Sixth Circuit Cases

Aug 20-25, 2007 6th Circuit Published Decisions ( NO Ky Published Case)

Opinion	Pub Date	Short Title/District
07a0329p.06	2007/08/21	Lacey v. Gonzales     Immigration & Naturalization Service KAREN NELSON MOORE, Circuit Judge. Petitioner Vincent Lacey (“Lacey”), a native and citizen of the United Kingdom (“UK”), petitions this court to vacate the removal order entered against him and remand his case to the Department of Homeland Security (“DHS”) for an administrative hearing. Lacey argues that the agency violated his procedural due process rights by denying him an administrative hearing prior to denying his application for an adjustment of status and entering the removal order. For the reasons set forth below, we DISMISS Lacey’s petition for want of jurisdiction.
07a0330p.06	2007/08/21	Mikulski v. Centerior Energy Corp     Northern District of Ohio at Cleveland ALICE M. BATCHELDER, Circuit Judge. The issue to be decided in the present case is whether the substantial-federal-question doctrine provides federal subject-matter jurisdiction over a state law claim on the basis that an embedded element of the claim concerns 26 U.S.C. § 312(n)(1), an accounting rule in the federal tax code. We hold that it does not.
07a0331p.06	2007/08/21	Bass v. Comm Social Security     Southern District of Ohio at Columbus KENNEDY, Circuit Judge. Paul W. Bass II (“plaintiff”) seeks review of the district court’s decision upholding the Administrative Law Judge’s (ALJ’s) denial of disability insurance benefits. He makes two primary arguments. First, he argues that the ALJ’s decision was not supported by substantial evidence, essentially because it did not give proper weight to a treating physician’s opinion. He also argues that he has submitted new and material evidence, and therefore his case should be remanded to the ALJ for a rehearing. We find that the ALJ’s decision was supported by substantial evidence and that plaintiff has not provided good reason for previously failing to submit the allegedly new and material evidence and therefore has not met the standard for a remand.
07a0332p.06	2007/08/21	Raymond v. Moyer, et al     Southern District of Ohio at Columbus KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Douglas J. Raymond (“Raymond”) appeals from the district court’s judgment dismissing his claims filed pursuant to 42 U.S.C. § 1983. Raymond filed suit against the seven then-members of the Ohio Supreme Court—Chief Justice Thomas J. Moyer, Justice Alice Robie Resnick,1 Justice Paul E. Pfeifer, Justice Evelyn Lundberg Stratton, Justice Maureen O’Connor, Justice Terrence O’Donnell, and Justice Judith Ann Lanzinger (collectively, “the defendants”)—alleging that their decision denying him admission to practice law in Ohio without examination violated the Privileges and Immunities Clause, the First Amendment, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the U.S. Constitution. The district court concluded that the defendants were entitled to judicial immunity on all of Raymond’s claims and dismissed his suit. Because the lower federal courts lack jurisdiction over Raymond’s claims under the Rooker- Feldman doctrine, however, we DISMISS the case for lack of jurisdiction.
07a0333p.06	2007/08/21	O'Hara v. Brigano     Southern District of Ohio at Cincinnati R. GUY COLE, JR., Circuit Judge. Henry O’Hara, an Ohio prisoner, filed a writ of habeas corpus under 28 U.S.C. § 2254, challenging his conviction on numerous grounds. The district court denied O’Hara habeas relief on all nine of his claims. For the reasons that follow, we AFFIRM the denial of O’Hara’s petition for issuance of a writ of habeas corpus.
07a0334p.06	2007/08/21	USA v. Gooch     Middle District of Tennessee at Nashville BOYCE F. MARTIN, JR., Circuit Judge. Brett Fitzgerald Gooch was charged in a singlecount indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a). The district judge denied Gooch’s motion to suppress. Thereafter, Gooch pled guilty but reserved the suppression issue, which is now before this court. For the reasons that follow, we AFFIRM the district court’s denial of Gooch’s motion to suppress.
07a0335p.06	2007/08/22	USA v. Catalan     TNM - Middle District of TN at Nashville COOK, Circuit Judge. Salviano Catalan was convicted for conspiracy to possess with intent to distribute more than 500 grams of cocaine and for the underlying possession. Catalan appeals his convictions, arguing that it was based on insufficient evidence, and his sentence, arguing that the district court should have neither applied a two-level enhancement for possessing a firearm nor imposed a tolling condition of supervised release. We affirm Catalan’s conviction, but vacate his sentence and remand for removal of the tolling condition in light of United States v. Ossa-Gallegos, ___ F.3d ___, No. 05-5824, 2007 U.S. App. LEXIS 14708 (6th Cir. June 21, 2007) (en banc).
07a0336p.06	2007/08/23	Compuware Corp v. Moody Inv     MIE - Eastern District of MI at Detroit ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant Compuware Corporation (“Compuware”) appeals the district court’s grant of summary judgment in favor of Defendant- Appellee Moody’s Investors Services Inc. (“Moody’s”) on Compuware’s claims of defamation and breach of contract. The district court found that Compuware needed to establish actual malice to succeed on both claims, and that Compuware failed to make the requisite showing of actual malice. On appeal, Compuware argues that it presented sufficient evidence of Moody’s actual malice to withstand summary judgment and that, in any event, the actual-malice standard should not apply to its breach of contract claim. After careful consideration, we AFFIRM.
