Good to get back into the batting cage for a few days after finishing the dissertation. As there are some other matters arising in the coming week, this will be, at minimum, the last update of the week. Cheers.
-CB
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Eleventh Circuit: Leon Carmichael, Sr. v. USA
Sufficient evidence in record that deft might not have accepted the offer of 20 years; consultations with counsel were after the fact. General post-trial and totality claims similarly insufficiently supported.
Tenth Circuit: Frappied v. Affinity Gaming Black Hawk
Mixed claims sounding in both gender and age are cognizable under Title VII.
Clam sufficiently states the age and gender claim by reciting the gender of the plaintiffs and that they are older than 40.
~96% chance of firings being non-random across age and gender suffices to create a plausible inference of discrimination.
Even given the statistical possibility of discrimination, no facts raising an inference of discrimination on the basis of gender were pleaded, so the non-random employment actions are susceptible of other explanations.
Given statistical analysis of terminations and the demographics of the new employees hired, the suit states a claim for disparate impact under the ADEA.
Median ages of terminated and new employees suffice to state a claim for disparate treatment under the ADEA, but employer met the burden of producing a nondiscriminatory basis. Sufficient issue for trial on whether these post-hoc rationales were pretextual.
Tenth Circuit: Zahourek Systems v. Balanced Body University
There is a genuine dispute for trial as to whether the anatomical model is a useful article under the copyright law, since the question is not the tactile uses to which it might be put in an educational context, but rather whether its usefulness arises from the fact that it correctly depicts the human frame.
Ninth Circuit: Gonzalo Dominguez v. William Barr
State drug statute criminalizing manufacture and delivery is divisible, as the two are different elements, not different means.
Under modified categorical review, the statute is a valid predicates, since the state's inclusion of "conversion" in the definition of drug manufacture overlaps the federal definition of "production."
Board's adjudication took sufficient consideration of the particulars of the case.
Issue of defective notice, promptly remedies, was not jurisdictional.
Ninth Circuit: Linda Larson v. Andrew Saul
Skidmore deference to agency determination that military employment in the civilian sector is not within a SSA exception for wages earned wholly through military service. Circuit split flagged.
Ninth Circuit: Michael Peirce v. Douglas Ducey
State citizen has insufficient concrete or personal harm to challenge state constitutional reallocation of assets held in trust by the state, claiming that the constitutional amendments violate the terms of the trust as defined in the federal enabling legislation.
The voluntary cessation to mootness would not apply in such a case if Congress were to ratify the change, since the alleged transgressor is the state, not the federal government.
Although there is insufficient basis for a private right of action under the federal statute, the bar is not necessarily a jurisdictional one.
Seventh Circuit: Dawn Hanson v. Chris LeVan
Allegations of politically motivated dismissal state a claim where bias is credibly alleged, and according to statute and practice, the position involved access to neither policymaking deliberations nor the politically sensitive work of the elected official.
To state a claim of a clearly established right, there is an important distinction between a murky area of the law and a well-developed but complex area of the law -- the latter allows an easier inference at the pleading stage.
Seventh Circuuit: USA v. Robert Hosler
Sufficient evidence of enticement under the statute where statements seem to provoke the illegal conduct -- there is no requirement that the victim's will has to be overcome.
Seventh Circuit: USA v. Elleck Christopher Vesey
Although the state offense serving as an ACCA predicate is divisible, either prong would require that the victim be close enough to have the prospect of imminent physical harm, making the state crime a valid predicate due to its elements. General intent crimes can serve as predicate offenses.
Sixth Circuit: United States v. Raheim Trice
Deft's subjective expectation that the unlocked common hallway outside his apartment door was within the curtilage of his residence was objectively unreasonable, as deft had insufficient control over the space.
Placement of a hidden camera on the hallway wall opposite the deft's door did not violate the right to privacy, as it only recorded when the deft's door was opened, only short clips of video were filmed, and the deft would not have had the power to exclude law enforcement from being there and observing the same acts, even for extended periods.
Fifth Circuit: Kevin Santos-Alvarado v. William Barr, U. S. Atty
Petitioner's explanations of inconsistencies in testimony are reasonable, but they do not compel a finding that the Immigration judge's finding of adverse credibility was one that no reasonable jurist would make.
IJ's bar on telephonic testimony didn't violate due process, as the testimony wouldn't have been dispositive, and the IJ reviewed the witness' written statement.
Fifth Circuit: USA v. Herman Sanders, et al
Dissent:
Quoting state penalty phase closing: “It’s an incredibly sad tribute that when a man’s life is on the line, about the only good thing we can say about him is he’s a good artist.”
State waived AEDPA bar on new evidence in federal collateral challenge.
Precedent on reasonable probability isn't tied to the facts of each case -- they don't present a minimum threshold for the showing.
Substantial argument that deft killed only under threat of his own death.
Fifth Circuit: USA v. Charles Davis
On SCtUS remand for plain error review -- although the deft didn't forfeit the challenge to the imposition of concurrent statutes, the acts were arguably dissimilar and irregular enough to avoid the statute's scope, and the temporal link is thin, ergo: no abuse of discretion in imposition or level of explanation of concurrent sentences.
Fifth Circuit: USA v. Herman Sanders, et al
Rivals might have been appropriately joined, as they were involved in the same acts or transactions, but no actual prejudice, given curative instruction and the fact that the potentially prejudicial testimony was a small part of the total.
Required scienter encompasses all of the elements -- "knowingly" implies that the deft knew that the victims were minors. Lack of proof of this at trial made for a constructive amendment to the indictment.
Fourth Circuit: Darlene Gibbs v. Haynes Investments, LLC
Delegation clause in arbitration agreement can be judicially reviewed where the challenge is to that clause specifically, and the challenge is made with sufficient force and specificity.
Tribal arbitration agreement is a prospective waiver of federal statutory rights where it indicates that tribal law will preempt contrary federal law.
Tribal code with civil damages provision allowing compensation of actual harm doesn't sufficiently vindicate RICO treble damages right.
Fourth Circuit: Eugene Baten v. Henry McMaster
No vote dilution, as the state is a unit, and each vote within it is equally counted; this structure is baked into the Constitution, and reflected in the tiebreaking procedure in the House, where each state gets a single vote.
Freedom of Association right derives from the right to associate with the party of one's choice, not from the party's chances, or the expectation that the national party will pay much attention to you.
