Media Alerts

A.C. et al v. Shelby County Board of Education - 6th Circuit

Mark Cooney — 2013-04-19T12:24:04 -06.00

Headline: Sixth Circuit clarifies standard for prima facie cases under the ADA.

Area of Law: Americans with Disabilities Act (ADA); Rehabilitation Act (Section 504).

Issue(s) Presented: (1) Did the district court properly apply the test for a prima facie case of retaliation under the ADA and Section 504? (2) Did the district court err in finding that the plaintiffs' evidence of retaliatory intent was insufficient?

Brief Summary: After the parents of a disabled child asked their child's school for a series of accommodations, their relationship with the school grew tense, and the school principal filed a Department of Child Services report alleging parental abuse. The district court found that the report was not retaliatory and granted summary judgment in the school district's favor. The parents appealed, arguing that summary judgment was improper because the district court applied a heightened clear-and-convincing-evidence standard and because the court had ignored substantial evidence of retaliatory intent. The Sixth Circuit agreed, reversing and remanding the case.

Significance: This case clarifies the plaintiff's burden under the burden-shifting analysis for an ADA or Section 504 case.

Extended Summary: When a child with Type 1 diabetes began kindergarten, her parents sought a number of accommodations for her. The school met some of their requests, but it did not meet others, and the relationship between the school and the family soured. Their relationship continued to deteriorate as the child continued through school. By her second-grade year, tensions between the school and the family boiled over, and the school principal filed a Department of Child Services report alleging that the parents were medically abusing their child. The report was found to be untrue. The parents sued the school district, alleging that the false report of abuse was a retaliatory act that violated the Americans with Disabilities Act and the Rehabilitation Act (Section 504).

After discovery, the school district moved for summary judgment; the district court granted the motion. The district court held that the parents failed to prove two essential elements of their prima facie case: an adverse action by the school district and a causal link between that action and the plaintiffs' protected act. In assessing the parents' prima facie case (and pretext argument), the district court required clear and convincing evidence that the principal had acted in bad faith, with a punitive or retaliatory intent. In imposing this higher burden, the district court relied largely on a state law cloaking school reports of child abuse with a presumption of good faith.

The parents appealed, arguing that the district court improperly imposed a heightened burden of proof and that the court failed to fully consider evidence that the school district had illegally retaliated against them. The Sixth Circuit reversed.

The Sixth Circuit explained that to establish a prima facie case of retaliation where there is no direct evidence of retaliation, a plaintiff must meet the four elements of the McDonnell burden-shifting test. The elements are (1) whether the plaintiff's act was protected under the ADA or Section 504; (2) whether the defendant was aware of the plaintiff's protected act; (3) whether the defendant's action constituted "adverse action"; and (4) whether there was a causal relationship between the plaintiff's protected act and the defendant's supposedly retaliatory action. If the plaintiff can establish a prima facie case, the defendant may rebut that by showing that there was a legitimate basis for its action. The plaintiff then has a final opportunity to prove his or her case by showing, by a preponderance of the evidence, that the defendant acted illegally.

The Sixth Circuit disagreed with the district court's finding that the parents failed to establish a prima facie case. It rejected the district court's heightened clear-and-convincing-evidence standard, reaffirming that the proper standard is preponderance of the evidence. Under this standard, the Sixth Circuit found sufficient evidence of retaliation. The court noted that the filing of a Department of Child Services report has previously been considered an adverse action. And the Sixth Circuit indicated that the standard for a retaliatory act is quite low; it is satisfied by any act that would make a reasonable person stop pursuing a protected activity.

The court next observed that a plaintiff can meet the causal-connection element by showing "temporal proximity" between the protected activity and the defendant's adverse action. Here, the evidence showed that the principal's report of abuse was untrue and that its timing could be seen as suspicious. Thus, according to the Sixth Circuit, the parents presented sufficient evidence to establish a prima facie case, and the burden shifted to the school district.

The Sixth Circuit believed that the school district adequately rebutted the parents' prima facie case, but it also found that the parents' proofs were sufficient to prove pretext. The court concluded that a reasonable jury could find by a preponderance of the evidence that the school district's "stated concerns about [the child's] health [when making the abuse report] were pretextual, and that the [reports] were actually motivated by the school's well-established displeasure with [the] parents and their accommodation requests." Thus, the Sixth Circuit reversed the district court's grant of summary judgment and remanded the case.

Link to Full Opinion: http://www.ca6.uscourts.gov/op...s.pdf/13a0086p-06.pdf

Panel: Batchelder, Keith, and Martin

Argument: October 10, 2012

Date of Issued Opinion: April 1, 2013

Docket Number: 11-6506

Decided: Reversed and remanded.

