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UNFAIR COMPETITION/BUSINESS PRACTICES,
AGRICULTURE
Been v. O.K. Industries, July 31
A class of growers who raise chickens under
exclusive contracts with defendant claimed defendant unfairly deducted
the costs of the supplies that were supposed to be included under
contract, and that defendant based their compensation on an unfair
ranking system. J. Tacha holds, on first impression, that the Packers
and Stockyards Act does not require a showing that defendant engaged
in the unfair practice with the intent to cause the injury. Though the
record contains evidence of the classic monopoly injury where
defendant is depressing the prices it pays the growers and reselling
at inflated prices, to prove defendant violated the Act, the growers
may not rely on the sum total of various practices that individually
are not likely to injure competition, but must instead prove that
specific practices have caused or are likely to cause injury. Reversed
in part and remanded.
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ATTORNEY FEES
Copart Inc. v. US Department of Labor, July 31
After the circuit reinstated a worker who had
refused to drive an unsafe vehicle for his employer the worker sought
an award of attorney fees, which the circuit denied. The
administrative court that originally heard his complaint then awarded
him $142,000 in fees based on his original motion which preceded the
circuit's ruling. J. Gorsuch holds that the law of the case doctrine
did not preclude the lower court from subsequently awarding those
fees.
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SENTENCING, IMMIGRATION
US v. Arrevalo-Olvera, July 31
Defendant received 60 months for illegal reentry
as a previously convicted felon, which was three months above the
guidelines' minimum. J. Briscoe finds that, though the trial court was
mistaken that it did not have discretion to consider a sentence below
the guideline range until it first found that a sentence within the
range would be unreasonable, it did have the discretion to impose any
sentence within the applicable range. Affirmed.
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SEARCH, DRUG OFFENDER
US v. Cortez-Galaviz, July 31
J. Gorsuch holds that information from a state
database of vehicle insurance and registration data was not unreliable
and stale as defendant claimed, but the 20-day-old report that
indicated he was uninsured was objective and particularized enough to
justify the brief traffic stop which led to defendant's arrest for
drug possession. Affirmed.
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FAMILY LAW, INTERNATIONAL LAW
Navani v. Shahani, July 30
The trial court held that a boy had been
wrongfully detained in the US by his mother when his habitual
residence was in England with his father. J. Briscoe holds that a
subsequent English court's ruling that stripped the mother of
custodial rights bars her appeal. Appeal dismissed.
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SENTENCING, IMMIGRATION
USA v. Carrasco-Salazar, July 30
Defendant, who was sentenced to 70 months for
illegal reentry, argued his 16-level sentence enhancement improperly
relied on a non-violent sex offense conviction. J. Kelly holds that he
clearly abandoned his objection when the lower court expressly brought
the objection to his attention by asking whether it had been resolved
and he responded that it had. Affirmed.
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IMMIGRATION
USA v. Chavez-Calderon, July 30
J. Kelly holds that since defendant's 57-month
sentence for illegal reentry was within the guidelines the sentencing
court met its obligation to give reasons for the sentence, and not
address every frivolous and non-frivolous argument for a more lenient
sentence. Affirmed.
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CONTRACT, COMMUNICATIONS
MediaNews v. McCarthey, July 27
A family sold a newspaper based on an oral
agreement to retain editorial control and, after a series of
transactions, to regain controlling ownership. The transactions,
though, resulted in a written agreement with the new owners. But, the
family later argued that the oral agreement persisted collaterally so
that the family could regain ownership. J. Lucero holds that the
written contract supersedes because parol evidence is irrelevant to
vary the terms of the integrated written contract when the written
agreement covers all the same terms. Also, Utah's statute of frauds
bars those tort claims that require an oral contract as an essential
element to maintaining the claim. Affirmed.
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CIVIL PROCEDURE, COMMUNICATIONS
Union Telephone v. Qwest, July 27
J. Lucero holds that the trial court properly
dismissed plaintiff's breach of tariff and contract claims under
federal law since plaintiff relied solely on state tariffs to support
the claims. Also, the tariff issues are barred by collateral estoppel
since the issues are identical to those raised and decided in a prior
adjudication. Affirmed.
