nova v. Atty Gen USA
Challenge to INA 'continuous prescence' requirement - no Chevron deference necessary, as Congress has clearly spoken;  No Equal Protection violation, as there's a rational basis for treating nonresident aliens differently; International Law challenges under OAS / IACHR TKO'd as IACHR opinions are not binding on US courts; Customary Int'l law challenge under Rights of the Child does not trump on-point statute.

USA v. Ruben Mitchell
 As arrestees have a diminished expectation of privacy in their identities, and DNA collection from arrestees serves important law enforcement interests, we conclude that such collection is reasonable and does not violate the Fourth Amendment. (reversing District Court - arrest was for cocaine possession with intent to spread around.)
Dissent: information contained in DNA goes beyond 'identity' - debate on appropriateness of review under collateral-order doctrine.

Fourth Circuit:

US v. Stephen Digiovanni 
Fifteen-minute Terry traffic stop excessive in scope and duration - consent to seach was not freely given.


Seventh Circuit:

USA v. Berry Carr
Even post-Lopez,  de minimis effect on interstate commerce is sufficient for a Hobbs Act violation (convenience store robbery).


Vatcharee Pronsivaku v. Eric Holder
Immigration hearing protections were sufficient - opportunity to present case, rebut gov't's case.  Petitioner deported despite extensive assistance to DEA.  'Dura lex, sed lex.'

Union Pacific Railro v. CTA
 Even where a local railway holds an effective lease on a right-of-way, an attempt to secure precisely the same control by condemnation is an impermissible regulation, one preempted by the ICCTA.

Ninth Circuit:

GREGORY GRANTHAM V. TIMOTHY CORY
Loan by predecessor in interest established lender as co-venturer, precluding later subrogation.  Dictum: foreclosure on property can be termed 'payment' of loan.

USA V. DAVID YEPEZ
Comity requires that federal sentencing decisions honor state nunc pro tunc orders retroactively removing deft from probationary status at the time of the offense (not the time of sentencing) - circuit split flagged.
Dissent - gives state judges control over federal sentencing.

DION STARR V. COUNTY OF LOS ANGELES
 Where plaintiff in a S1983 action makes detailed factual allegations and a plausible suggestion that a supervisor acquiesced in the unconstitutional actions of subordinates, pleading requirements of 8(a) are satisfied.

MARVIN HORNE V. DEPARTMENT OF AGRICULTURE
Administrative holding that raisin growers must contribute some of their product to a distinctly unrenumerative industry reserve stock supported by substantial evidence / not arbitrary & capricious; Not a Taking, as (1) only triggered by decision to sell crops in interstate commerce, (2) no physical taking, as it is merely a fixed percentage of the crop.  (Question of regulatory taking not briefed.)   Fines not Excessive.


Tenth Circuit:

Rural Water Sewer v. City of Guthrie
Federal statute provides that where a local association is in debt to the federal gov't for installing a water system, they enjoy certain competitive protections.  Held: the boundaries of the area served by such systems is determined customer-by-customer - the threshold is water provision, not enough water provision to put out a fire.  Cournterclaims roundly dismissed.  Some 'we don't need jurisdiction to rule on merits' wonkiness going on in the second half of the opinion.

Pater v. City of Casper, Wyoming
Placement of Notice of Assessment (effective lis pendens - not a lien, as property cannot be taken without additional processes) on title can be a deprivation of property interest

Merrifield v. Board of County Commissioners
Letter from department head recommending dismissal is sufficient notice for procedural due process; First Amendment claims of government (as employer) retaliation for 'associating with' legal counsel are subject to the 'matters of public concern' check. (Circuit split flagged.)  Pendant state law claims on matters of first impression are best resolved by the state courts.

Eleventh Circuit:

Juan Carlos Chavez vs Sec, Florida Department of Corrections 
Even in a death penalty case, 'garden variety' negligece and neglect by legal counsel is insufficient to equitably toll the 1 year habeus rule - egregious misconduct is required.  Thou shalt not kill.

Published Circuit Opinions - July 22

Second Circuit:

USA v. Gonzalez
No error in refusing to allow deft to withdraw guilty plea shortly after retaining second counsel; no tracing requirement in a fraud case to establish the 50-victim sentencing bump; remanded for determination of accurate restitution, as some victims might have received benefits from the misappropriated donations (program ads, etc.).

Jackler v. Byrne
Trainee police officer's refusal to make a false statement in an official record is speech as a citizen on a matter of public concern, and therefore protected by the First Amendment.

USA v. Jennings
A probation officer (athough an Article II official) can actively aid in the investigation of crimes.  

Thomas v. iStar Financial, Inc.
Punitive damages in employment case of 1.6m rejected as unconsitutional; process of conditional remittur  for punitive damages upheld; where dmages are on mixed state and federal claims, federal interest rates apply.

Poulin v. Balise Auto Sales Inc.
No valid claim stated under TILA in putative class action - the statute is a disclosure statute, not an unfair pricing statute, and there was no evidence of nondisclosure. 


First Circuit:

Minor v. Herman 
Receipt of payments from a partnership by the estate of a deceased partner does not constitute a partnership at will;  Motion to reopen a judgment for excusable negect is not barred by rule requiring courts to have continuous jurisdiction where the action has been dismissed sua sponte in the interval; Reestablishment of jurisdiciton provides sufficient ancillary grounds to enforce prior agreement; Settlement of claims cures service problems.

