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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 sides with credit reporting agencies where valid loan was secured by forged mortgage
Posted on April 15, 2008DeAndrade v. Trans Union LLC, No. 07-1844. This is a credit-reporting screw-up case (in which the defendants are accused under the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681x ("FCRA") of not ?reinvestigat[ing] properly and delete the disputed debt from...
CA1: ERISA, the ADA and pro ses
Posted on April 14, 2008Femino v. NFA Corporation, Nos. 07-2178, 07-2179 (unpublished). This is a pro se ERISA case. I guess I could just stop there. However, the reasoning is more of a civ pro issue. The First says that the issue is precluded...
CA1: Traveling Copt not that oppressed
Posted on April 14, 2008Abdel Malek v. Mukasey, No. 07-1851 affirms the asylum denial of an Coptic Egyptian. The facts (which the IJ found credible) show how screwed up people are in other countries. People go around threatening each other and offering each other...
CA1: another ?in furtherance? affirmance ending with an opaque sentencing discussion
Posted on April 14, 2008US v. Rosado, No. 07-1465 (unpublished) affirms a conviction for distributing ?cocaine base.? The First turns back a sufficiency challenge saying that of course a jury could infer that someone knew how much drugs were in a car. It also...
Leaving it to the legislature.
Posted on April 14, 2008Whenever you read a case which includes some command to a party seeking relief to lobby congress, everyone knows what is happening: the losing party is being laughed at by the judge. The relief he seeks is so alien to...
CA1: guns+drugs, in criminal law, do mix (and defendants lose)
Posted on April 11, 2008US v. Marin, No. 06-1912. This is a 18 U.S.C.§ 924(c) (firearm ?in furtherance of drug trafficking? conviction). Now, in light of Heller, the law might be different. There was a gun in the bedroom, but nobody saw him carry...
CA1: hotel room bust okay
Posted on April 11, 2008US v. Jones, No. 06-2472. This case begins with a log narrative of a drug bust with a no-knock warrant. Then the First gets into Fourth Amendment issues, which we can guess we know where they are going. To answer...
CA1: bookies and Booker
Posted on April 11, 2008US v. Nguyen, Nos. 07-1010, 07-1011, 07-1012. The facts here read like some kind of mafia flick. Some guys lost a bet. Some other guys came to collect. It ends (and the case begins) with an ? indictment alleg[ing] that...
Sentencing Roundup
Posted on April 11, 2008Since there were a bunch of sentencing issues from the First in the past day or so, here they are right next to each other, so you don't have to scroll past all that civil crap. Striking a death notice...
CA1: First finds an exception to Younger abstention for administrative proceedings involving Esso
Posted on April 11, 2008Esso Standard Oil v. Mujica Cotto, No. 07-1218 (4/10/08). The District Court enjoined the Puerto Rico Environmental Quality Board from imposing a fine on the plaintiffs essentially because the administrative proceedings were quite biased and didn?t have enough due process...
CA1: Contribution train wreck
Posted on April 11, 2008Rio Mar Assoc. L.P. v. UHS of Puerto Rico, Nos. 07-1868, 07-2005 (4/10/08). In this case, Selya needs to reduce the use of big words, since there are complex issues of civil procedure involving members of the upper middle class....
CA1: perhaps the MDLEA is constitutional
Posted on April 10, 2008USA v. Vilches-Navarrete, 06-1942. This is another high-seas drug stop under the Maritime Drug Law Enforcement Act ("MDLEA"), 46 U.S.C. § 70503. As to the constitutionality of the MDLEA, Torruella says that issue can be avoided under the doctrine of....
programming note
Posted on April 10, 2008Today's opinions will be out tomorrow. Come to customer service to get your money back.
CA1: First Circuit resurrects death notice when government doesn?t follow rules
Posted on April 10, 2008US v. Lopez-Matias, No. 07-1662. The government filed a notice that it wanted to kill someone. The District Court struck the notice saying that the government didn?t abide by its own rules regarding presentation of mitigating evidence, nor did it...
CA1: First Remands in light of non-retroactive change in guidelines
Posted on April 10, 2008US v. Godin, No. 06-1749. After being sentenced as a career offender under the 2005 version of U.S.S.G. § 4B1.1(a), the USSC came out with a newer version of U.S.S.G. § 4A1.2(a)(2) (2007); U.S.S.G., Supp. to App. C, Amendment 709...
Florida Hijinx Continue ? with appellate courts and Quo Warranto Petitions
Posted on April 08, 2008This time, an appellate judge is facing discipline for writing a concurring opinion because he criticized a ?fellow? judge in a concurring opinion, stating that the judge should have recused himself. I think most people agree that this is absurd....