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CIVIL PROCEDURE, CIVIL RIGHTS
Lane v. Simon, July 26
Plaintiffs claimed the faculty advisor to their
student newspaper was removed from that position because of a
controversy over the paper's minority news coverage. J. Lucero holds
that since plaintiffs have graduated, their third-party claim is moot
and nothing hinders the publisher and current editors from bringing
suit to vindicate their own First Amendment rights. Vacated and
remanded for dismissal.
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INSURANCE
ClearOne v. National Union, July 25
An insurer rescinded appellant's executive
liability policy when it discovered appellant's accounting practices
led to an accelerated recognition of revenue it had not yet received.
J. Tymkovich finds that appellant met three of Utah's requirements for
rescission, which were misstatement, materiality, and reliance. But it
is unclear if appellant met Utah's lack of innocence element, under
which appellant's misstatement is not innocent if it knew or should
have known the financial statement was false. Also, the lower court
failed to consider appellant's bad faith claim. Affirmed in part and
remanded.
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BANKRUPTCY
Russell v. Kuhnel, July 25
Debtors claimed a state law exemption protected
the truck they bought just before they filed for Chapter 7 protection,
even though they had no equity in the truck at the time of proceedings
since they bought it on credit. J. McConnell finds that a bankruptcy
trustee correctly argued that a rule which requires a trustee to
object to a debtor's claimed exemption within thirty days of the
creditors' meeting does not bar the trustee's objection to the
exemption. Reversed.
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DEATH PENALTY, SEARCH, JURY
US v. Barrett, July 25
Barrett was sentenced to death for killing a
police officer who was part of a raid on his home. J. Briscoe holds
that the team's warrant met the exceptions under Oklahoma state law
required for nighttime searches of occupied dwellings, and the
involvement of federal officers was permissible since they were
mentioned in the warrant alongside state officers. His indictment was
sufficiently detailed to allow for him to prepare his defense and it
was not multiplicitous or misjoined. Victim impact statements were
relevant since they showed the officer's uniqueness as an individual,
and Barrett failed to meet his burden of establishing intentional
racial discrimination during voir dire. The death penalty is supported
by his intent to kill that was established before the raid. When he
learned of his arrest warrant, he put up a sign that read, "Keep Out.
I don't give a shit who you are, if you cross my gate or come on my
property, I'll shoot," and told friends that if the police came, "he
was going out in a blaze of glory." Affirmed.
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BANKRUPTCY
Woody v. US, July 24
J. Ebel holds that Woody failed to prove that,
under the totality of circumstances, it would be "unconscionable" if
his Health Education and Assistance Loan debt were not discharged.
Woody's lack of repayment efforts despite his ability to make at least
minimal payments disqualify him from the rigorous discharge standard.
Though he faces financial difficulty based on his age, health, and
minimal retirement savings, he has steady, full-time professional
employment, yet has failed to confront the obligation he assumed, even
as he spent money on voluntary expenses such as furniture storage,
union membership, charitable contributions, and excess life insurance.
Reversed.
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IMMUNITY, GOVERNMENT
Ward v. Anderson, July 24
The trial court dismissed plaintiffs' claim that
the Wyoming Department of Family Services violated their due process
rights when the Department did not grant a full hearing into
allegations of child care facility licensing violations, such as lack
of supervision. J. Ebel holds that the Department's employees are
entitled to qualified immunity. The Department's investigation was
prompted by a disgruntled employee, not deliberately wrongful
government conduct, and upon further examination, the investigation
was dropped. Affirmed.
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SEARCH, FIREARMS
US v. Brown, July 24
Brown was convicted of being a felon in
possession after the trial court refused to suppress the handgun
police found when they responded to a 911 call, which, though
anonymous, was found to be reliable enough to provide reasonable
suspicion to detain and frisk Brown. J. Seymour holds that the
caller's knowledge was firsthand, some relevant details provided by
the caller were corroborated by the police, and the call was motivated
by a fear for the victim's safety that was more like a plea for help
from a victim than an informant's tip. Also, the caller refused to
identify himself, not because he was lying, but because he was afraid
of the armed man he was implicating. Affirmed.
