Fourth Circuit -- US v. Ryan Holness

Unlike 4A, no exception for offense-specific nature of 6A right to counsel when state and federal charges overlap.

5A violation would be harmless error. (Point raised sua sponte.)

US v. Ryan Holness

Third Circuit -- Interstate Outdoor Advertising v. Zoning Board Twp Mt Laurel

Billboard law is not overly extensive, advances substantial interests of the government.

Noncommercial speech challenge TKO'd, as there are alternative channels of communication.

Interstate Outdoor Advertising v. Zoning Board Twp Mt Laurel

Third Circuit -- Jose Tellado v. Indymac Mtg Ser

Claim against lender in receivership barred -- FDIC beyond reach of statute, administrative appeals not exhausted.

Penalty Order could survive the lack of subject matter jurisdiction, but insufficient due process here.

Jose Tellado v. Indymac Mtg Ser

Second Circuit -- United States v. Desnoyers

Sentence proceedurally unreasonable, as new information not considered.

United States v. Desnoyers

Second Circuit -- Gatt Commc’ns, Inc. v. PMC Associates, L.L.C.

Co-conspirator does not have antitrust standing to file suit based on their subsequent exclusion from the conspiratorial market.

Concurrence: In pari delicto.

Gatt Commc’ns, Inc. v. PMC Associates, L.L.C.

Second Circuit -- Rothstein v. UBS AG

Plaintiffs harmed in Middle East have standing to challenge US bank's transactions with Iran under the Anti-Terrorism Act, but insufficient proximacy of cause to win the action.

Rothstein v. UBS AG

Second Circuit -- Bailey v. Pataki

Denial of qualified immunity at summary judgment stage for government officials in civil commitment case.

Bailey v. Pataki

First Circuit -- Alphas Company, Inc. v. William H. Kopke, Jr., Inc.

Statute's appeal requirements are jurisdictional.

Alphas Company, Inc. v. William H. Kopke, Jr., Inc. 

First Circuit -- US v. Maldonado

No denial of right to counsel where court didn't grant incoming potential counsel 30 day stay.

 US v. Maldonado 

First Circuit -- Juarez v. Select Portfolio Servicing

Pro se petition by attorney challenging home foreclosure states a claim as to whether the bank held the note at the time of foreclosure, but doesn't state a claim for fraud.

Juarez v. Select Portfolio Servicing 

First Circuit -- Jackson v. US

FTCA action against VA hospital.

Jackson v. US 

Site Update

Updating as many circuits as possible in the time available each day.  Later postings, therefore, for Western and Mountain circuits.  Normal service perhaps within a week.

MB

Third Circuit -- SBRMCOA v. Bayside Resort Inc

Claim that action is ultra vires is not subject to arbitration under the contract, as it speaks to formation.

Remand to distinguish condo owners' rights from the condo owners' boards' rights.

Coercion claim (duress) speaks to validity, not formation, and is therefore arbitrable.

SBRMCOA v. Bayside Resort Inc

Second Circuit -- Ozaltin v. Ozaltin

Federal law creates a private right of action to enforce Hague Convention access rights.  Circuit split flagged.

Awards of fees in such cases are discretionary.

Ozaltin v. Ozaltin

Second Circuit -- Alphonso v. C.I.R.

As use of the common grounds is allowed to co-op residents as part of their leasehold, they have sufficient property interest to present an issue of material fact as to whether a tax deduction for damage to the property was properly denied.

Alphonso v. C.I.R.

First Circuit -- Shafmaster v. US

Tax --

The IRS cannot be equitably estopped on the basis of a preliminary settlement.  In this case.

Notice and demand was sufficient under the statute.

Shafmaster v. US 

First Circuit -- Casiano-Montanez v. State Insurance Fund Corp.

Stay granted under Pullman abstention, as the Federal Constitutional question has antecedent state property law questions.

Dismissing under Younger abstention was error, as (1) dismissal is thwe wrong remedy under Younger and (2) plaintiffs had initiated the state action, and it was remedial to the same harms.

Casiano-Montanez v. State Insurance Fund Corp. 

First Circuit -- Zheng v. Holder

No error in Agency refusing to consider foreign government communication not authenticated in manner suggested by US statute. Threat of imprisonment in country of origin not specific enough to justify asylum.

Zheng v. Holder 

First Circuit -- Guaman-Loja v. Holder

Immigration -- harassment in country of origin not severe enough, not state related.

Guaman-Loja v. Holder 

Limited Service further Limited

Rolling updates for next week.  Aim is to have all decisions blurbed within a week of issue, so arguably still a useful resource for the world at large.  But very far from the daily rundown of months past.  Apologies, reading public.

