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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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.


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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.


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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.


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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.


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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.

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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.

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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.

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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.


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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.


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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.

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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.



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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.


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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.

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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.

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DC Circuit: American Hospital Association v. Alex Azar, II


Jurisdiction-strip statute circumscribed by ultra vires agency actions -- if actions were in excess of the statutory authority - even if not plainly and clearly so -  the jurisdiction strip doesn't apply.

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.


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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.


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DC Circuit: Grace v. William Barr


District court had sufficient statutory jurisdiction to review policy document addressing substantive law invoked by the procedural law subject to judicial review; challenge in individual cases would prove impractical.

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.  


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DC Circuit: Imapizza, LLC v. At Pizza Limited


Conditional request for leave to amend in memorandum in opposition didn't satisfy local rules for motion for leave to amend.

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.

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Ninth Circuit: Daniel Farrell v. Boeing Employees Credit Union



As the Federal Government's waiver of sovereign immunity makes it subject to process in each state, a creditor seeking garnishment against a party in another state can seek to enforce its judgment in the forum state of the judgment.

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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.




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Seventh Circuit: Adetokunbo Fayemi v. Kess Roberson


Easterbrook on Agatha Christie.

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.

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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.



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Fifth Circuit: David Wilson v. Houston Community College System


Dissent from Denial of En Banc: Legislative censure by Board was appropriate government speech; ruling to the contrary upholding Free Speech right of the member censured risks weaponizing gadflies.

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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. 

Vantage Deepwater Company, et al v. Petrobras Amer
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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.

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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.

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Third Circuit: Teamsters Local 177 v. United Parcel Service


Where a party to a statutory arbitration agreement involving prospective equitable relief in which both parties have consented to judicial entry of the award seeks a summary proceeding in federal courts for entry of the award, there is sufficient a case or controversy for constitutional purposes.

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Second Circuit: United States v. Traficante


Above-guidelines sentence was sufficiently explained to be procedurally reasonable as either a variance or a departure; substantively reasonable, given similar precedent and previous bad acts.\\

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.
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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.

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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.

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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.



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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.

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Eighth Circuit: United States v. Jeffrey Rodd


Since the District Court conceded that deft met the requirements for compassionate release, the only inquiry for review is whether there is sufficient indication in the record that the possibility of release was weighed against the sentencing court's justification for the sentence.

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Eighth Circuit: United States v. Shari Natysin


Company's software allowed deft sufficient discretion to justify sentencing bump for abusing a position of private trust, as she could structure the finances singlehandedly.

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Eighth Circuit: United States v. Mark Ringland


Private searches by email provider subsequent to first report to authorities did not transform the provider into a government agent for the purposes of the Fourth Amendment; Carpenter scope not implicated by email provider's capacity for private search.

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Seventh Circuit: USA v. Aga Khan


No plain error in refusing acceptance of responsibility sentence mitigation, since deft only stipulated to the facts, rather than personally conceding the scope of the fraud, and the grand jury testimony transcripts that were the basis for the court's finding on the scope of fraud were provided to all parties, who could timely object.

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.
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Seventh Circuit: Adam Delgado v. U.S. Department of Justice


ALJ inappropriately reopened matters resolved by Article III law of the case.
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Seventh Circuit: Scott McCray v. Robert Wilkie


Employer's refusal to replace vehicle in a timely manner states a claim under the Rehabilitation Act.

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.

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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.

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Sixth Circuit: Joan Weser v. Kimberly Goodson



Presence on property sufficient for criminal trespass arrest for the purposes of S1983 claim, as officer's witness of the midemeanor as required by state law isn't a requirement under the Federal Constitution.

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.


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Fifth Circuit: Houston Aquarium, Incorporated v. OSHC, et al



ALJ correctly accepted analysis on matters other than the ultimate issue from lay witness, as lay witnesses can draw conclusions based on their experience; deft's witnesses appropriately considered lay witnesses, as there was no foundation laid.

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.

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Fifth Circuit: USA v. Louis Luyten


No clear error in sentencing bump for conduct that creates an unreasonable risk of death or serious bodily injury, as deft. transported aliens in a small plane, one over the rated capacity, and had no pilot's license.


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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.


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Fourth Circuit: US v. Billy Curry, Jr.


Suspicionless stop and search of person in proximity to audible gunshots was not justified under the emergency aid exception within exigent circumstances, as such a stop would require firm knowledge of the crime and a close geographical association with the place of the crime.

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.) 
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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.

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Second Circuit: Jack v. Barr



Conviction under state statute encompassing loaded antique firearms is not a categorical predicate for Immigration removal under federal statutory definition adopted by the agency, as that definition excludes antique firearms.

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.

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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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Hiatus

Brief hiatus, as there are other demands on the attention.  Still a going concern.  Cheers.

