U.S. Eleventh Circuit - The FindLaw 11th Circuit Court of Appeals Opinion Summaries Blog

July 2010 Archives

Judgment for EPA Affirmed in Toxic Substances Control Act Action

Vidiksis v. EPA, No. 09-12544, involved an action by the EPA against defendant-property owner and lessor alleging violations of the Toxic Substances Control Act.  The court of appeals affirmed judgment for the EPA, on the grounds that 1) the Lead Hazard Act contained specific language to be provided in sales transactions, and the EPA had the authority to issue regulations under that language; 2) there was no specific statutory requirement that the EPA adjust downward for lack of prior history, and it simply must be considered as a factor; and 3) any responsibility on behalf of an agent did not obviate the lessor's responsibility.

As the court wrote:  "In 2005, the United States Environmental Protection Agency ("EPA") filed an administrative complaint against Petitioner John P. Vidiksis. The complaint alleged 69 violations of the Toxic Substances Control Act section 409, 15 U.S.C. § 2689; the Residential Lead-Based Paint Hazard Reduction Act of 1992, 42 U.S.C. §§ 4851-4856; and the federal regulations promulgated thereunder. An Administrative Law Judge for the EPA ("ALJ") found Vidiksis liable on each of the 69 counts and assessed a civil penalty of $97,545. On appeal, the Environmental Appeals Board ("EAB") affirmed the decision of the ALJ as to the liability finding and the penalty amount. Vidiksis has now appealed to this court. As explained further below, we AFFIRM the EAB's ruling on liability and on the penalty amount."

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Estate of Ahuva Amergi v. Palestinian Auth., No. 09-13618, concerned an action arising from the murder of Ahuva Amergi, an Israeli citizen who was shot and killed as she drove her car in the Gaza Strip in February of 2002, allegedly by agents of the Palestinian Authority.  The Eleventh Circuit affirmed the dismissal of the action for lack of subject matter jurisdiction, on the ground that the act plaintiffs alleged -- a single killing by non-state actors purportedly in the course of an armed conflict -- failed to meet the Alien Tort Statute's high bar.

Garces v. US Atty. Gen., No. 09-11520, involved a petition for review of the Board of Immigration Appeals' order dismissing petitioner's appeal from an immigration judge's order finding him removable under section 212(a)(2)(C) of the Immigration and Nationality Act, as an alien whom the Attorney General "knows or has reason to believe is or has been an illicit trafficker in any controlled substance."  The Eleventh Circuit granted the petition on the ground that the court did not require every alien seeking admission to the U.S. to produce evidence proving clearly and beyond a doubt that he is not a drug trafficker, unless there was already some other evidence -- some "reason to believe" -- that he was one.

In US v. Tome, No. 09-16486, the court of appeals affirmed defendant's sentence following the revocation of his supervised release after his child pornography conviction, on the grounds that 1) it was not necessary for a special condition to be supported by each section 3553(a) factor; rather, each factor was an independent consideration to be weighed; 2) the Internet ban condition was not a greater deprivation of liberty than reasonably necessary; and 3) defendant did not meet his burden to show his 24-month sentence was procedurally or substantively unreasonable.

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Baby Buddies, Inc. v. Toys "R" Us, Inc., No. 08-17021, involved an action alleging that Toys R Us's pacifier holder infringed plaintiff's copyright in its own similar pacifier holder.  The court of appeals affirmed summary judgment for defendant on the grounds that 1) the parties created distinctly different designs from an aesthetic perspective; and 2) no reasonable jury could conclude that the pacifier holders were substantially similar at the protected level.

Brown v. R.J. Reynolds Tobacco Co., No. 08-16158, concerned an action seeking compensatory and punitive damages from cigarette manufacturers under theories of strict liability, breach of express warranty, breach of implied warranty, civil conspiracy to fraudulently conceal, fraudulent concealment, negligence, and loss of consortium.

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Cappuccitti v. DirecTV, Inc., No. 09-14107, involved an action against DirecTV, Inc., seeking the recovery, on behalf of plaintiffs and similarly situated DirecTV subscribers in Georgia, of the fees DirecTV charged its subscribers for canceling their subscriptions prior to the subscriptions' expiration.  The court of appeals vacated the district court's partial dismissal of the complaint on the merits, holding that the district court lacked subject matter jurisdiction under the Class Action Fairness Act (CAFA) because the complaint failed to meet the CAFA's requirement that at least one plaintiff allege an individual amount in controversy over $75,000.

