|
ERISA
Griggs v. E.I.
DuPont De Nemours & Co., September 29
Griggs sued his former employer, claiming that it misrepresented to
him the tax consequences of his temporary pension system election. The
circuit affirms judgment for Griggs, holding that he was correctly allowed
to rescind his election to take the benefit as a lump sum and to select
the lifetime annuity option, since rescission is a remedy available under
ERISA.
--------------------------------
ERISA
Griggs v. E.I.
DuPont De Nemours & Co., September 29
Griggs sued his former employer, claiming that it misrepresented to
him the tax consequences of his temporary pension system election. The
circuit affirms judgment for Griggs, holding that he was correctly allowed
to rescind his election to take the benefit as a lump sum and to select
the lifetime annuity option, since rescission is a remedy available under
ERISA.
--------------------------------------
ARBITRATION
Washington
Square Securities, Inc. v. Aune, September 23
Washington Square Securities sought to halt arbitration proceedings.
The circuit affirms judgment against Washington Square, holding that Washington
Square was bound to arbitrate by virtue of its membership in the National
Association of Securities Dealers, and the intent of the parties was to
arbitrate any disputes from losses in the investment transactions.
----------------------------
ELECTIONS
Hall v. Commonwealth
of Virginia, September 22
Minority plaintiffs, who were too few to form a voting majority in
any single-member district in the Commonwealth of Virginia, claimed that
a legislative redistricting plan denied minority voters an equal opportunity
to elect candidates of their choice. The circuit affirms dismissal of
the complaint, holding that plaintiffs could not demonstrate that their
minority group was sufficiently large and geographically compact to constitute
a majority in the single-member district under the Voting Rights Act.
----------------------------
TORT
Charleston
Area Medical Center, Inc. v. Parke-Davis, September 16
The circuit certifies to the Supreme Court of Appeals of West Virginia
the following question of West Virginia law: Does state law allow a tortfeasor
to negotiate a settlement with the injured party on behalf of itself,
before any lawsuit is filed, which would also benefit another party claimed
to be a second joint tortfeasor, and thereafter obtain a judgment against
the second joint tortfeasor in an action for contribution although the
second joint tortfeasor was not a party to the settlement?
----------------------------
EDUCATION
Weast v. Schaffer,
July 29
Parents of a child with special needs alleged that their son's Individualized
Education Program, as federally required by the Individuals with Disabilities
Education Act, was inadequate. The parties disputed who carried the burden
of proof. J. Michael holds that because the IDEA is silent on burden of
proof, the party initiating a proceeding has the burden of proof. Reversed.
------------------------
INSURANCE
Columbia Casualty
Co. v. Westfield Insurance, July 29
To facilitate insurance payment resolution for estates of two inmates
who committed suicide in jail, the circuit certifies to the Supreme Court
of Appeals of West Virginia the following question: Were the suicidal
deaths of two inmates, either or both, "occurrence" within the meaning
of the Westfield Insurance Company commercial general liability policy
at issue in this case?
------------------------
COMMUNICATIONS
Bryan v. BellSouth
Communications, July 28
Bryan alleged that BellSouth billed excessive federal Universal Service
Fund charges. Concluding that federal law governs the claim because it
seeks to alter the rate of a federal tariff, J. King holds that the action
must be dismissed pursuant to the filed-rate doctrine because adjudication
of the claim would require the court to determine a reasonable rate for
the service charge. Vacated.
--------------------------------
INSURANCE, MARITIME
Seabulk Offshore
Ltd. v. American Home Assurance, July 28
Following a maritime accident, defendant's insurance provider contended
that Seabulk's coverage was limited as an "additional insured" through
defendant. J. King disagrees and holds that Seabulk is afforded broader
coverage than defendants because Seabulk derives its coverage separately
under the additional insured endorsement, which is clear and unambiguous
and therefore enforced as written. Reversed in part.
--------------------------------
EMPLOYMENT
CSX Hotels
v. NLRB, July 26
A union alleged that a hotel interfered with the union's right to engage
in lawful picketing after the hotel contacted the police. Because a potentially
dangerous traffic condition existed, J. Shedd holds that the hotel was
justified in contacting the city authorities. Petition for review granted,
cross-application for enforcement denied.
--------------------------------
JURISDICTION, PROPER VENUE
Mitrano v.
Hawes, July 26
Mitrano's claim in Virginia for unpaid legal fees against a former
client arising from litigation in Virginia was dismissed for improper
venue. J. Wilkins holds that venue is proper because clients can fairly
be required to defend a fee suit in the same forum in which the litigation
which gave rise to the fees occurred. Vacated and remanded.
--------------------------------
CONTRACT
Velasco v.
Gov't of Indonesia, June 3
Velasco sought to compel payment of a promissory note against the Republic
of Indonesia after purchasing an invalid note issued by former staff members
of Indonesia's National Defense Security Council. J. Bennett holds that
the Foreign Sovereign Immunities Act does not apply because the note-issuing
council members were not acting in their official capacity. As a result,
defendants are immune and the suit is dismissed for lack of subject matter
jurisdiction. Affirmed.
----------------------------------
LABOR
Walton v. Greenbrier
Ford, May 28
Walton sought overtime pay from his former automobile dealership employer
under the Fair Labor Standards Act. J. Gregory holds that Walton is not
entitled to pay overtime because he fell within FLSA's automobile dealership
workers exemption. Affirmed.
-----------------------------------
ERISA
Smith v. Continental
Casualty
Smith's ERISA claim for wrongful denial of benefits did not survive
summary judgment. J. Williams holds that summary judgment was granted
in error because the district court relied exclusively on a Social Security
ruling, instead of ERISA, which does not mandate what benefits an employer
must offer. Vacated in part.
-----------------------------------
SANCTIONS
Brickwood Contractors
v. Datanet Engineering, May 26
Datanet sought sanctions against Brickwood in violation of Rule 11's
safe harbor provision. Acknowledging that Rule 11's safe-harbor provisions
may be forfeited if not timely raised, J. Traxler holds that defendant's
failure to comply with the safe-harbor requirements of Rule 11 requires
that the sanctions for filing a frivolous defamation suit must be reversed.
