Recent Precedential Slip Opinions from the U.S. Circuit Courts of Appeals.
Friday, August 12, 2011
DC Circuit
The DC Circuit server is down at 8:46PM ET -- your correspondent is therefore going to the gym and will add these cases next week.
Eleventh Circuit -- State of Florida v. Dept of HHS
Q: What's 304 pages long and holds the individual health care mandate unconstitutional?
A: State of Florida v. Dept of HHS
A: State of Florida v. Dept of HHS
Tenth Circuit -- United States v. Hoskins (Jodie)
United States v. Hoskins (Jodie)
No error in court declining to consider hypothetical tax returns and instead accepting gov'ts estimate of loss.
No error in court declining to consider hypothetical tax returns and instead accepting gov'ts estimate of loss.
Tenth Circuit -- Chevron Mining Inc. v. United Mine Workers of America
Chevron Mining Inc. v. United Mine Workers of America
Arbitrator's resolution draws its essence from the CBA.
Arbitrator's resolution draws its essence from the CBA.
Ninth Circuti -- STEVE BALDWIN V. KATHLEEN SEBELIUS
STEVE BALDWIN V. KATHLEEN SEBELIUS
(Quick skim of intro)
No standing for challenges to the health care act, as individual has not proved that he doesn't & will not have insurance and company hasn't proved it is of sufficient size.
(Quick skim of intro)
No standing for challenges to the health care act, as individual has not proved that he doesn't & will not have insurance and company hasn't proved it is of sufficient size.
Ninth Circuit -- NYOKA LEE V. CORINTHIAN COLLEGES
NYOKA LEE V. CORINTHIAN COLLEGES
(Very quick skim)
College alleged to have paid recruiters in violation of statute --
Given vagueness of criteria, compensation ratings do not find safe harbor, as it might shield impermissible acts.
Leave to amend the complaint should have been granted - scienter may be established in subsequent amendments.
(Very quick skim)
College alleged to have paid recruiters in violation of statute --
Given vagueness of criteria, compensation ratings do not find safe harbor, as it might shield impermissible acts.
Leave to amend the complaint should have been granted - scienter may be established in subsequent amendments.
Ninth Circuit -- USA V. CARLOS MARGUET-PILLADO
USA V. CARLOS MARGUET-PILLADO
Error in not giving derivative citizenship jury instruction, as it had not been conclusively established in first trial.
Error in not giving derivative citizenship jury instruction, as it had not been conclusively established in first trial.
Ninth Circuit -- ALADS V. COUNTY OF LOS ANGELES
ALADS V. COUNTY OF LOS ANGELES
Policemen suspended during pendency of felony charge against them and who retired before resolution of the question may pursue S1983 claim for lack of sufficient post-termination processes.
Dissent - no protected interest in being paid while in the dock.
Policemen suspended during pendency of felony charge against them and who retired before resolution of the question may pursue S1983 claim for lack of sufficient post-termination processes.
Dissent - no protected interest in being paid while in the dock.
Ninth Circuit -- PINTO V. HOLDER
PINTO V. HOLDER
Where BIA hold for deportation and remands for IJ consideration of voluntary departure, order is sufficiently final.
Where BIA hold for deportation and remands for IJ consideration of voluntary departure, order is sufficiently final.
Eighth Circuit -- United States v. Kevin Price
United States v. Kevin Price
No error in sentencing - deft argument that semiautomatics are less dangerous than handguns is unavailing.
No error in sentencing - deft argument that semiautomatics are less dangerous than handguns is unavailing.
Eighth Circuit -- United States v. Danny Reaves
No error in limiting cross, as sufficient ev against witness was already in record, No Brady violation as not material, No error in jury instruction on witness tampering, sufficient evidence, ineffective assistance should be addressed on collateral challenge.
Eighth Circuit -- Joan Najbar v. The United States
Joan Najbar v. The United States
Postal matter exception to FTCA bars suit against gov't for returning a soldier's letter to sender marked "deceased."
Postal matter exception to FTCA bars suit against gov't for returning a soldier's letter to sender marked "deceased."
Eighth Circuit -- Vincent Ofor v. U.S. Bank, N.A.
Vincent Ofor v. U.S. Bank, N.A.
Signatures on mortgage forms & power of atty were kosher / not timely raised.
Sufficient TILA statutory notification on foreclosure.
Signatures on mortgage forms & power of atty were kosher / not timely raised.
Sufficient TILA statutory notification on foreclosure.
Eighth Circuit -- NLRB v. Leiferman Enterprises, LLC
NLRB v. Leiferman Enterprises, LLC
Substantial evidence for NLRB fact-intensive finding of successor-in-interest. Employer claims of insufficient glazier continuity unavailing.
Substantial evidence for NLRB fact-intensive finding of successor-in-interest. Employer claims of insufficient glazier continuity unavailing.
Eighth Circuit -- Carolyn Schubert v. Auto Owners Insurance Company
Carolyn Schubert v. Auto Owners Insurance Company
Good-faith allegations of pleading as to vexatious refusal to pay claim suffice for establishing 75K amount in controversy.
Insurance provision limiting recovery to half of policy where interest in the property has substantially changed is void since contrary to state law.
Policy provision is not overly vague.
Good-faith allegations of pleading as to vexatious refusal to pay claim suffice for establishing 75K amount in controversy.
Insurance provision limiting recovery to half of policy where interest in the property has substantially changed is void since contrary to state law.
Policy provision is not overly vague.
Eighth Circuit -- G. Latta Bachelor v. Regions Bank
G. Latta Bachelor v. Regions Bank
Despite possible mismanagement of the estate, executrix' actions did not vitiate the spendthrift thrift of which she was the beneficiary - its proceeds can therefore not be attached by executrix' creditors.
Despite possible mismanagement of the estate, executrix' actions did not vitiate the spendthrift thrift of which she was the beneficiary - its proceeds can therefore not be attached by executrix' creditors.
Eighth Circuit -- Donald Moeller v. Douglas Weber
Donald Moeller v. Douglas Weber
Where death penalty juror asks about possibility of parole and judge refers them to the verdict form which says "life imprisonment without parole," no clear violation of law.
Nonparticipation in Daubert hearing & lax challenge to soil samples were strategic choices, not ineffective assistance .