MB

Sixth Circuit -- USA v. Walter Johnson

For purposes of the sentencing predicate, a conviction for selling heroin resulting in death is sufficiently similar  to a conviction for selling heroin (not resulting in death).

USA v. Walter Johnson 

Sixth Circuit -- USA v. Nathan Lumbard

The consent of the victim is not a defense to Aggravated Identity Theft.

 Sentence not unreasonable.

USA v. Nathan Lumbard 

Sixth Circuit -- USA v. Michael Deen

Bar on lengthening sentence to achieve rehabilitative goals applies to resentencing after revocation of parole.

USA v. Michael Deen 

Sixth Circuit -- USA v. Sean Howley

Surreptitious cell phone photos met all the elements of trade secret theft.

Trade secret law not unduly vague.

Sentencing court should have considered economic loss -- remand.

USA v. Sean Howley 

Fifth Circuit -- USA v. Keith Kennedy, et al

No merger of wire fraud and money laundering charges, as the conduct was separated in time.

Willful ignorance jury instruction upheld.

No clear error in Batson proceeding.

No abuse of discretion in denying severance.

USA v. Keith Kennedy, et al

Fifth Circuit -- Tina Milton v. TDCJ

Oversensitivity to scent was not a disability under the ADA.

FMLA notice not timely received.

Tina Milton v. TDCJ

Fifth Circuit -- In Re: Christopher Sepulvado

As deft could have raised ineffective assistance claims on direct review, a prior holding that ineffective assistance on first collateral review might entitle a deft to federal Habeas review of ineffective assistance at trial doesn't apply.

In Re: Christopher Sepulvado

Fifth Circuit -- Thomas Abraham v. Alpha Chi Omega, et al

Trademark.

Thomas Abraham v. Alpha Chi Omega, et al

Fifth Circuit -- Kenneth Kinkade v. Irene Kinkade

Debt to common-law ex is not dischargeable in bankruptcy,

Kenneth Kinkade v. Irene Kinkade

Fifth Circuit -- USA v. Nelfin Zelaya-Rosales

Unannounced upward departure from sentencing guidlelines harmelss error as aggrivating factors had been spelled out.

USA v. Nelfin Zelaya-Rosales

Fourth Circuit -- Vitol, S.A. v. Capri Marine, Ltd.

When plaintiff opts for commercial as opposed to admiralty remedy in foreign forum, remedy in admiralty is still available in US courts.

Supplemental Rule B (permitting attachment) was correctly employed.

Attachment standard of pleading can differ from 12(b)6 standard.

Conclusory assertion of nefarious puppetry is insufficient to establish alter ego to pierce the veil at pleading.

Vitol, S.A. v. Capri Marine, Ltd.

Fourth Circuit -- Bruce Bereano v. US

Coram Nobis denied for convicrion predicated on Skilling-type fraud, as second theory of the fraud was proven by sufficient evidencem, and the finder of fact could not have convicted under one without convicting under the other.

Bruce Bereano v. US

First Circuit -- Kelley v. Correctional Medical Services

ADA action for retalitatory termination -- employers action might have been a disingenuous overreaction.

Kelley v. Correctional Medical Services 

Limited Service Continues

Next update will be Thursday Friday Sunday, at soonest.  'Not single spies, but in battalions.'

MB

Federal Circuit -- ARKEMA INC. v. HONEYWELL INTERNATIONAL INC. [OPINION]

Patent.

ARKEMA INC. v. HONEYWELL INTERNATIONAL INC. [OPINION]

DC Circuit -- USA v. Joshua Godoy

Imprecise colloquy TKO's appeal waiver.

Outside of guidelines sentence sufficiently explained.

Restitution from prison labor was not a stated goal of the sentence.

USA v. Joshua Godoy

DC Circuit -- Shekita Dyson v. DC

Agency investigation does not equitably toll the Title VII statute of limitations where plaintiff is inactive.

Shekita Dyson v. DC

Eleventh Circuit -- Janet Feliciano, et al v. City of Miami Beach, et al

Plaintiff's uncorroborated statements can suffice at summary judgment stage for denial of qualified immunity in S1983 action alleging violations of 4A.

Janet Feliciano, et al v. City of Miami Beach, et al

Eleventh Circuit -- Harry Elwood Penney v. Secretary, Department of Correctioins, et al

Untimely motion did not toll the AEDPA one-year clock.

Harry Elwood Penney v. Secretary, Department of Correctioins, et al

Eleventh Circuit -- Jiaren Shi v. U.S. Attorney General

Physical abuse by foreign police was, as a matter of law, persecution.

