Sierra Club v. ICG Hazard, LLC

ICG operated Thunder Ridge surface mine, under a five-year Coal General Permit issued by the Kentucky Division of Water (KDOW) pursuant to the National Pollutant Discharge Elimination System, which allowed ICG and others to discharge listed pollutants into the state’s water. Conditions included effluent limitations for specific pollutants, but not for selenium, a naturally occurring element that endangers aquatic life at certain concentrations. The permit acknowledged the possibility of selenium discharges. KDOW required a single selenium sampling during the five-year period. In 2009, ICG sought to expand its permit coverage and was required to submit water samples from a discharge point. Selenium exceeded the “acute” limit. Additional tests at six locations did not reveal selenium above the acute limit. Two sites exceeded the “chronic” limit. The Department of Natural Resources (KDNR) took a “preventive enforcement action,” requiring ICG to test again in 2011. The U.S. Office of Surface Mining deemed KDNR’s response appropriate and notified Sierra Club that it would take no further action. Sierra Club sued under the Water Pollution Control Act, 33 U.S.C. 1251, and the Surface Mining Control and Reclamation Act, 30 U.S.C. 1201. The district court awarded ICG summary judgment, finding that the permit shield precluded CWA liability. The Sixth Circuit affirmed, rejecting an argument that the permit shield did not apply because the discharge was neither expressly authorized nor reasonably contemplated by KDOW. View "Sierra Club v. ICG Hazard, LLC" on Justia Law

Commercial Law Corp., P.C. v. Fed. Deposit Ins. Corp.

CLC’s principal, Erwin, was general counsel for the bank. CLC deferred invoicing the bank in 2008 when it fell on hard times. In 2009 the Office of Thrift Supervision put the bank into receivership. CLC claims that, days before the takeover, the bank granted it security interests in bank properties. CLC waited months to record attorney liens for the security interests. CLC sought $176,750 in deferred legal fees. The FDIC denied the claim. CLC initially denied possessing the original retainer agreement, claiming oral agreements, until, in 2013, Erwin produced a 1989 agreement. The district court granted the FDIC summary judgment, finding the evidence prejudicial and the delay not “substantially justified.” The fees arrangement did not comply with 12 U.S.C. 1823(e)’s documentation requirements and the security interests were similarly deficient and “taken in contemplation of” insolvency. The court rejected CLC’s argument that the statutory documentation requirements and the D’Oench doctrine (an estoppel rule shielding the FDIC from claims and defenses based on unwritten agreements that reduce bank assets) apply only to secret agreements affecting traditional banking transactions, like loans. The court acknowledged evidence indicating that Erwin and the bank may have backdated the security interests. The Sixth Circuit reversed; D’Oench and its statutory progeny do not apply to its legal services arrangement with the bank. View "Commercial Law Corp., P.C. v. Fed. Deposit Ins. Corp." on Justia Law

Tilley v. Kalamazoo Cnty. Road Comm’n

Tilley, 59 years old, began working for the Road Commission in 1993. In 2008, Tilley began reporting principally to Bartholomew, the Commission’s general superintendent. After several disputes between the two, Tilley was fired. He sued, alleging termination based on his age in violation of Michigan’s Elliot-Larsen Civil Rights Act, M.C.L. 37.2201, and that the Road Commission interfered with his right to, and retaliated against him for taking, medical leave under the Family Medical Leave Act, 29 U.S.C. 2601. The district court granted the Road Commission’s motion for summary judgment on all of Tilley’s claims. The Sixth Circuit affirmed summary judgment on Tilley’s ELCRA age-discrimination claim, but reversed summary on Tilley’s claims under the FMLA. Tilley presented sufficient evidence to create a material factual dispute on his claim that the Road Commission was equitably estopped from denying that he was covered under the FMLA. Because the district court granted summary judgment on the basis that Tilley was not an “eligible employee,” it did not address the other bases on which the Road Commission sought summary judgment on Tilley’s FMLA interference and retaliation claims. View "Tilley v. Kalamazoo Cnty. Road Comm'n" on Justia Law

