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Eleventh Circuit

A bunch of cases since last update (with a few more criminal cases yet to be summarized):

Willingham v. Loughnan (2/18/03) finds that the defendant police officers are entitled to qualified immunity against excessive force claims. The case is back before the Circuit having been remanded by the Supreme Court for reconsideration in light of Hope v. Pelzer, but the Circuit (Edmondson, J.) says (a) Hope v. Pelzer isn't very different from what we'd been saying all along, and doesn't change our law much; and (b) qualified immunity is still monstrously hard to overcome.

De Leon v. Comcar Industries (2/18/03) upholds summary judgment against pltf in an employment case, based on estoppel, since he failed to disclose this claim in his prior bankruptcy proceeding. Prior precedent of the Eleventh Circuit had reached the same result in the Chapter 7 context, and this case applies the same rule in Chapter 13.

Holmes v. Kucynda (2/13/03) mostly – but not entirely – partially affirms, but partially reverses, summary judgment for defendants in a Fourth Amendment case. The County wins because the plaintiff failed to prove a county policy or custom that caused the alleged deprivation, and there was no proof of an unlawful "failure to train"; and the officers win by qualified immunity on the claim that they entered the apartment unlawfully (they win because the evidence suggested that the tenant non-verbally acquiesced to a request for consent to enter). But summary judgment is reversed on the claims based on the officers' behavior once they entered; the facts as set forth in the opinion are pretty scary police-state stuff.

Household Bank v. JFS Group (2/7/03) is about the extent of federal court jurisdiction over declaratory judgment actions. The Court holds that when somebody could file a suit against you under a federal statute, then you can by the same token file a declaratory judgment action against them in federal court – even if the other party says "yes, but I was actually planning on suing you under state law, not federal law." Forum-shopping possibilities are endless.

Farrow v. West (2/7/03) reverses, in part, summary judgment against a prisoner in his suit alleging official indifference to his medical (dental) needs, in dawdling about getting him dentures for over a year despite his serious pain and resulting medical condition.

Nat. Fire Ins. Co. v. Fortune Constr. Co. (2/7/03) begins: "The primary issue presented by this appeal is whether a surety on construction contract performance and payment bonds issued on behalf of a subcontractor has superior rights to retained contract balances in the possession of the general contractor when the general contractor completed the performance and has unsatisfied claims against the defaulting subcontractor." Whatever.

Thompson v. Secretary (2/6/03), a habeas case, is about "mixed" petitions and procedural issues.

Harden v. Pataki (2/10/03) holds that a prisoner can bring suit under 42 USC § 1983 to challenge the procedures by which he was extradited from one state to another.

Admiral Ins. v. Feit Mgmt. (2/19/03) interprets the word "from" in the pollution exclusion of an insurance contract. Lots of ink spilled to interpret that one little common word.

Gonzalez-Oropeza v. Att'y Gen'l (2/19/03) holds that the Court had no jurisdiction to review a decision by the Board of Immigration Appeals, denying relief from a removal order; and that the appellant's due process rights were not violated by the BIA's issuance of a no-opinion affirmance of the immigration judge's decision.

Hill v. White upholds the dismissal of a discrimination case filed by a civilian employee of the Army, because the Court sees the case as really being a challenge to the denial of security clearance and therefore not judicially reviewable.

Bui v. Haley (2/19/03) GRANTS habeas corpus in a capital case, based on Batson.

John F. Goodman Ltd. Partnership v. THF Constr. (2/14/03), a construction dispute, ends up being about Florida law on arbitrability. The Court holds under Florida law that, where there is a dispute about the enforceability of the contract (because one subcontractor was unlicensed, which may lead to unenforceability under Fla. law), the arbitration clause is "separable" from this issue about enforceability, and therefore the issue of enforceability must be argued to the arbitrator in the first instance.

Downing v. Bd. of Trustees (2/13/03) rejects the contention that the Congress exceeded its Fourteenth Amendment power in subjecting States to suit for sexual harassment and for retaliation under Title VII.

Fla. Pub. Tel. Ass'n v. City of Miami (2/13/03) contains much more than you probably want to know about the extent to which Florida municipalities, as opposed to the Florida Public Service Commission, can regulate pay phones.

Ballard v. IRS (2/13/03) upholds the Tax Court's conclusion that the taxpayers committed fraud. Holds that the procedure utilized – in which the Tax Court reviewed factual findings by a Special Trial Judge without letting the taxpayer see those findings – did not violate the taxpayer's due process rights.

Monahan v. IRS (2/13/03) rules against the taxpayer, holding that the "Piggyback Agreement" (by which the taxpayer agreed that its case would be governed by the result in another case being litigated at the same time) was enforceable and that it meant that the taxpayer lost because the taxpayer in the piggybacked case lost.

