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.

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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.

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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.


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Tenth Circuit: Contreras v. Dona Ana County Board


(Per Curiam summary)

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.




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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.

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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.


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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.

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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.







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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.

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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.

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Eighth Circuit: LM Insurance Corporation v. Dubuque Barge and Fleeting Svc


A seaman normally excluded from the company's Workman's Compensation plan does not stand outside that exclusion for purposes of calculating premiums due by the fact that his or her work might be reclassified as covered work.  If that were to happen, the company would subsequently be compelled to list them as a covered employee.

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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.


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Eighth Circuit: United States v. Jovan Harris



Repeated purchases of large amounts of drugs suffice to establish that there was more than an abstract buyer-seller relationship; there was therefore sufficient evidence for the conspiracy count.

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.
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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.


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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.")

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Seventh Circuit: USA v. Finas Glenn



Given the audio-visual recordings of the purchase of drugs at the residence, there was sufficient probable cause for the warrant, despite the omission of credibility indicia in the affidavit.  Delay between the purchase and the warrant was justified in order to conceal the identity of the confidential informant.

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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.

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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.


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Seventh Circuit: USA v. Nathaniel Ruth


Plain error in sentencing court's increased sentence due to federal controlled substances statute, as the state predicate offense, unlike the federal statute, incorporates positional isomers of the controlled substance, which might very well exist.  The sentencing guidelines increase was correct, though, as it doesn't reference the federal statute.

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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.

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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."


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Fifth Circuit: State Farm Lloyds v. Janet Richards, et al


Under the law of the state, an insurer's state law duty to defend is determined by the eight corners of the most recent pleadings and the policy; extrinsic evidence about whether the incident actually occurred on the property and the true residence of the claimant are too intertwined with merits to be considered at this stage, given sufficient pleadings.

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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.

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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.]

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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.


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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.


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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.

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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.


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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.


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