VRA S2 and Gingles challenge falls short, since there is not prospect of a minority majority district, the poll is for electors, not the ultimate candidates, and minority voters have equal opportunity to select candidates of their choice.
Third Circuit: USA v. Eric Seighman
Supervised release mandatory sentencing statute does not violate the 6th Amendment trial right, since it includes non-criminal offenses, and the one-day mandatory minimum isn't significant enough to raise constitutional concerns, and if it were, there would be no plain error in this case, since the sentence was well in excess of the minimum.
Apprendi challenge along similar lines foreclosed by precedent.
First Circuit: TLS Mgmt. and Mktg. Ser. LLC v. Rodriguez-Toledo
A client file compiled by an asserted secret process containing asserted secret insights is not itself protected as a trade secret absent a division of public and nonpublic material within it and a specific claim for certain nonpublic material or processes.
A claim of trade secret for a business process must establish more than the fact that it is not known -- the claim must also establish that it is not ascertainable from public sources.
Nondisclosure agreements implicate the same public policy concerns of the forum state as do non-compete clauses. Here, the agreements' broad scope, including general knowledge acquired on the job, particular knowledge acquired that was already public knowledge, and information provided by third parties, make the agreements unenforceable under the public policy exception. Courts will not rewrite or narrow the contract, so the nondisclosure agreement is void in its entirety.
Federal Circuit: Prestonback v. US
Military cadet's agreement to recoupment of educational costs upon voluntary early end of service is a statutory agreement, not a contract with the government.
Under Skidmore deference, the government can reasonably decide that involuntary separation from the military presumptively resulted from a voluntary refusal to achieve sufficient performance reviews.
Tenth Circuit: Independent Producers Group v. CRB
Copyright Royalty Judges' denial of claims as a discovery sanction wasn't a violation of constitutional due process -- as the tribunal is a largely clerical creature of statute, a different calculus applies to review of discovery sanctions than is applied in Article III courts.
Although the tribunal had earlier rejected the scheme that it eventually adopted, the new information provided in the interval constituted a quantum of persuasive evidence.
Tenth Circuit: United States v. Moses
The fact that a surveillance camera was operating in front of the alleged "chop shop" mechanic might have proved exculpatory at trial, but there was no need to inform the magistrate issuing the search warrant of it, as the inference would have been permissive, and a Franks hearing would have resulted only if that inference had been made; the gun found on the proprietor during the search is therefore not excluded.
Tenth Circuit: Contreras v. Dona Ana County Board
CJ, concurring:
Insufficient 8A deliberate indifference claim where prison guards didn't have subjective knowledge of risk to detainee posed by leaving the cell door controls unlocked.
The situation doesn't correspond to a clearly established right -- negligence, perhaps.
Concur in part, concurring in the judgment:
Supervisor's knowledge of the risk can't be imputed to the guards.
Not a clearly established right, so no need to reach the deliberate indifference calculus, given qualified immunity.
Although there's no qualified immunity for Monell claims, the right has to be established in order to show the need to train employees.
Concurring in part, dissenting in part:
Claims against supervisor and municipality presented genuine issue for trial on deliberate indifference.
Central question on the deliberate indifference claim is whether it was reasonable to keep the controls unlocked.
Ninth Circuit: John Heineke v. Santa Clara University
Receipt of federal funds and consequent statutory nondiscrimination mandates does not make a private university into a state actor for purposes of S1983.
Ninth Circuit: Shahriar Jabbari v. Wells Fargo & Company
Where the class is in part defined by a claim arising under federal law, court does not abuse discretion by certifying the class prior to choice of law analysis, since, among other things, the underlying issues are identical, and not every state claim will be raised in every action.
Ninth Circuit: Yassir Fazaga v. FBI
Concurrence with denial of en banc (starting at 108):
Statutory FISA ex pare in camera review speaks squarely to and therefore displaces the state secrets privilege.
Dismissal remedy not identical with the privilege.
Privilege is an evidentiary privilege, not a constitutional one.
FISA remedy not limited to when the govt is on the offensive, and the other party need not be a defendant.
Dissent from denial of en banc:
FISA review limited to discrete instances of admissibility in criminal prosecutions
Displacement of state secrets privilege by statute privileges the legislature within the balance of powers.
An executive privilege can have a Constitutional core.
FISA review limited to "such other materials," not every possible material.
Any department can invoke privilege, but only DOJ can invoke FISA.
Govt invocation of privilege insufficient for statutory trigger of FISA.
Ninth Circuit: Zayn Al-Abidin Husayn v. USA
Concurrence with denial of en banc: When assessing State Secrets privilege, courts must attempt to determine if the contested materials contain privileged information, and if so, if there is any way to segregate the non-privileged information.
This applies when the basis for discovery is the statutory obligation to assist foreign tribunals.
Facts generally known and acknowledged by heads of government cannot be considered state secrets.
Dissent from denial of en banc: Information requested has been held to be within the privilege.
Deference to the Executive warranted on national security interests.
Third party disclosure can't waive privilege, because it belongs to the govt.
Forcing govt to confirm or deny would be harmful.
State secrets privilege not diminished when discovery directed to government contractor.
Not incidental to foreign proceeding -- the purpose of the proceeding is to discover this information.
The fact that it is being sent to a foreign tribunal changes the state secrets balancing.
Eighth Circuit: United States v. Kinzey Shaw
Degree of coordination established at trial sufficed for the conspiracy count and for calculating drug quantities from shared sales.
As the bottle tested was established to have held a certain percentage of the controlled substance analogue, it was reasonable for the court to assume that the others held the same percentage.
Deft's requests to co-conspirators in holding cell not to "tell on her" sufficed for obstruction of justice sentencing bump.
Eighth Circuit: Slawson Exploration Co., Inc. v. Nine Point Energy, LLC
A commitment to pay 10% of the oil-drilling costs to a development partner upon electing to participate in a development scheme does not sufficiently benefit the land to be considered a covenant that runs with the land and therefore binding upon successors in interest.
Recognition under state law of an easement under equitable estoppel does not establish that the state law would recognize an equitable servitude with identical burdens and benefits.
Although the contractual commitment to provide a portion of the development costs is a benefit, it doesn't sufficiently arise from the land to be considered a property interest.
Eighth Circuit: LM Insurance Corporation v. Dubuque Barge and Fleeting Svc
Eighth Circuit: Damon O'Neil v. United States
No ineffective assistance for not seeking Franks hearing given incorrect name provided by search warrant affiant, as there was sufficient evidence of drug activity at the residence, even absent the identities of the suspects provided by the affiant.