Ramirez v. Progress Preferred Ins. Co. (2/13/03) "concerns the obligations of a motor carrier and its insurer, specifically the extent of an insurer's liability when it fails to cancel a certificate of insurance filed with the State after a policy lapses" – and certifies questions about this to the Georgia Supreme Court.

Eleventh Circuit

US v. Martin (2/6/03) is about a sentencing issue in a money laundering case. Under the 1998 version of the applicable Guideline, the sentence depended on the "value of the funds". The Court holds that if you take $300,000 and launder it through a series of transactions, the "value of the funds" for sentencing purposes is the total of all the transactions (here, over $1 million) rather than just the $300k you started out with. Thus a higher sentence. The Court notes that this might no longer be true, under the 2001 amended version of the applicable Guideline.

McCarthy v. US (2/6/03) applies, and declines to find an exception to, the Supreme Court's opinion in Daniels v. US (2001), to the effect that a person whose sentence is enhanced based on prior convictions cannot file a habeas corpus petition challenging that sentence in order to attack the validity of the prior convictions.

National Labor Relations Board

Decisions are starting to trickle out of the Bush Board. Today's weekly recap from the Board brings a few simple summary judgment cases (i.e., cases in which the employer didn't answer the General Counsel's unfair labor practice Complaint), and one case, Aviation Safeguards (pdf file), finding that an employer that provides baggage handling services at JFK Airport is subject to the RLA, rather than to the NLRA.

Three Eleventh Circuit decisions yesterday:

Tampa Bay Shipbuilding v. Cedar Shipping (2/5/03), a case about repairs to a ship, ends up being an important case about the types of non-expert opinion testimony that are admissible under Rules of Evidence 701(c). To put it most simply, the Court holds that testimony by a business person, stating opinions about business (e.g., lost profits, rates, etc.) based on experience in business, does not have to jump through all the hoops of expert testimony; it can be admitted as layperson opinion testimony under Rule 701(c), just as it could before the adoption of that portion of Rule 701.

Four Seasons v. Consorcio Barr, SA (2/5/03), a case about alleged unauthorized access to a computer network, ends up being a case about the procedural requirements for a preliminary injunction. The Court vacates the preliminary injunction because the Defendant was not given reasonable notice and time to prepare a defense to the motion; there were hotly disputed factual issues, but the Defendant wasn't allowed a fair opportunity to develop and present its case,

Wright v. AmSouth (2/5/03), a case about age discrimination, reverses summary judgment in part. Holds that (a) the EEOC charge was timely, having been filed within 180 days of the unequivocal notice that he was going to be fired (and the District Court erred in asking instead when he should have figured out that he was toast); (b) summary judgment was appropriate on a state law fraud claim, because no proof of present intent not to perform; and (c) no error in refusing to compel an answer to an overbroad discovery request, where pltf didn't offer any way of narrowing it down or identifying what relevant information he was after.

Eleventh Circuit

Patel v. Thompson (1/31/03) upholds an HHS decision that bars Dr. Patel from participation in any federally-funded health programs for 10 years, based on sexual misconduct with a patient. The main issue discussed is whether the regulation calling for this 10-year prohibition (rather tha a shorter one) was improperly applied "retroactively", where the conduct took place before the regulation was adopted. The Court hold that there is no retroactivity problem, because the regulation was remedial rather than punitive and was intended to protect current and future patients.

US v. Ridgeway (1/31/03) vacates a portion of a criminal sentence -- specifically, the portion providing, as a condition of the term of supervised relief, that the defendant refrain from "conduct or activities that would give reasonable cause to believe" that he had violated any criminal law (a condition that is apparently routinely imposed in S.D. Ala.). The Eleventh Circuit says that this is just entirely too vague and therefore can't be imposed.

Hardwick v. Crosby (1/31/03), a capital habeas corpus case, denies relief as to the conviction but holds out some possibility of relief as to the sentence. Defendant had an utterly horrible relationship with appointed counsel, who did practically nothing at trial. Denying relief as to the conviction, the Court indicates that the lawyer's failure to put on witnesses was within the range of reasonable strategy, and that Hardwick has not shown what witnesses might have made a difference had they been called. However, the denial of relief as to the sentence is reversed, and the case is remanded to the District Court for an evidentiary hearing as to whether trial counsel was constitutionally deficient in the sentencing phase, based on failure to put on any mitigating evidence.

US v. Stanford (1/22/03) is a fascinating case and great decision finding that the government had not produced sufficient evidence of probable causes to justify forfeiture of $242,000 in cash seized from Ms. Stanford at the airport. Long story short, there was insufficient evidence that it was drug money. A must-read opinion for anybody with a forfeiture case, and interesting reading for everybody else too. Poses the nice question: if the government claims that part of the justification for the seizure was that a drug-sniffing doggie alerted on the money, why did the government put the money back into circulation the next day, where some other innocent person could easily be alerted-upon for carrying the same bills???

