U.S. Sixth Circuit: July 2009 Archives
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July 2009 Archives

Greene v. King James Coal Mining, Inc., No. 08-4094

In a petition for review of an order of the Benefits Review Board denying petitioner's claim for benefits under the Black Lung Benefits Act, the petition is denied where the ALJ's decision to discredit the opinions of petitioners' doctors was supported by substantial evidence.

Read Greene v. King James Coal Mining, Inc., No. 08-4094

Appellate Information

Argued: June 12, 2009

Decided and Filed: July 30, 2009

Judges

Opinion by Judge Lioi

Counsel

For Petitioner:

John L. Grigsby, Appalachian Research & Defense Fund of Kentucky, Inc., Barbourville, KY

For Respondents:

Rita Ann Roppolo, United States Department of Labor, Washington, DC

Ronald Eugene Gilbertson, K & L Gates LLP, Washington, DC

Rutherford v. Columbia Gas, No. 08-3148

In an action challenging a gas company's ability to maintain its pipeline easement by clearing certain trees from plaintiff's land, judgment for defendant is affirmed where a cleared right of way was reasonably necessary to serve the purpose of the easement.

Read Rutherford v. Columbia Gas, No. 08-3148

Appellate Information

Argued: June 17, 2009

Decided and Filed: July 30, 2009

Judges

Opinion by Judge Rogers

Partial Concurrence and Partial Dissent by Judge Clay

Counsel

For Appellant:

Steven T. Greene, Morrow, Gordon & Byrd, Ltd., Newark, OH

For Appellee:

John P. Lavelle, Lavelle & Associates, Athens, OH

In an action challenging a Department of Health and Human Services regulation preventing hospitals from recovering certain bad debts from Medicare beneficiaries, summary judgment for defendant is affirmed where the Medicare statutory scheme is clear on its face and does not allow for the exception plaintiffs sought to the statutory reduction in Medicare reimbursement for bad debt.

Read Detroit Receiving Hosp. & Univ. Health Ctr. v. Sebelius, No. 08-1920

Appellate Information

Argued: March 13, 2009

Decided and Filed: July 30, 2009

Judges

Opinion by Judge Rogers

Counsel

For Appellant:

Andrew S. Doctoroff, Honigman Miller Schwartz & Cohn LLP, Detroit, MI

For Appellee:

Steven P. Croley, Assistant United States Attorney, Detroit, MI

Cady v. Arenac County, No. 08-1795

In a 42 U.S.C. section 1983 action claiming that the state, as a condition for dismissing the criminal assault and battery charges pending against plaintiff, wrongfully required plaintiff to agree to temporarily refrain from filing a civil lawsuit against the parties with whom he had a physical altercation, summary judgment for defendants is affirmed where a prosecutor's allegedly improper motive alone is not enough to defeat absolute immunity, so long as the general nature of his actions falls within the scope of his duties as an advocate for the state.

Read Cady v. Arenac County, No. 08-1795

Appellate Information

Argued: March 13, 2009

Decided and Filed: July 30, 2009

Judges

Opinion by Judge Gilman

Concurrence by Judge Martin

Counsel

For Appellant:

Russell C. Babcock, The Mastromarco Firm, Saginaw, MI

For Appellees:

Jason David Kolkema, Johnson, Rosati, LaBarge, Aseltyne & Field, P.G., Lansing, MI

US v. Huntington Nat'l. Bank, No. 08-1729

In an action by a lender seeking to recover assets from a borrower that were seized by the government, a ruling for the government is reversed where the lender preserved its argument that it was a bona fide purchaser by stating the issue to the district court with sufficient clarity to give the court and opposing parties notice that it was asserting the issue.

Read US v. Huntington Nat'l. Bank, No. 08-1729

Appellate Information

Argued: April 20, 2009

Decided and Filed: July 27, 2009

Judges

Opinion by Judge Sutton

Counsel

For Appellant:

Jeffrey O. Birkhold, Warner Norcross & Judd LLP, Grand Rapids, MI

For Appellee:

Matthew G. Borgula, Assistant United States Attorney, Grand Rapids, MI

Reese v. CNH Am. LLC, No. 08-1234

In an ERISA action seeking a declaration that plaintiffs-employees were entitled to lifetime health benefits under a collective bargaining agreement (CBA), summary judgment for plaintiffs is affirmed in part where the CBA unambiguously granted plaintiffs benefits. However the ruling is reversed in part where the CBA and related documents said nothing about subsequent modifications to these benefits, and the application of the relevant provisions suggested that the parties contemplated reasonable modifications.

