U.S. Third Circuit: June 2009 Archives
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June 2009 Archives

Grammer v. John J. Kane Regional Centers, No. 07-2358

In a wrongful death action brought under the Federal Nursing Home Reform Amendments, district court judgment finding no right of action under the statutes and dismissing the case is reversed and remanded where it is clear that Congress intended to create individual rights in drafting and adopting the Amendments and plaintiff's mother falls squarely within the zone of interest the provisions are meant to protect. In addition, 42 U.S.C. sec. 1983 provides the proper avenue for relief for the statutory provisions which plaintiff seeks to enforce, as defendant has failed to demonstrate that Congress foreclosed that option by adopting another, more comprehensive enforcement scheme. 

Read Grammer v. John J. Kane Regional Centers, No. 07-2358

Appellate Information
Appeal from the United States District Court for the Western District of Pennsylvania.
Filed on JUNE 30, 2009

Judges
Before SMITH and NYGAARD, Circuit Judges, and STAFFORD, District Judge.
Opinion by NYGAARD, Circuit Judge.

Counsel
For Appellant: D. Aaron Rihn, Robert F. Daley, Robert Peirce & Associates.
For Appellee: Michael R. Lettrich, Meyer, Darragh, Buckler, Bebenek & Eck.

US v. Waterman, No. 08-2543

District court order suppressing evidence against defendant is reversed where defendant was not seized within the meaning of the Fourth Amendment under California v. Hodari D., 499 U.S. 621, 627 (1991), as there was no application of physical force and no submission to the assertion of authority. 

Read US v. Waterman, No. 08-2543

Appellate Information
Appeal from the United States District Court for the District of Delaware.
Argued: March 24, 2009
Filed: June 24, 2009


Judges
Before RENDELL, AMBRO, and JORDAN, Circuit Judges.
Opinion by RENDELL, Circuit Judge.

Counsel
For Plaintiff: Shawn A. Weede, Office of United States Attorney, Wilmington, DE.

For Defendant: Brian Crockett, Office of Federal Public Defender, Wilmington, DE.

Binder & Binder, P.C. v. Handel, No. 08-2137

IN RE: MELINDA HANDEL

In an appeal from an order discharging Debtor's debt to Plaintiff law firm, the order is affirmed, where the government had not waived its sovereign immunity for attorney's fee claims in social security disputes, and thus Defendant Social Security Administration was not liable for the fees incurred by Debtor.

Read Binder & Binder, P.C. v. Handel, No. 08-2137.

Appellate Information

On Appeal of a Decision of the United States District Court for the District of New Jersey (No. 2:07-02588 (DMC) District Judge: Dennis M. Cavanaugh
Submitted under Third Circuit L.A.R. 34.1(a) on January 13, 2009
Filed: February 18, 2009)

Judges

Before: SLOVITER and BARRY, Circuit Judges, and POLLAK, District Judge. Honorable Louis H. Pollak, Senior Judge of the United States District Court for the Eastern District of Pennsylvania, sitting by designation.
Opinion by POLLAK, District Judge.

Counsel

Jeffrey Herzberg, Zinker & Herzberg, Attorney for Appellants.

Anthony J. LaBruna, Office of United States Attorney, Attorney for Appellee Comm'r of Social Security.

Allen B. Gillman, Attorney for Appellee Melinda Handel.

Hagan v. Rogers, No. 07-1412

In an action by prisoners alleging that the prison failed to address a contagious skin disease, the dismissal of the complaint is reversed, where the Prisoner Litigation Reform Act did not remove prisoners from the definition of "Persons" permitted to join claims under Federal Rule of Civil Procedure 20.

Read Hagan v. Rogers, No. 07-1412.

Appellate Information

On Appeal from the United States District Court for the District of New Jersey
(D.C. Civil No. 06-cv-05033) District Judge: Honorable Stanley R. Chesler
Argued February 3, 2009
Filed June 19, 2009

Judges

Before: RENDELL, JORDAN, and ROTH, Circuit Judges.
Opinion by RENDELL, Circuit Judge.

