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July 28, 2017
  United States v. White - Eighth Circuit
Headline Eighth Circuit overturns longstanding precedent and holds that government must prove knowledge of firearm characteristics requiring registration under the National Firearms Act in order to support a conviction for possession of an unregistered firearm

Area of Law Criminal Law

Issue(s) Presented Whether the district court properly instructed the jury regarding the government's burden of proof with respect to charge of possession of an unregistered firearm.

Brief Summary While executing a search warrant at the home of Robert White's parents, officers recovered a duffel bag containing an unregistered shotgun and a stolen handgun, among other things. White was charged with possession of a stolen firearm and possession of an unregistered firearm. At trial, no direct evidence was presented that White knew the shotgun to be stolen. In addition, the district court's jury instructions with respect to the unregistered handgun did not contain a mens rea requirement indicating the White knew the firearm to have certain characteristics requiring it to be registered. White objected to the jury instruction and offered alternative language, which the district court rejected. White was convicted of both counts.

On appeal, a panel of the Eighth Circuit affirmed the unregistered firearm conviction, but reversed the stolen firearm conviction due to insufficient evidence regarding White's knowledge that the firearm had been stolen. White requested, and was granted, rehearing en banc and the panel opinion was vacated.

The Eighth Circuit reinstated the panel opinion with respect to reversal of the stolen firearm conviction with no additional analysis. With respect to the unregistered firearm conviction, the Court noted that the Supreme Court has held that a district court must instruct the jury that knowledge of the characteristics bringing a firearm under the National Firearms Act (the Act) is a necessary element of the offence of possession of an unregistered firearm. A prior Eighth Circuit case, United States v. Barr, 32 F.3d 1320 (8th Cir. 1994), however, created a caveat. The caveat stated that when the characteristics of a weapon are 'quasi-suspect' the government need not show proof that the defendant actually knew of the specific characteristics bringing the weapon within the Act. Instead, the government need only prove that the defendant possessed the 'quasi-suspect' weapon and observed its characteristics. The Eighth Circuit en banc held that Barr in inconsistent with Supreme Court precedent and is overruled. It further held that in this case, the jury instructions did not properly instruct on the knowledge required to secure a conviction for possession of an unregistered firearm. As such, White's conviction on this count was also reversed.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/17/07/152027P.pdf

Panel En Banc

Date of Issued Opinion July 11, 2017

Decided Reversed

Docket Number 15-2027

Counsel Rebecca L Kurz for Appellant and Jeffrey Q. McCarther for Appellee

Author Circuit Judge Shepherd

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 07/28/2017 03:27 PM     8th Circuit     Comments (0)  

  Catamaran Corporation v. Towncrest Pharmacy - Eighth Circuit
Headline In matter of first impression, Eighth Circuit holds that courts must decide whether arbitration agreements authorize class arbitration absent clear language delegating the decision to an arbitrator

Area of Law Arbitration

Issue(s) Presented Whether the district court properly held that arbitration agreements' reference to AAA rules committed the question of whether class arbitration was allowed under the agreements to an arbitrator.
Brief Summary Catamaran Corporation is a pharmacy benefits manager and contracts with entities that sponsor, administer, or otherwise participate in prescription drug benefit plans. One of the services Catamaran provides is reimbursing pharmacies who provide prescription drugs to people covered by such a plan. The defendants are four pharmacies who have arrangements with Catamaran for such reimbursements under two different agreements. Each agreement contains an arbitration provision indicating that the rules of the American Arbitration Association (AAA) will apply to any dispute arising out of the agreements.

A dispute arose between Catamaran and the pharmacies. The pharmacies filed a demand for class arbitration with the AAA asserting claims on behalf of themselves and similarly situated independent pharmacies. The class contained over 85 pharmacies. In response, Catamaran filed a declaratory judgment action and argued that the agreements do not allow the pharmacies to proceed with class arbitration. Instead, Catamaran argued that each pharmacy must engage in bilateral arbitration. The district court held that because the agreements reference application of the AAA rules, they clearly and unmistakably commit the decision of whether the agreements contemplate class arbitration to an arbitrator, not the court.

On appeal, a panel of the Eighth Circuit reserved. The Court first addressed whether the issue of class arbitration is a substantive question of arbitrability typically reserved to courts. The panel noted that the Supreme Court has not definitively answered this question. It determined, however, that recent Supreme Court decisions noting the fundamental differences between bilateral and class arbitration and rulings by sister circuits indicate that the question of class arbitration is substantive, not merely procedural, and requires judicial determination unless the parties clearly and unmistakably delegate the question to an arbitrator. Here, the agreements were both silent as to class arbitration. The Court held that mere reference to AAA rules alone is not enough to clearly and unmistakably delegate the question to an arbitrator, and therefore the question falls to the courts. It instructed the district court to determine whether a contractual basis for class arbitration exists under the agreements on remand.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/17/07/163275P.pdf

Panel Chief Judge Smith and Circuit Judges Fenner and Shepherd

Date of Issued Opinion July 28, 2017

Decided Reversed

Docket Number 16-3275

Counsel Jason Michael Casini for Appellant and Bruce Henry Stoltze, Sr. for Appellees

Author Circuit Judge Shepherd

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 07/28/2017 02:22 PM     8th Circuit     Comments (0)  

June 23, 2017
  Gerlich v. Leath - Eighth Circuit
Headline Eighth Circuit holds that district court properly granted permanent injunction against Iowa State University in suit concerning student group trademark licensing requests

Area of Law First Amendment

Issue(s) Presented Whether the district court properly found that Iowa State University's trademark licensing decisions violated students' right to free speech and school officials were not entitled to qualified immunity.

Brief Summary Iowa State University (ISU) is home to over 800 officially recognized student groups, one of which is a student chapter of National Organization for the Reform of Marijuana Laws (NORML ISU). Student groups regularly create merchandise, and ISU grants the groups permission to use its trademarks on such merchandise if certain conditions are met. In 2012, NORML ISU submitted a t-shirt design to ISU's Trademark Licensing Office, which contained an ISU trademark and a small cannabis leaf as part of the design. The Trademark Office approved the t-shirt design. Shortly after, a newspaper article concerning state referenda legalizing marijuana was published. The article discussed NORML ISU's political efforts to legalize marijuana in Iowa, and included a quote about ISU being supportive of the group, referencing approval of the t-shirt design.

The article generated concern within ISU administration, resulted in a formal legislative inquiry, and also received attention from the Iowa Governor's Office of Drug Control Policy. As a result, the Trademark Guidelines were changed to prohibit "designs that suggest promotion of the below listed items . . . dangerous, illegal or unhealthy products, actions or behaviors; . . . [or] drugs and drug paraphernalia that are illegal or unhealthy." When NORML ISU requested permission to use the previously approved t-shirt design for a second order, their request was put on hold, and was then denied following the change in Trademark Guidelines. Subsequent requests by NORML ISU to use ISU trademarks in merchandise designs also incorporating a cannabis leaf were also denied. NORML ISU was also singled out as the only student group to have a prior review procedure imposed upon it before its requests could go to the Trademark Office. As a result, two student leaders of NORML ISU sued various ISU officials stating claims for violation of their First and Fourteenth Amendment rights.

The district court determined that the defendant ISU officials were not entitled to qualified immunity and held that the defendants' trademark decisions violated the plaintiffs' right to free speech. The district court also entered a permanent injunction prohibiting defendants from enforcing trademark licensing policies against the plaintiffs in a viewpoint discriminatory manner.

On appeal, a panel of the Eighth Circuit affirmed. The panel first held that the plaintiffs had standing to sue because the student leaders of NORML ISU suffered an injury in fact by having their designs rejected and therefore being unable to spread NORML ISU's message. The panel next concluded that the defendants were not entitled to qualified immunity because ISU had created a limited public forum when it made its trademarks available for student organizations to use if they abided by certain conditions. Once a state university has created a limited public forum for speech, it may not discriminate against speech on the basis of its viewpoint, yet here the defendants' rejection of the NORML ISU designs discriminated against the group on the basis of the group's viewpoint as evidenced by the unique scrutiny and prior approval requirements placed on the group. The panel rejected the defendants' argument that they did not violate plaintiff's First Amendment rights because their trademark licensing decisions should be considering government speech. The government speech doctrine does not apply if a government entity has created a limited public forum, as ISU did here when it made its trademarks available for student organizations to use under certain conditions. The Court concluded that because defendants had violated the plaintiff's clearly established First Amendment rights, the district court did not err by denying qualified immunity to the defendants and granting plaintiffs summary judgment on their First Amendment claims. Finally, the court held that the injunctive relief ordered by the district court was not too broad and was not an abuse of the district court's discretion.

Circuit Judge Loken dissented from the court's decision to deny the defendants qualified immunity from the plaintiffs' claims for compensatory damages and attorneys' fees.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/17/06/161518P.pdf

Panel Circuit Judges Kelly, Loken, and Murphy

Date of Issued Opinion June 13, 2017

Decided Affirmed

Docket Number
16-1518

Counsel Tyler Murphy for Appellants and Robert Corn-Revere for Appellees

Author Circuit Judge Murphy

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 06/23/2017 10:24 AM     8th Circuit     Comments (0)  

April 28, 2017
  Hargett v. St. Bernard's Hospital, Inc. - Eighth Circuit
Headline Eighth Circuit holds that district court improperly remanded class action lawsuit to state court based on class members' Arkansas residency rather than citizenship

Area of Law Class Action; Federal Jurisdiction

Issue(s) Presented Whether the district court properly remanded a class action lawsuit that had been removed to federal court based on the local controversy exception to the Class Action Fairness Act.

Brief Summary Plaintiff Tammy Hargett filed a class action lawsuit in Arkansas state court on behalf of a class comprising "all persons who were Arkansas Medicaid-eligible beneficiaries" who were treated at one of the defendant hospitals and had liens placed on their third-party claims by RevClaims, LLC. The defendant hospitals removed the suit to federal court under the Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d), which broadened federal jurisdiction over class actions. Hargett moved to remand, arguing that the district court should decline to exercise jurisdiction under CAFA's local-controversy exception, which applies when more than two-thirds of the class members are "citizens of the State in which the original action was filed." Id. at § 1332(d)(4)(A)(i)(I) (emphasis added). The district court granted the motion to remand, finding that the proposed class was defined as "all persons who were Arkansas residents at the time the medical services . . . were provided to them."

RevClaim and the hospitals appealed. The Eighth Circuit focused its analysis on how the "resident" versus "citizen" distinction made in other parts of CAFA applied specifically to the local-controversy exception. The Court noted that elsewhere in the statute, the term "citizen" has long meant something different from "resident." "Citizen" requires permanence, whereas residency is a more fluid concept. One person can be a resident of multiple states, but can only be a citizen of one. Where Congress uses a term, such as "citizen," that has a well-established meaning, it must be assumed that Congress meant to incorporate the established meaning. Thus, by using the term "citizen" in the local-controversy exception, Congress meant to require something more than simply residency in a state. The Seventh Circuit has also explicitly recognized the distinction between residency and citizenship for purposes of the local-controversy exception. Ultimately, the Eighth Circuit agreed with the Seventh Circuit, and concluded that "citizen" is not synonymous with "resident" in determining whether the local-controversy applies. As such, the district court erred in holding that merely alleging a proposed class of Arkansas residents was sufficient to satisfy § 1334(d)(4), and should not have remanded the case to state court.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/17/04/171339P.pdf

Panel Circuit Judges Bowman, Shepherd, and Smith

Date of Issued Opinion April 14, 2017

Decided Reversed and remanded

Docket Number 17-1339

Counsel Kenneth P. Castleberry, Robert L. Henry III, James D. Robertson, A.F. Thompson, III, Paul Waddell, and Sam Waddell for Appellants and Brandon W. Lacy for Appellee

Author Circuit Judge Smith

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 04/28/2017 02:57 PM     8th Circuit     Comments (0)  

  Melin v. Sveen - Eighth Circuit
Headline Eighth Circuit holds that Minnesota's revocation-upon-divorce statute is unconstitutional when applied retroactively to life insurance policies

Area of Law Insurance

Issue(s) Presented Whether the district court properly awarded life insurance proceeds to the decedent's children by retroactively applying Minnesota's revocation-upon-divorce statute to the decedent's policy naming his former spouse as the primary beneficiary.

Brief Summary In 1997, the decedent, Mark Sveen, married the appellant, Kaye Melin, and named her the primary beneficiary of his life insurance policy the following year. His two adult children, the appellees, were designated as contingent beneficiaries. Sveen and Melin divorced in 2007, and Sveen never changed the beneficiary designation on the policy. Sveen passed away in 2011, with Melin still listed as the primary beneficiary.

Upon Sveen's death, the insurance company filed an interpleader action to determine whether a 2002 amendment to Minnesota's probate code applied the revocation-upon-divorce statute to life insurance designations made prior to the statute's amendment. Melin and Sveen's two adult children cross-claimed for the proceeds. The district court granted summary judgment for Sveen's children.

On appeal, a panel of the Eighth Circuit reversed. The Court first held that Melin had standing to assert a constitutional challenge to the revocation-upon-divorce statute. The Court then relied on a prior Eighth Circuit panel decision holding that Oklahoma's revocation-upon-divorce statute violated the Contract Clause of the Constitution when applied retroactively to reach the same conclusion with respect to the Minnesota statute. The Court held that retroactive application of revocation-upon-divorce statutes is unconstitutional because policyholders have the right to rely on the law governing insurance contracts at the time the contract was made, and applying the statute would directly alter the rights and obligations of the contracting parties.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/17/04/161172P.pdf

Panel Circuit Judges Benton and Shepherd, and District Judge Ebinger, sitting by designation

Date of Issued Opinion April 3, 2017

Decided Reversed and remanded

Docket Number 16-1172

Counsel Scott A. Wilson for Appellant and Daniel P. Doda for Appellees

Author Circuit Judge Benton

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 04/28/2017 01:57 PM     8th Circuit     Comments (0)  

January 11, 2017
  Karsjens v. Johnson Piper - Eighth Circuit
Headline Eighth Circuit panel rules that Minnesota's sex offender civil commitment statute is constitutional

Area of Law Due Process

Issue(s) Presented Whether the district court properly determined that Minnesota's sex offender civil commitment statute violates substantive due process both facially and as applied.

Brief Summary Minnesota's Civil Commitment and Treatment Act (MCTA) permits a state district court judge to civilly commit a sexually dangerous person or a person with a sexual psychopathic personality to a secure treatment facility based on a showing of clear and convincing evidence. Such commitment is for an indeterminate period of time, but the committed person can be transferred, provisionally discharged, or fully discharged through a petition for a reduction in custody procedure set forth in the statute. Since the statute's enactment in 1994, no committed individual has been fully discharged from the Minnesota Sex Offender Program (MSOP), and only three people have been provisionally discharged.

A class of committed sex offenders filed this suit against a number of state defendants who are managers of MSOP. Plaintiffs brought facial and as applied challenges under 42 U.S.C. § 1983, claiming their substantive due process rights were violated by the MCTA and the MSOP. Following a six week bench trial, the district court agreed, and granted injunctive relief. The district court applied strict scrutiny, placing the burden on the state to show that the MCTA was narrowly tailored to serve a compelling state interest, because it found that plaintiffs had a "fundamental right to live free of physical restraint."

