October 2010 Archives

Petition for Review of Secretary of Labor Rules Granted in Part

In Int'l. Union, United Mine Wkrs. of Am. v. Mine Safety & Health Admin., No. 09-1014, a petition for review of the Secretary of Labor's rules on Refuge Alternatives for Underground Coal Mines, the court granted the petition in part where the miner training requirements at issue were arbitrary and capricious because the Mine Safety and Health Administration (MSHA) failed to explain the basis for them other than to state it relied upon its "knowledge and expertise."  However, the court denied the petition in part where the MSHA gave interested parties sufficient notice and opportunity for comment on the provision on minimum refuge volume per miner.

Cocaine Possession Conviction Affirmed

In US v. Bailey, No. 07-3006, the court affirmed defendant's conviction for possession with intent to distribute 500 grams or more of cocaine, holding that 1) upon stopping defendant, the officers had probable cause to search his car because, as he conceded, a package containing cocaine was in plain view on the passenger's seat; and 2) defendant failed to show he was prejudiced by the government's late disclosure during trial that it could not locate a traffic ticket allegedly written when defendant was stopped for running a stop sign. However, the court reversed in part where the district court needed to consider defendant's policy objection to the career offender provision of the U.S. Sentencing Guidelines, section 4B1.1, in view of Kimbrough v. United States, 552 U.S. 85 (2007), which was decided after appellant's sentencing.

Denial of Rule 60(b) Motion Affirmed

In In re: Sealed Case (Bowles), No. 07-5411, a motion to vacate an arbitration award, the court affirmed the denial of appellant's Fed. R. Civ. P. 60(b) motion, holding that Rule 60(b) was unavailable to allow appellant to file a timely appeal -- a holding that was in accord with the majority of circuits holding that with the 1991 amendment adding subsection (6), Appellate 4(a)(6) became the exclusive means of reopening the time to appeal.

Securities Fraud Action Against Bank

In Bender v. Jordan, No. 08-7150, a securities fraud action against a bank, its then-directors and its president and CEO, the court affirmed the district court's order requiring the ex-directors to reimburse the bank for their defense costs, holding that, as the former directors satisfied neither the conditions for mandatory nor those for permissive entitlement, and the board made a determination embodying that fact, the former directors were obligated under the agreements to repay the bank for the cost of their legal defense.