State of New York v. Amgen, Inc. 
State of California v. Amgen, Inc
State of Illinois v. Amgen, Inc. 
State of Georgia v. Amgen, Inc. 
State of Indiana v. Amgen, Inc. 
Illegal Big Pharma kickbacks can cause misrepresentation of a precondition of payment by Medicare, enabling state qui tam claims under the False Claims Act.

Evans v. Gerry 
Statutory change during pendency of criminal trial which allowed the State to petition for sentencing review does not violate clear Supreme Court precedent on ex post facto prohibition.

Cahoon, Jr. v. Shelton Where statute is ambiguous, no burden on municiplity to continue specific retirement medical benefit absent clear estoppel.

Third Circuit:

Eddie Wilson v. US Parole Comm 
Aggregation of DC sentence and Federal sentence arises out of a process issued by a state court, and petitioner therefore needs a COA to reach Circuit Courts of Appeal.

Natl City Mtg Co v. Brian Stephen
Where, subsequent to a federal bankruptcy action, ancillary and pendant issues of state jurisdiction arise (e.g., motion to divest lien, motion to stay the setting aside of a court-ordered sale), they are properly handled by the federal court.


Fifth Circuit:


Wells Fargo Bank NA v. Dorothy Stewart, et al
Where a debtor's challenge reveals systemic problems in a creditor's accounting, and that creditor has other claims pending in the District of the court, an injunciton requiring re-accounting is not justified absent broad, class based claims or a proven pattern of conduct in other cases.

USA v. Chad Piazza
New trial based on new affadavit - not a consequence of deft's lack of due diligence at trial where the omission was not strategic and the witness was not readily available.  (Broad reading.)

Sixth Circuit:

USA v. Xavier Priester
Pre-Spears case remanded for examination of unfairness of crack/cocaine ratio.  Dissent: No error in record.

Seventh Circuit:

Ramon Marin-Garcia v. Eric Holder
Potential deportee has third party standing to assert that his children will suffer harm upon his deportation; current legislation on point is, however, kosher.

Nick Jakich v. U.S. Trust
No fraud on the court in past bankruptcy sale where the alleged misrepresentation was not by counsel.  Poz standard on appropriate level of fraud to reopen a case: The answer is the kind of fraud that ordinarily couldn’t be discovered, despite diligent inquiry,within a year, and in some cases within many years—cases in which there are no grounds for suspicion and the fraud comes to light serendipitously.

Continental Casualty v. Sycamore  Springs Homeowners Association
Where settlement agreement does not differentiate between past remedy and capitl improvements for future, no obligation on insurance company to contribute.

USA v. Donald Brucker
Mandatory minimum sentences upheld against Due Process & Equal Protection challenges.

USA v. Carl Adams
Child pr0n -  above-minimum sentence upheld on grounds of deterrence.

USA v. Jadrion Griffin
When there is no cause fror a traffic stop, drugs discarded during low-speed chase are not fruits of seizure, as seizure does not occur until the stop is made.

Lisa Pakovich v. Verizon LTD plan
ERISA claim moot, as beneficiary had recieved the entirety of her request to the plan (District Court had provided for a continuing benefit), but attorney's fees can be considered under supplementary jurisdiction.


Eighth Circuit:

Gina Jenkins v. Donald Winter
Naval gender harrassment claims - dismissed for fialure to exhaust - poor info does not equitably toll or estop the deadline, as 'general knowlege' of the harm and the remedy suffices.


Beverly River v. Edward D. Jones Co.
Denial of beneits under intoxication exclusion referring to local standards of bein' drunk upheld.


Richard Angevine v. Anheuser-Busch
Emailed assertion from employer denying a specific benefit not sufficient for the repudiation exception- administrative remedies must be further exhausted.

United States v. Kendrick Butler
A paper check is not a 'device' for the 'device-making' sentencing bump.


Charles Green v. Union Security Insurance Co.
District Court erred in fnding a incontrovertable disability upon diagnosis of fibromyalgia.

United States v. Lorena Cervantes
Sufficient circumstantial evidence to convict deft o MJ-growing conspiracy; Admission of prior inconsistent statement by co-deft doesn't violate Crawford/ Confrontation Clause.

United States v. Arturo Padilla Garcia
Sufficient evidence for meth convition; phone number given during unrelated Terry stop admissible, despite prosecution's pretrail claim to have no statements of confessions; jury contamination ruling upheld.

United States v. Paul Riesselman
Incomplete warrant given to deft at time of search does not preclude the fruits of the search from admission at trial  - 4A & FRCP challenges.


Ninth Circuit:


CURTIS JOHN-CHARLES V. STATE OF CALIFORNIA
Habeus denied as neither failure to appoint counsel after initial waiver nor counting a juvie conviction as a "strike" violates clearly established federal law as established by Scotus.




USA V. MABELLE DANN
Worst Nanny Employer Ever.  Sufficient evidence for all relevant convictions, incl. forced labor.  HOWEVER, accrued back child support due the deft's kids cannot be attached as restitution, as the parents are only the conduits of the funds.

DC Circuit:

(Prepared from intros - TMB wants to get to the gym.)


Lake Carriers' Association v. EPA
EPA consideration of state pollution discharge requirements in a nationwide permit upheld, as EPA has insufficient power to challenge state CWA findings.

USA v. Mansour Salahmand
Doctor without license gets the 'vulnerable victims' sentencing bump, despite the fact that the victims were of the doctorin', not the licensin'.

