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Appellate Law and Practice 

Daily summaries of appellate cases from federal circuit courts of appeal. On the weekends, the blog provides appellate practice tips and book reviews.
Post Frequency: 1.8/day Last Entry: December 10, 2008 at 16:15:09 Recent Entries: 612
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CA1: First bends to approve ?Don?t Ask; Don?t tell? on First Amendment Grounds
Posted on June 09, 2008Cook v. Gates, Nos. 06-2313, 06-2381. The First seems to have gone though both facial and as-applied challenges, and ultimately deferred to the government. There was a dissent. So, maybe this will go en banc. Unlike the Ninth Circuit?s Opinion,...
A PR political discrimination suit to come later
Posted on June 05, 2008Negron-Almeda, et al v. PR Trade and Export. Nos. 07-2013, 07-2140. This was a Puerto Rican political discrimination suit. The plaintiff won. The District Court granted reinstatement and backpay and didn?t let the agency intervene (as of right) because it...
CA1: ADA case less interesting than thought
Posted on June 05, 2008R.-Z. v. Commonwealth of PR, No. 07-2025. While this claim was filed under the ADA, the Rehabilitation Act, and 1983, it comes down to a suit against the state employed a teacher that sexually abused a child with cerebral palsy....
CA1: ethics and medical devices and conflicts of prejudment interest
Posted on June 05, 2008Jasty v. Wright Medical, Nos. 07-1743, 07-1744. The plaintiff was a doctor and a ?consultant? to a medical device manufacturer. He makes more than most lay people that prattle on about tort reform makes. It seems that he was sort...
CA1: strange case on double-counting of non-remorse
Posted on June 04, 2008US v. Cruzado-Laureano, No. 06-1815. This is the defendant?s third appeal. The First two were successful. See United States v. Cruzado-Laureano, 440 F.3d 44, 45 (1st Cir. 2006) (our coverage here); and United States v. Cruzado-Laureano, 404 F.3d 470, 473-79...
CA1: Selya surprises and says that fast-track progarms can be considered Post-Gall
Posted on June 04, 2008US v. Rodriguez , No. 06-2656. This case is by Selya. The appeal involves whether post-Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007) the First?s holding that sentencing disparities...
CA1: One of the worst cases ever on the petition clause
Posted on June 04, 2008Rosado-Quinones v. Toledo, No. 07-1425. A cop brought a 1983 suit alleging that he was discriminated against on First Amendment grounds after suing the police in a local court. I guess the underlying lawsuit is interesting: this cop was arrested...
CA1: another age discrimination claim fails
Posted on June 04, 2008Arroyo-Audifred v. Verizon Wireless, No. 07-1661 affirms a grant of summary judgment in an age discrimination case. Some claims are resolved on statute of limitations grounds, and some are resolved because the plaintiff messed up the summary judgment procedure...
Nothing from the First on National Insult Day
Posted on June 04, 2008Just a post to let you know that nothing happened in the First Circuit over the past few days. Therefore, this proves beyond a doubt that "temp" lawyers and "contract" lawyers are better workers than anyone nominated by the president...
Selya on Blogging
Posted on May 27, 2008The Boston Globe reports that US District Court Judge Nancy Gertner has been a contributor to Slate. Judge Selya, who is known for his constant use of big words in cases that send poor people to jail says this: I...
CA1: affirmance for failure to follow local rules on summary judgment
Posted on May 27, 2008Sanchez-Figueroa v. Banco Popular, No. 07-1013. This appeal of an ADA case seems to really be affirming summary judgment for failure to comply with Puerto Rico?s Local Rule 10(b) (translation of exhibits from Spanish to English); and having a counter-statement...
What does it look like when I blog
Posted on May 26, 2008Some people have what it looks like when I blog.* Just for fun, here is a screenshot. As you can see, I use only the hippest open-source systems and software. However, since I am a lawyer I will deny all...
CA1: First tees up retroactivity issue
Posted on May 23, 2008US v. Joseph, No. 04-1477 (unpublished). This is a fairly interesting ?crack guidelines? issue. The defendant was sentenced before Booker. While the First rejects his Booker issue and affirms the sentence, the First remands so that he can move for...
CA1: almost no relief on ?role-in-the-offense? determinations
Posted on May 23, 2008US v. Rodriguez-Guerrero, No. 07-1256 (unpublished). The First makes it clear that ?Role-in-the-offense determinations typically are factbound and, therefore, we will reverse the denial of minimal participant status only for clear error.... ? therefore ?Our standard of review is not...
CA1: No under Fed. R. Crim. P. 35 relief for providing assistance
Posted on May 23, 2008US v. Ellis, No. 07-1997. A guy serving a 25-year sentence who claims to have provided assistance to a ?warden of the federal prison where he was once incarcerated? moved under Fed. R. Crim. P. 35 to shorten his sentence....
CA1: A reported judgment in a kosher habeas case where claim is mooted
Posted on May 23, 2008Guzzi v. Thompson, No. 07-1537. This judgment was dated on the 14th, but wasn't made public, it seems. Since the parties agree that the decision should be dismissed as moot because the state stopped doing what it was doing (not...