Read Reese v. CNH Am. LLC, No. 08-1234

Appellate Information

Argued: March 3, 2009

Decided and Filed: July 27, 2009

Judges

Opinion by Judge Sutton

Counsel

For Appellants:

Bobby R. Burchfield, McDermott, Will & Emery LLP, Washington, DC

For Appellees:

Roger J. McClow, Klimist, McKnight, Sale, McClow & Canzano, P.C., Southfield, MI

Helfman v. GE Group Life Assurance Co., No. 08-2168

In an ERISA action seeking disability benefits, summary judgment for defendant is affirmed in part where, if an employer contributes to any employee's payment of premiums, ERISA must apply to the entirety of the particular insurance program, regardless of whether one or more employees pays his own premiums in full; but reversed in part, where defendant did not engage in a deliberate and principled reasoning process in denying plaintiff's claim.

Read Helfman v. GE Group Life Assurance Co., No. 08-2168

Appellate Information

Argued: June 18, 2009

Decided and Filed: July 24, 2009

Judges

Opinion by Judge Phillips

Counsel

For Appellant:

J. Laevin Weiner, Frank, Haron, Weiner & Navarro, Troy, MI

For Appellees:

James E. Brenner, Clark Hill PLC, Detroit, MI

Kimberly J. Ruppel, Dickinson Wright, Bloomfield Hills, MI

US v. See, No. 08-3484

In a prosecution for possession of a firearm with a removed serial number, denial of defendant's motion to suppress is reversed where the police did not have reasonable suspicion to believe that criminal activity was occurring, and thus, the stop of defendant's vehicle violated the Fourth Amendment.

Read US v. See, No. 08-3484

Appellate Information

Argued: June 17, 2009

Decided and Filed: July 24, 2009

Judges

Opinion by Judge Moore

Concurrence by Judge Gilman

Counsel

For Appellant:

Jonathan P. Witmer-Rich, Federal Public Defender's Office, Cleveland, OH

For Appellee:

Robert F. Corts, Assistant United States Attorney, Cleveland, OH

Biegas v. Quickway Carriers, Inc., No. 08-1283

In a personal injury action involving an auto accident, judgment for defendant is affirmed in part where all claims of common-law gross negligence were barred under Michigan law except in certain contexts in which Michigan law exculpated actors for mere negligent conduct; but reversed in part where there was a genuine issue of material fact as to whether plaintiff's negligence exceeded that of defendant's driver.

Read Biegas v. Quickway Carriers, Inc., No. 08-1283

Appellate Information

Argued: June 16, 2009

Decided and Filed: July 24, 2009

Judges

Opinion by Judge Moore

Dissent by Judge Friedman

Counsel

For Appellant:

Vernon R. Johnson, Fieger, Fieger, Kenney, Johnson & Giroux, Southfield, MI

For Appellees:

Michael J. Hutchinson, Hutchinson & Associates, Detroit, MI

 

FDIC v. Stables, No. 07-4436

In an action by the FDIC, acting as receiver of a partnership, seeking disgorgement of embezzled funds from defendants, summary judgment for plaintiff is affirmed where: 1) the district court was not required to draw an inference that a convicted felon had lied in his affidavit; 2) defendants failed to present evidence that the transaction at issue was a loan; and 3) the district court did not err under Ohio law in its calculation of the appropriate amount of damages owed to the FDIC.

Read FDIC v. Stables, No. 07-4436

Appellate Information

Submitted: August 1, 2008

Decided and Filed: July 23, 2009

Judges

Opinion by Judge Gibbons

Concurrence by Judge Gilman

Dissent by Judge Kennedy

Counsel

For Appellants:

Catherine H. Killam, McHugh & McCarthy, Sylvania, OH

For Appellee:

Jaclyn C. Taner, Federal Deposit Insurance Corporation, Arlington, VA

Ganim v. Columbia Cas. Co., No. 08-3945

In an action alleging that defendant-insurer breached its insurance agreement in bad faith by refusing to defend plaintiff in an arbitration, summary judgment for defendant is affirmed where defendant properly refused to defend plaintiff because the allegations in the arbitration did not state a claim potentially within the scope of the policy's coverage.

