In Labor Secretary's enforcement action under the Labor Management Reporting and Disclosure Act, 29 U.S.C. section 401, against Local 234 of the Transit Workers Union, district court's dismissal of the complaint for lack of subject matter jurisdiction is reversed and remanded where: 1) because a union member's post-election protest was a valid exercise of an available remedy, his subsequent administrative complaint to the Secretary was timely; and 2) Secretary's LMRDA enforcement action based on that administrative complaint is judicially sound. 

Read Solis v. Local 234, Transp. Workers Union, No. 09-1143

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. No. 08-cv-1957)  

District Judge: Honorable Legrome D. Davis

Opinion Filed November 2, 2009

Judges

Before:  Barry, Fisher and Jordan, Circuit Judges

Opinion by Jordan, Circuit Judge 

Counsel

Counsel for Appellant:  Michael P. Abate, Michael F. Hertz, Laurie Magid, Thomas M. Bondy, Christopher C. Fonzone, Michael S. Blume, Virginia A. Gibson, U.S. Department of Justice

Counsel for Appellee:  Bruce Bodner, Kaufman, Coren & Ress, PC; Claiborne S. Newlin, Meranze & Katz

In plaintiffs' case against the school district under the Individuals in Education Act (IDEA), section 504 of the Rehabilitation Act of 1973, district court's grant of summary judgment in favor of the school district is affirmed, but its ruling with respect to the applicability of the Pennsylvania personal injury statute of limitations to the plaintiffs' claims under section 504 of the Rehabilitation Act is reversed. 

Read P.P. v. W. Chester Area Sch. Dist., No. 08-2874

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. Civil No. 06-cv-04338)  

District Judge: Honorable James T. Giles

Opinion Filed November 2, 2009

Judges

Before:  Rendell, Fuentes, and Roth, Circuit Judges

Opinion by Rendell, Circuit Judge 

Counsel

Counsel for Appellant:  Dennis C. McAndrews, Gabrielle C. Sereni, McAndrews Law Offices

Counsel for Appellee:  Jennifer Donaldson, Sweet, Stevens, Katz & Williams

In a First Amendment case against the city of Pittsburgh challenging the constitutionality of an ordinance establishing two types of zones limiting speech around health care facilities, district court's judgment is affirmed in part, reversed in part, vacated in part, dismissed in part, and remanded where: 1) district court's denial of preliminary injunctive relief with respect to plaintiff's facial challenge is reversed; 2) the combination of the ordinance's "buffer" and "bubble" zones is invalid but either zone, individually, is valid on its face; 3) district court's denial of preliminary injunctive relief with respect to plaintiff's claim of selective enforcement is affirmed but vacated with respect to her claim that the ordinance is unconstitutional as applied to particular clinic locations; and 4) plaintiff's appeal from the district court's order partially dismissing her complaint is dismissed. 

Read Brown v. City of Pittsburgh, No. 08-1819

Appellate Information

On Appeal from the United States District Court for the Western District of Pennsylvania

(D.C. Civil No. 06-cv-0393)  

District Judge: Honorable Nora B. Fischer

Opinion Filed October 30, 2009

Judges

Before:  Scirica, Chief Judge, Ambro and Smith, Circuit Judges

Opinion by Scirica, Chief Judge 

Counsel

Counsel for Appellant: David A. Cortman, Joshua B. Bollinger, Benjamin W. Bull, Jeremy D. Tedesco, Lawrence G. Palladin, Jr.

Counsel for Appellee:  Yvonne S. Hilton, Michael E. Kennedy, George R. Specter. 

District court's conviction of defendant for tax evasion and conspiracy to defraud the United States is affirmed where: 1) upholding the government's inclusion of multiple years of evasion in a single count was proper; and 2) the government's charge was not impermissibly duplicitous because the statutory language does not prohibit the government's decision to charge defendant for multiple years in one count and because analysis of the concerns traditionally associated with duplicitous charges demonstrates that defendant was not prejudiced by that decision. 

Read US v. Root, No. 08-2888

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. Civil No. 07-cv-00149)  

District Judge: Honorable Berle M. Schiller

Opinion Filed October 29, 2009

Judges

Before:  McKee, Hardiman, and Greenberg, Circuit Judges

Opinion by Hardiman, Circuit Judge 

Counsel

Counsel for Appellant:  Michael J. Fischer, Robert A. Zauzmer, Office of the United States Attorney

 Counsel for Appellee:  Bradley D. Barbin

In plaintiffs' securities class action arising from their purchase of defendant's registered shares , district court's grant of the class certification is affirmed where the Rule 23 class certification standard applied by the district court was proper.     

Read In Re: Constar Int'l Inc. Sec. Litig., No. 08-2461

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. Civil No. 03-cv-05020)  

District Judge: Honorable Edmund V. Ludwig

Opinion Filed October 29, 2009

Judges

Before:  Rendell, Fuentes, and Roth, Circuit Judges

Opinion by Rendell, Circuit Judge 

Counsel

Counsel for Appellant:  Steven B. Feirson, David W. Brown, Michael L. Kichline, Stuart T. Steinberg, Dechert; Jill M. Basinger, Marc J. Sonnenfeld, Morgan Lewis & Bockius

 Counsel for Appellee:  Eric A. Issacson, Joseph D. Daley, Coughlin, Stoia, Geller, Rudman & Robbins, Laura S. Stein

In plaintiffs-homebuyers' putative class action to recover statutory treble damages pursuant to section 8(d)(2) of the Real Estate Settlement Procedures Act (RESPA) of 1974, district court's dismissal of the complaint for lack of jurisdiction is reversed as the plain language of RESPA section 8 indicates that Congress created a private right of action without requiring an overarching allegation.  Finally, plaintiffs are not barred by the filed rate doctrine as it simply does not apply in this case.   