Case Alert Author: Sarah Fuhrman

Counsel: ARGUED: Justin S. Gilbert, Gilbert Russell McWherter, PLC, Jackson, Tennessee, for Appellants. Valerie B. Speakman, Shelby County Board of Education, Memphis, Tennessee, for Appellee. ON BRIEF: Justin S. Gilbert, Gilbert Russell McWherter, PLC, Jackson, Tennessee, for Appellants. Valerie B. Speakman, Shelby County Board of Education, Memphis, Tennessee, for Appellee. Gregory C. Paul, Morgan & Paul, PLC, Sewickly, Pennsylvania, for Amicus Curiae.
Author of Opinion: Alice M. Batchelder, Chief Judge

Case Alert Circuit Supervisor: Professor Mark Cooney

United States v. Kwame Williams a/k/a Arnold Fordham - Sixth Circuit

Mark Cooney — 2013-04-01T15:46:16 -06.00

Headline: Sixth Circuit vacates sentence enhancement for use of alias in court proceedings.

Area of law: Sentence Enhancement; Materiality of False Information to Judge or Magistrate

Issue(s) presented: Whether the defendant's use of an alias was material to any issue decided by the magistrate and, therefore, a valid basis for applying a two-level sentence enhancement.

Brief summary: The defendant used a false name to secure a driver's license, and he used this alias when DEA agents arrested him and during preliminary proceedings before a federal magistrate. After revealing his true name, the defendant pleaded guilty to possession with intent to distribute oxycodone. At the sentencing hearing, the district court applied a two-level sentence enhancement because the defendant had provided "materially false information to the magistrate judge" by using the alias. The Sixth Circuit vacated and remanded for resentencing, holding that the defendant's alias was not material to the magistrate's findings on indigency and probable cause.

Significance: The Sixth Circuit's decision clarifies the meaning of "materially false information" in the sentencing context, explaining that the government cannot prevail based on a general showing of importance. Instead, the government must show that the false information given to a judge or a magistrate, if believed, would have influenced or affected the issue being decided.

Extended summary: After being deported, the defendant illegally re-entered the United States and was arrested in New York for kidnapping, robbery, assault, and marijuana possession. He failed to appear for his court dates and relocated to Tennessee. In 2010, the defendant obtained a Tennessee driver's license under the alias Arnold Fordham. The DEA later investigated him for distributing oxycodone and found over 1,000 oxycodone pills and 190 oxymorphone pills in his home. The DEA arrested the defendant, still believing that his name was Arnold Fordham.

During his initial appearance before a federal magistrate, the defendant identified himself as Arnold Fordham. He requested counsel and signed a financial affidavit under the name Arnold Fordham. He used the same name during a preliminary hearing to determine probable cause. The grand jury later indicted "Arnold Fordham" for possession with intent to distribute oxycodone. Two months after his initial court appearance, the defendant finally disclosed to the court his true identity: Kwame Williams. The defendant later pleaded guilty.

At the sentencing hearing, the government argued that the defendant obstructed justice by initially obscuring his actual name and that, for this reason, the district court should apply a two-level sentence enhancement. The district court agreed. It applied the enhancement, finding that the defendant had "provid[ed] materially false information to the magistrate judge." The district court sentenced the defendant to 87 months in prison. The defendant appealed.

The Sixth Circuit reversed and remanded for resentencing. It explained that under the United States Sentencing Guidelines, courts "must increase a defendant's offense level by two points if the defendant 'willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction.'" This type of willful conduct includes "providing materially false information to a judge or magistrate." Thus, the defendant's use of a false name before the magistrate would trigger the two-step enhancement if this falsehood was material.

Notwithstanding the district court's finding that a "defendant's identity is always material in a criminal proceeding," the Sixth Circuit held that the defendant's alias was not material in this case. The Sixth Circuit reasoned that for a falsehood to be "material," it must be information that, "if believed, would tend to influence or affect the issue under determination." For the two issues decided by the magistrate while the defendant was still using his alias - indigency and probable cause - this was not the case.

The magistrate's decision on whether to appoint counsel hinged on the defendant's financial needs. Although the defendant signed a financial affidavit with the false name Arnold Fordham, the Sixth Circuit found that "Arnold Fordham, for purposes of appointed counsel, was just as indigent as Kwame Williams." The court added that none of the financial information in the affidavit was false, only the name. Thus, there was no basis to find that the defendant's alias "had any tendency to affect the magistrate's decision" in determining whether to appoint counsel.