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COMMUNICATIONS, CIVIL PROCEDURE
TON Services v. Qwest, July 23
TON, a payphone operator, claimed Qwest failed to
provide public access line services as required of local exchange
carriers under the Telecommunications Act. The trial court found that
the filed rate doctrine barred the relief TON sought absent an initial
state regulatory agency's administrative ruling that Qwest's filed
rates were unlawful. J. Murphy holds that the lower court misconstrued
the nature of TON's claims when it held TON challenged the
reasonableness and lawfulness of Qwest's tariff rates. However, TON
claimed that Qwest had not fulfilled its obligation to file new
intrastate tariffs with state regulatory commissions and failed to
file cost data to support the rates for existing tariffs. Though a
primary jurisdiction referral is appropriate, dismissal of TON's
action was inappropriate before a threshold determination as to the
unlawfulness of Qwest's conduct. Vacated.
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ENVIRONMENT
Forest Guardians v. US Forest Service, July 20
The trial court held the US Forest Service had
complied with the National Forest Management Act when the agency
approved logging on 2282 acres of the Rio Grande National Forest, some
of which was infested with spruce beetles. Appellants claimed the
Service did not collect actual management indicator species data
before project approval. J. Lucero finds the Service complied with
species-monitoring duties by relying on Colorado state surveys of
forest-wide trend data and on earlier survey data that was still valid
under the plan's five-year review cycle. Appellants did not preserve a
soil conservation argument since they confused the terms used in
watershed analysis with those used in the soil standard. Also, though
the Service acknowledged the project would cause a number of
significant environmental problems, including dust, noise, and diesel
fumes, the Service opted to pursue the project anyway based on other
considerations and, "idiosyncratically, the National Environmental
Policy Act does not require more." Affirmed.
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CIVIL RIGHTS, MALICIOUS PROSECUTION
Becker v. Kroll, July 19
After Medicaid fraud charges against a doctor
were dropped, the doctor sued for malicious prosecution, due process
violations, retaliation, and libel. J. Tymkovich holds that the
doctor's malicious prosecution claim would extend liability to cases
lacking arrest or incarceration beyond recognition and, since criminal
charges were dismissed before trial, the doctor's interests were
adequately protected by the Fourth Amendment, state tort law, and the
procedures used to challenge an administrative subpoena. However,
though the prosecutor is immune from liability for charging the
doctor, which happened hours after her husband testified about abusive
investigatory practices used by Utah's Medicaid Fraud Control Unit, on
remand the doctor's retaliation claim must raise an issue as to
whether a non-immune defendant influenced the decision to prosecute in
retaliation for protected speech. Also, enough evidence of malice
exists to merit a jury's consideration of her state law libel claim.
Reversed in part.
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TRIBAL LAW, GOVERNMENT
MacArthur v. San Juan County, July 18
The federal trial court refused to enforce
preliminary injunction orders issued by a Navajo district court
against the San Juan County government and its agencies because the
Navajo Nation lacked regulatory authority over many of the defendants,
the preliminary injunction was interlocutory, and defendants were
entitled to sovereign immunity. J. Kelly holds that, though the
federal court erroneously held the Navajo Nation possessed civil
jurisdiction over plaintiffs' employment and defamation claims against
the county and a county employee, the court correctly refused to
enforce the tribal court orders because no adjudicatory authority
exists in the absence of regulatory authority, which the Nation lacked
since only two members of the Nation were involved and the employment
relationships at issue were carried out on non-Indian land. Reversed
in part.
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SANCTIONS
MacArthur v. San Juan County; San Juan Health Services District, July
18
The courts below dismissed eighteen claims
related to plaintiffs' access to medical care. J. Kelly finds that
plaintiffs' counsel has persistently ignored the rules of appellate
procedure, while this court and the courts below "have been forced to
wade through a swamp of incoherent arguments," and the plaintiffs'
contentions are frivolous. Dismissed.
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SEARCH
USA v. Contreras, July 18
Defendant was arrested for meth possession during
a traffic stop where she allowed a trooper to search her trunk. After
she was released on bond she fled to Mexico. J. McConnell finds the
search was lawful and when she fled to Mexico, she did not know
whether the prosecution she was obstructing was one that would
eventually proceed in federal court or in state court. On first
impression, the sentencing guidelines enhancement for obstruction of
justice applies when a defendant's obstructive conduct occurred during
the prosecution of state charges preceding a federal indictment based
on the same underlying conduct. Affirmed.
