DC Circuit -- Northeast Hospital Corporation v. Kathleen Sebelius

HHS 2004 rulemaking on overlapping Medicare parts A & C is impermissibly retroactive - agency is bound to prior practice.

Concurrence - language of statute governs.

Northeast Hospital Corporation v. Kathleen Sebelius

DC Circuit -- Wilfred Rattigan v. Eric Holder, Jr

 Order - rebriefing

Wilfred Rattigan v. Eric Holder, Jr

Ninth Circuit -- LOCAL JOINT EXECUTIVE BOARD V. NLRB

Employer violated 8(a)(5) of NLRA by ceasing dues check-off prior to bargaining to impasse.

No need to wait for Board to muster three votes - court rules on merits.

LOCAL JOINT EXECUTIVE BOARD V. NLRB

Ninth Circuit -- BRADLEY JOHNSON V. POWAY UNIFIED SCHOOL DISTRICT

High school calculus class is not a limited public forum for teacher's religious speech.


BRADLEY JOHNSON V. POWAY UNIFIED SCHOOL DISTRICT

Ninth Circuit -- LARRY MOORE V. MARICOPA COUNTY SHERIFF'S

Dismissals for lack of subject-matter-jurisdiction do not count as strikes for proceeding IFP.


LARRY MOORE V. MARICOPA COUNTY SHERIFF'S

Ninth Circuit -- E.T. V. TANI CANTIL-SAKAUYE

Challenge to state juvie justice system properly dismissed under Younger prudential abstention.


E.T. V. TANI CANTIL-SAKAUYE

Ninth Circuit -- USA V. GABRIEL ALVAREZ-MORENO

The critical factor in Younger prudential abstention is not the violation of state laws, but rather the state's executive interest in seeing those particular laws enforced.

Pending state mandamus claims do not relieve federal court of obligation to hear claim.


USA V. GABRIEL ALVAREZ-MORENO

Ninth Circuit -- USA V. GABRIEL ALVAREZ-MORENO

When deft doesn't file jury trial waiver, his bench trial verdict stands, subject to appeal.  Trial court's declaration of mistrial and order of new trial was error as double jepoardy.

USA V. GABRIEL ALVAREZ-MORENO

Ninth Circuit -- KRISTIN ROSSUM V. DEBORAH PATRICK

En banc affirms District Court in brief per curiam.

Dissent (Long) - Federal habeus evidentiary hearing justified.

KRISTIN ROSSUM V. DEBORAH PATRICK

Ninth Circuti -- HECTOR REINA-RODRIGUEZ V. USA

Circuit caselaw rule on whether certain burglary convictions are crimes of violence for sentencing predicate purposes has retroactive effect - it is a new rule, not application of an old rule to new facts.

HECTOR REINA-RODRIGUEZ V. USA

Eighth Circuit -- United States v. Joshua Huerta

When the name on the return address didn't match the FBI/USPS database & the addressee's phone number was nonworking, sufficient grounds for reasonable suspicion.

United States v. Joshua Huerta

Eighth Circuit -- Watkins Incorporated v. Chilkoot Distributing, Inc.

Where one party to existing contract sends form letter to another party requesting updated information due to loss of materials from a flood and encloses a new contract, validity of the signed second contract is a matter for trial.

Watkins Incorporated v. Chilkoot Distributing, Inc.

Seventh Circuit -- Lindquist Ford, Inc v. Middleton Motors

Assignment of quantum meruit was error, as the equities were not with the plaintiff.

[Subtext: damages came back almost identical after initial remand.]


Lindquist Ford, Inc v. Middleton Motors

Seventh Circuit -- Jason Senne v. Village of Palatine,

Going to en banc - prior holding vacated.

Jason Senne v. Village of Palatine,

Seventh Circuit -- State of Michigan v. United States

Rerelease.  See 8/24.

State of Michigan v. United States

Sixth Circuit -- Bobby Sheppard v. Margaret Bagley

Ohio Supreme Court did not incorrectly apply clearly established law in denying Habeus on grounds that a juror consulted outside expert on paranoid schizophrenia during penalty phase.

Summary rejection of state habeus claim  means reasonable basis for denial of claim is the federal standard.

Family history cumulative & irrelevant.


No error in state not considering age (18) at time of offense when re-weighing aggravating factors with mitigating factors after determination of minimal prosecutorial misconduct.

No error in exclusion of juror who would not vote for death if deft was repentant.

Concurrence: Clarification on juror ex parte; evidence should be limited to that obtained for state habeus.