Moath Al Alwi v. Barack Obama
Sufficient evidence that habeus petitioner 'was part of' (as distinct from 'provided support to') Al Quaeda; procedural challenges to denial of extra time to file and abridged discovery procedures TKO'd.

Business Roundtable v. SEC
Exchange Act Rule 14(a)11 (shareholder rights) struck down for lack of APA proccesses. 


Nazul Gul v. Barack Obama
Guantanomo inmates transferred to other countries have no Article III standing to continue their habeus claims.

Otay Mesa Property, LP v. Department of the Interior
Four tiny shrimp in a tire rut insufficient grounds for designating 143 acres as protected property.

Federal Circuit:

IN RE LOVIN 
In sum, we hold that the Board reasonably inter-preted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art. 

Published Circuit Opinions - July 21

Second Circuit:

Bergerson v. Office of Mental Health

IIn a Title VII claim, back pay is not implicitly awarded in the compensatory damages; Earlier order describing state law claims as abandoned cannot me modified absent a change in the facts or the law - the law of the case binds; Where there some evidence that attorney rates shoudl be higher, but some courts in the district continue to award the lower number, the court's award of the lower value is not an abuse of discretion.

Third Circuit:

Gloria Washington v. Hovensa LLC

In determining domicile, absent clear indications of fabrication, a District Court cannot completely disregard an affidavit from a party claiming that she intends to return to another state soon - though self-serving, it might very well be true.

Fourth Circuit:

Heather Braun v. Gary Maynard

Qualified immunity for prison officials who performed invasive searches of prison employees based on an initial scanning by a machine capapble of detecting extraordinarily minute quantities of drugs.  Omninous dictum: For several reasons, nothing in the Supreme Court’s decisions or in our own indicates that a positive Ionscan result cannot generate reasonable suspicion.

Fifth Circuit:

John Spicer v. Laguna Madre Oil & Gas II LLC, et al

Bankruptcy - Disclosure Statement can be consulted to determine if a post-confirmation debtor has standing; Where the Plan and Disclosure Statement specifically reserves the right to pursue actions against named pre-petition shareholders, the post-reorganization entity has standing to pursue the actions; Not disclosing the actions on Schedules does not estop the claim; Where the Confirmation Order retains the right of action, judicial approval of the Plan does not bar the action under res judicata.

Seventh Circuit:

USA v. Napoleon Foster

Where trial court impanelling process means that the (mandatory) alternates-only peremptory strikes cannot be used, no reversable error where counsel agreed to the scheme;  Testimony as to deft's prior check-kiting scheme more probative than prejudicial; Suggesting in opening that witness may lie opens the door to taped admission by deft to (wired) witness;  Prior photo ID kosher, where deft could recall witness and cross during deft's case in chief; Remembering that someone once sent you a letter isn't enough evidence to support a 2A restoration claim; sentencing stuff.

L. Crawford v. Countrywide Home Loan

Panoply of rulings in foreclosure case upheld, e.g. - Where issues and claims previously litigatged in state court are collateral to the federal claims, Rooker-Feldman does not bar; Summary Judgement appropriate under Celotex where claim is possible, but unsupported. You get the idea.

Jessica Benuzzi v. Chicago Board of  Education

Summary judgmennt appropriate in Title VII suit - no reasonable jury would find that the animus was gender-based; BUT proximity in time of certain adverse actions to filing of the suit make possible retaliation an issue for the jury.

TowneSquare Media, L v. Alan Brill 

Poz:  Deft cannot challenge remand to state courts after (deft-opposed) removal to Federal Bankruptcy Court when the complaint, as amended, is determined by the Bankruptcy Court and reviewing Federal District Court to be not within jusridiction.  (Deft apparently failed to argue supplementary jurisdiction to bankruptcy court, making the punt a "disavowal," not a "relinquishment.")

Eighth Circuit:

United States v. Francis McLain

Compliance with state tax law admissible where the charge is not complying with similar federal law; tax avoidance can be charged even without a prior assessment; not filing the appropriate form is a valid way of prosecuting avoidance; remand to determine if employees given bogus deductions actually prepared returns.

Viasystems v. EBM-Papst

Emails, phone calls, and partial payment of prior claim in one state insufficient purposeful availment for specific personal jurisdiction;  insufficient agency over local corporation for general jurisdiction; claims too speculative for further discovery.

United States v. DeShawn Hull

Keeping a gun in the same house where illegal drugs are kept = sentencing bump; If your wife drives you to the deal, you get the 'organizer, manager, or leader' bump; testimony about amount of drugs sold valid for sentencing, even where witness recieved sentencing consideration; sentencing reduction for copping to the deed not manadatory where subsequent statements contradict the guilty plea.

Ninth Circuit:

SINGH V. HOLDER 

Immigration - Reversal given events described as "the epitome of ineffective assistance of counsel."

JOSE RODRIGUEZ-VALENCIA V. ERIC HOLDER, JR.

"Counterfieting" under the INA extends to trademark counterfieting. 

Tenth Circuit:

San Juan Citizens Alliance v. Stiles

Death penalty deft - habeus granted, remand on claim of ineffective assistance of counsel, evidentiary hearing on competency denied.  Thou shalt not kill.

Federal Claims:

DURAMED PHARMA v. PADDOCK LABS 
A prosecution history estoppel presumption obtains when disclosed information becomes the basis for an equivalence claim, and even a general indication of utility in the disclosure is enough to establish foreseability of the eventual equivalent use.  