-----------------------------
TRIBAL JURISDICTION
Wade v. Blue,
May 26
A governance dispute led members of the Catawba Indian Tribe to file
suit in federal court against the Tribe's executive committee. The committee
argued that a Settlement Agreement between the Tribe, South Carolina,
and Congress granted exclusive state court jurisdiction over civil matters.
J. Wilkinson holds that pursuant to the agreement, South Carolina state
courts possess exclusive jurisdiction over intra-tribal disputes. Reversed.
-----------------------------
CIVIL PROCEDURE
Dixon v. Coburg
Dairy Inc, May 25
Dixon's employer removed his unlawful termination claims on the ground
that the alternative First Amendment violation theory involved a substantial
question of federal law. The circuit holds that a claim does not "arise
under" federal law if the plaintiff can support his or her claim with
even one theory that does not call for an interpretation of federal law.
Reversed.
--------------------------------------
AMENDED OPINION
US ex rel.
Wilson v. Graham County Soil, May 25
The circuit makes further clerical amendments to its April 29, 2004
opinion, earlier amended May 10, 2004.
--------------------------------------
REHEARING DENIED
Shaliehsabou
v. Hebrew Home, May 24
Petition for rehearing en banc denied.
--------------------------------------
INSURANCE
Studio Frames
v. Standard Fire Ins., May 21
Standard Fire invalidated Studio Frames' flood insurance policy after
discovering that they did not own the covered premises. Standard Fire
brought suit without filing a proof of loss. J. Luttig holds that insured
parties are not barred from recovery if an insurer repudiates the policy
before the insured was obligated to file a proof of loss because repudiation
eliminates the requirement to file a proof of loss. Affirmed in part.
-------------------------------
UNFAIR COMPETITION
Made in the
USA Foundation v. Phillips Food Inc., April 19
Made in the USA Foundation, a nonprofit organization of consumers who
exclusively buy US products alleged that Phillips mislabeled its Asian
crab cake packages by falsely designating the country of origin in violation
of the Lanham Act. J. Michael holds that consumers lack standing to sue
under the Lanham Act. Affirmed.
----------------------------------
MARITIME, COGSA
Schramm Inc.
v. Shipco Transport Inc., April 15
An expensive mobile drilling rig was damaged en route to Chile from
Baltimore when it was offloaded at an intermediate port to be restowed
on a lower deck. Under the Carriage of Goods by Sea Act, the transporter's
liability was limited to $500 in damages. J. Wilkinson holds that "discharge"
does not occur until goods are released from the vessel at the final port
of destination, and therefore restowages of goods at intermediate ports
do not qualify as discharges. Affirmed.
-----------------------------
SECURITIES
Miller v. Asensio,
April 14
Derogatory statements made by employees for one company against another
company resulted in a jury finding of liability under Rule 10b-5 with
$0 in damages. J. Motz holds that a finding of liability under Rule 10b-5
in a private securities case does not require an award of damages. Affirmed.
------------------------------------
IMMUNITY
Goldstein v.
Moatz, April 14
Goldstein, a patent lawyer, appealed an award of absolute immunity
accorded officials of the Patent and Trademark Office for their conduct
in Goldstein's attorney disciplinary investigation. J. King holds that
the officials are not absolutely immune from Goldstein's claim for damages
because they acted merely as investigators, a role that is protected only
by qualified immunity. Affirmed in part, vacated in part, and remanded.
------------------------------------
TRADEMARK
Retail Services
Inc. v. Freebies Publishing, April 13
Freebie argued that their use of the domain name "freebie.com" did
not infringe on Freebie Publishing's registered FREEBIES trademark because
the term is generic and therefore not protectible as a trademark. J. Traxler
holds that a certificate of registration alone does not immunize claims
from dispositive pre-trial motions; however, the introduction of the certificate
renders summary judgment inappropriate. Affirmed.
------------------------------------
LABOR, ERISA
Denny's v.
Cake, April 12
California officials sued Denny's in state court for violating state
labor law. Denny's sought relief under ERISA in federal court. J. Motz
holds that the Anti-Injunction Act's prohibition on enjoining state court
proceedings barred the federal court from granting Denny's relief, even
though the federal action was file first. The complaint should have been
dismissed for failure to state a claim upon which relief can be granted.
Vacated.
----------------------------------
HEALTHCARE
District Memorial
Hospital v. Thompson, April 12
Health and Human Services denied plaintiffs a special reimbursement
designed to compensate hospitals for providing large quantities of inpatient
acute care to low-income patients. The denial was based on HHS's conclusion
that dual-use beds, used to provide acute care and nursing care, were
excluded by statute from the eligibility calculation. J. Niemeyer holds
that HHS's interpretation controls. Reversed.
----------------------------------
INSURANCE
St. Paul Fire
v. American Int'l Specialty Lines, April 9
Three insurance companies paid $4 million to settle claims brought
by a food-poisoned guest against a resort. St. Paul contested that it
had no obligation to cover the settlement. AISLIC argued that indemnification
cannot be predicated on settled liability. J. Luttig holds that indemnification
may rely on a settled liability, and jury trials are not a condition for
enforcement. Because liability was based upon ordinary negligence, not
fraud or willful conduct, St. Paul has no obligation to contribute under
the indemnity agreement. Reversed.
----------------------------------
EMPLOYMENT
McCoy v. Holland,
April 9
Trustees of the United Mine Workers of America Pension Plan appealed
the reversal of their decision to deny disability pension benefits to
a worker who was injured in a mine accident, but who also suffered from
degenerative disc disease. J. Williams holds that summary judgment for
the Trustees is appropriate because substantial evidence supports the
Trustees' conclusion that the worker's degenerative disc disease was not
affected or caused by the mine accident. Reversed.
