Published Circuit Opinons - July 29

Third Circuit:

Nicole Schneyder v. Gina Smith
Where a prosecutor has asked that a material witness be incarcerated and later does not inform the judge of a  continuance in the case, the prosecutor is liable for 4A violations under S1983 for the unreasonable (48 day) "continuing seizure."  Concurrence: Yep.

Fourth Circuit:

Janet Joyner v. Forsyth County, NC
Where a local Board of Commissioners invites all leaders of congregations within its bounds to offer spoken prayers prior to meetings, and at least some of these prayers are sectarian, the prayers violate 1A guarantees of 'public neutrality among faiths.'    Some tension with 11th Circuit holding.  Dissent: Policy of pluralistic inclusion saves any Establishment Clause violation.

Sixth Circuit:

Joseph Muniz v. Willie Smith  
Habeus for ineffective assistance of counsel denied - although attorney slept through cross of deft, the cross was not a 'substantial portion' of the trial.


Seventh Circuit:

Gerald Morisch v. USA
When filing an appeal arguing insufficiency of evidence, include the trial transcript.  Dismissed for noncompliance with 10(b)(2), as reply brief mentioned the omission and plaintiff didn't cure.

Eighth Circuit:

United States v. Edward Joseph Lowen
No suppression of pre-Miranda statements where argument for being in custody is being asked to strike certain poses for photographs; Sufficient evidence despite lack of ID from any of the bank tellers; Allowing officer's statement that the deft looked like the guy on the videotape held inconsequential.

Ninth Circuit:

YOUNG V. HOLDER
Prior panel opinion no longer precedential.   Counsel will be playing the Palace - en banc scheduled

D.P. V. PENINSULA SCHOOL
 Exhaustion requirements in IDEA are affirmative defenses, not jurisdictional restrictions.  (Circuit split flagged.)   Even where a claim addresses a harm remedied by the Act, f the pleading does not mention the Act, the exhaustion requirements don't apply.  Concurrence:  Harm-based approach: if the administrative remedy was available, the exhaustion requirements should apply as affirmative defenses; ConcurDissent:  Elevates form of pleading over its substance, defeats Congressional will.

JONATHAN BISSOON-DATH V. SONY COMPUTER ENTERTAINMENT AMERICA
District Court holding adopted without comment.

Tenth Circuit:

United States v. Lente
DWI manslaughter sentencing - guidelines said five years, trial court imposed 18 years.  Court of Appeals: No.  On remand, second judge imposed 16 years.  Court of Appeals here: much lengthier "No."


Kay Electric v. City of Newkirk, OK
 Municipalities are susceptible to Sherman Act prohibitions on anticompetitive conduct unless the state has authorized the specific form of anticompetitive conduct under attack.  

 James River Insurance Company v. Rapid Funding, LLC

Non-expert expert testimony barred under 701 can't be saved by applying state's rules of evidence, because applying Shady Grove test, there is no conflict between the federal rule and the state rule; Insufficient proof to establish that state statute increasing damages was meant to apply retroactively.

Eleventh Circuit:

Langfitt v. Federal Marine Terminals, Inc.
 Given right to control work, "borrowing employer" shielded from negligence suit by employee.

DC Circuit:

USA v. Rodney L. Moore
140 page crim opinion -  No Batson claim, even though judge didn't discuss each strike on record; Forcing defts to wear stun belts was kosher; Anonymous jury was kosher; Oversteps in opening and closing weren't prejudicial;  Non-expert 'overview' witness was not a means of circumventing hearsay (possible Circuit split); No violation of Brady in not disclosing plea of co-conspirator, viz, he was important and taking the drugs to someone else; Jury's finding of Conspiracy writ large within the time frame (though some specific circumstances argue for a different understanding)  is not to be disturbed; Joinder of offenses in DC Code was proper; Remand to determine if lab reports violated Confrontation Clause; No error in court's not reviewing all interrogation statements for possible Jencks Act violations; Gov't demonstrating piety of witnesses not barred under 610, as defts had challenged veracity of their conversion ot Islam; Gov't leniency to cooperating witness did not justify new trial; Not giving certain instructions did not unjustly undercut the defts' multiple-conspiracy theory; Predicate-offense claim based on the unitary conspiracy theory goes nowhere, as the theory goes nowhere; Exclusion of co-deft's confession under 804(b)(3) was justifiable, given prior & subsequent inconsistent statements; Proving withdrawal from conspiracy is a burden of ultimate persuasion, not production - (circuit split); Tension between 'aiding and abetting' instuction of 'natural and probable consequences' and required mens rea was not plain error, given the Pinkerton  instruction;  Denial of severance was kosher; Concurrence: Batson quibble.