 

Published Circuit Opinions - July 20

Second Circuit:

Capital Ventures International v. Republic of Argentina

Sovereign default - reversion of collateral in debt restructuring barred by attachments of other creditors - even though the intent is to use the collateral for a new bond issue, the temporary possession by the nation makes it vulnerable to secondary attachments.  Concurrence - the rollover might give seniority to the primary bondholders over the secondary attachments; possibly not a true reversionary interest.

New York Civil Liberties Union v. New York City Transit Authority

Injunction upheld requiring Transit Administration adjudicatory hearings to be open to the public - First Amendment applies to administrative hearings.

Fifth Circuit:

Archdiocese Milwaukee Fund Inc v. Halliburton Comp

Per curiam blip - remanded based on SCOTUS vacation.

Seventh Circuit:

Maria Cardenas v. City of Chicago

Dismissal upheld, as police officer was not properly served, plaintiff's attempt to invoke balance of hardships & claiming that those in blue are notoriously difficult to serve does not suffice.

Trovare Capital Grou v. Simkins Ind

Even where negotiations superficially continue, their validity as bona fide negotiations is a question for trial, inappropriate for summary judgment.

Sheila Schulz v. Green County, State of Wisconsin

Government worker has no property interest impinged when county reclassifies position as part of (small, but) legitimate governmental reorganization and hires her to fill the newly classified position.

USA v. Sergio Ramirez

Immigration charges, but a very broad holding on eligibility for 'fast track' correlative sentencing reduction.  Burden is on deft not only to stipulate to facts & waive all rights, but also to examine those districts that have 'fast track' programs and compare similarly situated cases there.

De Leon Castellanos v. Holder

While the Illinois domestic battery statute is probably not categorically a violent crime after Johnson, the 'battery causing physical harm' statute qualifies.

Eighth Circuit:

Nancy Burnett v. Clarence Burnett

§ 1327(a) affords the confirmed plan res judicata effect and bars Ms. Burnett's attempts in a collateral state court proceeding to expand her entitlement to relief to include interest on her prepetition spousal support.

United States v. William Olson

Standard for purposes of the sentencing bump for assault on an arresting officer is common-law assault, so a deft in a fetal position in a creekbed being bit by police dogs who appears to raise an arm holding a gun has menaced, and therefore assaulted, the officers.

United States v. Miguel Delgado-Hernandez

 Government is not required to prove that an alien remained within the country for the entirety of the time between his illegal entry and his apprehension.

Ninth Circuit:

DEL WEBB COMMUNITIES, INC. V. CHARLES PARTINGTON

Barring 'illegal, unlicensed, and false practices' is too vague to pass muster as an injunction; where the unlicensed business practices harmed a company, the company has standing; where a contract is champertous, (absent contrary recognition of a tort by the state supreme court) there is no basis for a third party to recover damages.

 BLAIR V. MARTEL

 When determining competency for federal habeus actions, the common-law standard is that a preponderance of the evidence must establish competency; speedy trial issues should be addressed under S1983, not habeus; there is no clearly established federal law, as determined by the Supreme Court of the United States, to a speedy appeal.  Death penalty case, btw - Thou shalt not kill.

Tenth Circuit:

Jordan v. Sosa 

Bar on prisoners recieving explicit material is implemented by administrative regulation, making a Constitutional challenge to the Act only valid where it is embodied in the implementing regulation; Action is Constitutionally moot, as it was an institution-specific ruling, and the prisoner is no longer at the facility; Prudential considerations also count against validity, as BOP doesn't yet know where they will send peitioner; BUT 'Capable of repetition, yet evading review' doesn't apply, as the prisoner has no certainty that he will be transferred out of the Circuit; 'Voluntary cessation' does not apply, as the restrictions have ceased due to prisoner's transfer out of the facility.

Eleventh Circuit:

USA v. Hung Thien Ly 

When a pro se deft declines to testify in his own defense, citing in a court-initiated colloquy the fact that he has no lawyer to question him, the court is required to inform the deft of his right to testify in narrative form.

Published Circuit Opinions - July 19

(TMB is very short on time tonight.  This stuff is much more likely than usual to be way off base.)

Second Circuit:

Wu v. Holder
Alien under a stay of deportation who ignores a "bag & baggage" letter does not forfeit his appeal under the fugitive disentitlement doctrine - would give an executive order the force of a court order.  Doctrine is an equitable precept, should vary with circumstances.

United States v. Vilar
No stay of appeal in order to allow deft to file a S2255 habeus collateral attack, but six months' extension allowed for general appeal prep.


Third Circuit:

Roberto Lima v. Newark Police Dept
Extrinsic evidence (the email to which the offer was attached) not admissible to determine whether a Rule 68 offer to settle includes costs.

Fifth Circuit:


Colony Insurance Co. v. Peachtree Construction Ltd
Under Texas law, an insurer's duty to indemnify can arise in a case in which it has no duty to defend;  an excess-liability insurer can maintain a subrogation claim against a primary liability insurer after the insured has been fully indemnified.

Jete Crosby v. Louisiana Health Service
Discovery in an ERISA action should be allowed to go beyond the administrative record where appropriate.

John Kinsel v. Burl Cain, Warden
AEDPA bars successive habeus filing when trial court finds recantation of key witness not credible

Michael Conway v. USA
CEO of airline held to be "responsible person" and therefore liable for 8M of airline's unpaid taxes.