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CIVIL RIGHTS
Callahan v. Millard County, July 16
Callahan was convicted of meth distribution based
on a raid police made without a warrant but acting on an informant's
observations. Officers were granted qualified immunity, on Callahan's
claims that the search violated his constitutional rights, based on
the "consent once removed" doctrine under which the informant's
consent allowed police to enter his home. J. Murguia holds that while
an undercover officer may summon backup officers into a home after
that officer has been invited with consent, nothing supports including
officers summoned by an informant who has been allowed into a home.
Also, Callahan's rights against unreasonable search were clearly
established since warrantless entries into a home are per se
unreasonable and police did not satisfy any established exceptions.
Reversed in part.
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TORT
Alvarado v. KOB-TV, July 13
A TV station broadcast the names of two
undercover police officers who had been accused of sexual assault.
After they were cleared by alibis and DNA evidence, the officers sued
for invasion of privacy because of threats made to them and their
families as a result of the disclosure. J. Ebel holds that the
officers failed to state a claim since the mere broadcast of their
identities and undercover status, as facts revealed in the course of
"accurate publication of newsworthy events," is not actionable as an
intentional infliction of emotional distress. Even if publishers are
aware that their actions could result in third parties making threats
to the individuals identified, publishing news under those
circumstances is not conduct beyond all possible bounds of decency.
Affirmed.
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CIVIL RIGHTS, EDUCATION
Brammer-Hoelter v. Twin Peaks Charter Academy, July 12
The principal at the charter school where
plaintiffs taught forbade them from discussing school matters with
each other or the public, but they continued to meet off-campus for
their discussions. Poor performance reviews prompted them to resign
and file employment actions for civil rights violations, but the suits
were dismissed on summary judgment. J. Kelly finds that plaintiffs'
complaints about staffing levels, salaries and their relations with
the principal were personal matters which did not amount to protected
speech, but their discussions over whether the school's code of
conduct and the restriction on their speech, and debate over the
school's charter and upcoming school board elections, involved matters
of public concern. Thus plaintiffs' freedom of speech and freedom of
association retaliation claims are valid. Reversed in part.
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SEARCH, FIREARMS
USA v. Valenzuela, July 12
Police found a sawed-off shotgun in defendant's
car. J. Baldock finds that no outside factors, such as wind or a
winding road, caused defendant's car to weave into another lane, so
police had reasonable suspicion to pull him over. The officer's
question whether the car contained weapons or "other illegal items"
did not appreciably prolong the traffic stop, even if the officer was
not actively processing the traffic ticket while asking the question.
Since defendant answered with an equivocal "not that I know of," and
the possibility of weapons in the car posed a risk, the officer
reasonably asked if he could search the car. Affirmed.
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BANKRUPTCY
Colorado Judicial Department v. Sweeney, July 11
Defendant's $89,000 restitution order, for arson
committed at age 12, was discharged below as part of the now-adult
defendant's Chapter 13 bankruptcy proceedings. J. McKay holds, on
first impression, that a delinquency adjudication is an adjudication
of status, not guilt, and therefore could not be considered a
conviction under bankruptcy statute for the purposes of making
restitution unavoidable. Bankruptcy appellate panel is affirmed.
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CONSTITUTION, ZONING
Abilene Retail v. Dickinson County, July 10
An adult bookstore's location and mode of
operation were restricted by a county zoning ordinance that the store
claimed violates the First Amendment. J. Lucero holds that the
ordinance is facially content-neutral, police may enter the store as
they are allowed to enter any retail store without violating an
expectation of privacy, but an issue exists as to whether the county
reasonably relied on studies analyzing the secondary effects of adult
businesses on surrounding communities to pass the ordinance. Reversed
in part.
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BANKRUPTCY
Redmond v. Kester, July 10
The courts below held that a married couple who
had transferred their home to a revocable trust was entitled to
bankruptcy law's homestead provision. J. Tymkovich finds that under
Kansas law the couple is entitled to the exemption since they hold an
equitable interest in the home, even if the interest results from
being beneficiaries of the trust that owns the home. Affirmed.