07a0337p.06	2007/08/24	Weisbarth v. Geauga Park District     OHN - Northern District of OH at Cleveland RONALD LEE GILMAN, Circuit Judge. Denise Weisbarth, a park ranger for the Geauga Park District (GPD) in Geauga County, Ohio, was fired from her job in September of 2004. Following her termination, Weisbarth filed a First Amendment retaliation action pursuant to 42 U.S.C. § 1983, asserting that the GPD fired her due to comments she had made to a consultant hired by the GPD to interview employees as part of a departmental evaluation. The district court dismissed her complaint for failure to state a claim that she had engaged in speech protected by the First Amendment. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0338p.06	2007/08/24	USA v. Kennedy     TNE - Eastern District of TN at Greenville COOK, Circuit Judge. Ritchie G. Kennedy, who pleaded guilty to distributing child pornography in violation of 18 U.S.C. § 2252A, now appeals his 87-month sentence and life term of supervised release. Kennedy asserts that the district court violated his Fifth Amendment right against self-incrimination by drawing a negative inference from his refusal to complete a psychosexual examination prior to sentencing, and he urges that his life term of supervised release is unreasonable. We affirm.
07a0339p.06	2007/08/24	S.H.A.R.K. v. Metro Parks Serving     OHN - Northern District of OH at Akron KAREN NELSON MOORE, Circuit Judge. Plaintiffs-Appellants S.H.A.R.K. (Showing Animals Respect and Kindness) and Stephen Hindi (“Hindi”) (collectively “the plaintiffs”) appeal the district court’s order granting summary judgment to the Defendants-Appellees Metro Parks Serving Summit County (“Metro Parks”); Dave Rankin (“Rankin”); Justin Simon (“Simon”); White Buffalo, Inc. (“White Buffalo”); Anthony DeNicola (“DeNicola”); and John Doe (collectively “the defendants”). The plaintiffs sued under 42 U.S.C. § 1983, the Privacy Protection Act, 42 U.S.C. § 2000aa et seq., and state-law tort, alleging that the defendants violated their First Amendment rights. Although we disagree with the district court’s analysis, its decision to grant summary judgment to the defendants was correct; accordingly, we AFFIRM.

Aug 13-17, 2007 6th Circuit Published Decisions (1 Ky Published Case)

Opinion	Pub Date	Short Title/District
07a0310p.06	2007/08/13	USA v. Lewis     Middle District of Tennessee at Nashville McKEAGUE, Circuit Judge. Defendant appeals the revocation of his supervised release, arguing that the district court incorrectly interpreted the conditions of supervised release and relied on improper considerations in determining his sentence. For the reasons stated below, Defendant’s conviction and sentence are affirmed.
07a0311p.06	2007/08/13	USA v. Pritchett     Northern District of Ohio at Cleveland McKEAGUE, Circuit Judge. Appellant Christopher P. Pritchett entered into a written plea agreement with the government, agreeing to plead guilty to possession of cocaine with intent to distribute and to distribution of cocaine, and the government agreed to dismiss a charge of conspiracy to distribute cocaine. The plea hearing began at 9:03 a.m. At 10:33 a.m., after Appellant signed the plea agreement and the district court accepted Appellant’s guilty plea, the government filed an information pursuant to 21 U.S.C. §§ 841(b)(1)(B) and 851(a), providing notice that if an adjudication of guilt is entered against Appellant, the government would rely on Appellant’s previous felony drug conviction in order to invoke section 841’s enhanced sentencing provisions. Appellant objected to an enhanced sentence under section 841 because the government failed to file the required information before he entered his guilty plea. The district court held that Appellant had notice that the government would be filing an information and that notice fulfilled the requirements of section 851(a). Appellant filed a timely appeal, claiming that the district court was without jurisdiction to impose the enhanced penalties under section 841. For the reasons stated below, we AFFIRM.
07a0312p.06	2007/08/13	USA v. Budd     Northern District of Ohio at Youngstown McKEAGUE, Circuit Judge. Michael J. Budd appeals his conviction of one count of conspiracy and three counts of depriving another of constitutional rights under color of law. For the reasons set forth below, we affirm.
07a0313p.06	2007/08/14	USA v. Presto     Eastern District of Tennessee at Greeneville McKEAGUE, Circuit Judge. Defendant appeals the sentence of lifetime supervised release imposed for receipt and possession of child pornography transported in interstate commerce. For the reasons set forth below, we affirm.
07a0314p.06	2007/08/14	Battle Creek Health System v. Leavitt     Western District of Michigan at Lansing GRIFFIN, Circuit Judge. Plaintiffs-appellants Battle Creek Health System (“Battle Creek”) and Trinity Health-Michigan (“Trinity Health”), doing business as Mercy General Health Partners, are acute-care hospitals and participating Medicare providers located in southwestern Michigan. Plaintiffs brought the present action against defendant-appellee Michael Leavitt, Secretary of the United States Department of Health and Human Services (“defendant” or “the Secretary”), pursuant to Title XVIII of the Social Security Act, 42 U.S.C. §§ 1395-1395ggg (the “Medicare Act”) and the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (the “APA”), challenging the final administrative decision of defendant denying Medicare reimbursement for certain bad debts incurred by plaintiffs during the fiscal year 1999. The district court affirmed the Secretary’s decision, granting summary judgment in favor of defendant and denying plaintiffs’ similar motion. See Battle Creek Health Sys. v. Thompson, 423 F. Supp. 2d 755 (W.D. Mich. 2006). Plaintiffs now appeal. For the reasons set forth below, we affirm.
07a0315p.06	2007/08/15	USA v. Mendez     Eastern District of Tennessee at Chattanooga PER CURIAM. Victor Mendez was convicted of conspiracy to distribute methamphetamine and carrying a firearm during and in relation to a drug trafficking crime. He challenges his sentence, and we affirm.