USPPS, Ltd. v. Avery Dennison Corp., et al
Attorney conflict of interest case punted to Patent court; earlier ruling by court did not create an unstated 'rule of the case' holding of present court's jurisdiction.

Wal-Mart Stores, Inc. v. Qore, Inc.
Indemnification provision applies to award of attorney's fees against the indemnifier; award of fees should be closely examined to determine if the action arises within the specific indemnification.

USA v. William Breland, Jr.
Rehabilitation can be considered in revoking deft's supervised release.

Estate of Mable Dean Bradley v. Royal Surplus Line
Supplementary insurer's duty to defend does not arise until actual depletion of first policy; generally inadequate health care is not an ongoing injury for the purpose of identifying whether injury happened within policy's effective dates.

ANR Pipeline Company, et al v. Louisiana Tax Commission
Federal courts barred from considering state's (costly) re-valuation of pipelines, given Tax Injunction Act, and that state courts had considered the constitutional claims.

Sixth Circuit:

Stanley Adams v. Margaret Bradshaw 
Death penalty - method of execution challenges can be brought in habeus.  Thou shalt not kill.

USA v. Edward Fisher
Conviction for fraud upheld against evidentiary admission and sufficiency challenges.

Tracy Cowan v. Clarice Stovall 
Ineffective assistance of counsel habeus petition was timely.

Seventh Circuit:

Dana Woods v. Commissioner
Priosn policy barring pen pal solicitation upheld.

USA v. Charles States
Crim - Statements at time of arrest properly admitted

Milton Luster v. Illinois Dept of Corrections

Eighth Circuit: (Clerk summaries)

Brian Buckner v. Michael J. Astrue -
Civil case - Social Security. ALJ's findings concerning claimant's mental
impairments were supported by the substantial evidence on the record as a
whole; credibility findings regarding claimant were not erroneous; while
the ALJ erred in not expressly addressing the credibility of claimant's
girlfriend's statement, the error did not require remand as it had no
bearing on the outcome; challenge to hypothetical question posed to the
vocational expert rejected.

SEC v. Michael Shanahan, Jr.
Civil case - Securities. District court did not err in granting defendant's
motion for judgment as a matter of law at the close of the SEC's case on
the ground that the SEC had failed to prove the required elements of
scienter and negligence with respect to its claims that defendant had
violated securities law by participating in the grant of backdated "in-the-
money" stock options to corporate executives.

Southern Wine and Spirits, etc v. Mountain Valley Spring Company
Civil case - contracts. District court did not err in finding the
distributorship contract between the parties contemplated the duration of
the relationship and agreed to a term that ends only by mutual consent or
specific acts of default; as such, the district court did not err in finding
the agreement was for a perpetual term and not for an indefinite term;
district court did not err in denying defendant's motion for judgment as a
matter of law on plaintiff's claim for implied covenant of good faith and
fair dealing; however, the evidence was sufficient to support defendant's
counterclaim that plaintiff breached the implied covenant of good faith and
fair dealing, and the district court erred in setting aside the jury verdict
and granting plaintiff judgment as a matter of law; that portion of the case
is remanded, with directions to reinstate the jury's verdict and award for
defendant


Jody Borgman v. Ryan Kedley
Civil case - Civil rights. The district court did not err in finding that a
reasonable officer could have believed that plaintiff was barred from
entering the casino, and the officer was entitled to qualified immunity on
plaintiff's claim that her arrest for trespass violated her civil rights; the
release contained in the 2005 form plaintiff signed, which voluntarily
banned her from the casino, was valid and enforceable, and it absolved the
casino of any liability on plaintiff's constitutional and state law claims.

Ninth Circuit:

VIRIDIANA V. HOLDER




BEEMAN V. ANTHEM PRESCRIPTION

USA V. WALTER BAGDASARIAN




ROY FISHER V. TUCSON UNIFIED SCHOOL DISTRICT


The rest TK.  Or not.

Published Circuit Opinions - July 18

Second Circuit:

Brod v. Omya

(W)hen an alleged violation of RCRA depends on the presence or release of a particular contaminant, the NOI must identify the contaminant alleged to be the basis of the violation with sufficient specificity to permit the recipient to identify the specific legal provision alleged to be violated and the activity alleged to constitute the violation

CSX Corp. v. The Children’s Inv. Fund Mgmt. 

Shares held by second party in a credit-default swap as a hedge against the swap may or may not count towards the first party's 5% threshold for 13(d) - the issue is group formation - remand.  Special concurrence (reads like a dissent, esp. last paragraph):  No investment or voting power  unless there is prior agreement; no intent to evade; comparison of S16 of the Act; not-yet-promulgated SEC authority under Dodd-Frank could resolve.

Fifth Circuit:

USA v. Jose Hernandez

Insufficient expectation of privacy to challenge placement of GPS tracker on deft's brother's truck; BUT sufficient standing to challenge tracking of truck when he was in it - constable did not blunder, though, as monitoring wasn't continuous enough to justify a Maynard/mosaic-type claim.

Eighth Circuit:

Naketa Malone v. Ameren UE

Title VII case - racial discrimination.  Summary judgment for deft upheld, as scattered incidents didn't suffice for hostile workplace claim; Note to plaintiffs: when filing suit for not being promoted in 2007, be absolutely sure that you weren't promoted in 2007.