The magistrate's second relevant decision concerned the DEA's probable cause to arrest the defendant for possession of oxycodone with the intent to distribute it. In finding that probable cause existed, the magistrate relied on DEA agents' testimony about what they found in the defendant's home and the defendant's admission that he sold oxycodone. The defendant's alias did not influence this decision. Thus, the alias was not material on this issue, either.

Therefore, the Sixth Circuit reversed the district court's application of a two-level enhancement, vacated the defendant's sentence, and remanded the case for resentencing.

Link to full opinion: http://www.ca6.uscourts.gov/op...s.pdf/13a0067p-06.pdf

Panel: Gibbons, Kethledge, and Stranch

Argument: N/A

Date of issued opinion: March 14, 2013

Docket number: No:12-5675

Decided: Vacated and Remanded

Case alert author: Jody-Ann Greenwood

Counsel: ON BRIEF: Mariah A. Wooten, Anne-Marie Moyes, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Blanche B. Cook, UNITED STATES ATTORNEY'S OFFICE, Nashville, Tennessee, for Appellee.

Author of opinion: Circuit Judge Kethledge

Case alert circuit supervisor: Professor Mark Cooney

Ballinger v. Prelesnik - Sixth Circuit

Mark Cooney — 2013-03-20T14:32:00 -06.00

2013-02-14

Headline: Sixth Circuit Reverses Grant of Habeas Corpus Petition.

Area of Law: Writs of Habeas Corpus; Ineffective Assistance of Counsel

Issues Presented: (1) Did the district court err by conducting an evidentiary hearing on an ineffective-assistance-of-counsel claim after state courts had decided the issue? (2) Did the state courts violate clearly established federal law when they rejected the defendant's ineffective-assistance claim?

Brief Summary: A jury convicted the defendant on two counts of first-degree murder. The defendant claimed ineffective assistance of counsel, arguing that his trial attorney failed to interview and call a crucial alibi witness. The trial court rejected his ineffective-assistance claim, and the Michigan Court of Appeals affirmed. The defendant then petitioned in federal court for a writ of habeas corpus. The district court granted an evidentiary hearing to consider the ineffective-assistance claim and found for the defendant. The Sixth Circuit reversed, holding that the district court should have dismissed the defendant's petition without an evidentiary hearing.

Significance: The Sixth Circuit's opinion clarifies that district courts should not hold evidentiary hearings to decide ineffective-assistance claims when a state court has already decided that issue on the merits.

Extended Summary: Before trial, the defendant's attorney submitted a tardy witness list that included the names of potential alibi witnesses. The prosecutor objected to the late submission, and the defendant's attorney withdrew it, announcing that the defendant did not intend to raise an alibi defense after all. At trial, two eyewitnesses testified that they saw the defendant shoot the victims.

The jury convicted the defendant on two counts of first-degree murder. The defendant then hired a new attorney and moved for a judgment notwithstanding the verdict or a new trial based on ineffective assistance of counsel. He argued that his trial lawyer failed to interview a crucial alibi witness before trial. In support of this claim, he attached the affidavit of a woman named Cunningham, who stated that she was with the defendant when the shootings occurred. No "Cunningham" had appeared on the defendant's pretrial witness list, but the defendant claimed that Cunningham had been listed under a different last name and that, therefore, his trial attorney knew of her and could have interviewed her before trial.

The trial court denied the defendant's motion and sentenced him to life in prison. The defendant appealed to the Michigan Court of Appeals, which likewise rejected his ineffective-assistance claim. The Michigan Supreme Court denied his application for leave to appeal.

Later, the defendant petitioned in federal court for a writ of habeas corpus. The district court granted an evidentiary hearing on the ineffective-assistance claim, finding that the state court's denial of an evidentiary hearing was unreasonable. The evidentiary hearing revealed that the defendant's trial attorney had not interviewed the potential alibi witness named Cunningham and that the defendant's trial attorney had never contacted her. Cunningham also testified that she was, in fact, the same person who had been listed (under her former name) on the defendant's pretrial witness list. Based on this evidence - plus the trial attorney's disbarment soon after the trial - the district court held that the defendant received ineffective assistance of counsel.

The Sixth Circuit reversed.

The Sixth Circuit first held that the district court erred by conducting an evidentiary hearing. It observed that "district courts are precluded from conducting evidentiary hearings to supplement existing state court records when a state court has issued a decision on the merits." Thus, the district court should not have granted an evidentiary hearing after the Michigan Court of Appeals had resolved the defendant's ineffective-assistance claim on the merits.

