Second Circuit: Libertarian Party of Erie County v. Cuomo

For standing to challenge state firearms licensing scheme, plaintiffs must either apply for a license or demonstrate the futility of doing so.

11th Amendment bars claims against judges in their individual capacity when adjudicating firearms licensing applications, as the licenses issue under judicial order, although the refusals are communicated administratively.

As firearm licenses can be legitimately withheld for certain reasons, the statutory requirement of good moral character can be read to incorporate these reasons, and is therefore not unconstitutionally vague.

Licensing scheme doesn't offend Second Amendment, as there is a substantial relationship between the legitimate goals of the licensing scheme and the restrictions that it imposes.

Libertarian Party of Erie County v. Cuomo

Second Circuit: Lehman Brothers Special Financing Inc. v. Bank of America N.A.

 [If I have this right...]  Investment bank's payments to noteholders of SPV on the occasion of its pre-petition default can't be recouped in bankruptcy, as the relationship between the bank and the SPV was of the type of asset-exchange swap obligation explicitly immunized from bankruptcy's modification of contractual rights and obligations.

Lehman Brothers Special Financing Inc. v. Bank of America N.A.

Second Circuit: Lasher v. United States

 

As the order does not itself finally resolve any question on the merits and the statute provides for a second mechanism, a denial of a certificate of appealability on a motion to set aside the sentence is not a sufficiently final order for purposes of appeal.

Circuit split/tension flagged. 

Lasher v. United States

First Circuit: US v. Cotto-Flores

 

As Congress retains the power to legislate on police power matters in Puerto Rico, the amendment of the relevant statute to include commonwealths sufficiently indicated the intent of Congress that the law should apply to crimes committed entirely within the non-state commonwealth.

Sufficient evidence for conviction, as the impeachment of the witness didn't make the finder of fact's crediting of other evidence unreasonable.

Instructing the jury on the state predicate offense didn't confuse them about which offense they were weighing.

As live video testimony is only available in certain situations where the witness cannot reasonably communicate because of fear, allowing a witness to testify remotely where the fear was generalized to the situation and not specific to the deft, and the court accepted the witness' statement without adopting it as a reasoned finding, a retrial is an appropriate remedy.

Concur: 

Constitutional status of Puerto Rico is still that of an unincorporated territory, as the law creating the Commonwealth changed governance procedures rather than constitutional status, and was not a compact.

 US v. Cotto-Flores

Ninth Circuit & Federal Circuit

 There were a handful of decisions out from the 9th & Federal Circuit on Friday, but other work calls, and I need to close this window.  Possibly to be covered tomorrow, depending on how long the list is.

Again, folks, if for some reason you're reading this, you're basically watching somebody take batting practice. Don't rely; don't rely; don't rely.  Cheers.

CB

Eighth Circuit: United States v. Carlos Luna

 

Given the specific misrepresentations made, and the fact that insurers would have otherwise more carefully scrutinized the clinic, sufficient evidence for a scheme or artifice to defraud, despite the fact that some percentage of the claims were legitimate.

Restitution, and sentencing calculations should have been offset for the percentage of treatments that were medically necessary.  Forfeiture, though, looks to the gross proceeds of the criminal activity and did not have to be offset.

United States  v.  Carlos Luna

Sixth Circuit: Karst Robbins Coal Co. v. OWCP

 

Earlier administrative determination of employer's identity does not bind later adjudication under claim preclusion, since the earlier determination found no liability, and the determination of the employer's identity was therefore not essential to the decision.

Administrative regulation, state law, and equitable considerations of delay prevent an ex ante rescission of workers' compensation insurance contract, where that rescission would defeat the insurer's liability for adjudicated claims.

No 5A DP violation where the agency's administrative error was in a proceeding that eventually proved nondispositive.

Karst Robbins Coal Co. v. OWCP

Sixth Circuit: Sheila Armstrong v. Mich. Bureau of Servs. for Blind Persons

 

Arbitrator's decision that damages request was too speculative was not arbitrary or capricious, given insufficient evidence in the claim.