Timothy Zike v. Advance America Cash Advance

Missouri malicious prosecution claim TKO'd by court's pretrial finding of sufficient cause to charge; no comment as to whether a nolle prosequi is a termination of the case in deft's favor.

Ninth Circuit:

THOMAS WEST V. CHARLES RYAN 

Death penalty deft's habeus claims denied - (1) evidence of childhood abuse that deft withheld at time of trial should have been discovered with due diligence; (2) timely PTSD diagnosis would not have been an absolute bar to death sentence; (3) PTSD collateral attack on prior conviction denied as facts were available to deft at trial & insufficient adverse effects on second sentencing.  PTSD "startle reflex" theory insufficient to challenge findings of killing for pecuniary gain & especially heinous method of killing.  Thou shalt not kill.

MICHAEL ZAPARA V. CIR 

Plaintiffs given notice of lien, asked for stock to be sold and credited to the debt.  Held: (1) Tax court can hear the case given "any relevant issue" language in S6630 (2) Equitable-ish remedy of crediting the amount that would have been gained by the sale upheld as specific remedy, not (statutorily preempted) award of damages.

USA V. MICHAEL MAIR  

Errata - See 4/27.

Published Circuit Opinions - July 15

Second Circuit:

Int’l Strategies Grp., Ltd. v. Ness

SOL not tolled where "continuing course of conduct" is merely incidental contact with someone who has no plausible fiduciary duty; equitable estoppel not appropriate where PL merely hadn't yet realized that he needed to sue someone.

First Circuit:

Valle-Arce v. Puerto Rico Ports Authority 

See 7/8 - Errata.

Fairest-Knight v. Marine World Distributors, Inc 

Repeated repairs to a boat are not res ipsa proof of a valid claim against the shipyard for a breach of the implied warranty of workmanlike performance.

Pruell v. Caritas Christi 

See 7/14 - Errata

Sixth Circuit:

Richard Cole v. Commissioner of Social Security 

SSA - When the ALJ doesn't give the treating physician's opinion controlling weight and doesn't provide a good reason for doing so, it's a-gonna get reversed.

Dwight Morrison v. Tennessee Consolidated Coal Co  
Presumption of disability that arises after proof of pneumonoconiosis is not rebutted by a negative x-ray or examinations in the medical history which did not diagnose the disease - affirmative disproof required.

Seventh Circuit:

Sammy Moore v. Sylvia Mahone

Where a prisoner's civil rights suit might be barred by the rule of Heck (preventing such suits from being a collateral attack on judgments from prior disciplinary hearings), the pro se plaintiff must be informed of the rule and given a chance to make the claim without implicating the former judgment.

Eighth Circuit:

United States v. Steven Schwarte

On review, triggering condition for an anticipatory search warrant need only plausibly have occurred for the search to be valid; Although deft was asleep when the pr0n arrived, he can be charged with constructive possession, given that deft knowingly set in motion the process by which it was delivered.

Ninth Circuit

USA V. ALEJANDRO SEPULVEDA-BARRAZA

Even where deft is not charged with conspiracy, prosc can introduce evidence as to structure and practice of illegal drug enterprises, especially where deft claims to be unknowing courier.

MYERS V. USA 

"Discretionary function" public policy exception to US tort liability does not bar suit where the government conduct is mandatory and specific in the guiding Manual (but general responsibility for safe operation in the Federal Facility Agreement would not suffice);  execution of safety standards is not a matter of public policy; fact-specific foreseeability in the context of breach does not demand proof that the plaintiff be demonstrably imperiled, but proof that the conduct was dangerous to people generally.

Eleventh Circuit:

William Van Poyck v. Bill McCollum 

Death penalty deft seeks access to evidence to test for DNA by a S1983 suit claiming violation of the right to petition for clemency (hoping to prove co-deft pulled the trigger), court holds no such right under substantive due process, but merits of procedural challenge to statutory scheme left open.  Thou shalt not kill.

DC Circuit:

Electronic Privacy Information v. DHS

Airline body scanners - no statutory or 4A violation, but agency violated APA notice & comment, as: (1) even where the public is not compelled to change their behavior, the increasingly intrusive scan is a substantive change, not a procedural one; (2) where the relevant statute does not specifically contemplate the security measures, the addition of the measures is not interperative; (3) even where the security measures are already in place, mandating their use is not a general statement of policy.

USA v. Antwan Delaney

Where testimony at trial and at the suppression hearing differs as to which police officer asked deft for permission to search the car, trial court's determination that both accounts are credible is not subject to reversal as being exceedingly improbable;  sentencing court 'misunderstood its authority' under 3553(a).

William Moore, Jr. v. Michael Hartman

Bivens plaintiff in a 1A/retaliatory prosecution case does not need to establish reasonable probable cause to survive pretrial summary judgment - the connection between the animus and the prosecution is a question of fact for the trial court.

David Roeder v. Islamic Republic of Iran

2008 Amendments to FSIA do not abrogate the bar in the Algiers Accords on suits against Iran - insufficiently clear statement.

Sonya Pettaway v. Teachers Insurance and Annuity

 ERISA suit for termination of policy - insurance company properly relied on its own physician as opposed to the claimant's; no right of appeal on voluntary re-examination of claim by insurer is not a violation of "full and fair review" requirement.

James Stephens v. US Airways Group, Inc.
Where a lump-sum payment is 45 days later than the annuity option, but the lump sum is calculated, the disparity is not actuarial nonequivalence, but a valid claim for interest; Where the delay does not correspond to administrative necessity, it is unreasonable; where unreasonable, the claim is not de minimis.