----------------------------------
IMMIGRATION
Blanco de Belbruno
v. Ashcroft, March 29
Belbruno argued that the Attorney General's immigration streamlining
regulations violated her due process rights. J. Wilkinson holds that the
streamlining regulations do not have a constitutionally impermissible
effect as they create no new legal consequences or legal standards and
affect only the body adjudicating claims. Affirmed, petition denied.
----------------------------
IMMIGRATION
Asika v. Ashcroft,
March 29
Asika argued that a deportation action against him was barred by the
five-year statute of limitations on the rescission of wrongfully granted
adjustments. In light of statutory ambiguity, the circuit gives deference
to the Attorney General and holds that the INS's longstanding interpretation
of its removal power as being unrestricted by the statute of limitations
is permissible and reasonable. Affirmed.
----------------------------
REAL ESTATE
East TN Gas
Co. v. Sage, March 22
A regional gas transportation company that proposed an interstate gas
pipeline obtained a preliminary injunction that granted immediate possession.
The Natural Gas Act grants the acquisition of property by eminent domain,
but does not provide for immediate possession. J. Michael holds that immediate
possession may be granted through the issuance of a preliminary injunction
where a gas company is entitled to condemn property under the NGA. Affirmed.
----------------------------------
CONSTITUTION
Planned Parenthood
of SC, Inc. v. Rose, March 22
Planned Parenthood challenged South Carolina's authorization of a "Choose
Life" specialty license plate. J. Michael holds that the plate-authorizing
statute violates the First Amendment because it constitutes a form of
viewpoint discrimination by the State. Affirmed.
----------------------------------
BANKRUPTCY
RCI Technology
Corp. v. Sunterra Corp, March 18
Sunterra argued that it was entitled to assume a nonexclusive license
of copyrighted software given its status as a Chapter 11 debtor in possession
and despite the licensor's objection. J. King holds that because the Transfer
Provision applies only to assignments, not assumptions, Sunterra is precluded
from assuming the license without RCI's consent. Reversed.
--------------------------
EMPLOYMENT
Mackey v. Shalala,
March 16
Mackey's alleged sex discrimination claims against the Department of
Health and Human Services did not survive summary judgment. J. Widener
affirms summary judgment, concluding that Mackey failed to demonstrate
that HHS's motive in hiring another employee was pretextual.
-----------------------------------
BANKRUPTCY
Stine v. NationsBank,
March 15
Per curiam, the circuit affirms and adopts a Court of Appeals of Maryland
opinion, which held that previously garnished wages by a judgment creditor
may be claimed as exemptions from bankruptcy estates.
-------------------------------
TORT, Constructive Notice
Hodge v. Wal-Mart
Stores, Inc., March 10
Hodge was struck by falling mirrors and alleged negligence against
Wal-Mart. J. Luttig holds that to prove constructive notice requires evidence
that an unsafe condition was foreseeable by offering evidence of when
or how the unsafe condition occurred, or whether the owner knew of the
condition. Affirmed.
-----------------------------
PETITION DENIED
Bailey v. Kennedy,
March 9
Petition for rehearing and rehearing en banc denied.
--------------------------------
TAX
Pfister v.
Commissioner of Internal Revenue, February 27
Pfister argued that payments she received from her ex-husband's retirement
pay constitute transfers of property incident to divorce, which are not
taxable. J. Gregory holds that income produced from transferred property
is a taxable distribution, and income tax applies. Affirmed.
--------------------------------------
CIVIL PROCEDURE
JTH Tax, Inc.
v. H&R Block, February 25
JTH argued that H&R Block's small advertising print did not comply
with an injunction that required "clear and prominent" disclosure in their
advertisements and contested it was error for the court to define "prominent"
by a definition of "conspicuous." J. Gregory holds that the court's reliance
on the definition was reasonable. Affirmed.
--------------------------------------
EMPLOYMENT
Mereish v.
Walker, February 20
J. Wilkinson affirms summary judgment for the US Army Medical Research
Institute of Infectious Diseases, holding that layoffs based upon a skills-based
assessment is a legitimate exercise of managerial discretion under the
Age Discrimination in Employment Act.
---------------------------------------
COMMERCE
Invention Submission
Corp. v. Rogan, February 11
Invention Submission alleged that the Patent and Trademark Office's
2002 advertising campaign on invention promotion scams targeted their
company and constituted an illegal final agency action. The circuit holds
that negative, indirect impacts from third parties do not transform the
agency's conduct into final agency action. Vacated and remanded.
|
BANKRUPTCY
Platinum Financial
v. Byrd, February 11
An attorney argued that his sizeable credit card debts were the subject
of a "bona fide dispute" in response to a creditor's involuntary bankruptcy
petition, which sought enforcement of unstayed state court judgments.
J. Wilkinson holds that no bona fide dispute exists in the absence of
any substantial factual or legal questions regarding the continued viability
of the judgments. Reversed and remanded.
---------------------------
FAIR CREDIT REPORTING ACT
Johnson v.
MBNA America Bank, February 11
MBNA argued that it had no duty to conduct a reasonable investigation
of a consumer dispute after Johnson alleged violations of the Fair Credit
Reporting Act. J. Wilkins finds that the Act requires reasonable inquiries
to be made and holds that creditors have a duty to conduct reasonable
investigations in response to notice of a consumer dispute. Judgment for
plaintiff affirmed.
---------------------------
TRADEMARK, Infringement Requirements
What-A-Burger
VA Inc. v. Whataburger Inc. TX, February 11
WHATABURGER of Texas became a federally-registered hamburger franchise
name in 1957, after What-A-Burger of Virginia had already begun operation.
J. Traxler holds that franchises operating in different territorial markets
with similar or identical marks do not have the requisite likelihood of
confusion necessary to constitute infringement. Affirmed in part.
---------------------------
CIVIL PROCEDURE, Judgments
South Atlantic
Ltd v. Riese, January 30
Riese, who obtained an award against his former business partners,
argued that a 2002 judgment by the district court improperly modified
an earlier judgment affirmed by the Fourth Circuit. J. King holds that
the 2002 judgment contravened the circuit's mandate rule by foreclosing
all possible allocation scenarios except one, thereby altering the original
judgment. Vacated and remanded.