Zuckerman Spaeder LLP v. James Auffenberg, Jr.  
 Active litigation of disputed matters creates a rebuttable presumption of default of arbitration.  
By this opinion we alert the bar in this Circuit that failure to invoke arbitration at the first available opportunity will presumptively extinguish a client’s ability later to opt for arbitration.

Federal Circuit:

EON-NET V. FLAGSTAR BANCORP 
District Court interpretation of terms of art in the patent was supported by the expression of the patent;  Costs and sanctions to challenging party upheld, given discovery (document destruction) and litigation oversteps.


ASSOCIATION FOR MOLECULAR PATHOLOGY V. MYRIAD GENETICS
Patenting of genes (yes) and DNA processes for cancer research - A demand for royalties from putative deft is sufficient for standing to challenge the patent; Isolated DNA is not a 'process of nature' - it is a chemical compound with informational properties, which while it has use in creating processes of nature, is not itself one (Maybe.  TMB is particularly inexpert in this field) Special concurrence: Past legislation and theory creates reliance interests and settled expectations arguing for patentability; Dissent: DNA is people!</Charlton Heston>

Published Circuit Opinions - July 28

Second Circuit

Priestley v. Headminder, Inc.

When a court enters summary judgment against a party not mentioned in the motion for summary judgment, (1) the appeals clock starts anew for that party; (2) the party must have been given a full and fair opportunity to dispute the SJ; (3) subsequent motions in support of the SJ have the burden of production to establish any de facto merger of parties.

Ashland Inc., AshThree LLC v. Morgan Stanley & Co.

Securities fraud - 10(b) reasonable reliance claims of sophisticated investor given the lie by boilerplate disclosures on broker's website of asset vulnerabilities; 'Guaranteed' nature of govt-backed SLARS assets given the lie by buyer's intentions and broker discussions; Common-law claims given the lie by lack of reasonable reliance; Unjust enrichment 'doesn't fit the facts of the case.'

Third Circuit:

Michele Simmsparris v. Countrywide Fin Corp 

Mortgage company alleges that law firm partner was a few weeks late with two mortgage payments, LFP files suit under Fair Credit Reporting Act.  Trial court: dismisses, holding that the claim must first be addressed to the credit reporting agencies.  Appeals court:  Yep.

Fourth Circuit:

US v. Laury Wilks, Jr.

Fruits of search conducted in objectively reasonable reliance on binding circuit precedent not subject to the exclusionary rule, given Scotus holding in Davis that the fruits of a search conducted in objectively reasonable reliance are not subject to the exclusionary rule.

Fifth Circuit:

One Beacon Insurance Company v. Crowley Marine Services, Inc.

Maritime contract law - boilerplate reference on RSO to terms and conditions via a non-working URL incorporates the T&C into the parties agreement through course of dealing; Given wording of policy, contractor is not an additional insured under sub's policy unless named in policy; Remanded for consideration of attorneys fees.

Sixth Circuit:

 USA v. Gary Dudeck, Jr.  

Remand for determination of whether separate conduct underlies receipt and possession of child pr0n files; Sentence not procedurally or substantively unreasonable.