No abuse of discretion in allowing expert to work for both sides.
Aggravating factors did not have to be in the indictment when included in a notice 8 months before trial.
[Thou shalt not kill. - TMB]
Where death penalty juror asks about possibility of parole and judge refers them to the verdict form which says "life imprisonment without parole," no clear violation of law.
Nonparticipation in Daubert hearing & lax challenge to soil samples were strategic choices, not ineffective assistance .
No abuse of discretion in allowing expert to work for both sides.
Aggravating factors did not have to be in the indictment when included in a notice 8 months before trial.
[Thou shalt not kill. - TMB]
Eighth Circuit -- Fond Du Lac Band v. Myron Frans
Fond Du Lac Band v. Myron Frans
Minnesota may tax out-of-state pension monies received by Band members on the reservation.
Constitutional claim - Minnesota and US citizenship, while legislatively allowing for the retention of tribal property, create a nexus sufficient for the state to tax Band members.
Statutory - Off-reservation character of the pension .allows state to tax.
Dissent - Every Single Other Case on the Subject Says You Guys Are Wrong. (Paraphrase, natch.)
Minnesota may tax out-of-state pension monies received by Band members on the reservation.
Constitutional claim - Minnesota and US citizenship, while legislatively allowing for the retention of tribal property, create a nexus sufficient for the state to tax Band members.
Statutory - Off-reservation character of the pension .allows state to tax.
Dissent - Every Single Other Case on the Subject Says You Guys Are Wrong. (Paraphrase, natch.)
Seventh Circuit -- USA v. Kenneth Gaytan
USA v. Kenneth Gaytan
Where the drug buy happens inside a car - outside of video surveillance but within audio surveillance - gov't does not have to call CI who made the buy to establish sufficient evidence.
No confrontation clause issue on taped statements of CI, as although testimonial, they weren't in for the truth of the matter asserted.
No Old Chief-type error in agents testifying to events inside the car as opposed to the CI doing so.
Possible inadmissible expert testimony by agent translating drug argot harmless error.
Where the drug buy happens inside a car - outside of video surveillance but within audio surveillance - gov't does not have to call CI who made the buy to establish sufficient evidence.
No confrontation clause issue on taped statements of CI, as although testimonial, they weren't in for the truth of the matter asserted.
No Old Chief-type error in agents testifying to events inside the car as opposed to the CI doing so.
Possible inadmissible expert testimony by agent translating drug argot harmless error.
Seventh Circuit -- Aurora Blacktop Inc. v. American Southern Insurance
Aurora Blacktop Inc. v. American Southern Insurance
Removal is proper despite lack of party who should be joined, as party was never served in state action - additionally, parties waived the issue by not challenging removal within 30 days.
Under Illinois law, language in the surety must reference third parties in order for them to have third party standing for enforcement - subsequent letters of the direct beneficiary are irrelevant, as the intention at the time of contract is the deciding fact.
Removal is proper despite lack of party who should be joined, as party was never served in state action - additionally, parties waived the issue by not challenging removal within 30 days.
Under Illinois law, language in the surety must reference third parties in order for them to have third party standing for enforcement - subsequent letters of the direct beneficiary are irrelevant, as the intention at the time of contract is the deciding fact.
Sixth Circuit -- In re: Elizabeth Collins
In re: Elizabeth Collins
Bankruptcy trustee's status as a hypothetical judicial lien creditor perfected as the date of filing means that an allegation that another creditor was not perfected as of date of filing means that a 12(b)(6) dismissal of the trustee's assertion of priority is durn wrongheaded.
Ambiguity as to who held the mortgage paper on the date of filing meas that , prior to summary judgment, the court must determine the proper holder at the time.
No error in bankruptcy court setting aside default judgment under 60(b)(6) when all parties agree that the entity had no interest or claim in anything on the date of filing.
Bankruptcy trustee's status as a hypothetical judicial lien creditor perfected as the date of filing means that an allegation that another creditor was not perfected as of date of filing means that a 12(b)(6) dismissal of the trustee's assertion of priority is durn wrongheaded.
Ambiguity as to who held the mortgage paper on the date of filing meas that , prior to summary judgment, the court must determine the proper holder at the time.
No error in bankruptcy court setting aside default judgment under 60(b)(6) when all parties agree that the entity had no interest or claim in anything on the date of filing.
Sixth Circuit -- Pipefitters Local 636 v. Blue Cross Blue Shield of Mich
Pipefitters Local 636 v. Blue Cross Blue Shield of Mich
Class certification reversed - the fact-specific question of whether an entity was acting as an ERISA fiduciary means that the class is not a superior method of adjudication. Given legitimate variation sin facts, non-class action would not subject deft to incompatible standards of conduct/conflicting affirmative duties.
Class certification reversed - the fact-specific question of whether an entity was acting as an ERISA fiduciary means that the class is not a superior method of adjudication. Given legitimate variation sin facts, non-class action would not subject deft to incompatible standards of conduct/conflicting affirmative duties.
Sixth Cicuit -- Dora Giraldo v. Eric Holder, Jr.
Dora Giraldo v. Eric Holder, Jr.
No statutory bar to jurisdiction where IJ grants withholding of removal and BIA reverses and remands for consideration of voluntary departure - th BIA order is sufficiently final. BUT prudential considerations counsel against jurisdiction, since statute forfeits voluntary departure upon filing of appeal, and allowing intermediate appeals would be a means of circumventing this restriction.
No statutory bar to jurisdiction where IJ grants withholding of removal and BIA reverses and remands for consideration of voluntary departure - th BIA order is sufficiently final. BUT prudential considerations counsel against jurisdiction, since statute forfeits voluntary departure upon filing of appeal, and allowing intermediate appeals would be a means of circumventing this restriction.
Sixth Circuit -- Gary Otte v. Mark Houk
Gary Otte v. Mark Houk
No error in State court finding that deft's waiver of trial by jury was sufficiently knowing, despite antipsychotic meds.
No ineffective assistance in not bringing in a substance abuse expert to testify - would have been cumulative.
Not introducing evidence as to upbringing at penalty phase was a strategic choice, not ineffective assistance.
Miranda challenge arguing drug & alcohol withdrawal TKO'd.
