Federal Circuit: Prestonback v. US


Military cadet's agreement to recoupment of educational costs upon voluntary early end of service is a statutory agreement, not a contract with the government.

Under Skidmore deference, the government can reasonably decide that involuntary separation from the military presumptively resulted from a voluntary refusal to achieve sufficient performance reviews.

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Tenth Circuit: Independent Producers Group v. CRB


Copyright Royalty Judges'  denial of claims as a discovery sanction wasn't a violation of constitutional due process -- as the tribunal is a largely clerical creature of statute, a different calculus applies to review of discovery sanctions than is applied in Article III courts.

Although the tribunal had earlier rejected the scheme that it eventually adopted, the new information provided in the interval constituted a quantum of persuasive evidence.

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Tenth Circuit: United States v. Moses



The fact that a surveillance camera was operating in front of the alleged "chop shop" mechanic might have proved exculpatory at trial, but there was no need to inform the magistrate issuing the search warrant of it, as the inference would have been permissive, and a Franks hearing would have resulted only if that inference had been made; the gun found on the proprietor during the search is therefore not excluded.


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Tenth Circuit: Contreras v. Dona Ana County Board


(Per Curiam summary)

CJ, concurring: 

Insufficient 8A deliberate indifference claim where prison guards didn't have subjective knowledge of risk to detainee posed by leaving the cell door controls unlocked.

The situation doesn't correspond to a clearly established right -- negligence, perhaps.

Concur in part, concurring in the judgment:

Supervisor's knowledge of the risk can't be imputed to the guards.

Not a clearly established right, so no need to reach the deliberate indifference calculus, given qualified immunity.

Although there's no qualified immunity for Monell claims, the right has to be established in order to show the need to train employees.

Concurring in part, dissenting in part:

Claims against supervisor and municipality presented genuine issue for trial on deliberate indifference.

Central question on the deliberate indifference claim is whether it was reasonable to keep the controls unlocked.




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Ninth Circuit: John Heineke v. Santa Clara University


Receipt of federal funds and consequent statutory nondiscrimination mandates does not make a private university into a state actor for purposes of S1983.

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Ninth Circuit: Shahriar Jabbari v. Wells Fargo & Company



Where the class is in part defined by a claim arising under federal law, court does not abuse discretion by certifying the class prior to choice of law analysis, since, among other things, the underlying issues are identical,  and not every state claim will be raised in every action.


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Ninth Circuit: Yassir Fazaga v. FBI


Concurrence with denial of en banc (starting at 108):

Statutory FISA ex pare in camera review speaks squarely to and therefore displaces the state secrets privilege.

Dismissal remedy not identical with the privilege.

Privilege is an evidentiary privilege, not a constitutional one.

FISA remedy not limited to when the govt is on the offensive, and the other party need not be a defendant.

Dissent from denial of en banc:

FISA review limited to discrete instances of admissibility in criminal prosecutions

Displacement of state secrets privilege by statute privileges the legislature within the balance of powers.

An executive privilege can have a Constitutional core.

FISA review limited to "such other materials," not every possible material.

Any department can invoke privilege, but only DOJ can invoke FISA.

Govt invocation of privilege insufficient for statutory trigger of FISA.

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Ninth Circuit: Zayn Al-Abidin Husayn v. USA


Concurrence with denial of en banc:  When assessing State Secrets privilege, courts must attempt to determine if the contested materials contain privileged information, and if so, if there is any way to segregate the non-privileged information.

This applies when the basis for discovery is the statutory obligation to assist foreign tribunals.

Facts generally known and acknowledged by heads of government cannot be considered state secrets.

Dissent from denial of en banc:    Information requested has been held to be within the privilege.

Deference to the Executive warranted on national security interests.

Third party disclosure can't waive privilege, because it belongs to the govt.

Forcing govt to confirm or deny would be harmful.

State secrets privilege not diminished when discovery directed to government contractor.

Not incidental to foreign proceeding -- the purpose of the proceeding is to discover this information.

The fact that it is being sent to a foreign tribunal changes the state secrets balancing.







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Eighth Circuit: United States v. Kinzey Shaw


Degree of coordination established at trial sufficed for the conspiracy count and for calculating drug quantities from shared sales.

As the bottle tested was established to have held a certain percentage of the controlled substance analogue, it was reasonable for the court to assume that the others held the same percentage.

Deft's requests to co-conspirators in holding cell not to "tell on her" sufficed for obstruction of justice sentencing bump.

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Eighth Circuit: Slawson Exploration Co., Inc. v. Nine Point Energy, LLC



A commitment to pay 10% of the oil-drilling costs to a development partner upon electing to participate in a development scheme does not sufficiently benefit the land to be considered a covenant that runs with the land and therefore binding upon successors in interest.

Recognition under state law of an easement under equitable estoppel does not establish that the state law would recognize an equitable servitude with identical burdens and benefits.

Although the contractual commitment to provide a portion of the development costs is a benefit, it doesn't sufficiently arise from the land to be considered a property interest.

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


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

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Eighth Circuit: Damon O'Neil v. United States


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

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

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

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


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Eighth Circuit: United States v. Jovan Harris



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

Where there is proof of the drug sale, proof of the death or serious bodily injury, and circumstantial evidence that the two were related, a rational finder of fact might conclude that the sale was of the drugs that caused the death or serious bodily injury.  Same if victim testifies that they were "pretty sure" that they bought the drugs in question from the deft.

Where one deft actually enters into the transaction and another leaves the drugs in the WC for the customer, there is sufficient evidence for the finder of fact to conclude that the drugs were purchased from the latter.
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Seventh Circuit: Elijah Manuel v. Nick Nalley


Retaliation claim arising from prison administrator's search of inmate's cell nine minutes after he mentioned the possibility of filing a complaint against the administrator does not present a genuine issue of material fact for trial, as there had been a report two weeks previous indicating contraband in the cell.


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Seventh Circuit: Central States Southeast and S v. Shelby Haynes



Where an ERISA third party beneficiary who becomes an adult between the coverage date and the date on which the paid claim arises wins a subsequent tort claim related to the covered injury, they are bound to any equitable repayment of the fiduciary specified in the Plan, as acceptance of the benefit signified assent to the terms of the Plan.

(Interesting Easterbrook cognomen for S. Ct. U.S.: "The Justices.")

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Seventh Circuit: USA v. Finas Glenn



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

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Seventh Circuit: Angela Tonyan v. Dunham's Athleisure



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

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Seventh Circuit: Daniel Sarauer v. International Association


Denial of remand appropriate under the embedded federal question doctrine where the case turns upon the renewal or modification date of a CBA.

Because the CBA came into effect subsequent to ratification regardless of formal execution, the relevant date as to formation is the ratification date.

Claim for wages under the generic wage statute is preempted by the CBA, together with its exhaustion requirements.


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Seventh Circuit: USA v. Nathaniel Ruth


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

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Sixth Circuit: United States v. Andy Maya


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

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

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