The state defendants appealed, alleging judicial bias, jurisdictional defects, and application of an incorrect standard of scrutiny to plaintiff's due process claims. An Eighth Circuit panel rejected the state defendants' first two arguments. As to the third issue, the panel agreed that the wrong standard of scrutiny was applied to the due process claims. The strict scrutiny standard is only applied to claims of infringement on "fundamental" liberty interests. The Supreme Court, however, has never held people who pose a significant danger to themselves or others possess a fundamental liberty interest in being free from physical restraint. Indeed, the Supreme Court has noted that many states provide for involuntary civil commitment of people who are unable to control their behavior or pose a threat to public health and safety, and thus, it is not the case that involuntary civil commitment is "contrary to our understanding of ordered liberty." As such, the Eighth Circuit held that the proper standard to apply to plaintiffs' due process claims is whether the MCTA bears a rational relationship to a legitimate government purpose.

The Eighth Circuit applied the rational basis standard to both the facial and as applied challenges to the MCTA. It held that the statute does bear a rational relationship to a legitimate Minnesota interest, and that as applied, none of the complained of actions of the state defendants was conscience-shocking. As such, the Eighth Circuit panel held that the statute does not violate plaintiffs' due process rights.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/17/01/153485P.pdf

Panel Circuit Judges Colloton, Murphy, and Shepherd

Date of Issued Opinion January 3, 2017

Decided Reversed and remanded

Docket Number 15-3485

Counsel Alan Gilbert for Appellants and Daniel Gustafson for Appellees

Author Circuit Judge Shepherd

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 01/11/2017 01:26 PM     8th Circuit     Comments (0)  

January 9, 2017
  Kittle-Aikeley v. Claycomb - Eighth Circuit
Headline In en banc rehearing, Eighth Circuit reverses prior ruling of three judge panel and affirms district court holding granting permanent injunction against mandatory drug testing of technical college students

Area of Law Fourth Amendment

Issue(s) Presented Whether the district court properly granted a permanent injunction prohibiting a technical college from fully implementing its new drug-testing policy requiring all incoming students to submit to urinalysis.
Brief Summary State Technical College of Missouri (Linn State) is a two-year technical college. Most of its educational programs require a significant percentage of hands-on training, some of it potentially dangerous. In 2011, Linn State adopted a policy requiring all new students to submit to drug testing in order to provide a safe and healthy educational environment, and to deter drug use and abuse among students. A group of students filed suit, alleging that the drug testing requirement violated students' Fourth Amendment right to be free of unreasonable searches. Following a bench trial, the district court upheld the drug testing requiring as applied to students in five programs involving the most safety risks to others. For the remaining 23 educational programs, the district court found the drug testing requirement to be an unconstitutional search in light of Linn State's failure to show that those programs posed significant safety risks to others. The district court granted an injunction prohibiting Linn State from drug testing students who enroll in these non-safety-sensitive programs. The district court also granted tentative attorneys' fees and costs.

On appeal, a divided panel of the Eighth Circuit reversed, finding that the district court erred in conducting a program-by-program analysis. The panel held that testing the entire incoming class of students was a reasonable and constitutional means of achieving Linn State's interest in providing "a safe, healthy, and productive environment for everyone who learns and works at [Linn State] by detecting, preventing, and deterring drug use and abuse among students."

The plaintiffs petitioned for and were granted rehearing en banc. On rehearing, the Eighth Circuit found no abuse of discretion in the district court's grant of a permanent injunction. It determined that there is a valid interest in deterring drug use among students engaged in programs posing significant safety interests to others which constitutes a "special need" for Fourth Amendment purposes. It further held that there was no error in the district court's decision to conduct a program-by-program analysis to determine whether each program posed a significant safety risk to others. This approach was in keeping with Supreme Court precedent differentiating between job categories designated for drug testing in determining the constitutionality of the testing.

The Eighth Circuit rejected appellants' arguments that safety concerns for the individual students themselves, and fostering a drug free environment, also constituted "special needs" justifying departure from the usual warrant and probable-cause requirements of the Fourth Amendment. Ultimately, the Court affirmed the district court's grant of a permanent injunction with respect to the non-safety-sensitive programs, and reversed the portion of the district court order requiring Linn State to refund the $50.00 fee students were assessed for the drug testing.

Judge Beam and Judge Loken concurred in part, and dissented in part.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/16/12/133264P.pdf

Panel En Banc

Date of Issued Opinion December 22, 2016

Decided Affirmed in part, and reversed in part

Docket Number 13-3264

Counsel Kent L. Brown for Appellants and Anthony E. Rothert for Appellees

Author Circuit Judge Wollman

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 01/09/2017 01:18 PM     8th Circuit     Comments (0)  

December 19, 2016
  Custodio v. Torres Samillan - Eighth Circuit
Headline Eighth Circuit panel affirms denial of petition under international child abduction statute

Area of Law International Law, Child Custody

Issue(s) Presented Whether the district court properly denied a Peruvian citizen's petition under an international child abduction statute seeking the return of his two sons removed to the United States by their mother.

Brief Summary The parties were both born and resided in Peru, and were previously married. That marriage produced two children. After the couple divorced, the children lived primarily with their mother, Torres Samillan. In 2014, Torres Samillan sought and was granted permission by a Peruvian court to take the children to the United States. The order required that they return to Peru by March 24, 2014. Shortly after arriving in the United States, Torres Samillan married an American citizen, and subsequently had a child. Meanwhile, Custodio sought and obtained four Peruvian court orders compelling the return of the children to Peru. Torres Samillan never returned the children, and Custodio filed a petition seeking return of the children under the Hague Convention on Civil Aspects of International Child Abduction (Hague Convention) and its implementing statute, the International Child Abduction Remedies Act (ICARA).

The district court denied the petition. It found that one child was 16 years old, and as such the Hague Convention no longer applied to him. With respect to the younger child, the district court applied the mature child defense in denying the petition, and credited the child's testimony that he wished to remain in the United States with his mother and was afraid of his father. Custodio appealed, and a panel of the Eight Circuit affirmed the denial with respect to both children.

Concerning the elder child, the Eighth Circuit held that the language of the Hague Convention and the State Department's interpretation of the Convention make clear that it ceases to apply to children once they reach the age of 16. Because the elder child had turned 16 years old during the pendency of the proceedings, the Hague Convention no longer applied to him.

With regard to the younger child, who was 15 years old, the court affirmed the district court's application of the mature child defense, which is an affirmative defense to the Hague Convention. It requires that the child be of an age and level of maturity that it is appropriate to take its views into account, and that the child objects to being returned. The proper standard of review to apply to a child's objections was a matter of first impression for the Eighth Circuit, which followed out-of-circuit authority in determining that the child's objection is subject to a clear error standard of review. Here, the district court observed the child twice, in chambers and in open court subject to cross examination. The district court found the child to be thoughtful, intelligent, and genuine. The district court credited his testimony that he wished to remain with his mother, brothers, and stepfather, and did not want to return to Peru because he was afraid of is father and preferred his school and friends in America. A mature child's views on return can be conclusive, and the district court did not commit clear error in finding that the child's statements supported denial of the petition based on the mature child defense.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/16/12/161268P.pdf

Panel Circuit Judges Arnold, Kelly, and Wollman

Date of Issued Opinion December 2, 2016

Decided Affirmed

Docket Number 16-1268

Counsel Gregory J. Minana for Appellant and Kelley Farrell for Appellees

Author Circuit Judge Kelly

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 12/19/2016 12:57 PM     8th Circuit     Comments (0)  

  Keefe v. Adams - Eighth Circuit
Headline Eighth Circuit panel affirms summary judgment regarding removal of student from nursing program due to Facebook posts

Area of Law First Amendment

Issue(s) Presented Whether the district court properly granted summary judgment to defendant college administrators who removed plaintiff from the college nursing program due to student complaints about posts on plaintiff's Facebook page.

Brief Summary Plaintiff was a nursing student at Central Lakes College (CLC). Plaintiff posted to his Facebook page about his frustrations with and feelings toward other students in the program. Multiple students reported Plaintiff's posts to nursing program administrators because they found the posts threatening and were uncomfortable and nervous around plaintiff in class as a result. The Director of Nursing and the Dean of Students met with plaintiff to discuss the posts, and based on plaintiff's "lack of remorse, lack of concern" and failure to meet ethical standards of the nursing profession, the Director of Nursing removed plaintiff from the program.

After his administrative appeal was denied, plaintiff filed this lawsuit against CLC administrators alleging violations of his First Amendment and due process rights. The district court granted summary judgment to the defendants. On appeal, a panel of the Eighth Circuit affirmed.

The panel found that Plaintiff's First Amendment rights were not violated. Professional codes of ethics, such as the Nurses Association Code of Ethics CLC required its nursing students to uphold, are a legitimate part of a professional school's curriculum and do not run afoul of the First Amendment on their face. Further, college administrators in a professional school have discretion to require compliance with the recognized professional standards both on and off campus. Plaintiff's posts were found to be non-compliant with the professional ethical standards, and the First Amendment does not bar administrators from determining that, as a result, Plaintiff was unable to meet the professional demands of being a nurse.

The panel further found that the CLC administrators had not violated Plaintiff's due process rights. The US Supreme Court has adopted a deferential standard when reviewing academic dismissals, requiring a showing of arbitrariness or capriciousness. That standard was not met here. The decision to remove Plaintiff from the nursing program due to unethical and unprofessional behavior was a reasoned academic decision, and defendants allowed Plaintiff to remain at CLC and transfer his credits to another program. Procedurally, Plaintiff had notice, an explanation of why his behavior fell short of the standards of the program, a face-to-face meeting with administrators, an opportunity to respond to the allegations against him, and an chance to appeal the adverse decision. This was sufficient to meet the requirements of the Fourteenth Amendment.

Circuit Judge Kelly concurred in part and dissented in part.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/16/10/142988P.pdf

Panel Circuit Judges Kelly, Loken, and Shepherd

Date of Issued Opinion October 26, 2016

Decided Affirmed

Docket Number 14-2988

Counsel Jordan S. Kushner for Appellant and Kathryn Morrell Woodruff for Appellees

Author
Circuit Judge Loken

Case Alert Circuit Supervisor
Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 12/19/2016 12:54 PM     8th Circuit     Comments (0)  

September 26, 2016
  American Farm Bureau Federation v. U.S. Environmental Protection Agency - Eighth Circuit
Headline Eighth Circuit panel reverses district court and holds that the EPA abused its discretion in disclosing personal information of animal feeding operation owners

Area of Law Standing; Privacy

Issue(s) Presented Whether associations had standing to bring suit on behalf of their members, and whether the Environmental Protection Agency (EPA) properly released personal information of concentrated animal feeding operation owners in response to a Freedom of Information Act (FOIA) request.

Brief Summary The Clean Water Act regulates the discharge of pollutants into U.S. waters by numerous sources, including concentrated animal feeding operations (CAFOs). As part of its responsibilities under the Clean Water Act, the EPA compiled a national inventory of CAFOs. The EPA obtained the information for the inventory by requesting publically available information from a number of states, by retrieving information from state websites, and by gathering information from federal data systems and its regional offices. The information included the legal name of CAFO owners, along with the owner's mailing address, email address, primary telephone number, and other information about the CAFO and its owner.

As the EPA was compiling this inventory, three organizations submitted a FOIA request for the EPAs records with information about CAFOs. In response, the EPA released the information it had then compiled to the requesters. The information released included personal contact information for the CAFO owners. The American Farm Bureau Federation (Farm Bureau) and National Pork Producers Council (Producers Council) filed a "reverse" FOIA suit, alleging that the records should have been withheld under Exception 6 of FOIA, which excludes from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy." 5 U.S.C. § 522(b)(6). The district court granted summary judgment for the EPA, holding that the Farm Bureau and Producers Council lacked standing to bring the suit because the personal information of their members was already publicly available when released.

On appeal, a panel of the Eighth Circuit reversed. It held that the district court improperly conflated the requirements of standing with the merits for the claims raised. Whether the information was publically available pertained to the merits of the claim, not the question of standing. Because the individual members of the associations would have standing to challenge the EPAs release of their personal information, regardless of whether that information was publically available, the Farm Bureau and Producers Council also had standing to bring the suit.

Although the district court's decision was ostensibly a ruling on lack of standing, its decision in substance addressed the merits of whether the EPA's disclosure constituted an unwarranted invasion of personal privacy subject to Exception 6 of FOIA. As such, the Eighth Circuit found no reason to remand to the district court for a determination on that question, and considered the merits of the claim as part of this appeal.

The Eighth Circuit disagreed with the district court, and held that the EPA's release of the CAFO owners' personal information was an abuse of discretion. It held that the CAFO owners had a substantial privacy interest in the personal information that was disclosed. It also noted that, even if the information was publically available through state websites and state records requests, there is a vast difference between public records that might be found after a diligent search through various files and a single, compiled set of information from a government agency. Finally, the court held that the substantial privacy interest of the CAFO owners was not outweighed by the public's interest in disclosure.

The Eighth Circuit remanded the case for further proceedings on the plaintiffs' request for injunctive relief.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/16/09/151234P.pdf

Panel Circuit Judges Colloton, Loken, and Murphy

Date of Issued Opinion September 9, 2016

Decided Reversed and remanded

Docket Number 15-1234

Counsel Michael B. Kimberly for Appellants and Tarah Elizabeth Heinzen and Pamela A. Marentette the Appellees

Author Circuit Judge Colloton

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 09/26/2016 10:51 AM     8th Circuit     Comments (0)  

June 14, 2016
  DeCoursey v. American General Life Insurance Company - Eighth Circuit
Headline Eighth Circuit panel interprets Missouri law concerning whether insurance proceeds paid in error must be returned to the insurance company

Area of Law Insurance

Issue(s) Presented Whether the district court properly determined that plaintiff failed to bring suit within the limitations period, but was still entitled to keep insurance proceeds paid to her in error.

Brief Summary DeCoursey's husband died in a car accident in 1986 and she submitted a claim on his $250,000 life insurance policy with American General Life Insurance Company's (the Company) predecessor in interest. The claim was denied, because the Company determined that the policy had lapsed. In June 2011 as part of the Company's own review of its life insurance policies, it notified DeCoursey that she was entitled to benefits under the policy because it had not, in fact, lapsed at the time of her husband's death. In 2013, the Company paid DeCoursey the policy's face value, $250,000. DeCoursey sued, claiming that she was owed 9% interest from the time her claim was denied in 1986. Upon further investigation, the Company confirmed that the policy had indeed lapsed prior to the accident, notified DeCoursey that it had wrongfully paid her, and counterclaimed for unjust enrichment.

The Company moved for summary judgment, arguing that DeCoursey failed to file suit within the 10 year limitations period. The district court agreed. DeCoursey also moved for summary judgment on the Company's unjust enrichment claim. The court granted DeCoursey's motion, holding that the company had voluntarily paid DeCoursey the $250,000 and was not entitled to its return because the Company had presented no evidence that it did not have an opportunity to diligently investigate the policy before it paid out.

