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8th Cir.: Peabody Must Pay Retired Miners' Health Benefits

The Eighth Circuit Court of Appeals ruled that Peabody Energy must continue to pay benefits to 3,100 Patriot Coal retirees after Patriot split from its once-parent company and filed for bankruptcy.

The three-judge appellate bankruptcy panel overturned a lower bankruptcy court ruling in favor of Peabody Energy, which held the company no longer was obliged to pay the benefits. That ruling was linked to the bankruptcy of Patriot Coal Corp.

No Preferential Treatment for Unsecured Tax Claims in Chapter 13

The Eighth Circuit Court of Appeals reminds us this week that a Chapter 13 plan can't give special treatment to unsecured, non-priority tax claims.

In 2011, the Debtors filed a petition for relief under Chapter 13 of the Bankruptcy Code. Taxing authorities held unsecured non-priority claims in the Debtors' bankruptcy case. Because of the age of the tax debt and the tardy filing of tax returns for pre-petition years, the tax debt was non-priority debt and a substantial portion of it is non-dischargeable.

Court Discharges $200K in Student Debt Based on Mental Illness

Higher education is expensive, and the cost keeps rising. A growing number of people have started warning of an education bubble to rival the mortgage bubble. But there's a difference between and home loans and student loans: Generally, student loans aren't dischargeable in bankruptcy.

The exception to this rule is undue hardship, which takes on a Potter Stewart quality in bankruptcy proceedings: It's not clearly defined, but a judge knows it when she sees it.

This week, the Eighth Circuit Court of Appeals offers an undue hardship example.

Proof of Claim Untimely: Is the Lien Void?

Can a creditor's lien be avoided under 11 U.S.C. § 506(d) solely on the ground that the creditor's proof of claim has been disallowed for untimeliness?

The Eighth Circuit Court of Appeals says no.

Borrower Loses Show Me the Note Lawsuit

Just so we’re clear, “show me the note” lawsuits have not fared well in the Eighth Circuit Court of Appeals. If you decide that you want to file one of these claims, don’t say we didn’t tell you.

Mary and William Butler filed a “show me the note” lawsuit against Bank of America, N.A., BAC Home Loan Servicing, and the law firm of Peterson, Fram, and Bergman, P.A. (PFB), challenging the foreclosure on their home. The district court dismissed the case for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The Eighth Circuit affirmed.

Eighth Circuit Announces Bankruptcy Judge Vacancy in Missouri

The Eighth Circuit Court of Appeals is looking to fill a vacancy for Bankruptcy Judge, according to an announcement on the Court’s website. Specifically, the court is looking for candidates to apply for the position of Federal Bankruptcy Judge for the Western District of Missouri.

The position starts in January 2013, but applications are being accepted now. The judgeship is for a 14-year term. Interestingly, you don’t have to be a bankruptcy attorney to apply for this position. While that will likely play a role in the selection process, the criteria don’t limit the judgeship to bankruptcy lawyers or attorneys from a particular circuit.

The salary for the position is $160,080.

In US v. Holy Bull, No. 09-1544, the court of appeals affirmed defendant's conviction and sentence for sexual abuse of a minor, holding that 1) the testimony of the prior victim revealed a pattern of abuse quite similar to the abuse alleged in the indictment and therefore was properly admitted; 2) the evidence presented at trial was sufficient to prove beyond a reasonable doubt that defendant committed sexual abuse of a minor "knowingly," as required by statute; and 3) the district court clearly included defendant's history of sexual abuse in its sentencing analysis.

In US v. Jewell, No. 09-1930, the court of appeals affirmed defendant's conviction for aiding and abetting tax evasion, on the grounds that 1) any alleged error in admitting a videotaped deposition did not contribute to defendant's conviction for aiding and abetting tax evasion; 2) there was no abuse of discretion in the district court's decision not to strike a witness's testimony based on defendant's claim that some of the witness's cross-examination answers were non-responsive and allegedly prejudicial; and 3) because defense counsel was able to thoroughly attack a witness's credibility, the district court did not abuse its discretion or violate the Confrontation Clause by limiting cross on this issue.

