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10th Circuit
TAX
Barrick Resources USA v. U.S., Jun-20-2008
J. Tymkovich finds that the Internal Revenue Service properly denied a company more than $1 million in tax refunds because the company's amended tax returns were filed after the three-year statute of limitations. Affirmed.
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10th Circuit
TAX, CIVIL PROCEDURE
Barrick Resources Inc. v. United States, Jun-20-2008
J. Tymkovich finds the district court properly ruled in favor of the IRS. Plaintiff did not file a timely application to collect refunds on amended 2002 and 2003 tax returns. Affirmed.
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11th Circuit
HABEAS
Gorby v. Department of Corrections, Jun-20-2008
The lower court dismissed petitioner's habeas petition as untimely after his murder and theft convictions. The circuit finds that petitioner's second successive motion for post-conviction relief was not timely filed and the one-year statute of limitations was not tolled under the Antiterrorism and Effective Death Penalty Act. Affirmed.
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11th Circuit
PRISONERS RIGHTS
Bryant v. Rich, Jun-20-2008
Two prisoners brought excessive force claims against prison officials under Section 1983. J. Edmondson finds that both prisoners failed to exhaust their administrative remedies in accordance with the Prison Litigation Reform Act, so the court correctly dismissed the complaints without prejudice.
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1st Circuit
EVIDENCE, SENTENCING
U.S. v. Hilario-Hilario, Jun-20-2008
J. Boudin finds that five men were properly convicted of aiding and abetting a smuggling venture that resulted in the deaths of seven illegal immigrants based upon sufficient evidence. However, the trial court improperly enhanced three of the convicted individuals' sentences based upon an unfounded "special skill" adjustment. There is no evidence that the three individuals had any skills in steering the simple vessel that was used to transport the illegal immigrants from the Dominican Republic to Puerto Rico. Vacated in part.
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1st Circuit
COPYRIGHT
Warren Freedenfeld Associates v. McTigue, Jun-20-2008
J. Selya finds that the lower court improperly dismissed an architecture firm's copyright infringement claim against a veterinarian as untimely because there are no facts to support that the firm was given proper inquiry notice. However, the lower court properly found in favor of the firm after the veterinarian failed to show that he was a co-author of any portion of the copyrighted architecture work. Vacated in part.
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1st Circuit
IMMIGRATION, DRUG OFFENDER
Julce v. Mukasey, Jun-20-2008
J. Lynch finds that the Board of Immigration Appeals properly denied a Haitian's application for cancellation of removal after the immigrant had been convicted of an aggravated felony. The Haitian failed to show any reason why his possession of marijuana with intent to distribute conviction should be reduced to a misdemeanor under a federal statutory exception. Denied.
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2nd Circuit
PROPERTY, CONSTITUTION
Eberhard v. Marcu, Jun-20-2008
A dispute over the ownership of some personal assets occurred when a transfer of property was questioned and claimed by a receiver. J. Wesley finds that appellant was entitled to a jury trial to determine ownership of the property that was claimed by a receiver. The Seventh Amendment guarantees a jury trial where there is a claim for the right to possession. Reversed.
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3rd Circuit
DAMAGES
Wartsila NSD North America v. Hill International, Jun-20-2008
J. Alarcon finds that the district court miscalculated damages because it failed to exclude evidence of "incidental, special, indirect or consequential" damages, for which the contract disclaimed liability. The district court further failed to clarify what portion of the damages were based on direct damages and what portion was based on the excluded consequential damages. Vacated.
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3rd Circuit
CIVIL RIGHTS, JURY
Lora-Pena v. Federal Bureau of Investigation, Jun-20-2008
The circuit finds that the jury was not properly instructed to consider whether officers used excessive force against plaintiff while arresting him for a violation of the terms of his supervised release. It is possible to use excessive force even in a situation where force is required to subdue a violent person. Vacated.