Federal statute providing for state administrative remedy, followed by federal arbitration, followed by Article III review provides sufficient enforcement mechanism to displace S1983 remedy.

Sheila Armstrong v. Mich. Bureau of Servs. for Blind Persons

Sixth Circuit: Alain Cuevas-Nuno v. William Barr

 

Alien's appeal citing an exceptional situation justifying sua sponte reopening of the matter did not sufficiently exhaust a claim for a statutory reopening of the matter due to exceptional circumstances.

Alain Cuevas-Nuno v. William Barr

Fifth Circuit: Donald Calhoun v. Jack Doheny Companies, Inc.

Given the evidentiary proffers of the parties at the preliminary injunction stage, state law compelled the court to attempt a reformation of the noncompete agreement as opposed to a preliminary injunction enjoining enforcement on the basis of overbreadth.

Donald Calhoun v. Jack Doheny Companies, Inc.

Fifth Circuit: Justin Atkins v. Timothy Hooper, Warden

State trial court's determination that detective's summary of statements of non-testifying witness was not inadmissible hearsay because it didn't recite the witness' words and the detective's purpose in describing the statements was to explain the course of the investigation was an unreasonable application of Supreme Court precedent.

State intermediate appeals citation referencing harmless error does not independently preserve the issue for the federal habeas claim, as the decision was looked through in favor of the reasoned decision of the lower court, and the issue was not presented in the federal collateral challenge.

Justin Atkins v. Timothy Hooper, Warden

Fifth Circuit: Six Dimensions, Incorporated v. Perficient, Inc.

 

District court "misapplied" its discretion by recognizing two contracts in its holding, but only reversing its holding as to one on the motion to reconsider due to the fact that the other party had not argued the second contract; the other party was not sufficiently put on notice by one sentence mentioning the agreement in a brief.

Statute's categorical bar on contractual restrictions on subsequent employment, followed by closely defined exceptions, creates a presumption that the statute ratifies the common law antipathy to such restrictions, rather than a rule of reason.

State consumer protection law in the state law elected in the contract doesn't apply, as there is a common law presumption against its extraterritorial exception, and no conduct harming consumers occurred in the state.

Continued possession of potential trade-secret materials from prior employer insufficient to establish acquisition under the law of the state.

Six Dimensions, Incorporated v. Perficient, Inc.

Fifth Circuit: ATOM Instrument Corporation, et al v. Petroleum Analyzer

 

District Court's interpretation of the terms of the arbitral agreement enjoining use of the technology and methods in a patent application is reviewed for plain error, as the reviewing court must make factual determinations as to whether the uses are sufficiently similar.

District court's restatement of the arbitral award did not substantially alter the law of the case.

Fees incurred prior to the filing of claim can be recovered under a fee-shifting statute where they are an attempt to resolve a threatened claim.

Court reasonably found fees to be nonsegregable as they generally advanced the litigation position.

State rules requiring party to seek contingent appellate fee award in the trial court are procedural, so the federal rule allowing award of fees by the reviewing court prevails.

ATOM Instrument Corporation, et al v. Petroleum Analyzer

Fifth Circuit: Green Valley Special Util Dist v. Donna Nelson, et al.

Dismissal with prejudice of a erroneous claim that an earlier decision of a regulatory body relied on a preempted state statute does not deprive the plaintiff of the right subsequently to assert the preemption of the statute as relied upon by another regulatory decision.

Dispute as to two of the parties is now moot, given private settlement of claims, and subsequent procedural steps and the possibility that an allegedly preempted statute might be relied upon in the future is insufficient to preserve a live case or controversy between the parties.

While the voiding of a past agency order is not obtainable under the Ex Parte Young exception to state sovereignty, subsequent enforcement actions in furtherance of such an order do state a claim.

As the suit is seeking a remedy in equity, the non-jurisdictional bar against S1983 claims against political subdivisions does not deprive the court of jurisdiction.

Statutory requirement of utility capability implies an inquiry into nearby infrastructure.

CJ, et al., Concur/Dissent: 

Federal statute defining utility service area applies to the degree that federal funds were used to construct the infrastructure.