US v. Saunders (1/23/03) gives a long explanation of what must be shown in order to justify application of the sentencing guideline that increases your guidelines score if you are "in the business of receiving and selling stolen property." Affirms the sentence, rejecting defendant's appeal.

McAbee v. Fort Payne (1/23/03), a rather important environmental decision, holding (in a nutshell) that Alabama's environmental statutes are not "comparable to" the Clean Water Act and therefore that an Alabama citizen can bring suit under the Clean Water Act even if the state environmental agency is pursuing the same matter under the state's own laws. The Court holds that "for state law to be 'comparable,' each class of state-law provisions must be roughly comparable to the corresponding class of federal provisions." and concludes that Alabama's law does not meet this comparability test because Alabama's laws provide for much more limited public participation in agency enforcement activities.

FTC v. Tashman (1/24/03) reverses the District Court, and renders judgment in favor of the FTC, holding that the defendant made misleading statements about the rewards that investors in his phone-card-selling business could earn. According to the Court, the defendant just made up facts to induce people to buy his phone-card-dispensing machines; and the Court holds that this violated the FTCA.

Penalty Kick v. Coca Cola (1/24/03) is about trade secrets and such things. Plaintiff claims that it came up with a great gimmick to place secret messages on Coke bottles that could be decoded only by drinking the coke (and then looking through the bottle). Coke says "other people came up with the idea independently, and we didn't steal anything from you or disclose your secrets." Coke wins, based on the evidence and long discussion of the elements of a trade secrets claim under Georgia law.

US v. Hernandez-Gonzalez (1/27/03), affirming a sentence, holds that the District Court did not commit "plain error" in imposing a 16-level increase for a "crime of violence," because the applicable guideline was ambiguous and hadn’t yet been authoritatively construed and therefore this couldn’t be plain error.

Hawkins v. AL (1/27/03), denying a writ of habeas corpus, discusses what you have to prove in order to show that a state court decision was "contrary to, or an unreasonable application of," clearly established federal law under the AEDPA. The case exemplifies the very strict standard that currently applies to federal habeas law.

US v. Lejarde-Rada (1/28/03) rejects defendant's argument that his guilty plea was invalid. His argument is that the District Court failed to make sure he understood the consequences of the plea, in that the District Court failed to tell him that he would not be able to appeal the District Court's refusal to make a downward departure in sentencing. The Circuit says that the District Court was not required to spell that out for him.

US v. Aetna Life (1/28/03) is about the limits of liability, in a qui tam case, of an entity that is a "fiscal intermediary" in the processing of Medicare claims. Aetna's job was apparently to audit the Medicare claims submitted by a provider. The Court holds that Aetna might be liable if it sought federal payment for auditing services that it did not, in fact, perform – but that Aetna is immune from any claim that the underlying provider's claims were fraudulent.

Ford v. Brown (1/30/03). Wow, what a messy dispute. Plaintiff, a Hong Kong lawyer, says that Exxon and others had a conspiracy to cover up their complicity in a major industrial explosion in Hong Kong, and that they defamed him and otherwise messed him up when he refused to go along. Defendants say plaintiff is wacky. The Eleventh Circuit, reversing the District Court, dismisses the case on forum non conveniens grounds, saying 'litigate this in Hong Kong – leave us alone.'

Eleventh Circuit updates

Bellsouth v. MCI (1/10/03, en banc) is about telecom law, the extent of a state public service commission's jurisdiction, and the extent of federal court jurisdiction to review such a commission's order. The holding seems to be that a state commission does have the power to interpret an interconnection agreement, and that federal courts do have jurisdiction to review such interpretations.

Gonzales v. Dept of Corrections (1/13/03) is about various facets of the question whether a Rule 60(b) motion in a habeas corpus proceeding is to be considered a successive petition.

Dorelian v. Atty Gen. (1/13/03) is a denial of rehearing en banc, with concurring and dissenting opinions, regarding temporary stays of removal orders in immigration proceedings.

Shaps v. Provident Life (1/13/03), following an answer by the Fla. S.Ct. to a certified question, is about who bears the burden of proof in a case about disability insurance. More precisely, it's about a choice of law question in that regard; the answer is that the issue is deemed to be "procedural" under Florida law, and therefore Florida's choice of law rules require application of Florida law on this point, so the burden was on the insurer.

Next Century v. Ellis (1/14/03) affirms the Rule 12(b)(6) dismissal of a complaint alleging fraud and negligent misrepresentation. The allegation, essentially, was that the defendant had induced shareholders not to sell their stock, by telling them that he expected "strong performance" by the stock in the future. The only claims at issue here are Georgia state law claims; and the Eleventh Circuit, affirming the dismissal, holds that this just constituted "puffing" that's not actionable under Georgia law, and also that the plaintiff could not have reasonably relied on the statement.