[Thou shalt not kill. -TMB]
No error in State court finding that deft's waiver of trial by jury was sufficiently knowing, despite antipsychotic meds.
No ineffective assistance in not bringing in a substance abuse expert to testify - would have been cumulative.
Not introducing evidence as to upbringing at penalty phase was a strategic choice, not ineffective assistance.
Miranda challenge arguing drug & alcohol withdrawal TKO'd.
[Thou shalt not kill. -TMB]
Sixth Circuit -- Sean Taylor v. Kennth T. McKee, Warden
Sean Taylor v. Kennth T. McKee, Warden
Where state has a contemporaneous objection rule, lack of objection defaults subsequent habeus claim.
Ineffective assistance claim can't save the procedural default, as it wasn't exhausted at the state level.
Ineffective assistance claim on collateral attack, claiming that trial-level ineffective assistance wasn't pursued TKO'd as there is no right to appeal counsel.
No requirement that prisons provide those capable of writing legal briefs.
Where state has a contemporaneous objection rule, lack of objection defaults subsequent habeus claim.
Ineffective assistance claim can't save the procedural default, as it wasn't exhausted at the state level.
Ineffective assistance claim on collateral attack, claiming that trial-level ineffective assistance wasn't pursued TKO'd as there is no right to appeal counsel.
No requirement that prisons provide those capable of writing legal briefs.
Labels:
Habeas,
Ineffective Assistance,
Prisoner Litigation
Sixth Circuit -- USA v. Gardner
USA v. Gardner
Categorically, earlier conviction for battery too broad to qualify as a prior for mandatory minimum for possession of child pr0nography.
Procedural problems with state PSR (missing court stamp, no sign that deft assented to terms) mean that it cannot be used to establish the prior.
Categorically, earlier conviction for battery too broad to qualify as a prior for mandatory minimum for possession of child pr0nography.
Procedural problems with state PSR (missing court stamp, no sign that deft assented to terms) mean that it cannot be used to establish the prior.
Sixth Circuit -- USA v. Dawn Hanna
USA v. Dawn Hanna
Misspelling of name in email attachment does not mean that the warrant was groundless.
Email warrant did not have to be pinpont specific or divided by subject of emails.
No error in exclusion for relevance of testimony from head of larger company saying that he had been similarly misled.
Where (90 month) sentencing error results from deft's requests, doctrine of invited error precludes fix on appeal.
National security sentencing bump for violating the Iraq embargo upheld.
No Brady violation.
Where the criminality of the act comes from an executive order, collaboration in the crime by members of the executive does not make it lawful.
Misspelling of name in email attachment does not mean that the warrant was groundless.
Email warrant did not have to be pinpont specific or divided by subject of emails.
No error in exclusion for relevance of testimony from head of larger company saying that he had been similarly misled.
Where (90 month) sentencing error results from deft's requests, doctrine of invited error precludes fix on appeal.
National security sentencing bump for violating the Iraq embargo upheld.
No Brady violation.
Where the criminality of the act comes from an executive order, collaboration in the crime by members of the executive does not make it lawful.
Labels:
Communications /Computers,
Crim,
Fourth Amendment
Fifth Circuit -- USA v. James Brown
USA v. James Brown
(Enron litigation)
Where the evidence is, on its surface, inculpatory, no Brady violation in suppression.
Cumulative evidence insufficient to give a definite and firm conviction of a different outcome - no Brady violation.
(Enron litigation)
Where the evidence is, on its surface, inculpatory, no Brady violation in suppression.
Cumulative evidence insufficient to give a definite and firm conviction of a different outcome - no Brady violation.
Fourth Circuit -- Natalie Dellinger v. Science Applications International
Natalie Dellinger v. Science Applications International
Prospective employee ("contingently approved") cannot claim retaliation under FLSA.
Dissent: The term "employee" is sufficiently broad in the statute.
Prospective employee ("contingently approved") cannot claim retaliation under FLSA.
Dissent: The term "employee" is sufficiently broad in the statute.
First Circuit -- US v. Luna
US v. Luna
Sufficient evidence to find that a local policeman carrying an FBI credential as part of a task force deputation is a federal officer for purposes of statute prohibiting assaulting the Feds.
No reversible error where ammunition is admitted without chain of custody foundation if a subsequent witness testifies to its unique features.
No hearsay in gov't "interstate nexus" expert relying on third-party information.
For ACCA priors - an offense which involves threatening gestures can be an offense which involves the threat or use of force.
Sufficient evidence to find that a local policeman carrying an FBI credential as part of a task force deputation is a federal officer for purposes of statute prohibiting assaulting the Feds.
No reversible error where ammunition is admitted without chain of custody foundation if a subsequent witness testifies to its unique features.
No hearsay in gov't "interstate nexus" expert relying on third-party information.
For ACCA priors - an offense which involves threatening gestures can be an offense which involves the threat or use of force.
Second Circuit -- U.S. v. Simels
U.S. v. Simels
Govt used confidential informant who conversed with the suspect's attorney - led to obstruction of justice charges against atty for attempting to bribe & threaten witnesses.
No holding on whether attorney can assert third-party standing to argue client's 6A harms.
Atty's misrepresentation to prison officials as to another client justified the investigation of the attorney.
No privileged information passed, so no 6A violation.
No error in allowing CI to testify to unrelated intimidation against him.
No error in restricting atty deft to yes/no, in order to diffuse the tension between the witness and the prosecutor.
No error in allowing wiretaps barred by Title III in for impeachment.
As import ban statute prohibits items that "can be used" to do certain things, inoperable objects are not covered.
Sufficient evidence of a substantial step towards witness intimidation.
Where judge agrees to recommend imprisonment at a certain location, and it subsequently comes to light that the location requires a BOP waiver which the judge declines to issue, no error in sentencing under a misapprehension.
Sentence at bottom of range not unreasonable.
Govt used confidential informant who conversed with the suspect's attorney - led to obstruction of justice charges against atty for attempting to bribe & threaten witnesses.
No holding on whether attorney can assert third-party standing to argue client's 6A harms.
Atty's misrepresentation to prison officials as to another client justified the investigation of the attorney.
No privileged information passed, so no 6A violation.
No error in allowing CI to testify to unrelated intimidation against him.