Magistrate's omission of check-bo indicating the reason for the affiant's reliability was not fatal to the warrant, as the general endorsement was signed.
No ineffective assistance on not challenging cell phone search, as it was two years in advance of Riley.
Police affidavit furnished during collateral challenge indicating that deft had been Mirandized prior to confession suffices against Strickland challenge, as there was no indication that trial counsel knew or should have known that the deft claimed that he hadn't been read his rights.
Eighth Circuit: United States v. Jovan Harris
Where there is proof of the drug sale, proof of the death or serious bodily injury, and circumstantial evidence that the two were related, a rational finder of fact might conclude that the sale was of the drugs that caused the death or serious bodily injury. Same if victim testifies that they were "pretty sure" that they bought the drugs in question from the deft.
Where one deft actually enters into the transaction and another leaves the drugs in the WC for the customer, there is sufficient evidence for the finder of fact to conclude that the drugs were purchased from the latter.
Seventh Circuit: Elijah Manuel v. Nick Nalley
Retaliation claim arising from prison administrator's search of inmate's cell nine minutes after he mentioned the possibility of filing a complaint against the administrator does not present a genuine issue of material fact for trial, as there had been a report two weeks previous indicating contraband in the cell.
Seventh Circuit: Central States Southeast and S v. Shelby Haynes
Where an ERISA third party beneficiary who becomes an adult between the coverage date and the date on which the paid claim arises wins a subsequent tort claim related to the covered injury, they are bound to any equitable repayment of the fiduciary specified in the Plan, as acceptance of the benefit signified assent to the terms of the Plan.
(Interesting Easterbrook cognomen for S. Ct. U.S.: "The Justices.")
Seventh Circuit: USA v. Finas Glenn
Seventh Circuit: Angela Tonyan v. Dunham's Athleisure
Given empirical practice and the business model of the company, the employer's two documented lists of essential qualifications for the job suffice to deny the ADA claim. Even if the employee were to delegate those tasks, it would amount is substantial enough that it would amount to a delegation of the job itself.
Seventh Circuit: Daniel Sarauer v. International Association
Denial of remand appropriate under the embedded federal question doctrine where the case turns upon the renewal or modification date of a CBA.
Because the CBA came into effect subsequent to ratification regardless of formal execution, the relevant date as to formation is the ratification date.
Claim for wages under the generic wage statute is preempted by the CBA, together with its exhaustion requirements.
Seventh Circuit: USA v. Nathaniel Ruth
Sixth Circuit: United States v. Andy Maya
Sufficient evidence for possession in furtherance where the firearm is kept with funds gained from drug dealing and occasionally taken with the deft when dealing drugs.
Allowing expert testimony that a firearm being kept near drug proceeds is consistently linked to its being used to guard those funds was not an abuse of discretion, since it didn't discuss the legal aspects of the ultimate issue.
Sixth Circuit: Andrei Skripkov v. William P. Barr
Unreasoned immigration decision in a mixed-motive case gets no deference; the context and substance of the prosecution of the petitioner make clear that it is related to the protected conduct. The relevant question is not the persecutor's politics, but the politics that the petitioner was thought to have had.
Withholding of removal claims do not require petitioner to establish case around "one central reason."
Fifth Circuit: State Farm Lloyds v. Janet Richards, et al
Fourth Circuit: Douglas Fauconier v. Harold Clarke
Prisoner ADA complaint appropriately equitably tolled during exhaustion of administrative remedies required by federal statute.
Prison officials' reliance on a medical classification in the stated denial of all prospects of work states a claim under the ADA.
Prisoner pro se complaint asserting unequal treatment of comparators and lack of administrative explanation for informal denying the chance to work based on a medical classification states an Equal Protection claim.
Eleventh Amendment bars Equal Protection action for damages against prison administrators, but not the ADA action for damages, as an actual violation of the 14th amendment is alleged.
Claims against individuals barred under Qualified Immunity, since a clearly established right would be plain to every reasonable official, and such is not the case here.
Inmate transfer moots all claims for equitable relief except those against Director of agency.
Third Circuit: USA v. Jamell Birt
As the First Step Act made retroactive the modification of the statutory minimum quantities of prohibited substances, a conviction under the parallel catch-all provision where no minimum quantity is specified was not made subject to retroactive review. Circuit Split flagged.
[Inaugurating the First Step Act tag -- seems to be a thing of late. It's the new ACCA, perhaps.]
Second Circuit: New Hope Family Services, Inc. v. Poole
Defendant's Free Exercise claim of subtle or covert bias in the implementation of a facially neutral law suffices for additional discovery given the variations between the law and the regulation, the length of time before the regulation was amended, and indications of animus within the administrative process.
Adoption agency's speech is not government speech (e.g., advertisements, monuments, vanity plates), as it's not a traditional mode of communication with the public, and the public doesn't see the speech as government speech -- also, there's no indication that, outside the present context, the govt can control the speech.
Discovery warranted to find out whether compelling certain adoptions might cause the adoprtion agency to change its message in counseling and client contact.
Discovery warranted to determine if compliance with state mandates would harm Free Association by keeping people who would otherwise collaborate with the adoption agency might stay away.
On remand, in tailoring possible preliminary injunction, court must consider verified pleadings and affidavits as evidence of potential harms to constitutional interests.
Second Circuit: UnitedHealthcare of New York, v. Lacewell
As the scheme of regulation at issue had many remedies to ensure state compliance, federal courts had jurisdiction to equitably enjoin the prospective enforcement of state agency determinations; the court therefore had subject matter jurisdiction over the claim.
As evinced by the direct and positive effect on the federal regulatory scheme, state risk allocation determinations are subject to conflict preemption by the federal statute; informal consultations with the agency were not sufficiently final to signal agency approval, and the agency's appellate-stage amicus asserting preemption is accorded Auer deference.
Second Circuit: In Re: 21st Century Oncology Holdings, Inc.
Bankruptcy court appropriately limited employee's claim for bonuses due, as although the triggering event for the bonus had been achieved, under normal conditions, employment would have had to continue for five years beyond the event, and present obligations to the employee were only accelerated by the filing of the petition, making the acceleration of the claim the true triggering event.