Dissent - Counsel was barred from fully litigating ex parte claim by state procedural rule barring collateral attacks on issues already raised in a motion for new trial.


Bobby Sheppard v. Margaret Bagley


[Thou shalt not kill.  -TMB]

Third Cicuit -- USA v. Barron Walker

Not the brother's jailkeeper - no error on denial of severance on grounds that the codeft brother had escaped from pretrial detention.  

CI's testimony that one of the brothers had carried a gun during a drug transaction and it was visible to the other sufficed for possession and constructive possession. 

Expert testimony that cocaine originated outside of Pennsylvania based on sufficiently reliable methods.

Sufficient evidence for Hobbs Act conviction (robbery in restraint of interstate commerce) where defts robbed first-time drug dealer whose product came from out of state.

No Brady violation where gov't doesn't tell deft that CI was caught with cocaine base in pocket just before sting operation.

USA v. Barron Walker

Third Circuit -- Mt Holly Gardens Citizens v. Twp Mount Holly

Title VIII and 14A Equal Protection challenge to loss of public housing for redevelopment.

Composition of waiting lists for public housing enought to get past summary judgment on disparate impact.

Mt Holly Gardens Citizens v. Twp Mount Holly

Second Circuit -- Serricchio v. Wachovia Securities, LLC

Upon return from service, USERRA claimant who had a large book of commission-based business is not sufficiently reemployed by simply being offered the same commission level.

It is within equitable powers of the court to order return at fixed salary as opposed to commission - no abuse of discretion.

No error in USERRA-specific jury instructions.


Serricchio v. Wachovia Securities, LLC

Federal Circuit -- QVD FOOD CO., LTD. V. U.S.

No error in Commerce's ruling on Vietnamese fish antidumping action.

No obligation to correct ministerial error where the error was clear in earlier proceeding.

Dissent: Yer numbers are wrong.

QVD FOOD CO., LTD. V. U.S.

Federal Circuit -- HOLMES V. U.S.

Tucker Act jurisdiction lies for breach of Title VII settlement agreement.

Circuit split flagged.

No presumption that such claims are monetary, but these are.

There is an inherent reasonability standard in the "inherently unknowable" test - here, plaintiff had no way to know of claim until it came to his attention

HOLMES V. U.S.

Eleventh Circuit -- USA vs David W. Webb

No error in denial of instruction on but/for causation in physician prosecution for patient death from unauthorized meds.  It need only result.

No ineffective assistance, as evidence was slam-dunk.

Concur/dissent - px/cz is the standard.

(Especially quick skim - long decision.)

USA vs David W. Webb

Tenth Circuit -- United States v. Burleson

Warrants check for jaywalking pedestrians during Terry stop was justified, as inter alia, the dog might have been stolen.

United States v. Burleson

Ninth Circuit -- KARUK TRIBE OF CALIF V. USFS

Going to en banc.

KARUK TRIBE OF CALIF V. USFS

Ninth Circuit -- CHEVRON U.S.A. INC. V. M&M PETROLEUM SERVICES, INC.

Spurious counterclaim under Petroleum Marketing Practice Act suffices for award of fees to prevailing party.  

Absent counterclaim, no.

CHEVRON U.S.A. INC. V. M&M PETROLEUM SERVICES, INC.

Ninth Circuit -- GINA FIORE V. ANTHONY WALDEN

Bivvens action against Atalanta-based customs check for prosecution of travelers returning home to Nevada from San Juan with gambling winnings upheld.

Forfeiture order directed at Nevada residents suffices for personal jurisdiction of Nevada courts.

Dissent: No, it doesn't.

GINA FIORE V. ANTHONY WALDEN

Ninth Circuit -- LUIS ROSAS-CASTANEDA V. ERIC HOLDER, JR.

Errata.

LUIS ROSAS-CASTANEDA V. ERIC HOLDER, JR.

Ninth Circuti -- LOUIS VUITTON MALLETIER, S.A. V. AKANOC SOLUTIONS, INC.

Express finding of intent not required for contributory copyright & trademark infringement.

Judge was correct to set aside copyright infringement verdict, as there was no proof that the deft operated the servers on which the infringement was hosted.

No error in instruction not distinguishing website host from website which harms trademark, the second could not exist without the first.

Statutory damages authorized for contributory infringement.

LOUIS VUITTON MALLETIER, S.A. V. AKANOC SOLUTIONS, INC.

Seventh Circuit -- Kevin Arnett v. Thomas Webster

Where prison medical facilities were slow in treating inmate with rheumatoid arthritus, the claim may proceed, but qualified immunity for the doctor, given lack of specific proof of deliberate indifference.