07a0316p.06	2007/08/15	USA v. Watson     Eastern District of Tennessee at Knoxville R. GUY COLE, JR., Circuit Judge. Defendant-Appellant Kerry Watson appeals a district court order denying his motion to suppress evidence after he conditionally pleaded guilty to possession with intent to distribute crack cocaine and being a felon in possession of a firearm. On appeal, Watson challenges the district court’s denial of his motion to suppress, arguing that police officers conducted an illegal search when they searched a residence not specifically authorized by the search warrant, and, accordingly, all fruits obtained incident to that search should be suppressed. Because we hold that the good-faith exception to the exclusionary rule applies, we AFFIRM.
07a0317p.06	2007/08/15	Bridges v. Amer Elec Po     Southern District of Ohio at Columbus COOK, Circuit Judge. Plaintiff Kermit Bridges appeals a district court order denying his motion for class certification and dismissing his claims without prejudice. We reverse and remand for further proceedings.
07a0318p.06	2007/08/15	Lindsay v. Yates     Northern District of Ohio at Cleveland R. GUY COLE, JR., Circuit Judge. Plaintiffs-Appellants Douglas and Tina Lindsay brought suit against Defendants-Appellees JoAnn Yates, the Estate of Gene Yates, and Brent Yates (collectively, the “Yateses”), as well as Sluss Realty Company and realtor Carol Eicher, on the grounds that Defendants terminated a real-estate sales contract with the Lindsays one day after learning that the Lindsays are black. The district court dismissed the Lindsays’ complaint, concluding that they failed to plead facts establishing each element of a prima facie case as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Although the district court did not address it, the Yateses argued below, and now argue before this Court, that the Lindsays’ complaint must be dismissed for the further reason that they failed to plead facts showing that the purchase agreement executed by the parties was valid and enforceable. For the reasons described below, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.
07a0319p.06	2007/08/15	Wilson v. Mitchell     Northern District of Ohio at Cleveland R. GUY COLE, JR., Circuit Judge. Petitioner-Appellant Daniel Wilson seeks habeas relief from his conviction and death sentence for the murder of Carol Lutz. After a night of drinking, Wilson put Lutz into the trunk of her car and eventually set the car on fire, killing her. The jury convicted Wilson and found three capital specifications making him eligible for the death penalty: (1) murder committed to escape detection for kidnapping; (2) murder during kidnapping; and (3) murder during aggravated arson. The prosecution proceeded to the penalty phase relying on only the first (evading-kidnapping) specification as an aggravator, and the jury sentenced Wilson to death. Wilson now raises five claims for habeas relief; the strongest is his claim that the trial court’s instruction regarding his intoxication defense improperly shifted to Wilson the burden to disprove the knowledge element of the evading-kidnapping aggravator. We conclude, for reasons other than those relied on by the district court, that any error in this regard was harmless. We further conclude that Wilson’s remaining claims are without merit. Accordingly, we AFFIRM the district court’s denial of habeas relief.
07a0320p.06	2007/08/16	Wilcher v. Akron     Northern District of Ohio at Akron R. GUY COLE, Jr., Circuit Judge. Defendant-Appellant Clarence Howard Brown appeals his federal conviction for kidnapping, transportation of a minor with intent to engage in criminal sexual activity, and sex trafficking of children. Brown contends that pre-arrest delay violated his due-process rights and that post-arrest delay before trial violated his speedy-trial rights. Because Brown is not entitled to relief, we AFFIRM.
07a0321p.06	2007/08/16	USA v. Brown     Eastern District of Michigan at Detroit R. GUY COLE, Jr., Circuit Judge. Defendant-Appellant Clarence Howard Brown appeals his federal conviction for kidnapping, transportation of a minor with intent to engage in criminal sexual activity, and sex trafficking of children. Brown contends that pre-arrest delay violated his due-process rights and that post-arrest delay before trial violated his speedy-trial rights. Because Brown is not entitled to relief, we AFFIRM.
07a0322p.06	2007/08/16	USA v. Ayoub     Eastern District of Michigan at Detroit R. GUY COLE, Jr., Circuit Judge. Defendant-Appellant Michael Ayoub appeals his federal convictions for being a felon in possession of a firearm and for possessing marijuana with intent to distribute it. He contends that (1) the evidence should have been suppressed, because the officers who searched his parents’ home without a warrant did not obtain valid consent for the search; (2) the convictions must be reversed because stipulations to essential elements of the charges were never admitted into evidence; and (3) evidence of his prior drug-related activity was unduly prejudicial and, therefore, improperly admitted as evidence of prior bad acts under Federal Rule of Evidence 404(b). As discussed below, each of these contentions is without merit. We therefore AFFIRM.
07a0323p.06	2007/08/16	Reynolds v. Bagley     Northern District of Ohio at Akron BOYCE F. MARTIN, JR., Circuit Judge. Petitioner Lawrence Reynolds was convicted and sentenced to death by an Ohio jury for the 1994 murder of Loretta Foster. After exhausting his state court appeals, both direct and collateral, he filed a petition for habeas corpus in federal district court. The district court denied Reynolds’s petition, and we now AFFIRM the district court.
