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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: Patent Lawyers? Common law lien question certified
Posted on October 06, 2008In Re: Engage, No. 08-1257. The First decides that the question of whether Massachusetts attorney's lien statute, chapter 221, section 50 of the Massachusetts General Laws, applies to patent prosecution work performed by attorneys is really important and there isn?t...
Department of {censored} Censors AL&P
Posted on October 06, 2008In order to instill purity at a certain large federal government agency, it has blocked AL&P. But, everyone at there can still view Above The Law.
CA1: no implied crediting procedures in bankruptcy plan
Posted on October 03, 2008Ameriquest Mortgage v. Nosek, 07-2173, 07-2174. In an adversary proceeding, the bankruptcy court awarded the debtor ?In an adversary proceeding, the bankruptcy court awarded appellee Jacalyn S. Nosek ("Nosek") $250,000 in emotional distress damages and $500,000 in punitive damages for...
Second Circuit Overturns terrorism convictions
Posted on October 03, 2008...and reassigns to new judge. It?s a great case. It includes difficult informants, cumulative error, and lots of evidentiary rulings.
Law Reviews as an Academic Circle Jerk?
Posted on October 02, 2008Simple Justice picks up the ball, and PrawfsBlawg runs with it.
CA1: First bends to help government prove negative in antique gun registration case
Posted on October 02, 2008US v. Giambro, No. 08-1044 affirms a conviction for possessing an antique gun. (He was acquitted of a number of state charges.) The least interesting issue is under 26 U.S.C. § 5861(d), where the court holds that the defendant need...
CA1: 3-month medicare fraud sentence affirmed after Gall GVR
Posted on October 02, 2008US v. Thurston, No. 05-2271. This is a sentencing case that has been to the First Circuit two times before. (our coverage here). Skipping through the procedure, the government appeals a three month sentence for Medicare fraud. After a GVR...
CA1: First continues to usurp executive and legislative function on immigration matters
Posted on October 02, 2008Odmar v. Mukasey, No. 07-2361 (unpublished) (10/1/08). The petitioner is from Indonesia. He filed his petition for asylum late. There is an interesting question about the extent to which the First Circuit can review an IJ?s application of an incorrect...
CA1: Petitioner not beaten enough for asylum
Posted on October 01, 2008El-Labaki v. Mukasey, No. 07-1191. The petitioner is a Lebanese Greek Orthodox Christian that worked in Lebanon a lot. The IJ denied his claim, writing:While recognizing that petitioner?s ability to travel was merely encumbered by the short-duration detentions at the...
CA1: government liable when postal workers steal mail for political ends
Posted on October 01, 2008Levasseur v. US Postal Service, No. 08-1266. This case would be interesting but for the fact that the plaintiff is a pro se. As you know, there is an exception in the FTCA for that preserves sovereign immunity for "[a]ny...
CA1: No authority to revisit final order memorializing consent decree when policy changes
Posted on October 01, 2008Ricci v. Okin, No. 07-2522, 07-2523. This case revolves around a consent decree meant to reform a mental hospital. The underlying litigation ended in 1993, with an ?disengagement order.? Then, in 2006, the court issued an injunction prohibiting transfers of...
CA1: forged CDs make someone an aggravated felon
Posted on September 30, 2008Magasouba v. Mukasey, No. 07-2298. This petitioner, an ?aggravated felon? wants to stay under the CAT. The First question is whether selling pirated CDs is an aggravated felony. The state statute is R.I.G.L. § 11-17-13(c)(1). The BIA looked to 8...
CA1: remand in Indonesian homosexual economic persecution case
Posted on September 30, 2008Kadri v. Mukasey, Nos. 06-2599, 07-1754. This is strange. The petitioner is a gay doctor in Indonesia. The IJ granted granted his petition. The government appealed. What the hell? What the hell is OIL doing appealing this? The BIA reversed...
CA1: No E&O coverage for falsified credit reports
Posted on September 30, 2008New Fed Mortgage Cor v. National Union Fire Insurance Company, No. 07-2762. This case is timely. As you know, many of our clients have caused the downfall of civilization as we know it. Anyway, New Fed is a residential mortgage...
CA1: Cambodian petition not taken seriously
Posted on September 26, 2008Keo v. Mukasey, No. 08-1103 (9/25/08) (unpublished). The petitioner is from Cambodia. The BIA claims says he wasn?t oppressed. The First does not take his petition seriously, but decides that the BIA is some kind of court or something. Whatever.