Read Ganim v. Columbia Cas. Co., No. 08-3945

Appellate Information

Argued: June 9, 2009

Decided and Filed: July 23, 2009

Judges

Opinion by Judge Martin

Counsel

For Appellant:

Michael David Zaverton, Walter & Haverfield LLP, Cleveland, OH

For Appellee:

Andrew L. Margulis, Ropers, Majeski, Kohn & Bentley, New York, NY

Waeschle v. Dragovic, No. 08-2228

In a 42 U.S.C. section 1983 action against a county Medical Examiner for depriving plaintiff of her right to dispose of her deceased mother's brain (removed in an autopsy and later incinerated as medical waste), denial of defendant's motion for summary judgment based on qualified immunity is reversed where plaintiff had no clearly established property right in the brain because it was removed and retained for study in furtherance of a lawful criminal investigation.

Read Waeschle v. Dragovic, No. 08-2228

Appellate Information

Argued: June 16, 2009

Decided and Filed: July 22, 2009

Judges

Opinion by Judge Gilman

Counsel

For Appellant:

William H. Horton, Giarmarco, Mullins & Horton, P.C., Troy, MI

For Appellee:

Patrick J. Perotti, Dworken Bernstein Co., LPA, Painesville, OH

For Amici Curiae:

Steven M. Jentzen, Steven M. Jentzen, P.C., Ypsilanti, MI

US v. Washington, No. 08-3317

In a drug prosecution, suppression of evidence found in a warrantless search is affirmed where the Fourth Amendment prohibits the warrantless search of a private home to investigate minor offenses, such as this one, that do not pose any threat of imminent violence or result in an ongoing injury to the community.

Read US v. Washington, No. 08-3317

Appellate Information

Argued: June 12, 2009

Decided and Filed: July 22, 2009

Judges

Opinion by Judge Boggs

Counsel

For Appellant:

Daniel S. Goodman, United States Department of Justice, Washington, DC

For Appellee:

Richard W. Smith-Monahan, Federal Public Defender's Office, Cincinnati, OH

Hensley v. Comm'r. of Soc. Sec., No. 08-6389

In an action challenging the Social Security Commissioner's denial of disability benefits, summary judgment for defendant is reversed where the Administrative Law Judge failed to give controlling weight to a medical evaluation by plaintiff's treating physician or to explain his reasons for such action.

Read Hensley v. Comm'r. of Soc. Sec., No. 08-6389

Appellate Information

Submitted: June 16, 2009

Decided and Filed: July 21, 2009

Judges

Opinion by Judge Friedman

Counsel

For Appellant:

Julie Anne Atkins, Atkins Law Office, Harlan, KY

For Appellee:

Jerome M. Albanese, Social Security Administration, Office of General Counsel, Atlanta, GA,

Anita Kay Brotherton, Social Security Administration, Office of General Counsel, Atlanta, GA,

US v. Shafer, No. 07-2574

Defendant's child pornography sentence is affirmed where "sexual contact," as defined by 18 U.S.C. section 2246(3), includes self-masturbation, as long as the other requirements of the statute are satisfied, and thus defendant qualified for a sentence enhancement under U.S.S.G. section 2G2.1(b)(2)(A).

Read US v. Shafer, No. 07-2574

Appellate Information

Argued: December 2, 2008

Decided and Filed: July 21, 2009

Judges

Opinion by Judge Moore

Counsel

For Appellant:

Richard E. Zambon, Mitchell & Zambon, Grand Rapids, MI

For Appellee:

Donald A. Davis, Assistant United States Attorney, Grand Rapids, MI

Lockhart v. Napolitano, 08-3321

In an action challenging the BIA's denial of petitioner's request for permanent resident status, summary judgment for petitioner is affirmed where a "surviving alien-spouse" is a "spouse" within the meaning of the "immediate relative" provision of the Immigration and Nationality Act, 8 U.S.C. section 1151(b)(2)(A)(i).