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4th Circuit
JURISDICTION, HABEAS
US v. Poole, Jun-20-2008
J. Duncan finds that a temporary custody arrangement was improperly allowed to form the basis of a district court's jurisdiction over a habeas petition that was filed under 28 United States Code 2241(c)(3). The question regarding whether the Maryland federal district court had jurisdiction over the 2241 petition turned on whether appellant's "custodian" was the warden of the Maryland state prison, over which the Maryland federal district court had jurisdiction, or the warden of the Kentucky federal prison, appellant's original place of incarceration to which he was slated to return following the proceedings before the Maryland district court. Maryland could not transmute appellant's temporary presence in the district into a permanent stay that effected a change in custodian. Reversed.
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5th Circuit
BANKRUPTCY
Wooley v. Faulkner, Jun-20-2008
The bankruptcy court invoked equitable subordination which effectively converted secured claims filed by John and Jeffrey Wooley to unsecured claims for distribution purposes. J. Davis rules that subordination of the Wooleys' claims was improper because the trustee failed to show that loans made to the debtor harmed either the debtor or general creditors. Reversed.
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5th Circuit
ERISA
Nichols v. Alcatel USA Inc., Jun-20-2008
Retirees filed a class action claims that Alactel USA improperly eliminated medical benefits in violation of ERISA because the medical benefits are part of a pension plan. J. Stewart rules that the program literature explicitly states the medical benefits are not a pension plan and the benefits are repeatedly referred to as a welfare plan. Also, since the medical benefits could never be redeemed for cash, the benefits are not vested. Affirmed.
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5th Circuit
SEX OFFENDER
USA v. Dillon, Jun-20-2008
The former assistant city attorney for New Orleans claimed that his rape convictions should be overturned. J. Garwood rules that defendant acted under color of law when he raped the two victims because he verbally invoked his power before, during and after the assaults. Further, the trial court properly admitted evidence of other sexual assaults not related to the two rapes because the uncharged assaults are similar to the rapes in that defendant used his position as a city attorney to commit the assaults.
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5th Circuit
SENTENCING, ATTORNEYS
USA v. Hayes, Jun-20-2008
The government challenged a reduced sentence given to defendant after a finding that defendant's original counsel at sentencing was ineffective. J. Dennis rules that an evidentiary hearing is needed to determine whether defendant's original sentencing counsel was ineffective, because there is no way to analyze the potential strategy of the attorney's failure to object to a career offender categorization.
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7th Circuit
EXTORTION
USA v. Carter, Jun-20-2008
[Reposted with correct date.] J. Flaum finds that Carter, the former Lake County Recorder, was properly convicted for extortion under color of right and rejects Carter's claims that the government failed to prove that his actions affected interstate commerce or that he acted under color of right when he charged a man to purge an already-invalid lien.
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8th Circuit
COMMUNICATIONS, JURISDICTION
Southwestern Bell Telephone v. NuVox Communications of Missouri, Jun-20-2008
Southwestern Bell's attempt to negotiate interconnection agreements with several competitors failed and the dispute was submitted to arbitration under the Telecommunications Act. The Missouri Public Service Commission then adopted the arbitrator's decision. J. Bye finds that the Federal Communications Commission has exclusive jurisdiction and the district court properly overturned the arbitrator's decision that Southwestern was statutorily required to provide disputed network facilities to the Competing Local Exchange Carriers. Also, the Competing LECs are entitled to access Southwestern's entrance facilities for interconnection purposes at total element long-run incremental cost rates.
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8th Circuit
IMMIGRATION
Kirong v. Mukasey, Jun-20-2008
J. Gruender finds that a native of Kenya who was an applicant for admission was required to prove clearly and beyond doubt that he was admissible and, thus eligible for adjustment of status, and then was required to show clearly and beyond doubt that he did not make a false claim of citizenship for a purpose or benefit under the Immigration Act. However, petitioner falsely claimed U.S. citizenship on I-9 forms in order to obtain private employment and thus he was ineligible for adjustment of his status.
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8th Circuit
THEFT, SENTENCING
USA v. Vickers, Jun-20-2008
J. Loken finds the evidence supported defendant's conviction for knowing possession and interstate transportation of stolen property, and the court correctly imposed enhancements based on findings that defendant was in the business of receiving stolen property and obstructed justice by perjuring himself and attempting to intimidate witnesses.