-----------------------------------
FOIA
Wickwire Gavin
PC v. USPS, January 30
Invoking the Freedom of Information Act, the former packing supplies
provider to USPS requested data on USPS's new contract. USPS produced
the contract but withheld pricing information, citing exceptions to FOIA.
J. Gregory holds that USPS properly withheld the data under FOIA Exemption
3 in light of the Postal Reorganization Act's purpose to assure competitive
business practices throughout USPS. Affirmed.
-----------------------------------
TORT, SETTLEMENT CONTRIBUTION, NOTICE
Charleston
Area Medical Center v. Parke-Davis, January 27
After a drug overdose was administered in the emergency room, the hospital
settled the claim without notifying the drug manufacturer and later sought
contribution, alleging that the drug was mislabeled. The circuit certifies
to the Supreme Court of West Virginia the question of whether a joint
tortfeasor may be held liable in an action for contribution where it had
no notice of the settlement.
-------------------------------------
SETTLEMENT, Contribution
Lombard Canada
v. Johnson, January 27
A trucking company sought contribution after the negligence of a company
it hired to supervise an oversized load caused damage to an overpass.
The circuit requests that the Supreme Court of Appeals of West Virginia
determine whether a settling joint tortfeasor may sue another joint tortfeasor
for contribution in West Virginia.
-------------------------------------
TORT, Emotional Distress
Gantt v. Security
USA Inc., January 23
Gantt was kidnapped at gunpoint from her work place, assaulted and
held captive for six hours after her supervisor ignored a protective order
that prohibited her ex-boyfriend's access to her. J. Motz holds that it
was error to conclude that an intervening actor, the kidnapper, severs
the causal connection between Gantt's supervisor's intentional conduct
and the severe emotional distress suffered by Gantt. Affirmed in part.
---------------------------------------
INSURANCE
Progressive
Paloverde Ins. Co. v. Hartford Fire Ins. Co., January 23
Progressive & Hartford contested liability for compensating a stranded
motorist who was hit by an unidentified motorist while filling out AAA
forms on the surface of a tow truck. Because insurance follows the automobile,
not the driver, the circuit holds that Hartford is liable for compensation
as the insurance provider to the tow truck where the motorist was injured.
Reversed.
-------------------------------------
BANKRUPTCY
In re Moffett,
January 23
J. Wilkinson affirms the district court's order permitting Moffett
to redeem a vehicle repossessed prior to his filing a petition for Chapter
13 reorganization, holding that the automatic stay and turnover provisions
of the Bankruptcy Code are applicable to repossessed vehicles as part
of the rights and protections afforded to debtors.
-------------------------------------
FIRST AMENDMENT
Love-Lane v.
Martin, January 22
Love-Lane argued her employer committed First Amendment violations
by allegedly demoting her for speaking out against race discrimination.
J. Michael holds that an assistant principal's detailed claim of race
discrimination against African American students in a public school involves
a serious and substantial issue of public concern, for which retaliation
would violate the First Amendment. Vacated in part.
--------------------------------------
CORPORATIONS
Froelich v.
Senior Campus Living, January 22
Froelich contended that Senior Campus Living's reclassification of
membership interests was skewed by an appraiser to eliminate his interest
in the company. The circuit affirms the magistrate's holding that a consistent
$21 million discrepancy between the company's appraiser and three court-appointed
appraisers comprise substantial evidence.
--------------------------------------
INSURANCE
Chicago Title
Insurance Co. v. 100 Investment Ltd., January 22
Chicago Title claimed it did not have to reimburse a former insurance
holder who volunteered to resolve a preexisting title defect by repurchasing
land already sold and reconveying it to the purchaser. The circuit holds
that insurance coverage for defects in title terminate upon conveyance
absent a warranty of title. Affirmed in part.
--------------------------------------
CIVIL RIGHTS
Young v. Prince
George's County, January 22
Young, an armed, off-duty FBI agent, brought an excessive force claim
against an officer who threw him to the ground and struck him repeatedly
in the head. The circuit holds that summary judgment should not have been
granted without determining whether the officer's force was excessive.
Vacated in part.
--------------------------------------
EMPLOYMENT, Military
Hedin v. Thompson,
January 20
A commissioned officer and pharmacist contended that the military exception
that precludes access to antidiscrimination laws should not apply to Public
Health Service officers. J. Motz holds that neither Title VII nor the
Americans with Disabilities in Education Act applies to officers engaged
in non-military service in the Armed Forces because the exception applies
to all those in "active service". Affirmed.
--------------------------------------
ANTITRUST
In re: Microsoft
Corporation Antitrust Litigation, January 15
Microsoft argued that the district court's application of offensive
collateral estoppel to factual findings was too broad and unfairly denied
them an opportunity to litigate those facts. The circuit holds that the
substitution of "supportive of" from the criterion of "critical and necessary"
unfairly broadened the doctrine, creating risks of unfairness and appellate
review evasions. Reversed.
--------------------------------------
AMENDED OPINION
NLRB v. Transpersonnel,
Inc, January 8
Grammatical correction to November 13, 2003 opinion.
--------------------------------------
AMENDED OPINION
Wilson v. Ozmint,
January 8
Grammatical correction to December 17, 2003 opinion.
--------------------------------------
EDUCATION
AB v. Lawson,
January 6
The district court concluded that a school district denied a disabled
child a free appropriate public education under the Individuals with Disabilities
Education Act. The circuit holds that the IDEA does not require a program
that maximizes student potential, merely a program that provides some
educational benefit. Reversed.
-----------------------------------
EMPLOYMENT
Hill v. Lockheed
Martin Logistics, January 5
Hill's claim for sex and age discrimination alleged that the safety
reprimands she received were motivated by a discriminatory animus. J.
Traxler holds that employers are liable only for the actions and motivations
of their actual decision-makers, not the motivations of subordinate employees.
Affirmed.
