Sixth Circuit Cases

Sept. 15-19, 2008 Decisions: US 6th Circuit Court of Appeals

  PUBLISHED OPINIONS 9/15 - 9/19/2008

Opinion	Short Title/District
08a0346p.06 2008/09/15	Geoffrey Fieger v. US Attorney General     Eastern District of Michigan at Detroit RUSSELL, District Judge. Plaintiffs Geoffrey N. Fieger, Nancy Fisher, and Fieger, Fieger, Kenney and Johnson, P.C. (collectively, “Plaintiffs”) appeal the dismissal with prejudice of their action challenging an ongoing grand jury investigation into Plaintiffs’ alleged violation of federal campaign finance laws, challenging the district court’s decision that: 1) the statutory language of the Federal Election Campaign Act (the “Act”), legislative history, and case law together indicate that the Act permits the Attorney General to conduct independent investigations into suspected criminal violations of campaign contribution laws without a referral from the Federal Election Commission; 2) Plaintiffs are not entitled to have a court compel the FEC to apply the alleged terms of the Act pursuant to APA §§ 701-706; and 3) Plaintiffs are not entitled to a writ of mandamus to compel FEC action in the instant case. BACKGROUND Plaintiff-Appellant Geoffrey N. Fieger is a licensed attorney in the state of Michigan and president of the law firm Fieger, Fieger, Kenney & Johnson, PC (“FFKJ”). Plaintiff-Appellant Nancy Fisher is FFKJ’s office manager. On February 5, 2007, Plaintiffs filed a three-count complaint against Defendants Alberto R. Gonzales, United States Attorney General, and Michael E. Toner, Chairman of the Federal Election Commission (FEC). In Count I, Plaintiffs sought a declaratory judgment that the Defendants acted contrary to the plain language of the Act, which they assert bars the Attorney General and subordinate agencies from conducting an investigation of alleged violations of the Act until the FEC has investigated the matter itself and referred the matter to the Attorney General by an affirmative vote of four of its members. In Count II, they maintained that the FEC’s failure to comply with the requirements of the Act violated the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706. In Count III, Plaintiffs sought a writ of mandamus from the district court compelling the FEC to perform what Plaintiffs assert are its statutorily defined duties pursuant to the Act.
08a0347p.06 2008/09/16	Assoc Builders v. MI Dept of Labor     Eastern District of Michigan at Bay City SUTTON, Circuit Judge. “This is another Employee Retirement Income Security Act of 1974 (ERISA) pre-emption case,” De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 808 (1997), one that asks whether ERISA preempts two provisions of a Michigan law governing the training of apprentice electricians. Because “the substantive standards to be applied to apprenticeship training programs are . . . quite remote from the areas with which ERISA is expressly concerned,” and because of “the paucity of indication in ERISA and its legislative history of any intent on the part of Congress to pre-empt state apprenticeship training standards,” Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 330–31 (1997), we hold that ERISA does not preempt the provisions.
08a0348p.06 2008/09/19	USA v. Hodson     Eastern District of Kentucky at London ALICE M. BATCHELDER, Circuit Judge. In this appeal, which arises from the district court’s denial of a criminal defendant’s motion to suppress evidence seized pursuant to a warrant, we must decide whether a suspect’s ostensibly admitting to having engaged in child molestation is sufficient, without more, to establish probable cause to search that suspect’s home for child pornography. Because we conclude that it is not, we REVERSE the district court’s denial of the suppression motion, VACATE the conviction, and REMAND this case for further proceedings consistent with this opinion.
08a0349p.06 2008/09/19	Niemi v. NHK Spring Co Ltd     Northern District of Ohio at Toledo McKEAGUE, Circuit Judge. Plaintiff Richard K. Niemi devised a new method of manufacturing stabilizer bars for automobiles in 1990, a “trade secret.” He alleges he disclosed this method to defendant New Mather Metals, Inc., only after entering into an oral confidentiality agreement. Pursuant to this agreement, New Mather was allowed to use the manufacturing process in exchange for its promise to maintain its secrecy and to grant plaintiff the exclusive right to perform all design work for New Mather. In 1998, Niemi learned that New Mather had breached the agreement by entering into design contracts with other parties. Niemi brought suit for misappropriation of trade secret, breach of contract, and promissory estoppel. The district court dismissed the claims against New Mather’s parent corporation, NHK Spring Co., Ltd., for lack of personal jurisdiction and awarded summary judgment to New Mather on all of Niemi’s claims. Niemi has timely appealed these rulings. On careful consideration of the record, we uphold the district court’s dismissal of the claims against NHK Spring Co., but conclude there is sufficient evidence to create genuine issues of material fact on the trade secret and promissory estoppel claims. For the reasons that follow, the summary judgment rulings on these two claims are vacated and the matter remanded for further proceedings.
08a0350p.06 2008/09/19	USA v. Shank     Southern District of Ohio at Dayton