United States v. Fallins

Fallins pleaded guilty to possession of a firearm by a felon, 18 U.S.C. 922(g)(1). He had prior Tennessee convictions for robbery; attempted aggravated arson; and possession of crack cocaine for resale. The presentence report concluded that Fallins qualified for an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. 924(e) and calculated a guidelines range of 180 to 210 months. Fallins objected to the enhancement and moved for downward departure or variance. Because “arson” is an “enumerated” ACCA offense and “attempted aggravated arson” is not, Fallins asserted that his conviction was not a qualifying residual clause offense and was not a “violent felony” because it did not present “a serious potential risk of physical injury to another.” Fallins argued that the court could not rely on the government’s proffered factual basis in the plea transcript for that conviction because Fallins did not assent to it. The court agreed that it could not rely upon those facts, but found that attempted aggravated arson was a residual clause “violent felony” and that crack-cocaine and robbery convictions qualified as predicate offenses, and sentenced him to 195 months of incarceration. The Sixth Circuit affirmed, rejecting an argument that the residual clause is unconstitutionally vague. View "United States v. Fallins" on Justia Law

Allied Indus. Scrap, Inc. v. OmniSource Corp.

Plaintiff offered to sell 3 million pounds of scrap copper to the defendant. The defendant negotiated the core terms of the sale but did not object to a fee-shifting provision: “In the event purchaser shall default in his obligations hereunder, purchaser shall be liable for [the plaintiff]’s costs of collection, including attorney’s fees.” The contract was negotiated between two experienced and sophisticated commercial entities. There was no duress. In a suit between the two, the otherwise victorious plaintiff appealed the district court’s ruling that the unilateral fee-shifting clause for attorney’s fees was unenforceable under Ohio law as a matter of public policy. The district court relied on Sixth Circuit precedent, holding that the Ohio Supreme Court would not enforce similar fee-shifting clauses. The Sixth Circuit reversed, noting that the Ohio Supreme Court has since clarified that it would enforce such unilateral or one-sided fee-shifting contract provisions. View "Allied Indus. Scrap, Inc. v. OmniSource Corp." on Justia Law

In re: Blasingame

The bankruptcy court imposed sanctions against attorneys stemming from their representation of Debtors in an adversary proceeding in which a creditor and the Trustee sought denial of discharge. The attorney filed notice of appeal regarding the July 16 sanctions order on July 30. On August 1, the bankruptcy court entered an Order Setting Amount of Additional Sanctions. On August 5, the bankruptcy court amended its August 1, order and imposed additional sanctions under 28 U.S.C. 1927, covering attorney fees and expenses incurred by the Trustee and creditor in the adversary proceeding. An August 27 motion to dismiss asserted that the July 16 order was not final and that cause did not exist to allow appeal from an interlocutory order. A September 8 amended motion for leave to appeal and corrected notice of appeal indicated an appeal of all three sanctions orders. In response, a motion to strike asserted failure to timely perfect appeal from the August 1 or August 5 orders. The Sixth Circuit Bankruptcy Appellate panel denied the motions to dismiss and to strike, holding that it had jurisdiction because the amount of sanctions was set forth in a final order. Notice of appeal was timely filed. Resolution of the sanctions issue will have no discernable impact on the pending discharge issue. View "In re: Blasingame" on Justia Law

Tanner v. Yukins

Tanner was convicted of a 1995 robbery and stabbing murder. The appeals court reversed for failure to provide DNA and serology experts. The Supreme Court of Michigan reversed. Tanner’s federal habeas petition was dismissed in 2005. Tanner, who is illiterate, then met with a legal assistant and requested a prison certificate of account, for her motion to file in forma pauperis. The assistant received that document on December 5, while Tanner’s unit was on lockdown. The legal assistant scheduled a “call-out” for December 6, so that Tanner could sign and file within the 30-day appeal period (FRAP 4(a)(1)(A)). Tanner told guards that she needed to pick up legal papers, but they refused. On December 8 Tanner signed the notice and delivered it to the mailroom for expedited handling the following day. Her notice was considered filed on December 9, 31 days after entry of judgment. The district judge granted a certificate of appealability on December 23. Tanner’s habeas appeal was docketed on January 9, beyond the last day on which Tanner could request extension of the 30-day period. On January 20, the Sixth Circuit issued a show-cause order. Tanner explained that guards had prevented timely filing. The Sixth Circuit dismissed. In 2007, Tanner filed a civil rights action against the guards. In 2012, a jury awarded damages. Tanner moved for relief under FRCP 60(b)(6), which permits a district court to “relieve a party . . . from a final judgment … for . . . any . . . reason.” The court denied the motion, ruling that Rule 4(a)(1) is jurisdictional. The Sixth Circuit reversed, emphasizing that the court will be granting relief “to revive a lost right of appeal,” not granting an extension under Rule 4(a)(5). View "Tanner v. Yukins" on Justia Law