Northridge Church v. Charter Township of Plymouth 

Earlier consent judgment did not violate RFRA, as church waived rights; Consent judgments are prospective by nature, and therefore susceptible to 60(b)(5) modification; RFRA and RLUIPA are similar enough that there is insufficient change in law for modification of the judgment; Factual claims of the church are similar enough that there is insufficient change in factual situation for modification.

Ashland, Inc. v. Oppenheimer & Co., Inc. 

Securities fraud - insufficient scienter for 10(b) pleading, as the seller of the ARS might have been genuinely caught off-guard by the collapse of the market;  Insufficient scienter TKO's the state-law claim as well; 'Particularity' in pleading common-law fraud operates as a correlative to scienter; Online disclosure materials TKO promissory estoppel claim; Negligent misrepresentation TKO'd for lack of proof of reliance.

Seventh Circuit:

USA v. Robert Kendrick

Commerce Clause - based challenge to SORNA struck down.

Georgia-Pacific Cons v. Kimberly-Clark Corporation

Patents/Trademarks - The quilting of toilet paper is functional, and therefore cannot be trademarked.

 But again, this case is about toilet paper, and who really pays attention to the design on a roll of toilet paper? The parties, however, are quick to inform us that in a $4 billion dollar industry, designs are very important. Market share and significant profits are at stake. So with that, we forge on. 

[Puns follow.]

USA v. Robert Mandel

Where gov't informant uses cell phone (article of interstate commerce) to plan crime with deft, no entrapment, as there was insufficient inducement; Intra-state use of an automobile sufficient to qualify as use of an article of interstate commerce - circuit split lightly suggested.

Matrix IV, Incorporated v. American National Bank and Trust

Although the elements of claim preclusion are established (request for equitable subordination denied by Bankruptcy Court resurrected as RICO action against subsequent holder of assets), given tenuous, possibly non-final effect of non-core Bankruptcy Court holdings (circuit split signaled), claim is instead TKO'd under issue preclusion.

Eighth Circuit:

United States v. Alphonzo Williams

Successful motion to acquit reversed, as "uncontroverted" testimony might have been disbelieved by jury & drugs under one's hotel room pillow are sufficient for possession; Motion for new trial upheld, given indiscriminate use of prior conviction at trial.

Jerry Washington v. Countrywide Home Loans, Inc.

More about the Missouri Second Loan Mortgage Act than you'd ever want to know.  Inter alia, 2 day deprivation of fee subsequently returned to the borrower was sufficient loss for standing.

Ricky Moore v. City of Desloge

Under Missouri common law, lack of privity bars use of findings from criminal trial via nonmutual collateral estoppel in subsequent action against police officer; Arrest warrant is self-authenticating as a public document under seal / public document signed by official; Late filing by the municipality properly admitted; Failure to train TKO'd by lack of individual liability on underlying claim.

Maud Ledhagen Gazal v. Boehringer Ingelheim, etc.

Challenges to SOL in products liability suit upheld against continuing torts doctrine, Texas Constitution's "open courts doctrine,"  ripeness doctrine, alleged mental diability of plaintiff; Notice of Breach of Warranty requirement upheld.

United States v. James Douglas

Sentencing - Cross-reference to kidnapping upheld against deft's argument that precedent argued for domestic battery cross-application.

United States v. Chad Miller

Understandable ignorance of the law is no excuse - where court informed deft there would be no 2A restrictions, a possible scrivening error on actual order barred deft's owning of a gun (NB, though, the conviction would usually have implicated 2A); Sentence was reasonable.

Domingo Solis v. Eric H. Holder, Jr
Where BIA discretion is clear, lack of conformity with precedent and legal standard used by IJ are darn near unreviewable.  

United States v. Michael Clay

Where police officer consulted an attorney and interviewed the CI, reliance on the warrant was objectively reasonable.

United States v. Sandra Teague

Deft, convicted of accessing President Obama's student loan records, claims insufficient evidence for unauthorized computer access, as the userid & pw were in an unlocked drawer in her desk & that the court should have provided for expert discovery - Circuit denies both.