07a0324p.06	2007/08/16	Davis v. USA     Northern District of Ohio at Toledo RONALD LEE GILMAN, Circuit Judge. The district court dismissed John J. Davis’s complaint due to the lack of subject matter jurisdiction. Davis had sought a declaratory judgment to determine the amount of financial support that he owes to his wife, from whom he is legally separated, under an Affidavit of Support that the government required him to file on her behalf when she immigrated to the United States from Ukraine. This suit came after a state court in Ohio enforced the Affidavit by obligating Davis to pay his wife monthly support. But Davis contends that his cause of action stems from an enforceable contract between himself and the government that arises under federal law, despite the prior state-court ruling. He thus argues that he has properly established subject matter jurisdiction. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0325p.06	2007/08/16	Nichols v. USA     Middle District of Tennessee at Nashville KAREN NELSON MOORE, Circuit Judge. Petitioner-Appellant Thomas Albert Nichols (“Nichols”) appeals from the district court’s judgment denying his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Nichols argues that his counsel was constitutionally ineffective for failing to challenge enhancements to his Guidelines range. Nichols argues that, based on Apprendi v. New Jersey, 530 U.S. 466 (2000), his counsel should have raised a Sixth Amendment challenge to the sentencing enhancements, even though Nichols was sentenced in 2002, more than two years before the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). Because Apprendi cast the constitutionality of the Federal Sentencing Guidelines into considerable doubt, and because the enhancements to Nichols’s Guidelines range directly presented circumstances that were called into question by Apprendi, we conclude that Nichols’s counsel was constitutionally ineffective for failing to preserve a Sixth Amendment challenge to his sentence, and we therefore REVERSE the judgment of the district court, VACATE Nichols’s sentence, and REMAND the case for resentencing.
07a0326p.06	2007/08/16	USA v. Cody     Eastern District of Tennessee at Greeneville RONALD LEE GILMAN, Circuit Judge. A federal jury convicted Talmadge Cody on four counts of a six-count indictment relating to his role in two robberies committed in Greene County, Tennessee in February of 2004. Prior to his trial, Cody had moved to sever two “prejudicially joined” counts of the indictment that charged him with escaping from the custody of the Greene County Sheriff’s Department following his arrest. He had also moved to dismiss two other counts relating to one of the robberies on the ground that the government had lost or destroyed relevant, potentially exculpatory evidence. Finally, he had filed a motion to suppress the in-custody statements that he had made to the investigating officers on the ground that his expressed suicidal ideations at the time rendered those statements involuntary. The district court denied all three of Cody’s pretrial motions. Cody challenges each of these denials on appeal, as well as three additional adverse evidentiary rulings made by the district court during the course of the trial. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0327p.06	2007/08/16	USA v. Burns     Middle District of Tennessee at Nashville COOK, Circuit Judge. William Lavelle Burns pleaded guilty to being a felon in possession of a firearm. Burns challenges the district court’s application of a sentence enhancement, as well as the reasonableness of his sentence. We affirm.
07a0328p.06	2007/08/16	Bryson v. Regis Corp     Eastern District of Kentucky at Lexington R. GUY COLE, JR., Circuit Judge. Plaintiff-Appellant Karen Bryson appeals the grant of summary judgment to Defendant-Appellee Regis Corporation1 on Bryson’s claims of (1) retaliation in violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.; (2) retaliation in violation of the Kentucky Civil Rights Act (“KCRA”), Ky. Rev. Stat. § 344.010 et seq.; and (3) disability discrimination in violation of the KCRA, Ky. Rev. Stat. § 344.0101 et seq. Bryson also appeals the district court’s denial of her motion for partial summary judgment on her disability-discrimination claim. For the reasons set forth below, we REVERSE the district court’s grant of summary judgment on Bryson’s FMLA-retaliation and disability-retaliation claims and REMAND for further proceedings. We AFFIRM the district court’s grant of summary judgment to Regis on Bryson’s disability-discrimination claim and AFFIRM the district court’s denial of Bryson’s motion for partial summary judgment.

Aug 6-10, 2007 6th Circuit Published Decisions (1 Ky Published Case)

Opinion	Pub Date	Short Title/District
07a0297p.06	2007/08/07	USA v. Ellis     Northern District of Ohio at Cleveland GRIFFIN, Circuit Judge. Plaintiff, the United States of America, appeals an order of the district court granting defendant Dewayne Ellis’s motion to suppress. The government argues that the district court erred by suppressing incriminating evidence seized during a traffic stop and defendant’s post-arrest statements. For the reasons set forth below, we agree and reverse and remand.
07a0298p.06	2007/08/07	UAW v. GMC     Eastern District of Michigan at Detroit SUTTON, Circuit Judge. The fortunes of the General Motors Corporation and the Ford Motor Company, two of the world’s largest auto makers and two of this country’s largest employers, have risen and fallen many times over the last 50 years. Their most recent economic challenges stem from a variety of factors, including the emergence of vigorous international competition, the everchanging preferences of the American consumer and the fiscal strain of maintaining healthcare benefits for retirees well in excess of those provided by their foreign competitors. In 2005, GM and Ford tried to address one of these issues by reducing retiree healthcare benefits, only to be challenged by the International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America (the UAW), which represents hourly workers at both companies and which negotiated these healthcare benefits in the first place. Insisting that the retirees’ healthcare benefits had vested and could not be modified without the retirees’ consent, the UAW filed this declaratory-judgment action and eventually proposed a class of retirees from GM and Ford to defend its position. Through two similar agreements, the companies, the UAW and the classes proposed to settle their differences. A small percentage of retirees from each company (less than one half of one percent) objected to the proposed settlements and, when the district courts rejected their objections after a fairness hearing, appealed to our court. We have consolidated the appeals and now affirm.
