Circuit Watcher

06-5420 Bridgeport Music, Inc. v. Universal-Polygram Int’l Publ’g, Inc.
Before: GUY, GILMAN, and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge. Plaintiff-Appellant Bridgeport Music, Inc. (“Bridgeport”) appeals from the district court’s order awarding attorneys’ fees and costs to Defendant-Appellee Universal-Polygram International Publishing, Inc. (“UPIP”) as a prevailing party under 17 U.S.C. § 505. This court had vacated an earlier award of fees and costs to UPIP and remanded to the district court for further consideration. Bridgeport Music, Inc. v. Rhyme Syndicate Music, 376 F.3d 615 (6th Cir. 2004). On remand, the district court awarded the same amount of fees and costs to UPIP. Bridgeport argues that the district court abused its discretion. For the reasons set forth below, we affirm. … Bridgeport Music, Inc. v. Universal-Polygram Int’l Publ’g, Inc.

06-2054 King v. Ambs
Before: ROGERS and COOK, Circuit Judges; O’MALLEY, District Judge.¹
ROGERS, Circuit Judge. This is an appeal from summary judgment entered in favor of a police officer in a § 1983 action. Officer Kevin Ambs was questioning a third party, Nicholas Klein, when plaintiff Sean King told Klein not to speak to the officer. After King had twice told Klein not to talk to the officer, Officer Ambs threatened to arrest King if he said “one more word.” King told Klein a third time not to speak to the officer, at which point Officer Ambs arrested King. Relying on Houston v. Hill, 482 U.S. 451 (1987), King argues that the arrest violated his First and Fourth Amendment rights. Officer Ambs argues that the arrest did not violate the Constitution and that he is entitled to qualified immunity. The district court granted Officer Ambs’ motion for summary judgment and held that King’s interference with Officer Amb’s investigation provided probable cause for the arrest. We affirm the district court’s judgment. … King v. Ambs.

1. The Honorable Kathleen McDonald O’Malley, United States District Judge for the Northern District of Ohio, sitting by designation. [↩]

07-5381 Dunlap v. TVA
Before: MARTIN and SUTTON, Circuit Judges; OBERDORFER, District Judge.¹
BOYCE F. MARTIN, JR., Circuit Judge. David Dunlap brought suit under Title VII of the Civil Rights Act of 1964, alleging racial discrimination by the Tennessee Valley Authority. The district court found that Dunlap had been subjected to discrimination under both disparate treatment and disparate impact analyses, concluding that the TVA’s subjective hiring processes permitted racial bias against both Dunlap and other black job applicants. The TVA now appeals, arguing that the district court erred in each of these analyses. We find that although the district court was correct in finding disparate treatment, the proof was insufficient for a finding of disparate impact. We therefore AFFIRM on the disparate treatment claim, REVERSE on the disparate impact claim, and AFFIRM the court’s award of damages and fees. … Dunlap v. TVA.

1. The Honorable Louis F. Oberdorfer, Senior United States District Judge for the District of Columbia, sitting by designation. [↩]

07-1421 Adkins v. Wolever
Before: MARTIN and SUTTON, Circuit Judges; OBERDORFER, District Judge.¹
BOYCE F. MARTIN, JR., Circuit Judge. Kenneth Ray Adkins brought an action in federal court against Basil Wolever, a guard at the Ionia Maximum Correctional Facility in Ionia, Michigan. Adkins alleges that Wolever assaulted him in his cell and caused serious injuries. At trial, Adkins asked the district court for an instruction on the alleged spoliation of the film and photographic evidence of the alleged assault, which Adkins maintains was destroyed in contravention of prison policy. The district court denied the instruction, finding that Michigan law did not provide for a third-party spoliation sanction. Because the district court did not abuse its discretion under the present law of our Circuit, we AFFIRM the verdict, along with the hope that an en banc panel will change this law to recognize the power of the federal courts to order such sanctions in appropriate circumstances. … Adkins v. Wolever.