In Hall v. Thomas, No. 09-12728, a robbery and kidnapping prosecution, the court of appeals affirmed the denial of petitioner's habeas petition, on the grounds that 1) the totality of the circumstances here indicated that defendant's waiver of his Miranda rights and his subsequent confession were knowing, intelligent, and voluntary; 2) petitioner failed to show that evidence of his intelligence would have made a difference in the state court's finding that the confession was voluntary; and 3) the Alabama courts' conclusion--that petitioner's trial counsel was not ineffective--was not an unreasonable determination of the facts in light of the evidence presented, nor was it contrary to, or an unreasonable application of, clearly established federal law.

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In US v. Snipes, No. 08-12402, the Eleventh Circuit affirmed actor Wesley Snipes' convictions, after a jury trial, on three counts of willful failure to file individual federal income tax returns, on the grounds that 1) because the general extension of the motions deadline by the district court could not have waived 18 U.S.C. section 3237(b)'s clear twenty-day deadline, the district court's denial of the five-month late elective transfer motion was not an abuse of discretion; 2) there was no abuse of discretion in refusing to grant a novel pretrial, post-grand jury hearing to challenge the claimed venue found in a facially sufficient indictment; and 3) defendant's sentence did not create an unlawful disparity because the district court noted that misdemeanants who, like defendant, had willfully failed to file their personal income tax returns, had engaged in similar behavior to the felons who had received similar sentences.

In In re: Tennyson, No. 09-14628, the Eleventh Circuit reversed the district court's affirmance of the bankruptcy court's confirmation of debtor's Chapter 13 plan, holding that an above median income debtor, with negative disposable income, may not obtain confirmation of a Chapter 13 bankruptcy plan to last for less than five years when the debtor's unsecured creditors have not been paid in full.

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In US v. Cruz, No. 09-11418, an action by the government seeking to enjoin defendants from operating as tax return preparers, the court of appeals vacated the district court's order finding that defendants had engaged in deceptive practices in preparing tax returns and issuing an injunction specifically prohibiting them from further engaging in any such conduct, but declining to completely bar them from operating as tax return preparers or require them to notify their clients of the injunction (as the government requested), holding that the district court failed to give any reasons for rejecting the request to compel defendants to notify their customers of the court's injunction.

In Allen v. Sec'y, Fla. Dep't of Corr., No. 09-13217, the court of appeals affirmed the denial of habeas relief in capital proceedings, holding that 1) petitioner failed to convince the court that any of the undisclosed lab reports at issue were favorable to the defense at all; 2) the state collateral trial court's decision that counsel did not perform deficiently was not contrary to or an unreasonable application of Strickland; and 3) counsel was not ineffective for failing to request a Frye hearing before the state's DNA evidence was admitted.

In Tana v. Dantanna's, No. 09-15123, a trademark infringement action concerning two restaurants, situated on opposite sides of the country, that shared very similar names, the court of appeals affirmed summary judgment for defendant on the ground that plaintiff did not adduce sufficient evidence giving rise to a genuine issue of material fact on the issue of likelihood of confusion or defendants' knowing appropriation of his likeness.

In US v. Belfast, No. 09-10461, the court of appeals affirmed defendant's convictions and sentence for committing numerous acts of torture and other atrocities in Liberia between 1999 and 2003, during the presidency of his father, Charles Taylor, holding that 1) the United States validly adopted the Convention Against Torture pursuant to the President's Article II treaty-making authority, and it was well within Congress's power under the Necessary and Proper Clause to criminalize both torture, as defined by the Torture Act, and conspiracy to commit torture; 2) both the Torture Act and the firearm statute apply to extraterritorial conduct; and 3) it was the totality of the circumstances, not simply the length of time that passed between the event and the statement, that determines whether a hearsay statement was an excited utterance.

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Conviction For Document Falsification Affirmed

In US v. Fontenot, No. 08-12266, the Eleventh Circuit affirmed defendant's conviction for making a false entry in a document with the intent to impede an investigation within the jurisdiction of a U.S. agency, on the ground that it was not clear under current law that 18 U.S.C. section 1519 requires that the defendant know that the investigation will fall within the jurisdiction of the federal government, and thus the district court did not commit plain error.

As the court wrote:  "Wilton Fontenot appeals his conviction under 18 U.S.C. § 1519 for making a false entry in a document with the intent to impede an investigation within the jurisdiction of a United States agency. Fontenot claims that, to convict under § 1519, the Government must prove he knew the investigation would be a federal investigation. Finding this claim without merit under plain error review, we affirm Fontenot's conviction."

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Petition for Review of Removal Order Granted

Imelda v. US Atty. Gen., No. 09-11920, involved a petition for review of the Board of Immigration Appeals's ("BIA") order affirming the immigration judge's ("IJ") decision denying her application for asylum and withholding of removal under the Immigration and Nationality Act ("INA"), and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT").  The court of appeals granted the petition on the ground that the government did not meet its burden of demonstrating a fundamental change in country conditions such that petitioner's life or freedom would not be threatened upon removal to Indonesia based on her religion.