Kevin Arnett v. Thomas Webster

Seventh Circuit -- USA v. Fontez Combs

Given that the trial court approves please, a deft who does not preserve an issue for appeal by conditional guilty plea unwaiveably waives his right to later attempt to suppress evidence in challenging his sentence.

(Proscs cannot waive the lack of waiver.)

USA v. Fontez Combs

Sixth Circuit -- Dian Sabo v. City of Mentor

Qualified immunity decision insufficiently final for review, as it rests on disputed facts.

Denial of QI on state law claims upheld.

 Dian Sabo v. City of Mentor

Sixth Circuit -- USA v. Pamela Holder

AUSA's unprofessional lack of clarity as to whether a certain witness was given immunity not sufficiently material for Brady violation.

This also TKO's ineffective assistance claim along same lines.

USA v. Pamela Holder

Fifth Circuit -- Milan Dediol v. Best Chevrolet Incorporated, et al

A claim for hostile work environment can proceed under ADEA.

Sufficient evidence in record to survive summary judgment.

Milan Dediol v. Best Chevrolet Incorporated, et al

Fifth Circuit -- Paola Oviedo v. Gregg Hallbauer, et al

Removal to federal court is improper at the stage of motion to set aside default judgment. (Where State court has otherwise completely disposed of the case.)

Paola Oviedo v. Gregg Hallbauer, et al

Fifth Circuit -- USA v. Moises Garcia

Crack/Cocaine disparity sentencing reduction.

Court properly understood guidelines, knew it had the freedom to depart.

No Separation of Powers issue, as Congress specifically delegated power to the Sentencing Commission to make rules regarding discretion.

USA v. Moises Garcia

First Circuit -- OfficeMax, Inc. v. Levesque

Office supply store employees' noncompete clause accrued not at the time of their discharge, but from the takeover of the office supply store by another corporation.

OfficeMax, Inc. v. Levesque

First Circuit -- US v. Garcia-Ortiz

Conviction on two counts, the second of which is a lesser included of the first - absent specific legislative permission - is double jeopardy.

No error in denying minor participant sentence reduction, given fulness of participation.

Evidence of rehabilitation not irresistible.

US v. Garcia-Ortiz

Federal Circuit -- MARKEM-IMAJE CORP. V. ZIPHER LTD.

Patent Construction - "Drive" can refer either to the application of force or the stopping of motion.

Dissent: Necessary, predicate aspect suffices to establish scope of invention.

MARKEM-IMAJE CORP. V. ZIPHER LTD.

Ninth Circuit -- HILDA SOLIS V. STATE OF WASHINGTON DEPARTMENT

Social workers don't come under the learned professional exception to FLSA - no need for a specific degree.

HILDA SOLIS V. STATE OF WASHINGTON DEPARTMENT

Ninth Circuit -- USA V. SIMON MCCARTY

Errata

USA V. SIMON MCCARTY

Ninth Circuit -- SANTIAGO-RODRIGUEZ V. HOLDER

Deft's earlier admission to BIA held to be result of ineffective assistance, and deft can therefore withdraw it. 

Dissent: No proof it's false; no egregious circumstances.

SANTIAGO-RODRIGUEZ V. HOLDER

Eighth Circuit -- Rosalind Brooks v. Midwest Heart Group

 Partial reversal of dismissal of Title VII claims, as court did not convert motion to dismiss to motion for summary judgment after considering facts beyond the pleading.

Court can possibly avoid need for notice of conversion if it only considers things in the public record.

Rosalind Brooks v. Midwest Heart Group

Eighth Circuit -- Barry Barron v. South Dakota Board of Regents

Since the motion to dismiss was accompanied by new information, no error in court's conversion of the motion to summary judgement.

No requirement to administratively exhaust claim that school closure violates IDEA.

SJ on IDEA claim appropriate, as all kids are in good schools, despite closure of school for deaf.

No standing for parents who don't have kids in the specific program at issue.

No violation of South Dakota law.

Barry Barron v. South Dakota Board of Regents

Eighth Circuit -- United States v. Rodney L. Shrum

Sufficient evidence for filing false tax return.

Admission of gambling records not unduly prejudicial.

No substantive error in sentence.

United States v. Rodney L. Shrum

Eighth Circuit -- United States v. Brian Ellefsen

 Evidence for Brady claim that docs showed IRS allowed conduct in past years was not material.

No error in characterization of diverted fees as constructive dividends.