The Sixth Circuit next turned to the merits of the defendant's ineffective-assistance claim. Limiting its review to "the record that was before the state court," it held that the Michigan courts were not unreasonable in finding that the trial attorney's performance was constitutionally sufficient. The defendant failed to prove that his trial attorney was aware of the alibi witness named Cunningham. And the state-court record contained no evidence establishing that she was the same witness who had been listed, under a different name, on the defendant's pretrial witness list. Finally, even if the attorney's performance was below acceptable professional standards, the defendant could not show prejudice given that two eyewitnesses unequivocally identified him as the shooter.

To read the full opinion, please go to: http://www.ca6.uscourts.gov/op...13a0057p-06.pdf

Panel: Circuit Judges Siler, Sole, and Sutton

Argument: November 27, 2012

Date of Issued Opinion: March 4, 2013

Docket Number: 12-1357

Decided: Reversed.

Case Alert Author: Chris Jennings

Counsel: Argued:Mark G. Sands, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellant. Sanford A. Schulman, SCHULMAN &
ASSOCIATES, P.C., Detroit, Michigan, for Appellee. On Brief:Mark G. Sands,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for
Appellant. Sanford A. Schulman, SCHULMAN & ASSOCIATES, P.C., Detroit,
Michigan, for Appellee.

Author of Opinion: Judge Siler

Media Alerts Supervisor: Professor Mark Cooney

Wright v. O'Day -- Sixth Circuit

Mark Cooney — 2013-03-19T15:34:12 -06.00

2013-02-11

Headline: Sixth Circuit requires state to grant a 13-year-old boy a hearing to challenge his listing on child-abuse registry.

Area of Law: Constitutional Law; Procedural Due Process

Issue(s) Presented: Whether a child's procedural-due-process rights are violated when the state lists him on the state's child-abuse registry without giving him an administrative hearing to challenge the listing.

Brief Summary: A teenager asked for an administrative hearing to challenge his listing on a state child-abuse registry, but the state refused his request. He sued the state alleging a denial of his due-process rights. The district court dismissed his claim, reasoning that his alleged injury was speculative because he was not yet old enough to apply for work and thus hadn't lost employment opportunities based on the listing. The Sixth Circuit reversed, holding that the denial of a hearing violated his due-process rights because being listed on the registry was an actual injury.

Extended Summary: A 13-year-old boy was placed on the Tennessee child-abuse registry after another child claimed that the boy had groped his genitals and penetrated his anus with a finger. Through his mother, the accused boy asked for an administrative hearing to challenge his listing on the registry. The state denied the request, citing a regulation that allowed a hearing only if the state was about to release information about the accusations or if the accused was denied employment in a field affected by the listing.

The boy argued that being listed as a perpetrator of child sexual abuse prevented him from pursuing certain occupations. So he sued to force the state to grant him an administrative hearing to challenge the listing. The district court dismissed his claim because the boy's alleged injury only contemplated future events and the possibility of future harm. Because he was only 13, the district court explained, he was not yet seeking employment, and the state was not threatening to release information about the accusations.

The Sixth Circuit reversed, holding that the denial of a hearing violated the boy's procedural-due-process rights. The court reasoned that his claim did not merely contemplate future events because being a registered child abuser was the boy's present status. Because this label would not be removed without a hearing, the injury was "sufficiently imminent and concrete" to trigger his procedural rights, rather than being speculative. As the Sixth Circuit put it, the boy's injury was "actual because he has already been classified as a child abuser." Thus, he was entitled to an administrative hearing to challenge the listing.

Panel: Guy, Rogers, and US District Judge Hood sitting by designation.

Date of Issued Opinion: 02/08/2013

Docket Number: No. 12-5261

Decided: Reversed and remanded

Case Alert Author: Felix H. Sharpe II

Counsel: ON BRIEF: Melanie Stepp Lane, Jamestown, Tennessee for Appellant. Alexander S. Rieger, OFFICE OF THE TENNESEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees.

Author of Opinion: Hon. Judge John M. Rogers

Case Alert Supervisor: Mark Cooney

United States v. Terry -- Sixth Circuit

Mark Cooney — 2013-03-19T12:39:27 -06.00

2013-02-14

Headline: Sixth Circuit Affirms Ohio Judge's Conviction for Fixing Cases

Area of Law: Federal Anti-Corruption Statute

Issues Presented: (1) Did an indictment charging a judge with honest-services mail fraud specifically identify a crime, as required by law? (2) Was the jury properly instructed on the elements for accepting a bribe? (3) Was the evidence sufficient to establish that the judge accepted a bribe?