Jiaren Shi v. U.S. Attorney General

Tenth Circuit -- Hansen v. PT Bank Negara Indonesia

Website of foreign bank not self-authenticating.

No jurisdiction under Foreign Sovereign Immunity Act, as all of the transactions were fraudulent, and therefore, no commercial activity with direct effects.

Hansen v. PT Bank Negara Indonesia

Tenth Circuit -- United States v. Lor

New impeachment evidence that emerges after 4A suppression hearing is not grounds for a collateral challenge to the verdict, as it speaks neither to the constitutionality of the police conduct nor the guilt/innocence of the deft.

United States v. Lor

Ninth Circuit -- USA V. TYMOND PRESTON

Habeas -- Apprendi did not create clearly established law holding that sentencing factors are subject to double jeopardy restrictions.

USA V. TYMOND PRESTON

Ninth Circuit -- USA V. TYMOND PRESTON

Crim --

Diminished mental competency not enough to TKO confession

Jury trial/confrontation waivers were good;

Hearsay in under excited utterance.

Sentence substantively questionable -- terms of lifetime supervision harsh for deft in 20's.

Dissent -- coerced confession

USA V. TYMOND PRESTON

Eighth Circuit -- Zachary Smith v. State of Missouri

Despite bankruptcy, state properly took $45 from inmate in compliance with statute authorizing recoupment of costs of incarceration, as the $45 was billed against post-petition costs incurred.

Zachary Smith v. State of Missouri

Eighth Circuit -- Susan Reindl v. Hartford Life and Accident Ins

ERISA administrator's determination that letter from lawyer was not sufficient administrative appeal is reasonable.

Susan Reindl v. Hartford Life and Accident Ins

Eighth Circuit -- Tanya Bosley v. Cargill Meat Solutions Corp.

Petitioner did not give employer sufficient notification of the FMLA leave request; exceptions don't apply.

Tanya Bosley v. Cargill Meat Solutions Corp.

Eighth Circuit -- James Trickey v. Kaman Industrial Technologies

Punitive damages award in employment discrimination action does not shock the conscience; hearsay not prejudicial enough to warrant new trial; Rule 59(e) was the wrong motion when seeking to convert fees from lodestar of the forum to lodestar of the law firm.

James Trickey v. Kaman Industrial Technologies

Eighth Circuit -- Janet Lundquist v. University of SD Sanford

Where state permits suits against otherwise immune unincorporated partnerships, informal partnerships which are reachable through other statutory grants of jurisdiction (here, school reached through the Board of Regents) can only be reached in that manner.

Janet Lundquist v. University of SD Sanford

Seventh Circuit -- Robert Farnik v. FDIC

Where plaintiff sues successor bank, but the FDIC as receiver ultimately becomes the deft, FINRA administrative exhaustion requirements for the FDIC suit apply.

Robert Farnik v. FDIC

Sixth Circuit -- USA v. Benji Stout

Escape qualifies as a a crime of violence.

Dissent: Maybe for ACCA, but not here.

USA v. Benji Stout 

Third Circuit -- Daniel Sherzer v. Homestar Mortgage Services

To rescind loan under TILA, the notice of rescission must be sent within the three-year window.  (Timing of suit irrelevant.)

Daniel Sherzer v. Homestar Mortgage Services

Second Circuit -- United States v. Broxmeyer

Dissent from denial of en banc -- 32 years for high school athletics coach's questionable image procurement.

Preceded by lengthy concurrence.

United States v. Broxmeyer

First Circuit -- Silverstrand Investments v. Amag Pharmaceuticals, Inc.

Securities -- to survive motion to dismiss, Section 503 claim, there must be a known risk factor impacting present or future interests.  And there was.

Silverstrand Investments v. Amag Pharmaceuticals, Inc. 

Limited Service Update

Still a few cases in the backlog from the DC Circuit & Federal Circuit last week.  TK.

MB

Federal Circuit -- ACCENT PACKAGING V LEGGETT & PLATT

Patent.

ACCENT PACKAGING V LEGGETT & PLATT 

Eleventh Circuit -- Terry Wayne Duckworth v. Allianz Life Insurance Company of North America, et al

Non-ERISA long-term disability benefits should be offset - the question is not whether a program mentioned in the statute in pari materia provides similar benifits, but whether the statute itself is similar.

Terry Wayne Duckworth v. Allianz Life Insurance Company of North America, et al

Eleventh Circuit -- Robin L. Williams, John Duncan Fordham v. USA

Collateral challenge to Honest Services fraud conviction -- Jury could not have used the later-overruled theory to convict, so no cause/prejudice sufficient for Habeas.