Second Circuit: United States v. Atilla
Statute that prohibited evading or avoiding economic sanctions on a foreign nation referred only to evading existing sanctions, not the attempt to avoid the imposition of subsequent sanctions.
Elements of bank fraud and bank fraud conspiracy would necessarily mean that existing sanctions were violated, so harmless error.
Sufficient evidence for prohibited use of US banks, since US dollars were desired, and court heard testimony that there was a high likelihood that the process would pass through a US entity at some point, something that the conspirators were likely well aware of.
Statute prohibiting fraud against the government goes beyond the common-law definition of fraud to encompass any impairment of government functions.
Statute does not trespass on executive conduct of foreign affairs, since DOJ is an executive agency, and they decide to prosecute.
If the refusal to allow a transcript and tape of jail telephone call in for impeachment after gov't witness' claim that he had not said that in America, people have to admit to things they haven't done in order to get free was error, it was harmless error, as the jury was aware that the witness was hoping to receive leniency for his cooperation.
Second Circuit: Williams v. Korines
Prison regulation of gang insignia and materials clearly prohibited possession of photographs of people in the gang's colors and making hand-signs associated with the gang; no reasonable guard would be unaware that there materials were encompassed by the regulation.
Where a previous penalty proceeding is vacated upon review, and in the subsequent penalty, credit is given for the time served of the earlier penalty, the first proceeding is not a basis for a due process liberty claim.
Although the second proceeding was reversed by the Director, the state's deprivation of due process standard merely requires sufficient information to constitute substantial evidence, so the expert opinions offered in the proceeding sufficed.
Circles added to photographs examined during the proceeding were harmless, as the expert earlier reviewed the photos without the circles.
Talking over the presiding officer and waving his finger at her was sufficient basis to remove the prisoner form the proceeding.
Ninth Circuit: USA v. Maher Obagi
Where a separate immunity deal involving a chief government witness is discovered halfway through defense closings, the genie is out of the bottle, as the govt has already crafted an approach that uses that testimony to decide the case, even where it only bolsters other witness' accounts.
Dissent: Shouldn't be a per se rule to grant Brady claims that arise after closings -- the testimony was duplicative, gov't evidence was overwhelming, and the curative instruction was strong.
Ninth Circuit: USA v. Tuan Luong
Sufficient nexus to interstate commerce for purpose of the Hobbs Act where a BB with servers in the state and redundant servers out of the state is used to facilitate a robbery, since the site operated as an interstate market and facilitated interstate transactions -- the deft's conduct therefore had an impact on interstate commerce.
As the indictment at retrial served for the same complex of facts, it was not constructively amended by the gov't suggestion that the deft's attempted use of a stole debit card was interstate in nature.
Unanimity instruction not required, as interstate commerce theories were alternate means that jurors could have used to convict on the same factual elements.
Jury instruction on "slight but not speculative" effect on interstate commerce was either correct or harmless error.
Even if mere use of the interstate instrumentality is insufficient to satisfy interstate standard, prosc. statements to contrary and statements of duty to convict were not incurable conduct.
Erroneous not to instruct that knowledge of felon status was an element of felon in possession, but not plain error, given deft's many prior felony convictions.
Hobbs Act robbery is a valid ACCA predicate.
Vacated and remanded to determine if the acceptance of responsibility sentencing reduction was inappropriately denied due to the interstate commerce challenge.
Seventh Circuit: USA v. Marcus Durham
No clear error where the revocation sentence is above advisory guidelines, and the court remarks that such increase is fair under the guidelines where the original sentence was varied downward, but the original sentence was lowered due to retroactive amendments to the guidelines rather than discretion, and no timely objection is made at revocation sentencing.
No substantive error under these facts where double guidelines revocation sentence is under the statutory maximum.
Concur: Extensive colloquy reveals court perhaps misunderstood its own authority, nonetheless, it had the authority to impose an above-guidelines revocation sentence.
Seventh Circuit: Janet Kotaska v. Federal Express Corporation
Where an essential qualification for employment specifies a range of weight up to a certain amount, a showing of the genuine issue for trial on the maximum amount does not mean that there isn't a genuine issue of fact about whether the plaintiff's capabilities in the range beneath the maximum amount were insufficient.
A showing of capable engagement in the task for three weeks is insufficient to establish that all essential qualifications were met.
Where an employer unknowingly rehires after a year, the initial termination is sufficient nondiscriminatory reason for a second termination.
Dissent: ADA plaintiffs shouldn't have the burden of production for the essential qualifications for the task. Circuit split flagged. Summary judgment inappropriate where plaintiff has dispelled initial defense theory. Second termination letter actually discussed protected conduct.
Sixth Circuit: John George v. Youngstown State Univ.
Where the alleged retaliation under Title VII does not immediately follow the protected conduct, but there is a logical reason for the delay, a genuine issue of material fact can arise for trial.
Two contrasting theories of budgetary circumstances can offer a genuine issue for trial as to pretext for the adverse employment action.
Sufficient evidence in the record for trial on non-rehiring claim; other party's waiver of administrative exhaustion in arguing merits becomes law of the case for appeals.
Dissent: Only relevant temporal factor in stating a case for retaliation is the date the employer learns of the protected conduct; facts don't state a case for retaliation generally.
Sixth Circuit: Eric Dotson v. Gregory Kizziah
Where the Federal court sentence is silent as to whether it is concurrent or consecutive with state imprisonment terms imposed in the future, the Bureau of Prisons placement in a state or federal facility controls whether the Federal sentence is consecutive or concurrent with those future terms.
Sixth Circuit: In re Franklin Harris, Jr.
Bankruptcy court correctly dismissed post-stay adversary suit on grounds of abstention, as the state court adverse possession claim underlying the adversary proceeding was better addressed in state court, the res wasn't part of the estate, and the plaintiffs in the state court proceeding were not involved in the bankruptcy case.
Sixth Circuit: United States v. Dwight Barber
Where the movant has an opportunity to address resentencing considerations, it is not plain error for the resentencing court not to raise post-conviction conduct.
Procedurally, resentencing court sufficiently explained reasoning.
Sixth Circuit: United States v. Michael Bourquin
Government sentencing memorandum reciting multi-agency response was insufficient for sentencing bump for expenditure of funds, as there must either be a full accounting, or a partial accounting and sufficient facts for the court to reason a full accounting; gov't should not be allowed to amend memorandum on remand.