No error in restricting atty deft to yes/no, in order to diffuse the tension between the witness and the prosecutor.
No error in allowing wiretaps barred by Title III in for impeachment.
As import ban statute prohibits items that "can be used" to do certain things, inoperable objects are not covered.
Sufficient evidence of a substantial step towards witness intimidation.
Where judge agrees to recommend imprisonment at a certain location, and it subsequently comes to light that the location requires a BOP waiver which the judge declines to issue, no error in sentencing under a misapprehension.
Sentence at bottom of range not unreasonable.
Labels:
Communications /Computers,
Crim,
Fourth Amendment,
FRE,
Legal Ethics,
Sentencing,
Sufficient Evidence
Thursday, August 11, 2011
Federal Circuit -- HARTFORD FIRE INSURANCE CO. V. U.S.
HARTFORD FIRE INSURANCE CO. V. U.S.
If you're standing surety for a company importing cooked crawdads from China, and some managers of the company get indicted, it's reasonable to let the dust settle for four months or so to see if you need to file for a return of the surety.
Dissent: No it isn't.
If you're standing surety for a company importing cooked crawdads from China, and some managers of the company get indicted, it's reasonable to let the dust settle for four months or so to see if you need to file for a return of the surety.
Dissent: No it isn't.
Federal Circuit -- ARKO FOODS INTERNATIONAL, INC. V. U.S.
ARKO FOODS INTERNATIONAL, INC. V. U.S.
The question of whether something ins an article of milk under the Harmonized Tariff Schedule is answered by asking if it has the essential character of milk.
The question of whether something ins an article of milk under the Harmonized Tariff Schedule is answered by asking if it has the essential character of milk.
Eleventh Circuit -- State Farm Mutual v. Anna N. Duckworth
State Farm Mutual v. Anna N. Duckworth
Claimant's notification of insurance company that she had moved to Florida was insufficient notice of permanent change of address to meet Florida's requirement in the public policy exception in insurance choice of law cases that the resident notify the carrier of new permanent residence. (This so the carrier can know the law under which the policy operates.) SJ appropriate.
Claimant's notification of insurance company that she had moved to Florida was insufficient notice of permanent change of address to meet Florida's requirement in the public policy exception in insurance choice of law cases that the resident notify the carrier of new permanent residence. (This so the carrier can know the law under which the policy operates.) SJ appropriate.
Tenth Circuit -- Tomlinson v. El Paso Corp
Tomlinson v. El Paso Corp
ERISA does not require notification of wear-away periods so long as employees are informed and forewarned of plan changes.
Essentially, when a plan transitions, it takes awhile for monies accrued to catch up to minimum benefits - this period of flat-line benefits can arguably discriminate against older employees.
ERISA does not require notification of wear-away periods so long as employees are informed and forewarned of plan changes.
Essentially, when a plan transitions, it takes awhile for monies accrued to catch up to minimum benefits - this period of flat-line benefits can arguably discriminate against older employees.
Ninth Circuit -- BLUE LAKE RANCHERIA V. USA
BLUE LAKE RANCHERIA V. USA
Exemption from employment tax for Indian tribes refers only to common-law employment not statutory ("employer of record") employment. CCNV factors & Treasury regs used to determine common law employment.
Exemption from employment tax for Indian tribes refers only to common-law employment not statutory ("employer of record") employment. CCNV factors & Treasury regs used to determine common law employment.
Ninth Circuit -- USA V. AGUILA-MONTES DE OCA
USA V. AGUILA-MONTES DE OCA
Court rejects a bright line "missing element" rule for counting priors for sentencing bumps. Instead, wherever the prior offense is categorically broader than the generic offense, a modified-categorical analysis should look to the specific facts found in the earlier conviction. There is no requirement that the prior offense be divisible to invoke the modified-categorical - a broad term in the statute will suffice.
Strongly worded special concurrence - Scotus clear that only divisible (multiple ways of commitin' them) statutes get the modified-categorical treatment.
Another concurrence: Although the majority opinion overrules Navarro-Lopez’s rule regarding our inability to apply the modified categorical approach when a state statute is missing an element of a generic offense, it effectively re-imposes the same missing element rule in applying the modified categorical approach to the facts of this case. According to the en banc opinion, use of the modified categorical approach is precluded if applicable state law contains nuances that differ from the generic definition of the crime. However, Supreme Court precedent does not mandate or counsel such a restrictive approach.
Court rejects a bright line "missing element" rule for counting priors for sentencing bumps. Instead, wherever the prior offense is categorically broader than the generic offense, a modified-categorical analysis should look to the specific facts found in the earlier conviction. There is no requirement that the prior offense be divisible to invoke the modified-categorical - a broad term in the statute will suffice.
Strongly worded special concurrence - Scotus clear that only divisible (multiple ways of commitin' them) statutes get the modified-categorical treatment.
Another concurrence: Although the majority opinion overrules Navarro-Lopez’s rule regarding our inability to apply the modified categorical approach when a state statute is missing an element of a generic offense, it effectively re-imposes the same missing element rule in applying the modified categorical approach to the facts of this case. According to the en banc opinion, use of the modified categorical approach is precluded if applicable state law contains nuances that differ from the generic definition of the crime. However, Supreme Court precedent does not mandate or counsel such a restrictive approach.
Eighth Circuit -- United States v. Donavan Michael Slagg
United States v. Donavan Michael Slagg
No error in district court finding of large conspiracy as opposed to many smaller ones, as interdependence of multiple buyers and sellers indicated a common purpose.
Broke deft posting bail allows jury reasonably to conclude that drug money is being laundered.
No error in not giving instruction that buyer/seller is insufficient for conspiracy, as evidence established that more was going on than buying and selling.
When deft objected to introduction of mug shot but subsequently withdrew the objection, the claim is waived for appeal.
Where consent to forfeiture is predicated on conviction, not relevant which offense is convicted (deft was acquitted of the most seemingly relevant one).
No error in district court finding of large conspiracy as opposed to many smaller ones, as interdependence of multiple buyers and sellers indicated a common purpose.
Broke deft posting bail allows jury reasonably to conclude that drug money is being laundered.
No error in not giving instruction that buyer/seller is insufficient for conspiracy, as evidence established that more was going on than buying and selling.