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SENTENCING, DRUG OFFENDER
US v. Vandam, July 10
Defendant pleaded guilty to drug trafficking and
to being a felon in possession of a firearm in exchange for a sentence
at the low end of the guideline range. The trial court arrived at a
range of 151 to 188 months and sentenced defendant to 168 months. J.
Holmes holds that the government's breach of the agreement cannot be
considered harmless so defendant is entitled to an automatic remand
and a remedy that restores meaning the plea. Vacated.
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EMPLOYMENT
Swackhammer v. Sprint/United Management, July 9
Plaintiff was fired for taking gifts from her
employer's vendors, some of which she solicited, such as entertainment
and a Concorde ride. J. Ebel holds that plaintiff failed to show that
her employer's single explanation for her termination was false or
that her treatment was different enough from another employee, whose
behavior was also investigated but who was found to have been treated
better because of a long personal friendship with his supervisor
rather than because of his gender. Thus she could not support her
claim of intentional gender discrimination. Affirmed.
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ARBITRATION
The Ridge v. Schneider, July 9
Plaintiff's challenge to an arbitration panel's
decision on the basis of improper venue was dismissed below. The
parties' arbitration agreement clearly stated that only findings of
law may be appealed while the arbitrators' findings of fact are
binding. J. Kelly finds plaintiff failed to meet the new pleading
standard under which a plaintiff's complaint must contain enough facts
to support a plausible claim rather than just a conceivable claim.
Since the parties stipulated that the arbitration panel was not
required to create a record of findings of fact and rulings of law, it
is impossible to determine what facts the panel considered or if the
venue dispute was a purely legal question. Affirmed.
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DRUG OFFENDER, CRIMINAL PROCEDURE, SEARCH
US v. Samuels, July 9
Acting on a tip, three police officers found
crack when they searched defendant's car as it sat in a convenience
store parking lot. The trial court did not suppress the evidence
despite the officers' different explanations for conducting the
search. J. O'Brien holds that the decision not to strike testimony
from an officer who talked with another officer who had not yet
testified was carefully considered below. That the second officer's
testimony conflicted with the first's showed the conversation had no
effect and a sua sponte order for testimony from the third officer
demonstrates a reasonable exercise of discretion. Also, the
credibility of the tipster was established so the search was based on
reasonable suspicion. Affirmed.
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DRUG OFFENDER, SENTENCING
USA v. Jackson, July 9
Defendant claimed that his five-year sentence was
improperly based in part on a prior conviction that resulted in a
suspended sentence. J. Gorsuch holds that under the Sixth Amendment a
federal sentencing court may take into account a defendant's previous
uncounseled misdemeanor convictions, together with any sentence that
does not result in actual imprisonment. Though the trial court was
required to disregard the portion of defendant's uncounseled
misdemeanor sentence resulting in a prison term, the court was free to
devise a sentence taking into account his prior misdemeanor
convictions and associated fine. Affirmed.
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BANKRUPTCY, TORT, CIVIL PROCEDURE
Eastman v. Union Pacific Railroad, July 6
The lower court estopped plaintiff's personal
injury action against his employer over a car accident because of his
failure to disclose the action to the bankruptcy court that heard and
granted his Chapter 7 petition as a 'no asset' bankruptcy. One year
later, the bankruptcy court learned of the tort action, reopened the
bankruptcy case and employed judicial estoppel to dismissed the suit.
Plaintiff claimed ignorance, but J. Baldock finds it impossible that
plaintiff overlooked the fact that he had been seriously injured in an
auto accident and sued his employer and eight other co-defendants for
thousands of dollars, and his "clearly inconsistent" positions in
bankruptcy and trial courts give the impression that he misled the
bankruptcy court. Affirmed.
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CIVIL RIGHTS
Novitsky v. City of Aurora, July 5
The trial court in plaintiff's criminal case
suppressed a gun police found in his pocket because he had been
unreasonably seized as he slept in the back seat of a car. The trial
court hearing his subsequent 1983 claim rejected his collateral
estoppel argument that the unconstitutionality of the officers'
actions had already been established by the suppression ruling, and
held the officers were entitled to qualified immunity for use of a
"twist lock" on his arm to control him as he exited the car. J. Henry
holds that, though plaintiff offered no resistance and there was no
evidence a crime had occurred, the police were justifiably concerned
for their safety when they first saw him in a fetal position in the
back seat at two in the afternoon, since an intoxicated person can be
unpredictable. Also, plaintiff failed to show that police violated
clearly established law in using the twist lock and the city is not
liable since the officers were not official policymakers who had a
policy of using twist locks. Affirmed.