Concur/Concur with Concur/Dissent:

Fact-bound decision on remand.

Concur:

Where a state law statute creating a private cause of action is preempted, the c/a can arise in equity, and where the claim presents a substantial question of federal law, there is federal jurisdiction.

Concur:

Although, by Bivvens analogy, S1983's exclusion of political subdivisions should extinguish a correlative implied cause of action in equity arising under Ex Parte Young, precedent sufficiently recognizes the validity of an equitable suit for prospective relief against state officials' actions that violate the federal constitution.

Green Valley Special Util Dist v. Donna Nelson, et

Fifth Circuit: Courtney Morgan v. Scott Freshour, et al

Execution of administrative warrant under the auspices of the state medical board and the subsequent preparation of a report is  entitled to the qualified immunity of law enforcement, not the absolute immunity of a prosecutor.

Claims of malicious prosecution and abuse of process are inherently tort claims, not constitutional violations, and do not sound in S1983 actions -- any underlying constitutional violation must be raised according to its own terms.

Remand for the district court to consider whether underlying plausible 4A claims were waived by the plaintiff's initial tort-based filing under notice pleading.

Courtney Morgan v. Scott Freshour, et al

Fifth Circuit: SA v. Noel Jones

 

Sufficient basis for plea to specific drug quantities, given duration of daily drug sales; sufficient basis for conspiracy plea as to buyer/seller relationship where the relationship goes on for long enough and sufficient mutual trust is established.

Court's instructions at plea colloquy did not rise to the level of plain error.

Ineffective assistance waived for not being raised below, preserved for collateral challenge.

SA v. Noel Jones

Fourth Circuit: Diana Mey v. DIRECTV, LLC

 Subsidiary user on a cell phone plan is bound by arbitration agreement referenced in electronic signature at time that the subsidiary purchased the extended service.

Contra proferentum notwithstanding, the arbitration agreement's incorporation of successors and assigns and the inherently durational nature of the contract mean that after-acquired subsidiaries are parties to the arbitration agreement.

Present dispute is within the scope of the arbitration agreement, given the statutory presumption for arbitration and the terms of the agreement compelling arbitration of all disputes and claims between the parties.

Diana Mey v. DIRECTV, LLC 

Second Circuit: Sprague v. Salisbury Bank & Tr. Co.

 

Consumer's right of action under the credit reporting statute arises through notification of the reporting agency, so a consumer's direct notification of a bank of an error in the report does not suffice to state a claim arising from the bank's statutory duty not to provide inaccurate information.

Sprague v. Salisbury Bank & Tr. Co.

Second Circuit: Osen LLC v. United States Central Command

Prior military FOIA disclosures about specific incidents did not generically waive withholding about similar incidents; the waiver doctrine requires that the waiving disclosure be identical in both specificity and matter, and different incidents are inherently different matters.

Although the military cannot, under a mosaic theory,  withhold disclosures of large amounts of data, but the disclosure is justified where the military contends that each element of the mosaic (each disclosure) might provide information about critical vulnerabilities.

Osen LLC v. United States Central Command

First Circuit: Common Cause Rhode Island v. RI Republic Party

As the state's attestation requirements for mailed-in votes is only imposed in a few states, and the state has not advanced any interest behind it, lower court's entry of consent judgement abrogating the requirement should not be stayed.  The elevated standard for stays close to an election is met, as the last election didn't have the requirement, and the state hasn't suggested that it would confuse voters.  Political party has standing to intervene for the purposes of the pending appeal.

Common Cause Rhode Island v. RI Republic Party

First Circuit: T-Mobile Northeast LLC v. The Town of Barnstable

 

"...a salmagundi of affirmative defenses."

Grounds for denial of intervention of right (or, in the alternative, permissive) did not have to be extensively described by the court -- the decision is reviewed for abuse of discretion in light of the record.

No abuse of discretion of denial of intervention of right by citizens attempting to stop cell-phone tower on church steeple where it is apparent that the existing parties will attempt to vindicate the specific statutory protections that the citizens intended to raise; the litigation strategy of the existing parties doesn't enter into the calculus.