In re: Carpenter, No. 09-2897, involved a creditor's appeal from a bankruptcy appellate panel's holding that a social security payment to debtor was exempt and should not be included in his bankruptcy estate.  The Eighth Circuit affirmed the bankruptcy appellate panel's reversal of the bankruptcy court's order, holding that the social security payment was excluded from the Chapter 7 bankruptcy estate pursuant to 42 U.S.C. section 407.

McDermott v. Royal, No. 09-3167, concerned an action claiming that plaintiff suffered First Amendment violations during her arrest and prosecution for obstructing police officers who arrested her son.  The Eighth Circuit reversed an injunction in favor of plaintiff against the ordinance at issue, holding that the terms used in the ordinance -- "obstruct" and "resist" -- covered only physical acts or fighting words and did not give officers unfettered discretion to make arrests for mere words that annoy them.

In US v. Cates, No. 09-3181, the Eighth Circuit affirmed defendant's sentence following the revocation of his supervised release, on the grounds that 1) the district court had valid and sufficient reasons to disbelieve defendant's explanation for his positive marijuana tests; 2) there was no plain error in the district court's explanation or weighing of the sentencing factors; and 3) there was no abuse of the district court's considerable sentencing discretion and no basis for concluding defendant's below-Guidelines sentence was substantively unreasonable.

In US v. Charboneau, No. 09-3064, the court of appeals affirmed defendant's conviction for sexual abuse of a minor and abusive sexual contact in Indian country, on the grounds that 1) when a child victim testifies at trial, the Supreme Court's decision in Crawford is inapplicable; and 2) neither the medical report nor any out-of-court statement by the examining physician was admitted into evidence, and thus there was no Confrontation Clause error.

US v. Health Mgmt. Sys., Inc., No. 09-3439, concerned a qui tam action against two companies that contracted to perform work for Iowa's Medicaid program, and against two employees of the Iowa Department of Health Services, claiming that the defendants violated the False Claims Act (FCA) by obtaining federal funds to pay for medical care resulting from medical negligence without seeking reimbursement from the tortfeasors as federal law required.  The court of appeals affirmed the dismissal of the action, on the grounds that 1) the documents submitted by plaintiffs did not disclose the "essential elements" of what the relators sought to prove; and 2) there was no merit in the relators' contention that the defendants were somehow bound by an interpretation of Iowa Code section 147.136 that the State of Iowa relied on in that trial-court case against a Medicaid recipient's estate.

In US v. Henderson, No. 09-3326, the court of appeals affirmed defendant's convictions for conspiring to distribute, and possessing with the intent to distribute, in excess of five kilograms of cocaine, and distributing over five kilograms of cocaine, on the grounds that 1) following his arrest, defendant waived his Miranda rights and consented to a search of an apartment, and no intervening exculpatory act destroyed probable cause; 2) the district court's instruction regarding defendant's prior conviction mitigated concerns of prejudice; and 3) the district court's 18 U.S.C. section 851(b) error did not affect defendant's substantial rights.

In US v. Longs, No. 09-2781, the Eighth Circuit affirmed defendant's convictions for conspiracy to distribute and possess with intent to distribute more than 50 grams of cocaine base (crack), and conspiracy to possess firearms in furtherance of the drug trafficking conspiracy, on the grounds that 1) the evidence overwhelmingly supported the charge that defendant participated in the crack conspiracy as alleged in the second superseding indictment; and 2) the indictment sufficiently apprised defendant of the evidence the government would introduce at trial.