07a0298p.06	2007/08/07	UAW v. Ford Motor Co     Eastern District of Michigan at Detroit See UAW v. GMC above
07a0299p.06	2007/08/08	USA v. Garcia, Nicholas     Eastern District of Michigan at Bay City ALICE M. BATCHELDER, Circuit Judge. Defendant Nicholas Garcia (“Garcia”) was indicted on one count of conspiring to possess with intent to distribute 1,000 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. The jury found Garcia guilty of this charge, and the district court sentenced him to 360 months’ imprisonment. On appeal Garcia contends that (1) the district court erred in denying the motion to suppress evidence found on his person and in the vehicle in which he was riding; (2) the district court erred in denying the motion to suppress evidence discovered during a search of his residence; (3) a prior Sixth Circuit panel erred in upholding the timeliness of the fourth superseding indictment issued against him; and (4) his case should be remanded for re-sentencing in light of United States v. Booker, 543 U.S. 220 (2005). We find no err in the district court’s admission of evidence found on Garcia’s person and in the vehicle in which he was riding, and conclude that the district court committed harmless error in admitting some of the evidence discovered during the search of his residence. Furthermore, we apply the law of the case doctrine in refusing to address the timeliness of the fourth superseding indictment. We therefore AFFIRM Garcia’s conviction, but because we conclude that his sentencing violated Booker, we VACATE his sentence and REMAND for further proceedings.
07a0300p.06	2007/08/08	USA v. High Tech Prod Inc     Eastern District of Michigan at Detroit KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant the Government of the Russian Federation (“Russia”) appeals from the district court’s order absolving Plaintiff-Appellee the United States of America (“United States”) of all potential liability with respect to certain isotopes. After taking custody of the isotopes, the United States filed an interpleader action to determine possessory and ownership rights to the property. Through a series of settlements and court orders, the parties in interest Defendant-Appellant Russia, Defendant the Government of Canada (“Canada”), Defendant High Technology Products, Inc. (“High Technology”), and Defendant Horos, Inc. (“Horos”)—resolved their competing claims to the isotopes. Over Russia’s objection, however, one of the district court’s orders memorializing the resolution of the claims to the isotopes released the United States of any liability with respect to the isotopes. Although the United States was entitled as a matter of course in the interpleader action to be discharged of all liability related to the distribution of the isotopes, because the United States was not similarly entitled to be discharged of all other liability related to the isotopes, including damage to the isotopes while in the custody of the United States, we VACATE the order of the district court and REMAND for further proceedings.
07a0301p.06	2007/08/08	USA v. Keller     Eastern District of Kentucky at Lexington R. GUY COLE, JR., Circuit Judge. Stephen Keller and Grant Sutherlin were convicted of multiple counts of fraud and money laundering in connection with their operation of a viatical company. At their initial sentencing hearings, the district court imposed the lowest possible sentence on both defendants, pursuant to the then-mandatory Sentencing Guidelines. Sutherlin was sentenced to 151 months of imprisonment and Keller received 168 months. Following the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), both defendants’ sentences were vacated and their cases remanded for re-sentencing. On remand, the district court imposed sentences on each defendant that varied downward substantially from their respective Guidelines’ minimums. The court sentenced Sutherlin to 36 months in prison, representing a variance of 115 months; Keller was sentenced to 120 months in prison, which constitutes a variance of 48 months. The Government now appeals Sutherlin’s sentence as substantively unreasonable. In addition, Keller appeals his sentence as both procedurally and substantively unreasonable. For the reasons described below, we VACATE Sutherlin’s sentence and REMAND for re-sentencing, and AFFIRM Keller’s sentence.
07a0302p.06	2007/08/09	USA v. Amos     Middle District of Tennessee at Columbia BOYCE F. MARTIN, JR., Circuit Judge. This case presents a single legal question of first impression in this Circuit — whether a defendant’s prior conviction for possession of a sawed-off shotgun can serve as a predicate “violent felony” for purposes of a sentencing enhancement under the Armed Career Criminal Act. The district court held that it does not and for the following reasons, we AFFIRM its decision.
07a0303p.06	2007/08/09	Grand Trunk Western v. Brhd of Maintenance     Northern District of Ohio at Toledo JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Brotherhood of Maintenance of Way Employees Division (“the Union”) appeals the district court’s grant of a preliminary injunction to plaintiff-appellee Grand Trunk Western Railroad, Inc. (“GTW”) enjoining the Union from exercising self-help over a dispute concerning changes to the parties’ Collective Bargaining Agreements (“CBAs”) and enforcing the requirements of the Railway Labor Act, 45 U.S.C. §§ 151-1164 (“RLA”). The Union argues that the Norris-LaGuardia Act, 29 U.S.C. § 101 et seq. (“NLGA”), deprived the district court of jurisdiction to grant an injunction to GTW because the Union alleges that GTW has not made every reasonable effort to negotiate a new labor agreement. For the following reasons, we affirm the decision of the district court.
07b0010p.06	2007/08/09	In re: R.W. Leet Ele v.     Western District of Michigan at Grand Rapids MARCIA PHILLIPS PARSONS, Bankruptcy Appellate Panel Judge. In this preference action under 11 U.S.C. § 547, the bankruptcy court granted summary judgment in favor of the defendant, concluding that the alleged preferential payments had not been property of the debtor because they were trust funds under Michigan law. For the reasons that follow, the decision will be reversed and the proceeding remanded.