No abuse of discretion in denial of permissive intervention, as existing parties would raise the smae issues, the putative intervenors had no cause of action under state law, and it's really important to build cell phone towers quickly.

 T-Mobile Northeast LLC v. The Town of Barnstable

Brief hiatus

Good to get back into the batting cage for a few days after finishing the dissertation.  As there are some other matters arising in the coming week, this will be, at minimum, the last update of the week.  Cheers.

-CB

Eleventh Circuit: Leon Carmichael, Sr. v. USA

Petitioner suffered no prejudice from ineffective assistance of counsel in handling a 10 year plea deal as opposed to the 40 years eventually imposed, since there was no guarantee that the deft would accept, given his desire for a firm offer, and the terms of "super cooperation" were vague enough that the parameters of deft's obligations were unclear, and the expectations of the govt could not be defined before entering into the material cooperation and determining the capacity of the deft to assist.  

Sufficient evidence in record that deft might not have accepted the offer of 20 years; consultations  with counsel were after the fact.  General post-trial and totality claims similarly insufficiently supported.

Leon Carmichael, Sr. v. USA

Tenth Circuit: Frappied v. Affinity Gaming Black Hawk

Mixed claims sounding in both gender and age are cognizable under Title VII.

Clam sufficiently states the age and gender claim by reciting the gender of the plaintiffs and that they are older than 40.

~96% chance of firings being non-random across age and gender suffices to create a plausible inference of discrimination.

Even given the statistical possibility of discrimination, no facts raising an inference of discrimination on the basis of gender were pleaded, so the non-random employment actions are susceptible of other explanations.

Given statistical analysis of terminations and the demographics of the new employees hired, the suit states a claim for disparate impact under the ADEA.

Median ages of terminated and new employees suffice to state a claim for disparate treatment under the ADEA, but employer met the burden of producing a nondiscriminatory basis.  Sufficient issue for trial on whether these post-hoc rationales were pretextual.

Frappied v. Affinity Gaming Black Hawk

Tenth Circuit: Zahourek Systems v. Balanced Body University

There is a genuine dispute for trial as to whether the anatomical model is a useful article under the copyright law, since the question is not the tactile uses to which it might be put in an educational context, but rather whether its usefulness arises from the fact that it correctly depicts the human frame.

Zahourek Systems v. Balanced Body University

Ninth Circuit: Gonzalo Dominguez v. William Barr

State drug statute criminalizing manufacture and delivery is divisible, as the two are different elements, not different means.

Under modified categorical review, the statute is a valid predicates, since the state's inclusion of "conversion" in the definition of drug manufacture overlaps the federal definition of "production."

Board's adjudication took sufficient consideration of the particulars of the case.

Issue of defective notice, promptly remedies, was not jurisdictional.

Gonzalo Dominguez v. William Barr

Ninth Circuit: Linda Larson v. Andrew Saul

Skidmore deference to agency determination that military employment in the civilian sector is not within a SSA exception for wages earned wholly through military service.  Circuit split flagged.

Linda Larson v. Andrew Saul

Ninth Circuit: Michael Peirce v. Douglas Ducey

State citizen has insufficient concrete or personal harm to challenge state constitutional reallocation of assets held in trust by the state, claiming that the constitutional amendments violate the terms of the trust as defined in the federal enabling legislation.

The voluntary cessation to mootness would not apply in such a case if Congress were to ratify the change, since the alleged transgressor is the state, not the federal government.

Although there is insufficient basis for a private right of action under the federal statute, the bar is not necessarily a jurisdictional one.

Michael Peirce v. Douglas Ducey

Ninth Circuit: Skyline Wesleyan Church v. Ca. Dept. of Managed Health Care

Amended Op.

Skyline Wesleyan Church v. Ca. Dept. of Managed Health Care

Seventh Circuit: Dawn Hanson v. Chris LeVan

Allegations of politically motivated dismissal state a claim where bias is credibly alleged, and according to statute and practice, the position involved access to neither policymaking deliberations nor the politically sensitive work of the elected official.