Read Alston v. Countrywide Fin. Corp., No. 08-4334

Appellate Information

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. Civil No. 07-cv-03508)  

District Judge: Honorable James T. Giles

Opinion Filed October 28, 2009

Judges

Before:  Barry, Fisher, and Jordan, Circuit Judges

Opinion by Barry, Circuit Judge 

Counsel

Counsel for Appellant:  Edward W. Ciolko, Joseph H. Meltzer, Donna S. Moffa, Terrence S. Ziegler, Barroway, Topaz, Kessler, Meltzer & Check; Eric G. Calhoun, Travis & Calhoun

 Counsel for Appellee:  Christine N. Kohl, Michael J. Singer, United States Department of Justice, Civil Division. 

In plaintiff's claim for insurance policy coverage of its directors and officers for fraudulent conveyance in Reliance-defendant's liquidation and against Hartford, who had taken over claims administration for defendant and assumed some of its liabilities, district court's grant of summary judgment in favor of Hartford is affirmed where: 1) the Hartford policy period does not include the amended Reliance policy period, and there is no basis to conclude that plaintiff could have reasonably expected its policy with Hartford to cover the Reliance policy; 2) the interrelated wrongful acts provision applies to bar coverage for the CCR and Claimants Committee actions under the Hartford policy; 3) other agreements do not make Hartford directly liable for the fraudulent conveyance actions; and 4) judicial estoppel does not apply to Hartford's invoking of the interrelated wrongful acts provision 

Read G-I Holdings v. Reliance Ins. Co., No. 07-2510

Appellate Information

On Appeal from the United States District Court for the Middle District of New Jersey

(D.C. Civil Action No. 00-cv-06189)  

District Judge: Honorable Dennis M. Cavanaugh.

Opinion Filed October 26, 2009

Judges

Before:  Scirica, Chief Judge, Ambro and Smith, Circuit Judges

Opinion by Ambro, Circuit Judge 

Counsel

Counsel for Appellant:  Anthony Bartell, McCarter & English; Stephen G. Weil, Jerold Oshinsky.

Counsel for Appellee:  Arnold R. Gerst, Brad M. Weintraub, Weiner Lesniak, Lawrence J. Bistany, Celestine M. Montague, White & Williams

District court's decision to exercise its discretion to grant defendant a downward departure under USSG section 4A1.3 as to his criminal history category, but not with respect to his offense level, is affirmed as the district court properly applied the Guidelines when it held that it could not depart downward in offense level under section 4A1.3 on the basis of defendant's overstated criminal history.  Furthermore, the district court adequately considered defendant's argument for a downward variance and the 37-month term of incarceration was substantively reasonable.   

Read US v. Grier, No. 07-3507

Appellate Information

On Appeal from the United States District Court for the Middle District of Pennsylvania

(D.C. No. 06-cr-00173)  

District Judge: Honorable Yvette Kane.

Opinion Filed October 26, 2009

Judges

Before:  Sloviter and Hardiman, Circuit Judges, and Pollak, District Judge

Opinion by Hardiman, Circuit Judge 

Counsel

Counsel for Appellant:  William A. Behe

Counsel for Appellee:  Edward J. Rymsza

In plaintiff's suit against defendant for fraudulent misrepresentation and negligence arising from his investment in their microwave technology, district court's grant of summary judgment in favor of defendant is vacated and remanded as the district court's proximate cause analysis was in error as plaintiff produced enough evidence to raise a genuine issue of material fact as to whether defendant's misrepresentations were a substantial factor in causing his failed investment.   

Read Bouriez v. Carnegie Mellon Univ., No. 07-3876

Appellate Information

On Appeal from the United States District Court for the Middle District of Pennsylvania (Civil No. 02-cv-02104)

District Judge: Honorable Arthur J. Schwab.

Opinion Filed October 26, 2009

Judges

Before:  Fisher, Chagares, and Hardiman, Circuit Judges

Opinion by Chagares, Circuit Judge 

Counsel

Counsel for Appellant:  John R. Gall, Philomena M. Dane, Christopher F.W. Haas, Kristen M. Blankley, Squire Sanders & Dempsey, LLP; John M. Mehren.

Counsel for Appellee:  George E. Yokitis, Walter P. DeForest, Mindy J. Shreve, Deforest, Koscelnik Yokitis Kaplan & Berardinelli

District court's denial of defendant's petition for habeas relief is affirmed as the Bureau of Prisons (BOP)articulated sufficient rationale for 28 C.F.R. section 550.58(a)(1)(vi)(B) to satisfy the arbitrary and capricious standard set forth in APA section 706(2)(A).  Furthermore, although the BOP's public safety rationale was not explicit in the Federal Register notices for the 1997 or 2000 regulations, the rationale may reasonably be discerned from the regulatory history and attendant litigation.   

Read Gardner v. Grandolsky, No. 09-1742

Appellate Information

On Appeal from the United States District Court for the Middle District of New Jersey

(D.C. Civil No. 08-cv-06127) District Judge: Renee Marie Bumb.

Opinion Filed October 26, 2009

Judges

Before: Fisher, Jordan, and Van Antwerpen, Circuit Judges

Per Curium Opinion 

Counsel

Counsel for Appellant: Albert Gardner 

Counsel for Appellee:  Paul A. Blaine, Office of the United States Attorney