CB
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http://www.ca5.uscourts.gov/opinions/pub/17/17-60774-CV0.pdf

http://www.ca5.uscourts.gov/opinions/pub/18/18-40270-CV0.pdf

 http://media.ca8.uscourts.gov/opndir/18/09/172759P.pdf

http://media.ca8.uscourts.gov/opndir/18/09/181725P.pdf

 http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/24/16-56633.pdf

https://www.ca10.uscourts.gov/opinions/17/17-1236.pdf

Quick work tonight, however slow -- travelling, distracted, what have you.  Just batting practice.

-CB
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Sixth Circuit: Tenn. Clean Water Network, et al. v. TVA

As the Act requires a point source, not seeping groundwater or permeable hydrological network, the pollution here is outside of its scope.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0214p-06.pdf
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Sixth Circuit: Ky. Waterways Alliance v. Kentucky Util. Co.

Act does not cover groundwater pollution or complex hydrological networks; the precedent suggesting this in fact discusses interconnected larger waters, and federalism and practical enforcement concerns dictate a narrower reading of the regulated bodies of water.

Prudential abstention is not available to the court where a citizen cause of action is directly created by a statute that makes use of factors that would suggest abstention.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0213p-06.pdf




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Third Circuit: Holly Judge v. Shikellamy School District


Presumptively valid and willful resignation forecloses any direct claim of discriminatory duress.  Multi-factor test from 9th governs.

http://www2.ca3.uscourts.gov/opinarch/172189p.pdf


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Third Circuit: Robert Schultz, Jr. v. Midland Credit Management


FDCPA Act boilerplate debt collector's letter threatening reporting to the IRS when the matter in question was less than the amount the IRS required be reported states a claim, and may later prevail,  as it only takes one juror.

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Third Circuit: USA v. Reynaldo Rivera-Cruz


When the statutory maximum or minimum sentence is outside of the guidelines range, the range drops out of the sentencing scheme.  Subsequent revisions to the guidelines therefore do not serve as the basis for an appeal of the sentence.

http://www2.ca3.uscourts.gov/opinarch/173448p.pdf


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DC Circuit: Blogger: ANR Storage Company v. FERC

Where two companies appear to have virtually identical shares in their relevant markets, it is an abuse of discretion for an agency to allow only one of the two to charge market rates without stating a reasonable justification for the distinction.

https://www.cadc.uscourts.gov/internet/opinions.nsf/9E0C54378AB5C5A18525830F004E9C61/$file/16-1285-1751902.pdf
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Eleventh Circuit: USA v. Jason Alexander Phifer

When a deft faces criminal or civil penalties, deference to an agency's interpretations of its own regulations is inapposite, as an agency has an obligation to clearly state the rule.

http://media.ca11.uscourts.gov/opinions/pub/files/201710397.pdf


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Tenth Circuit: Anderson Living Trust v. WPX Energy Production

Denial of class certification does not merge into a stipulated settlement for the purposes of appellate jurisdiction over a challenge to the denial of class certification as an element of the final judgement.

https://www.ca10.uscourts.gov/opinions/17/17-2029.pdf
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Ninth Circuit: Tin Cup LLC v. Corps of Engineers

Where a statutory directive occurs within an appropriations bill, the presumption is that it binds only for the period of the appropriation; this can be overcome by sufficient indications of futurity such as "hereafter."  Language in the imperative such as "will" and "shall" is insufficient.

Concur in J: In addition to the command in the imperative, the directive had a closing point, which meant that it wouldn't automatically sunset.





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Eighth Circuit: Deaton Oil Company, LLC v. United States

A claim that an agent did not pay taxes and make payments does not state a claim as a defense to nonpayment unless the nonperformance incapacitated the principal in that respect -- a high bar.

http://media.ca8.uscourts.gov/opndir/18/09/172326P.pdf
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Seventh Circuit: Kevin Czech v. Michael Melvin

Instructing the jury on Felony Murder theory of First Degree Murder arising from the use of the firearm, whether or not there was an independent felonious purpose to the use of the firearm, was an error of state law.  Precedent holds that this should be examined for harmless error, seemingly establishing a Due Process violation by implication, but one not clearly established for the purposes of Habeas petitions.  Here, though, the error of stare law was harmless, as the verdict would have been the same.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-21/C:17-1838:J:Griesbach:aut:T:fnOp:N:2222884:S:0

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Sixth Circuit: Ahmad Issa v. Margaret Bradshaw

When considering hearsay statements by a co-defendant that tend to implicate another defendant, the critical aspect that determines whether the truth of the matter asserted can be admitted despite the Confrontation Clause is not the indicia of reliability from some preconceived litmus such as the testimonial form of the statement, but rather the totality of the circumstances.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0212p-06.pdf
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Third Circuit: USA v. Keonna Thomas