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Opinion	Short Title/District
08a0560n.06	Jack Tyler Engineering Company v. SPX Corporation     Western District of Tennessee at Memphis McKEAGUE, Circuit Judge. Jack Tyler Engineering Co., Inc. (“JTE”) sued several companies, including SPX Corp., over a terminated distributorship agreement. The district court granted summary judgment in favor of the defendants on all of JTE’s claims. JTE appeals the judgment on a sole claim: whether the termination of the distributorship agreement violated Tennessee Code § 47-25-1301 et seq. Two panels of this court have already considered and rejected similar claims. Because we agree with the reasoning of those panels, we affirm judgment in favor of SPX Corp.
08a0561n.06	Cindy Turnmire v. Commissioner of Social Security     Western District of Tennessee at Memphis
08a0562n.06	Reda v. Mukasey     Board of Immigration Appeals
08a0563n.06	USA v. Triana     Northern District of Ohio at Cleveland
08a0564n.06	Reddic v. Conerly     Eastern District of Michigan at Detroit
08a0565n.06	Jimmie Smith v. Home Depot USA, Inc.     Western District of Tennessee at Memphis DAMON J. KEITH, Circuit Judge. Plaintiff Jimmie Smith’s lower left leg was amputated as a result of injuries sustained while using a Krause Multimatic Ladder purchased at a Home Depot store in Tennessee. In the resulting product liability action, Defendant Home Depot USA, Inc. (“Home Depot”) appeals the district court’s grant of partial summary judgment in favor of Plaintiffs Jimmie and Georgianna Smith (“Plaintiffs”). Home Depot argues on appeal that the district court erred in finding that the present suit may be maintained against Home Depot, the seller, where, Home Depot claims, the district court has jurisdiction over the product’s manufacturer, Krause Werk GmbH and Company (“Krause-Werk”). For the following reasons, we AFFIRM.
08a0566n.06	USA v. Mason     Western District of Tennessee at Memphis
08b0015n.06	In re: Louis G. Fusco, Jr. v.     U.S. Bankruptcy Court - Columbus

Sept. 8-12, 2008 Decisions: US 6th Circuit Court of Appeals

    PUBLISHED OPINIONS - Kentucky Decisions highlighted.