CA1: First usurps foreign policy making power
Posted on September 26, 2008Sunarno v. Mukasey, No. 07-2623 (9/25/08) (unpublished). The petitioner is an Indonesian Catholic. There was a late filing for asylum, and a petition to reopen. Unfortunately, the First goes a little crazy and starts creating separation of powers issues, by...
CA1: mixed motive oppression y?all
Posted on September 26, 2008Singh v. Mukasey, No. 07-2187 (9/25/08). The petitioner is from India and claims to be oppressed because of his political beliefs, or the beliefs of his father. The issue is how to deal with mixed-motives for oppressing someone under the...
CA1: First abdicates its role in reviewing immigration cases
Posted on September 25, 2008Rabbat v. Mukasey, No. 08-1330 (9/25/08) (unpublished). The petitioner is a Syrian Christian. The First says that because the asylum claim was filed late, it lacks jurisdiction to review it. But, it can review the withholding claim. The First then...
CA1: First sends Falun Gong practitioner back without taking appeal seriously
Posted on September 25, 2008Lu v. Mukasey, No. 08-1113 (unpublished) (9/25/08). The First Circuit denies of a petition of a Falun Gong practitioner, sending her back to China where she will, I am sure be able to practice her religion. During my trip to...
CA1: another chapter in Narragansett Indian Tribe lawsuit ends on procedural note
Posted on September 24, 2008Thomas v. State of RI, No. 07-1985. This is yet another appeal regarding a raid onto the tribal lands. As you may recall, the First Circuit in Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 30-31 (1st Cir. 2006)...
CA1: sex offender registration
Posted on September 24, 2008US v. Alcantara-Mendez, No. 06-2675 (unpublished). This is strange. A sex offender didn't register. His supervised release was violated. But, the District Court didn't say what the grounds were, but the First says it was was obvious. Every argument in...
CA1: franchise fight
Posted on September 24, 2008New England Surfaces v. E.I. Du Pont De Nemours, No. 08-1048. This is a fairly complicated franchise fight which ends in a motion in limine regarding an expert on damages. The First explains this: first, that even assuming the motion...
CA1: cop fight results in valid First Amendment claims
Posted on September 23, 2008Welch v. Ciampa, No. 07-2470. This is one of those frequent cases where cops and politics result in lawsuits. See, although cops frequently tase poor people, they also like to sue each other. It is part of cop culture, too....
CA1: major, yet squirly opinion on gun-type as an element v. sentencing factor
Posted on September 23, 2008US v. O'Brien, No. 07-2312. The First splits with other circuits and find that ?[U]nder a statute forbidding the carrying and use of guns in connection with a federal crime, the nature of the weapon is to be found ......
Monday Snark: Virginia is for appellate Finger-Pointing
Posted on September 22, 2008The Washington Post has an article describing how Virginia keeps having their legislation declared unconstitutional. Some people blame the lawyers. Some blame the legislature. Because it is Virginia, some blame Mexicans, Jews, the handicapped, or lady voterettes...
CA1:Cambodian fishing cop not oppressed
Posted on September 19, 2008Nou v. Mukasey, No. 07-1546. Judge Dyk of the Federal Circuit says this ?we conclude that the BIA did not err in rejecting Nou?s asylum claim and in denying Nou?s petition for judicial review.? I believe that he might not...
CA1: No problem in excluding victims' prior convictions
Posted on September 19, 2008US v. Nguyen, No. 07-1217. Bookies. Beatings. The big question is whether the judge shouldn?t have excluded the ?victims? prior convictions under FRE 609. The District Court, for its part let the defendant?s convictions in, however. The defendant then tried...
CA1: costs in professional responsibility case not dischargeable
Posted on September 19, 2008Richmond v. NH Supreme Court, No. 07-2671. Cases with names like this are either very interesting, or very stupid. But, this one is different. It is a freakin? Bankruptcy case. Combined with a professional responsibility case. We know where this...
Dissenting Judge Tells Lawyers to Take It to YouTube
Posted on September 18, 2008A couple days ago we commented on Buckley v. Haddock (11th Cir. 2008), in which a few law clerks on the Eleventh Circuit got off on explaining how it is not only okay to tase the shit out of a...
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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
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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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