On appeal, a panel of the Eighth Circuit agreed with the district court that DeCoursey's claims were brought outside the 10 year limitations period, which began to run in 1986 when her claim was denied, not in 2013 when she received the payment. The panel reversed the district court's decision with respect to whether DeCoursey was entitled to keep the $250,000 payment. The Missouri Supreme Court has never ruled on whether an insurance company may recover proceeds it pays out in error when it had an opportunity to investigate the facts. In such a case, the Eighth Circuit must predict how the state's highest court would decide the issue. The panel noted that the Missouri Supreme Court typically treats the Restatement on Restitution as authoritative. It then looked to the relevant portions of the Restatement, and determined that the Missouri Supreme Court would decide that a payor's lack of care will not diminish its right to recover, or somehow justify retention of the windfall wrongly paid. As such, the Eighth Circuit panel concluded that the Company had a straightforward restitution claim, and reversed the district court's grant of summary judgment against the Company.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/16/05/151927P.pdf

Panel Circuit Judges Arnold, Shepherd, and Wollman

Date of Issued Opinion May 17, 2016

Decided Affirmed in part and reversed in part

Docket Number 15-1927; 15-1929

Counsel Antwuan Smith for Susan DeCoursey and John Cowles Neiman, Jr. for American General Life Insurance Company

Author Circuit Judge Arnold

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 06/14/2016 10:07 AM     8th Circuit     Comments (0)  

June 10, 2016
  United States v. Hill - Eighth Circuit
Headline Eighth Circuit panel affirms decision concerning meaning of "sex offense" for purposes of the Sex Offender Registration and Notification Act

Area of Law Criminal Law

Issue(s) Presented Whether the district court properly denied Defendant's motion to dismiss the indictment against him for failing to register as a sex offender.

Brief Summary Defendant pleaded guilty in South Carolina state court to "willfully, maliciously, and indecently expos[ing] his person in a public place, on the property of others, or in the view of any person on the street or highway." S.C. Code Ann. § 16-15-130(A)(1). As such, the court ordered him to register in both sex offender and child abuser registries in South Carolina, which he did. Afterward, Congress enacted the Sex Offender Registration and Notification Act (SORNA) to more uniformly protect the public from sex offenders throughout the U.S. SORNA criminalizes a sex offender's knowing failure to register or update certain information within three business days of changing residence. 18 U.S.C. § 2250(a); 42 U.S.C. § 16913(a), (c). Defendant moved from South Carolina to Arkansas after SORNA was enacted, but did not update his sex offender registry information for several months, resulting in his indictment.

The district court denied Defendant's motion to dismiss the indictment, and this appeal followed. Defendant primarily argued that the district court should have dismissed the indictment because his South Carolina conviction did not trigger SORNA's reporting requirements. Defendant contended that his conviction for indecent exposure did not make him a "sex offender" obligated to register because it was not a "sex offense" as defined by SORNA. SORNA defines a "sex offender" as "an individual who was convicted of a sex offense, " and in turn defines in relevant part a "sex offense" as "a criminal offence that is a specified offense against a minor," which includes "conduct that by its nature is a sex offense against a minor." 42 U.S.C. § 16911.

On appeal, a panel of the Eighth Circuit disagreed with Defendant. It rejected Defendant's argument that the court must only look at the crime's statutory definition, and not at the facts underlying the conviction, in determining whether it meets the definition of a "sex offense." Instead, the Eighth Circuit adopted the approach taken by three other federal circuits and held that when determining whether a prior offense constitutes "conduct that by its nature is a sex offense against a minor" under SORNA, a court should employ a circumstance-specific approach. Using this approach, a court should consider any reliable evidence about the circumstances under which the crime was committed. The court held that this approach is compelled by the text and purposes of SORNA.

Applying the circumstance-specific approach to this case, the court determined that Defendant committed a "sex offense" within the meaning of SORNA because his victim was an eleven-year-old girl. Therefore, the Eighth Circuit affirmed the district court's denial of the motion to dismiss the indictment.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/16/04/153193P.pdf

Panel Circuit Judges Arnold, Shepherd, and Wollman

Date of Issued Opinion April 29, 2016

Decided Affirmed

Docket Number 15-3193

Counsel Ashleigh Buckley for the United States and Chistopher Aaron Holt for Defendant

Author Circuit Judge Arnold

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 06/10/2016 03:34 PM     8th Circuit     Comments (0)  

April 5, 2016
  Balogh v. Lombardi - Eighth Circuit
Headline Eighth Circuit panel reverses district court order denying immunity to director of Missouri Department of Corrections

Area of Law Eleventh Amendment Immunity

Issue(s) Presented Whether a district court properly determined that the director of the Missouri Department of Corrections was not entitled to immunity from suit in an action by the American Civil Liberties Union.

Brief Summary A Missouri statute grants the director of the Missouri Department of Corrections (Department) the authority to selection an "execution team." The statute prohibits the disclosure of the identities of individuals who participate in executions. It further provides a private right of action to those individuals against anyone who "knowingly disclose[s] the identity of a current or former member of an execution team" without the Department director's approval. Mo. Rev. Stat. § 546.720.3.

The American Civil Liberties Union (ACLU) obtained documents related to executions under the Missouri Sunshine Law. It then posted the documents to its website, but later removed them when it learned of the statute prohibiting disclosure of the identities of execution team members. The ACLU sued the Department director, arguing that the statute was unconstitutional because it violated the ACLU's rights of free speech, free press, and due process under the First and Fourteenth Amendments. The director moved for summary judgment, claiming that he was immue from suit under the Eleventh Amendment, that the ACLU lacked standing, and that the claims failed as a matter of law.

The district court held that the director was not immune from suit, denied his motion in part on that basis, and deferred ruling on the other arguments. The district court found that because the director had a duty to enforce the statute by implementing an execution protocol and selecting the execution team, he was determining whose identities must be kept confidential, and therefore was not immune from suit.

On appeal, the Eighth Circuit disagreed. It first addressed the director's standing argument, and concluded that the ACLU did not having standing to bring this suit against the director. This conclusion was based on the fact that the director had no enforcement authority, because the statute only allowed for a private right of action by those whose identities were disclosed. The statute did not authorize the director to take any enforcement action against the ACLU for improper disclosure of execution team member identities. As such, the ACLU's claimed injury, chilled speech, was not "fairly traceable" to the director, and he had no ability to redress the alleged injury. The Eighth Circuit also found that because the director had no authority to enforce the challenged statute, he was also immune from suit under the Eleventh Amendment.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/16/03/143603P.pdf

Panel Chief Judge Riley, Circuit Judges Bye and Gruender

Date of Issued Opinion March 11, 2016

Decided Reversed

Docket Number 14-3603

Counsel Caroline Coulter for Appellant and Anthony Rothert for Appellees

Author Chief Judge Riley

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 04/05/2016 12:46 PM     8th Circuit     Comments (0)  

March 31, 2016
  Andrade-Zamora v. Lynch - Eighth Circuit
Headline Eighth Circuit panel denies petition for review of immigration judge decision regarding application for cancellation of removal

Area of Law Immigration Law

Issue(s) Presented Whether an immigration judge properly pretermitted an application for cancellation of removal where underlying theft conviction was vacated.

Brief Summary Petitioner Andrade-Zamora petitioned the Eighth Circuit for review of a decision by an immigration judge pretermitting his application for cancellation of removal. The underlying removal decision was based on petitioner's conviction for theft in the fourth degree, a crime involving moral turpitude. Petitioner conceded that he was removable, but argued that he was eligible to apply for cancellation despite his conviction on two grounds. First, because a state court vacated his conviction for theft. Second, because his conviction for a crime involving moral turpitude would preclude him from applying for cancellation of removal only if he was admitted to the United States within five years of committing the offense, which he was not, since he was never lawfully admitted to the United States.

With respect to the first issue, along with his motion for cancellation of removal, Petitioner submitted an order from an Iowa state court. The order made the conviction for theft in the fourth degree a "nullity" because the parties had discovered "material evidence" that could not be discovered before Petitioner pled guilty. In such cases, the person seeking cancellation of removal has the burden to prove that the conviction was vacated on the merits. If the conviction was vacated for a reason unrelated to the merits, such as to avoid immigration consequences, the conviction will still stand for immigration purposes despite its vacatur.

In this case, the Eighth Circuit found that Petitioner did not meet his burden of proof. The timing and effect of the order, just two weeks after the government filed its notice alleging that Petitioner was removable, was suspicious and suggested that the vacatur was for immigration purposes. Moreover, the order itself did not prove that the conviction was vacated for a substantive or procedural reason, and Petitioner could also point to no "material evidence" supporting the vacatur, nor could he provide any explanation for why the sentence was vacated.

With respect to the second issue, Petitioner argued for an interpretation of the removal statute that would only prohibit aliens who had been lawfully admitted into the United States within five years of being convicted of a crime involving moral turpitude from applying for cancellation of removal. Petitioner argued that since he was never lawfully admitted into the United States, the statute did not apply to him. Petitioner's interpretation was contrary to the interpretation of the Board of Immigration Appeals (BIA). This interpretation question was an issue of first impression for the Eighth Circuit.

The Eighth Circuit determined that the BIA's interpretation of the statute is entitled to Chevron deference. In keeping with the rulings of sister circuits, the Eighth Circuit held that the BIA's interpretation is supported by the structure of the statute, and also avoids illogical results. The Court therefore rejected Petitioner's interpretation of the statute and denied the petition for review.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/16/02/152004P.pdf

Panel Circuit Judges Bye, Loken, and Wollman

Date of Issued Opinion February 26, 2016

Decided Petition for review denied

Docket Number 15-2004

Counsel Gail E. Boliver for Petitioner and Aaron Nelson for Respondent

Author Circuit Judge Bye

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 03/31/2016 10:58 AM     8th Circuit     Comments (0)  

March 3, 2016
  National Parks Conservation Association v. U.S. Environmental Protection Agency - Eighth Circuit
Headline Eighth Circuit panel denies petition for review of EPA approval of Minnesota haze plan

Area of Law Environmental Law

Issue(s) Presented Whether the Environmental Protection Agency (EPA) properly approved the Minnesota Regional Haze State Implementation Plan.

Brief Summary Six environmental conservation organizations petitioned the Eighth Circuit for review of the EPA's decision to approve the Minnesota Regional Haze State Implementation Plan (the Minnesota Plan). The Plan is designed to improve natural visibility in the Boundary Waters Canoe Area Wilderness and Voyageurs National Park, both in Minnesota.

In keeping with the national goal of improving natural visibility in certain areas, such as national parks, states must revise their environmental plans to include measures necessary to achieve reasonable progress towards the visibility goal. One way states may do this is by requiring major stationary air pollutant emitters to install and operate best available retrofit technology (BART) to reduce their emissions. This requires a determination of what constitutes BART for each stationary pollution source. Another way states may revise their environmental plans is by adopting the EPA's alternative to BART, commonly called the Transport Rule. The EPA has generally determined that the Transport Rule is "better than BART" because it achieves greater reasonable progress towards achieving natural visibility conditions in national parks and other covered areas. 77 Fed. Reg. 33,642, 33,648 (June 7, 2012). The Transport Rule allows states it covers to use an emissions trading program instead of BART.

The Minnesota Plan relied on participation in the Transport Rule emissions trading programs instead of adopting source-specific BART. The EPA approved the plan. Six conversation groups petitioned for review, arguing that source-specific BART may achieve better results in Minnesota, and also questioning Minnesota's reasonable progress goals. After determining that it had jurisdiction over the matter, the Eighth Circuit noted that the EPA's approval of the plan can only be set aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Sierra Club v. EPA, 252 F.3d 943, 947 (8th Cir. 2001). In this case, the EPA conducted a technical analysis to determine the effectiveness of the Transport Rule, and relied on that analysis and two national rulings on the subject in approving the Minnesota Plan. The EPA also determined that Minnesota had adequately demonstrated that its progress goals were reasonable. The Eighth Circuit panel held that the EPA's decision to approve the Minnesota Plan was rational, followed a defensible approval process, and was not arbitrary and capricious.

Circuit Judge Bye concurred in the result, concluding that the Eighth Circuit lacked jurisdiction to the extent the conservation organizations claim that source-specific BART is better than the Transport Rule as applied to the Minnesota Plan.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/16/01/122910P.pdf

Panel Chief Judge Riley, Circuit Judges Benton and Bye

Date of Issued Opinion January 21, 2016

Decided Petition for review denied

Docket Number 12-2910, 12-3481

Counsel Janette K. Brimmer for the Petitioners and Norman Louis Rave, Jr. for the Respondents

Author Circuit Judge Benton

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 03/03/2016 09:57 AM     8th Circuit     Comments (0)  

January 28, 2016
  ABA Test 5
Headline: This is a test

Areas of Law: Freedom of Information Act; Administrative Law

Issue(s) Presented: Whether the National Security Council ("NSC") is an "agency" for Freedom of Information Act purposes under 5 U.S.C. § 552(f)(1), either due to its own function or due to the functions of the broader NSC System.

Brief Summary: Plaintiffs-Appellants, a non-profit law firm within the City University of New York School of Law, brought suit against Defendant-Appellee, the National Security Council (the "NSC") following the NSC's rejection of Plaintiffs-Appellants' Freedom of Information Act ("FOIA") requests. Plaintiffs-Appellants had requested "[a]ll records related to the killing and attempted killing by drone strike of U.S. citizens and foreign nationals," and "[a]ll National Security Council meeting minutes taken in the year 2011." The NSC moved to dismiss the complaint for failure to state a claim on the grounds that it is not an agency subject to FOIA requests.

The United States District Court for the Eastern District of New York agreed with the NSC and dismissed the case on the merits. The Second Circuit affirmed, holding that the NSC, created by Congress and presided over by the President, "is a unit within the Executive Office of the President whose "sole function" is to advise and assist the Chief Executive." The Second Circuit adopted D.C. Circuit jurisprudence and predicated its holding upon the functions of both the Council and the NSC System, which it held were advisory only and entailed no authority independent of the President.

    Posted By: Kevin Borek @ 01/28/2016 08:51 AM     8th Circuit     Comments (0)  

December 11, 2015
  United States v. Burston - Eighth Circuit
Headline Eighth Circuit panel reverses denial of motion to suppress evidence gathered by police in connection with unconstitutional dog sniff

Area of Law Fourth Amendment

Issue(s) Presented Whether the district court properly denied defendant's motion to suppress evidence gathered in connection with drug-detection dog sniff performed on the curtilage of his home.

Brief Summary Defendant was convicted of violating 18 U.S.C. § 922(g)(1) for being a felon in possession of a firearm. The conviction relied on evidence gathered by police in connection with a drug-detection dog sniff of an area immediately outside of Defendant's home. The district court denied Defendant's motion to suppress this evidence as a violation of this Fourth Amendment rights, finding that the exclusionary rule did not apply because the police officers acted in objectively reasonable reliance on binding Eighth Circuit precedent at the time of the dog sniff.

