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.





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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.



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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.







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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.

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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.





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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.



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DC Circuit: Timothy Jeffries v. William Barr


Summary judgment appropriately granted for deft prior to discovery in Title VII suit, given facts in evidence, but abuse of discretion to deny non-movant's challenge as to one claim, as employer's apparent non-compliance with its policy on priority candidates might reveal facts that substantiate the claim.

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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.





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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.







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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.



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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.





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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.







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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.



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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.



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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.





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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.











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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.



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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.





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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.

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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.



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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.


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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.

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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.



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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.

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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.

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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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