--------------------------------------
EMPLOYMENT
Jeffries v.
Communication Workers, December 31
J. Wilkinson holds that economic change, not discriminatory conduct,
necessitated USAir's furloughs and layoffs after September 11. Judgment
for the airline is affirmed.
--------------------------------------
MARITIME
Lincoln v.
Reksten Management, December 29
A longshoreman was injured while loading defendant's ship. The circuit
affirms summary judgment for defendant, holding that a charter does not
create a duty by the ship owner to insure longshoremen's safety during
cargo loading.
-------------------------------------
INSURANCE
S. Wallace
Edwards Inc. v. Cincinnati Insurance, December 24
Plaintiffs filed an insurance claim for their damaged meat inventory
after the expiration of their policy's two-year claim limitation. The
circuit holds that failure to plead an insurance policy time limitation
is an affirmative defense that is waived if not affirmatively pled. Judgment
for plaintiff affirmed.
-------------------------------------
INSURANCE
S. Wallace
Edwards Inc. v. Cincinnati Insurance, December 24
Plaintiffs filed an insurance claim for their damaged meat inventory
after the expiration of their policy's two-year claim limitation. The
circuit holds that failure to plead an insurance policy time limitation
is an affirmative defense that is waived if not affirmatively pled. Judgment
for plaintiff affirmed.
--------------------------------------
ANTITRUST, Competitive Trade Practices
RL Jordan Oil
Co. v. Boardman Petroleum, December 22
Jordan Oil appealed the dismissal of its South Carolina Unfair Trade
Practices Act suit brought after a competitor sold fuel $0.02 below their
retail price. The circuit holds that the Act does not require the plaintiff
to submit evidence of an anti-competitive injury to prevail on the claim.
Reversed.
--------------------------------------
SECURITIES
Ottmann v.
Hanger Orthopedic, December 22
Investors sued Hanger Orthopedic for securities fraud under the Private
Securities Litigation Reform Act after the company lost revenue following
an acquisition and merger. The circuit holds that merely negligent conduct
is insufficient to prove the intentional or reckless conduct standard
required to support PSLRA liability. Affirmed.
-------------------------------------
TORT, EMPLOYER LIABILITY
US ex rel Harrison
v. Westinghouse Savannah River Co., December 19
The circuit finds that a single employee’s knowledge creates the requisite
scienter for an employer to be held liable under the FCA for falsely certifying
information to the government. The False Claims Act judgment against Westinghouse
is affirmed.
-------------------------------------
TAX, IRS Returns
Maroney v.
IRS, December 19
Malroney failed to submit IRS returns until after the IRS began investigating
his tax liabilities. The circuit holds that delinquent payments offered
after an investigation begins are neither honest nor reasonable attempts
to comply with tax laws and therefore do not constitute returns. Affirmed.
-------------------------------------
CLASS ACTIONS, FAIR CREDIT REPORTING ACT
Ausherman v.
Bank of America Corp., December 19
A class action suit alleged that Bank of America procured numerous
individuals’ credit reports without their knowledge or consent in violation
of the Fair Credit Reporting Act. The circuit holds that plaintiffs failed
to produce any evidence of willful or negligent acts and affirms summary
judgment.
-------------------------------------
CIVIL RIGHTS
Ballenger v.
Owens, December 17
Following his conviction for possession of drugs found in his car during
a traffic stop, Ballenger sued the state trooper and South Carolina, seeking
$1.5 million in damages. The circuit affirms dismissal based on Eleventh
Amendment immunity because the criminal conviction was not set aside.
---------------------------------
IMMIGRATION
Orquera v.
Ashcroft, December 3
The circuit holds that the amended amnesty provisions of the Immigration
Reform and Control Act preserves a right to limited judicial review that
gives the court of appeal jurisdiction to review an amnesty denial. Denial
of amnesty to a family, who were erroneously accredited visa status as
consular employees, is affirmed.
--------------------------------------
CLASS ACTIONS
Gunnells v.
Healthplan Services, October 29
A multi-employer health care plan collapsed, leaving millions of dollars
in unpaid medical bills. Purchasers and beneficiaries filed a class action
suit against the plan’s claims administrator and individual agents who
marketed and sold the plan. The circuit holds that the district court
abused its discretion when it certified a class action suit against the
individual agents, given that a fraud class action cannot be certified
when individual reliance will be an issue. Affirmed in part.
------------------------------
EMPLOYMENT
Babcock v.
BellSouth Advertising & Publishing Corp., October 28
A jury awarded $91,000 to Babcock, finding her termination violated
the Family and Medical Leave Act. J. Shedd finds that employees who accrue
their one-year anniversary of employment while on authorized leave are
eligible for protection from termination under the Act. Affirmed.
-------------------------
EDUCATION
US Dept. of
Health & Human Services v. Smitley, October 20
Plaintiffs challenged the district court’s discharge of defendant’s
HEAL loan repayments. The circuit holds that requiring a debtor to repay
HEAL educational loans should be ruled “unconscionable” only where repayment
would force the debtor to maintain a standard of living below or near
the poverty level. Reversed.
-------------------------------
INSURANCE
America Online,
Inc. v. St. Paul Mercury Insurance, Co., October 15
America Online’s primary insurer refused to cover a $15.5 million settlement
in a class action suit stemming from consumer allegations that AOL’s Version
5.0 access software damaged their computers. The circuit holds that computer
software and data are not tangible property and in the absence of any
physical damage to the computers’ hardware, damages fall outside the tangible
property clause of the policy. Affirmed.
-----------------------------------
AMENDED OPINION
USCOC v. Montgomery
Co., October 9
Amended published opinion, Amici Curiae counsel corrections.
------------------------------------
REHEARING EN BANC
Reid v. True,
October 9
Panel rehearing granted and rehearing en banc denied by order filed
October 8, 2003.
------------------------------------
REHEARING EN BANC
McMellon v.
US, October 9
Rehearing en banc granted by order filed October 8, 2003. Opinion filed
August 1, 2003 is vacated.