Published Circuit Opinions - July 14

Second Circuit:

USA v. MacKay

Statutory remission provision (853i) does not bar equitable finding of a constructive trust.  (Except for general creditors.)

Mills v. Fischer

IFP and appointment of counsel denied for incarcerated petitioner with five out of three strikes.

First Circuit:

Kuperman v. Wrenn  

Prison regs limiting facial hair do not violate 1A, 14A & RLUIPA.  

Pruell v. Caritas Christi 

For state claim removal under Section 301 of the Labor Management Relations Act, movant must establish that plaintiffs are covered by a CBA.

Third Circuit:

David Covell v. Bell Sports Inc

 Revision - see 7/12.

Fourth Circuit:

Frederick Henry v. Robert Purnell

Shooting an escaping arrestee when you thought you were tasing him = solid S1983/4A claim.  Objectively unreasonable deprivation of a clear right.  Dissent - consider the officer's subjective situation.

Central West Virginia Energy v. Bayer Cropscience LP

Initial agreement called for arbitration in one city, later agreement superseded the prior agreement and dictated a second city.  An arbitration in the first city then ruled on the validity of the second agreement.  Held: it's a procedural question, not one of arbitrability, and therefore kosher. 

Fifth Circuit:

USA v. Anthony Kebodeaux

Revision - see 7/12.

Rommel Amos v. Joe Thornton

Revision - see 7/7.

Sixth Circuit:

In re: Two Gales

Bankruptcy - summary denial of fees to Chapter 11 counsel insufficiently reasoned; order of disgorgement of pre-petition retainer vacated for determination of whether or not a valid lien was created.

Seventh Circuit:

USA v. Nathaniel Worden

Waiver of appeals of "sentence" waives any appeal on the amount of restitution.

Ivanka Stanojkova v. Eric Holder

Immigration - petition for withholding of removal remanded.

Poz:  Persecution involves, we suggest, the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force. . .

USA v. Dennis Garthus

Child pr0nography sentence upheld - challenges on diminished capacity & sentencing guidelines denied.

Margarita Reyes-Sanc v. Eric Holder

Immigration - voluntary departure in response to apprehension by INS creates a break in continuous physical presence.

Eighth Circuit:

New Stream Insurance, LLC v. PHL Variable Insurance
Third party which paid for insurance fraudulently acquired has no claim to a return of the unearned premia - actual fraud cancels any rescission. (Minn.)

United States v. Larry Cromwell, Jr.
Sentence kosher, no need to vary downward on crack/powder; deft was not required to prove he deserved guidelines range.

Bruce Rademacher v. HBE Corporation
 Dismissal of claim by reservist that he was fired for his service upheld - insufficient proof that service was the cause of termination.

Harvey Edwards v. City of Jonesboro
Dismissal to challenge of state court takings award upheld by claim preclusion, not Rooker-Feldman.

United States v. Nathaniel J. Smith
Detention during Terry stop upheld, Minnesota attempted third-degree burglary sufficiently violent for ACCA.

Sierra Club v. Southwestern Electric Power Co
Proximate property and propensity to outdoorsy-type activities get Article III injury-in-fact for a Clean Water Act Suit.  Possibility of harm justified the injunction.  Special concurrence: COA review was too de novo.

United States v. Joseph Paul Young
Crim - same words at different robberies = signature style and therefore admissible;  BUT the other robberies are not "relevant conduct" for determination of whether sentences should run concurrently; sentence does not violate the parsimony principle.

United States v. Lorenzo Brooks
Crim - Back staircase to multi-family dwelling is not within curtailage; police testimony repeating CI ID of deft as seller of guns and drugs allowed as not offered for the truth of the matter asserted.

United States v. Brian Dion Roach
Physician expert whose expertise on child abuse was gained from practice (not study) held to be qualified.

John S. Lovald v. Kathryn M. Tennyson
Bankruptcy - Trustee cannot sell home where only 31K would be realized, there's no proof that it would benefit claimants on the estate, and the owner of the other half interest contributed all of the equity and faced mental health issues if the property was sold.

Ninth Circuit:

NUNEZ-REYES V. HOLDER
Contrary to prior Circuit precedent, expunged minor state drug offenses can be grounds for deportation.  Prospective application of the rule only.  One partial dissent on prospectivity, one dissent on the merits.

GOMEZ-GRANILLO V. HOLDER
Immigration - "Reason to believe" that petitioner is a drug trafficker is a call that is made based on all information available to the IJ at time of hearing.   (Maybe - this is a tough one to parse.)

E. M. V. PAJARO VALLEY UNIFIED SCHOOL DISTRICT
Whether special education classes are indicated for a poorly performing student.  Dissent: No abuse of discretion.

Tenth Circuit:

McCarty v. Gilchrist
S1983 for malicious prosecution - sufficient cause existed; second malicious prosecution theory cannot be bootstrapped in on destruction of evidence claim; SOL clock ticks from the end of the court case, not the OCCA (?) mandate.

Garrett v. CookGrant of fees in baseless motion to remove to federal court upheld - even during bankruptcy, as the litigation was pre-petition, bu the motion post-petition.

Eleventh Circuit:

Sherodney Stewart v. USA
Pro se second 2255 motion held not to be "second or successive," as the basis for the motion (vacated convictions which were predicate to finding that movant was a career offender) did not exist at filing of earlier motion.