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ATTORNEY FEES
Hackwell v. US, July 5
Plaintiffs challenged attorney fee limitations in
the Radiation Exposure Compensation Act. The lower court found that
combining costs incurred with payments for services rendered when
calculating the limit on an attorney fee is consistent with the Act's
purpose to benefit radiation-exposure victims. J. Holloway holds that
the regulation interpreting the Act's fee limitations is contrary to
the Act's plain language and is invalid. The Act distinguishes between
"services rendered" and "expenses," which demonstrates Congress'
intent to exclude expenses from the attorney-fee limitation. Any other
interpretation would mean that an attorney is likely to represent an
Act claimant only when the government agency bears most of the
client's expenses by providing the documentation necessary to support
the client's claim. Reversed.
------------------------------
SEARCH, FIREARMS
US v. McKerrell, July 5
Defendant barricaded himself in his home when
police came to arrest him on outstanding warrants. He gave up, was
arrested and taken away, after which his wife consented to a search
that revealed several guns that the trial court refused to suppress.
He argued that his barricading himself in the home conveyed his
objection to the search and that police removed him from the scene to
avoid his possible objection, which, as a co-tenant, would have
prevented a search under the US Supreme Court decision in Randolph. J.
Holloway holds that he never articulated his express refusal to a
search and that he had barricaded himself to avoid arrest, not to
erect a legal barrier at the home's threshold. Also, the police
removed defendant from the scene to carry out a lawful arrest, not to
mute his potential objection to the search, and his wife's consent to
a search was sufficient in light of his failure to object. Affirmed.
------------------------------
CIVIL PROCEDURE, CIVIL RIGHTS
Nasious v. Two Unknown B.I.C.E. Agents, July 3
Appellant was given a chance to amend his 42-page
pro se civil rights complaint and he returned with a 65-page complaint
that was dismissed for failure to provide a clear and concise
statement. J. Gorsuch holds that in the dismissal with prejudice,
which is the "death penalty of pleading punishments," the court below
failed to consider whether the trial court considered lesser sanctions
and how helpful the trial court was in explaining the pleading
requirements to the pro se litigant, such as describing what judges
and lawyers mean when they require a short and plain statement.
Reversed.
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TORT
Beugler v. Burlington Northern & Santa Fe, July 3
Defendant's employees removed a section of broken
railroad track near a crossing, and a crossing gate automatically
lowered, blocking local traffic. A railroad conductor for another
railroad was holding the gate up to allow traffic to pass when a truck
sounded its horn, causing him to twist and hurt his back. The lower
court dismissed the conductor's common law negligence claim that
defendant should have foreseen that the repairs the workers made would
create risks to the conductor. J. McConnell holds that defendant had
no duty to protect the conductor, who was the employee of another
railroad and was trained to safely and routinely lift gates, which he
had done more than 100 times. Affirmed.
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ERISA, CLASS ACTION
Flinders v. Workforce Stabilization Plan of Phillips Petroleum, July 3
The lower court held that as unionized employees,
plaintiffs were not participants in defendant's plan so they were not
entitled to the benefits the employer pays to laid-off employees. J.
Kelly finds that the denial of benefits was arbitrary and capricious
because the provisions in the plan unambiguously state that all
benefits "arranged by the company for employees generally" shall be
available to unionized employees. Reversed.
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FRAUD, SENTENCING
USA v. Flanders, July 3
The former CEO of a bank was convicted of
misapplication of bank funds and a scheme to defraud a bank over a
real estate purchase and his personal use of a 1995 Mitsubishi Eclipse
that was owned by the bank. J. McKay holds that insufficient evidence
supported the misapplication conviction and the 2-level sentencing
enhancement that led to his 96-month term, which was above the
guideline recommendation, was improperly based on his violation of an
administrative order. The lower court also failed to notify defendant
of any intent to vary his sentence upward. Reversed. |
