Sixth Circuit -- James Price v. Bd. of Trs. of the Ind. Laborer's Pension Fund

ERISA -- Plan can amend plan so that amendments are retroactive to earlier injuries.

Dissent, natch.


James Price v. Bd. of Trs. of the Ind. Laborer's Pension Fund 

Sixth Circuit -- USA v. Michael Peppel

When the sentencing range is in the triple digits and the actual sentence is seven days, there's a likely future remand for substantive error in sentence.

Loss correctly calculated.

USA v. Michael Peppel 

Sixth Circuit -- Aleksandr Yeremin v. Eric Holder, Jr.

Trafficking in False Documents is categorically a crime of moral turpitude for Immigration purposes.

Aleksandr Yeremin v. Eric Holder, Jr. 

Sixth Circuit -- USA v. Steven Terry

White Collar -- Honest Services conviction upheld.

USA v. Steven Terry 

Sixth Circuit -- USA v. Bernard Kurlemann

Concelament of a material fact does not constitute a False Statement under the statute.

Multiple challenges to Bankruptcy Court findings denied.

Sentencing court should have created a new range after acknowledging the Substantial Assistance.

USA v. Bernard Kurlemann 

Sixth Circuit -- USA v. Rodrigo Macias-Farias

Brady -- No error in denial of mistrial for government witness not producing in advance a written report referred to in testimony.

District court did not make necessary factual findings for Obstruction, given lack of document listing specific misstatements.

USA v. Rodrigo Macias-Farias 

Sixth Circuit -- Tonia Wright v. Kathryn O'Day

Minor has standing to make procedural due process challenge to placement on offender registry, as harm happens with the listing and the question is ripe.

Tonia Wright v. Kathryn O'Day 

Sixth Circuit -- Douglas Coley v. Margaret Bagley

Death penalty Habeas [thou shalt not kill]

No ineffective assistance for not seeking recusal/removal of judge during penalty phase.

Harmless error in guilt phase when the prosecution shifted theory of the crime as to who actually shot the gun.

No error in not releasing Grand Jury transcript, denying severance.

Douglas Coley v. Margaret Bagley 

Sixth Circuit -- Kia Motors America, Inc. v. Glassman

Where a car dealership contracts with a manufacturer under a state regulatory scheme limiting the proximity of dealerships, subsequent modification of the regulatory scheme is neither retroactively applied to the contractual agreement nor retroactively directly applied to the parties.

Kia Motors America, Inc. v. Glassman 

Sixth Circuit -- Columbia Gas Transmission, LLC v. Kanwal Singh

No Federal Question in controversy over gas pipeline easement -- the Federal statute doesn't create a private right f action, and the state question doesn't involve a significant federal interest.

Columbia Gas Transmission, LLC v. Kanwal Singh 

Fifth Circuit -- USA v. Arnoldo Gonzalez-Garcia

Physical fruits of Miranda violation not suppressable under Edwards.

Use of unwarned statment to obtain subsequent consent not always coercicive -- holistic multifactor test.

USA v. Arnoldo Gonzalez-Garcia

Fifth Circuit -- USA v. Jesse Gutierrez

Approval of involuntary medication of deft in order to stand trial.

No need for BOP Haring Officer to directly order the medication -- factual finding that it is indicated is sufficient.

Inability to replicate on the stand the mens rea at time of alleged crime is not a defense to involuntary medication.

USA v. Jesse Gutierrez

Fifth Circuit -- John Priester, Jr., et al v. JP Morgan Chase Bank,

Statute of limitations applies to challenges to homestead liens under the Texas Constitution.

Claim accrues at legal injury, not discovery.

John Priester, Jr., et al v. JP Morgan Chase Bank,

Fifth Circuit -- Tekelec, Incorporated v. Verint Systems, Incorporated

Corporation has standing to enforce agreement -- basically several arguments on the contract, not Article III.

For purposes of the K, royalties are not royalties when the term is modified by "damages."  (i.e. royalties here are a form of patent damages).

Tekelec, Incorporated v. Verint Systems, Incorporated

Fifth Circuit -- Republic of Ecuador, et al v. John Connor, et al

Intervenor corporation cannot block Federal discovery order in international arbitration, as it has argued to its profit elsewhere that the proceeding is an international tribunal and therefore qualifies for such things.

Republic of Ecuador, et al v. John Connor, et al

Fifth Circuit -- Bobby Smith v. Burl Cain, Warden

Common law limitation on new evidentiary hearings for Habeas challenges does not apply if the Federal court, looking at the state court record, determines that the state court unreasonably applied federal law -- here, in the context of a Batson challenge.

No purposeful discrimination here, mainly for lack of comparators.

Bobby Smith v. Burl Cain, Warden

Fifth Circuit -- USA v. Matthew Moore, et al

Crim -- sufficient evidence for homicide, false statements, obstruction.

USA v. Matthew Moore, et al

Fourth Circuit -- US v. Joseph Yengel, Jr.

Being told that there's a grenade somewhere in the house doesn't justify searching a locked closet under an exigent circumstances warrant exception.

US v. Joseph Yengel, Jr.

Third Circuit -- Travis Denny v. Paul Schultz

Where there is some evidence leading to a theory of constructive possession, imposing disciplinary measures on an inmate doesn't violate Due Process.

Travis Denny v. Paul Schultz

Third Circuit -- USA v. Roger Wilson

Appeals waiver does not bar challenge to later-imposed conditions of supervised release.

USA v. Roger Wilson

Second Circuit -- United States v. Abdur-Rahman

Medicaid fraud is a violation of the Federal identity theft statute.

United States v. Abdur-Rahman

First Circuit -- Culhane v. Aurora Loan Services of Nebraska

Nonparty mortgager has standing to challenge subsequent assignment of note, but strong prudential considerations can counterbalance.

Interposed entity need not hold the beneficial interest -- legal interest suffices for assignment.

Culhane v. Aurora Loan Services of Nebraska

First Circuit -- US v. Willson

Crim -- Wire fraud, false statements

Sufficient evidence for tacit agreement to conspiracy.

Good faith instruction sufficed for condonation defense.

Deft must actually hold the exculpatory impression for a reasonable interpretation of regulations instruction to be given.

US v. Willson 

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