United States v. Cook

Sweet and Cook stole 32 firearms from two licensed firearms dealers. Arrested separately, days later, Sweet admitted that he sold two guns to his “dope dealer” for $200 plus three rocks of cocaine base and that he and Cook sold eight firearms for $500 and four grams of heroin. Cook helped authorities retrieve nine firearms that were hidden. Both pled guilty to two counts of theft of firearms from a licensed dealer, 18 U.S.C. 924(m). Presentence Investigation Reports recommended a base offense level of 20 (U.S.S.G. 2K2.1(a)(4)(A)) for each, and enhancements: six levels (U.S.S.G. 2K2.1(b)(1)(C)), because the theft involved 32 firearms; two levels (2K2.1(b)(4)(A)), because the firearms were stolen; four levels (2K2.1(b)(5)) because they trafficked firearms; and four levels (2K2.1(b)(6)(B)), because the firearms were used in connection with another felony, distribution of heroin. Both contended that the 2K2.1(b)(6)(B) enhancement did not apply because the firearms did not facilitate the drug offense and that application of both 2K2.1(b)(5) and 2K2.1(b)(6)(B) constituted double counting because they were based on the same conduct, firearms trafficking. The Sixth Circuit affirmed application of the enhancements, which address different aspects of the same action: selling firearms and purchasing drugs. Each could have occurred without the other. View "United States v. Cook" on Justia Law

Chrysler Grp. LLC v. Sowell Auto., Inc.

Section 747 of the Consolidated Appropriations Act of 2010 created an arbitration procedure for automobile dealerships to seek continuation or reinstatement of franchise agreements that had been terminated by Chrysler during bankruptcy proceedings, with the approval of the bankruptcy court. After an arbitral decision favoring the dealer, the manufacturer was required to provide the dealer a “customary and usual letter of intent” to enter into a sales and service agreement. After arbitrations, a trial was held to determine whether Chrysler supplied each prevailing dealer with such a letter. Most of the rejected dealers reached settlements with New Chrysler. The court determined that the remaining dealers had received “customary and usual” letters. The Sixth Circuit agreed that section 747 does not constitute an unconstitutional legislative reversal of a federal court judgment and that the only relief it provides to successful dealers is the issuance of a letter of intent. The letters at issue were “customary and usual,” except one contractual provision that required reversal. Contrary to the district court’s conclusion application Michigan and Nevada state dealer acts is preempted by section 747, because those acts provide for redetermination of factors directly addressed in federally-mandated arbitrations closely related to a major federal bailout. View "Chrysler Grp. LLC v. Sowell Auto., Inc." on Justia Law

United States v. Gatson

Officers learned that a school-bus driver had reported that a man was approaching young girls. The man was described as black, with medium-toned skin and short hair, driving a black GMC SUV on Euclid Avenue between Rally’s restaurant and Eastham Avenue. Officers arrived within a minute, drove into an area parking lot, and saw a dark grey GMC SUV with Gatson, a black male with short hair and medium-brown skin in the driver’s seat. The officers noticed that Gatson’s speech was slurred and his movements sluggish. He admitted that he had been drinking and talking to young girls. Officers asked for identification, then saw Gatson push something between his seat and center console. With Gatson locked in the police cruiser, they walked around the SUV and saw a pistol handle protruding from between the seat and console. Indicted as a misdemeanant with a domestic-violence conviction and a felon (arson) in possession of a firearm, Gatson moved to suppress evidence of the pistol. The district court denied the motion and determined that Gatson was subject to a 15-year mandatory minimum under the ACCA. Gatson’s Guidelines range was, therefore, 180 to 210 months. Following his guilty plea, the court sentenced Gatson to 180 months’ imprisonment. The Sixth Circuit affirmed denial of the motion to suppress and the sentence View "United States v. Gatson" on Justia Law