07a0304p.06	2007/08/10	Murphy v. Stargate Defense Sys     Northern District of Ohio at Cleveland ALAN E. NORRIS, Circuit Judge. This appeal arises out of the sale of Spectrum Infrared, Inc. (“Spectrum”), an Ohio corporation owned by plaintiffs John Murphy and James Smith. In 2005, Spectrum was sold to Stargate Defense Systems Corp. (“Stargate”), a business operated by defendants James Woodruff and Daniel Ross. The sale was structured as a stock exchange: plaintiffs traded their stock in Spectrum for stock in Stargate. It turned out, however, that the Stargate stock was worthless. Consequently, plaintiffs filed suit seeking to rescind the sale. At the same time, they sought to rescind two stock purchases made in 2002 that involved defendant Woodruff. Althoughthe amended complaint invokes both federal and state-law causes of action, the only issue on appeal concerns the scope of Ohio’s Securities Act (“Blue Sky Law”), Ohio Rev. Code § 1707.01 et seq. Following a bench trial, the district court granted plaintiffs the right to rescind the 2002 stock purchases pursuant to Ohio’s Blue Sky Law, but it denied relief on all other grounds. Plaintiffs appeal the district court’s ruling only so far as it denied them rescission of the 2005 stock exchange. Defendants cross appeal, arguing that plaintiffs should not have been able to rescind the 2002 stock purchases. For the reasons that follow, the district court’s decision permitting plaintiffs to rescind the 2002 stock purchases is affirmed. However, because we disagree with the district court’s conclusion that plaintiffs were not stock purchasers protected by Ohio’s Blue Sky Law we reverse that portion of its decision.
07a0306p.06	2007/08/10	Kuhn v. Sulzer Orthopedics     Northern District of Ohio at Cleveland R. GUY COLE, JR., Circuit Judge. Appellants Susie and Michael Kuhn (collectively, the “Kuhns”) appeal the district court’s order denying their motion, brought under Federal Rule of Appellate Procedure 4(a)(6), to reopen the time to file an appeal of the district court’s order enjoining them from obtaining certain discovery from Appellee Sulzer Orthopedics, Inc. (“Sulzer”) and from prosecuting certain claims in their Texas state-court action against their former lawyer, Appellee Tommy Jacks. The Kuhns argue that the district court abused its discretion in denying their motion to reopen because they satisfied all the requirements of Rule 4(a)(6) and their counsel had no duty to monitor periodically the district court’s docket for orders affecting the Kuhns’s legal rights that they might have wanted to appeal. For the reasons described below, we AFFIRM the judgment of the district court.
07a0307p.06	2007/08/10	Richey v. Bradshaw     Northern District of Ohio at Cleveland R. GUY COLE, JR., Circuit Judge. This case is on remand to us from the Supreme Court. On January 25, 2005, we reversed the judgment of the district court denying Kenneth Richey’s petition for a writ of habeas corpus, on the grounds that (1) Ohio law did not permit Richey to be convicted of aggravated felony murder on a transferred-intent theory, and (2) the state courts unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984), in holding that Richey had not been deprived of constitutionally effective representation. Richey v. Mitchell, 395 F.3d 660 (6th Cir. 2005). The Supreme Court vacated our judgment, holding that we erred in our interpretation of Ohio law on the transferred-intent issue. Further, the Court held that we had not properly examined whether the arguments and evidence that formed the basis for our ruling on Richey’s ineffectiveassistance- of-counsel claim were procedurally barred. Bradshaw v. Richey, 546 U.S. 74 (2005). Consistent with the Supreme Court’s remand instructions, we now revisit Richey’s ineffective-assistance claim. For the reasons set forth below, we hold that Richey did not procedurally default this claim, that we properly considered it on the merits, and that the record supports our original conclusion granting Richey habeas relief because his trial attorney did not function as counsel guaranteed by the Sixth and Fourteenth Amendments.
07a0308p.06	2007/08/10	USA v. Thomas     Western District of Michigan at Grand Rapids KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Kenneth Roy Thomas (“Thomas”) was convicted by a jury on one count of bank robbery. After a prior appeal and remand for resentencing, Thomas now appeals his sentence of 240 months in prison, five years of supervised release, a $4,500 fine, and ten dollars in restitution. Thomas argues that his sentence is unreasonable because the district court did not consider adequately the factors set forth in 18 U.S.C. § 3553(a). Because the record does not make clear the district court’s consideration of the relevant § 3553(a) factors and its reasoning for imposing the sentence that it did, we VACATE Thomas’s sentence and REMAND the case for resentencing.
07a0309p.06	2007/08/10	Elliot v. Lator     Eastern District of Michigan at Detroit BOYCE F. MARTIN, JR., Circuit Judge. This case poses a curious procedural and jurisdictional question: In a civil rights action in which defendants are denied qualified immunity by the district court, do we have jurisdiction to hear an interlocutory appeal of this denial under the exception carved out in Mitchell v. Forsyth, 472 U.S. 511 (1985), if the defendants have not accompanied their assertion of qualified immunity with a motion to dismiss or for summary judgment? We hold that failure to file such a motion runs contrary to the key purpose of qualified immunity, as articulated in Mitchell and earlier in Harlow v. Fitzgerald, 457 U.S. 800 (1982), immunity from liability. Neither Mitchell nor Harlow support interlocutory appellate jurisdiction given the procedural history of the instant case. Quite to the contrary, both counsel against it.