As the court of appeals wrote:  "Visca Imelda, an ethnic Chinese Christian and native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals's ("BIA") order affirming the immigration judge's ("IJ") decision denying her application for asylum and withholding of removal under the Immigration and Nationality Act ("INA"), and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"). After review of the parties' briefs and the record, and with the benefit of oral argument, we grant the petition for review, vacate the BIA's decision, and remand."

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Interpretation of Fed. R. Bankr. P. 9024, and Criminal Matter

In re: Mouzon Enters., Inc., No. 09-13330, involved a creditor's appeal from the bankruptcy court's order holding that the motion filed by debtor seeking to vacate the Consent Order was not barred under Rule 9024.  The court of appeals reversed on the ground that the bankruptcy court erred in holding that an order resolving a claim that has been objected to, but not litigated, constitutes an order "entered without a contest" for the purposes of Fed. R. Bankr. P. 9024.

In US v. Thompson, No. 08-13658, the court of appeals affirmed defendants' robbery convictions and sentences, on the grounds that 1) at the time the government rested its case-in-chief, there was sufficient evidence to support defendant's convictions on the firearms violations; and 2) because one defendant had previously committed an armed robbery with the other, a reasonable jury could conclude that defendant knew his codefendant would use a firearm in subsequent robberies.

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In Alston v. Dept. of Corrs., No. 09-15137, a capital habeas matter, the Eleventh Circuit affirmed the district court's denial of petitioner's habeas petition, on the grounds that the district court did not err in finding that the state court's ruling that petitioner was competent to waive his post-conviction proceedings and that the waiver was knowing, intelligent, and voluntary was neither an unreasonable application of clearly established federal law nor an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.

Alvarado v. US Atty. Gen., No. 09-11376, involved a petition for review of the BIA's final order of removal affirming the Immigration Judge's ("IJ") decision to deny petitioners the opportunity to apply for voluntary departure pursuant to Immigration and Nationality Act section 240B(b)(1).  The court of appeals granted the petition, holding that the IJ and the BIA misinterpreted the phrase "at the conclusion of a proceeding" in a way that improperly denied petitioners the opportunity the statute provided them to request voluntary departure.

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First Vagabonds Church of God v. City of Orlando, No. 08-16788, involved an action claiming that the City of Orlando's Large Group Feeding Ordinance, as applied to First Vagabonds Church of God and Orlando Food Not Bombs, violated the First and Fourteenth Amendments, and the Florida Religious Freedom Restoration Act.  The court of appeals partially affirmed partial judgment for defendants, on the grounds that the City could rationally conclude that it could more effectively regulate vendors' conduct in parks directly through the contracts or licenses.  However, the court reversed in part, on the grounds that 1) the feedings presented at most an ambiguous situation to an objective reasonable observer; the expressive nature of the conduct was not "overwhelmingly apparent"; and 2) the Ordinance was a neutral law of general applicability that serves a rational basis.

MD Edgar Borrero v. United Healthcare of N.Y., Inc., No. 08-15264, concerned an action alleging that defendant health insurer breached its contracts with plaintiff physicians by not paying them the full contracted rate for services rendered to insureds, in violation of common and statutory law.  The court of appeals reversed the dismissal of the action, on the ground that plaintiffs' claims were not subject to claim preclusion because they arose from a nucleus of operative fact distinct from those resolved in a prior litigation.

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Alvarez v. Royal Atlantic Developers, Inc., No. 08-15358, concerned a national origin discrimination action under Title VII claiming that defendant terminated plaintiff because she was Cuban-American.  The Eleventh Circuit affirmed summary judgment for defendant in part on the ground that Title VII did not require the employer's needs and expectations to be objectively reasonable; it simply prohibited the employer from discriminating on the basis of membership in a protected class.  However, the court reversed in part, holding that plaintiff's letter to management contained no threats against the company or anyone else, nor did it provide a reasonable basis for inferring that she would try to disrupt operations.

Neumont v. Fla., No. 04-13610, involved an action by a class of property owners in Monroe County, Florida, seeking to stop enforcement of an ordinance restricting vacation rentals.  The court of appeals affirmed summary judgment for defendant, holding that 1) the Florida Supreme Court advised the Eleventh Circuit that the ordinance was not unlawfully enacted; and 2) plaintiffs had an obligation to exhaust their state remedies for the specific ordinance and its application before they could challenge a taking under that ordinance in federal court.

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