When deft objected to introduction of mug shot but subsequently withdrew the objection, the claim is waived for appeal.
Where consent to forfeiture is predicated on conviction, not relevant which offense is convicted (deft was acquitted of the most seemingly relevant one).
Eighth Circuit -- United States v. Tamara Lynn Heid
United States v. Tamara Lynn Heid
Error in barring withdrawal of guilty plea, as there was no factual basis in the record for money-laundering charge.
Error in barring withdrawal of guilty plea, as there was no factual basis in the record for money-laundering charge.
Eighth Circuit -- Railroad Salvage & Restoration v. STB
Railroad Salvage & Restoration v. STB
When a court refers an issue to the Surface Transportation Board, the court holds jurisdiction over not just the narrow issue presented, but also, more broadly, from any issues which arise from the issue under consideration.
Potential circuit split with the Great and Powerful (with respect to administrative law) DC Circuit flagged.
When a court refers an issue to the Surface Transportation Board, the court holds jurisdiction over not just the narrow issue presented, but also, more broadly, from any issues which arise from the issue under consideration.
Potential circuit split with the Great and Powerful (with respect to administrative law) DC Circuit flagged.
Eighth Circuit -- Relenthis Blakley v. Schlumberger Technology Corp.
Relenthis Blakley v. Schlumberger Technology Corp.
Award of costs need not be on motion, just a schedule of costs - authorities cited by deft refer to fees, which are different.
12(b) motion granted for not exhausting administrative remedies was not error, as there was sufficient evidence in the public record.
12(b) dismissal as duplicative not erroneous.
Adding a new statutory c/a not kosher after being given leave to amend initial claim.
Summary judgment on Title VII and FMLA was correct.
Award of costs need not be on motion, just a schedule of costs - authorities cited by deft refer to fees, which are different.
12(b) motion granted for not exhausting administrative remedies was not error, as there was sufficient evidence in the public record.
12(b) dismissal as duplicative not erroneous.
Adding a new statutory c/a not kosher after being given leave to amend initial claim.
Summary judgment on Title VII and FMLA was correct.
Eighth Circuit -- Dakota, MN & Eastern R.R. v. Kevin Schieffer
Dakota, MN & Eastern R.R. v. Kevin Schieffer
(W)e conclude that an individual contract providing severance benefits to a single executive employee is not an ERISA employee welfare benefit plan within the meaning of 29 U.S.C. § 1002(1)
Remanded for consideration of whether payments at time of severance functioned as ERISA payments and therefore give jurisdiction under "relating to" jurisdictional grant of statute.
(W)e conclude that an individual contract providing severance benefits to a single executive employee is not an ERISA employee welfare benefit plan within the meaning of 29 U.S.C. § 1002(1)
Remanded for consideration of whether payments at time of severance functioned as ERISA payments and therefore give jurisdiction under "relating to" jurisdictional grant of statute.
Eighth Circuit -- Owner-Operator Independent v. Supervalu, Inc
Owner-Operator Independent v. Supervalu, Inc
Where truckers incur special costs in offloading at a certain depot, they have an affirmative duty to prove that no third party (e.g., the shipper) has reimbursed their costs before invoking a statutory c/a.
Extensive discussion of legislative intent/ statutory construction.
Concurrence: There is no statutory c/a.
Where truckers incur special costs in offloading at a certain depot, they have an affirmative duty to prove that no third party (e.g., the shipper) has reimbursed their costs before invoking a statutory c/a.
Extensive discussion of legislative intent/ statutory construction.
Concurrence: There is no statutory c/a.
Eighth Circuit -- United States v. Vincent Johnson
United States v. Vincent Johnson
No error in upward departure from guidelines because range insufficiently describes criminal history when such history is barred from consideration by guidelines. (remoteness)
Reasonable, sufficiently explained.
No error in upward departure from guidelines because range insufficiently describes criminal history when such history is barred from consideration by guidelines. (remoteness)
Reasonable, sufficiently explained.
Seventh Circuit -- USA v. Scott Johnson
USA v. Scott Johnson
When you have a CI who says he bought drugs from deft at deft's house four times in the last week, you have enough for a search warrant.
No error in trial court not giving a special credibility instruction, as court is in best place to judge.
Where prosc. in opening says deft had 5kg of cocaine, but then immediately corrects it to 1/2kg, no error in denying mistrial. (Record established that 5KG had been there the night before.)
Prohibition in Sarbanes-Oxley on destruction of documents & objects can be used against deft who tries to destroy cocaine base before police get to it - it merely has to be relevant to a possible future court proceeding.
Said destruction properly referenced at sentencing to base offense of conspiracy, not possession.
When you have a CI who says he bought drugs from deft at deft's house four times in the last week, you have enough for a search warrant.
No error in trial court not giving a special credibility instruction, as court is in best place to judge.
Where prosc. in opening says deft had 5kg of cocaine, but then immediately corrects it to 1/2kg, no error in denying mistrial. (Record established that 5KG had been there the night before.)
Prohibition in Sarbanes-Oxley on destruction of documents & objects can be used against deft who tries to destroy cocaine base before police get to it - it merely has to be relevant to a possible future court proceeding.
Said destruction properly referenced at sentencing to base offense of conspiracy, not possession.
Seventh Circuit -- Paula Jackson v. Indian Prarie School
Paula Jackson v. Indian Prarie School
Where a school places a violent, disabled student in a one-person classroom and the student later TKO's the teacher with a chair, the teacher has no S1983 claim under substantive due process against the school, as the setup was insufficiently conscience-shocking.
Where a school places a violent, disabled student in a one-person classroom and the student later TKO's the teacher with a chair, the teacher has no S1983 claim under substantive due process against the school, as the setup was insufficiently conscience-shocking.
Sixth Circuit -- Stumpf v. Houk
Stumpf v. Houk
Lack of due process challenge in the District Court record does not mean that court of appeals cannot consider DP, as per Scotus remand instruction, as the issue was raised in passing in the habeus petition.
State earlier waived procedural default argument vs. DP challenge.
Teague bar on retroactivity of new criminal rules is not jurisdictional.
Suggesting in closing that deft was the principal actor in the murder, where state has evidence and belief that a different deft was the central actor is a "constitutional violation" which prejudices sentencing.