Opinion	Short Title/District
08a0340p.06 2008/09/08	Mohnkern v. The Prof Ins Co     Northern District of Ohio at Toledo BOYCE F. MARTIN, JR., Circuit Judge. Plaintiff Janet Mohnkern brought suit claiming she was owed attorneys’ fees under Florida law by defendant The Professional Insurance Company. The district court granted the defendant’s motion for summary judgment, and Mohnkern now appeals that decision. We now AFFIRM.
08a0341p.06 2008/09/08	Hughes v. Region VII Area Agcy     Eastern District of Michigan at Bay City KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant/Cross-Appellee Denise Hughes (“Hughes”) appeals the dismissal of her lawsuit against Defendants-Appellees/Cross-Appellants Region VII Area Agency on Aging (“Region VII”), Region VII Executive Director Bruce King (“King”), and Region VII Assistant Director Drew Orvosh (“Orvosh”). Hughes claims that Region VII, King, and Orvosh (collectively, “Defendants”) retaliated against her exercise of First Amendment rights when she received a two-day suspension in July 2004 after a conversation with a co-worker and when she was terminated on August 6, 2004, from her position as a Program Coordinator at Region VII allegedly due to her discussions with a local newspaper reporter. Hughes later amended her complaint to include allegations that Defendants violated the Fair Labor Standards Act (“FLSA”).
08a0342p.06 2008/09/09	University of Pittsburgh v. David Townsend     Eastern District of Tennessee at Knoxville COLE, Circuit Judge. Plaintiff-Appellant University of Pittsburgh (“University”) brought suit against Defendants-Appellees David W. Townsend, Ronald Nutt, CTI Molecular Imaging, Inc. (“CTI”), and CTI PET Systems, Inc. (“CPS”) (collectively, “Defendants”), claiming that Defendants misappropriated the University’s rights and interests in a type of medical-scanning technology that the University alleges was collaboratively invented at its campus over a period of several years. The University’s complaint, as amended, asserts that Defendants, either individually or collectively, breached certain contracts, tortiously interfered with contractual relations, breached fiduciary duties, misappropriated or converted proprietary interests and rights, engaged in an unlawful conspiracy, committed fraud and misrepresentations, and were unjustly enriched by their actions. Defendants moved for summary judgment on the ground that the University’s claims were time-barred by the applicable statutes of limitations. In response, the University filed a motion for partial summary judgment. The district court granted summary judgment to Defendants and dismissed the complaint. On appeal, the University calls upon us to reverse the district court and hold that its claims were timely filed under the pertinent statutes of limitations. For the following reasons, we AFFIRM.
08a0343p.06 2008/09/09	BellSouth Tele Inc v. Farris et al AT&T v. Rudolph     Eastern District of Kentucky at Frankfort SUTTON, Circuit Judge. In 2005, Kentucky imposed a 1.3% tax on the gross revenues of telecommunications providers. Ky. Rev. Stat. Ann. § 136.616(1), (2)(b). In connection with the new tax, the legislature banned providers from “collect[ing] the tax directly” from consumers and from “separately stat[ing] the tax on the bill.” Id. § 136.616(3). The providers filed this lawsuit because they want to identify the new tax as a line item on all customer invoices to explain why they have raised prices, while the Commonwealth says that the new law prevents them from doing so. No one disputes Kentucky’s authority to impose this tax, the providers’ responsibility to pay it or Kentucky’s authority to prevent providers from switching the legal incidence of taxation to their customers. And no one disputes the providers’ right to raise prices to account for this additional cost of doing business. The question is whether the Commonwealth may permit providers to raise prices but prohibit them from using their invoices to say why without running afoul of the “freedom of speech” protections of the First (and Fourteenth) Amendment. Whether the no-stating-the-tax provision is more akin to a price-advertising ban (governed by the commercial-speech doctrine) or to a ban on protesting a new tax in the forum most likely to get consumers’ attention (governed by the political-speech doctrine) need not detain us. For it fails to satisfy even the intermediate scrutiny that applies to restrictions on commercial speech. The district court having come to a similar conclusion, we affirm. To the extent the district court also meant to invalidate the provision that bars providers from collecting the tax directly from the consumer, a point not entirely clear from the decision, we reverse that portion of its decision, as this provision regulates conduct, not speech.
08a0344p.06 2008/09/11	Talley v. Family Dollar Stores     Northern District of Ohio at Akron MERRITT, Circuit Judge. The plaintiff, Pearlie Talley, appeals the district court’s grant of summary judgment in favor of the defendants, Family Dollar Stores of Ohio (Family Dollar), John Parker, Vincent Cowles, and Ric Spring, on her claims of discrimination in violation of the Americans with Disabilities Act (ADA) and Ohio’s anti-discrimination statute and her claim for intentional infliction of emotional distress. For the reasons set forth below, and because we conclude that there is a material dispute of fact about whether Talley abandoned her job or was discharged, we AFFIRM in part, REVERSE in part, and remand for further proceedings consistent with this opinion.
08a0345p.06 2008/09/11	Rosella Hunt v. Sycamore Community School Distr Bd of Educ     Southern District of Ohio at Cincinnati JOHN R. GIBSON, Circuit Judge. Rosella Hunt appeals from the district court’s entry of summary judgment against her on her 42 U.S.C. § 1983 claim against the Board of Education of the school district that employed her and the superintendent of that school district, Dr. Karen Mantia, alleging that the defendants violated her right to substantive due process by subjecting her to dangerous working conditions in her job as a teacher’s aide for special education students. On an extra-curricular field trip to a bowling alley, an autistic girl, A--, assaulted Hunt, rupturing disks in her neck. The district court granted summary judgment to the defendants, concluding that there was no affirmative action by the school district that endangered Hunt. We affirm the judgment of the district court.