Defendant lived in an eight unit apartment building. Defendant's unit was on street level, and had a private entrance and a window. To access the unit, Defendant had his own walkway leading from the public sidewalk to his door, which was about six feet from his window. A bush covered Defendant's window, and he had a grill in the space between the walkway and his window. Based on information about potential drug use in the apartment building, officers let a drug-detection dog off-leash to sniff the air alongside the exterior wall of the apartment building. The dog left the sidewalk and walkway leading to Defendant's apartment, and sniffed the area around Defendant's window. The dog alerted to the presence of drugs six to ten inches from Defendant's window. Based on the dog's alert, the officers obtained a warrant to search Defendant's home and found the rifles and ammunition which led to his conviction. In his motion to suppress, Defendant argued that the dog sniffing near his window constituted an illegal warrantless search on the curtilage of his home.

On appeal of the denial of the motion to suppress, a panel of the Eighth Circuit agreed with Defendant, and reversed the District Court's ruling. The Court relied on a prior US Supreme Court ruling holding that an officer's use of a drug sniffing dog to investigate a home and its immediate surroundings, also called "curtilage," constitutes a search for purposes of the Fourth Amendment. To determine whether an area is considered "curtilage" the proximity to the home, whether the area is in an enclosure, the use put to the area, and the steps taken by the resident to protect the area from observation by people passing by are all considered. The Eighth Circuit held that, based on these factors, the area near Defendant's window constituted curtilage, and as such, the warrantless drug dog sniff was an illegal search which violated Defendant's Fourth Amendment rights. The Court further held that the officers did not reasonably rely on binding Eighth Circuit precedent in conducting the search because the area sniffed was not a common area, so good faith exceptions to the general rule did not apply.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/15/11/143213P.pdf

Panel Circuit Judges Melloy, Murphy, and Smith

Date of Issued Opinion November 23, 2015

Decided Reversed and remanded

Docket Number 14-3213

Counsel Mark Tremmel for the United States and Raphael Scheetz for Defendant

Author Circuit Judge Melloy

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 12/11/2015 01:49 PM     8th Circuit     Comments (0)  

October 15, 2015
  Sharpe Holdings, Inc. v. U.S. Department of Health and Human Services - Eighth Circuit
Headline Eighth Circuit panel upholds preliminary injunction enjoining the government from enforcing certain provisions of the Patient Protection and Affordable Care Act against certain nonprofit religious organizations

Area of Law Affordable Care Act

Issue(s) Presented Whether the district court properly entered a preliminary injunction enjoining the government from enforcing certain provisions of the Patient Protection and Affordable Care Act against nonprofit religious organizations that object to some forms of contraceptive coverage.

Brief Summary Plaintiffs CNS International Ministries, Inc. ("CNS") and Heartland Christian College ("HCC") are Missouri nonprofit corporations that provide residential and educational services, respectively. Both CNS and HCC offer healthcare coverage to employees through self-insured group plans. Christian belief and practice are integral to their identities. As such, CNS and HCC object to providing healthcare coverage for certain forms of contraceptives they view as akin to abortion.

The Patient Protection and Affordable Care Act (the "ACA"), requires that all group health plans and health insurers must provide coverage for all Food and Drug Administration approved contraceptive methods. Employers that fail to comply with the contraceptive mandate face monetary penalties. The ACA does provide an exemption for health plans that existed at the time of its passage, and for group health plans sponsored by narrowly defined religious employers, such as churches. The statute also provides an "accommodation" for religious organizations that have religious objections to the contraceptive mandate but do not qualify for the religious-employers exemption. After self-certifying that it meets the criteria for the accommodation, the organization's third-party administrator ("TPA") must provide or arrange payments for contraceptive services for the employees covered by the organization's healthcare plans. As such, women employed by organizations which seek the accommodation are still provided with contraceptives coverage. CNS and HCC meet the criteria to be eligible for this accommodation.

CNS and HCC filed suit against the U.S. Departments of Health and Human Services, Treasury, and Labor, along with their respective Secretaries (collectively "HHS"), challenging certain provisions of the ACA. They argue that both the contraceptive mandate and the accommodation process impose a substantial burden on their exercise of religion in violation of the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause of the First Amendment. Specifically, CNS and HCC argue that through the contraceptive mandate the government is coercing them to violate their religious beliefs by threatening monetary penalties unless they either directly provide contraceptive coverage, or indirectly provide the same coverage through the accommodation process. With respect to the accommodation process, CNS and HCC claim that by submitting a document to self-certify that they are eligible for an accommodation, they trigger contraceptive coverage by a TPA. Thus, CNS and HCC argue, their actions lead to the provision of contraceptives they object to on religious grounds.

The District Court granted injunctive relief, relying on an earlier order enjoining enforcement of ACA contraceptive mandate regulations against certain for-profit plaintiffs. HHS appealed, arguing that the TPAs have a separate and independent obligation under the ACA to provide contraceptive coverage to CNS and HCC's employees. HHS further argued that, even assuming there was a substantial burden on the exercise of religion, the accommodation process is the least restrictive means possible to accomplish its compelling interest in ensuring access to no-cost contraceptive coverage.

The Eighth Circuit rejected HHS's arguments, and affirmed the District Court's order granting a preliminary injunction. It did not address the First Amendment claims because it concluded that CNS and HCC were entitled to relief based on the RFRA claims. The Eighth Circuit found that by imposing monetary penalties should CNS and HCC adhere to their religious beliefs and refuse to comply with the contraceptive mandate or the accommodation process, the government placed a substantial burden on the organizations' exercise of religion. The Court rejected precedent from other courts that sided with the government in concluding that, as a matter of law, the accommodation process did not trigger or otherwise make religious organizations complicit in the provision of contraceptive coverage. Instead, the Eighth Circuit stressed that, in light of Burwell v. Hobby Lobby, 134 S. Ct. 2751 (2014), it must accept CNS and HCC's assertions that self-certification under the accommodation process would violate their sincerely held religious beliefs by facilitating provision of a form of abortion. The Eighth Circuit stated that "[t]he question here is not whether CNS and HCC have correctly interpreted the law, but whether they have a sincere religious belief that their participation in the accommodation process makes them morally and spiritually complicit in providing abortifacient coverage. Their affirmative answer to that question is not for us to dispute." As such, the Eighth Circuit concluded that in light of these sincerely held religious beliefs, compelling participation in the accommodation process under threat of monetary penalties substantially burdened CNS and HCC's exercise of religion.

Finally, the Eighth Circuit assumed for purposes of its analysis that the government had a compelling interest in guaranteeing cost-free contraceptive coverage in examining whether the accommodation process is the least restrictive means possible for achieving that compelling interest. It determined that the accommodation process is not the least restrictive means, and provided a number of examples of less restrictive options through which the government could provide free contraceptive coverage.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/15/09/141507P.pdf

Panel Circuit Judges Benton, Colloton, and Wollman

Date of Issued Opinion September 17, 2015

Decided Affirmed

Docket Number 14-1507

Counsel Patrick Nemeroff for Appellants and Timothy Belz for Appellees

Author Circuit Judge Wollman

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 10/15/2015 10:41 AM     8th Circuit     Comments (0)  

October 13, 2015
  McDonough v. Anoka County - Eighth Circuit
Headline Eighth Circuit panel rules on consolidated appeal challenging dismissal of four separate actions alleging data privacy violations against numerous Minnesota cities, counties, government entities, law enforcement personnel, and Department of Public Safety commissioners and employees

Area of Law Statute of Limitations; Privacy

Issues Presented Whether district courts properly dismissed Plaintiffs' actions alleging violation of the Driver's Privacy Protection Act on statute of limitations and failure to meet pleading standard grounds.

Brief Summary Plaintiffs are four individuals who allege that various law enforcement officers accessed their drivers' license data without a permissible basis, in violation of the Drivers Privacy Protection Act ("DPPA"). 18 U.S.C. §§ 2721-2725.

Defendant cities and counties moved to dismiss on statute of limitation grounds, arguing that claims based on accesses occurring more than four years prior to the date of complaint were barred by the applicable statute of limitations. Plaintiffs argued that the statute of limitation for each allegedly improper lookup did not begin to run until the lookup was discovered, or with due diligence should have been discovered, rendering their claims timely.

Defendant cities and counties also moved to dismiss on the basis that Plaintiffs failed to plead a plausible claim under the Twombly/Iqbal standard that the accesses were for an improper purpose. Defendant Department of Public Safety ("DPS") commissioners and employees moved to dismiss on the basis that the DPPA does not make them liable for permitting allegedly unlawful access by others.

In separate decisions, the district courts in each case dismissed the complaints, holding: (1) that claims based on lookups occurring more than four years prior to the filing of the complaint are barred by the applicable statute of limitations, declining to apply the discovery rule; (2) that Plaintiffs failed to meet the Twombly/Iqbal standard requiring them to plead a plausible claim that the lookups at issue lacked a valid law enforcement purpose; and (3) that Plaintiffs failed to state a claim against the DPS commissioners and employees. Plaintiffs appealed.

The Eighth Circuit affirmed the district courts on the statute of limitations issue, holding that the discovery rule does not apply to DPPA claims. In so holding, the Eighth Circuit called into question its prior precedent on the discovery rule, based upon its reading of the Supreme Court's ruling in Gabelli v. SEC, 133 S. Ct. 1216 (2013). The Eighth Circuit observed that while it has generally "applied the discovery rule as the default statute-of-limitations rule in the absence of a contrary directive from Congress," the Supreme Court "has never adopted that position as its own."

Based upon its reading of Gabelli and TRW Inc. v. Andrews, 534 U.S. 19, 27 (2001), the Eighth Circuit held that where the text, structure, and purpose of a limitations provision suggest that Congress may not have intended for the discovery rule to apply, courts in the Eighth Circuit should "take into account the general policy underlying the statute of limitation, as well as equitable considerations relevant to the cause of action at hand, when determining whether to apply the discovery or occurrence rule." Applying these considerations to the DPPA, the Eighth Circuit held that the statute of limitations for DPPA claims runs from the date of the allegedly improper access, irrespective of when it was discovered.

With respect to the non-time barred claims, the Eighth Circuit conducted a fact intensive analysis of the non-time barred lookups to determine whether the facts pled were sufficient to state a plausible claim for relief. The Eighth Circuit reversed three of the four cases, finding that the facts alleged by those Plaintiffs met the Twombly/Iqbal pleading standard, and remanded for further proceedings.

The Eighth Circuit also applied qualified immunity to affirm the dismissal of claims against DPS commissioners and employees.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/15/08/141754P.pdf

Panel Circuit Judges Beam, Colloton, and Wollman

Date of Issued Opinion August 20, 2015

Decided Affirmed in part and reversed in part

Docket Number 14-1754, 14-1756, 14-1765, 14-1974

Author Circuit Judge Wollman

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 10/13/2015 02:02 PM     8th Circuit     Comments (0)  

August 14, 2015
  Jernigan v. Crane; Rosenbrahn v. Daugaard; and Waters v. Ricketts - Eighth Circuit
Headline Eighth Circuit panel affirms district court orders enjoining enforcement of Arkansas, South Dakota, and Nebraska laws denying same-sex couples the right to marry

Area of Law Same sex marriage

Issue(s) Presented Whether the district courts properly enjoined Arkansas, South Dakota, and Nebraska laws denying same-sex couples the right to marry, and whether those decisions should be vacated as moot in light of recent United States Supreme Court ruling.

Brief Summary Same-sex couples wishing to marry in Arkansas, South Dakota, and Nebraska filed complaints challenging the states' laws denying same-sex couples the right to marry. In each of the three cases, the district court held that the state law at issue violated the U.S. Constitution, and enjoined its enforcement. The states appealed.

While the appeals were pending, the United States Supreme Court decided Obergefell v. Hodges, 135 S. Ct. 2584 (2015), holding that marriage is a fundamental right that may be exercised by same-sex couples. In light of the ruling, Arkansas, South Dakota, and Nebraska filed suggestions of mootness and moved the Eighth Circuit to vacate the district court judgments enjoining their marriage laws.

In three virtually identical opinions, the Eight Circuit denied each motion to vacate and affirmed the district court judgments. The Eighth Circuit noted that, under Obergefell, the challenged laws are unconstitutional. It held, however, that the Supreme Court's ruling did not moot these three cases. In Obergefell, the Supreme Court expressly invalidated only the laws challenged by the petitioners in that case - none of which were the Arkansas, South Dakota, or Nebraska laws. Moreover, not all of the issues raised by the plaintiffs in these cases were addressed in Obergefell, and the states have not repealed the challenged laws at issue.

The full text of the opinions may be found at:
Jernigan: http://media.ca8.uscourts.gov/.../08/151022P.pdf

Rosenbrahn: http://media.ca8.uscourts.gov/.../08/151186P.pdf

Waters: http://media.ca8.uscourts.gov/.../08/151452P.pdf


Panel
Circuit Judges Benton, Smith, and Wollman

Date of Issued Opinion August 11, 2015

Decided Affirmed

Docket Numbers Jernigan: 15-1022; Rosenbrahn: 15-1186; Waters: 15-1452

Counsel (if known)

Author Per Curiam

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 08/14/2015 01:49 PM     8th Circuit     Comments (0)  

August 3, 2015
  Wieland v. U.S. Department of Health and Human Services - Eighth Circuit
Headline Eighth Circuit panel reverses finding that individuals lacked standing to challenge certain provisions of the Patient Protection and Affordable Care Act related to healthcare coverage of contraceptives

Area of Law Affordable Care Act

Issue(s) Presented Whether the district court properly determined that individuals did not have standing to challenge certain provisions of the Patient Protection and Affordable Care Act and its implementing regulations related to healthcare coverage of contraceptives.

Brief Summary Plaintiffs are devout Roman Catholics with religions objections to the use of contraceptives. Plaintiff Paul Wieland is a member of the Missouri House of Representatives, and obtained healthcare coverage for himself, his wife, and his three daughters from his employer, the State of Missouri, through the Missouri Consolidated Health Care Plan (collectively, "the State"). Prior to August 2013, Plaintiffs had the opportunity to opt out of coverage for contraceptives under Missouri state law. After passage of the Patient Protection and Affordable Care Act (the "ACA"), however, a federal court held that Missouri's opt out provisions were preempted by the contraceptive mandate of the ACA. As a result, Plaintiffs were no longer given an opportunity to opt out of coverage for contraceptives, and were placed into a new healthcare plan including such coverage.

Plaintiffs filed suit against the U.S. Departments of Health and Human Services, Treasury, and Labor, along with their respective Secretaries (collectively "HHS"), challenging certain provisions of the ACA. The provisions and implementing regulations challenged by Plaintiffs do not apply to individuals like themselves, but to "group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage." 42 U.S.C. § 300gg-13(a)(4); 76 Fed. Reg. 46621. Plaintiffs alleged that HHS's enforcement of these provisions and regulations violated their rights under the Religious Freedom Restoration Act, the Free Exercise, Free Speech, and Due Process Clauses of the US Constitution, and the Administrative Procedures Act by forcing them to provide their daughters with coverage for contraceptives in violation of their sincerely held religious beliefs.

The District Court dismissed Plaintiffs complaint for lack of standing. It held that Plaintiffs were challenging provisions of the ACA that did not apply to them, and were seeking an injunction prohibiting enforcement of the provisions against the State, which was not a party to the case. It further concluded that, even if enforcement of the provisions were enjoined, whether a contraceptive-free plan would be made available to Plaintiffs would depend on the independent discretionary actions of the State.