Dissent: Conviction was by best information available at the time, Teague bars creation of a new substantive right.
Volokh has more here.
[Thou shalt not kill. -TMB]
Lack of due process challenge in the District Court record does not mean that court of appeals cannot consider DP, as per Scotus remand instruction, as the issue was raised in passing in the habeus petition.
State earlier waived procedural default argument vs. DP challenge.
Teague bar on retroactivity of new criminal rules is not jurisdictional.
Suggesting in closing that deft was the principal actor in the murder, where state has evidence and belief that a different deft was the central actor is a "constitutional violation" which prejudices sentencing.
Dissent: Conviction was by best information available at the time, Teague bars creation of a new substantive right.
Volokh has more here.
[Thou shalt not kill. -TMB]
Sixth Circuit -- USA v. Darrell Walker
USA v. Darrell Walker
Error for sentence for escape, as it was revised upwards from guidelines to promote inmate's rehabilitation.
Error for sentence for escape, as it was revised upwards from guidelines to promote inmate's rehabilitation.
Fifth Circuit -- Jane Doe, et al v. Covington County Sch Dist, et al
Third Circuit -- William Morgan v. Covington Twp
First Circuit -- Contour Design Inc. v. Chance Mold Steel Company Ltd
Contour Design Inc. v. Chance Mold Steel Company Ltd
No error in issuance of preliminary injucntion where then supported in record - court here defers to judgment of lower court, as the action on the merits has completed, and emphasises that the lower court is free to convert the preliminary injunction into permanent relief even while parties seek direct appeals.
No error in issuance of preliminary injucntion where then supported in record - court here defers to judgment of lower court, as the action on the merits has completed, and emphasises that the lower court is free to convert the preliminary injunction into permanent relief even while parties seek direct appeals.
First Circuit -- National Organization For Marriage v. Daluz
National Organization For Marriage v. Daluz
No error in denial of injunction - vagueness and free speech challenges.
Free speech - sufficient government interest to justify the disclosure requirements.
Vagueness - merely requires interpretation.
See Other NOM case filed today for expanded rationale.
No error in denial of injunction - vagueness and free speech challenges.
Free speech - sufficient government interest to justify the disclosure requirements.
Vagueness - merely requires interpretation.
See Other NOM case filed today for expanded rationale.
First Circuit -- National Organization For Marr v. McKee
National Organization For Marr v. McKee
National organization does not have standing to challenge state regulations of major-purpose PACS, as the major purpose of the organization is not intervention in that particular state's affairs.
National organization has standing to challenge non-major-purpose PAC laws, given self-censorship in recent campaign.
National organization has standing to challenge out-of-state PAC laws.
Even though plaintiff's actual conduct was clearly within the ambit of the statute, forgone/chilled conduct grants standing to challenge vagueness.
Extensive discussion of issue advocacy versus candidacy support - ultimately held to be irrelevant to overbreadth.
State law defining PAC's and regulating disclosure held to exacting (intermediate - substantial connection to legit end) scrutiny, not strict scrutiny. No burden in being labeled a PAC.
State interest in dissemination of information means that the definition of PACs is not overbroad.
$100 trigger for independent expenditure reporting constitutional despite not being indexed to inflation.
Minimal attribution and disclaimer regs kosher after Citizens United.
Terms used in Act not unconstitutionally vague under due process.
Where parties stipulate that certain parts of the record are to be sealed, no error in court ordering opening of entire trial record, absent proof of harm from parties. Presumption is for openness.
National organization does not have standing to challenge state regulations of major-purpose PACS, as the major purpose of the organization is not intervention in that particular state's affairs.
National organization has standing to challenge non-major-purpose PAC laws, given self-censorship in recent campaign.
National organization has standing to challenge out-of-state PAC laws.
Even though plaintiff's actual conduct was clearly within the ambit of the statute, forgone/chilled conduct grants standing to challenge vagueness.
Extensive discussion of issue advocacy versus candidacy support - ultimately held to be irrelevant to overbreadth.
State law defining PAC's and regulating disclosure held to exacting (intermediate - substantial connection to legit end) scrutiny, not strict scrutiny. No burden in being labeled a PAC.
State interest in dissemination of information means that the definition of PACs is not overbroad.
$100 trigger for independent expenditure reporting constitutional despite not being indexed to inflation.
Minimal attribution and disclaimer regs kosher after Citizens United.
Terms used in Act not unconstitutionally vague under due process.
Where parties stipulate that certain parts of the record are to be sealed, no error in court ordering opening of entire trial record, absent proof of harm from parties. Presumption is for openness.
First Circuit -- Precetaj v. Holder, Jr.
Precetaj v. Holder, Jr.
Given that IJ found applicant's story of scattered abuses to be true, infiltration of foreign police and abuse of family members should counsel for grant of asylum - vacated and remanded.
Given that IJ found applicant's story of scattered abuses to be true, infiltration of foreign police and abuse of family members should counsel for grant of asylum - vacated and remanded.
First Circuit -- US v. Shields
US v. Shields
Federal civil commitment statute generally constitutional - possible interbranch delegation issue described as underbriefed & therefore waived.
De minimis error in date of filing of government petition does not bar commitment. (Act specifies that inmate must be under control of the BOP, papers were filed the day after end of sentence)
Given priors and 2/3rds of shrinks' verdicts, no error in finding of dangerousness.
Federal civil commitment statute generally constitutional - possible interbranch delegation issue described as underbriefed & therefore waived.
De minimis error in date of filing of government petition does not bar commitment. (Act specifies that inmate must be under control of the BOP, papers were filed the day after end of sentence)
Given priors and 2/3rds of shrinks' verdicts, no error in finding of dangerousness.
Second Circuit -- Williams v. Citigroup
Williams v. Citigroup
No obligation to file a motion to amend the pleadings with initial answer or prior to entry of judgment on a 12(b)6 - a postjudgment motion to that effect should be granted where amendment can cure the defects of the pleading.
(Reasons - FRCP directive on liberal granting of leave to amend & desire of courts to answer questions on the merits. )
No obligation to file a motion to amend the pleadings with initial answer or prior to entry of judgment on a 12(b)6 - a postjudgment motion to that effect should be granted where amendment can cure the defects of the pleading.