Brief Summary: A grand jury indicted a trial judge on five counts of political corruption. The judge had sought help with his reelection campaign from the county auditor. In exchange for the auditor's financial and political support, the auditor expected the judge to fix cases. The jury convicted the judge on three of five charges. The judge argued on appeal that the indictment should have been dismissed because it failed to identify a crime, that the jury instruction was improper, and that there was insufficient evidence to show he had accepted a bribe. The Sixth Circuit rejected these arguments and affirmed the convictions.

Significance: This case offers a vivid look at how the federal anti-corruption statute applies when a public official receives a bribe disguised as a legitimate campaign contribution.

Extended Summary: A judge seeking reelection asked a county auditor for financial and political support. In exchange for this support, the auditor expected the judge to fix cases. The judge did just that. For instance, the auditor asked the judge to deny a bank's motions for summary judgment, and the judge denied the motions without reviewing the case files or reading the motions. The judge was ultimately indicated on five political-corruption charges. All the charges pertained either to mail fraud or honest-services fraud. The jury convicted the judge on three of the five charges.

On appeal, the judge first argued that the district court should have dismissed the charges because they failed to identify a crime. The Sixth Circuit rejected this argument. It found that the indictment contained a "plain, concise, and definite written statement of the essential facts" by outlining, among other things, the judge's relationship with the auditor and detailing the auditor's request that the judge deny the bank's motions for summary judgment. The court explained that honest-services mail fraud requires the government to show that the judge used the mail to carry out a scheme to defraud another of the right to honest services. The indictment alleged this sufficiently by describing the bribery and kickback scheme between the judge and the auditor.

The judge's second argument on appeal was that the jury instruction on bribery was improper because it should have distinguished between public officials who may accept campaign contributions and those who may not. The Sixth Circuit rejected this argument, noting that neither Congress nor the Supreme Court has made such a distinction. Here, the instruction adequately described the type of transaction that constitutes a bribe, properly requiring some form of agreement as "the key component" of the offense.

Finally, the judge argued that there was insufficient evidence to prove that he had accepted a bribe. The Sixth Circuit disagreed, concluding that the evidence showed that the judge entered into an agreement to fix cases in order to receive benefits from the auditor. Recorded phone calls revealed that the auditor explicitly asked the judge to deny the bank's motions for summary judgment, and the judge did exactly that within 24 hours of the call, without having reviewed the motions or the case files. Thus, the jury could reasonably infer that the judge accepted a bribe to fix cases.

To read the full opinion, please go to: http://www.ca6.uscourts.gov/op...s.pdf/13a0040p-06.pdf

Panel: Circuit Judges Sutton, Griffin, and White

Argument: 10/10/2012

Date of Issued Opinion: 02/14/2013

Docket Number: 11-4130

Decided: Affirmed

Case Alert Author: Kathryn Burkhart

Counsel: Argued: Sylvester Summers, Jr., SYLVESTER SUMMERS, JR., CO., LPA, Cleveland, Ohio, for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee. On Brief:Sylvester Summers, Jr., SYLVESTER SUMMERS, JR., CO., LPA, Cleveland, Ohio, for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.
Author of Opinion: Judge Sutton

Supervisor: Professor Mark Cooney

Nimer v. Litchfield Township Board of Trustees -- Sixth Circuit

Mark Cooney — 2013-03-11T13:14:20 -06.00

2013-02-21

Headline: Sixth Circuit holds that Younger abstention doctrine applies to a damage claim under 42 U.S.C. § 1983.

Area of Law: Abstention; Civil Procedure; Constitutional Law

Issues Presented: (1) Does the Younger abstention doctrine apply to a damages claim under 42 U.S.C. § 1983? (2) After applying the doctrine, may a federal district court exercise its discretion and dismiss the damages claim?

Brief Summary: A couple wanted to expand their meat-producing business to include butchering cattle and pigs. But the couple's land was only zoned for residential use. The township sought injunctive relief in state court after the couple began improving the buildings on their property without obtaining appropriate zoning certificates. The state court stopped the couple from building until they obtained the necessary zoning certificates. The couple appealed to the state appellate court and, a week later, sued the township in federal district court.