To state a claim of a clearly established right, there is an important distinction between a murky area of the law and a well-developed but complex area of the law -- the latter allows an easier inference at the pleading stage.

Dawn Hanson v. Chris LeVan

Seventh Circuuit: USA v. Robert Hosler

Sufficient evidence of enticement under the statute where statements seem to provoke the illegal conduct -- there is no requirement that the victim's will has to be overcome.

USA v.  Robert Hosler

Seventh Circuit: USA v. Elleck Christopher Vesey

Although the state offense serving as an ACCA predicate is divisible, either prong would require that the victim be close enough to have the prospect of imminent physical harm, making the state crime a valid predicate due to its elements.  General intent crimes can serve as predicate offenses.

USA v.  Elleck Christopher Vesey

Sixth Circuit: United States v. Raheim Trice

Deft's subjective expectation that the unlocked common hallway outside his apartment door was within the curtilage of his residence was objectively unreasonable, as deft had insufficient control over the space.

Placement of a hidden camera on the hallway wall opposite the deft's door did not violate the right to privacy, as it only recorded when the deft's door was opened, only short clips of video were filmed, and the deft would not have had the power to exclude law enforcement from being there and observing the same acts, even for extended periods.

United States v. Raheim Trice

Fifth Circuit: Kevin Santos-Alvarado v. William Barr, U. S. Atty

Petitioner's explanations of inconsistencies in testimony are reasonable, but they do not compel a finding that the Immigration judge's finding of adverse credibility was one that no reasonable jurist would make.

IJ's bar on telephonic testimony didn't violate due process, as the testimony wouldn't have been dispositive, and the IJ reviewed the witness' written statement.

Kevin Santos-Alvarado v. William Barr, U. S. Atty

Fifth Circuit: USA v. Herman Sanders, et al

Insufficient basis for Habeas on Ineffective Assistance, as the prejudice from the undiscovered evidence of trauma, illness, and coercion would not have caused a single reasonable juror to change their penalty phase vote, given past threats of violence, and incriminating letters offered at trial.

Dissent:  

Quoting state penalty phase closing:  “It’s an incredibly sad tribute that when a man’s life is on the line, about the only good thing we can say about him is he’s a good artist.” 

State waived AEDPA bar on new evidence in federal collateral challenge.

Precedent on reasonable probability isn't tied to the facts of each case -- they don't present a minimum threshold for the showing.

Substantial argument that deft killed only under threat of his own death.

USA v. Herman Sanders, et al

Fifth Circuit: USA v. Charles Davis

On  SCtUS  remand for plain error review -- although the deft didn't forfeit the challenge to the imposition of concurrent statutes, the acts were arguably dissimilar and irregular enough to avoid the statute's scope, and the temporal link is thin, ergo: no abuse of discretion in imposition or level of explanation of concurrent sentences.

USA v. Charles Davis

Fifth Circuit: USA v. Herman Sanders, et al

Rivals might have been appropriately joined, as they were involved in the same acts or transactions, but no actual prejudice, given curative instruction and the fact that the potentially prejudicial testimony was a small part of the total.

Required scienter encompasses all of the elements -- "knowingly" implies that the deft knew that the victims were minors.  Lack of proof of this at trial made for a constructive amendment to the indictment.

USA v. Herman Sanders, et al

Fourth Circuit: Darlene Gibbs v. Haynes Investments, LLC

Delegation clause in arbitration agreement can be judicially reviewed where the challenge is to that clause specifically, and the challenge is made with sufficient force and specificity.

Tribal arbitration agreement is a prospective waiver of federal statutory rights where it indicates that tribal law will preempt contrary federal law.

Tribal code with civil damages provision allowing compensation of actual harm doesn't sufficiently vindicate RICO treble damages right.

Darlene Gibbs v. Haynes Investments, LLC

Fourth Circuit: Eugene Baten v. Henry McMaster

Plaintiffs challenging state's allocation of Presidential Electors en bloc have Article III standing, as they allege sufficient injury and causation; although political gerrymandering is nonjusticeable, racial gerrymandering and vote dilution claims are substantially different.