Harmless error in not allowing cross for a summary witness.

No abuse of discretion in barring expert testimony.

No error in restitution calculation.

United States v. Brian Ellefsen

Eighth Circuit -- Park Hill School District v. Kevin Dass

 Under IDEA, specific transition and behaviour plans are only required in special circumstances.

Park Hill School District v. Kevin Dass

Eighth Circuit -- Jerome Bass v. United States

No habeus on ineffective assistance.

"They told you the truth" in closing is not vouching.

Jerome Bass v. United States

Eighth Circuit -- Jerry Washington v. Countrywide Home Loans, Inc.

 Two days of 12% interest on $790 sufficient monetary injury for standing.

Associated fees violated state mortgage act.

Jerry Washington v. Countrywide Home Loans, Inc.

Eighth Circuit -- United States v. Taylor Bloate

 Absent related findings issued by the court, a deft's statement waiving pretrial claims is not a motion for purposes of the Speedy Trial Act.

United States v. Taylor Bloate

Seventh Circuit -- USA v. Robert George

Given the aiding & abetting, sufficient evidence to convict the (absent) aider & abettor of cocaine possession.

USA v. Robert George

Seventh Circuit -- John Doe v. Elmbrook School Dist

Public school's rental of church building for graduation, etc does not offend the Establishment Clause.

Not moot despite construction of school fieldhouse.

Plaintiffs' interest in privacy justifies the anonymous suit.

Encountering Christian symbols during the events was not unduly coercive.

Entering a house of worhip is not an inherently religious act.

No endorsement/entanglement under Lemon.

Dissent: Endorsement, what with all the pamphlets & iconography about.


John Doe v. Elmbrook School District

Seventh Circuit -- Autumn Eaton v. Indiana Department of Corrections

The 'Mikey likes it' test for comparators in a Title VII action - when both refuse the same work, and the refusal is the basis for the adverse action, there's enough similarity to move past summary judgment.

NB: The court doesn't actually call it that.

Autumn Eaton v. Indiana Department of Corrections

Seventh Circuit -- USA v. Aida Salem

 Conspirators at bottom of the operation can be held liable for the acts of the whole conspiracy, given length of time involved & ratifying acts.

USA v. Aida Salem

Seventh Circuit -- Vikram Buddhi v. Philip Benson

Judge's order to warden to deduct judgment & filing fees from inmate's account was error, but Mandamus not justified, as only impact inmate claimed was inability to proceed with an appeal that is now resolved.

Vikram Buddhi v. Philip Benson

Sixth Circuit -- Titan Tire Corp. of Bryan v. United Steelworkers of America

Arbitrator can go beyond the four corners of the CBA when refereeing dismissal claim.  But not too far.

Titan Tire Corp. of Bryan v. United Steelworkers of America

Third Circuit -- USA v. Matthew Pizzolato

 Govt did not breach plea agreement by providing to the court information that justified a longer sentence.

USA v. Matthew Pizzolato

Third Circuit -- Alief Independent School Dist v. C. C.

 Where a school district seeks and gains a declaratory order of IDEA compliance before a hearing officer, it can later file for fees if the original action was spurious (brought to harass, delay, etc.)

Alief Independent School Dist v. C. C.

First Circuit -- Fryer v. A.S.A.P. Fire and Safety Corporation

Claim that USERRA preempts state law is not jurisdictional, as preemption would not divest state courts of jurisdiction, but merely change the law that they were interpreting.

Willful in USERRA refers to knowing action or reckless disregard.

Award calculations correct.

Fryer v. A.S.A.P. Fire and Safety Corporation

First Circuit -- The Capability Group, Inc. v. American Express Travel

Although company realized 149m in savings from consultant's program, the 90m figure in contract prevails - K terms & parol evidence do not allow vendor to claim the higher figure.

No risk of future harm from confidentiality breaches - no error in denial of injunction.

Though plaintiff's counsel was going through a rough patch & turned in a subpar performance, stronger performance wouldn't have saved the case.


The Capability Group, Inc. v. American Express Travel

Second Circuit -- USA v. Gansman

Where requested, securities fraud trial court must give jury instruction that there was no culpability where tipper & tippee had a relationship of trust or confidence, and tipper had no intent that info was to be used for insider trades.

No error on conscious avoidance instruction.

Within court's discretion to exclude evidence of witness' trying to game polygraph.

No error in exclusion of codeft's parent's convictions for securities fraud.

Prosc statement in closing that deft was described on a website as a trading junkie was properly & promptly cured.