In US v. Mitchell, No. 09-3041, the court of appeals affirmed defendant's conviction for money laundering conspiracy, holding that 1) the indictment was not so defective that defendant could not have reasonably understood the offense for which he was charged; and 2) defendant did not show that the danger of unfair prejudice substantially outweighed the probative value of certain tax information. However, the court vacated defendant's sentence on the ground that the evidence was sufficient to justify a six-level enhancement pursuant to U.S.S.G. section 2S1.1(b)(1).

Center for Fam. Med. v. US, No. 09-2780, involved an action against the U.S., seeking a refund for Federal Insurance Contributions Act (FICA) taxes the Internal Revenue Service (IRS) assessed and collected on stipends appellants paid to medical students.  The court of appeals affirmed the partial denial of plaintiffs' motion for attorney's fees, holding that 1) the government did not continue to push for a bright-line rule in its second motion for summary judgment; and 2) the government was substantially justified in taking the position that plaintiff did not qualify as a "school, college, or university."

Copeland v. Locke, No. 09-2485, concerned an action under 42 U.S.C. § 1983 alleging that defendant-police chief used excessive force to effectuate plaintiff's unlawful arrest and that the City of Bella Villa was deliberately indifferent to plaintiff's constitutional rights.  The court of appeals affirmed in part summary judgment for defendants on the ground that plaintiff failed to present sufficient evidence to create a triable issue of fact as to whether the municipality was deliberately indifferent to the risk that police officers would use excessive force to effectuate an unlawful arrest of citizens.  However, the court reversed the judgment in part on the grounds that 1) if, as plaintiff averred, defendant arrested plaintiff solely for distracting him from a traffic stop through the use of his protected expression, then the arrest was unlawful even if it arguably interfered with police activity; and 2) there was a material question of fact regarding whether plaintiff's injuries were the result of excessive force.

Kuelbs v. Hill, No. 09-2697, involved an action alleging embezzlement of a trust's assets.  The court of appeals affirmed the dismissal of the action on the grounds that 1) the district court correctly determined that plaintiff was not the proper party to pursue the action due to her incompetency, and she did not move to substitute the proper party after being put on notice of the need for substitution; and 2) the tort claims plaintiff assigned to the trust were properly dismissed on the grounds they were not assignable under Arkansas law.

Mahamed v. Anderson, No. 09-2030, concerned an action alleging various civil rights violations under 42 U.S.C. section 1983.  The court of appeals dismissed defendant's appeal from a denial of defendant's summary judgment motion based on qualified immunity, on the ground that, even though defendant sought to frame the issue in terms of qualified immunity, he asked the court to find qualified immunity on facts contrary to those plaintiff presented to the district court.

In US v. Dale, No. 08-3172, the court of appeals affirmed defendants' murder and conspiracy to distribute cocaine convictions, on the grounds that ) defendant's Sixth Amendment protections had not yet attached, and the admission of the out-of-court statements he made to a witness did not violate defendant's Sixth Amendment right to counsel; 2) a nontestifying defendant's out-of-court statements were non-testimonial; and 3) because defendant was permitted to impeach a witness's credibility, the district court did not abuse its discretion in limiting defendant's cross-examination of the witness.

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Eng v. Cummings, McClorey, Davis & Acho, No. 09-2426, concerned a declaratory judgment action against a law firm seeking a judgment that plaintiff firm need not share a portion of the attorney's fees awarded to plaintiff in a personal injury action.  The court of appeals affirmed summary judgment for plaintiff on the ground that, even assuming there was a fee-splitting agreement between the parties, this agreement did not comply with Mo. Sup. Ct. R. 4-1.5(e).

Gillette v. N. Dakota Disciplinary Bd., No. 09-1598, involved an action seeking declaratory and injunctive relief preventing an attorney disciplinary board from prosecuting a disciplinary action for alleged misconduct arising out of plaintiff's representation of Native American clients in tribal court litigation.  The court of appeals affirmed the dismissal of the action on the grounds that the three prerequisites to Younger abstention were present in this case -- (1) an ongoing state judicial proceeding that (2) implicates an important state interest and (3) affords an adequate opportunity to raise federal statutory and constitutional challenges.