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8th Circuit
SOCIAL SECURITY
Bradley v. Astrue, Jun-20-2008
J. Riley finds that while claimant suffers from HIV and no doubt faces significant obstacles in both his work and personal life, his limitations did not qualify him as having an impairment under Social Security regulations. Thus, the determination that claimant was not disabled was supported by substantial evidence, as was the determination concerning claimant's credibility.
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8th Circuit
CONTRACT
Bores v. Domino's Pizza, LLC, Jun-20-2008
The court found that Domino's may not require franchisees to purchase Domino's custom-designed, integrated computer system. After reading a portion of the franchise agreement which states "We will provide you with specifications for pizza" and applying the commonly understood definition of the word "specification," J. Bye finds that the franchise agreement in question permitted Domino's to specify a computer system to be used by franchisees. Reversed.
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8th Circuit
PREEMPTION, TRANSPORTATION
Duluth, Winnipeg, and Pacific Railway Company v. City of Orr, Jun-20-2008
A railway company claimed that a state special law, which prohibited certain speeds of operation, was preempted by the Federal Railway Safety Act. J. Murphy finds that the state law is preempted and does not fall within the savings clause of the statute because the special law was not necessary to reduce an essentially local safety hazard. Reversed.
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9th Circuit
CIVIL PROCEDURE
Leppind v. Mukasey, Jun-20-2008
[Order.] Case is referred to the Ninth Circuit Mediation Office to explore a possible resolution through mediation.
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9th Circuit
CIVIL PROCEDURE, EMPLOYMENT, PRIVACY
Nelson v. NASA, Jun-20-2008
[Vacated and replaced opinion.] J. Wardlaw finds that the balance of hardships placed on scientists, engineers, and administrative support personnel at the Jet Propulsion Laboratory, by NASA's recently adopted requirement that "low risk" contract employees like themselves submit to in-depth background investigations, tips sharply in their favor. Denial of injunction vacated.
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9th Circuit
SPEEDY TRIAL
USA v. Mendoza, Jun-20-2008
[Amended opinion.] J. Nelson finds that Mendoza correctly asserted that the eight-year delay between his indictment and his arrest for filing false income tax returns violated his Sixth Amendment right to a speedy trial because the delay was due to the government's negligence.
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Alaska Courts Of Appeal
DUI
Molina v. State, Jun-20-2008
Defendant was convicted of felony DUI where the state relied on a prior Arizona DUI. J. Mannheimer finds that the definition of DUI under Arizona law is sufficiently similar to Alaska's definition because both states' tests require proof that, as a result of the influence of intoxicants, the operator of a vehicle was deprived to a perceptible degree of their normal mental and physical capacity to control the vehicle. Thus, defendant's Arizona conviction qualifies as prior conviction in Alaska. Affirmed.
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Alaska Supreme Court
ZONING, ELECTIONS
Griswold v. City of Homer, Jun-20-2008
The Homer City Council passed an ordinance to limit the floor area of stores to 45,000 square feet so Homer residents passed an initiative that increased the area to 66,000 square feet. Griswold, a Homer resident, claimed that the initiative was invalid. J. Eastaugh finds that the zoning initiative impermissibly bypassed the Homer Advisory Planning Commission and thus exceeded the city council's legislative power and is invalid. Reversed.
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California Courts Of Appeal
LANDLORD TENANT, CONTRACT
California National Bank v. Woodbridge Plaza, Jun-20-2008
A provision for the calculation of rent for an extended term of California National Bank's lease of premises owned by Woodbridge Plaza set rent for the new term at the "then prevailing rate, not to exceed rent paid by a competitor bank or 'successor' in the same shopping center." J. Rylaarsdam finds that "successor" means successor to the now-defunct competitor bank, and not the six, non-bank subtenants that filled the vacancy in the shopping center after the closure of the competitor bank. Rent was properly set at a rate paid by nearby financial institutions as calculated by defendant's expert witness.
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California Courts Of Appeal
INSURANCE, DAMAGES
Roberts v. Assurance Company of America, Jun-20-2008
[Amended opinion.] J. Rylaarsdam finds that no issues remain as to whether the Roberts requested their insurance brokers to obtain liability insurance in addition to course of construction coverage. The Roberts claims did not fall within the collapse coverage provided by a provision of Assurance's policy and that there are no issues as to the efficient proximate cause of their loss.
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