(Reasons - FRCP directive on liberal granting of leave to amend & desire of courts to answer questions on the merits. )
Wednesday, August 10, 2011
Federal Circuit -- CBT FLINT PARTNERS, LLC. V. RETURN PATH, INC.
CBT FLINT PARTNERS, LLC. V. RETURN PATH, INC.
Patent Law -
Quick parse far outside of TMB's intellectual comfort zone sez:
When repairing an obvious and correctable error in the patent application, the court should take the perspective of someone skilled in the art.
Testimony of one skilled in the art is not dispositive.
[Really, though, no clue. TMB]
Patent Law -
Quick parse far outside of TMB's intellectual comfort zone sez:
When repairing an obvious and correctable error in the patent application, the court should take the perspective of someone skilled in the art.
Testimony of one skilled in the art is not dispositive.
[Really, though, no clue. TMB]
Federal Circuit -- MHL TEK, LLC. V. NISSAN MOTOR CO.
MHL TEK, LLC. V. NISSAN MOTOR CO.
Patent law -
Quick parse far outside of TMB's intellectual comfort zone sez:
(1) No standing on some claims, as carve-out protected parent inventions, and while patents reference part of the parent inventions, there was still a distinction.
(2) As the claims of the individual patent are supported by the Parent application, it is within the 'inventions and discoveries' contemplated by the latter.
(3) Where individual patents concern elements of the Parent, they do not necessarily concern the Parent itself.
[Really, though - no clue. TMB]
Patent law -
Quick parse far outside of TMB's intellectual comfort zone sez:
(1) No standing on some claims, as carve-out protected parent inventions, and while patents reference part of the parent inventions, there was still a distinction.
(2) As the claims of the individual patent are supported by the Parent application, it is within the 'inventions and discoveries' contemplated by the latter.
(3) Where individual patents concern elements of the Parent, they do not necessarily concern the Parent itself.
[Really, though - no clue. TMB]
Eleventh Circuit -- Barbara Elizabeth Lawson, et al v. Life of the South Insurance Company
Barbara Elizabeth Lawson, et al v. Life of the South Insurance Company
Under Georgia law, a third party cannot compel arbitraiton based on a claim of third party benefit or indirect (based on a second agreement which would not have been concluded except for the existence of the first) equitable estoppel.
Concurrence, State law governs, equitable estoppel appropriate, but barred by state arbitration law.
Under Georgia law, a third party cannot compel arbitraiton based on a claim of third party benefit or indirect (based on a second agreement which would not have been concluded except for the existence of the first) equitable estoppel.
Concurrence, State law governs, equitable estoppel appropriate, but barred by state arbitration law.
Tenth Circuit -- Standifer v. Ledezma
Standifer v. Ledezma
BOP policy of only looking back 12 months to determine eligibility for drug treatment programs is kosher & not a DP violation.
Deliberate indifference to medical needs must be raised in S1983, not in habeus.
BOP policy of only looking back 12 months to determine eligibility for drug treatment programs is kosher & not a DP violation.
Deliberate indifference to medical needs must be raised in S1983, not in habeus.
Niinth Circuit -- TODD BRANDT V. AMERICAN BANKERS INSURANCE CO
TODD BRANDT V. AMERICAN BANKERS INSURANCE CO
District court can set aside a default judgment after finding excusable neglect - the multifactor test need not be balanced, and no one consideration is dominant.
District court can set aside a default judgment after finding excusable neglect - the multifactor test need not be balanced, and no one consideration is dominant.
Ninth Circuit -- DWAYNE WOODS V. STEPHEN SINCLAIR
DWAYNE WOODS V. STEPHEN SINCLAIR
Where deft, in course of colloquy as to continuances, indicates readiness to proceed pro se, state courts' determination that the statement wasn't a valid attempt to dismiss counsel is not unreasonable.
Violation of confrontation clause was harmless error, as statements were cumulative.
No error in state court denial of evidentiary hearing to develop Brady claim as to lab's practice of discarding draft reports.
Lack of details in prosc's admission that some blood spilled at the lab is not grounds for justifying procedural shortcomings by deft.
Ineffective assistance:
Attorney overwork not grounds for ineffective assistance claim.
State finding not unreasonable that lack of diminished capacity defense was not prejudicial given that it would have contradicted deft's alibi defense.
No evidence that deft would have agreed to intoxication defense.
No error in counsel not confronting witness on priors and changes in story, given other evidence of untrustworthiness.
No error in introduction of alias, as it was the sobriquet of the fingerprints.
Insufficient DNA critique presented at state level.
No error in illustrative autorads not going to jury room.
Procedural default on insipid cross of witness, as not argued in state habeus.
No reversible error from cumulative deficiencies.
[Thou shalt not kill. -TMB ]
Where deft, in course of colloquy as to continuances, indicates readiness to proceed pro se, state courts' determination that the statement wasn't a valid attempt to dismiss counsel is not unreasonable.
Violation of confrontation clause was harmless error, as statements were cumulative.
No error in state court denial of evidentiary hearing to develop Brady claim as to lab's practice of discarding draft reports.
Lack of details in prosc's admission that some blood spilled at the lab is not grounds for justifying procedural shortcomings by deft.
Ineffective assistance:
Attorney overwork not grounds for ineffective assistance claim.
State finding not unreasonable that lack of diminished capacity defense was not prejudicial given that it would have contradicted deft's alibi defense.
No evidence that deft would have agreed to intoxication defense.
No error in counsel not confronting witness on priors and changes in story, given other evidence of untrustworthiness.
No error in introduction of alias, as it was the sobriquet of the fingerprints.
Insufficient DNA critique presented at state level.
No error in illustrative autorads not going to jury room.
Procedural default on insipid cross of witness, as not argued in state habeus.
No reversible error from cumulative deficiencies.
[Thou shalt not kill. -TMB ]
Ninth Circuit -- VIEWTECH, INC. V. USA
VIEWTECH, INC. V. USA
Where depositor has a controlling interest in the entity where his funds are deposited, no requirement under statute to notification of the depositor upon issuance of a summons for the records.
Where depositor has a controlling interest in the entity where his funds are deposited, no requirement under statute to notification of the depositor upon issuance of a summons for the records.