The district court dismissed the case, holding that the Younger abstention doctrine applied. On appeal, the Sixth Circuit agreed that the Younger doctrine applied but concluded that the district court should have stayed the case rather than dismissing it. In reaching this conclusion, the Sixth Circuit noted that the Younger doctrine applies if there is a pending state proceeding that involves an important state interest, and the state proceeding will provide an adequate opportunity for a plaintiff to raise his or her constitutional claims. The court found that these elements were met because (1) the couple filed their federal claim while their state appeal was pending, (2) states have a substantial interest in enforcing zoning ordinances, and (3) the couple was able to raise - and, in fact, did raise - constitutional defenses in the state case. Thus, the district court was correct in applying the doctrine. But the district court erred in dismissing the case because a district court only has the power to dismiss a case based on abstention where the relief sought is equitable. The court explained that "where, as here, the plaintiffs seek only legal relief, and the district court properly applies the Younger doctrine to abstain from adjudicating a claim for damages, it must stay the case instead of exercising its discretion in deciding to dismiss the case." Here, the couple sought only legal relief, in the form of compensatory and punitive damages. Because the couple's federal complaint sought only legal relief, the district court did not have the authority to dismiss the case.

To read the full opinion, please go to: http://www.ca6.uscourts.gov/op...s.pdf/13a0046p-06.pdf

Panel: Circuit Judges Martin, Siler, and Donald

Date of Issued Opinion: 02/21/2013

Docket Number: 12-3309

Decided: Remand, instructing the district court to stay proceedings.

Case Alert Author: Kathryn Burkhart

Counsel: On brief: Theodore J. Lesiak, LESIAK HENSAL & HATHCOCK, LLC, Medina, Ohio, for Appellants. Timothy T. Reid, Meghan B. Kilbane, MANSOUR, GAVIN, GERLACK & MANOS CO., LPA, Cleveland, Ohio, for Appellees.
Author of Opinion: Judge Martin

Supervisor: Professor Mark Cooney

Volpe v. Trim - 6th Circuit

Mark Cooney — 2013-02-22T14:54:06 -06.00

2013-02-011

Headline: Sixth Circuit rejects prisoner's double-jeopardy argument urging retroactive application of new, post-conviction precedent.

Area of Law: Criminal, Double Jeopardy

Issue(s) Presented: Can a habeas petitioner convicted of two state offenses avoid consecutive-term sentences based on retroactive application of a state-court decision released after her conviction became final?

Brief Summary: A prisoner appealed her sentence to consecutive prison terms for aggravated vehicular homicide and operating a vehicle while under the influence. The prisoner argued that the offenses were similar and that the prison terms thus should have been merged rather than consecutive. The prisoner argued that the consecutive-term sentencing violated the Double Jeopardy Clause of the Fifth Amendment, which prohibits cumulative punishments for the same offense. She argued that the federal district court should have granted her habeas petition, and thus reduced her sentence, based on an Ohio Supreme Court decision issued after her state-court conviction became final - a decision that changed Ohio's standards for consecutive-term sentencing. The Sixth Circuit held that the district court correctly assessed the prisoner's double-jeopardy claim based on Ohio precedent in place when she was convicted, rather than under Ohio's new standard.

Extended Summary: Volpe was driving drunk while her daughter was a passenger. Other motorists reported Volpe's erratic driving. Before police could locate Volpe's truck, Volpe lost control, drove off the road, and crashed into a tree. Her daughter died three days later from accident-related injuries.

Volpe was convicted of (1) operating a vehicle while under the influence and (2) aggravated vehicular homicide. The trial court ordered that the prison terms for the two offenses run consecutively, producing a total prison term of more than 26 years.

When Volpe was convicted, the Ohio Supreme Court applied the test from State v. Rance to determine whether cumulative punishments could be imposed for crimes arising from a single criminal act. The Rance test required Ohio courts to compare the elements of each offense to determine whether "the statutory elements of the crimes correspond to such a degree that the commission of one crime will result in the commission of the other." If so, then the defendant could not be punished separately for both crimes. Under this test, the Ohio courts found that Volpe could serve time for both crimes because the elements of operating a vehicle while under the influence and aggravated vehicular homicide were not so similar. For instance, a person could drive drunk but not cause death (operating a vehicle while under the influence), and a person could drive negligently or recklessly while sober but still cause a death (aggravated vehicular homicide).

Two years after Vople exhausted her appeals, the Ohio Supreme Court overruled and replaced the Rance test. In Ohio v. Johnson, the Ohio Supreme Court held that the proper test to determine whether two crimes were similar for double-jeopardy purposes is whether it is possible to commit both offenses with a single act. If so, the court must next determine whether the offenses actually were committed in a single act. If this is also true, the court explained, then the offenses are sufficiently similar to trigger double jeopardy and will be merged.

Applying this new test to Volpe's case would greatly reduce her sentence. So she filed a habeas corpus petition in federal court, arguing that under Ohio's new Johnson standard, her convictions and sentences for both offenses violated the Double Jeopardy Clause. The district court denied her petition.