1. The Honorable Louis F. Oberdorfer, Senior United States District Judge for the District of Columbia, sitting by designation. [↩]

06-4538 Graham v. Mukasey
Before: MERRITT, DAUGHTREY, and MOORE, Circuit Judges.
MARTHA CRAIG DAUGHTREY, Circuit Judge. Petitioner Nicholas Antonio Graham is a citizen of Jamaica who entered the United States as a visitor, overstayed his visa, and was subsequently convicted in federal court on two counts of conspiracy to commit mail fraud. He now petitions for review of the final administrative order of removal based on his status as an alien convicted of an aggravated felony, under 8 U.S.C. § 1227(a)(2)(A)(iii). Graham contends that the expedited removal procedure to which he was subjected, pursuant to 8 U.S.C. § 1228(b), violated both his due process and his equal protection rights. We find no merit to these contentions and, therefore, deny the petition for review. … Graham v. Mukasey.

06-3811 Ahmed v. Mukasey
Before: MOORE and GRIFFIN, Circuit Judges; GRAHAM, District Judge.¹
GRIFFIN, Circuit Judge. Petitioner Muhammad M. Mana Ahmed, a native and citizen of Yemen, seeks review of a final order of removal issued by the Board of Immigration Appeals, denying his motion to remand and affirming the determination of the Immigration Judge that he was ineligible for consideration of adjustment of status pursuant to the Child Status Protection Act of 2002 (“CSPA”), Pub. L. 107-208, 116 Stat 927. For the reasons stated below, we hold that the BIA abused its discretion by failing to address petitioner’s newly acquired evidence. Accordingly, we grant Ahmed’s petition for review, vacate the BIA’s removal order, and remand to the BIA for further proceedings consistent with this opinion. … Ahmed v. Mukasey.

1. The Honorable James L. Graham, United States District Judge for the Southern District of Ohio, sitting by designation. [↩]

07-5431 U.S. v. Urrieta
Before: GUY, GILMAN, and McKEAGUE, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. Jose Eduardo Urrieta appeals the district court’s denial of his motion to suppress evidence. During a routine traffic stop, Deputy Sheriff Lee Young detained Urrieta beyond the time reasonably necessary to issue a citation, primarily because the officer mistakenly believed that Urrieta was not allowed to drive in Tennessee with a Mexican driver’s license. Deputy Young claims that, during the course of the traffic stop, he became suspicious that Urrieta was transporting drugs. Eventually Urrieta gave Deputy Young written consent to search his vehicle. The deputy discovered no drugs, but found three handguns and several fraudulent identification cards. Finding that Deputy Young had a reasonable suspicion to extend the detention and that Urrieta’s consent was voluntary, the district court denied Urrieta’s motion to suppress. For the reasons set forth below, we REVERSE the judgment of the district court. … U.S. v. Urrieta.

07-5230 Arendale v. City of Memphis
Before: SILER, CLAY, and COOK, Circuit Judges.
CLAY, Circuit Judge. Plaintiff Michael Arendale is a white police officer employed by the Memphis Police Department. He appeals the district court’s grant of summary judgment in favor of Defendant City of Memphis (“The City”) in this civil rights suit brought under 42 U.S.C. §§ 1981 and 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. § 4-21-101 et seq. For the reasons that follow, the district court’s decision granting summary judgment in favor of the City is AFFIRMED. … Arendale v. City of Memphis.

07-8006 Buckeye Retirement Co. v. Swegan (In re Swegan)
Before: AUG, PARSONS, and SCOTT, Bankruptcy Appellate Panel Judges.
JOSEPH M. SCOTT, JR., Bankruptcy Appellate Panel Judge. Buckeye Retirement Co. (“Buckeye”) appeals the bankruptcy court’s order denying its motion for summary judgment and granting summary judgment in favor of the debtor Ralph Swegan (“Debtor”) on Buckeye’s complaint seeking an order denying the Debtor a discharge pursuant to 11 U.S.C. § 727(a)(2)(A). Because the Panel disagrees with the bankruptcy court’s restrictive application of “concealment” within the context of § 727(a)(2)(A) and determines that a genuine issue of material fact exists as to whether the Debtor had the requisite intent to “hinder, delay, or defraud” Buckeye in its collection efforts, the order granting the Debtor summary judgment will be reversed and the adversary proceeding remanded for trial. … Buckeye Retirement Co. v. Swegan (In re Swegan).