(The balance complied from intros, as TMB has a concert to get to.)

Ninth Circuit:

GREENWAY V. SCHRIRO 

Death penalty habeus - ineffective counsel remanded, as earlier state ruling barring deft from arguing the claim on grounds of timeliness and waiver was not a 'previous collateral proceeding.'  Thou shalt not kill.

TRAFFICSCHOOL.COM.INC V. EDRIVER INC. 

Koz - Given evidence of misleading, competitors have a presumption of commercial injury for Lanham Act standing; Injunction ordering a 'splash screen' upheld against overbreadth BUT valid 1A concern, as it delays access of content - remand for tailoring; Denial of damages kosher; DMV.org = exceptional misconduct, court should have awarded fees;

WALTER HOYE, II V. CITY OF OAKLAND

Unequal restrictions on pro-abortion/anti-abortion speech in bubble zone outside clinic violates 1A

. (See earlier note on TMB being out of time here - very quick skim.)

USA V. JUSTIN SPENTZ

No error in not giving entrapment instruction where insufficient inducement established at trial.

THE ESTATE OF JERRY A. AMARO I V. CITY OF OAKLAND

SOL for S1983 action equitably estopped given police affirmative misrepresentations and stonewalling.

Tenth Circuit:

United States v. Beckstrom

Duress instruction properly denied where deft doesn't show inescapability of situation (meth manufacturing); Priors appropriately considered as two offenses for sentencing.

Dudley-Barton v. Service Corporation

Plaintiffs' voluntary dismissal of state action moots federal remand order where not a class action, or capable o repetition yet evading review, etc, etc.

Eleventh Circuit:

Perry R. Dionne v. Floormasters Enterprises, Inc. 

In this matter, we must decide whether an employer, who denies liability for
nonpayment for overtime work, must pay attorney’s fees and costs pursuant to
29 U.S.C. § 216(b) of the Fair Labor Standards Act (“FLSA”) if he tenders the full
amount claimed by an employee where the trial court grants the employer’s motion
to dismiss the employee’s complaint on mootness grounds. We conclude that,
under such circumstances, an employer is not required to pay attorney’s fees and
costs because the District Court has not awarded judgment to the employee as the
prevailing party. Accordingly, we affirm.

 

 

Cindy Fils v. City of Aventura

 Long case.  S1983 action.  TMB is out of time.  Addio!

 

Published Circuit Opinions - July 27

Second Circuit:

Raysor v. United States

 2255 Claim of ineffective assistance of counsel on a declined plea offer should receive hearing where there is a disparity between offer and ultimate sentence, petitioner says that he would have accepted it, and lack of evidence in the record as to factual circumstances of the offer.

First Circuit:

US v. Chaney 

Deft who permits police to reach into his pocket for ID has consented to the search which finds drugs there; Given deft's past record, he likely felt sufficiently free to withhold consent for a search; Clear threats to officers' safety justified handcuffing of deft and a show of force - the Terry stop was therefore not a de facto arrest.

US v. Berk  

Where the deft has ample notice prior to the trial of the specific crime charged, there is no need to specify the crime in the indictment.

Wright-Ryan Construction, Inc. v. AIG Commercial Insurance Company 

Where contractor has insurance A and is an "additional insured" on sub's insurance B, insurance B has a duty to defend as primary insurer, as sub is not an "additional insured" on insurance A.

Haggins v. Verizon New England Inc.

Absent an explicit waiver of a state-law right in a CBA, a claim that a general management-rights provision impinges on a state-law right is preempted under S301, as investigation is required into customs and practices of the industry; No third-party standing to enforce provision in contract between two telecoms that all end users must consent to coverage (incl. GPS tracking).

Fourth Circuit:

Kara Kowalski v. Berkeley County Schools

School can take disciplinary action against student who sets up MySpace discussion board to ridicule another student, as the conduct interferes with the work and discipline of the school.  Interesting dictum:  it was foreseeable in this case that (petitioner's) conduct would reach the school via computers, smartphones, and other electronic devices.