Plaintiffs appealed, and a panel of the Eighth Circuit reversed the District Court's ruling. The Eighth Circuit held that Plaintiffs had plead sufficient factual allegations establishing a chain of causation running directly from the challenged contraception mandate of the ACA to their injury. The Eighth Circuit panel also found that there was no independent discretionary action by the State. Rather, Plaintiffs were placed into a plan including contraceptive coverage as a direct result of HHS's threatened enforcement of the contraceptive mandate against the State, and no discretion was involved in the State's decision to eliminate the ability to opt-out of contraceptive coverage. As such, the Eighth Circuit determined that it was the ACA's contraceptive mandate itself that was the but-for cause of the change in the Plaintiffs' healthcare plan. The Eighth Circuit also held that Plaintiffs had sufficiently alleged that their injury would be redressed if the injunctive relief sought was granted in light of Missouri law and Missouri's previous willingness to offer Plaintiffs the opportunity to opt-out of contraceptive coverage.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/15/07/133528P.pdf

Panel Circuit Judges Loken, Murphy, and Wollman

Date of Issued Opinion July 20, 2015

Decided Reversed and remanded

Docket Number 13-3528

Counsel Timothy Belz for Appellants and Alisa Beth Klein for Appellees

Author Circuit Judge Wollman

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 08/03/2015 10:58 AM     8th Circuit     Comments (0)  

July 30, 2015
  MKB Management Corp. v. Stenehjem - Eighth Circuit
Headline Eighth Circuit panel affirms permanent injunction of North Dakota statute prohibiting abortion once fetus possesses detectable heartbeat

Area of Law Abortion rights

Issue(s) Presented Whether the district court properly determined that the North Dakota statute must be enjoined as an unconstitutional limitation on a woman's right to choose an abortion.

Brief Summary The sole abortion provider in North Dakota, together with its medical director, challenged the constitutionality of North Dakota House Bill 1456 (the "Bill") before it took effect, seeking a permanent injunction. The Bill provides that a physician performing an abortion must first determine whether the fetus has a detectible heartbeat. H.B. 1456 § 1.1. Moreover, a physician is prohibited from performing an abortion, except under limited exceptions, if a heartbeat has been detected in the fetus. Id. at § 2.1. A physician who violates this prohibition commits a felony. Id. at § 2.4.

On summary judgment, the plaintiffs submitted declarations stating that a fetus is generally not viable, meaning having a chance of survival outside the womb, until 24 weeks' gestation, but will normally have a detectable heartbeat by about 6 weeks. In response, defendants submitted a declaration stating that a fetus has a detectable heartbeat at 6-8 weeks, and that a fetus is viable from conception because in vitro fertilization "allow[s] an embryonic unborn child to live outside the human uterus (womb) for 2-6 days after conception." Based on United States Supreme Court precedent, including the Supreme Court's definition of "viability," the District Court permanently enjoined the Bill.

On appeal, a panel of the Eighth Circuit affirmed the District Court's ruling. Supreme Court precedent establishes the "right of the woman to choose to have an abortion before viability. . . without undue interference from the State." Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 846 (1992). The Supreme Court has defined viability as the time when "there is a reasonable likelihood of the fetus' sustained survival outside the womb, with or without artificial support." Colautti v. Franklin, 439 U.S. 379, 388 (1979). In this case, because the declaration submitted by defendants used a different definition of viability than that relied upon by the Supreme Court, it did not create a genuine dispute as to when viability occurs. The Eighth Circuit held that because the Bill prohibited abortions after the point at which a fetus has a detectable heartbeat, well before the currently recognized point of viability, it was unconstitutional and was properly enjoined by the District Court.

In dicta, the Eighth Circuit panel questioned the continuing usefulness of the viability standard established by Casey. The panel noted that it is not a consistent and certain benchmark, as medical and technological advances continue to move the point of viability earlier in a pregnancy. The panel also stated that current Supreme Court jurisprudence discounts state interests in protecting unborn children.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/15/07/142128P.pdf

Panel Circuit Judges Benton, Shepherd, and Smith

Date of Issued Opinion July 22, 2015

Decided Affirmed

Docket Number 14-2128

Counsel Daniel Gaustad for Appellants and Janet Crepps for Appellees

Author Circuit Judge Shepherd

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 07/30/2015 11:04 AM     8th Circuit     Comments (0)  

June 18, 2015
  Ibrahim v. Commissioner of Internal Revenue
Headline Eighth Circuit panel holds that a "separate return" means "married filing separately" and does not include a tax return claiming "head of household" status

Area of Law Tax

Issue(s) Presented Whether the Tax Court properly determined that a tax return claiming "head of household" status constitutes a separate return under the Internal Revenue Code, thus prohibiting a taxpayer from changing their status in certain circumstances.

Brief Summary Appellant is a married Somalian immigrant who speaks limited English. Using a tax service to assist in the preparation of his tax return, he mistakenly claimed "head of household" status. This was not proper because Appellant was married. Appellant received a notice of deficiency, and petitioned the Tax Court to change his status to "married filing jointly." This change in status would have resulted in a credit and tax refund to Appellant. However, the Internal Revenue Code (the "Code") prohibits the filing of a joint return after a taxpayer has already filed a "separate return," received a deficiency notice, and filed a petition. 26 U.S.C. § 6013(b). The Tax Court held that "head of household" returns are "separate returns," and thus Appellant was prohibited from changing his status to "married filing jointly."

On appeal, a panel of the Eighth Circuit reversed the Tax Court's ruling in a two-to-one decision. The Code section at issue, Section 6013(b), does not define "separate return." To determine its meaning, the Eighth Circuit looked to the language of the statute as a whole. It concluded that "separate return" appears numerous times in the statute, and in each case means "married filing separately." In fact, where the Code does not expressly define "separate return," the Commissioner has issued guidance that "separate return" means "married filing separately." Relying on these findings, the Eighth Circuit applied the normal rule of statutory construction, that identical words used in different parts of the same statute are intended to have the same meaning, to conclude that for purposes of Section 6013(b), "separate return" exclusively means "married filing separately." The Eighth Circuit noted that the legislative history of Section 6013(b) also supports this definition.

Because Appellant's "head of household" filing was not a "separate return" within the meaning of Section 6013(b), he should not have been prohibited from amending his status to "married filing jointly" and receiving a refund.

Circuit Judge Bye dissented from the opinion, believing that the Tax Court reasonably construed any non-joint return, including "head of household" returns, as a "separate return" for purposes of Section 6013.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/15/06/142070P.pdf

Panel Circuit Judges Beam, Benton, and Bye

Date of Issued Opinion June 10, 2015

Decided Reversed and remanded

Docket Number 14-2070

Counsel Frank DiPietro for Appellant and Teresa McLaughlin for Appellee

Author Circuit Judge Benton

Case Alert Circuit Supervisor
Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 06/18/2015 11:29 AM     8th Circuit     Comments (0)  

  Edwards v. Beck - Eighth Circuit
Headline Eighth Circuit panel affirms permanent injunction of certain provisions of the Arkansas Human Heartbeat Protection Act

Area of Law Abortion rights

Issue(s) Presented Whether the district court properly determined that certain sections of the Arkansas Human Heartbeat Protection Act must be enjoined as unconstitutional prohibitions on a woman's right to choose an abortion.

Brief Summary Two Arkansas physicians challenged the constitutionality of the Arkansas Human Heartbeat Protection Act (the "Act"), seeking a permanent injunction. The Act provides that a physician cannot perform an abortion on a pregnant woman until after it has been determined whether the fetus has a detectible heartbeat. Ark. Code Ann. § 20-16-1303(a). Moreover, a physician "shall not perform an abortion on a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human individual whose heartbeat has been detected . . . and is twelve (12) weeks or greater gestation." Id. at § 20-16-1304(a). If a physician violates § 1304, his or her medical license shall be revoked. Id. at § 20-16-1304(b).

On summary judgment, the plaintiffs submitted affidavits stating that a fetus is generally not viable until 24 weeks' gestation, is never viable at 12 weeks, but will normally have a detectable heartbeat at 12 weeks. The defendant, the Arkansas State Medical Board, left the plaintiffs' factual allegations uncontroverted, and presented no factual record of its own. Based on this factual record, and in keeping with prior rulings of the United States Supreme Court, the District Court permanently enjoined sections 20-16-1303(d)(3) and 20-16-1304.

On appeal, a panel of the Eighth Circuit affirmed the District Court's ruling. United States Supreme Court precedent establishes the "right of the woman to choose to have an abortion before viability. . . without undue interference from the State." Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 846 (1992). In this case, the uncontroverted factual record established that a fetus is not viable until 24 weeks' gestation. Because the Act prohibited abortions after only 12 weeks' gestation, well before viability, those provisions prohibiting abortions were unconstitutional and were properly enjoined by the District Court.

In dicta, the Eighth Circuit panel questioned the continuing usefulness of the viability standard established by Casey. Medical and technological advances continue to move the point of viability earlier in a pregnancy. Moreover, the viability determination must be made on a case-by-case basis, making it essential that the courts be presented with an adequate scientific record.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/15/05/141891P.pdf

Panel Circuit Judges Benton, Shepherd, and Smith

Date of Issued Opinion May 27, 2015

Decided Affirmed

Docket Number 14-1891

Counsel Colin Jorgensen for Appellants and Susan Talcott Camp for Appellees

Author Per Curiam

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 06/18/2015 11:25 AM     8th Circuit     Comments (0)  

April 10, 2015
  Bucklew v. Lombardi - Eighth Circuit
Headline Eighth Circuit reverses dismissal of prisoner lawsuit challenging the lethal-injection protocol of the Missouri Department of Corrections as applied to him in light of his pre-existing medical condition

Area of Law Eighth Amendment

Issue(s) Presented Whether the district court properly dismissed sua sponte a § 1983 action alleging that Missouri's lethal-injection method of execution would violate the prisoner's Eighth Amendment rights due to a serious medical condition that increased the likelihood of the execution method causing extreme pain.

Brief Summary This is a companion opinion to that issued on March 6, 2015 in Zink v. Lombardi, the full text of which can be found at http://media.ca8.uscourts.gov/opndir/15/03/142220P.pdf. In addition to being a plaintiff in that action, which challenged Missoui's lethal-injection protocol on a number of grounds, Bucklew filed this separate action under 42 USC § 1983. He alleged that the protocol violates his Eighth Amendment right to be free from cruel and unusual punishment because he suffers from a serious medical condition that creates a significant risk that the execution will cause him excruciating pain. The district court dismissed plaintiff's claim sua sponte before an answer was filed, finding that plaintiff had not adequately alleged facts to support the elements of an Eighth Amendment challenge to Missouri's method of execution.

On appeal, Bucklew raised several issues that were duplicative of the arguments made on appeal in Zink v. Lombardi. The Eighth Circuit resolved those issues in its opinion in Zink. Bucklew also argued that he adequately alleged that Missouri's lethal-injection protocol, as applied to him, would violate the Eighth Amendment standard because of his unique medical condition. There are two essential elements of an Eighth Amendment claim challenging a state's method of execution. First, the complaint must adequately allege that the protocol creates a substantial risk of severe pain. Second, the complaint must allege that a feasible alternative method of execution exists that would substantially reduce the risk of harm.

In addressing the as-applied argument, the Eighth Circuit examined the allegations of Bucklew's complaint and the affidavits of medical experts attached thereto concerning his medical condition, congenital cavernous hemangioma. Among other things, the facts and opinions alleged that, due to this condition, possible hemorrhaging or abnormal circulation of the lethal drug created a substantial risk that the execution would be prolonged, extremely painful, and might result in suffocation. The complaint did not specifically allege a feasible alternative method of execution that would substantially reduce these risks. Though an answer was not filed, in its papers opposing Bucklew's motions for preliminary injunction and a stay of execution, the Missouri Department of Corrections acknowledged Bucklew's medical condition, and determined that it would change its lethal-injection procedure to lessen the alleged risk. The Eighth Circuit found that this concession bolstered the detailed allegations of the complaint alleging substantial risk of serious harm, and also supported Bucklew's allegations that Missouri had unreasonably refused to change its regular method of execution to a "feasible, readily implemented" alternative that would significantly reduce the substantial risks alleged.

The Eighth Circuit noted that a district court only has the power to dismiss a claim sua sponte where the plaintiff cannot possibly prevail and amendment of the claim would be futile. After reviewing the complaint and the record, the Eighth Circuit held that the district court prematurely exercised this limited authority because it was not "patently obvious the plaintiff could not prevail." The Eighth Circuit further noted that the district court should not have assumed that Bucklew would have declined an invitation to amend the complaint to include more detailed allegations of a feasible alternative method of execution.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/15/03/142163P.pdf

Panel En Banc

Date of Issued Opinion March 6, 2015

Decided Reversed and remanded

Docket Number 14-2163

Counsel Cheryl Ann Pilate for Appellant and James B. Farnsworth for Appellees

Author Circuit Judge Loken

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 04/10/2015 03:37 PM     8th Circuit     Comments (0)  

  Zink v. Lombardi - Eighth Circuit
Headline Eighth Circuit affirms dismissal of prisoner lawsuit challenging the lethal-injection protocol of the Missouri Department of Corrections

Area of Law Eighth Amendment

Issue(s) Presented Whether the district court properly dismissed an action for declaratory judgment and injunctive relief alleging that Missouri's lethal-injection protocol violates the U.S. Constitution, the Missouri Constitution, and various federal and state laws.

Brief Summary In 2012, Missouri changed its lethal-injection protocol from administration of three drugs to only one, propofol. In response to the protocol change, a group of prisoners filed suit challenging the new single drug protocol. In 2013, while the lawsuit was pending, Missouri altered it protocol yet again, replacing propofol with pentobarbital. Plaintiffs subsequently amended their complaint to allege 10 separate claims challenging the legality of the revised protocol. Missouri moved to dismiss all of the claims. The district court granted the motion, dismissing the amended complaint in its entirety. Plaintiffs appealed the ruling with respect to seven of the claims.

On appeal, the prisoner appellants primarily argued that Missouri's lethal-injection protocol violates the right to be free from cruel and unusual punishment contained in the Eighth Amendment of the U.S. Constitution. The Eighth Circuit, sitting en banc, held that appellants had not adequately pled that the protocol violates the cruel and unusual punishment prohibition. There are two essential elements of a claim challenging a state's method of execution. First, the complaint must adequately allege that the protocol creates a substantial risk of severe pain. Second, the complaint must allege that a feasible alternative method of execution exists that would substantially reduce the risk of harm.

In this case, the Eighth Circuit held that the complaint did not adequately allege facts sufficient to show that Missouri's protocol creates a substantial risk of severe pain. The facts alleged were limited to hypothetical situations and speculation, and did not rise to the level of showing that the challenged protocol was "sure or very likely to cause . . . needless suffering." Moreover, the Eighth Circuit also held that the complaint did not adequately plead the second element of a cruel and unusual punishment claim - the existence of an alternative method of execution. The complaint merely conceded that other methods of lethal injection would be constitutional. The Eighth Circuit found that this concession alone with no additional factual support was not sufficient to state a claim under the Eighth Amendment.