Jul. 30-Aug 3, 2007 6th Circuit Published Decisions (1 Ky Published Case; 2 NPO)

Opinion	Pub Date	Short Title/District
07a0287p.06	2007/07/30	Natl Sur Corp v. Hartford Cslty Ins     Western District of Kentucky at Louisville INSURANCE: EXCESS INSURER'S RECOURSE AGAIN PRIMARY INSURER FAILURE TO SETTLE WITHIN LIMITS ROGERS, Circuit Judge. When a primary insurer against tort liability refuses to settle and then loses at trial for amounts greater than its coverage limits, what recourse does an excess insurer have against the primary insurer? This case involves the issue of whether, under Kentucky law, an excess insurer can recover against a primary insurer pursuant to the doctrine of equitable subrogation, either for the primary insurer’s failure in good faith to settle a claim or for the primary insurer’s failure to investigate whether an insured has other insurance. The excess insurer in this case, National Surety Corporation, argues that the primary insurer, Hartford Casualty Insurance Company, acted in bad faith by failing to settle a tort claim against their mutual insured, Sufix U.S.A., and thereby exposed Sufix to excess liability.1 National Surety seeks to step into Sufix’s shoes, pursuant to the doctrine of equitable subrogation, to assert this bad-faith claim. National Surety also seeks to assert a claim against Hartford for Hartford’s failure to discover that Sufix was insured by National Surety. The district court held that National Surety did not have a cause of action under Kentucky law, and accordingly granted Hartford’s motion to dismiss. We reverse the district court’s order because the Supreme Court of Kentucky would likely recognize a cause of action in this case. Kentucky law already permits an insured to sue a primary insurer for bad faith failure to settle a claim. Kentucky law also recognizes the doctrine of equitable subrogation, which permits an insurance company to “step into the shoes” of the insured and recover what the insured would have been able to recover against a tortfeasor. Combining these two principles to allow an excess insurer to recover from a primary insurer is a logical extension of these principles and furthers Kentucky’s policy goals of encouraging fair and reasonable settlements and preventing third parties from profiting from an insured’s insurance coverage. However, the district court’s order properly dismissed National Surety’s failure-to-investigate claim because an insured does not have a cause of action under Kentucky law against its insurer for failing to discover an insured’s other sources of insurance.
07a0288p.06	2007/07/31	Michael v. Caterpillar Fin Serv     Middle District of Tennessee at Nashville RONALD LEE GILMAN, Circuit Judge. Shonta Michael, an African-American employee of Caterpillar Financial Services Corporation, filed this employment-related action arising out of a disciplinary episode that began in late January of 2004. At that time, Caterpillar management placed Michael on a 90-day performance plan in response to various complaints lodged against her. Michael alleges that Caterpillar (1) discriminated against her by taking disciplinary action based on unfounded complaints, (2) retaliated against her for raising complaints of her own, and (3) created a racially hostile work environment. The district court granted summary judgment in favor of Caterpillar regarding all of Michael’s claims. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0289p.06	2007/07/31	Harnden v. Ford Mtr Co     Eastern District of Michigan at Detroit BOYCE F. MARTIN, JR., Circuit Judge. Plaintiff Glenn Harnden appeals the district court’s order granting summary judgment to defendant Jayco as to Harnden’s claims based on alleged defects in a Jayco-manufactured Recreational Vehicle. For the reasons below, we AFFIRM the judgment of the district court.
07a0290p.06	2007/07/31	Denhof v. Grand Rapids     Western District of Michigan at Grand Rapids MERRITT, Circuit Judge. In this employment retaliation case under Title VII and Michigan state law, plaintiffs-appellants Patricia Denhof and Renee LeClear appeal the District Court’s order granting the defendant’s alternative motions for judgment as a matter of law under Rule 50, Fed. R. Civ. P.,1 a new jury trial under Rule 59, Fed. R. Civ. P.2 and for a substantial common law remittitur of the compensatory damages awarded by the jury.3 Grand Rapids also cross-appeals six decisions of the district court, primarily related to evidentiary issues and damage computations. For the reasons discussed below, we reverse the district court’s alternative orders granting judgment as a matter of law for the defendant and a new jury trial. We affirm the grant of remittitur. We also affirm the district court’s decisions on each of the defendant’s six cross-appeals.
07a0291p.06	2007/08/02	Barber v. Overton     Western District of Michigan at Grand Rapids KENNEDY, Circuit Judge. This case involves the Michigan Department of Corrections’ (MDOC) release of several corrections officers’ social security numbers and birth dates to prisoners held at the Ionia Maximum Security Correctional Facility (IMAX), which houses male prisoners KENNEDY, Circuit Judge. This case involves the Michigan Department of Corrections’ (MDOC) release of several corrections officers’ social security numbers and birth dates to prisoners held at the Ionia Maximum Security Correctional Facility (IMAX), which houses male prisoners
07a0292p.06	2007/08/02	O'Neill v. Kemper Insurance     Southern District of Ohio at Columbus BOYCE F. MARTIN, JR., Circuit Judge. Deborah P. O’Neill brought an action against Kemper Insurance Companies and Lumbermen’s Mutual Casualty Company alleging four claims for relief: (1) declaratory judgment as to the issue of reimbursement for attorneys’ fees, costs and expenses under a professional liability insurance policy, (2) breach of contract, (3) bad faith, and (4) promissory estoppel. O’Neill moved for partial summary judgment on her claim for breach of contract. Defendants opposed her motion and moved for summary judgment on all of her claims. The district court denied O’Neill’s motion and granted defendants’ motion. We now AFFIRM.