USA v. Gansman

Eleventh Circuit -- Valle v. Secretary, Florida Department of Corrections, etc.

Substantive & procedural clemency claims cannot be addressed via federal habeus.

Valle v. Secretary, Florida Department of Corrections, etc. 

 [Thou shalt not kill.  -TMB]

Ninth Circuit -- USA V. BRAD SANTINI

Psychiatrist's referring to deft's prior contacts with law enforcement as 'extensive' was excessively prejudicial.

USA V. BRAD SANTINI

Ninth Circuit -- TIMM ADAMS V. USA

USPS Form 8877 qualifies as certified mail.

TIMM ADAMS V. USA

Ninth Circuit -- MICHAEL P. V. DEPARTMENT OF EDUCATION, STATE OF HAWAII

State agency violated IDEA by exclusively weighing claim based on discrepancy between student's performance with dyslexia and her putative performance without the disability.

Dissent: As this rule doesn't apply to local districts, it unfairly impacts Hawaii statewide single district.

MICHAEL P. V. DEPARTMENT OF EDUCATION, STATE OF HAWAII

Ninth Circuit -- SINGH V. HOLDER

ILJ erred in holding that the correct standard for changed circumstances is 'clear and convincing'; correct standard is 'to the satisfaction of the judge.'

ILJ holding that application came too late after expiration of lawful status not supported by substantial evidence.

SINGH V. HOLDER

Eighth Circuit -- United States v. Christian Quevedo

Sufficient evidence that deft filed false tax returns.

Uncharged false filings can be used for calculating loss for sentencing.

Harmless error in not offsetting any refunds actually due on the filings.

Beneficiaries of schemes can be counted as victims, given the likely immigration troubles ahead.

United States v. Christian Quevedo

Seventh Circuit -- Maurice Cobige v. City of Chicago

Order & Errata.

Maurice Cobige v. City of Chicago

Sixth Circuit -- Darryl Thompson v. Michael Grida

Qualified immunity appeal TKO'd, as it relies on disputed facts.

Darryl Thompson v. Michael Grida

Sixth Circuit -- John Shewchun v. Eric Holder, Jr.

BIA rule that removal proceedings cannot be stayed on the undertaking of successful naturalization unless & until DHS issues formal notification of status is entitled to deference.


John Shewchun v. Eric Holder, Jr.

Sixth Circuit -- Richard Atkinson v. Morgan Asset Management, Inc.

SLUSA bars securities fraud class action.

Claim not within first Delaware carve-out, as complint alleged that plaintiffs were induced to hold the shares for too long, not buy them.

Dismissal with prejudice upheld - class shaving not kosher.

Richard Atkinson v. Morgan Asset Management, Inc.

Sixth Circuit -- Jonathan Hirsch v. CSX Transportation Inc.

Class action dismissal upheld as 1:1,000,000 odds of bad things from dioxin exposure after train wreck is insufficient risk to warrant monitoring.

Court hold causation not proved.

Jonathan Hirsch v. CSX Transportation Inc.

Fifth Circuit -- Mohammad Khalid v. Eric Holder, Jr.

When a minor child listed as a derivative beneficiary on a visa application made by a brother or sister of a legal permanent resident attains majority and seeks to convert their status by means of a direct application, they retain the priority date of their aged-out application.

Circuit split flagged.

Mohammad Khalid v. Eric Holder, Jr.

Fifth Circuit -- USA v. Manuel Barraza

 Where juror makes a nonspecific prejudicial comment prior to deliberations, but jury reaches verdict before court can act -- no remedy, as only way to prove impropriety would be to inquire into deliberations.

No Brady violation where deft has the information.

Prejucial testimony properly cured by instruction.

Email from judge seeking sexual relations as part of larger plan involving both money and sexual relations qualifies under wire fraud statute (which requires that money be involved).

No error in bribery sentencing bumps.

USA v. Manuel Barraza

Fifth Circuit -- Swindle, et al v. Livingston Parish, et al

 Student has a valid property interest in alternative education when expelled from public school - some kind of process/hearing is required upon denial.

SJ on qualified immunity for administrators denied.

State sovereign immunity shields officials from some claim.

Swindle, et al v. Livingston Parish, et al

Fourth Circuit -- Commonwealth of Virginia v. Kathleen Sebelius

ACA does not inflict sufficient sovereign injury on Virginia for standing.

Conflict between state and federal law does not give state standing.

Current challenge is quasi-parens-patriae - Fed Govt is the true parens, not the states.

(Sixteen-page caption.)

Commonwealth of Virginia v. Kathleen Sebelius