The Eighth Circuit also rejected appellants' additional claims that Missouri's lethal-injection protocol violates other Eighth Amendment rights, deprives them of due process and equal protection, violates their First Amendment rights, and breaks a number of other federal laws. Notable among these additional holdings was the Eighth Circuit's ruling that the First Amendment does not grant a prisoner a right "to know where, how, and by whom the lethal injection drugs will be manufactured." The Court held that appellants failed to state a claim of qualified right of public access to such information, because they could not plausibly allege a history of openness to the general public.

The full text of the opinion may be found at Text

Panel En Banc

Date of Issued Opinion March 6, 2015

Decided Affirmed

Docket Number 14-2220

Counsel Joseph Luby for Appellants and Shaun Mackelprang for Appellees

Author Per Curiam

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 04/10/2015 03:31 PM     8th Circuit     Comments (0)  

April 7, 2015
  Survivors Network of Those Abused by Priests, Inc. v. Joyce - Eighth Circuit
Headline Eighth Circuit panel holds that Missouri's House of Worship Protection Act violates the First Amendment right to free speech

Area of Law First Amendment

Issue(s) Presented Whether the district court properly upheld a Missouri statute prohibiting certain types of speech within or near a house of worship.

Brief Summary Appellant non-profit organizations and individuals regularly gather outside of Catholic churches to address sexual abuse by priests and other issues of public concern. They raised a facial First Amendment challenge to Missouri's House of Worship Protection Act (the "Act"), alleging that as written, the Act infringes on freedom of speech. The Act provides that a person commits a crime when he or she "intentionally and unreasonably disturbs, interrupts, or disquiets any house of worship by using profane discourse, rude or indecent behavior, or making noise either within the house of worship or so near it as to disturb the order and solemnity of the worship services." The district court upheld the Act and granted summary judgment to the defendants, and the plaintiffs appealed.

Appellants argued on appeal that the Act's prohibition on using "profane discourse, rude or indecent behavior" chilled their expression and interfered with their ability to speak in public locations where their intended audience - church officials and parishioners - could be reached. The Eighth Circuit noted that the government's ability to regulate speech in traditionally public spaces, as the Act attempts to do by regulating speech "near" houses of worship, is very limited. In examining the constitutionality of the Act, the Eighth Circuit focused on whether the restriction on speech was content based, and thus subject to strict scrutiny, or content neutral (with only time, place, and manner restrictions), and thus subject to intermediate scrutiny. The Court held that on its face, the Act's prohibition was content based. To enforce the Act, officials would need to decide whether a protester was intentionally and unreasonably disturbing a house of worship, and also whether the message was profane, rude or indecent. Because these distinctions would be based on the nature of the message, the Act was a content based regulation.

The Eighth Circuit further found that, assuming the government interest in protecting free exercise of religion is compelling, the Act's content based prohibition on profane or rude speech was not necessary to protect that freedom. The Act could not survive strict scrutiny because it did not merely seek to protect houses of worship from disruption, but also attempted to limit the content of certain messages. Content neutral alternatives, such as noise regulations, were a less intrusive alternative.

The full text of the opinion may be found at Text

Panel Circuit Judges Loken, Murphy, and Wollman

Date of Issued Opinion March 9, 2015

Decided Reversed and remanded

Docket Number 13-3036

Counsel Anthony Rothert for Appellants and John Andrew Hirth for Appellees

Author Circuit Judge Murphy

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 04/07/2015 10:21 AM     8th Circuit     Comments (0)  

January 5, 2015
  United States v. Lorenzo-Lucas - 8th Circuit
Case Name United States v. Lorenzo-Lucas

Headline Eighth Circuit panel affirms trial court evidentiary ruling that a warrant of deportation does not implicate a criminal defendant's Confrontation Clause rights

Area of Law Evidence, Criminal Procedure

Issue(s) Presented Whether a signed warrant of deportation is testimonial evidence that implicates the Confrontation Clause of the Sixth Amendment to the Constitution

Brief Summary The individual Defendant was convicted of illegal reentry into the United States after a prior deportation. At trial in the reentry proceeding, the government introduced a form I-205 against the Defendant. This was a signed warrant, evidencing that in the prior matter an immigration official took custody of the Defendant as a deportee, and observed the Defendant leaving the country. The Defendant objected to the evidence of the warrant, on the ground that it was testimonial in nature. The Defendant argued that the government had to produce the individual(s) who signed the warrant, or had to establish that the Defendant had a prior opportunity to cross-examine the now unavailable individual(s).

The trial court overruled the Defendant's objection, and the Eighth Circuit panel affirmed. The purpose of the I-205 form, said the panel, is to track movements of aliens and to enforce deportation. The purpose is not to create testimony for future criminal litigation.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/14/12/142758P.pdf

Panel Circuit Judges Loken, Bright, and Kelly

Date of Issued Opinion December 30, 2014

Decided Affirmed

Docket Number 14-2758

Counsel Frederick D. Franklin for the United States and Richard Haile McWilliams for Defendant

Author Judge Bright

TextCase Alert Circuit Supervisor Bradley Clary, University of Minnesota Law School

    Posted By: Bradley Clary @ 01/05/2015 01:47 PM     8th Circuit     Comments (0)  

December 31, 2014
  United States v. Sellner - Eighth Circuit
Headline Eighth Circuit panel holds that pro se petitioner's filing of second motion challenging sentence while first motion remains pending should be treated as a motion to amend

Area of Law Sentencing

Issue(s) Presented Whether the district court properly denied defendant's two pro se motions to vacate her conviction, where no evidentiary hearing was conducted and the second motion was dismissed as "second or successive."

Brief Summary Defendant pleaded guilty to conspiracy to distribute and possess with intent to distribute methamphetamine. Following entry of judgment, Defendant filed a pro se motion to vacate her conviction pursuant to 28 U.S.C. § 2255, arguing that her counsel failed to file a notice of appeal even though she requested he do so. While that motion was pending, Defendant filed a second § 2255 motion raising a different issue. The district court dismissed Defendant's first motion on the merits, without first holding an evidentiary hearing. It also dismissed her second motion as "second or successive" under the Antiterrorism and Effective Death Penalty Act (AEDPA). Defendant appealed the denial of her § 2255 motions.

With respect to denial of her first § 2255, the Eight Circuit followed existing precedent and held that an evidentiary hearing should have been held before denial of the motion on the merits. Competing statements by Defendant and Defendant's counsel regarding whether a notice of appeal was requested created a factual dispute necessitating an evidentiary hearing.

Defendant argued that her second § 2255 motion should have been construed as a motion to amend, and should not have been denied as "second or successive." Motions to amend are not considered "second or successive" under AEDPA. The Eighth Circuit agreed with Defendant. Though the Eighth Circuit had not previously addressed this issue, it followed the lead of other circuits and held that when a pro se defendant files a second § 2255 motion before the first has been ruled on, the second motion should be construed as a motion to amend. In support, the Eighth Circuit noted that pro se filings are to be liberally construed, and no adjudication on the merits of the prior motion have yet occurred in such cases.

The full text of the opinion may be found at Text

Panel Chief Judge Riley and Circuit Judges Bye and Wollman

Date of Issued Opinion December 15, 2014

Decided Reversed and remanded

Docket Number 13-3794

Counsel Kimberly Bunjer for the United States and Michael David Gooch for Defendant

Author Circuit Judge Wollman

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 12/31/2014 10:46 AM     8th Circuit     Comments (0)  

December 5, 2014
  United States v. Wheelock - Eighth Circuit
Headline Eighth Circuit panel affirms use of administrative subpoena to procure internet subscriber information and mandatory minimum sentence for receipt of child pornography

Area of Law Fourth Amendment; Sentencing

Issue(s) Presented Whether use of an administrative subpoena to procure internet service subscriber information violates the Fourth Amendment and federal and state statutes, as well as whether the mandatory minimum sentence for receipt of child pornography arbitrarily punishes receipt more harshly than possession.

Brief Summary Using an administrative subpoena to Comcast, Minneapolis police connected Defendant to a computer downloading child pornography. Based on this data, police received and executed a search warrant on Defendant's home, and found several hard drives, DVDs, and CDs containing child pornography, as well as a computer actively downloading it. Ultimately, Defendant pled guilty to receipt of child pornography and was sentenced as a repeat offender to a minimum mandatory sentence of fifteen years in prison.

On appeal, Defendant challenged the use of an administrative subpoena to obtain information from Comcast, claiming it was a violation of his Fourth Amendment privacy rights. He also challenged the constitutionality of his mandatory minimum sentence, because by statute the mandatory minimum for receipt of child pornography is fifteen years, whereas for possession it is only ten years. Defendant argued that the mandatory minimum sentence arbitrarily punishes receipt more harshly than possession.

A panel of the Eight Circuit summarily rejected the administrative subpoena challenge. There is clear, binding Eighth Circuit precedent holding that the Fourth Amendment does not protect information revealed to a third party, and later conveyed by the third party to the government. Because Comcast, a third party, was in possession of Defendant's subscriber data, Defendant had no reasonable expectation of privacy in it. The panel noted that every federal court to address this issue has found that subscriber information provided to an internet provider is not protected by the Fourth Amendment.

Defendant further claimed that Minnesota's internet privacy statute prevented the disclosure, but the language of the statute itself requires the disclosure of information "to an investigative or law enforcement officer" where the information is requested through an administrative subpoena. The subpoena was properly applied for and issued in this case, and therefore suppression was not warranted.

As to the mandatory minimum sentence challenge, Congress established the minimums for receipt and possession of child pornography, and decided to punish receipt more harshly. To succeed in his challenge, Defendant needed to demonstrate that Congress's line drawing between these offenses was "totally arbitrary" under a "rational basis" inquiry.

Defendant contended that possession necessarily requires receipt, and conversely, that receipt necessarily requires possession. As such, they should be punished the same. However, the panel held that Congress's line drawing was not arbitrary. Intentional receipt of child pornography contributes to and furthers the market for child pornography, whether or not the person retains possession. Possession, conversely, does not necessarily further the market or spread the harm beyond the possessor. For example, someone could come to possess child pornography by accident, such as someone who was trying to access or purchase adult pornography. The Eight Circuit held that because the harms flowing from possession and knowing receipt differ, it is not irrational to punish them differently.

The full text of the opinion may be found at Text

Panel Chief Judge Riley and Circuit Judges Bye and Wollman

Date of Issued Opinion November 20, 2014

Decided Affirmed

Docket Number 14-1504

Counsel Laura Provinzino for Plaintiff and Alan Margoles for Defendant

Author Chief Judge Riley

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 12/05/2014 03:52 PM     8th Circuit     Comments (0)  

December 3, 2014
  United States v. Aleff - 8th Circuit
Headline Eighth Circuit panel affirms summary judgment and penalty in favor of the United States in False Claims Act case

Area of Law False Claims Act

Issue(s) Presented Whether the district court properly granted summary judgment to the United States in a False Claims Act case when the individual defendants previously pled guilty to a fraud conspiracy in violation of 18 U.S.C. § 286, and whether a $1.3 million penalty in the False Claims Act case violated the Double Jeopardy or Excessive Fines Clauses of the Constitution

Brief Summary The individual defendants pled guilty to a conspiracy to defraud the United States in violation of 18 U.S.C. § 286. The court in the § 286 case ordered the defendants to pay just over $300,000 in restitution.

The United States then additionally filed a False Claims Act case under 31 U.S.C. §§ 3729-33. In that matter, the district court ordered the defendants to pay a $1.3 million penalty.

In the Eighth Circuit, the defendants first objected to the use of their guilty pleas from the § 286 proceeding to preclude them from litigating liability in the False Claims Act case on the ground that no issues were actually litigated in the first proceeding. The Eighth Circuit panel concluded, however, that the plea of guilty in the § 286 proceeding necessarily admitted a conspiracy to knowingly present a false claim to the government under the False Claims Act.

The defendants next objected to the assessment of the $1.3 million penalty in the False Claims Act case on the ground that it violated the U.S. Constitution Double Jeopardy Clause prohibition against multiple criminal punishments for the same offense. But the Eighth Circuit panel concluded that treble damages and fixed penalties under the False Claims Act are compensatory, not punitive.

The defendants finally objected to the assessment of the $1.3 million penalty in the False Claims Act case on the ground that it violated the U.S. Constitution Excessive Fines Clause. The Eighth Circuit panel concluded that the penalty could be punitive in nature under that Clause, but then ruled that the penalty was not in fact excessive in the circumstances of the case.

The full text of the opinion may be found at nullhttp://media.ca8.uscourts.gov/opndir/14/11/141527P.pdf

Panel Circuit Judges Murphy, Melloy, and Benton

Date of Issued Opinion November 20, 2014

Decided Affirmed

Docket Number 14-1527

Counsel Cheryl Schrempp Dupris for the United States and Jason Chandler Farrington for Defendants

Author Judge Benton

Case Alert Circuit Supervisor Bradley Clary, University of Minnesota Law School

    Posted By: Bradley Clary @ 12/03/2014 09:53 AM     8th Circuit     Comments (0)  

September 17, 2014
  Chavez-Lavagnino - Eight Circuit
Headline Eighth Circuit panel interprets Minnesota Whistleblower Act and common law in wrongful discharge case following jury verdict in favor of plaintiff employees

Area of Law Employment Law

Issue(s) Presented Whether the district court properly denied Defendants' motion for judgment as a matter of law after the trial on Plaintiffs' wrongful discharge claims, where jury awarded Plaintiffs lost wages, and district court awarded pre-judgment interest and attorneys fees.

Brief Summary Plaintiffs worked for Defendant Motivation Education Training, Inc. ("MET") and were supervised by Defendant Cerna. MET is a non-profit that provides services to migrant and seasonal farm workers, and receives funding from federal grants. To use federal funds, MET must ensure that the workers it assists meet certain eligibility requirements. MET also creates follow-up notes on the workers, which it uses in applying for additional federal grant money. During Plaintiffs' employment, Defendant Cerna ordered them to forge applicant signatures, shred tax documents, falsify follow up notes, and register unqualified applicants. After refusing to perform what they believed to be illegal activities, Plaintiffs were fired. Plaintiff Yanez was later given the opportunity to continue her employment, but declined.

Plaintiffs sued MET and Cerna, alleging violations of the Minnesota Whistleblower Act and Minnesota common law. The statute provides in relevant part that an employer "shall not discharge . . . [or] otherwise discriminate against" an employee because "the employee refuses an employer's order to perform an action that the employee has an objective basis in fact to believe violates any state or federal law . . . ." Similarly, under common law, "an employee may bring an action for wrongful discharge if that employee is discharged for refusing to participate in an activity that the employee, in good faith, believes violates any state or federal law." The case proceeded to trial, and a jury found Defendants' guilty of wrongful discharge. The district court denied Defendants' motion for judgment as a matter of law following the verdict. Defendants appealed the district court's order denying their motion for judgment as a matter of law, primarily arguing that Plaintiffs failed to prove a violation of either the Whistleblower Act or Minnesota common law.