No vote dilution, as the state is a unit, and each vote within it is equally counted; this structure is baked into the Constitution, and reflected in the tiebreaking procedure in the House, where each state gets a single vote.

Freedom of Association right derives from the right to associate with the party of one's choice, not from the party's chances, or the expectation that the national party will pay much attention to you.

VRA S2 and Gingles challenge falls short, since there is not prospect of a minority majority district, the poll is for electors, not the ultimate candidates, and minority voters have equal opportunity to select candidates of their choice.

Eugene Baten v. Henry McMaster 

Third Circuit: USA v. Eric Seighman

Supervised release mandatory sentencing statute does not violate the 6th Amendment trial right, since it includes non-criminal offenses, and the one-day mandatory minimum isn't significant enough to raise constitutional concerns, and if it were, there would be no plain error in this case, since the sentence was well in excess of the minimum.

Apprendi challenge along similar lines foreclosed by precedent.

USA v. Eric Seighman

First Circuit: TLS Mgmt. and Mktg. Ser. LLC v. Rodriguez-Toledo

A client file compiled by an asserted secret process containing asserted secret insights is not itself protected as a trade secret absent a division of public and nonpublic material within it and a specific claim for certain nonpublic material or processes.

A claim of trade secret for a business process must establish more than the fact that it is not known -- the claim must also establish that it is not ascertainable from public sources.

Nondisclosure agreements implicate the same public policy concerns of the forum state as do non-compete clauses.   Here, the agreements' broad scope, including general knowledge acquired on the job, particular knowledge acquired that was already public knowledge, and information provided by third parties, make the agreements unenforceable under the public policy exception.  Courts will not rewrite or narrow the contract, so the nondisclosure agreement is void in its entirety.

 TLS Mgmt. and Mktg. Ser. LLC v. Rodriguez-Toledo

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.

Prestonback v. US

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.

Independent Producers Group v. CRB 

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.

United States v. Moses

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.

Contreras v. Dona Ana County Board

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.

John Heineke v. Santa Clara University

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.

 Shahriar Jabbari v. Wells Fargo & Company

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.

Yassir Fazaga v. FBI

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.

Zayn Al-Abidin Husayn v. USA

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.

United States  v.  Kinzey Shaw

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.

Slawson Exploration Co., Inc.  v.  Nine Point Energy, LLC

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.

LM Insurance Corporation  v.  Dubuque Barge and Fleeting Svc

Eighth Circuit: Damon O'Neil v. United States

No ineffective assistance for not seeking Franks hearing given incorrect name provided by search warrant affiant, as there was sufficient evidence of drug activity at the residence, even absent the identities of the suspects provided by the affiant.

Magistrate's omission of check-bo indicating the reason for the affiant's reliability was not fatal to the warrant, as the general endorsement was signed.

No ineffective assistance on not challenging cell phone search, as it was two years in advance of Riley.

Police affidavit furnished during collateral challenge indicating that deft had been Mirandized prior to confession suffices against Strickland challenge, as there was no indication that trial counsel knew or should have known that the deft claimed that he hadn't been read his rights.

Damon O'Neil  v.  United States

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.

United States  v.  Jovan Harris

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.

Elijah Manuel v. Nick Nalley

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.")

Central States Southeast and S v.  Shelby Haynes

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.

USA v. Finas Glenn

Seventh Circuit: Angela Tonyan v. Dunham's Athleisure

Given empirical practice and the business model of the company, the employer's two documented lists of essential qualifications for the job suffice to deny the ADA claim.  Even if the employee were to delegate those tasks, it would amount is substantial enough that it would amount to a delegation of the job itself.

Angela Tonyan v.  Dunham's Athleisure 

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.

Daniel Sarauer v. International Association

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.

USA v. Nathaniel Ruth

Sixth Circuit: United States v. Andy Maya

Sufficient evidence for possession in furtherance where the firearm is kept with funds gained from drug dealing and occasionally taken with the deft when dealing drugs.

Allowing expert testimony that a firearm being kept near drug proceeds is consistently linked to its being used to guard those funds was not an abuse of discretion, since it didn't discuss the legal aspects of the ultimate issue.