Read Lockhart v. Napolitano, 08-3321

Appellate Information

Argued: January 20, 2009

Decided and Filed: July 20, 2009

Judges

Opinion by Judge Cole

Counsel

For Appellants:

Elizabeth J. Stevens, United States Department of Justice, Washington, DC

For Appellee:

Brent W. Renison, Parrilli Renison, Lake Oswego, OR

Mitan v. Duval, No. 07-2111

In an appeal from the Bankruptcy Court's order converting Debtor's bankruptcy case from Chapter 11 to Chapter 7 nunc pro tunc, the order is affirmed, where the equitable powers granted to the Bankruptcy Court under 11 U.S.C. section 105(a) include the power to enter such a conversion order.

Read Mitan v. Duval, No. 07-2111

Appellate Information

Submitted: December 4, 2008

Decided and Filed: July 17, 2009

Judges

Opinion by Judge Gibbons

Dissent by Judge Clay

Counsel

For Appellant:

Keith J. Mitan, Mitan & Associates, West Bloomfield, MI

For Appellees:

Mark R. Fox, Fraser Trebilcock Davis & Dunlap, P.C., Lansing, MI

Quilling v. Trade Ptnrs., Inc., No. 08-2328

In an appeal from an order distributing the proceeds of life insurance policies owned by a receivership estate on a pro rata basis, the order is affirmed where plaintiff's alleged diligence in securing a beneficial interest was not cause for him to take priority when the interest he actually acquired was no better than the interests acquired by supposedly less-diligent claimants.

Read Quilling v. Trade Ptnrs., Inc., No. 08-2328

Appellate Information

Argued: June 17, 2009

Decided and Filed: July 15, 2009

Judges

Opinion by Judge Graham

Counsel

For Appellant:

Lincoln J. Knauer, Husch Blackwell Sanders LLP, Springfield, MO

For Appellee:

Bruce S. Kramer, Borod & Kramer, P.L.C., Memphis, TN

US v. Perdue, No. 08-4358

Defendant's drug distribution sentence is affirmed where a district court may not grant a motion for a reduction in sentence premised upon Amendment 706 to the Sentencing Guidelines if the defendant seeking the reduction was originally sentenced as a career offender.

Read US v. Perdue, No. 08-4358

Appellate Information

Submitted: May 19, 2009

Decided and Filed: July 14, 2009

Judges

Opinion by Judge Gilman

Counsel

For Appellant:

Andy P. Hart, Office of the Federal Public Defender, Toledo, OH

For Appellee:

Blas E. Serrano, Assistant United States Attorney, Cleveland, OH

King v. Holder, No. 08-4357

Petitioner's petition for review of the BIA's order removing her from the U.S. is denied where sufficient evidence supported the IJ's ruling that petitioner entered into a fraudulent marriage for the purpose of gaining lawful admission to the U.S.

Read King v. Holder, No. 08-4357

Appellate Information

Submitted: June 11, 2009

Decided and Filed: June 29, 2009

Judges

Opinion by Judge Griffin

Counsel

For Petitioner:

Michael E. Piston, Piston & Carpenter, P.C., Troy, MI

For Respondent:

Patrick James Glen, U.S. Department of Justice, Washington, DC

US v. Green, No. 08-5215

In a petition for access to criminal defendants' presentence reports, the denial of the petition is affirmed where the reports were confidential, nonpublic documents, and petitioners did not show that they had a special need for access to them.

Read US v. Green, No. 08-5215

Appellate Information

Argued: March 12, 2009

Decided and Filed: July 13, 2009

Judges

Opinion by Judge Rogers

Counsel

For Appellants:

Herbert Sanford Moncier, Law Offices of Herbert S. Moncier, Knoxville, TN

For Appellee:

Debra A. Breneman, Assistant United States Attorney, Knoxville, TN

Nwagbo v. Holder, No. 08-2292

In a petition for review of the BIA's denial of Petitioner's motion to terminate removal proceedings against him, the petition is dismissed for lack of jurisdiction where Section 101(a)(43)(R) of the Immigration and Nationality Act (INA) necessarily covers a range of activities beyond those of counterfeiting or forgery itself.