Sixth Circuit: Ralph Carusone v. Warden
Lack of disclosure of medical report plainly discrediting the primary theory of the offense resulted a reasonable probability of a different outcome under Brady, as the second theory of the offense used by the District Court to deny the Writ was not endorsed in full by any expert at trial.
Fifth Circuit: USA v. Selene Suarez
Where the indictment alleges financial structuring of an amount precisely equal to the statutory limit, the defect is harmless error where the jury might rationally find that related events proved at trial established that an amount greater than the statutory limit was at issue.
Where an employee engages in a course of conduct of structuring bank deposits in furtherance of the employer's illegal scheme, a forfeiture order against the employee personally does not implicate the Excessive Fines clause if the amount is below the statutory maximum and the Guidelines limit.
Third Circuit: Plastic Surgery Center, P.A. v. Aetna Life Insurance Co
ERISA does not preempt state contract law as to claims by an out of network provider where the agreement with the provider only references the Plan for terms of payment, the reference is discernible in a cursory review, and no further construction of the plan is necessary to resolve the claim.
Court's subsequent construction of the plan to set damages in the legal action does not implicate this enmeshment consideration.
Similarly, express requirement for preapproval of procedures merely means that the out-of-network contract happens against the backdrop of the plan.
Where the contract is between the Plan and an out-of-network provider, it implicates a relationship that the Plan was never intended to govern, and therefore is not in connection with the Plan.
As judicial resolution of the claims addresses freestanding claims between the parties and not Plan benefits, it is not in connection with the plan; this accords with statutory purpose.
Unjust enrichment claims, on the other hand, are in connection with the Plan, as they implicate the Administrator's duties to the participants.
First Circuit: Waithaka v. Amazon.com, Inc.
Intra-state delivery drivers routinely carrying interstate parcels for a company engaged in interstate commerce are sufficiently engaged in interstate commerce to qualify for the exception to the Arbitration Act, given the interpretation of a parallel statute -- the narrow reading of arbitration exceptions and legislative history to the contrary are both answered within the precedent.
Where the express choice of a certain law for the arbitration provisions in a contract is severed in judicial review according to the severability provisions of the contract, the law identified in he general choice of law provision of the contract instead controls the arbitration provisions.
Although class claim waivers in agreements covered by the Arbitration Act cannot be waived due to the state's public policy, where, as here, the agreement is within an exception to the Act, state public policy can make the waiver of class claims unenforceable.
As the conflicts rules of the forum state would oust the foreign law where it contradicted state public policy, the conflicts rules of the forum state that has identified the policy interest control.
First Circuit: Caribbean Mgmt. Group, Inc. v. Erikon, LLC
District Court's denial of leave to execute the judgment was sufficiently final for appeal, as it finished the matter in the court below.
Doubt as to whether notice of appeal listing only the motion to reconsider but asking that the underlying order be vacated conferred sufficient jurisdiction to vacate the underlying order, even absent prejudice.
No abuse of discretion in District Court's equitable decision to deny the motion.
As there was no fundamental misapprehension of facts or law, similarly no abuse of discretion in the denial of the motion to reconsider.
DC Circuit: American Hospital Association v. Alex Azar, II
Where the jurisdiction strip merges with merits, deference still applies, since otherwise there would be a wider scope of review, contrary to law's intent.
Implementation provisions referencing statute that the agency is interpreting doesn't preclude implementation rulemaking as to the latter, since the latter recites other implementation mechanisms.
Agency reading is reasonable, given text and statutory context, so jurisdiction strip applies.
Arguendo, even without a basis for Article III jurisdiction, under statutory jurisdiction, the rulemaking doesn't conflict with a law regulating such reimbursements.
DC Circuit: Association for Community v. TREA
Inclusion of disputed term in a subsequent statute regulating the matter did not constitute an implied repeal of the earlier statute's definition.
Ability to renew a plan of limited duration doesn't make agency designation of "short-term" unreasonable.
Agency rule reasonably balances conflicting policy agendas.
Dissent: Rule doesn't sufficiently reconcile statutory scheme as a whole.
DC Circuit: Grace v. William Barr
Policy change announced in agency adjudication not insulated from review by the bar on review of individual cases; separate jurisdiction strip statute evaded in this case, as the policy affects both the matter covered by the jurisdiction strip and other matters.
Administrative standard adopted under Chevron logic is arbitrary and capricious, as it is inherently bifurcated, and could result in different outcomes in identical situations based on which standard was used.
New choice of law policy arbitrary and capricious, not sufficiently distinguished as a change from prior practice, and the justifications advanced are not in the rulemaking itself.
Policy guidance appropriately states the rule on circularity of harm developed in agency adjudications.
Language in guidance document suggesting prospective application appropriately qualified by statements of generality, and therefore not a new rule.
Jurisdiction strip referred to the operation of the statute, not rulemaking found to be inconsistent with the statute. (Perhaps. This is quick work. Don't ever rely.)
Dissent:
Jurisdiction strip statutes apply, allowing review of law and application of law to fact would undercut the purposes of the bars to review.
DC Circuit: Imapizza, LLC v. At Pizza Limited
Downloading images from plaintiff's US website is not sufficient for domestic copyright infringement, as fixation happens when the image is reproduced for the foreign viewer.
Taking photographs of US restaurants in support of a scheme of actual copying abroad doesn't infringe, as the act of taking photos of these buildings didn't infringe.
Generally, the predicate act test requires an act of domestic infringement.
Tourist confusion as harm would impermissibly broaden the effects-based extraterritorial scope of the Lanham Act.
Visit for the purpose of infringement was not Trespass.
No abuse of discretion in denial of surreply, as party had two opportunities to weigh in on the issue.
Ninth Circuit: Daniel Farrell v. Boeing Employees Credit Union
Eighth Circuit: United States v. Gabriel Sherrod
No clear error in court's holding that police officer's post-incident statement that he kept the door from closing, later described as a poor choice of words, really meant that he had walked in through an open door.
Knock and announce not required where a minor child resident being followed by the police walks into the house without closing the door, it's nighttime, and police have a felony arrest warrant for a resident whom they believe to be inside.
Obstruction sentencing bump is not an abuse of discretion where deft testifies that the police kicked the door, but the court can't discern it in the audio.
Below-guidelines statutory maximum sentence not substantively unreasonable.