United States v. Andy Maya

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."

Andrei Skripkov v. William P. Barr 

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.

State Farm Lloyds v. Janet Richards, et al

Fourth Circuit: Douglas Fauconier v. Harold Clarke

Prisoner ADA complaint appropriately equitably tolled during exhaustion of administrative remedies required by federal statute.

Prison officials' reliance on a medical classification in the stated denial of all prospects of work states a claim under the ADA.

Prisoner pro se complaint asserting unequal treatment of comparators and lack of administrative explanation for informal denying the chance to work based on a medical classification states an Equal Protection claim.

Eleventh Amendment bars Equal Protection action for damages against prison administrators, but not the ADA action for damages, as an actual violation of the 14th amendment is alleged.

Claims against individuals barred under Qualified Immunity, since a clearly established right would be plain to every reasonable official, and such is not the case here.

Inmate transfer moots all claims for equitable relief except those against Director of agency.

Douglas Fauconier v. Harold Clarke 

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.]

USA v. Jamell Birt

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.

New Hope Family Services, Inc. v. Poole

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.

UnitedHealthcare of New York, v. Lacewell

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.

In Re: 21st Century Oncology Holdings, Inc.

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.

United States v. Atilla

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.

Williams v. Korines

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.

USA v. Maher Obagi

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.

USA v. Tuan Luong

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.

USA v.  Marcus Durham

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.

Janet Kotaska v.  Federal Express Corporation

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.

John George v. Youngstown State Univ. 

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.

Eric Dotson v. Gregory Kizziah

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.

In re Franklin Harris, Jr.

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.

United States v. Dwight Barber

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.

United States v. Michael Bourquin 

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.

Ralph Carusone v. Warden

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.

USA v. Selene Suarez

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.

Plastic Surgery Center, P.A. v. Aetna Life Insurance Co

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.

Waithaka v. Amazon.com, Inc.

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.

Caribbean Mgmt. Group, Inc. v. Erikon, LLC

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.

American Hospital Association v. Alex Azar, II

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.

Association for Community v. TREA

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.  

Grace v. William Barr 

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.

Imapizza, LLC v. At Pizza Limited

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.

Daniel Farrell v. Boeing Employees Credit Union

Eighth Circuit: United States v. Gabriel Sherrod

No clear error in court's holding that police officer's post-incident statement that he kept the door from closing, later described as a poor choice of words, really meant that he had walked in through an open door.

Knock and announce not required where a minor child resident being followed by the police walks into the house without closing the door, it's nighttime, and police have a felony arrest warrant for a resident whom they believe to be inside.

Obstruction sentencing bump is not an abuse of discretion where deft testifies that the police kicked the door, but the court can't discern it in the audio.

Below-guidelines statutory maximum sentence not substantively unreasonable.

United States  v.  Gabriel Sherrod

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.

Adetokunbo Fayemi v. Kess Roberson

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.

Scott Callahan v. Fed. Bureau of Prisons

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.

David Wilson v. Houston Community College System

Fifth Circuit: Vantage Deepwater Company, et al v. Petrobras Amer

Court appropriately deferred to arbitrators' decision, since public policy does not bar arbitration agreements resolving questions about contracts achieved through dubious means -- the question on the public policy exception is whether the ratification would create a danger to the public.

Court did not abuse its discretion in denying discovery during arbitration vacatur proceedings seeking testimony of arbitrator, since arbitration association rules prohibiting it are incorporated, and the arbitration record is equivocal.

No abuse of discretion in denying subpoena for arbitration association, given vague boundaries of immunity, and necessity to move things along.

As arbitration agreement discussed the equities of the parties in full, it was not sufficiently contrary to the agreement's choice of law and corporate form and surety provisions. 

Vantage Deepwater Company, et al v. Petrobras Amer

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.

In re: Taxotere Prod Liability

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.

Will McRaney v. N Amer Mission Bd So Baptist

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.

Teamsters Local 177 v. United Parcel Service

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.

United States v. Traficante

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.

Keefe v. Commissioner of Internal Revenue

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.

US v. Capelton