Read Nwagbo v. Holder, No. 08-2292

Appellate Information

Argued: June 10, 2009

Decided and Filed: June 30, 2009

Judges

Opinion by Judge Kethledge

Counsel

For Petitioner:

E. Dennis Muchnicki, Dublin, OH

For Respondent:

Katharine E. Clark, United States Department of Justice, Washington, DC

White v. Comm'r. of Soc. Sec., No. 08-2292

In a petition for review of the Commissioner of Social Security's determination that Petitioner was entitled to disability benefits for only a limited period of time, the petition is denied where there was a material difference between the severity of Petitioner's mental impairments before the time period for which she was awarded benefits and after that time.

Read White v. Comm'r. of Soc. Sec., No. 08-2292

Appellate Information

Submitted: June 17, 2009

Decided and Filed: July 13, 2009

Judges

Opinion by Judge Gilman

Counsel

For Appellant:

Marcie E. Goldbloom, Daley, DeBofsky & Bryant, Chicago, IL

For Appellee:

James B. Geren, Social Security Administration, Chicago, IL

Mills v. Cason, No. 06-2359

In an assault prosecution, the denial of Petitioner's habeas petition is affirmed, where the pretrial identification testimony presented at trial was not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

Read Mills v. Cason, No. 06-2359

Appellate Information

Argued: December 9, 2008

Decided and Filed: July 10, 2009

Judges

Opinion by Judge Daughtrey

Counsel

For Appellant:

Stephan J. Schlegelmilch, Baker & Hostetler LLP, Cleveland, OH

For Appellee:

Brian O. Neill, Office of the Michigan Attorney General, Lansing, MI

Akrawi v. Booker, No. 07-1984

In a drug conspiracy prosecution, the denial of Petitioner's habeas petition is affirmed, where there was no reason to believe that disclosure of allegedly suppressed impeachment evidence regarding a prosecution witness would have so altered the jury's assessment of the witness's already suspect credibility.

Read Akrawi v. Booker, No. 07-1984

Appellate Information

Argued: June 17, 2009

Decided and Filed: July 10, 2009

Judges

Opinion by Judge McKeague

Counsel

For Appellant:

Andrea Lynn Reino, Gerhardstein & Branch, Cincinnati, OH

For Appellee:

Brian O. Neill, Office of the Michigan Attorney General, Lansing, MI

Fautenberry v. Mitchell, No. 09-3819

In a capital murder matter, the District Court's order denying Petitioner's motion seeking funds to hire a neuropsychologist to assist in the preparation of his state clemency petition is affirmed, where Petitioner advanced no evidence from which the District Court could find that the proposed evaluation would not be duplicative.

Read Fautenberry v. Mitchell, No. 09-3819

Appellate Information

Submitted: July 7, 2009

Decided and Filed: July 10, 2009

Judges

Opinion by Judge Batchelder

Counsel

For Appellant:

Dennis Lyle Sipe, Buell & Sipe Co., Marietta, OH

For Appellee:

Justin M. Lovett, Office of the Ohio Attorney General, Columbus, OH

Madrigal v. Holder, No. 08-3132

In a petition for review of a BIA order withdrawing Petitioner's appeal from the Immigration Judge's denial of her motion to reopen removal proceedings, the petition is granted, where Petitioner did not choose to withdraw her appeal, but was involuntarily removed from the United States.

Read Madrigal v. Holder, No. 08-3132

Appellate Information

Argued: March 12, 2009

Decided and Filed: July 9, 2009

Judges

Opinion by Judge Daughtrey

Counsel

For Petitioner:

Scott E. Bratton, Margaret Wong & Associates Co., LPA, Cleveland, OH

For Respondent:

Patrick J. Glen, United States Department of Justice, Washington, DC

US v. Moncier, No. 07-6053

Defendant's conviction for contempt of court is vacated, where the District Judge before whom Defendant engaged in the allegedly contemptuous conduct was not permitted to preside over the trial of the charges.

Read US v. Moncier, No. 07-6053

Appellate Information

Argued: March 12, 2009

Decided and Filed: July 8, 2009

Judges

Opinion by Judge Kethledge

Counsel

For Appellant:

Ralph E. Harwell, Law Offices of Ralph E. Harwell, Knoxville, TN

For Appellee:

Robert M. Reeves, Assistant United States Attorney, Greeneville, TN

Dobrowski v. Jay Dee Contractors, Inc., No. 08-1806

In a Family and Medical Leave Act (FMLA) action alleging that Defendant terminated Plaintiff because he took leave under the FMLA, summary judgment for Defendant is affirmed where equitable estoppel did not bar Defendant from raising non-eligibility as a defense to Plaintiff's FMLA claim.