The Sixth Circuit affirmed, holding that the multiple punishments here did not offend the Double Jeopardy Clause. Noting that state courts have the last word on matters of state law, the Sixth Circuit analyzed whether Ohio courts would have applied Johnson retroactively. After surveying Ohio cases, the court said no. The Sixth Circuit observed that in Ohio, a new judicial decision only applies to cases still pending on the decision date, not retroactively to a conviction that has already become final. "Because Rance was the controlling precedent at the time Volpe's conviction became final," the Sixth Circuit explained, Rance properly governed her case. Johnson's new standard did not.

Panel: Clay, White, and US District Judge Hood sitting by designation.

Argument: 10/12/2012

Date of Issued Opinion: 01/31/2013

Docket Number: No. 11-4365

Decided: Affirmed

Case Alert Author: Felix H. Sharpe II

Counsel: ARGUED: Sarah M. Schregardus, Ohio, for Appellant. M. Scott Criss, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio for Appellee. ON BRIEF: Sarah M. Schregardus, Ohio, for Appellant. M. Scott Criss, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio for Appellee.

Author of Opinion: Hon. Helene N. White

Case Alert Circuit Supervisor: Prof. Mark Cooney

U.S. v. Stout - Sixth Circuit

Mark Cooney — 2013-02-12T16:05:14 -06.00

Headline: An Unarmed Prisoner's Jailbreak Using No Physical Force Can Still Be a "Crime of Violence"

Area of Law: Criminal, Crimes of Violence

Issue Presented: Whether an unarmed jail escape resulting in a state-court conviction is a "crime of violence" under 18 U.S.C. § 16(b).

Brief Summary: Federal prosecutors charged the defendant with knowingly possessing body armor after previously being convicted of a "crime of violence." The defendant argued that his prior conviction for escaping jail did not involve a crime of violence. The district court disagreed. On appeal, the Sixth Circuit affirmed, reasoning that a jail escape poses a substantial risk of confrontation and violence, satisfying the statutory definition of "crime of violence."

Significance: To determine whether the prior crime was a "crime of violence," the court focused on whether the nature of the crime created a risk of violence rather than on whether any violence actually occurred.

Extended Summary: Federal prosecutors charged the defendant with knowingly possessing body armor after previously being convicted of "a crime of violence." The previous crime-of-violence conviction, according to prosecutors, was the defendant's state-court conviction for second-degree escape. That conviction stemmed from the defendant's escape from a county jail, during which he climbed a recreation-area wall and crawled through a hole in the fence at the top.

The defendant asked the district court for a hearing on whether that past crime could properly be considered a crime of violence under 18 U.S.C. § 16(b). The district court held a hearing and concluded that the defendant's jail escape was a crime of violence because his escape was a "purposeful and aggressive" act that created "a serious risk" that he would use physical force against guards or members of the public. After this ruling, the defendant pleaded guilty, but his plea agreement allowed him to appeal.

The Sixth Circuit affirmed the district court's holding that the defendant's jail escape was a crime of violence. To reach this decision, the court performed a two-part analysis. First, the court used a "categorical approach" to determine the nature of the underlying crime. For this step, the court focused on the underlying crime's statutory definition and elements, rather than on the facts. The court noted that second-degree escape, as defined in Kentucky's statute, could range from violent escapes (such as escapes from maximum-security prisons) to nonviolent escapes (such as "walkaways" from nonsecure settings or mere failures to report). The court found that in this case, "the proper classification of [the defendant's] offense [was] an escape by leaving custody in a secured setting." This form of escape, the court observed, involves a purposeful act to achieve freedom from confinement, which typically requires stealth and creates the potential for detection and confrontation.

The court's next step was to determine whether this category of escape - leaving a secured setting - was a crime of violence. The court noted that under 18 U.S.C. 16(b), "crime of violence" includes any felony "that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." The court found that escape from a secured setting satisfies this definition because of the "substantial risk that offenders who choose to escape from secured settings will engage in physical violence during the course of the escape." Thus, the Sixth Circuit affirmed the district court's decision that the crime was one of violence.

Dissent: Judge Donald disagreed with the majority's analysis, stating that when deciding the crime-of-violence question, the court "should only consider the risk that arises from [the defendant's] escape standing alone, not the risk arising from events that may occur subsequent to his escape, including his apprehension." He pointed out that when the defendant escaped, he was unarmed and crawled through a preexisting hole in the fence. He did not harm anyone, and there was no evidence that he harmed property. Thus, Judge Donald believed that the defendant's escape was not a crime of violence.