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Opinion	Short Title/District
08a0547n.06	Whitaker v. Elec Data Sys Corp     Western District of Kentucky at Louisville SARGUS, District Judge. The Appellant, Nolan Whitaker (“Whitaker”), appeals the summary judgment rendered by the district court in favor of the Appellee, Electronic Data Systems Corporation (“Electronic Data”). Whitaker contends that his former employer, Electronic Data, retaliated against him for asserting his rights under the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et. seq., interfered with his rights under the FMLA, and discriminated against him in violation of the Kentucky Civil Rights Act, Ky. Rev. Stat. After carefully reviewing the record, the applicable law, and the parties’ briefs, we are convinced that the district court did not err. The opinion issued by the district court correctly sets forth the law governing the issues raised in this case. Therefore, we AFFIRM the district court’s summary judgment for the reasons set forth in the thorough opinion of the district court.
08a0548n.06	Joe Oakley v. City of Memphis     Western District of Tennessee at Memphis
08a0549n.06	Peters v. Chandler     Western District of Kentucky at Louisville COOK, Circuit Judge. Petitioner James Allen Peters appeals from the district court’s dismissal of his petition for a writ of habeas corpus. Peters is serving a thirty-five year sentence after pleading guilty to first-degree rape and first-degree assault and then unsuccessfully attempting to withdraw his plea. Peters argues: (1) that he was denied effective assistance of counsel at his motion to withdraw his guilty plea; (2) that the trial court should have given him a Faretta warning before he argued his motion to withdraw; and (3) that he was denied effective assistance of counsel when his appointed counsel failed to obtain an expert opinion about whether his victim’s injuries sufficed to support a first-degree rape charge. Finding no merit in Peters’s claims, we affirm.
08a0550n.06	USA v. Metcalf     Eastern District of Michigan at Detroit
08a0552n.06	Hussein Dia v. Mukasey     Board of Immigration Appeals
08a0553n.06	USA v. Martin     Eastern District of Kentucky at London KENNEDY, Circuit Judge. Defendant Donald R. Martin challenges the procedural reasonableness of his sentence of 360 months of imprisonment for production of child pornography and 120 months of imprisonment for possession of child pornography, to be served concurrently. Martin argues that the district court erred in calculating his advisory United States Sentencing Guidelines (“USSG”) range by (1) applying the two-level enhancement under USSG § 2G2.1(b)(5) because the child victims were in his care, custody, or supervisory control; (2) applying the two-level adjustment under USSG § 3B1.4 because he used a minor to commit the crime; and (3) improperly “grouping” the counts under USSG § 3D1.2. Though we find that the enhancement and adjustment were properly applied, because we find that the district court erred by failing to properly group closely related counts under USSG § 3D1.2 before calculating Martin’s combined adjusted offense level, resulting in a significantly higher recommended Guidelines range, we REVERSE the judgment of the district court and REMAND the case for resentencing consistent with this opinion.
08a0554n.06	Kopyonkina, et al. v. Mukasey     Board of Immigration Appeals
08a0555n.06	USA v. Sims     Eastern District of Tennessee of Chattanooga
08a0556n.06	Roumeliote v. Long Term Disability     Southern District of Ohio at Columbus
08a0557n.06	Peltz v. Moretti     Northern District of Ohio at Cleveland
08a0558n.06	Ramirez-Felipe v. Mukasey     Board of Immigration Appeals
08a0559n.06	Przybylinski v. CSX Trans     Western District of Michigan at Grand Rapids ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant Jami Przybylinski (“Przybylinski”) appeals the district court’s order granting in part and denying in part Defendant-Appellee CSX Transportation, Inc.’s (“CSX”) motion for summary judgment and granting judgment for CSX in this case filed pursuant to the Federal Employer’s Liability Act (“FELA”), 45 U.S.C. § 51, et seq. Because we find that CSX did not breach its duty to Przybylinski, we REVERSE the district court’s determination to the contrary, but we AFFIRM the judgment in favor of CSX.

