October 2010 Archives

Gas company's claim, that a county's decision regarding an underground pipelines constitutes a taking of property which just compensation must be provided, dismissed for lack of jurisdiction

Texas Gas Transmissions, LLC v. Butler County of Bd. of Comm'r, 09-3743, concerned a suit for declaratory and injunctive relief, brought by Butler County and Texas Gas, seeking a declaration of the priority of their respective property interests and of the county's authority to order Texas Gas to strengthen or remove the pipelines underneath a certain road at issue at the company's expense.

Constitutional challenge to Tennessee's voter re-franchisement statute by Tennessee residents and convicted felons

Johnson v. Bredesen, 08-6377, concerned a challenge to the district court's grant of defendants' motion for judgment on the pleadings, in a suit filed by Tennessee residents and convicted felons, claiming that the Tennessee's voter re-franchisement statute, which conditions restoration of plaintiffs' voting rights on payment of court-ordered victim restitution and child support obligations, violates the Equal Protection Clause of the U.S. Constitution, the Twenty Fourth Amendment, and the Ex Post Facto and Privileges or Immunities Clauses of the U.S. and Tennessee Constitution.

First Amendment does not protect primary and secondary school teachers' in-class curricular speech

Evans-Marshall v. Bd. of Educ. of the Tipp City Exempted Vill. Sch. Dist., 09-3775, involved a teacher's section 1983 suit against a school board and other individuals, claiming that defendants had retaliated against her curricular and pedagogical choices, infringing her First Amendment right to select books and methods of instruction for use in the classroom without interference from public official.  In affirming the district court's grant of defendants' motion for summary judgment, the court held that the First Amendment does not protect primary and secondary school teachers' in-class curricular speech.

Related Link:

• Read the Sixth Circuit's Full Decision in Evans-Marshall v. Bd. of Educ. of the Tipp City Exempted Vill. Sch. Dist., 09-3775

Conditional grant of writ of habeas corpus for home invasion conviction affirmed

Guilmette v. Howes, 08-2256, concerned a challenge to the district court's grant of defendant's request for a conditional writ of habeas corpus from his conviction for first-degree home invasion.  In affirming, the court held that, because the state supreme court's order was unexplained and the last reasoned state court decision was on the merits, the state courts never enforced a procedural bar to defendant's claim of ineffective assistance of counsel.

Related Link:

• Read the Sixth Circuit's Full Decision in Guilmette v. Howes, 08-2256

District court's denial of defendant's motion to suppress certain evidence affirmed in part and reversed in part in a prosecution for being a felon in possession of a firearm

US v. Gross, 08-4051, concerned a challenge to the district court's conviction of defendant for being a felon in possession of a firearm and imposition of a 180-month sentence under the Armed Career Criminal Act (ACCA).

Summary judgment against plaintiff in his suit against his former employer for violation of the USERRA

Escher v. BWXT Y-12, LLC, 09-6054, involved a plaintiff's suit against his former employer, a managing and operating contractor for the National Nuclear Security Administration (NNSA), claiming violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Tennessee Public Protection Act, and common law retaliation.  In affirming the district court's grant of defendant's motion for summary judgment, the court held that the plaintiff does not point to evidence showing that his protected status was a motivating factor in the adverse employment action, and even if he could, defendant can show that it would have taken the adverse action anyway, for a valid reason.

Related Link:

• Read the Sixth Circuit's Decision in Escher v. BWXT Y-12, LLC, 09-6054,

Dismissal of motion to confirm an arbitration panel's interim award denying class arbitration

Dealer Computer Serv. Inc. v. Dub Herring Ford, 09-1848, concerned a challenge to the district court's dismissal of plaintiff's motion to confirm an arbitration panel's interim award denying class arbitration for lack of jurisdiction, in a breach of contract suit between some 2,470 car dealerships across the country and a provider of computer hardware and software support.  In affirming, the court held that the plaintiff has failed to demonstrate that it is subject to cognizable hardship if immediate judicial review of the interim award is denied.

Related Link:

• Read the Sixth Circuit's Decision in Dealer Computer Serv. Inc. v. Dub Herring Ford, 09-1848

Conviction for Sexual Exploitation of a Minor Affirmed

US v. Knowles, 09-5646, concerned a challenge to a conviction of defendant for sexual exploitation of a minor and for possession of materials involving the sexual exploitation of a minor.  In affirming the conviction, the court held that the district court did not err by admitting the second DVD copy into evidence, playing the FBI-created copy of the second DVD in court, or admitting into evidence a particular receipt from Wolf Camera.

Related Link:

• Read the Sixth Circuit's Full Decision in US v. Knowles, 09-5646

Conviction under the Hobbs Act affirmed

US v. Wells, 09-3276, concerned a challenge to a defendant's conviction for conspiracy to violate, as well as three counts of substantive violations of, the Hobbs Act, in a case arising from defendant's solicitation and acceptance of about $40,000 in bribes as a water pipe repair supervisor of a city.  In affirming the conviction, the court rejected defendant's claim of prosecutorial misconduct, and held that defendant has not adequately explained why his ineffective assistance claims should be reviewed on appeal rather than through a habeas petition.

Related Link:

Read the Sixth Circuit's Full Decision in US v. Wells, 09-3276

Denial of Motion to Suppress Evidence Found in Motel Room Reversed

US v. Domenech, 08-1220, concerned a challenge to the district court's denial of defendants' motions to suppress evidence found in their motel room during the course of a warrantless entry, in a prosecution of defendants for multiple firearm and drug trafficking offenses.

US v. Soto-Sanchez, 08-3541, concerned a challenge to the district court's application of a sixteen-level enhancement to a defendant's offense level under U.S.S.G. section 2L1.2 based on his prior conviction for attempted kidnapping, in a prosecution of defendant for illegal reentry into the United States after deportation.  In affirming, the court held that the six offenses punished by Michigan's former kidnapping statute either fall within the generic, contemporary meaning of kidnapping or have an element involving the use of force, and as such, under the categorical approach, the court cannot look beyond the statute as defendant was necessarily convicted of a crime of violence within the meaning of U.S.S.G. section 2L1.2(b)(1)(A) when he pled guilty to attempted kidnapping in Michigan state court.

U.S. ex rel. Summers v. LHC Group, Inc., 09-5883, concerned a challenge to the district court's judgment denying a plaintiff's motion under Fed. R. of Civ. Proc. 59(e) to alter an earlier judgment of dismissal, in the plaintiff's suit against her former employer, a corporation engaged in the business of providing in-home health services to patients insured by Medicare, pursuant to the False Claims Act.  In affirming the judgment, the court held that violations of the procedural requirements that qui tam actions be filed under seal, imposed on qui tam plaintiffs under the False Claims Act, preclude plaintiff from asserting qui tam status.

Related Resource:

• Full text of U.S. ex rel. Summers v. LHC Group, Inc., 09-5883