A panel of the Eighth Circuit affirmed the district court's denial of Defendants' motion with respect to the claims against Defendant MET. The Court first held that Plaintiffs proved their "objective basis in fact" and "good faith" belief that Cerna's orders required them to break the law, as the ordered actions would violate statutes prohibiting defrauding the federal government. The Court also held that, with respect to Plaintiff Yanez, though she was offered her job back she met the implied materiality requirement of both the statute and common law. In so ruling, the Court looked to Title VII precedent, and determined that if faced with this issue the Minnesota Supreme Court would apply the Title VII materiality standard, which Plaintiff Yanez met in this case. Finally, the Court held that Plaintiffs had presented sufficient evidence of causation to support the jury's verdict, given the short timeframe between their refusal to follow illegal orders and their firing, and statements made by Cerna.

With respect to the verdict against Defendant Cerna, the Minnesota Supreme Court has never addressed whether a supervisor may be held liable for wrongful discharge. The Eighth Circuit noted that courts are divided on this issue, but held that the Minnesota Supreme Court would likely hold that a supervisor cannot be held personally liable for wrongful discharge, because a supervisor has no individual capacity to destroy the employment relationship without authorization from the employer. As such, the Court reversed the judgment against Defendant Cerna.

Finally, the Court determined that the motion for pre-judgment interest was untimely, and should have been rejected, but remanded for further consideration the question of attorneys fees in light of the Court's reversal of the judgment against Defendant Cerna.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/14/08/121058P.pdf

Panel Chief Judge Riley and Circuit Judges Colloton and Gruender

Date of Issued Opinion August 25, 2014

Decided Affirmed in part, reversed in part, and vacated and remanded in part

Docket Number 12-1058

Counsel Brian Emery Cote for Plaintiffs and Michael John Minenko for Defendants

Author Circuit Judge Colloton

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 09/17/2014 09:51 AM     8th Circuit     Comments (0)  

July 31, 2014
  United States v. Anderson - Eight Circuit
Case Name United States v. Anderson

Headline Eighth Circuit panel affirms denial of motion to dismiss an indictment count concerning distribution of a "morphed image" constituting child pornography

Area of Law First Amendment

Issue(s) Presented Whether the district court properly denied defendant's motion to dismiss the count of the indictment against him concerning distribution of child pornography, where the image in question was a digitally altered image of a child's face onto an adult female's body.

Brief Summary A grand jury charged Defendant with distribution of child pornography, distribution of child pornography to a minor, production of child pornography, and enticement of a minor to engage in unlawful sexual activity. The charges resulted from Defendant sending a digitally altered image, also called a "morphed image," to his eleven-year-old half-sister, M.A. The image portrayed an adult female and male having sexual intercourse, but Defendant had digitally superimposed M.A.'s face over the face of the female. The altered image was sent to M.A.'s Facebook account, with a caption stating in substance, "This is what we will do." Defendant later admitted to law enforcement officials that he created and sent the image.

The relevant statutes define child pornography as including any "visual depiction [that] has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct." (Emphasis added.) Defendant moved to dismiss the indictment, arguing that this definition is unconstitutionally overbroad under the First Amendment as applied to the morphed image that he sent. The district court denied the motion to dismiss, holding that the morphed image was child pornography that was not protected speech. After entering a conditional guilty plea to the distribution of child pornography charge, Defendant appealed the district court's order denying his motion to dismiss.

A panel of the Eighth Circuit affirmed the District Court's denial of Defendant's motion to dismiss the indictment. The Court first held that the image was not squarely within the U.S. Supreme Court's precedent holding that morphed images that both implicate the interests of real children and depict an actual crime are categorically unprotected speech, because no children were sexually abused in the production of the image. However, the Court further held that the statute, as applied to Defendant, did satisfy the strict scrutiny test under the First Amendment, which requires that the prohibition must be justified by a compelling interest and narrowly drawn to serve that interest. In this case, safeguarding the physical and psychology well-being of the minor M.A. was a compelling government interest. The Court also held that the statute was narrowly tailored, as there was no less restrictive means for the government to protect M.A. from exploitation and psychological harm resulting from distribution of the morphed image than to prohibit Defendant from distributing it.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/14/07/132337P.pdf

Panel Circuit Judges Colloton, Gruender, and Wollman

Date of Issued Opinion July 17, 2014

Decided Affirmed

Docket Number 13-2337

Counsel Michael Norris for the United States and Jennifer Gilg for Defendant

Author Circuit Judge Colloton

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

Edited: 08/04/2014 at 09:31 AM by Joelle Larson

    Posted By: Joelle Larson @ 07/31/2014 10:22 AM     8th Circuit     Comments (0)  

July 24, 2014
  United States v. Smith - 8th Circuit
Headline Eighth Circuit panel affirms exclusion of defendant's expert testimony and proposed jury instructions concerning laser beam aimed at aircraft

Area of Law Federal Aviation Safety

Issue(s) Presented Whether the district court properly excluded defendant's expert testimony concerning the perceived range of a laser and rejected defendant's proposed jury instructions regarding an "intent to hit" the aircraft.

Brief Summary A jury convicted the Defendant of violating 18 U.S.C. § 39(a), which makes it a criminal offense to "knowingly aim the beam of a laser pointer at an aircraft . . . or at the flight path of such an aircraft." The conviction stemmed from the Defendant pointing a laser beam into the sky and illuminating the cockpit of a police helicopter. At trial, Defendant argued that though he pointed a laser beam at the aircraft, he believed that the laser beam would not actually reach the helicopter and therefore did not "knowingly aim" at it.
In support, Defendant proposed a jury instruction stating that he could not knowingly aim his laser beam at the aircraft if he mistakenly believed that the laser beam could not reach the aircraft. He also attempted to introduce expert testimony regarding the perceived range of a laser to support his mistaken belief. The District Court refused the proposed instruction and excluded the expert testimony based on the Court's interpretation of the statute as simply requiring knowledge that the laser beam was pointed at an aircraft, with no intent to hit the aircraft required.

On appeal of the conviction, a panel of the Eighth Circuit, in its first interpretation of the statute, affirmed the District Court's rulings. The panel concluded that the use of the word "aim" in the statute does not require an "intent to hit" the object at which the laser beam is directed. Rather, the panel held that based on the common usage of the term "aim at" and the wording of the statute as a whole, "knowingly aim" means simply to knowingly point a laser beam at an aircraft, and does not require an offender to intend for the laser beam to strike the aircraft at issue.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/14/06/132728P.pdf

Panel Chief Judge Riley and Circuit Judges Beam and Shepherd

Date of Issued Opinion June 27, 2014

Decided Affirmed

Docket Number 13-2728

Counsel Frederick Franklin for the United States and Richard Haile McWilliams for Defendant

Author Chief Judge Riley

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

Edited: 07/24/2014 at 11:42 AM by Joelle Larson

    Posted By: Joelle Larson @ 07/24/2014 11:30 AM     8th Circuit     Comments (0)  

July 22, 2014
  United States v. Holmes and 8th Circuit
Headline Eighth Circuit panel affirms district court discretionary decision to permit U.S. Marshall to testify as expert on the iconography of the Mexican drug underworld

Area of Law Evidence

Issue(s) Presented Whether the district court abused its discretion when it permitted a U.S. Marshall to give expert testimony on the subject of narco-saint iconography

Brief Summary A jury convicted Defendants Holmes and Rendon of "conspiracy to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846." The district court permitted a U.S. Marshall to testify at trial. The Marshall "linked to drug trafficking several images and shrines in the home of Rendon [and another alleged co-conspirator]." The Marshall focused on the image of Jesus Malverde, a "'narco saint' hailed as a 'Mexican Robin Hood,'" as one indicator of drug activity. The Defendants objected to the testimony, but the Eighth Circuit panel concluded that the district court did not abuse its discretion in permitting the Marshall's opinion.

The Defendants argued that the district court's decision to admit the testimony constituted reversible error on several grounds. They argued first that the Marshall was unqualified as an expert. But the Eighth Circuit panel concluded that the Marshall's study and travel experiences, his self-published materials, and his law-enforcement trainings established sufficient qualifications. The Defendants argued next that the Marshall's opinion was unreliable because of the many non-drug traffickers who have statues of Malverde. But the panel concluded that the reliability rate of the Marshall's "non-scientific" opinion could be based upon the Marshall's own observations and experiences. The Defendants then argued that the Marshall's opinion was irrelevant and unfairly prejudicial. But the panel cited to other Eighth Circuit opinions accepting "expert testimony on the modus operandi of drug dealers." The Defendants then finally argued that the Marshall's testimony constituted impermissible "drug courier profile evidence." But the panel distinguished between drug-courier profile evidence (which explains the "investigative techniques" law enforcement uses to identify drug couriers) and "modus operandi" evidence (which explains the "paraphernalia of drug trafficking)." As a result, the panel affirmed the district court's ruling and the jury conviction.

Judge Kelly concurred in the ultimate result, but disagreed with the panel majority on the admission of the Marshall's testimony. First, Judge Kelly concluded that the Marshall's opinion was in reality not modus operandi testimony but actually drug-courier profiling. Second, Judge Kelly concluded that the Marshall's opinion, while perhaps based on personal knowledge and experience, was not produced from his law enforcement knowledge and experience but rather from self-study and self-publication activities.

The full text of the opinion may be found at Text

Panel Circuit Judges Gruender, Benton, and Kelly

Date of Issued Opinion May 12, 2014

Decided Affirmed

Docket Number 13-1660

Counsel Alexander D. Morgan, for the United States; James Phillips, for Defendant Holmes; Richard Eugene Holiman, for Defendant Rendon

Author Circuit Judge Benton

Case Alert Circuit Supervisor Bradley G. Clary, Clinical Professor of Law, University of Minnesota Law School

    Posted By: Bradley Clary @ 07/22/2014 11:01 AM     8th Circuit     Comments (0)  

January 17, 2014
  United States v. Goodale - 8th Circuit
Headline Eighth Circuit panel affirms denial of defense motion to suppress evidence obtained from warrantless search

Area of Law Fourth Amendment

Issue(s) Presented Whether the district court properly concluded that the private search exception to the Fourth Amendment allowed a police officer to briefly examine Defendant's laptop computer without a warrant

Brief Summary A jury convicted the Defendant of aggravated sexual abuse, interstate transportation of a minor with intent to engage in criminal sexual activity, and accessing child pornography with intent to view in violation of various U.S. statutes. Before Defendant's arrest, his alleged victim (M.R.) and M.R.'s mother took Defendant's laptop to a police station. At the station, M.R. opened the laptop and demonstrated auto access to pornographic material. A police officer "moved the laptop and touched the keypad for about 17 seconds during this process." The police then in due course questioned the defendant and seized his laptop pending issuance of a search warrant.

The Defendant moved to suppress the contents of the laptop on the ground that M.R. had no permission to show the laptop to the police, and that the police look at the laptop prior to a search warrant violated Defendant's Fourth Amendment rights. A panel of the Eighth Circuit affirmed the District Court's denial of the defense motion. The Court concluded that the initial search "was neither instigated by nor performed on behalf of the police. . . During M.R.'s demonstration, an officer moved and touched the laptop for about 17 seconds. No evidence suggests that the officer's viewing went further than M.R.'s search. . . .The private search exception applies 'to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any government official.'" (Emphasis in the original)

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/13/12/123972P.pdf

Panel Circuit Judges Bye, Smith, and Benton

Date of Issued Opinion December 30, 2013

Decided Affirmed

Docket Number 12-3972

Counsel Mark Tremmel for the United States and Mark C. Meyer for Defendant

Author Circuit Judge Benton

Case Alert Circuit Supervisor Bradley G. Clary, Clinical Professor of Law, University of Minnesota Law School

    Posted By: Bradley Clary @ 01/17/2014 10:44 AM     8th Circuit     Comments (0)  

May 15, 2013
  Martinez Carcamo v. Holder - 8th Circuit
Headline Eighth Circuit panel denies petition to suppress evidence

Area of Law Fourth Amendment

Issue(s) Presented Whether evidence seized in a warrantless entry to a trailer home during an immigration enforcement raid should have been suppressed in subsequent proceedings to remove the Petitioners from the United States

Brief Summary U.S. Immigration and Customs Enforcement (ICE) agents entered the trailer of Petitioners Juan Martinez Carcamo and Roberto Garcia Nunez. The agents did not have a warrant. They claimed to have consent of the Petitioners, which the Petitioners denied. During the raid, the agents seized Petitioners' passports. These did not evidence legal entry into the country.

The Immigration Judge rejected Petitioners' motion to suppress the passports. The Board of Immigration Appeals affirmed. A panel of the Eighth Circuit affirmed because, although it was concerned about the ICE officers' alleged actions, the narrow scope of review under 8 U.S.C. § 1252(b)(4) required denial of the petition.

The Eighth Circuit assumed for purposes of its opinion that the Fourth Amendment applies to illegal aliens within the United States. The panel then concluded that suppression of the passports required the alleged Fourth Amendment violation to be either egregious or widespread. The panel ruled that the seizure of the passports was not egregious because the mere fact that the seizure took place in a home was not enough, there was no evidence that the agents targeted Petitioners for their race, and the agents' state of mind was not relevant. Moreover, there was no record establishing widespread violations.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/13/04/113860P.pdf

Panel Circuit Chief Judge Riley and Circuit Judges Colloton and Gruender

Argument Date October 16, 2012

Date of Issued Opinion April 19, 2013

Docket Number 11-3860

Decided Petition denied

Counsel Colin Flynn Peterson, for Petitioners Martinez Carcamo, et al; Suzanne Nardone, for Respondent Holder

Author Circuit Chief Judge Riley

Case Alert Circuit Supervisor Bradley G. Clary, Clinical Professor of Law, University of Minnesota Law School

    Posted By: Bradley Clary @ 05/15/2013 04:12 PM     8th Circuit     Comments (0)  

  Arnzen v. Director Charles Palmer - 8th Circuit
Headline Eighth Circuit panel affirms district court preliminary injunction against the placement of video cameras in traditional style bathrooms at the Iowa Civil Commitment Unit for Sex Offenders

Area of Law Fourth Amendment

Issue(s) Presented Whether the district court properly granted a preliminary injunction ordering the Iowa CCUSO to point video cameras in traditional rest rooms only at the ceilings or to place caps over the lenses.

Brief Summary The Plaintiffs were patients at the Iowa CCUSO. The CCUSO installed video cameras in the facility's rest rooms, some of which were "dormitory style" and some of which were "traditional" single-user style. The recorded images in the traditional rest rooms were not regularly monitored and were "masked," so that "most of the subjects' bodies are covered with a black box." However, senior administrators had the ability to "unmask the images if necessary for an investigation."

The District Court refused to bar cameras in the "dormitory style" restrooms. But the Court granted a preliminary injunction as to the placement of cameras in the "traditional" single-user style restrooms.

A panel of the Eighth Circuit affirmed. The Court ruled that, "nvoluntarily civilly committed persons retain the Fourth Amendment right to be free from unreasonable searches that is analogous to the right retained by pretrial detainees." Because there is a reasonable expectation of privacy in a single-person bathroom when used for ordinary purposes, cameras constitute a search. That search then must be "reasonable," taking into account "the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." The Court concluded that unmonitored cameras do not immediately alert administrators to safety issues or directly prevent dangerous acts. Other measures could be effective for safety purposes and less-intrusive. Moreover, there was evidence that cameras in the traditional rest rooms could be counter-productive to treatment of patients, in that a number of the patients were victims of sexual abuse and thus "uniquely sensitive" to the camera placement.