Read Dobrowski v. Jay Dee Contractors, Inc., No. 08-1806

Appellate Information

Argued: April 21, 2009

Decided and Filed: July 8, 2009

Judges

Opinion by Judge Boggs

Counsel

For Appellant:

Joseph F. Lucas, Skupin & Lucas, P.C., Detroit, MI

For Appellee:

Megan P. Norris, Miller, Canfield, Paddock & Stone, P.L.C., Detroit, MI

US v. Perez-Vasquez, No. 07-6390

Defendant's sentence for illegally reentering the U.S. is affirmed where the District Court did not abuse its discretion in declining to order that Defendant's federal sentence run concurrently with his undischarged state sentence, under the circumstance that he was not eligible for fast-track treatment due to the district in which he was prosecuted.

Read US v. Perez-Vasquez, No. 07-6390

Appellate Information

Argued: March 10, 2009

Decided and Filed: April 30, 2009

Judges

Opinion by Judge White

Counsel

For Appellant:

Boyd Walter Venable III, Law Coming, Sevierville, TN

For Appellee:

Robert M. Reeves, Assistant United States Attorney, Greeneville, TN

US v. Herrera-Zuniga, No. 08-1540

Defendant's sentence for illegally reentering the U.S. is affirmed where: 1) the District Court had the authority to reject the Sentencing Guidelines on policy grounds; and 2) because the Guidelines are advisory only, the particular methodology set forth in U.S.S.G. section 4A1.3 is not binding.

Read US v. Herrera-Zuniga, No. 08-1540

Appellate Information

Argued: April 23, 2009

Decided and Filed: July 8, 2009

Judges

Opinion by Judge Clay

Counsel

For Appellant:

Richard D. Stroba, Office of the Federal Public Defender, Grand Rapids, MI

For Appellee:

Jennifer L. McManus, Assistant United States Attorney, Grand Rapids, MI

Borger v. CSX Trans., Inc., No. 08-3685

In an action by rail workers alleging injuries from exposure to hydrochloric acid fumes, summary judgment for Defendant is affirmed where Defendant rail carrier's failure to perform a ten-point inspection under 49 C.F.R. section 173.31 did not violate that regulation because it did not apply to rail carriers such as Defendant.

Read Borger v. CSX Trans., Inc., No. 08-3685

Appellate Information

Argued: May 1, 2009

Decided and Filed: July 8, 2009

Judges

Opinion by Judge Martin

Counsel

For Appellants:

Martin J. Holmes, Jr., Shindler, Neff, Holmes, Schlageter & Mohler, Toledo, OH

For Appellee:

Dan Himmelfarb, Mayer Brown LLP, Washington, DC

US v. Lapsins, No. 07-4387

Defendant's child pornography conviction and sentence are affirmed, where 1) the affidavit in support of the search of Defendant's home provided probable cause to believe that the images at issue included real children; and 2) the government may decline to move for a reduction in a defendant's sentence under U.S.S.G. section 3E1.1(b), so long as the decision does not rest on a constitutionally impermissible factor and is not arbitrary.

Read US v. Lapsins, No. 07-4387

Appellate Information

Argued: April 21, 2009

Decided and Filed: July 7, 2009

Judges

Opinion by Judge Cole

Counsel

For Appellant:

H. Louis Sirkin, Sirkin Pinales & Schwartz LLP, Cincinnati, OH

For Appellee:

Christy L. Muncy, Assistant United States Attorney, Cincinnati, OH

US v. Jones, No. 08-1352

Defendant's ten-year mandatory-minimum sentence for possession with intent to distribute over fifty grams of cocaine base is affirmed, where the sentence did not amount to cruel and unusual punishment, because the case did not present an extreme disparity between the sentence imposed and the crime committed.

Read US v. Jones, No. 08-1352

Appellate Information

Submitted: April 21, 2009

Decided and Filed: July 7, 2009

Judges

Opinion by Judge Moore

Counsel

For Appellant:

Daniel R. Fagan, Daniel R. Fagan & Associates, P.C., Grand Rapids, MI

For Appellee:

Jennifer L. McManus, Assistant United States Attorney, Grand Rapids, MI

US v. Flores, No. 08-3359

In a drug conspiracy prosecution, the denial of Defendant's motion to suppress is affirmed where the police had reasonable suspicion to stop Defendant's vehicle because their extensive investigation had revealed that the location of the vehicle was the site of an anticipated drug delivery.