------------------------------------
QUALIFIED IMMUNITY
Martin v. Saint
Mary’s Dept. of Social Services, October 8
Plaintiff appealed the qualified immunity
granted to two social workers involved in the overnight forcible removal
of her two minor children from her home. The circuit holds that qualified
immunity may be granted to social workers and that where a government
official’s act is merely negligent, compensation is not constitutionally
required. Affirmed.
------------------------------------
COPYRIGHT INFRINGEMENT
Bouchat v.
Baltimore Ravens, October 8
A jury trial found the NFL mistakenly used an amateur artists’ sketch
in their production of the Ravens’ new logo. The circuit holds that in
absence of a specific showing of evidence supporting the existence of
a link between copyright infringement and speculated enhanced revenues,
the court properly awarded summary judgment to the defendants. Affirmed.
------------------------------------
REHEARING GRANTED
Dixon v. Coburg
Dairy, October 3
Rehearing en banc granted. The circuit vacates the opinion filed May
30, 2003.
-------------------------------------
CONSTITUTION
Goulart v.
Meadows, September 26
Two homeschooling mothers alleged their constitutional rights were
violated when they were denied use of space in a county community center,
under a policy prohibiting the use of county centers for private educational
instruction. The circuit holds that because the community center is a
limited public forum, exclusion of the plaintiffs’ proposed uses does
not violate rights of Free Speech or Equal Protection under the First
or Fourteenth Amendments. Affirmed.
-------------------------------------
TELECOMMUNICATIONS ACT
USCOC of Virginia
v. Montgomery County Board of Supervisors, September 10
The County denied plaintiffs’ request to construct a cellular tower
in a conservation area, but granted a permit for a shorter, less obtrusive
tower. J. Shedd finds an individual zoning decision is not a basis
for a claim under the Telecommunications Act of 1996, because interpreting
the statute to provide relief for rejections of individual applications
would effectively eliminate local control. Affirmed in part, reversed
in part.
------------------------
CLEAN WATER ACT
Treacy v. Newdunn
Associates, September 10
The Army Corp of Engineers challenged a district court ruling that
wetlands on private property were not within the jurisdiction of the State
Water Control Board pursuant to the Clean Water Act. The circuit holds
that Virginia’s definition of “state waters” to include “all water, on
the surface…including wetlands,” includes wetlands on private property.
Reversed and remanded.
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INSURANCE
State Auto
Property v. Travelers Indemnity, September 4
The district court found that Travelers owed no defense to the insured
in an underlying lawsuit, holding that use by a third party of the trademarked
name “Nissan” in a registered internet domain name was not an “advertising
injury” which was covered under the policy. The circuit finds that the
use is a misappropriation of an advertising idea, which triggers coverage.
Vacated and remanded.
------------------------------------
ENVIRONMENT
W. Virginia
Highland Conservancy v. Norton, Secretary of Interior, September 3
Environmental groups sought enforcement by the Office of Surface Mining
Reclamation & Enforcement (OSM) of protective legislation. After a successful
administrative appeal, they sought attorneys’ fees. The circuit vacates
denial of fees and remands for findings of whether plaintiffs were “substantially”
successful.
------------------------
INEFFECTIVE ASSISTANCE
Longworth v.
Ozmint, July 28
Longworth claimed that his attorney's representation of both him and
his parents constituted a conflict of interested that interfered with
his Sixth Amendment guarantee of effective assistance of counsel. Because
the parents merely paid for the attorney and had no interest that needed
representation, J. Niemeyer holds that it was not unreasonable for the
court to find that no conflict of interest occurred. Affirmed.
--------------------------------
SENTENCING
US v. Riggs,
June 3
Police officers found a revolver on Riggs, which was prohibited due
to Riggs's criminal record. At sentencing, Riggs received a downward departure
for diminished mental capacity. J. Shedd holds that Riggs is not eligible
for a downward departure because his offense involved a serious threat
of violence to the public. Vacated.
----------------------------------
SENTENCING
US
v. Kise, June 2
After pleading guilty to two counts of sexual exploitation of children,
Kise argued the court erred when it denied him acceptance of responsibility
credit at sentencing. J. Gregory agrees and holds that acceptance of responsibility
credits are necessary incentives to encourage pedophiles to disclose their
past crimes. Vacated.
--------------------------------------
AMENDED OPINION
US v. Farrow,
April 19
The court amends its April 15, 2004 opinion. On page 7, line 2, the
phrase “crime of violence” is deleted and replaced with the word “felony.”
----------------------------------
EX POST FACTO
US v. Farrow,
April 15
Farrow challenged the constitutionality of his ex-felon firearm possession
conviction on the grounds that imposing the permanent ban adopted in 1995
to a predicate conviction which occurred prior to the amendment violates
the ex post facto clause. J. Duncan concludes that because the firearm
statute increase constitutes a regulation, not a punishment, no ex post
facto violation occurred. Affirmed.
-----------------------------
FIREARMS
US v. Williams,
April 15
Williams argued that the firearm statute that prohibits possession
of a machinegun is unconstitutionally vague and therefore insufficient
to convict him of possession of a receiver as a prohibited machinegun.
Because the statute clearly specifies a "frame or receiver" as a proscribed
machinegun, J. Traxler holds that the statute is not unconstitutionally
vague. Affirmed.
-----------------------------
ARMS EXPORT CONTROL ACT
US v. Hsu,
April 14
Hsu argued that the Arms Export Control Act was unconstitutionally
vague after being convicted for exporting an encryption unit unwittingly
in violation of the US' arms embargo with China. J. Motz holds that the
regulations are not unconstitutionally vague as applied this defendant
because Hsu engaged in conduct with knowledge that it was illegal and
therefore had fair notice, regardless of how he procured the information.
Affirmed.
----------------------------------
SENTENCING
US v. Houchins,
April 14
Defendants argued that it was error to apply sentence enhancements
to their manufacture of methamphetamine convictions for risk of harm to
human life and the environment because the risk was merely “temporary.”