Sept. 1-5, 2008: 7th Circuit Court of Appeals Decisions

PUBLISHED OPINIONS

Opinion	Short Title/District
08a0330p.06 2008/09/02	Plinton v. County of Summit     Northern District of Ohio at Akron
08a0331p.06 2008/09/02	Slusher v. Carson     Eastern District of Michigan at Detroit COLE, Circuit Judge. This action arises from an incident that occurred on Plaintiff-Appellant Linda Slusher’s (“Slusher”) property on May 13, 2004. Slusher argues that Defendants-Appellees Michigan Deputies Cory Carson and Thomas Terry (collectively, along with Shiawassee County, “Defendants”) seized her in violation of her Fourth Amendment rights during the course of the officers’ visit to her property to aid in a neighbor’s reclamation of property pursuant to a court order. The United States District Court for the Eastern District of Michigan granted Defendants’ motion for summary judgment on all of Slusher’s claims. For the reasons below, we AFFIRM.
08a0332p.06 2008/09/02	Greenwell v. Parsley     Western District of Kentucky at Louisville ALAN E. NORRIS, Circuit Judge. Paul Parsley, the former sheriff of Bullitt County, Kentucky, fired deputy sheriff David Greenwell immediately after he learned through a newspaper article that his deputy intended to run against him in the next election. Greenwell responded by filing suit against Parsley and his chief deputy Mack (Jim) McAuliffe. The only federal cause of action included in the complaint was an allegation that defendants violated Geenwell’s First and Fourteenth Amendment right to run for political office. The district court granted summary judgment to defendants on this claim and on various state-law claims that are not at issue on appeal. Plaintiff then filed a motion to amend pursuant to Fed. R. Civ. P. 59(e), which the district court denied. The only issue on appeal concerns whether Sheriff Parsley violated Greenwell’s First Amendment right to engage in political activity. Like the district court, we hold that Carver v. Dennis, 104 F.3d 847 (6th Cir. 1997), a prior published decision of this court, controls the outcome of this case. We therefore affirm the grant of summary judgment.
08a0333p.06 2008/09/03	KY Waterways v. Johnson     Western District of Kentucky at Bowling Green CLAY, Circuit Judge. Plaintiffs, Kentucky Waterways Alliance, Sierra Club Cumberland Chapter, Kentuckians for the Commonwealth, and Floyds Fork Environmental Association, appeal the district court’s grant of summary judgment in favor of Defendants, Stephen L. Johnson, in his official capacity as Administrator of the United States Environmental Protection Agency (“EPA”), the Commonwealth of Kentucky, the Kentucky Coal Association, Associated Industries of Kentucky, the Kentucky Chamber of Commerce, and the Kentucky League of Cities, on Plaintiffs’ challenge, brought pursuant to the Administrative Procedures Act (“APA”), 5 U.S.C. § 701 et seq. (2000), of the EPA’s approval, under § 303(c) of the Clean Water Act, 33 U.S.C. § 1313(c) (2000), of Kentucky’s regulatory implementation of its Tier II water quality antidegradation rules. For the reasons set forth in parts I, II, and III-A of this opinion as well as for the reasons expressed in Judge Cook’s concurring opinion, we AFFIRM in part and REVERSE in part the district court’s opinion and order, VACATE in part the EPA’s approval of Kentucky’s Tier II antidegradation rules, and REMAND the matter to the EPA for further proceedings consistent with these opinions. For commentary on this decision at Stan Billingsley's Blog at lawreader.com, then go to 6th Circuit Decision in Antidegradation Case Rejects In Part EPA’s Approval of Kentucky Water Quality Rules
08a0334p.06 2008/09/04	Tucker v. Palmer     Eastern District of Michigan at Detroit
08a0335p.06 2008/09/04	Boykin v. Webb     Western District of Kentucky at Paducah BOYCE F. MARTIN, JR., Circuit Judge. Terrance Boykin petitioned the district court for a writ of habeas corpus. Boykin sought to overturn his state conviction for complicity to murder and wanton endangerment, arguing that he received ineffective assistance of counsel. According to Boykin, because his trial counsel represented both Boykin and his co-defendant Treon McElrath, trial counsel could not pursue facts that would have exculpated Boykin but inculpated McElrath, and thus trial counsel’s performance was constitutionally ineffective. Boykin also argues that he
08a0336p.06 2008/09/04	USA v. Kalymon     Eastern District of Michigan at Ann Arbor
08a0337p.06 2008/09/04	Koulibaly v. Mukasey     Board of Immigration Appeals
08a0338p.06 2008/09/04	Metro Hydroelectric v. Metro Parks     Northern District of Ohio at Akron JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Metro Parks appeals the district court’s grant of a preliminary injunction to plaintiff-appellee Metro Hydroelectric Company, LLC. Metro Parks argues that the district court erred in finding that subject matter jurisdiction existed in this case and that the district court abused its discretion in issuing the preliminary injunction. Because we find that no federal subject matter jurisdiction exists in this case, we reverse the decision of the district court.
08a0339p.06 2008/09/05	USA v. Obi     Western District of Michigan at Grand Rapids

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Opinion	Short Title/District
08a0539n.06	Hall v. MI St Police Dept     Eastern District of Michigan at Detroit
08a0540n.06	Salens v. Tubbs     Eastern District of Michigan at Detroit COOK, Circuit Judge. Jacqulyn Tubbs appeals pro se from an adverse grant of summary 1 judgment in this diversity action for breach of implied contract.
08a0541n.06	Guar Residential v. Homestead Mtg Co     Eastern District of Michigan at Detroit
08a0542n.06	Donna Mullins v. Goodyear Tire and Rubber Company     Western District of Tennessee at Jackson
08a0543n.06	Booth v. Henson     Western District of Michigan at Marquette
08a0544n.06	Roush v. Burt     Eastern District of Michigan at Detroit
08a0545n.06	Manley v. Ross Correctional     Northern District of Ohio at Toledo