Read US v. Flores, No. 08-3359

Appellate Information

Submitted: June 18, 2009

Decided and Filed: July 6, 2009

Judges

Opinion by Judge Gilman

Counsel

For Appellant:

David L. Grant, Law Offices, Cleveland, OH

For Appellee:

Samuel A. Yannucci, Assistant United States Attorney, Akron, OH

In re Howard, No. 08-5799

In a petition for a writ of mandamus directing the Secretary of Labor to promulgate lower limits for the amount of dust and silica in the air in mines, the petition is dismissed where Petitioner failed to exhaust his administrative remedies under the Mine Act.

Read In re Howard, No. 08-5799

Appellate Information

Argued: April 29, 2009

Decided and Filed: July 6, 2009

Judges

Opinion by Judge Rogers

Counsel

For Petitioner:

Stephen A. Sanders, Appalachian Citizens Law Center, Whitesburg, KY

For Respondent:

Edward Waldman, United States Department of Labor, Washington, DC

Kramer v. Paul Revere Life Ins. Co., No. 07-1552

In an ERISA action against an insurer for wrongful termination of longterm disability benefits, judgment for Defendant is reversed where the record established that Plaintiff was disabled under the terms of the policy, and thus the plan administrator's decision to terminate benefits was arbitrary and capricious.

Read Kramer v. Paul Revere Life Ins. Co., No. 07-1552

Appellate Information

Argued: June 5, 2008

Decided and Filed: April 8, 2009

Judges

Opinion by Judge Daughtrey

Counsel

For Appellant:

Larry W. Bennett, Giarmarco, Mullins & Horton, P.C., Troy, MI

For Appellees:

Stephen L. Witenoff, Thomas, DeGrood & Witenoff, P.C., Southfield, MI

QSI Holdings, Inc. v. Alford, No. 08-1176

In a fraudulent conveyance action in Bankruptcy Court, summary judgment for Defendants is affirmed where 11 U.S.C. section 546(e) is not limited to publicly traded securities but also extends to transactions, such as the leveraged buyout at issue, involving privately held securities.

Read QSI Holdings, Inc. v. Alford, No. 08-1176

Appellate Information

Argued: March 4, 2009

Decided and Filed: July 6, 2009

Judges

Opinion by Judge Norris

Counsel

For Appellants:

John K. Cunningham, White & Case LLP, Miami, FL

For Appellees:

Boyd A. Henderson, Miller Johnson, Grand Rapids, MI

Serrato-Soto v. Holder, No. 08-4063

Petitioner's petition for review of the BIA's denial of his application for voluntary departure is denied where Petitioner's prior conviction for fraudulent use of identification constituted a crime involving moral turpitude, and thus he was ineligible for voluntary departure.

Read Serrato-Soto v. Holder, No. 08-4063

Appellate Information

Submitted: April 23, 2009

Decided and Filed: May 28, 2009

Judges

Opinion by Judge Suhrheinrich

Counsel

For Petitioner:

Barry L. Frager, The Frager Law Firm, P.C., Memphis, TN

For Respondent:

Leslie McKay, United States Department of Justice, Washington D.C.

Nguyen v. Holder, No. 08-3579

In a petition for review of the BIA's order removing Petitioner from the U.S. for committing a "crime of violence," the petition is granted where the theft of an automobile under the California grand theft statute is not a "crime of violence" under 18 U.S.C. section 16(b).

Read Nguyen v. Holder, No. 08-3579

Appellate Information

Submitted: May 1, 2009

Decided and Filed: July 2, 2009

Judges

Opinion by Judge Merritt

Concurring Opinion by Judge Griffin

Counsel

For Petitioner:

Ronald E. Kaplovitz, Kaplovitz & Assocs., P.C., Sylvan Lake, MI

For Respondent:

M. Jocelyn Lopez Wright, United States Department of Justice, Washington, DC

 

Harbison v. Little, No. 07-6225

In a 42 U.S.C. section 1983 action challenging Tennessee's lethal injection protocol under the Eighth Amendment, judgment for Plaintiff is vacated where Baze v. Rees, 128 S. Ct. 1520 (2008), addressed the same risks identified by the District Court, but reached the conclusion that they did not rise to the level of a constitutional violation.

