Eighth Circuit: Bonnie Dick v. Dickinson State University

Torts.

State statute of limitations appropriately borrowed.

A claim alleging a denial of reasonable accommodation is a discrete instance, one that does not require a comprehensive review of the history.

Insufficient factual basis for adverse employment action claim.

Evidence outside of the statute of limitations period does not create a genuine issue of material fact for purposes of summary judgment.

Bonnie Dick  v.  Dickinson State University

Seventh Circuit: ACF 2006 Corp v. Timothy Devereux

Easterbrook, Contract, Fees

Quantum meruit adjustment to factual findings at trial.

Funds held in a non interest bearing (IOLTA) account are not subject to prejudgment interest.  (Possibly.  Confusing.)

Victims of lawyer's taking of client funds while practicing in an LLC have a priority claim over a later-erfected secured interest.


ACF 2006 Corp v. Timothy Devereux

Seventh Circuit: John H. Germeraad v. Myrick J. Powers

Bankruptcy, FRCP, Mootness

A denial of a trustee's motion to modify is analogous to a 12(b)6 dismissal, and is therefore sufficiently final for appeal when not attributable to a technical defect.

Just as 60(b) motion might be filed again with a different theory, the fact that the trustee might file several motions does not affect their finality for purposes of review.

As the proposed change would relate back to the filing date of the motion, the expiration of the plan's timeframe doesn't make the controversy moot.  The fact that denial of discharge is an equitable decision does not affect mootness.

So long as the motion to modify the plan is filed during the pendency of the plan, it is timely.

Although nothing in the Code authorizes a postconfirmation modification to account for increased income, the decision is an equitable one suggested by the purposes of the Code, and is not subjet to any "good faith" requirement.


John H. Germeraad v.   Myrick J. Powers

Sixth Circuit: Gianni-Paolo Ferrari v. Ford Motor Company

Discrimination

As safe employment could be found at the plant, iatrogenic opiod use did not impede the major life activity of working.

No genuine issue of material fact as to whether medical restrictions were pretextual, as the medical evidence is corraborated, and there is no proof that the decisionmakers had reason to doubt the medical opinion.

Insufficient causation for FMLA retaliation claim.

Gianni-Paolo Ferrari v. Ford Motor Company

Fifth Circuit: USA v. Derrick Wheaten

AEDPA, Habeas

Untimely Certiorari petition filed with Supreme Court that is denied without sign that the lateness has been excused does not reset the statutory deadline for filing a subsequent Habeas petition.  Circuit footnote suggesting otherwise dicta.

Missed deadline by counsel in direct review did not constitute abandonment, as petitioner was timely notified of the late filing and sent a Habeas pamphlet.

Incorrect telephone guidance by Supreme Court clerk didn't cancel the fact that petitioner was on notice of the deadline.


USA v. Derrick Wheaten

Fifth Circuit: Keith Harris v. Texas Veterans Commission, et al

Equal Protection, Right to Travel

State statute offering tuition benefits for past military service so long as the student enlisted or was inducted while in the state or a resident in the state has a rational basis, as it encourages positive behavior (enlisting, graduating high school) and keeps other residents of the state from being conscripted.

Right to travel is not implicated, as it imposes no penalty on entrants to the state.  Had it been implicated, portability of of benefit and gratuitous nature of entitlement would suffice for review.

Keith Harris v. Texas Veterans Commission, et al

Fifth Circuit: Carlos Gonzalez v. Able Huerta

S1983, Fourth Amendment

Although the investigative detention was made without reasonable suspicion, reasonable suspicion is too general a principle to be clearly established for purposes of review under S1983.  As there was no caselaw holding that a refusal to produce identification on school grounds was not grounds for reasonable suspicion, grant of immunity was proper.

Dissent: specificity refers to the law, not to the factual situation.

Carlos Gonzalez v. Able Huerta

Fifth Circuit: Ronald Heggemeier v. Caldwell County, Texas, et al

Discrimination

As a similarly situated comparator was also terminated and the variance in the comparator's severance can be explained by differences in their situations, no Title VII racial discrimination claim.

No ADEA retaliation, as termination occurred 21 months after initial complaint, with a lateral transfer interposed.

State statute limiting reduction in pay does not place a restriction on at-will nature of employment sufficient for a property interest in continued employment.  Conceding at-will employment relative to one supervisor ends the property interest generally.

Statute allowing appointment to state office by elected official does not prevent another arm of the government from terminating the employment.

No abuse of discretion in district court's refusal to exercise ancillary jurisdiction over whistleblower claims.