The full text of the opinion may be found at http://media.ca8.uscourts.gov/opndir/13/04/123634P.pdf

Panel Circuit Judges Bye, Arnold, and Benton

Argument Date April 8, 2013

Date of Issued Opinion April 22, 2013

Docket Number 12-3634

Decided Affirmed

Counsel Gretchen Witte Kraemer, for Appellants Director Charles Palmer, et al; Pamela A. Wingert, for Appellees Arnzen, et al

Author Circuit Judge Arnold

Case Alert Circuit Supervisor Bradley G. Clary, Clinical Professor of Law, University of Minnesota Law School

    Posted By: Bradley Clary @ 05/15/2013 12:36 PM     8th Circuit     Comments (0)  

May 12, 2013
  Phelps-Roper v. Koster - Eighth Circuit
Headline: Eighth Circuit invalidates portion of Missouri law restricting picketing at funerals in response to challenge from a member of the Westboro Baptist Church, which uses funeral protests to espouse its view that God is punishing Americans for tolerating homosexuality.

Area of Law: Constitutional (Free Speech Clause of the First Amendment)

Issue Presented: Whether a Missouri statute restricting picketing "in front of or about any location at which a funeral is held, . . . [including] processions," violates the First Amendment right to freedom of speech.

Brief Summary: Shirley Phelps-Roper, a member of the Westboro Baptist Church, challenged a Missouri law prohibiting picketing near funerals. As described in the Eighth Circuit opinion, the Westboro Baptist Church believes that God is punishing Americans for their tolerance of homosexuality and that Westboro's protests are part of an effort to "warn society of God's wrath." There are two statutory provisions at issue. Section 578.501 makes it unlawful to picket or protest "in front of or about any location at which a funeral is held," with "funeral" defined as "ceremonies, processions and memorial services held in connection with the burial or cremation of the dead." Section 578.502, passed as a fall-back in the event section 501 was declared unconstitutional, makes it unlawful to picket or protest "within three hundred feet of or about any location at which a funeral is held." The Court held that Phelps-Roper's speech, even if repugnant, is entitled to constitutional protection, but that there also is a significant governmental interest in "protecting the peace and privacy of funeral attendees." The question then becomes whether the Missouri law is narrowly tailored to protect the government's legitimate interest without burdening Phelps-Roper's speech rights more than necessary. The Court held that Section 578.501 burdened speech more than necessary because it created a buffer zone of indeterminate size by banning protest activity "in front of or about" a funeral. The Court also held that both Sections 578.501 and 578.502 restrict speech more than is necessary because they create floating buffer zones by defining "funeral" to include funeral processions. By severing the provision that defines "funeral" to include funeral processions, however, the Court found the three-hundred foot buffer zone of section 578.502 to be narrowly tailored and therefore constitutional. Section 578.501, the broader of the two sections, was not saved by severing processions from the definition of funeral. The Court remanded to the district court to address in the first instance Phelps-Roper's alternative argument, which is that Section 578.502 violates the Free Exercise Clause of the First Amendment.

The full text of the opinion is available at http://media.ca8.uscourts.gov/opndir/13/04/103076P.pdf

Significance: Provides further guidance on the permissible scope of statutes enacted to protect the privacy of funeral mourners in light of protest activities engaged in by members of the Westboro Baptist Church, which believes that God is punishing Americans for their tolerance of homosexuality and that funeral protests will help to warn society.

Panel: Circuit Judges Wollman, Bye, and Shepherd

Date of Issued Opinion: April 26, 2013

Docket Number: 10-3076

Decided: April 26, 2013

Case Alert Author: Sharon Reich Paulsen

Counsel: Jeremiah J. Morgan, Chris Koster, Maureen C. Beekley (appellant); Anthony E. Rothert, Grant R. Doty, Benicia Baker-Livorsi (Appellees). The United States argued and filed a brief as amicus on behalf of appellant. The Thomas Jefferson Center for the Protection of Free Expression and Professor Christina Wells filed as amici on behalf of the appellee.

Author of Opinion: Judge Bye

    Posted By: Sharon Reich Paulsen @ 05/12/2013 03:24 PM     8th Circuit     Comments (0)  

  Phelps-Roper v. Troutman - Eighth Circuit
Headline: Eighth Circuit considers and remands another challenge by a member of the Westboro Baptist Church to funeral picketing restrictions.

Area of Law: Constitutional (Free Speech Clause of the First Amendment)

Issue Presented: Whether a Nebraska statute restricting picketing within 300 feet of a funeral (amended to 500 feet while the case was on appeal) violates the First Amendment right to freedom of speech.

Brief Summary: Shirley Phelps-Roper, a member of the Westboro Baptist Church, challenged a Nebraska law prohibiting picketing near funerals. The Westboro Baptist Church believes, as described by the Eighth Circuit, "that God is killing Americans as punishment for tolerating homosexuality." Phelps-Roper challenged the Nebraska funeral picketing restriction as violating her First Amendment rights both on its face and as applied. At the time of her original complaint, the Nebraska statute prohibited picketing within 300 feet of a funeral. The District Court found that the Nebraska law was content neutral, and that it survived the First Amendment challenge because the 300 foot buffer zone was "narrowly tailored to serve a significant government interest . . . and leaves ample alternative channels for Phelps-Roper's communications that are protected by the First Amendment." While this decision upholding the 300-foot buffer was on appeal to the Eighth Circuit, Nebraska changed the law, expanding the buffer zone to 500 feet. Because Phelps-Roper's challenge was not only to the statute on its face but also as applied, which means that the factual application of the statute becomes relevant, the Eighth Circuit decided to remand the case back to the District Court to provide that court with the opportunity to consider Phelps-Roper's claims in light of the expansion in the buffer zone from 300 feet to 500 feet.

The full text of the opinion is available at http://media.ca8.uscourts.gov/opndir/13/04/102601P.pdf

Panel: Circuit Judges Murphy, Beam, and Colloton

Date of Issued Opinion: April 12, 2013

Docket Number: 10-2601

Decided: April 12, 2013

Case Alert Author: Sharon Reich Paulsen

Counsel: Margie J. Phelps (appellant); Stephanie Anne Caldwell and James D. Smith (Appellees)

Author of Opinion: Per Curiam

    Posted By: Sharon Reich Paulsen @ 05/12/2013 03:19 PM     8th Circuit     Comments (0)  

February 22, 2013
  Owen v. Bristol Care, Inc. - 8th Circuit
Headline Eighth Circuit panel rules concludes that a Mandatory Arbitration Agreement is valid in a case alleging claims under the Fair Labor Standards Act even if the agreement contains a class action waiver provision

Area of Law Employment Litigation, Class Action Waivers

Issue(s) Presented Is a waiver of potential class action proceedings enforceable in an employment agreement context?

Brief Summary Plaintiff Owen was an employee of Defendant Bristol Care. At the time of employment, the two parties entered into a Mandatory Arbitration Agreement. The agreement contained a provision that prohibited the parties "from arbitrating claims subject to [the] Agreement as, or on behalf of, a class." In subsequent litigation between Owen and Bristol Care, the federal district court ruled that the class action waiver was unenforceable, because such waivers "are invalid in [Fair Labor Standards Act] cases because the FLSA provides for the right to bring a class action."

On appeal, a panel of the Eighth Circuit reversed. "Owen identifies nothing in either the text or legislative history of the FLSA that indicates a congressional intent to bar employees from agreeing to arbitrate FLSA claims individually, nor is there an "inherent conflict" between the FLSA and the [Federal Arbitration Act]."

Moreover, the panel rejected the reasoning of the National Labor Relations Board in In re D.R. Horton, Inc., 357 NLRB No. 184, 2012 WL 36274 (Jan. 3, 2012). In that decision, the NLRB had ruled that a class action waiver in an FLSA challenge was invalid because "such a waiver conflicted with the rights protected by Section 7 of the [National Labor Relations Act]."

The full text of the opinion may be found at http://www.ca8.uscourts.gov/opinions/opinions.html

Panel Circuit Judges Smith, Beam, and Gruender

Argument Date November 13, 2012

Date of Issued Opinion January 7, 2013

Docket Number No. 12-1719

Decided Reversed

Counsel Shelly Irene Ericsson for Appellant; John E. Campbell for Appellee
Author of the Opinion Circuit Judge Gruender

Case Alert Circuit Supervisor Bradley G. Clary, Clinical Professor of Law, University of Minnesota Law School

    Posted By: Bradley Clary @ 02/22/2013 02:07 PM     8th Circuit     Comments (0)  

  Hallmark Cards, Inc. v. Murley - 8th Circuit
Headline Eighth Circuit panel rules that a district court must issue explicit findings of bad faith and prejudice before giving an adverse inference instruction for spoliation of evidence

Area of Law Procedure

Issue(s) Presented May a federal district court instruct a jury that it may assume contents of destroyed files would have been adverse to the destroying party if the court does not first make an explicit finding that the destruction was willful?

Brief Summary Hallmark Cards, Inc. sued former employee Murley on a variety of commercial claims. Murley had been Hallmark's group vice-president of marketing from 1999 to 2002. Her position with the company had been eliminated in 2002 in a corporate restructuring. As part of the severance package, Murley agreed to various confidentiality and non-competition obligations.

In 2006, Murley worked on an assignment for Recycled Paper Greetings, and allegedly disclosed certain confidential Hallmark information at that time to that company. Hallmark found out about the disclosure in 2009 and sued Murley. Hallmark later learned in the course of the litigation that a copy of Hurley's computer hard drive had previously been made in 2007. Hallmark also learned that just prior to the copying of the drive, a number of documents had been deleted, and that those documents related to Hallmark. Hallmark concluded that Murley had deliberately destroyed the documents to hide the contents, and asked the district court in the litigation matter to give an adverse inference instruction to the jury.

The district court did ultimately give the jury the following instruction: "If you should find that a party willfully destroyed evidence in order to prevent its being presented in this trial, you may consider such destruction in determining what inferences to draw from the evidence or facts in this case. You may, but are not required to, assume that the contents of the files destroyed would have been adverse, or detrimental to the Defendant." The district court, however, did not make a specific finding that Murley had acted in bad faith or that Hallmark was prejudiced by the absence of the missing documents, before issuing the jury instruction.

The Eighth Circuit panel ruled that a district court "is required to make two findings before an adverse inference instruction is warranted: (1) 'there must be a finding of intentional destruction indicating a desire to suppress the truth,' and (2) '[t]here must be a finding of prejudice to the opposing party.'" The panel concluded that the district court had implicitly made the findings; so the question was whether the district court committed error by not expressly making them. The panel concluded that "prospectively" the findings must be explicit, but that the district court's error in making only implicit findings in the case before it was harmless.

The full text of the opinion may be found at http://www.ca8.uscourts.gov/opndir/13/1/112855P.pdf

Panel Circuit Judges Bye, Gruender, and Shepherd

Argument Date September 20, 2012

Date of Issued Opinion January 15, 2013

Docket Number No. 11-2855

Decided Affirmed in relevant part

Counsel Mark Barry Rosen for Appellant; John C. Aisenbrey for Appellee
Author of the Opinion Circuit Judge Bye

Case Alert Circuit Supervisor Bradley G. Clary, Clinical Professor of Law, University of Minnesota Law School

    Posted By: Bradley Clary @ 02/22/2013 10:44 AM     8th Circuit     Comments (0)  

December 6, 2012
  Sherman v. Rinchem Company - 8th Circuit
Headline: Eighth Circuit panel rejects defamation claim and rules that federal law, not state law, controls the imposition of an adverse inference instruction in federal court for alleged spoliation of evidence

Area of Law: Defamation, Evidence

Issue(s) Presented: Whether the district court properly granted summary judgment to the Defendant on Plaintiff's defamation claim, and whether the district court properly refused to grant Plaintiff's summary judgment motion as a proposed sanction for Defendant's alleged spoliation of evidence

Brief Summary: Plaintiff Sherman worked for defendant Rinchem Company. One or more Rinchem employees complained to the Company about Sherman's conduct in the workplace. In response to the complaints, the Company conducted an investigation. During that investigation, the Company asked Sherman whether he "had ever received any restraining orders." Sherman allegedly said that the only persons who had ever obtained a restraining order against him were his ex-wife and her husband. But the Company believed it had evidence that this was not an accurate response. The Company terminated Sherman, ultimately citing a "change of corporate direction." But Sherman in his lawsuit claimed that he was effectively compelled to tell prospective new employers that "Rinchem terminated him for lying."

During the lawsuit, Sherman asked Rinchem to produce the notes taken by a Rinchem investigator during a key interview. Rinchem did not produce the notes, and the investigator eventually testified that she "lost" them. Sherman's counsel conceded that the record suggested the spoliation was negligent rather than intentional.

As to the defamation issue, the district court ruled that Rinchem was entitled to qualified immunity in the context of the employment investigation. As to the spoliation of evidence issue, the district court ruled that federal law controls whether and when sanctions should be awarded in the context of a federal court lawsuit, and concluded that neither summary judgment nor an adverse inference instruction in favor of Sherman could be awarded under federal law in the absence of bad faith conduct.

A panel of the Eighth Circuit affirmed. Considering the spoliation issue first, the panel ruled that Minnesota state law would be more liberal than federal law in awarding sanctions for spoliation of evidence in the absence of bad faith conduct. But the panel then ruled that federal law governs spoliation issues even in a diversity of citizenship case involving substantive claims under state law. The panel concluded that "a spoliation ruling is evidentiary in nature and federal courts generally apply their own evidentiary rules in both federal question and diversity matters."

Turning to the defamation issue, the panel ruled under Minnesota substantive law that, "[o]ne who makes a defamatory statement will not be held liable if the statement is published under circumstances that make it qualifiedly privileged and if the privilege is not abused." The panel concluded that the relevant statement must have been "made upon a proper occasion," "made from a proper purpose," and "based upon reasonable and probable grounds." If it was, then the burden shifts to the plaintiff to show the statement was made with actual malice on the part of the defendant.

In the present case, the panel concluded, Rinchem had a proper occasion and purpose for communicating to Sherman the basis for his termination. Rinchem did an investigation and had "probable cause" for believing that Sherman had lied to the interviewer. Sherman did not prove that Rinchem thought it was making any false statement about Sherman, and Sherman produced no evidence that the relevant interviewer bore any ill will towards Sherman. Even if the Rinchem interviewer had a suspicious alternate reason for recommending Sherman's termination, the presence of probable cause for Rinchem's action precluded malice from going to the jury, thought the panel. Thus, summary judgment for Rinchem was appropriate.

The full text of the opinion may be found at http://www.ca8.uscourts.gov/opndir/12/08/112932P.pdf

Argument (if known): 5/16/2012

Date of Issued Opinion: 8/6/2012

Docket Number: 11-2932

Decided: Affirmed

Counsel (if known): Philip G. Villaume, for Appellant Sherman; Vincent John Ella, for Appellee Rinchem

Author of Opinion: Judge Smith

Edited: 12/12/2012 at 10:27 AM by Media Alerts Moderator

    Posted By: Brian Graupner @ 12/06/2012 04:10 PM     8th Circuit     Comments (0)  

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