Panel: Cole and Donald, Circuit Judges; Sargus, District Judge

Argument: 7/26/2012

Date of Issued Opinion: 2/5/2013

Docket Number: 10-6163

Decided: Affirmed conviction.

Case Alert Author: Kristina Bilowus

Counsel: Jeffrey A. Darling, Reinhardt & Associates, PLC, Lexington, Kentucky, for Appellant. Valorie D. Smith, United States Attorney's Office, Lexington, Kentucky, for Appellee. ON BRIEF: Jeffrey A. Darling, Reinhardt & Associates, PLC, Lexington, Kentucky, for Appellant. Valorie D. Smith, Charles P. Wisdom, Jr., United States Attorney's Office, Lexington, Kentucky, for Appellee.

Author of Opinion: Judge Sargus

Case Alert Circuit Supervisor: Professor Mark Cooney

Taylor v. Geithner - Sixth Circuit

Mark Cooney — 2013-02-05T14:03:50 -06.00

Headline: Sovereign Immunity Not Waived for IRS's Alleged Breach of Settlement Agreement

Area of Law: Civil, Employment Law, Title VII, Sovereign Immunity

Issue Presented: Whether Congress has waived sovereign immunity for an IRS employee's Title VII claim alleging that her supervisor breached a settlement agreement.

Brief Summary: An IRS employee sued her supervisor in federal court for retaliating against her and for breaching a settlement agreement that resolved her earlier discrimination claim. The Sixth Circuit affirmed the district court's dismissal, based on sovereign immunity, of her breach-of-settlement-agreement claim. But the Sixth Circuit reversed dismissal of her retaliation claim, finding that her evidence was sufficient to reach a jury.

Significance: This case was one of first impression concerning sovereign immunity for Title VII breach-of-settlement-agreement claims against the federal government as an employer.

Extended Summary: Over a two-year span, an IRS employee applied for a series of promotions and transfers, but supervisors rejected all her requests. Before her application was finally granted, she filed an Equal Employment Opportunity discrimination claim. After this filing, she was transferred to another IRS unit. She alleged that while working in the new unit, her supervisor retaliated against her for filing the discrimination claim. His alleged acts of retaliation included a three-day suspension without pay, written reprimands, and negative references. In response, the employee filed additional agency claims alleging retaliation.

The IRS and the employee eventually settled the discrimination claim. The settlement agreement required the IRS to remove the three-day suspension from the employee's record. She, in turn, waived future litigation on that claim. The settlement agreement also allowed the employee to monitor and report noncompliance. She later invoked this provision to report acts of IRS noncompliance, but the agency denied her claims. The agency found that even if the IRS had breached the agreement, the issue was moot because the IRS was now in compliance. She did not appeal those decisions within the agency.

Later, the employee sued her supervisor in the Western District of Tennessee, alleging retaliation and breach of the settlement agreement. The Western District dismissed both claims.

The Sixth Circuit affirmed dismissal of the breach-of-settlement-agreement claim, reasoning that the government is immune from liability unless Congress has explicitly and unambiguously waived immunity. The court noted that although Congress has waived sovereign immunity for Title VII discrimination suits against the federal government, the employee offered no compelling argument why this waiver extended to claims for settlement noncompliance. The court observed that the EEOC's regulations on reporting settlement noncompliance are silent on potential judicial remedies. And because a waiver of sovereign immunity must be explicit, this regulatory silence - coupled with the lack of an express statutory waiver for this type of claim - could not waive immunity. Thus, the employee was required to exhaust her administrative appeals rather than sue in federal court.

The Sixth Circuit reversed the district court's dismissal of the employee's retaliation claim, finding that she had "produced sufficient evidence to establish a prima facie case of retaliation." Her proofs showed, among other things, that she had applied for 52 positions in two years but was rejected every time. She also received negative references while her agency discrimination claims were pending.

Panel: McKeague, Merritt, and Moore, Circuit Judges

Argument: 10/4/2012

Date of Issued Opinion: 1/2/2013

Docket Number: 11-6122

Decided: Affirmed in part; reversed in part.

Case Alert Author: Kristina Bilowus

Counsel: David H. Shapiro, Swick & Shapiro, P.C Washington, D.C., for Appellant. Harriett Miller Halmon, United States Attorney's Office, Memphis, Tennessee, for Appellee. ON BRIEF: David H. Shapiro, Swick & Shapiro, P.C., Washington, D.C., for Appellant. Harriett Miller Halmon, United States Attorney's Office, Memphis, Tennessee, for Appellee.

Author of Opinion: Judge Moore

Case Alert Circuit Supervisor: Professor Mark Cooney