In re: Polaroid Corp., No. 09-2860, concerned a creditor's appeal of the bankruptcy court's approval of the debtor's sale, free and clear of any liens, of its assets.  The Second Circuit dismissed the appeal on the ground that no party obtained a stay of the sale pending appeal, and thus the appeal was moot.

True v. State of Neb., No. 09-1788, involved an action challenging the termination of plaintiff's employment at a Nebraska correctional facility because he refused to allow a random, suspicionless search of his vehicle.  The court of appeals affirmed summary judgment for defendants in part, on the ground that, even assuming that employees parking in the lot at issue were similarly situated to visitors parking there, differential treatment of the two groups was, however, rationally related to a legitimate state interest.  However, the court reversed in part, holding that there was a dispute as to the circumstances of inmate access to vehicles in the lot at issue -- facts material to the reasonableness of the search at its inception.

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Carlson v. Astrue, No. 09-1123, concerned petitioner's appeal from a judgment upholding the Commissioner of Social Security's denial of petitioner's application for supplemental security income.  The court of appeals affirmed, on the grounds that 1) the Administrative Law Judge's (ALJ) consideration of petitioner's physician's signed residual functional capacity assessment satisfied the obligation to receive an expert opinion on equivalence; 2) it was reasonable for the ALJ to conclude that petitioner's control of his diabetes prevented future episodes of ketoacidosis with vomiting and nausea, and thereby limited the severity of the impairment; and 3) substantial evidence supports the ALJ's conclusion that petitioner's impairments did not equal the severity of all the criteria in Listing 5.08.

In US v. Woods, No. 09-1364, the court of appeals affirmed defendant's drug conspiracy sentence, holding that 1) the district court properly calculated defendant's new advisory Guidelines range, as required by 18 U.S.C. section 3553(a)(4), and accounted for the 15% substantial assistance downward departure the court previously granted; and 2) while the district court would have been within its discretion to consider further the crack versus powder cocaine disparity in arriving at defendant's sentence, the district court was not required to apply this consideration by lowering defendant's sentence further.

In US v. Yang, No. 09-1572, the Eighth Circuit affirmed defendant's marriage fraud conviction, holding that the circumstantial evidence was sufficient to justify a reasonable jury's conclusion that defendant knowingly entered into a marriage for the purpose of evading the immigration laws, and that he knowingly entered into an agreement for that purpose.

In re: Freier, 09-1916, concerned a bankruptcy adversary action seeking a determination that defendant was personally liable for a state-court money judgment rendered against a corporation wholly owned by defendant.  The Eighth Circuit reversed the bankruptcy appellate panel's reversal of the bankruptcy court's order holding defendant liable for the corporation's debt, on the grounds that 1) defendant's material promise to repay the debt in the future, made with the intent to defraud and without the intent to perform constituted actionable fraud; and 2) the evidence supported the bankruptcy court's finding that plaintiff relied on defendant's representation about taking draws.

Burkhart v. Am. Railcar Indus., Inc., No. 09-2077, involved a sexual harassment and retaliation action.  The Eighth Circuit affirmed summary judgment for defendants, on the grounds that 1) plaintiff's harassment claims were untimely because all of the actions about which plaintiff complained that occurred within 180 days of her filing were alleged to have been retaliation for complaining to the human resources manager, not harassment based on sex; and 2) even if plaintiff could establish a prima facie retaliation case, no reasonable factfinder could conclude that defendant's proffered reason for firing her was pretextual as required in the McDonnell Douglas framework.

In US v. Turner, No. 09-2864, the court of appeals affirmed defendant's drug conspiracy sentence, on the ground that the district court's determination that defendant was part of a conspiracy involving more than 100 kilograms of marijuana was correct, whether the court of appeals applied the standard for reviewing sufficiency of the evidence after a bench trial, or the clearly erroneous standard for reviewing drug quantity findings at sentencing.

