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