J. King affirms the risk enhancement concluding that the guidelines have
no temporal requirement.
----------------------------------
FAMILY LAW
US v. Bigford,
April 13
Defendant argued that he was charged with violating the Deadbeat Parents
Punishment Act for failing to pay child support without personal jurisdiction
and was therefore entitled to a default judgment. J. Ebel holds that in
a DPPA prosecution predicated on a default child support judgment, defendants
may challenge that judgment on the basis that personal jurisdiction was
lacking. Reversed and remanded.
----------------------------------
SENTENCING
US v. Blount,
April 12
Blount was sentenced for obstruction of justice by force and assaulting
a U.S. Marshall after charging the courtroom during his mother's sentencing.
He argued that a sentence enhancement was unwarranted because he had no
intent to injure the deputy. J. Niemeyer upholds the enhancement because
Blount intentionally tackled court personnel. Affirmed.
----------------------------------
CRIMINAL PROCEDURE
US v. Sosa,
April 9
Sosa sought to create an exception to the certificate of appealability
requirement in relation to his federal drug-trafficking conviction. J.
Williams holds that disappointed habeas petitioners who assert errors
by the district court must first obtain a COA, as is required by statute.
Denied and dismissed.
----------------------------------
SENTENCING, CAREER OFFENDER
US v. Brandon,
March 31
Both parties appealed Brandon's sentence for selling cocaine to federal
informants. J. Wilkins holds that Brandon should have been sentenced as
a career offender because pleading guilty to a multiple count indictment
results in multiple convictions for purposes of the career offender sentencing
guidelines. Affirmed in part.
-----------------------------
SENTENCING
US v. Rouse,
March 26
Rouse argued that his prior state sentence and his new federal drug
distribution sentences should have been imposed concurrently. J. Wilkins
holds that the sentence was correctly imposed despite error by the district
court because the prior conviction was calculated in applying Rouse's
career offender guideline. Affirmed.
----------------------------
HABEAS
In Re: Williams,
March 26
Williams moved for authorization to file his third successive habeas
corpus application in which he alleged that his murder conviction was
premised upon recently recanted testimony. J. Wilkins denies the current
motion, holding that federal law precludes the court from granting a pre-filing
authorization motion that relies exclusively on evidence that the applicant
could have relied on in his last federal collateral challenge. Denied.
----------------------------
CIVIL RIGHTS
US v. Brugman,
March 26
J. Davis finds no error and affirms defendant's conviction and sentence
for depriving another of his constitutional rights while acting under
color of law as a Border Patrol agent.
----------------------------
SEARCH
US v. Gould,
March 24
J. Garwood vacates the grant of a motion to suppress to defendant,
ruling that two police officers who discovered rifles in defendant's closet
were properly executing a protective sweep for their own safety when they
found the rifles while searching for defendant in a mobile home.
----------------------------
SENTENCING
US v. Kuilin,
March 16
Kiulin averred that the district court's valuation of $20 per ecstasy
pill improperly inflated its approximation of drugs attributable to him
because courts should be required to "err on the side of caution." J.
Luttig rejects Kiulin's contention and holds that courts need only determine
that defendant was "more likely than not" responsible for the attributed
drug quantity. Affirmed.
-----------------------------------
EVIDENCE
Idias v. US,
March 8
J. Wilkinson affirms summary judgment for the government, holding that
the government was entitled to use documentary evidence of the store's
food stamp debits and sales to make its case that Idias was guilty of
food stamp trafficking.
-------------------------------
SENTENCING
US v. Pressley,
February 27
Pressley contested his sentence enhancement under the Armed Career
Criminal Act was in error because the court predicated the enhancement
upon a conviction occurring after the sentencing offense. J. Motz holds
that subsequent convictions do not constitute "previous convictions" and
cannot serve as predicate convictions under the Act. Vacated.
--------------------------------------
PREDICATE OFFENSES
US v. Walters,
February 20
Three defendants challenged convictions predicated upon prior juvenile
adjudications in Virginia state court. J. Duncan holds that the distinction
in Virginia law, that a juvenile adjudication can be treated as a conviction,
indicates that it is not so treated as a general rule. The previous convictions
do not qualify as underlying convictions. Affirmed in part.
-----------------------
AMENDED OPINION
Wilson v. Ozmint,
February 17
The circuit amends Part VI of its December 17, 2003 opinion to consider
whether the trial court's sentencing decision was improper. Despite the
trial court's failure to quote or make citations to federal cases, the
circuit holds that it is barred from granting relief to Wilson because
the trial court's decision was not "contrary to" federal law and did not
contradict federal precedent.
-----------------------------
SENTENCING
US v. Goines,
January 28
Goines pled guilty and was sentenced to 60 months two counts of carrying
a firearm while trafficking in drugs. The circuit holds that an amendment
to the Sentencing Guidelines applies retroactively and a lower sentencing
range applies. Vacated and remanded.
-------------------------------------
PLEA
US v. Scruggs,
January 23
Scruggs violated his plea agreement when he failed to disclose facts
of a murder, and argued the Government violated his Fifth Amendment rights
by failing to inform him of his Miranda rights before questioning him.
J. Motz holds that Scruggs waived his privilege against self-incrimination
when he negotiated the voluntary plea agreement. Affirmed.
--------------------------------------
SEARCH
US v. Jones,
January 23
Officers obtained Jones's express consent to search a duffle bag where
they found keys belonging to an enclosed locked metal box containing illicit
drugs. J. Traxler holds that it was reasonable for the officer to conclude
that the consent extended to the keys and box, particularly given that
Jones did not object to the officer unlocking the box. Affirmed.
--------------------------------------
VIENNA CONVENTION, DIPLOMATIC IMMUNITY
US v. Al-Hamdi,
January 23
Al-Hamdi asserted that as the son of a diplomat, he had diplomatic
immunity under the Vienna Convention on Diplomatic Relations at the time
of his arrest for possession of a firearm. The circuit holds that Al-Hamdi
lost his diplomatic immunity on his twenty-first birthday and that possession
of an A-1 visa is insufficient to prove diplomatic status. Affirmed.