Read Harbison v. Little, No. 07-6225

Appellate Information

Argued: January 20, 2009

Decided and Filed: July 2, 2009

Judges

Opinion by Judge Siler

Dissenting Opinion by Judge Clay

Counsel

Joseph Frederick Whalen, Office of the Tennessee Attorney General, Nashville, TN

Stephen M. Kissinger, Federal Defender Services of Eastern Tennessee, Inc., Knoxville, TN

Milholland v. Sumner Cty. Bd. of Educ., No. 08-5568

In an Americans with Disabilities Act action alleging that Plaintiff teacher was transferred between positions based on her arthritis, summary judgment for Defendant is affirmed, where Plaintiff failed to raise a genuine issue of material fact as to whether Defendant regarded her as disabled.

Read Milholland v. Sumner Cty. Bd. of Educ., No. 08-5568

Appellate Information

Argued: April 28, 2009

Decided and Filed: July 2, 2009

Judges

Opinion by Judge Rogers

Counsel

For Appellant:

W. Gary Blackburn, Blackburn & McCune, PLLC, Nashville, TN

For Appellees:

Amber St. John, Law Office of Amber St. John, Smyrna, TN

Jenkins v. Jenkins, No. 08-3534

In a petition under the Hague Convention on the Civil Aspects of International Child Abduction seeking the return of Petitioner's son to her custody in Israel, judgment for Respondent is affirmed where Petitioner failed to establish that there was an actual "removal or retention" by Respondent or that the alleged retention was "wrongful."

Read Jenkins v. Jenkins, No. 08-3534

Appellate Information

Argued: December 11, 2008

Decided and Filed: July 1, 2009

Judges

Opinion by Judge Daughtrey

Dissent by Judge Kennedy

Counsel

For Appellant:

Frederick J. McGavran, Frost Brown Todd LLC, Cincinnati, OH

For Appellees:

Shawn P. Hooks, Holzfaster, Cecil, McKnight & Mues, Dayton, OH

Hance v. Norfolk S. Ry. Co., No. 07-5475

In an action under the Uniformed Services Employment and Reemployment Rights Act (USERRA) claiming that Defendant terminated Plaintiff based on his military service, judgment for Plaintiff is affirmed where evidence of anti-military animus from a decisionmaker, combined with the close temporal relationship between Plaintiff's leave for military service and his discharge, were sufficient to support the District Court's finding that Plaintiff was discharged in violation of USERRA.

Read Hance v. Norfolk S. Ry. Co., No. 07-5475

Appellate Information

Argued: June 5, 2008

Decided and Filed: July 1, 2009

Judges

Per Curiam

Counsel

For Appellant:

James Stanton Whitehead, Sidley Austin LLP, Chicago, IL

For Appellee:

K. Cody Allison, Tiller Allison, Nashville, TN

Moldowan v. Warren, No. 07-2115

In a 42 U.S.C. section 1983 action alleging that Defendants fabricated evidence against Plaintiff in a criminal proceeding, summary judgment for Defendants is affirmed in part, where police officers enjoy absolute immunity for any testimony delivered at adversarial judicial proceedings. Judgment is reversed in part where the critical factor in determining whether the state's obligation to preserve evidence is absolute turns on the nature of the evidence at issue, not who destroyed or suppressed the evidence.

Read Moldowan v. Warren, No. 07-2115

Appellate Information

Argued: January 20, 2009

Decided and Filed: July 1, 2009

Judges

Opinion by Judge Clay

Concurrence in the judgment and dissent by Circuit Judge Kethledge

Counsel

Rosalind Rochkind, Garan Lucow Miller, P.C., Detroit, MI

Brian J. Richtarcik, Chapman & Associates, P.C., Bloomfield Hills, MI

Sarah R. Prout, Lakeshore LAKESHORE LEGAL AID, Port Huron, Michigan, for Appellants.

For Appellee:

Michael R. Dezsi, Fieger, Fieger, Kenney, Johnson & Giroux, Southfield, MI