Ninth Circuit -- ROBERT FAIRBANK V. ROBERT AYERS, JR.
Ninth Circuit -- SORIANO-VINO V. HOLDER
SORIANO-VINO V. HOLDER
The confidentiality provisions of the Special Agricultural Workers' Program were not violated, where in an interview which resulted in a signed affirmation of having committed SAW fraud, information was gained which resulted in denial of residency. Logic - only the form itself is confidential.
The confidentiality provisions of the Special Agricultural Workers' Program were not violated, where in an interview which resulted in a signed affirmation of having committed SAW fraud, information was gained which resulted in denial of residency. Logic - only the form itself is confidential.
Eighth Circuit -- John S. Lovald v. Gerald Wayne Falzerano
John S. Lovald v. Gerald Wayne Falzerano
No recovery to estate on a claim based in unjust enrichment, as unjust enrichment is an equitable action presupposing a contractual relationship, not a ripe debt as required by the Bankruptcy Code.
No recovery to estate on a claim based in unjust enrichment, as unjust enrichment is an equitable action presupposing a contractual relationship, not a ripe debt as required by the Bankruptcy Code.
Eighth Circuit -- United States v. Jemaine Sidney
United States v. Jemaine Sidney
The FSA does not apply to those sentenced after effective date of the Act where the crime was before the effective date of the Act.
No violation of ex post facto, cruel & unusual or equal protection , given circuit precedent.
As FSA is not retroactive, it is not a basis for the withdrawal of a plea.
The FSA does not apply to those sentenced after effective date of the Act where the crime was before the effective date of the Act.
No violation of ex post facto, cruel & unusual or equal protection , given circuit precedent.
As FSA is not retroactive, it is not a basis for the withdrawal of a plea.
Labels:
Circuit Split,
Crim,
Cruel and Unusual Punishment,
FRCrimP,
Sentencing
Eighth Circuit -- Sherry Perkins v. Michael J. Astrue
Sherry Perkins v. Michael J. Astrue
No deference to the treating physician, as the notes were conclusory as to the disability & internally inconsistent.
No evidence to show ALJ biased against fibromyalgia claims.
No deference to the treating physician, as the notes were conclusory as to the disability & internally inconsistent.
No evidence to show ALJ biased against fibromyalgia claims.
Eighth Circuit -- United States v. Deven J. Poitra
United States v. Deven J. Poitra
No error in SORNA prosecution jury instruction not defining "reside," as the definition in the Act is similar to the commonly held definition of the term.
Variance in jury instructions in number of days allowed for offender registration was harmless, as not contested at trial.
No plain error in allowing probation officer to choose course of treatment, as court retained ultimate control.
Although unexplained restriction in sentence was plain error, no reversal, given support in record and that remand not necessary to preserve public trust in the judicial process.
No error in SORNA prosecution jury instruction not defining "reside," as the definition in the Act is similar to the commonly held definition of the term.
Variance in jury instructions in number of days allowed for offender registration was harmless, as not contested at trial.
No plain error in allowing probation officer to choose course of treatment, as court retained ultimate control.
Although unexplained restriction in sentence was plain error, no reversal, given support in record and that remand not necessary to preserve public trust in the judicial process.
Eighth Circuit -- EEOC v. MN Law Enforcement Association
EEOC v. MN Law Enforcement Association
State plan barring new employees over 55 from early retirement violates ADEA, as the plan doesn't find safe-harbor in consistency with the purposes of the Act.
State plan barring new employees over 55 from early retirement violates ADEA, as the plan doesn't find safe-harbor in consistency with the purposes of the Act.
Eighth Circuit -- United States v. Jimmie Coutentos
United States v. Jimmie Coutentos
Reversal on ineffective assistance, as counsel did not raise statute of limitations defense where date of offense was unclear, and might have fallen in interval between expiration of original SOL and statutory extension.
No error in introduction of prior (very) bad acts, given similarities to victim in present action.
No error in exclusion of "false memories" expert witness.
No improper vouching where prosecutor say s that witness had not motivation to lie.
Sufficient evidence.
Reversal on ineffective assistance, as counsel did not raise statute of limitations defense where date of offense was unclear, and might have fallen in interval between expiration of original SOL and statutory extension.
No error in introduction of prior (very) bad acts, given similarities to victim in present action.
No error in exclusion of "false memories" expert witness.
No improper vouching where prosecutor say s that witness had not motivation to lie.
Sufficient evidence.
Eighth Circuit -- AMCO Insurance Company v. Inspired Technologies, Inc.
AMCO Insurance Company v. Inspired Technologies, Inc.
Under Minnesota law, duty-to-defend broadly obligates the insurer to defend any single claim that arguably falls within the scope of coverage - absent specific findings on each claim, a "knowledge of falsehood" exception does not broadly remove duty.
Interrogatory statements can be used for this determination - it is not limited to language of the claim and of the the policy.
No intent needed for violations of the Lanham Act.
Under Minnesota law, duty-to-defend broadly obligates the insurer to defend any single claim that arguably falls within the scope of coverage - absent specific findings on each claim, a "knowledge of falsehood" exception does not broadly remove duty.
Interrogatory statements can be used for this determination - it is not limited to language of the claim and of the the policy.
No intent needed for violations of the Lanham Act.
Eighth Circuit -- Michael Persechini v. L. Callaway
Michael Persechini v. L. Callaway
Prisoner S1983 claim alleging that his transfer from early-parole drug treatment facility as a result of alleged towel theft (he claims he was just 'trading up') violated Due Process.
Held: Inmate did not have a protected liberty interest in the prospect of early parole after completion of the program.
No liberty interest, as only consequence is that inmate has to serve out his initial term.
Prisoner S1983 claim alleging that his transfer from early-parole drug treatment facility as a result of alleged towel theft (he claims he was just 'trading up') violated Due Process.
Held: Inmate did not have a protected liberty interest in the prospect of early parole after completion of the program.
No liberty interest, as only consequence is that inmate has to serve out his initial term.
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Compiled by D.E. Frydrychowski, who is, not incidentally, not giving you legal advice.
Category tags above are sporadically maintained Do not rely. Do not rely. Do not rely.
Author's SSRN page here.