US v. Ortiz (1/14/03) affirms convictions for firearms violations, finding sufficient evidence that the defendant made false statements to a firearms dealer (in that he was buying the firearms planning to sell them to someone else, but filled out a federal form saying otherwise). Also rejects an Apprendi challenge to a guidelines-based sentence increase, holding (a) that Apprendi doesn't apply to guidelines calculations, and (b) that the finding in question didn't increase the sentence beyond the statutory max and therefore doesn't implicate Apprendi.

US v. Steiger (1/14/03) involves a defendant convicted of child pornography, who was tracked and caught by a private citizen who makes a hobby of finding such people on the internet, hacking into their computers, and turning them in. The Court holds that the use of evidence obtained in this manner – and the reliance on this person in the search warrant affidavit – did not violate the Fourth Amendment (because the hacker was not a government agent) and did not require suppression under the federal wiretapping statute. Very interesting opinion.

Ares v. Manuel Diaz Farms (1/17/03) holds that the plaintiff was an agricultural employee and therefore not covered under the Fair Labor Standards Act. He worked for a landscaping company; but the Court held that this company (which was not itself agricultural), and a sister company that was actually in the agriculture business, constituted in effect a single agricultural business entity that was exempt from the FLSA. Odd – it's always difficult to pierce corporate veils and overcome the formalities of separate corporate forms, when plaintiffs want to do that.

Liberty Mutual v. C-Staff (1/17/03), receiving the answer to a question certified to the Ga. S.Ct., holds that in Georgia, if you're holding a judgment and want to institute proceedings to enforce that judgment against other entities (on the theory that they are, e.g., alter egos or fraudulent transferees or successors of the judgment debtor), you have to file a whole new lawsuit against those entities rather than just instituting post-judgment proceedings against them in the original case.

Steger v. GE (1/17/03) affirms a judgment on a jury verdict for the defense in an employment discrimination case. The Court rejects various arguments raised by the plaintiff, holding (inter alia) that the defendant introduced sufficient evidence to justify the conclusion that it would have made the same decision even without considering plaintiff's age (and that the reasons given were sufficiently objective to warrant application of this defense); that GE properly raised an affirmative defense in the pretrial order and therefore was properly allowed to rely on it, even though the affirmative defense hadn't been raised in the Answer; that sexist comments by someone other than the decisionmaker were properly excluded; etc.

Eleventh Circuit

The following decisions, not yet summarized here, have been issued by the Eleventh Circuit since the first of the year:

Anheuser-Busch v. Philpot (1-9-03) affirms a judgment dismissing A-B's claims against a guy whom the company sued for defamation; the District Court did not err in requiring an evidentiary hearing before it would award monetary relief in favor of A-B after a default by the defendant, nor did the District Court err in finding that A-B had failed to prove that the guy caused any damage to A-B.

Textron Financial v. United Financial Group (1-9-03) is about the perfection of security interests, and is therefore completely uninteresting to me.

Burke v. State of Wisc. Investment Board (1-8-03) holds that the appointment of a lead plaintiff in a securities class action is an unreviewable order after the approval of a settlement; the court also, however, vacates the order distributing fees among plaintiffs' counsel because the district court had not made sufficient findings as to the reasons for its distribution so as to allow appellate review.

Anderson v. U.S. (1-7-03) involves a guy hurt by a bomb dropped from a plane that had taken off from an aircraft carrier during a training exercise. The Court holds that the guy could not bring a claim under the Federal Tort Claims Act because the claim was covered by admiralty law instead -- and that his claim under admiralty-related statutes was not filed within the applicable limitations period.

US v. Rubio (1-7-03) is a sentencing case, affirming enhancements for (a) criminal history (holding that a previous conviction for DUI causing serious physical injury is a "crime of violence"; and (b) obstruction of justice (just because he pinched a witness against him, after his conviction, when they ran into each other in the prison yard!) and (c) affirming the denial of an "acceptance of responsibility" reduction, where Rubio had withdrawn his guilty plea and never thereafter accepted responsibility.

Hubbard v. Haley (1-7-03) denies habeas corpus in a capital case, rejecting various arguments including ineffective assistance of counsel.

U.S. v. Jordan (1-6-03) reverses the dismissal of criminal charges. The District Court dismissed the case based on prosecutorial misconduct regarding the failure to turn over evidence (Brady, Giglio, Jencks Act, that sort of thing); the Court of Appeals reverses, finding the prosecutor's conduct to have been proper.

In Re: the Bal Harbour (1-2-03) affirms the dismissal of a bankruptcy petition, holding that the petition had been filed in bad faith.

U.S. v. Adams (1-2-03) is about sentencing -- more precisely, about downward departures for overrepresentation of criminal history.