Seventh Circuit: Adetokunbo Fayemi v. Kess Roberson
Court's proababilistic summary of the Strickland standard did not evince a logic contrary to the rule, so long as the final logic accords. Given overwhelming evidence, not a misapplication of the law to say that assertion in opening statement that an ultimately non-testifying deft would testify wasn't sufficiently ineffective.
Sixth Circuit: Scott Callahan v. Fed. Bureau of Prisons
Given precedent and legislative activity in the area, there is no Bivvens cause of action under the First Amendment for the seizure of an inmate's painting and mailed model photographs; the prison grievance procedures presumably offer sufficient remedy.
Fifth Circuit: David Wilson v. Houston Community College System
Fifth Circuit: Vantage Deepwater Company, et al v. Petrobras Amer
Court appropriately deferred to arbitrators' decision, since public policy does not bar arbitration agreements resolving questions about contracts achieved through dubious means -- the question on the public policy exception is whether the ratification would create a danger to the public.
Court did not abuse its discretion in denying discovery during arbitration vacatur proceedings seeking testimony of arbitrator, since arbitration association rules prohibiting it are incorporated, and the arbitration record is equivocal.
No abuse of discretion in denying subpoena for arbitration association, given vague boundaries of immunity, and necessity to move things along.
As arbitration agreement discussed the equities of the parties in full, it was not sufficiently contrary to the agreement's choice of law and corporate form and surety provisions.
Fifth Circuit: In re: Taxotere Prod Liability
Court did not abuse its discretion in dismissing the claims of a MDL plaintiff, as there is sufficient indication in the record that the plaintiff had engaged in delay or contumacious conduct, and that no lesser sanctions would serve the interests of justice.
Fifth Circuit: Will McRaney v. N Amer Mission Bd So Baptist
Dismissal of a civil tort claim under the Religious Matters abstention doctrine is inappropriate absent sufficient indication that the resolution of the question will force the court to interfere with religious government or matters of faith or doctrine.
Third Circuit: Teamsters Local 177 v. United Parcel Service
Second Circuit: United States v. Traficante
As the judicial order that modifies a certain sentencing condition interposes a finding by a District Court, challenge to the order is reserved for that step, and is not ripe until then.
Second Circuit: Keefe v. Commissioner of Internal Revenue
Petitioner's omission of necessary regulatory permissions and merely casual conversations about the prospect of rental sufficed to establish that the property wasn't regularly and continuously used in that manner.
Late tax filings in previous years are appropriately penalized given the present loss of the deduction.
Materially distinguishable precedent cannot be used to establish sufficient substantial authority to justify the earlier tax position.
First Circuit: US v. Capelton
As the subsequent caselaw discussed the willingness to assist if necessary in terms of the intent that the crime be committed, there was not a realistic probability that courts would convict under the statute without intent as an element -- the offense is therefore categorically a predicate offense under the sentencing law.
Federal Circuit: Maybourn Group, LTD v. ITC
Sufficient standing to challenge agency determination where company continues to import goods possibly subject to exclusion order and has lost actual sales sue to the uncertainty over their legal status.
Discovery of prior art that would negate the patent that serves as the basis for the exclusion order is not sufficient basis for a petition against the exclusion order, as the agency's statutory powers of patent adjudication are limited to claims made by parties in formal enforcement actions.
Eleventh Circuit: Myra Corley, et al v. Long-Lewis, Inc., et al
As governing circuit precedent on the question is in conflict with earlier circuit precedent that it doesn't distinguish or overrule, the earlier precedent governs -- voluntary dismissal without prejudice is therefore a sufficiently final order for the purposes of appeal, since it removed the case from the court's consideration.
Interlocutory denial of motion to reconsider by the courts of another circuit that eventuates in a voluntary dismissal with prejudice within the circuit is considered only in the context of the appeal from the voluntary dismissal; the implied challenge to the other circuit's courts does not make the subsequent decisions within the circuit unreviewable.
Appellant is sufficiently adverse for purposes of standing to final decision below. Although it resulted from appellant's motion for voluntary dismissal without prejudice, the decision contained merged elements of earlier adverse interlocutory decisions.
No abuse of discretion in denying motion to shift governing law to Admiralty when made in motion to reconsider.
Eighth Circuit: United States v. Jeffrey Rodd
Eighth Circuit: United States v. Shari Natysin
Eighth Circuit: United States v. Mark Ringland
Seventh Circuit: USA v. Aga Khan
Plain error in procedural sentencing error resulting on one of the concurrent terms of supervised relief being in excess of the statute, since a revocation proceeding would address all terms of supervised release.
Absent showing that victim bank intended to hold collateral real estate s investment, no error in not offsetting the restitution by the value of the unliquidated collateral; no obligation on the victim bank to notify parties of subsequent sale of the collateral.
Sentencing court's allocation of restitution to a certain percentage of deft's future income sufficiently considered deft's financial circumstances, as under the statute no such consideration is due when determining the total amount.
Seventh Circuit: Adam Delgado v. U.S. Department of Justice
Seventh Circuit: Scott McCray v. Robert Wilkie
Claim originating in assignment of offices not pellucid enough, will be developed on remand.
Conduct potentially violating Title VII raised in employer's motion to dismiss insulated employer from Title VII claim when plaintiff didn't make the argument in the reply brief.
Sixth Circuit: Kevin Malone v. Stanley Black & Decker, Inc
Pleading that alleged tortfeasor conducted business, formed contracts, and caused injury within the state suffices to state a claim involving sufficient purposeful availment for personal jurisdiction within the forum; further discovery is warranted where such a claim is made against a supplier who sells their product through a national retail chain.
Sixth Circuit: Joan Weser v. Kimberly Goodson
Even deliberate mistruth would not be enough to implicate private citizen in S1983 false arrest claim, as it's not under the color of state law.
District Court should not exercise supplemental jurisdiction over false arrest state tort claim, as arrest with probable cause for an offense not justifying custodial arrest is a novel issue for the tort.
False statements by private individual not a sufficient basis for state tort claim of false arrest, as insufficient nexus to the arrest.
Fifth Circuit: Houston Aquarium, Incorporated v. OSHC, et al
Feeding and cleaning dives at an aquarium are scientific, not commercial, given plain meaning and the notes to the regulation, since they gather data and don't involve heavy tools. Also the protections for commercial divers seem unnecessary in this context.
Fifth Circuit: USA v. Louis Luyten
Fifth Circuit: USA v. Robert Montgomery
Plain error in offender registration conviction, as, under categorical analysis, the predicate conviction was for a crime that has a reasonable probability of sweeping more broadly than the Federal standard.