Robin L. Williams, John Duncan Fordham v. USA

Eleventh Circuit -- Aracelys C. Toro v. Secretary, U.S. Department of Homeland Security, et al.

Petitioner has no claim under Cuban Refugee Adjustment Act; no Equal Protection claim as there is a rational basis for the distinction under the statute.

Aracelys C. Toro v. Secretary, U.S. Department of Homeland Security, et al.

Ninth Circuit -- CENTER FOR BIOLOGICAL DIVERSIT V. KEN SALAZAR

Preliminary injunction appellate rulings did not create any law of the case relevant to the merits of final challenge to agency rulings.

Statute does not require a new plan of operations when re-starting closed mine.

No new NEPA filing required -- categorical exclusion applies.


CENTER FOR BIOLOGICAL DIVERSIT V. KEN SALAZAR

Eighth Circuit -- United States v. Glen Allen

Police had probable cause for Terry stop given the MJ-trafficking patterns observed -- police contention and District Court holding that speeding was the cause notwithstanding.

United States v. Glen Allen

Eighth Circuit -- Matt Luiken v. Domino's Pizza, LLC

Given variances in the transactions, certifying Dominos delivery drivers as a class to assert their right to the "delivery fee" was erroneous.

Matt Luiken v. Domino's Pizza, LLC

Seventh Circuit -- John Rutherford v. Judge & Dolph

Labor -- Where the union is not a necessary party to the suit against the employer, an action by plaintiff against both the union and the employer is not a hybrid action under the LMRA.

CBA had expired before the claim accrued.

John Rutherford v. Judge & Dolph

Seventh Circuit -- Pethinaidu Veluchamy v. FDIC

APA claim against FDIC - Corporate barred, as it (1) seeks monetary damages; (2) wasn't administratively exhausted; and (3) challenges actions taken as a regulator, which is not cognizable under the statute.

Pethinaidu Veluchamy v. FDIC

Seventh Circuit -- USA v. Eric Schuster

Crim -- Pr0n conviction affirmed as to substance & sentence.

USA v. Eric Schuster

Seventh Circuit -- Aaron Espenscheid v. DirectSat USA

Given complex proposed bifurcation scheme, class/collective de-certification was correct, says Posner.

Aaron Espenscheid v. DirectSat USA

Fourth Circuit -- Morgan Keegan & Company, Inc. v. Louise Silverman

FINRA arbitration terms do not attach when the deft merely provided counsel on the transaction -- they are not "customers."

Morgan Keegan & Company, Inc. v. Louise Silverman

Fourth Circuit -- US v. Rodney Williamson

Crim -- Issue is post-indictment, pre-arrest tapings with confidential informant.  Scotus remanded, holding that 6A right to counsel had attached on indictment.  District court affirmed conviction.  CA affirms here.

6A -- Although introduction of the recordings was plain error, it wasn't the kind of plain error that impacts substantial rights.

5A -- No coercion.

No right to counsel in Rule 33 "new evidence" proceedings.

US v. Rodney Williamson

Limited Service Continues

TK -- Two more in the 11th from last week, plus DC and Federal from last week.  Next update of the e'er rolling stream probably Monday.

MB

Eleventh Circuit -- USA v. Jason Dennis McGuire

O'Connor pinch-hits -- shooting in the direction of a police helicopter is statutorily an attempt to damage/destroy it, and categorically a crime of violence.

USA v. Jason Dennis McGuire

Eleventh Circuit -- Cynergy, LLC v. First American Title Insurance Company

Bank might have had knowledge of lack of access to property upon taking title, insurance claim by holder in possession therefore potentially invalid.

Affidavit might have been admissible, as notice provisions are keyed on fair warning.



Cynergy, LLC v. First American Title Insurance Company

Tenth Circuit -- Burnett v. Mortgage Electronic

Complaint does not set forth sufficient specific violations of FDCPA; same for state law claims.

Burnett v. Mortgage Electronic

Tenth Circuit -- United States v. Ruby

No statutory or common law bar to hearsay in sentencing proceeding at issue.

United States v. Ruby

Tenth Circuit -- United States v. Brody

Deft must provide relevant trial record for the appeal.

United States v. Brody

Ninth Circuit -- USA V. SAMUEL DAVIS

Even if same agency receives forfeiture and restitution, no double recovery.

Concur - scope of forfeiture here was perhaps broad, opinion not precedential for that.

USA V. SAMUEL DAVIS