Fifth Circuit:

Timoteo Cuevas, et al v. BAC Home Loans Servicing,

Remand to state court reversed, as improper joinder (restoring diversity jurisdiction) was established at the time of removal to federal court, depite the fact that the joinder had not been timely challenged in the state proceeding prior to removal.

Sixth Circuit:

Darrell Siggers v. Ellen Campbell 

Where specific , legitimate discovery requests likely to establish the veracity of a prisoner's pro se claim are outstanding, a court cannot proceed to summary judgment against the claim.

Seventh Circuit:

Eddie Burnell, Jr. v. Gates Rubber

Title VII retaliatory discharge claim should survive summary judgement where plaintiff has vociferously complained about past discrimination, and management has accused him of playing "the race card."

Nino Arobelidze v. Eric Holder, Jr.

Immigration - a derivative beneficiary's age is frozen under CSPA at the time of denial of petition - subsequent to the primary applicant's cure of the petition, the derivative beneficiary remains eligible for reclassification.  Non-precedential  agency holding otherwise not entitled to Chevron  deference, and insufficiently persuasive under Skidmore.

Thomas Frizzell v. Carl Szabo

Allegedly improper tasering in the course of an arrest does not take a 'nominal damages' instruction off the table, as the injury might have derived from a justifiable part of the taserin.'

Faye Morrison v. YTB International

District Court:  Out of state claimants have no standing under Illinois law for a class-action against an allegedly illicit biz - remand to state courts for adjudication of the claim. 

Easterbrook:  What you meant to say was that plaintiffs had standing, but as a matter of law could not successfully argue for the application of Illinois law under choice-of-law - dismissal with prejudice establishes this.  Class certification would be the first time that out-of-staters could be punted.  Vacated and remanded.

Kansas City Southern v. Russell Koe

Where the funds go to general-use, a local flood-prevention assessment can be a potentially discriminatory railway tax under the 4-R Act; Rooker-Feldman doesn't apply where petitioner was not an actual party in prior state adjudication; Court has authority to issue injunction, even without demonstrable inequity in assessments and property values, given recent Scotus pronouncements on Act.

Eighth Circuit:

Anthony Polich v. Prudential Financial, Inc.

Where medical insurance policy requires an independent medical examination prior to grant of claim, the reasonableness of this requirement is not a matter for the jury.

United States v. David McIntyre

No 4A interest offended by subpoena of electrical utility records; State law does not establish expectation of privacy for these records; Court is not required to grant hearing on warrant obtained by reporting an inaccurate electrical use.

Lance George Owen v. Douglas Weber

Housing complex in a state municipality is not a 'dependent Indian community' for purposes of determining jurisdiction.

Ninth Circuit:

WILLIAM PICKARD V. DEPARTMENT OF JUSTICE

Where gov't has in open court solicited testimony confirming someone's status as a confidential informant, the cat cannot be put back into the tube of toothpaste - gov't can no longer refuse to confirm/deny their status.  Concurrence: Dangerous to allow AUSA's this much power - DOJ rulemaking would have been a better route.

CECIL INGRAM V. ARMINE OROUDJIAN

Settlement negotiations can be considered when determining level of success for award of fees; judges can take judicial notice of prevailing hourly rates; Time spent briefing moot issues may be excluded from payment

VIRGINIA VAN DUSEN V. USDC-AZP

No mandamus, as there is no controlling caselaw holding that a district court must make a decision on an exemption from arbitration before ordering the entire dispute to arbitration. 

Tenth Circuit:

Ute Mountain Ute Tribe v. Rodriguez

Where buden of tax on extraction of oil and gas on Indian land falls largely outside the reservation, the tax is not preempted.  Dissent: District Court found that the tribe benefitted.

United States v. Castellanos-Barba

 District Court committed plain error in applying categorical approach to drug priors in calculating sentencing, but not reversible, as deft has burden to prove that categorical approach resulted in higher sentence than otherwise.  Circuit split flagged.