Not that big a deal
Posted on May 23, 2008For some reason, the Boston Business Journal thinks that it is notable that Judge Sandra Lynch is going to become the first lady chief judge of the First Circuit. Now, come on, of all the milestones of feminism, is this...
CA1: remand to the IJ because he didn?t explain
Posted on May 22, 2008Sok v. Mukasey, No. 07-2113 remands back to the IJ on a withholding of removal claims because ?the BIA and IJ gave a legally insufficient explanation of why Sok failed to prove that she suffered past persecution in Cambodia, we...
CA1: no double-counting in identity-theft sentencing
Posted on May 22, 2008US v. Sharapka, No. 06-2715. This is an appeal sentence for 121 month sentence for identity theft. The First says that the enhancement for ?more than 10 but fewer than 50 ?victims?? was okay, despite the fact that the defendant...
CA1: suing non-parties to arbitration agreement, doesn?t get around mandatory arbitration
Posted on May 22, 2008Sourcing Unlimited v. Asimco International, No. 07-2754 holds that a corporate signatory to a written partnership agreement that requires international arbitration of their commercial disputes may not escape arbitration of such disputes by naming as defendants two non-signatories, on the...
CA1: Columbian petition denied
Posted on May 21, 2008Restrepo Ruiz v. Mukasey, No. 07-1783. This is an asylum and political persecution case. The petitioner is a Columbian who was anti-FARC and a member of Columbia?s conservative party. FARC seems to have done some bad things. However, Selya says...
CA1: Qualified immunity for political discrimination
Posted on May 21, 2008Lopez-Quinones v. Puerto Rico National Guard, No. 07-1976. Going off my handwritten notes here, this is a qualified immunity in political discrimination case (and the dissent by Torruella, points out that the First Circuit leads the nation in political discrimination...
CA1: Photographic exploitation of a minor with a twist: the federalization of sex.
Posted on May 20, 2008US v. Ortiz-Graulau, No. 06-1768. The First Affirms a conviction under 18 U.S.C. § 2251(a) (?exploiting a minor for the purpose of producing the photographs.?) There was a guilty plea to a 18 U.S.C. § 2252(a)(4)(B) (2000) (?exploiting a minor...
Start your Monday with the remix of O'Reilly
Posted on May 19, 2008Hey? rarefied appellate practitioners?. Start your Monday with the Bill O?Reilly Flipping Out dance remix.
CA1: arbitration award affirmed
Posted on May 15, 2008UMass Memorial v. United Food and Commercial Workers Union, Nos. 07-2527; 07-2528. The hospital lost an arbitration (against the union). The hospital went to the District Court, seeking to vacate the award. This seems to be a dispute about whether...
CA1: PURPA case barred by SOL (and Steel Co issue)
Posted on May 15, 2008Greenwood v. NH Public Utilities, No. 07-2322. This case begins with ?This case was brought by the owner of a small renewable hydroelectricity producing company.? So, he loses. Before getting to the energy nerdery, the First has to explain how...
CA1: plea was valid and entrapment fails
Posted on May 15, 2008US v. Otero, No. 07-1555 holds that in a ?Rule 11" (i.e. a change of plea) proceeding, a defendant was ?aware of the intent element of the drug-trafficking offense? even though the judge didn?t read it out loud. He raises...
CA1: SEC wins something
Posted on May 15, 2008Duggan v. SEC, No. 07-2494 (unpublished). I think this is a FOIA request. The opinion reads, in relevant part ?The Securities and Exchange Commission made an adequate showing at summary judgment that it had conducted a search that was reasonably...
Let the blabber start on the Marriage cases
Posted on May 15, 2008This blog is for ethical lawyers only. As an ethical lawyer, you will have already read In re Marriage Cases (if you did not, you are not ethical). If you have not read that case, then you are not an...
Blackmail and extortion
Posted on May 14, 2008C&F questions why either of these things can or should be crimes. I agree. Why can?t people offer to not exercise a First Amendment right for cash? Hell, most of us agree to waive constitutional rights in exchange for compensation...
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Standards of Practice in Civil Protection Order Cases
The American Bar Association has recently published its new Standa...
WHAT'S THE POOP WITH THE APPELLATE TERM?
In 565 Tenant’s Corp. v. Adams, a cooperative shareholder fa...
My fiance's check is DD into a local credit union. Bank seems to have a pattern of "invisibly holding" charges from the debit card until just HOURS before his DD is processed (and this is after hours, of course). Over th
Have your fiance take the information you've collected and go into the bank...
I am being accused of hitting a 7 yr old child with my car, but I honestly don't think I hit the child. The Child was never knocked down, ran around my car to go back to ball practice, and was walking around with the par
You are in a serious situation. Get a lawyer immediately. Make no statements to ...

My fiance's check is DD into a local credit union. Bank seems to have a pattern of "invisibly holding" charges from the debit card until just HOURS before his DD is processed (and this is after hours, of course). Over th
Have your fiance take the information you've collected and go into the bank...
I am being accused of hitting a 7 yr old child with my car, but I honestly don't think I hit the child. The Child was never knocked down, ran around my car to go back to ball practice, and was walking around with the par
You are in a serious situation. Get a lawyer immediately. Make no statements to ...