In US v. Bastian, No. 09-3111, the Eighth Circuit affirmed defendant's child pornography conviction and sentence, holding that 1) defendant's alleged dissatisfaction with his attorney did not negate the voluntariness of his plea, and the district court properly found that it did not provide a "fair and just reason" for withdrawing it; 2) defendant's sentencing enhancement did not violate the separation-of-powers doctrine; 3) the district court properly found that defendant's reluctance to plead guilty and attempt to withdraw his plea showed he had not accepted responsibility; and 4) the court of appeals did not need to decide whether the district court erred in applying a "thing of value" enhancement because any error was harmless.

In US v. Manes, No. 09-3163, the Eighth Circuit affirmed defendants' drug conspiracy conviction, on the grounds that 1) the Fourth Amendment was not violated when a law enforcement officer briefly detained an individual to investigate circumstances which gave rise to a reasonable suspicion that criminal activity was underway; 2) sufficient evidence was adduced at trial for the jury reasonably to find beyond a reasonable doubt that defendant had knowingly agreed with others to purchase and distribute methamphetamine; 3) an instruction requested by defendant did not correspond with the theory of defense he sought to prove at trial; and 4) through extensive cross examination, defendant's counsel made the jury aware that a certain photograph did not reflect the location of the drugs and money at the time of the stop, thus removing any undue prejudice due to the photograph's admission.

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Bankruptcy, Civil Rights, Criminal, and Tort Law Cases

Morris v. Zefferi, No. 08-3141, involved an action alleging that an officer violated plaintiff's constitutional rights when defendant transported plaintiff, who at the time was a pretrial detainee, in a dog cage in a K-9 vehicle during a ninety-minute drive to a county courthouse.  The court of appeals affirmed on the grounds that 1) based on the totality of the circumstances, defendant's decision to transport plaintiff in this manner transgressed today's broad and idealistic concepts of dignity, civilized standards, humanity, and decency; and 2) the unconstitutionality of defendant's alleged conduct should have been obvious to defendant based both on common sense and prior general case law.

Brunsting v. Lutsen Mountains Corp., No. 09-1075, concerned a personal injury action arising out of a skiing accident.  The court of appeals reversed summary judgment for defendant, holding that 1) the district court erred in its analysis of whether a witness's statement was made in reaction to a truly startling event, and whether the statement was made under the stress of excitement caused by that event; and 2) there was a genuine issue of material fact as to whether defendant's failure to remove the stump was a proximate cause of plaintiff's accident.

In US v. Akens, No. 09-1695, the Eighth Circuit affirmed defendant's drug and firearm conviction and sentence, on the grounds that 1) defendant's prior Missouri conviction was a sufficient predicate for his 18 U.S.C. section 922(g)(1) conviction; 2) the district court did not abuse its discretion in denying defendant's motion to withdraw the plea; and 3) defendant, in the plea agreement, waived his right to appeal sentencing-related issues.

Bremer Bank, N.A. v. John Hancock Life Ins. Co., No. 09-2250, involved an action alleging that, in the aftermath of an airline's bankruptcy filing, plaintiff's equity in an aircraft and lease were improperly extinguished by a bank, acting on defendant's instructions.  The Eighth Circuit affirmed summary judgment for defendant, holding that 1) the bank properly informed plaintiff that the lease of the aircraft was in default, as required by the lease agreement; 2) given the lease's expansive language, it was reasonable to consider as a remedy the 11 U.S.C. section 1110(b) stipulations requiring the airline to maintain the aircraft and to make monthly payments despite the bankruptcy stay.

In US v. Mohamed, No. 09-2349, the court of appeals affirmed defendant's conviction for conspiracy to commit mail fraud, on the ground that the indictment fully and fairly apprised defendant of the charges against him, despite the alleged variance, and therefore there was no actual prejudice.

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