Odds and Ends
Posted on April 08, 2008Wait A Second points to the Social Value in Borat. A Borat suit dismissed. The guy who is angry because he was shown running away from Borat loses in the in SDNY. The court writes: The movie challenges its viewers...
CA1: Getting an evidentiary hearing in a service fight
Posted on April 08, 2008Blair v. Towler, Nos. 06-1626, 07-1258. This started as a fairly standard ?cops beating the crap out of someone case.? ?In an initial action, after the petitioners filed an amended complaint, the district court granted the defendants' motions to dismiss,...
CA1: State loses a round in pool fire fight with Nuclear Regulatory Commission, but more to come
Posted on April 08, 2008Massachusetts v. NRC, Nos. 07-1482, 07-1483. There is a re-licensing proceeding going on for two nuclear plants. The state wants to make sure that the spent fuel rods will be disposed of properly (or, probably, in someone else?s backyard). As...
Something good about the Second Circuit?s Clerk?s office
Posted on April 08, 2008Recently, the Second Circuit?s clerk?s office has gotten a lot of bad press. They have attempted to hide opinions and obscure the government?s positions. They have been jerks about briefs. But, today, Norm Pattis has something good to say about...
Judge Weinstein?s opinion
Posted on April 06, 2008It has come to my attention that some members of the bar have commented on Judge Weinstein?s opinion in US v. Polizzi (the one where he cared what the jurors thought about the sentence of someone that had child pr0n)....
CA1: no prejudice in prosecutor comment
Posted on April 05, 2008Delaney v. Bartee, No. 07-1526 affirms a habeas denial. The underlying issue is whether ?the prosecutor violated his constitutional rights under Doyle v. Ohio, 426 U.S. 610 (1976), by commenting on his decision to remain silent after arrest.? Although it...
Quilters 1: Trial 0
Posted on April 04, 2008Bonnie B's Blog reports: An ex-soldier accused of raping a 14-year old girl and murdering her and her family in Iraq was postponed two weeks because there are not enough hotel rooms available [in Paducah, KY] for the trial participants...
Talking about race
Posted on April 04, 2008Recently in some of the presidential campaigns aimed at non-lawyers (there are campaigns aimed at attracting the support of specific lawyers, but they are not relevant here and it is considered rude to discuss them on the internet), people decided...
Programming note
Posted on April 04, 2008At the risk of appearing like a bad lawyer, I must admit that I will get to today?s two cases (a habeas case and an ERISA case today or this weekend. However, this does not excuse real lawyers that are...
CA1: another FCRA "firm offer" case goes down
Posted on April 03, 2008Dixon v. Shamrock Financial, No. 07-1896 affirms the dismissal of another case in which plaintiff argues that a company that sends ads to people and ?unlawfully accessed his credit report, in violation of the Fair Credit Reporting Act ("FCRA"), 15...
CA1: Face off on Facebook turns into first impression Civ. Pro. question about amended complaints
Posted on April 03, 2008ConnectU LLC v. Zuckerberg, No. 07-1796. To begin, let me tell you that I don?t like social networking sites. They are stupid. They are worse than the practice of giggling after every sentence that has taken hold at some law...
CA1: First bends to affirm enhanced sentence because of unresolved conduct and non-noticed conduct
Posted on April 03, 2008US v. Politano, No. 06-2342 affirms an upward Booker variance. Applying Gall v. United States, 128 S. Ct. 586, 597 (2007); and United States v. Martin, No. 06-1983, 2008 WL 748104, at *4-5 (1st Cir. Mar. 21, 2008) (our coverage...
CA1: ERISA, Workers Comp, and preclusion
Posted on April 03, 2008ernandez-Vargas v. Pfizer, No. 06-2632. There is a long and convoluted history behind this appeal of what amounts to a suit arising from an industrial accident. But, the issues are fairly simply. Even though there probably was not actual federal...
Judicial self-indulgence fails to cure social ills or torture memos
Posted on April 02, 2008Judge Marvin Arrington kicked all the white people out of the courtroom and lectured black people about how to behave and not commit crimes, etc. etc. The pundits engaged in shallow naval-gazing about whether it was racist or not. While...
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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 ...
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Parallel parking gone bad. Too much gas UES NYC
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UES NYC
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Twitter suspends journalist critical of broadcast partner's coverage on dubious grounds @guyadams #nbcfail #twitterfail
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Model example of 1st Amendment suppression by the People of New York City's Michael Bloomberg #OWS #NYPD
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AG Holder lackadaisical on Operation in our Sites domain name seizures & RIAA lobbied free speech suppression @dajaz1
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Are the abortion ultrasound laws headed for the Supreme Court?
On 05-15 at 21:52PM
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 ...
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