Rhodes v. Judiscak

Sentencing challenge moot as petitioner is no longer in prison, and court cannot modify supervised release order.

Leprino Foods Co. v. Factory Mutual Insurance Co.

Sufficient expert testimony to establish damage to cheese while stored in third-party warehouse;  Jury instruction did not expand the potential theories of negligence beyond the contractual term at issue; Subsequent remedial measures properly exluded, as they weren't probative of relevant facts; Setoff of recovery by amount recovered in another action required under double recovery bar - not necessarily because of parties' covenant or collateral source rule; Attorney fees properly included in offset.

J.W. v. State of Utah

Abuse of foster kid by other foster kid - battery exception to qualified immunity upheld; but no liability under S1983 as supervisory liability not established.

United States v. Reyes-Alfonso

Colorado "Sexual Contact - No Consent" statute is a forcible sex offense for purposes of subsequent sentencing.

United States v. Merriman

Fraudulently obtained funds forfeited when deft turned himself in and admitted the crime to an "otherwise unsuspecting" prosecutor do not reduce funds at issue for sentencing purposes; Fund management is 'position of trust' for sentencing purposes.

 Eleventh Circuit:

American Association of People With Disabilities v. Katherine Harris 

Voting machines are not "facilities" under the ADA.

In Re: Miguel A. Diaz vs State of FL Dept of Revenue, Miguel A. Diaz, vs Commonwealth of Virginia Dept of Social Services 

Under sovereign immunity, state child-support enforcement agencies cannot be held in contempt for violating a federal bankruptcy court discharge order.

Published Circuit Opinons - July 26

Second Circuit:

Messa v. Goord

No right to jury trial on question of whether prisoner didn't exhaust administrative remedies under PLRA.

United States v. Lee

Where deft forces gov't to a Fatico hearing on a disputed question in sentencing, this is not grounds for the govt not to file for a sentencing reduction based on acceptance of responsibility.

Harper v. Ercole

Where the one year AEDPA habeus limit is tolled, petitioner need not demonstrate reasonable diligence outside of the tolled period (unless such diligence would have allowed the petitioner to file after the end of the potentially tolled time).

Sheet Metal Workers Local No. 33 et al. v. CBRE Realty Fin., Inc. et al.

Misstatement in registration documents for an IPO is material where it is of distinct interest to investors.  Asset in quesiton was troubled loan - District Court held that adequate collateralization meant the lack of warning at IPO was not material - Circuit explicitly disclaims this bright line test.

TradeComet.com LLC v. Google, Inc.    

 Where parties have signed a forum selection cause which permits suit in a different federal district, the court hearing the case in another district may dismiss via 12(b)1,3,6 - it is notcompulsory on the court to transfer to the other venue.

First Circuit:

Recovery Group, Inc. v. Commissioner of IRS 

Tax - a "section 197 intangible" includes any covenant not to compete entered into in connection with the acquisition of any shares - substantial or not -- of stock in a corporation that is engaged in a trade or business. 

US v. Rodriguez-Morales   

"Buy your client a Dayrunner," cont'd: Court upheld dismissal of deft's attempt to withdraw guilty plea.  Deft claimed that prosecutor's inflated sentencing predictions had an unfair in terrorem effect.  The statements were, however, made several months after the plea.

Fourth Circuit:

NTEU v. FLRA

After a contested period where union dues revocations were processed without a union sign-off, arbitrator's resolution need not provide for cancellations of revocations processed without signoff, as no statute compels it.

Sixth Circuit:

Sean O'Malley v. City of Flint

S1983 - Qualified Immunity granted, as (1) parking car behind plaintiff's car in a driveway isn't categorically a seizure, (2) Stopping in response to a police officer's request to talk isn't categorically a seizure (Alternative holding for both - it was a valid Terry stop.)  (3) Use of handcuffs kosher in Terry stop where officer fears for safety (4) not adjusting tight cuffs does not violate clearly established federal law where no injury is apparent.