-------------------------------------
JURY, INEFFECTIVE COUNSEL
Waine v. Sacchet,
January 22
Waine claimed that his trial counsel prejudicially failed to object
to the trial court's instruction defining reasonable doubt. J. Hamilton
holds that precedent upholds the "willing to act" language used in the
instruction and notes that dicta relied upon by Waine is insufficient
to overrule Supreme Court precedent. Denied.
--------------------------------------
EVIDENCE
US v. Hodge,
January 6
Hodge argued that the court erred when it admitted evidence regarding
his prior drug transactions. J. Wilkins finds that evidence that demonstrates
motive or intent is admissible at trial. Affirmed.
-----------------------------------
IMMIGRATION
US v. Ryan-Webster,
December 22
An immigration attorney was convicted of immigration fraud after forging
employment documents necessary to procure Permanent Resident Cards for
her clients. Holding that under 18 U.S.C. § 1546(a) “other documents”
include Certification Applications and Visa Petitions, the circuit affirms
the convictions.
-------------------------------------
SENTENCING
US v. Higgs,
December 22
Higgs argued that his nine death sentences were unlawful because they
arose out of the same criminal episode. The circuit holds that separate
consecutive sentences may be imposed for multiple violations occurring
during the same criminal episode. Affirmed.
--------------------------------------
INMATE CIVIL RIGHTS
Madison v.
Riter, December 8
The circuit reverses denial of Madison's request for Kosher meals in
prison, finding no violation of the Establishment Clause in accommodating
his religious beliefs.
----------------------------------
EVIDENCE
US v. Pratt,
December 5
The circuit affirms Pratt's drug trafficking conviction and sentence,
finding the evidence sufficient and no error in the admission of audiotapes
and transcripts or in the jury instructions on multiple conspiracy.
--------------------------------------
DOUBLE JEOPARDY
US v. Alvarez,
December 4
On the government's appeal, the circuit vacates a judgment of acquittal
on drug trafficking charges, finding that the district court did not base
the judgment on the insufficiency of the evidence to establish factual
guilt, and therefore does not bar a new trial under the Double Jeopardy
Clause.
--------------------------------------
CORRECTED OPINION
US v. Wills,
December 3
Typographical errors in dates corrected.
--------------------------------------
PLEA
US v. Bowman,
October 29
Bowman’s Rule 11 motion to withdraw his guilty plea on the grounds
that he lied in pleading guilty was denied. The circuit holds that Rule
11 proceedings rest on the presumption that, absent involuntary or uninformed
pleadings, the plea is final and binding. Affirmed.
------------------------------
DRUG TRAFFICKING
US v. Klecker,
October 27
Klecker contends his conviction for distribution of 5-methoxy-N,N-diiosopropyltyptamine
(“Foxy”) as an analogue of diethyltryptamine (DET) under the Controlled
Substance Analogue Enforcement Act of 1986 should be reversed, arguing
that Foxy is not an analogue of DET. J. Wilkins finds that Foxy is an
analogue of DET because the two compounds have similar effects and identical
core structures. Affirmed.
-----------------------------
SENTENCING
US v. Stokes,
October 15
Appellant appeals his twenty-one month sentence for mailing a threatening
communication to his wife, threatening her life, the lives of her suspected
sexual partners, and the lives of their children. The circuit finds that
a single threat directed at multiple victims constitutes one threat and
is not eligible for sentencing enhancement, only a departure. Enhancement
vacated, denial of reduction affirmed, and remanded for resentencing.
-----------------------------------
EVIDENCE
US v. Wills,
October 7
Defendant appeals his convictions and
sentences for kidnapping and interstate stalking resulting in death, alleging
that it was error for the court to admit the entire movie “Casino” into
evidence, allowing both parties to play excerpts for the jury. The circuit
holds the film was relevant because the defendant made references to the
movie in taped telephone conversations. Convictions and sentences affirmed.
------------------------------------
FORFEITURE
US v. McHan,
September 29
McHan’s husband was convicted of drug trafficking and forced to forfeit
“substitute property” after hiding $1.5 million in proceeds gained through
criminal conduct. The district court allowed McHan to retain some of her
husband’s “substitute property” and the government appealed. The circuit
finds that a defendant may not defeat forfeiture by hiding the proceeds
of the illegal activity and then transferring substitute assets to a third
person. Affirmed in part, reversed in part, and remanded.
--------------------------------------
REHEARING DENIED
US v. Ferebe,
September 16, 2003
Defendant’s motion to bar the government from seeking the death penalty
was granted before trial. The government petitioned review on whether
there is an immediately appealable substantive right not to stand trial
in a capital case. Petition for rehearing and rehearing en banc
denied.
------------------------------------
JURY
US v. Curbelo,
September 11
Defendant appealed his conviction on drug charges, asserting it was
error for the trial court to proceed with the trial after one juror called
in sick. The circuit agrees, finding it was error to proceed with an 11-person
jury. Vacated and remanded for a new trial.
-----------------------------------
THREE-STRIKES
United States
v. Midgett, September
Appellant received three life sentences following conviction of three
separate offenses under federal three-strikes law. The circuit finds the
trial court erred in forcing appellant to choose between his right to
a lawyer and his right to testify on his own behalf. Vacated and remanded.
------------------------------------
CONSPIRACY
United
States v. Abdi, September 3
United States v. Abdi, September 3
Defendants appealed conspiracy sentences for financial structuring
asserting they deserve mitigated sentences due to lack of knowledge that
actions were unlawful. The government cross-appealed asserting the district
court erred in basing conviction on lesser amount than full scope of conspiracy.
The circuit upheld the government’s contention and dismissed the defendant’s
appeal. Affirmed in part, vacated in part and remanded.
------------------------------------
ERRATA
Rouse
v. Lee, September 4
The court amends its opinion filed August 11, 2003. Page 28, first
full paragraph, line 7; “an African-American man” is changed to read “a
man”.
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