Portions of plea hearing under seal in trial record are appropriately withheld given a sufficient showing of probable harm.  Although the First Amendment applies to records of plea proceedings, here the court provided sufficient specific reasoning under seal, considered alternatives, and labeled the sealed sections.  The common-law right of access is countered when it is the type of information that courts would normally protect, and there was sufficient risk of a clearly defined and serious injury.

http://www2.ca3.uscourts.gov/opinarch/172644p.pdf
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Third Circuit: Troy Reese v. Warden Philadelphia FDC

The Bail Reform Act system for contesting pretrial detention is the sole remedy for challenging federal pretrial detention; although Habeas theoretically runs, the prudential limits on the writ require the courts to deny any requests for relief not channeled through the Bail Reform Act processes.

http://www2.ca3.uscourts.gov/opinarch/181749p.pdf


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4th Circuit

New decisions haven't been appearing for several days on the 4th's site, and they appear to be replacing their web team.   Biglaw salmon-shirted minions, solos in Dinwiddie and other budding aristos are likely getting everything through PACER and the gossip down on Cary Street, but the People's Website will wait for the public feed to open up.  Unless, you know, we get bored or something. 

-CB
    .

    Other cases:

    (Serious brain-cloud setting in here -- punting the balance.)

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0210p-06.pdf

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0211p-06.pdf

    http://media.ca8.uscourts.gov/opndir/18/09/161467P.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/20/16-56546.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/20/16-36072.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/20/14-56834.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/20/13-10637.pdf

    http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2691.Opinion.9-20-2018.pdf

    http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2256.Errata.9-20-2018.1.pdf


    -CB

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    Sixth Circuit: United States v. Erik McCoy

    The facts that the deft was regularly selling drugs, and that he was apprehended in possession of a large amount of drugs while at work provided sufficient explanation in the warrant's affidavit for a search of the apartment that he shared with another employee to be permissible under the good faith exception.

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0209p-06.pdf

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    Third Circuit: In Re Hertz Global Holdings Inc.

    Executive resignations, poor results, cavalier tone, and insider trading during the turmoil raise an inference of scienter, but not a strong one, and therefore do not state a claim.

    http://www2.ca3.uscourts.gov/opinarch/172200p.pdf
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    Third Circuit: Carol Walker v. Brian Coffey

    Production of work emails by a public university in response to a facially infirm subpoena did not violate a clearly established constitutional right, as there was no legitimate expectation of privacy in emails which an employer could freely disclose.  Dismissal without prejudice to allow a refiling for statutory claims.

    http://www2.ca3.uscourts.gov/opinarch/172172p.pdf
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    Second Circuit: United States v. Lobo

    Witness assertion, when credited, suffices to establish that drugs made it to US markets.

    Aggravating role sentence increase upheld.

    "http://www.ca2.uscourts.gov/decisions/isysquery/1aad3dd4-e94a-4e4b-a3b1-6cd4b00c0df9/1/doc/17-2894_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/1aad3dd4-e94a-4e4b-a3b1-6cd4b00c0df9/1/hilite/
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    First Circuit: US v. Vallellanes-Rosa

    As the court was not compelled to vary downward for the federal carjacking count, the sentence was substantively reasonable; as the relevant factors were mentioned during the sentencing, the sentence was procedurally reasonable.

    http://media.ca1.uscourts.gov/pdf.opinions/17-1541P-01A.pdf
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    Other precedential cases from today

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0208p-06.pdf

    http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-19/C:17-1080:J:Sykes:aut:T:fnOp:N:2220907:S:0

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/19/14-71768.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/19/12-55911.pdf

    http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/19/16-73801.pdf

    http://media.ca11.uscourts.gov/opinions/pub/files/201713611.pdf

    http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1101.Opinion.9-19-2018.pdf

    -CB
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    Sixth Circuit: Jesse Busk v. Integrity Staffing Solutions

    Door to door utility canvassers are subject to the travelling salesman exception to the statute, since although the utility has the final power to ratify the sale or not , gaining the consent of the customer is the work of the salesman.

    Although the portal-to-portal act puts some security screening time outside the Labor act's compensation mechanism, state law might cover the claim, since state law does not mimic the exception, and work need not involve exertion.

    http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0207p-06.pdf
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    Second Circuit: Kevin Flood, et al. v. Just Energy Marketing Group, et al.

    To qualify for the Travelling Salesman exception to the Act, the  work of the employee must be closing sales.   The fact that the company could ultimately decline to ratify the deal and proceed with the transaction is irrelevant to this consideration, as the salesman's task is to get the customer's consent to the transaction.

    Court did not err or abuse discretion in refusing offensive collateral estoppel against the insurer for litigating the opposite view in another form, as the two contract interpretations are not precisely identical, and not all claims have yet been litigated to their conclusion. 

    http://www.ca2.uscourts.gov/decisions/isysquery/85b366f3-f243-43e5-81c8-b4640a784328/3/doc/17-546_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/85b366f3-f243-43e5-81c8-b4640a784328/3/hilite/                                                                                  
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