07a0293p.06	2007/08/03	Natl Ecological v. Clifford     Western District of Tennessee at Memphis CLAY, Circuit Judge. The Stokes Creek canal is a channelized stream in western Tennessee. Defendants, the West Tennessee River Basin Authority (the “WTRBA”) and the Tennessee Department of Environment and Conservation (collectively the “State”), wish to transform 1.5 miles of this stream into a 2.4 mile “meandering channel,” which, according to the State, would mimic the natural conditions of a stream and provide significant environmental benefits. This project is known as the Stokes Creek Restoration Project (the “Restoration Project”). The State intends to implement the Restoration Project independently of the Army Corps of Engineers (the “Corps”), who is primarily responsible for the West Tennessee Tributaries Project, a federal project to improve rivers and other waterways in the same general geographic area. On October 3, 2005, the State filed a motion to clarify its obligations under a 1985 consent decree known as the “Agreed Order,” seeking a declaration from the district court that the Agreed Order did not prohibit the State from implementing the Restoration Project. Plaintiff National Ecological Foundation and Intervenors National Wildlife Federation and Tennessee Wildlife Federation, f/k/a Tennessee Conservation League (collectively “NEF”) opposed the motion on the ground that the Agreed Order prohibited the State from undertaking the Restoration Project. The district court denied the State’s motion for clarification; the State subsequently filed a motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e), which the district court also denied. The State then brought this appeal challenging the district court’s denial of its motion to alter or amend judgment. For the reasons stated below, we REVERSE the district court’s denial of the State’s motion for clarification and REMAND with instructions that the district court grant the State’s motion for clarification consistent with this opinion.
07a0294p.06	2007/08/03	Williams v. Grosse Pointe Park     Eastern District of Michigan at Detroit JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-appellant Stephanie Williams filed the instant civil rights action on behalf of Terrance Williams, Jr., against defendants-appellees the City of Grosse Pointe Park and Officer Michael Miller of the Grosse Pointe Park Police Department. In their suit under 42 U.S.C. § 1983, plaintiffs alleged that Miller violated Williams’s rights under the Fourth Amendment by subjecting him to an unreasonable seizure. Plaintiffs further alleged that Grosse Pointe Park is liable under § 1983 for the failure of its police department adequately to train Miller. The district court granted summary judgment in favor of defendants and held, as a matter of law, that Miller’s conduct in stopping Williams’s flight was objectively reasonable and that Miller therefore did not violate Williams’s constitutional rights.1 With respect to Grosse Pointe Park, the district court held that there could be no municipal liability under § 1983 in the absence of a proven constitutional violation on the part of Miller, its agent. Plaintiffs subsequently appealed, arguing that there are issues of material fact as to the reasonableness of Miller’s conduct precluding resolution of their claims against Miller and Grosse Pointe Park on a motion for summary judgment. Because we agree with the district court that no rational juror could conclude that Miller acted unreasonably, we affirm the decision of the district court.
07a0295p.06	2007/08/03	Lowery v. Euverard     Eastern District of Tennessee at Knoxville LAWRENCE P. ZATKOFF, District Judge. Plaintiffs brought suit in federal court after they were dismissed from their high school football team. Defendants brought a motion for summary judgment based on qualified immunity, which the district court denied. On appeal, Defendants argue that Plaintiffs’ dismissal was permissible under the rule governing student speech set forth in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). For the reasons set forth below, we REVERSE the district court’s denial of Defendants’ motion for summary judgment.

Nonpublished Decisions out of Kentucky

Opinion	Pub Date	Short Title/District
07a0534n.06	2007/07/30	Brewer v. Cedar Lake Lodge     Western District of Kentucky at Louisville CLELAND, District Judge. Plaintiff-Appellant Aria Brewer initiated this action against Defendant-Appellee Cedar Lake Lodge, Inc. (“Cedar Lake”) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and the Kentucky Civil Rights Act, Ky. Rev. Stat. § 344.040. Brewer alleged that her employer, Cedar Lake, decided to not hire her for a newlycreated position because of her race. The district court granted summary judgment to Cedar Lake, finding that Brewer had failed to present sufficient evidence to establish a prima facie case of discrimination either by direct or circumstantial evidence. The district court also found in the alternative that Brewer could not establish that Cedar Lake’s proffered legitimate business reason for selecting a different candidate was pretextual. Brewer appeals, asserting that she presented both direct and circumstantial evidence of discrimination sufficient to withstand Cedar Lake’s summary judgment challenge. Brewer also argues that the district court applied the incorrect standard when analyzing her prima facie case. Although we disagree with Brewer in part – she did not present direct evidence of discrimination – we agree with her that she at least presented circumstantial evidence of racial discrimination affecting the employment decision and enough evidence to show that she was similarly situated compared to the person who was awarded the position. We vacate the district court’s grant of summary judgment and remand for further proceedings.
07a0538n.06	2007/07/31	Peoples Bank & Trust v. Burns     Western District of Kentucky at Bowling Green ALICE M. BATCHELDER, Circuit Judge. Peoples Bank & Trust Co. appeals from the order of the district court affirming the decision of the bankruptcy court declining to apply the “earmarking doctrine” to a post-bankruptcy petition transfer. We reverse.
07a0540n.06	2007/08/01	Mackey v. USA     Eastern District of Kentucky at Lexington SOLOMON OLIVER, JR., District Judge. Plaintiff-Appellant, AnJanetta Mackey (“Plaintiff-Appellant”), filed this action in the United States District Court for the Eastern District of Kentucky, alleging that Defendant-Appellee, United States of America “Defendant-Appellee” or “United States”), was liable under the Federal Tort Claims Act (“FTCA”) for the negligent death of her husband, Clifford James Mackey (“Mackey”). The district court granted the United States’ motion to dismiss for lack of subject-matter jurisdiction. For the reasons that follow, we AFFIRM the judgment of the district court.