Concur: Categorical analysis is generally a muddle.
Fourth Circuit: US v. Billy Curry, Jr.
CJ, concur: Dissent's approach risks overpolicing, country at a moment of reckoning.
Concur: Sociology and predictive policing not a basis for law.
Concur: Scotus dictum sets standard for special needs exigency, searches must be discretionless and systematic.
Concur: Predictive policing = racial profiling.
Dissent 1: Having to stop and wait to get the details of the crime undercuts predictive policing, results in communities under-served by police.
Dissent 2: Upon reasonable suspicion of exigency, police must balance the gravity of the risk against the right infringed.
(Amended opinion presumably corrects typo from "waiving Constitutions in the air" to "waving Constitutions in the air, per Google archive of old file.)
Second Circuit: United States v. Jones
Pace the Ninth Circuit, the relevant statute's proscription of "false and fictitious" documents includes false versions of legitimate documents, not just novel types of instruments.
Second Circuit: Jack v. Barr
Considering the question de novo, agency erred in requiring petitioner to establish a reasonable probability that the state would prosecute conduct outside the federal and agency standard, as there is no ambiguity in the statute.
Federal Circuit: Prosperity TIEH Enterprise v. US
When agency adjudication merges two business entities for the purpose of assessing antidumping violations, consideration of the totality requires that subsequent merger of a third company must assess the relationships of each company severally.
Sufficient substantial evidence for agency adjudication finding of product misrepresentation, as common meaning implicates the universal criteria.
Federal Circuit: Hardy v. US
Given that state law looks to intent of parties, deeds conveying a strip of land for purposes of a right of way conveyed a right of way -- the habendum clause merely held the easement to exist in fee simple, some deeds stated a reversionary interest for the easement, and the state took the burden of providing sufficient drainage for the use.
Federal Circuit: Sellers v. Wilkie
To meet statutory requirements, a veteran's claim for relief must at a minimum identify within a high level of generality the sickness disease or injury for which relief is sought; the Secretary's duty to clarify the claim does not arise if this requirement is not met.
Federal Circuit: Jones v. Wilkie
Court did not err in holding that while a reconsidered claim can prompt an award that relates back to an earlier point in time, a tribunal that reconsiders a claim but then makes an award not based on the evidence that prompted the reconsideration need not back-date the award.
Court did not erroneously require claimant to establish that the reopening (as distinct from reconsideration, apparently) of the claim was based on the evidence that served as the basis for the reconsideration and the new award. Remark to the contrary held by court below to be harmless error, which is a question of fact that the Circuit Court has no jurisdiction to review.
DC Circuit: State of New York v. EPA
Agency denial of state petition was arbitrary and capricious, as it didn't state which of four criteria had not been met, or how many of the four criteria must be met to substantiate the petition. Past judicial approval of plan did not insulate it from suit, as it indicated that it was a first step.
Agency plan insufficient, as it relies on a compliance cutoff date after a date previously set by another statute; agency must permit claims that implicate a multi-state area.
Concur: Although claim waived by agency, state's petition impermissibly seeks to regulate single sources as opposed to regulations addressing individual states.
DC Circuit: Strike 3 Holdings, LLC v. John Doe
The socially offensive nature of the copyrighted material cannot be considered in a motion to allow discovery in an infringement suit against an unknown deft.
Claim alleging infringement by an IP address has right to discovery process to discover the identity of the owner of the connection, as the information might reasonably be used to state a claim against a specific person or determine that such a claim would be impossible.
While a court can take judicial notice of a party's lawsuits in other forums, the number of suits cannot be the sole basis for concluding that the present suit is without merit, and the number of suits settled before trial is not sufficient basis to infer improper purpose in the present suit.
DC Circuit: Timothy Jeffries v. William Barr
Eleventh Circuit: USA v. Shusta Traverse Gumbs
No abuse of discretion in refusal of instruction on "forcibly," given plain meaning and other instructions.
No abuse of discretion in refusal of instruction on transportation exception to use of a vehicle as a weapon -- deft can separately establish that it was merely used to escape, and the statute only requires general intent.
No abuse of discretion in refusal of instruction on simple assault as lesser included -- elements for that would establish the charged offense.
No abuse of discretion in simple repetition of the instruction after jury question on mens rea on use of the vehicle as a weapon.
Sufficient evidence for conviction as to victims standing to the side of the car, in addition to the one in front.
Ninth Circuit: Andrea Schmitt v. Kaiser Foundation Health Plan
Statute's nondiscrimination provision's reference to other civil rights laws implicates, but does not guarantee, the protections in those laws.
Prior caselaw as to previous statutes indicating that they don't cover health plan design are superseded by the reference in the present Act.
State enactment of plan's legislation cannot abrogate federal nondiscrimination provisions.
Specific protections don't imply that they are exhaustive -- no expressio unius.
Blanket exclusion of all treatments except one for a particular condition does not state a claim for discrimination.
Allegedly discriminatory conduct towards those with a certain condition is not proxy discrimination towards those with the associated disability.
Ninth Circuit: Sky-Med, Inc. v. FAA
Agency adjudication did not have jurisdiction, since the two notices of violation were consolidated into a single civil claim in excess of the statutory maximum. The Federal courts have exclusive jurisdiction over claims with an amount in conttroversy in excess of the statutory maximum during the actual pendency of the civil proceeding.
Eighth Circuit: United States v. Dante Benson-Henry
Social media posts showing person possessing firearm, one of which was in front of deft's garage, suffice to sufficiently establish felony possession for purposes of parole revocation and subsequent sentence.
Sentence substantively reasonable given public safety and substance abuse treatment needs.
Eighth Circuit: United States v. Kenton Eagle Chasing
Collateral challenge to federal jurisdiction for original crime cannot be made when appealing revocation of supervised release, as there is a separate statutory basis for revocation proceedings.
No Sixth Amendment right to jury trial in parole revocation proceedings, given circuit precedent to contrary.
Court's spoken opinions during revocation proceedings did not sufficiently demonstrate deep-seated antagonism.
No abuse of discretion in court's finding that escape from designated residence was excessive, if necessary.
Tribal police car without other markings was sufficiently marked by the emergency light to fall within the statute, alternately, harmless error.
Previous waiver of challenge to PSR elements permitted court to consider them, though disputed at revocation hearing.
Sentence substantively reasonable.