Federal Claims:

TURNER CONSTRUCTION V. U.S.

GAO OCI finding with reference to contract to build army hospital struck down.

Published Circuit Opinions - July 13

Second Circuit:

Lopez v. Terrell

Where a federal sentence is adjusted downward to account for time in state custody, BOP decision to not credit state time served for good conduct is entitled to Skidmore deference.

Applied Energetics v. Newoak

Venue selection clause in formal agreement trumps compulsory arbitration clause in initial agreement where the first agreement is not mentioned in a merger clause.

First Circuit:

Adelson v. Hananel 

K case - personal jurisdiction affirmed; debate on terms; in a bench trial 'missing witness' presumption not in play where the side seeking the presumption doesn't call or depose them if available.

Peckler v. Citigroup Global Markets, Inc. 

Loss of stock in deferred compensation plans due to forfeiture during vesting period upheld against state wage law claims.

Fourth Circuit:

Frederick Aikens v. William Ingram, Jr

Colonel deployed to Kuwait files 1983 action alleging interception of his emails by agents of his superior officers - District Court holds that internal military remedies must first be exhausted, colonel does so, comes back and files a 60(b)(6) to allow the late appeal based on the fact that the court had (perhaps wrongly) directed exhaustion.  Court declines to find extraordinary circumstance & boots case.  Circuit affirms.  Dissents: Court should have stayed the initial case, forgoing of the appeal militates for equitable waiver of deadline.

Sixth Circuit:

Josh Himes v. USA

U.S. as a "statutory employer" is shielded by workmens comp safe-haven from tort claims by an employee of a maintenance company who was (totally) disabled while mowing the lawn of an army base.  (According to  Kentucky law, where the work was "regular and recurrent.")

Seventh Circuit:

Jill Treat v. Kelley Automotive

Terminated employees must seek relief through the Indiana Claims Statute, not the Indiana Wage Statute - the latter is a direct suit, the former is an action pursued on their behalf by the state.

Phillip A. Collins v. America's Servicing Company

Entering into a forebearance agreement doesn't mean that the payments won't be considered late, it just means that they won't take your house so long as you keep making 'em.

USA v. Marcus Powell

Cumulative evidentiary errors are still insignificant when summed; Mid-course motion for an aiding & abetting instruction was fairly granted; retroactive application of Fair Sentencing Act of 2010 still not kosher in 7th Circuit.

Reedsburg Utility Co v. Grede Foundation 

Municipality can't collect on a utility bill from a smelting plant in bankruptcy, as neither the prepetition interest in land, tax collection or special tax collection exceptions to the automatic stay under Chapter 11 apply.

USA v. Jermaine Curtis

Illinois 'discharge of firearm' statute qualifies as a crime of violence for the career offender enhancement; sentencing according to skewed crack/powder guidelines was not an abuse of discretion.

Clarendon National I v. Maria Medin

Where one person has the right to exclusive use of a vehicle owned by another and the first person contracts with a company to perform work with the vehicle, the vehicle is leased, as the first party had effective agency to lease it.  An insurance provision denying recovery when the vehicle is leased therefore fairly bars the claim.

Eighth Circuit:

Neighborhood Enterprises, Inc. v. City of St. Louis

Permitting requirement for a mural which had "End eminent domain abuse" inside of a red circle with a line through it (which is kind of ambiguous, no?) is an impermissible content-based restriction of speech, remanded.

EEOC v. Schwan's Home Service

EEOC Administrative subpoena upheld, despite possible non-timeliness of suit & questions on evidentiary basis for same.

United States v. Bryan Behrens

Guilty plea to securities fraud does not bar "no knowledge" claim at sentencing, given the possibility of mere misappropriation.

United States v. Frank Allen, Jr.
Claims of body language and inattentiveness sufficient to survive Batson challenge.

Ninth Circuit:

FRANKL V HTH CORP

General Counsel of NLRB has authority to file 10(j) petition for injunction, despite statutory command that the Board must make the determination.  (This is in agreement with other Circuits).  In this case, the injunction was not an abuse of discretion.

FEDERAL INSURANCE COMPANY V. UNION PACIFIC RAILROAD COMPANY

Where goods are lost or damaged after being taken off a ship, but before delivery to the customer, the Harter Act (sea-based) regime does not apply; covenants not to sue are therefore enforceable.

NRDC V. COUNTY OF LOS ANGELES

Clean Water Act - some rivers found to be polluted by storm runoff, some found to not be so.  Under the intent of the statute, smaller municipalities are subject not to relaxed standards but to increasingly specific standards.

Tenth Circuit:

United States v. Smith

Assault on an officer of the juvenile justice system (which, categorically, can include mere offensive touching) counts as a violent crime for the ACCA enhancement residual clause - "otherwise involves conduct that presents a serious potential risk of injury to another"

An assault or battery committed by a person in the custody of the state on those responsible for containing him necessarily gives rise to the sort of “powder keg, which may or may not explode into violence and result in physical injury to someone at any given time, but which always has the serious potential to do so.” ( quoting US v. Williams)

Eleventh Circuit:

USA v. Chaplin's, Inc. 

Forfeiture order for the entire contents of a store upheld where proprietor was being paid with drug sale proceeds.  A jewelry shop.   

 

Cat Charter, LLC, et al vs Walter Schurtenberger, et al 

Lightly reasoned arbitration award upheld as reasonable.