Seventh Circuit:

White Pearl Inversio v. Cemusa, Inc

An Uruguayan Sociedad Anónima is a corporation (not partnership) for purposes of diversity jurisdiciton; Where the choice-of-law clause indicates that Spanish law should apply, but the lawyers don't brief it, the forum should apply its own law; Services provided beyond the parties agreement do not deserve enforced quantum meruit renumeration.

Western Glove Works v. XMH Corp

 Trademark cannot be licensed in bankruptcy proceding without the consent of the trademark owner - this is (now) a background presumption of contract law; A service agreement is not a de facto trademark agreement for the purpose of assignment restrictions where there are specific trademark provisions within the four corners.

Nova Design Build, I v. Himanshu Modi

 While architectural drawings recreated from memory and paper notes qualify as bona fide copies for registration purposes, plaintiff's designs were insufficiently original for copyright protection (court mizxes the question of originality with 'copying in fact' analysis).

Dimitri Yannacopoulo v. General Dynamics

GD Corp.  contracted with relator to set up telecoms contracts in Greece - when that went sour and Greece later purchased aircraft from GD secured by US money, realtor filed qui tam suit under the False Claims Act alleging contract-type misdeeds by the corporation.  TKO'd at summary judgment.

Eighth Circuit:

United States v. Brian Wells

Crim - sufficient evidence, inclusive of jailhouse snitches; no description of why admission of contested evidence would be substantial error; ineffective counsel claims best not pursued on direct appeal.

United States v. Glen J. White Bull

Brief, unelucidated comment by victim that abuse recurred is insufficient for conviction on

additional counts; no harm on admission of note written to counselor at interview where victim is available for cross; insufficient proof on voir dire challenge; deft has no legitiamte expectation of finality in sentence as announced at sentencing (supervised release was added later).

Ninth Circuit:

ROBERT HUNTER V. COUNTY OF SACRAMENTO

We hold that the District Court prejudicially erred in refusing to instruct the jury that, for purposes of proving a Monell [4A excessive force] claim, a custom or practice can be supported by evidence of repeated constitutional violations which went uninvestigated and for which the errant municipal officers went unpunished. 

CAPE FLATTERY LIMITED V. TITAN MARITIME, LLC

Parties can opt for non-federal arbitration law in agreements; Choice of law clause on body of arbitration law insufficient - clear and unmistakable evidence required (the fault here was that the agreement didn't say that the chosen body of law would decide if the question was arbitrable in the first place) - circuit split signalled; general negligence theory of present  case means that arbitration on meaning of specific terms of the agreement is not called for.

ELIN PHIFER V. ICELANDAIR

Today we clarify that a plaintiff does not have to prove that an airline violated an Federal Aviation Administration (“FAA”) standard to establish that there was an “accident” under Article 17 of the Convention of the Unification of Certain Rules Relating to International Transportation by Air (“Montreal Convention”).

TEAM ENTERPRISES, LLC V. WESTERN INVESTMENT REAL ESTATE

Arranger liability under CERCLA struck down - manufacturer of machine used in dry cleaning has no liability for users' habit of dumping out the waste products i the drains.  Special concurrence: Statute requires that the offender own the substance in question.

CITIZENS FOR BALANCED USE V. MARY ERICKSON

Insufficiency of representation of interests for purposes of determining the merits of an intervention can be established where one party has adopted its litigating position in order to comply with a previous court order.

Tenth Circuit:

United States v. Shavanaux

Prior tribal misdemeanor convictions can count for habitutal offender status, as there's no Sixth Amendment issue, since the 6th Amendment doesn't apply to the tribes - circuit split signalled; DP challenge to tribal priors does not violate principles of Third Restatement of International Law;  Equal Protection challenge TKO'd under Rational Basis.

United States v. Waseta

 As the sentence was "realisitcally imaginable," post-mandatory-guidelines over-guidelines sentence upheld against 5A Due Process challenge.

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.