Seventh Circuit: USA v. Nehemiah Felders
No plain error in District Court holding that officer testimony that deft was read Miranda rights from state-issued card that might or might not have been sufficient, since deft has burden in plain error review, and record is silent as to contents of card.
Seventh Circuit: Rae McCann v. Badger Mining Corporation
Claim of factual error insufficient for finding of pretextual justification of employment decision where facts do not indicate that employer had knowledge of the facts.
Employer's agreement to transfer request does not raise material fact regarding veracity of employer's reservations.
Given breadth of workforce reduction insufficient showing of suspicious timing.
Emails evincing employer's knowledge of disability insufficient to establish animus.
Sixth Circuit: S. Jones v. City of Detroit, Mich.
Qualified Immunity for S1983 claim alleging transportation of wheelchair-bound arrestee in cargo van with insufficient restraints and headroom.
Dissent: General right of nonviolent arrestee to be free from intentional acts causing pain and dangerous situations sufficient to establish the right -- granular precedent describing wheelchairs in cargo vans is not required.
Sixth Circuit: United States v. Joseph Taylor, III
Probation Officers were not required to inform probationer of right to refuse consent to search of closed spaces. Consent was valid, not a mere acquiescence to authority.
No clear error in District Court's finding that probation officers' testimony of spoken acquiescence was sufficient and credible as unequivocal, free and voluntary.
Later spoken permission to search house sufficient to encompass crawlspaces.
Consent to later police search was valid despite lack of proof that deft knew that he could refuse.
SIxth Circuit: United States v. Michael Stephens
Vacate and remand, given recent circuit precedent holding that Attempt is not a valid predicate for ACCA sentencing bump.
Sixth Circuit: United States v. Jonathan Shelton
Police testimony of confirming field test, and sufficient officer expertise establish the reasonableness of traffic stop for tinted windows in the process of investigating possible firearms violation -- photographs of the windows need not be introduced in evidence.
Fifth Circuit: USA v. Robert Brandon
As deft took affirmative steps to conceal possession of firearm, court's acceptance of guilty plea without colloquy or finding on scienter to establish that deft knew that his previous conviction would prohibit possession was not plain error.
Fifth Circuit: USA v. Chia Lee, et al
Sufficient evidence, given facts.
Where deft lives in a certain judicial district and has a bank in that district, jury might have legitimately found that venue was proper in conspiracy in prosecution; vicinage concerns are not implicated where deft lives in the district.
Jury sending note to judge during proceedings asking for clarification of charges is insufficient to establish improper deliberations where individually interviewed jurors claim that discussion of the merits had not occurred.
Govt experts general statements based on small fraction of files reviewed were harmless error.
Although instruction on deliberate ignorance was an abuse of discretion given lack of purposeful contrivance, inclusion was harmless error.
No clear error where sentencing report estimates drug quantities without a showing on the percentage of lawful prescriptions.
No plain error where conflicting findings would result from using the totality of either of the two versions of the Guidelines, rather than the combination of the two elected by the sentencing court.
Firearm in adjoining office sufficient for sentencing bump where prescriptions were written in an examination room.
Fifth Circuit: USA v. James Perryman
Commerce Clause sufficient justification for law barring convicted felon's possession of weapon that at some point previous travelled in interstate commerce; present interstate travel need not be established.
PSR's unsworn statements describing previous proceeding are sufficient to establish perjury for the purpose of sentencing bump where the court also adopts an addendum that contains the relevant record excerpts.
Fourth Circuit: Nathaniel Hicks v. Gerald Ferreyra
Claim that S1983 action against Park Service police for unlawfully detaining a Secret Service agent constitutes an impermissible extension of Bivvens is waived for not being raised below; District Court was not obliged to independently assure itself of the remedy's availability, and the scope of the Bivvens remedy is not a jurisdictional question.
Appeal citing deposition testimony contrary to the reading of the facts in the decision below is not a matter for interlocutory review.
Fourth Circuit: US v. Daryl Bank
Explicit waiver of Double Jeopardy rights in agency civil proceeding does not bar current challenge, since agreement did not reference future or criminal proceedings, and agency's equitable remedy was not yet considered a criminal punishment.
Although disgorgement is meant as a punitive measure for behaviour that violates the public law, the determination that the criminal statutes of limitations apply is an insufficiently clear rule to establish that the penalty is sufficiently criminal in nature to justify a double jeopardy claim, in that the legislature clearly intended a civil equitable remedy when it empowered the agency to seek it.
Third Circuit: Christina Williams v. Medley Opportunity Fund II, LP
Reference to delegation clause in challenge to validity of an arbitration agreement is sufficient to merit review of the validity of the clause, even where the agreement elsewhere specifies that the enforceability of the agreement is a matter for arbitration.
Where parties do not provide court with the substance of the Tribal law selected by the agreement's choice of law provision, the law of the forum is used to assess which statutory claims might be raised against the agreement.
Choice of law terms in an arbitration agreement do not necessarily expand the range of claims that can be raised under the arbitrability sections of the agreement.
Where an arbitration agreement clearly waives federal rights, it need not explicitly do so to be an impermissible prospective waiver for reasons of public policy.
Waiver sufficiently central to the arbitration process to strike the entire agreement.
Second Circuit: United States v. Muzio
Insufficient substantive error in sentencing where mandatory minimum is imposed for acquisition and possession of abuse images where the contact with the victims was virtual rather than physical.
Insufficient procedural plain error in sentencing where a 200 year Guidelines maximum is calculated to be 500 years, where the sentence ultimately follows statutory minimums instead.
Second Circuit: La Liberte v. Reid
Motion to strike pleading in Federal court based on state statute requiring an elevated pleading for defamation cases is not valid, as it conflicts with FRCP pleading and summary judgement rules. As the statute awards fees only for its own process, dismissal under the Federal pleading rules does not automatically justify an award of fees.
Deft is not shielded by the CDA for independently authored social media posts that include information available elsewhere on social media. Sole authorship of the post in question is sufficient material contribution to establish the poster as the sole information source for the purposes of a defamation claim.
Testifying at public meetings in addition to a lot of other public speech is insufficient to establish a person as a limited purpose public figure, since the designation was created to recognize that some figures had sufficient media clout to respond to attacks on their own.
A juxtaposition of an image of the plaintiff with an image of racist conduct was sufficiently clear, both in itself and within the frame of general knowledge, to establish libel per se by implication.
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