07-5068 Noe v. Polyone Corp.
Before: SUTTON and McKEAGUE, Circuit Judges; FORESTER, District Judge.¹
McKEAGUE, Circuit Judge. This is a retiree health benefits case, in which the court is asked to determine whether the parties to various labor agreements intended for retiree health benefits to vest such that any termination of those benefits constitutes a violation of § 301 of the Labor Management Relations Act (“LMRA”). The district court granted summary judgment for defendant-employer PolyOne Corp. after concluding that the labor agreements in question were unambiguous and established no intent to vest retiree health benefits. Having conducted a thorough review of the record and the applicable law, we arrive at a different conclusion and VACATE the district court’s judgment. … Noe v. Polyone Corp.

1. The Honorable Karl S. Forester, Senior United States District Judge for the Eastern District of Kentucky, sitting by designation. [↩]

07-5942 Carter v. Burns
Middle District of Tennessee at Nashville
Before: MARTIN and NORRIS, Circuit Judges; STAMP, District Judge.¹
BOYCE F. MARTIN, Circuit Judge. John E. Carter, a Tennessee prisoner proceeding pro se, appeals a district court judgment dismissing his civil rights action filed under 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).
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Carter brought this § 1983 action against fourteen judges and justices of the Tennessee Criminal Court, Tennessee Court of Criminal Appeals, and Tennessee Supreme Court in their official capacities. Carter sought a declaratory order that the State of Tennessee is constitutionally mandated to provide him with an adequate corrective process to bring a constitutional challenge to his convictions following the clarification of the “premeditation” and “deliberation” elements of first-degree murder in State v. Brown, 836 S.W.2d 530, 537-43 (Tenn. 1992). Since the Brown clarification, Carter has filed numerous habeas corpus and other post-conviction challenges to his convictions in state court, in which his Brown-based constitutional claims have been rejected as not cognizable in the type of proceeding in which he brought them or as barred by the statute of limitations. According to Carter, the Tennessee statutes governing collateral review, Tenn. Code Ann. §§ 29-21-107, 40-26-105, 40-30-107, and 40-30-117, “facially and/or as enforced and applied,” are unconstitutional under the Eighth and Fourteenth Amendments because these statutes deprive him of all opportunity for judicial review and redress of his Brown-based constitutional claims. …the district court’s opinion is affirmed in part and vacated in part, and this case is remanded for further proceedings. Carter v. Burns.

1. The Honorable Frederick P. Stamp, Jr., United States District Judge for the Northern District of West Virginia, sitting by designation. [↩]

07-5452 Heavrin v. Schilling
Before: MARTIN, GIBBONS, and GRIFFIN, Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge. Donald Heavrin appeals the district court’s decision affirming the bankruptcy court’s dismissal of his claim for intentional infliction of emotional distress, and imposition of sanctions. We AFFIRM. … Heavrin v. Schilling.

06-5513 U.S. v. Goodman
Before: MOORE, GILMAN, and SUTTON, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. In this case the defendant, Marvin Goodman (“Goodman”), challenges the district court’s use of a 1993 Tennessee escape conviction for an enhancement to his sentence under the Armed Career Criminal Act (“ACCA”). Although it is possible that a Tennessee court might no longer consider a violation of house arrest to qualify as an escape under Tennessee law, precedent binds us to consider that conviction a violent felony until such time that Goodman can overturn or expunge that conviction. Goodman also challenges the district court’s decision to give him a one-level enhancement for possessing a firearm in connection with a controlled-substance offense. The evidence before the district court did not establish that the firearm was possessed in connection with a controlled-substance offense. We therefore VACATE Goodman’s sentence and REMAND to the district court for resentencing consistent with this opinion. … U.S. v. Goodman.

02-1386, 02-1461, 02-1570 U.S. v. Gabrion
Before: MERRITT, BATCHELDER, and MOORE, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. In this appeal from a federal criminal conviction, we are confronted with the precursory issue of whether a district court has subject matter jurisdiction over a criminal prosecution for murder — the federal statute for which predicates subject matter jurisdiction on the murder’s having been committed on certain federal property — when the property in question is within the national forest. The dispositive question is whether certain national forest land falls within the federal government’s territorial jurisdiction. Because, in this case, it does, the district court had subject matter jurisdiction over this criminal prosecution. …
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KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. I concur in the judgment of the lead opinion and write separately because my analysis differs in some respects and because I believe we are obligated to respond to additional arguments made by Gabrion that the lead opinion does not address. …
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MERRITT, Circuit Judge, dissenting. Although it may seem at first glance somewhat counterintuitive to say that the federal courts do not have general or plenary subject matter jurisdiction over murder and other crimes in the national forests, that is, in fact, the situation. That is the situation because our system of federalism requires that Congress act by clear positive legislation to create such criminal jurisdiction, and Congress has not done so. There is no commonlaw, federal criminal, subject-matter jurisdiction in national forests or elsewhere, and this concept has been a part of our system of checks and balances limiting the power of the federal government from the beginning. … U.S. v. Gabrion.