Ronald Heggemeier v. Caldwell County, Texas, et al

Third Circuit: Omar Frias-Camilo v. Attorney General United States

Immigration, FRCrimP, Statutory Construction

As the Immigration statute regards convictions as having an adjudication and a punishment, and circuit precedent regards the linking "and" as conjunctive, the FRCrimP standard of conviction cannot be used to interpret the Act.  Rather, state actions which incorporate either finding of guilt or punishment can qualify.

Omar Frias-Camilo v. Attorney General United States

Third Circuit: Aguedita Ordonez Tevalan v. Attorney General United States

Immigration

Where a petitioner has filed an appeal with the court, the court is not divested of jurisdiction by the agency's granting of a motion to repoen the matter, particularly where the reopening of the case is for ministerial reissuing of orders and decisions.

Where there is objective evidence of inconsistent statements in the record, there is sufficient evidence for an agency's adverse credibility decision.

Insufficient grounds for protection under CAT.

Aguedita Ordonez Tevalan v. Attorney General United States

Third Circuit: Jose Bedolla Avila v. Attorney General United States

Sentencing, Immigration

As the state statute proscribing possession with intent to deliver is analogous to the similar federal statute which has no minimum possession, under modified categorical analysis, the state conviction here is an aggravated felony for sentencing purposes.

Simultaneous removal proceedings by DHS and INS do not offend regulations or Due Process, as there is no direct proscription in the regulations and there was no showing that the simultaneity of the proceedings harmed the petitioner's attempt to present his case.  

Jose Bedolla Avila v. Attorney General United States

Second Circuit: Leeward Construction Co. v. American University of Antigua

Arbitration

Where arbitrator commits in initial proceedings to issue a reasoned award, a reasoned award is required.

While an arbitrator's reasoned award need not delve into every argument raised or provide a line-by-line justification for the award, it must set forth relevant facts and factual findings.

Arguing for the original profit margins on the deal is at least a barely colorable justification for the award of same based on bad faith, which is all that is required.

Leeward Construction Co. v. American University of Antigua

Second Circuit: Smith v. Wenderlich

Double Jeopardy, Sentencing, Habeas

Where a prison term is increased due to offenses committed in prison, the completion of the portion attributable to the initial sentence does not finalize the sentence for purposes of double jeopardy, and a subsequent resentencing to incorporate supervised release is therefore neither contrary to nor an unreasonable application of federal constitutional law.

Smith v. Wenderlich

Federal Circuit: IMMERSION CORPORATION v. HTC CORPORATION

Erratum



IMMERSION CORPORATION v. HTC CORPORATION [ERRATA]

Federal Circuit: DE SANTIS v. MSPB

Administrative, Employment

Where statute restores a class of appeals according to the law before the class of appeals was revoked, in determining eligibility for the appeal, courts should use the present scheme of employment, as modified by regulations, in combination with the law of the earlier period.  A position that had the right of appeal before the change does not therefore have the right of appeal after the change, as it might have been modified by regulations.


DE SANTIS v. MSPB

Federal Circuit: ETHICON ENDO-SURGERY, INC. v. COVIDIEN LP

Patent, Dissent from denial of en banc


(Reminder: We don't know many things, but we especially don't know Patent.  Entertainment purposes only, as always.)

Using the merits panel to screen patent challenges is contrary to statute, and risks prejudgement.


ETHICON ENDO-SURGERY, INC. v. COVIDIEN LP [ORDER RE EN BANC PETITION]]

Tenth Circuit: Cropper v. CIR

Tax, Administraive

Although an irregularity in the postal forms prevented a presumption of receipt upon mailing, an agency appeal holding that the totality of the evidence indicated mailing was not an abuse of discretion, and since the statute imposes an affirmative duty on the recipient to challenge the mailing, the loss of the presumption of receipt does not prevent the levy.


Cropper v. CIR

Ninth Circuit: SELSO ORONA V. USA

Statute of Limitations, Habeas, AEDPA


The statutory one-year filing deadline for second or successive Habeas applications based on claims made retroactive to cases on collateral review is tolled by filing an application in the court of appeals to proceed with the writ, so long as the application states the claim at issue.


SELSO ORONA V. USA

Ninth Circuit: USA V. JORGE CISNEROS

ACCA residual clause

As the state Burglary statute encompasses structures that are not included in the generic federal definition of burglary, sentencing enhancements under the federal statute cannot be applied.

[cf. S. Ct. U.S. this AM.]


USA V. JORGE CISNEROS

Ninth Circuit: CARLOS BAQUERIZO V. GARDEN GROVE UNIFIED SCH DIST

IDEA

As the procedural violations of the act were caused in part by the programs retained by the plaintiff and do not rise to the level that would deny a free appropriate public education, no reimbursement required under the act.

CARLOS BAQUERIZO V. GARDEN GROVE UNIFIED SCH DIST