Counsel

Joel McHugh, Esq. [ARGUED], Nancy Winkelman, Esq., Schnader Harrison Segal & Lewis. Counsel for Appellants

Larry R. Etzweiler, Esq. [ARGUED], Keith S. Massey, Jr., Esq., Office of Attorney General of New Jersey, Division of Law. Counsel for Defendant - Amicus Curiae State of New Jersey

Berne Corp. v. Gov't of the Virgin Islands, No. 08-3897

In an appeal from the District Court's order finding the Government of the Virgin Islands in contempt for violating a consent decree relating the assessment of commercial real property taxes, the order is affirmed where the government failed to create a functioning Board of Tax Review that consistently held hearings and reached determinations on appeals.

Read the full decision in Berne Corp, et al. v. Government of the Virgin Islands, No. 08-3897.

Appellate Information:

On Appeal from the District Court of the Virgin Islands, Division of St. Thomas and St. John. Honorable Curtis V. Gomez.
D.C. Civil Action Nos. 3-00-cv-00141, 3-00-cv-00167, 3-01-cv-00151, 3-01-cv-00155, 3-01-cv-00181, 3-01-cv-00196, 3-01-cv-00197, 3-01-cv-00228, 3-02-cv-00057
Argued on January 29, 2009
Opinion filed on June 16, 2009


Judges:

Before: SCIRICA, Chief Judge, AMBRO and SMITH, Circuit Judges.

Opinion by SCIRICA, Chief Judge.


Counsel:

Attorney for Appellants - TERRYLN M. SMOCK, Esq. (ARGUED)
Office of Attorney General of Virgin Islands
Department of Justice,

Attorney for Appellees - JAMES M. DERR, Esq. (ARGUED), DAVID A. BORNN, Esq. (ARGUED) of The Bornn Firm, SORAYA D. COFFELT, Esq.

US v. Styer, No. 08-2951

Defendant's drug sentence is affirmed, where: 1) Defendant was not entitled to an evidentiary hearing on his 18 U.S.C. section 3582(c)(2) motion; and 2) the District Court did not abuse its discretion by concluding that Defendant continued to pose a threat to public safety.

Read the full decision in US v. Styer, No. 08-2951.

Appellate Information:

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. District Judge: Honorable Legrome D. Davis.
(D.C. Crim. No. 02-cr-00570-001)
Submitted Under Third Circuit LAR 34.1(a) on March 2, 2009
Opinion Filed on March 25, 2009

Judges:

Before BARRY, WEIS, and ROTH, Circuit Judges

Opinion by BARRY, Circuit Judge.

Counsel:

Counsel for Appellant - Lawrence Singer, Esq. Suite 1010, 1617 John F. Kennedy Boulevard, One Penn Center, Philadelphia, PA 19103-0000

Counsel for Appellee - Bernadette A. McKeon, Esq. Office of the United States Attorney, 615 Chestnut Street, Suite 1250, Philadephia, PA 19106-0000

In re Harvard Indus., Inc., No. 07-3006

In the IRS's appeal from an order allowing a carry-back for certain of Debtor's claimed expenses, the order is affirmed in part, where a distributor's inability to resell a defective product does not qualify as "damage to or loss of the use of property" under I.R.C. section 172(f)(4)(A); but reversed in part, where the Debtor's pension plan payments qualified as specified liability losses.

Read the full decision in In re Harvard Indus., Inc., No. 07-3006.

Appellate Information:

On Appeal from the United States District Court for the District of New Jersey. District Judge Honorable Garrett E. Brown, Jr.
(D.C. No. 07-cv-00305)
Argued September 11, 2008
Filed June 17, 2009

Judges:

Before McKEE, SMITH, and WEIS, Circuit Judges.

Opinion by McKee, Circuit Judge.

Counsel:

Attorney for Appellant - JAMES N. LAWLOR, Esq. (Argued) Wollmuth Maher & Deutsch LLP, One Gateway Center, Ninth Floor Newark, New Jersey 07102.

Attorney for Appellee - KENNETH L. GREENE, Esq., ARTHUR T. CATTERALL, Esq., RACHEL I. WOLLITZER, Esq. (Argued). Tax Division, Department of Justice, 950 Pennsylvania Avenue, N.W. Post Office Box 502, Washington, D.C. 20044-0000