07-1370 Braun v. Ann Arbor Charter
Eastern District of Michigan at Detroit
Before: MERRITT, GILMAN, and COOK, Circuit Judges.
MERRITT, Circuit Judge. In this Takings Clause and Due Process case, landowners who sought to rezone their farmland for a trailer park and other residential development challenge the district court’s order granting the defendant Township’s motion for summary judgment. The district court held that the plaintiffs’ Takings Clause claim was not ripe for review in the federal courts due to the rule of Williamson County v. Hamilton Bank, 473 U.S. 172 (1985), which requires that a plaintiff first give the state court an opportunity to adjudicate the issue of just compensation before seeking a declaration from a federal court that the state has failed to provide just compensation. According to Williamson County, a plaintiff bringing a takings claim must first pursue – and be denied – available remedies in state court. The district court in the present case concluded that the plaintiffs’ failure to do so precludes a federal court from exercising subject matter jurisdiction over the takings claim. The district court also held that the plaintiffs’ contention that the defendant’s zoning ordinance and appeals process violated various constitutional rights – including procedural due process, substantive due process and equal protection – was “ancillary” to the takings claim and thus similarly unripe for review.
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The plaintiffs argue in their appeal that these injuries are unrelated to the Takings Clause claim and must be reviewed as completed injuries. Conflicting case law exists as to whether such claims are, in fact, independent. However, even assuming that the claims are not ancillary to the Takings Clause issue, summary judgment is nevertheless appropriate for the defendant. Consequently, we affirm the grant of summary judgment for the defendants. … Braun v. Ann Arbor Charter.

07-8013 Geygan v. World Savings Bank, FSB (In re Nolan)
U.S. Bankruptcy Court - Cincinnati
Before: GREGG, PARSONS, and SCOTT, Bankruptcy Appellate Panel Judges.
JOSEPH M. SCOTT, JR., Bankruptcy Appellate Panel Judge. World Savings Bank, FSB (“WSB”) appeals the bankruptcy court’s order granting summary judgment to the bankruptcy trustee (the “Trustee”) on his complaint to avoid the mortgage lien of WSB. The bankruptcy court held that the mortgage’s certificate of acknowledgment did not comply with Ohio law and the Trustee was a bona fide purchaser under the Bankruptcy Code. For the reasons that follow, the bankruptcy court’s order is AFFIRMED. … Geygan v. World Savings Bank, FSB (In re Nolan)

07-3678 R/T 182, LLC v. Fed. Aviation Admin.
Before: MARTIN, GIBBONS, and GRIFFIN, Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge. R/T 182 appeals the decision of the Federal Aviation Administration to allow a local airport to charge a maintenance fee to airport users who store their aircraft at the airport, while charging no fee to those who merely land at the airport. We AFFIRM. … R/T 182, LLC v. Fed. Aviation Admin.

06-5909, 06-6442 USA v. Gibney
Western District of Kentucky at Louisville
06-4004 Day v. James Marine Inc
Benefits Review Board

06-2441 Floyd v. City of Detroit
Eastern District of Michigan at Detroit
06-5844 Jackson v. Fed Express Corp
Western District of Tennessee at Memphis

07-5733 USA v. Tatum
Western District of Tennessee at Jackson
07-1411 J & R Marketing v. General Motors
Eastern District of Michigan at Detroit
07-3031 Citizens for Tax v. Deters
Southern District of Ohio at Cincinnati

06-2134, 06-2135, 06-2136, 07-1180 Huffman, Wolford, and Patterson v. CIR
Commissioner of Internal Revenue
06-6252 AmeriCredit Fin Serv v. Long
Eastern District of Tennessee at Knoxville

06-3578 Trafalgar Corporation v. Miami Cnty
Southern District of Ohio at Dayton
06-2324 USA v. Mabry
Eastern District of Michigan at Detroit
06-2327 USA v. Michael
Eastern District of Michigan at Detroit