In re Bulger, US 1st Cir. (3/14/13)
Constitutional Law, Criminal Law, Legal Ethics
James “Whitey” Bulger was the leader of a criminal organization in Boston from 1972 to 1999. An indictment returned by a federal grand jury charged Bulger with a number of federal offenses, including violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act, and the indictment alleged that Bulger committed nineteen murders ancillary to the RICO conspiracy. Bulger’s case was assigned to U.S. District Court Judge Richard Stearns. Bulger moved that Judge Stearns recuse himself, arguing that the judge’s prior employment as head of the U.S. Attorney’s Criminal Division in Boston and his close friendship with FBI Director Robert Mueller created an appearance of impropriety necessitating recusal. Judge Stearns denied the motion. Bulger subsequently petitioned the First Circuit Court of Appeals for a writ of mandamus requiring reversal of the judge’s order denying the motion for recusal. In an opinion written by Hon. David H. Souter, the First Circuit granted the petition and ordered the case to be reassigned to a different judge “because it is clear that a reasonable person would question the capacity for impartiality of any judicial officer with the judge’s particular background in the federal prosecutorial apparatus in Boston during the period covered by the accusations.”
Northington v. H & M Int’l, US 7th Cir. (3/21/13)
Labor & Employment Law
Northington worked for H & M. She dated a fellow employee who was also involved with employee Sims. Sims made threats. Northington reported Sims’ behavior to manager Collins, who was then dating (subsequently married) Sims’ mother, the assistant manager. Sims ultimately physically assaulted Northington away from H & M property. The state court issued a protective order. Northington provided the order to the Union, but not to H & M. Northington complained to H & M officers, but did not complain that the harassment was based on race or gender. Based on her behavior during a safety inspection, the inspector suspected that Northington was under the influence of drugs. Northington left the testing facility without giving a required urine sample. Three company officers concurred in terminating her employment, unaware of her criminal complaint against Sims. Northington claimed retaliation in violation of Title VII. The district court found that H & M’s conduct in deleting inactive email accounts was negligent but not willful; assessed H & M costs and fees; deemed specific facts admitted; and precluded H & M from making certain arguments, but granted H & M summary judgment, finding that Northington did not establish that she had participated in protected activity under Title VII. The Seventh Circuit affirmed. The discovery sanction did not preclude summary judgment.
Li, et al. v. Kerry, et al., US 9th Cir. (3/20/13)
Constitutional Law, Immigration Law
Plaintiffs brought suit on behalf of a class of individuals from China who were seeking to acquire permanent resident status in the employment-based third preference category (EB-3). Plaintiffs alleged that during the 2008-2009 fiscal years, defendants did not allocate immigrant visas to eligible applicants in the correct order, thereby delaying their applications, and their eligibility for adjustment of status. The court held that the district court properly dismissed the complaint because there was no live case or controversy about the establishment of visa cut-off dates, and the allocation of visa numbers, in the 2008 and 2009 fiscal years. The district court did not err in dismissing plaintiffs’ claims for prospective relief because they did not allege that defendants failed to take discrete actions they were legally required to take. Accordingly, the court affirmed the judgment of the district court.
St. Patrick’s Day is a day when we celebrate the 
California 
Last week, Public.Resource.Org, through their counsel at the Electronic Frontier Foundation, filed an action for declaratory judgement against the Sheet Metal and Air Conditioning Contractors’ National Association, Inc. [SMACNA]. In its complaint, Public.Resource.org asserts that since SMACNA’s copyrighted standards were explicitly incorporated into federal and state law, they have become part of the public domain and are no longer subject to copyright restrictions.
We start off our picks this week with a dog sniff case from the Supreme Court. A side note that several opinions came down from the High Court this week – to check them all out go to 
After falling on the street and injuring her leg, Plaintiff commenced this negligence action against Communications Specialists, Inc. (CSI) for creating a hazardous condition in the road by failing to properly pave over a trench CSI cut to install high-speed fiber-optic cable underneath the street. To rebut Plaintiff’s testimony that a dip in the trench caused her to fall, CSI subpoenaed a physician who treated Plaintiff shortly after the accident and declared that Plaintiff “tripped over a dog.” CSI paid the doctor $10,000 for appearing at trial. Plaintiff’s counsel asked the court to charge the jury that, pursuant to N.Y. C.P.L.R. 8001, the doctor was entitled to a witness fee of $15 per day. The court gave the jury a general bias charge but made no specific reference to the payment the doctor received for appearing at trial. The jury found that CSI was negligent but that such negligence was not a substantial factor in bringing about the accident. The Court of Appeals affirmed, holding (1) the trial court should have issued a bias charge specifically tailored to address the payment CSI made to the doctor; but (2) the court’s failure to issue such an instruction in this case was harmless.
Two legislative crowdsourcing efforts came across my desk today: 
The Judicial Council 
CALI has developed a prototype for uploading, storing, and sharing official court opinions called CourtCloud. Elmer Masters, the Director of Internet Development there, calls it a “Dropbox for courts.” The purpose of CourtCloud is to help courts self-publish their opinions.
The DEA, under the authority of the Controlled Substances Act of 1970, 21 U.S.C. 812(b)(1)(B), classified marijuana as a Schedule I drug, the most restricted drug classification under the Act. Petitioners challenged the DEA’s denial of its petition to initiate proceedings to reschedule marijuana as a Schedule III, IV, or V drug. The principal issue on appeal was whether the DEA’s decision was arbitrary and capricious. First, the court denied the Government’s jurisdictional challenge because the court found that at least one of the named petitioners had standing to challenge the agency’s action. On the merits, the court held that the DEA’s denial of the rescheduling petition survived review under the deferential arbitrary and capricious standard where the petition asked the DEA to reclassify marijuana, which, under the terms of the Act, required a “currently accepted medical use.” A “currently accepted medical use” required, inter alia, “adequate and well-controlled studies proving efficacy.” The court deferred to the agency’s interpretation of these regulations and found that substantial evidence supported the agency’s determination that such studies did not exist. Accordingly, the court denied the petition for review.