Recent Federal Opinions

Fifth Circuit

The Inclusive Communities Project, Inc. v. Texas Dep’t of Housing and Community Affairs – 12-11211/13-10306: In a case alleging disparate impact in the allocation of Low Income Housing Tax Credits, the Court adopted HUD’s newly-promulgated regulations, which establish a burden-shifting framework for proving disparate impact under the Fair Housing Act. Remanded for reconsideration in light of this new standard, which the district court had not applied. The new standard requires the plaintiff to show discriminatory effect; then the defendant must show that the practice is necessary to achieve a “substantial, legitimate, nondiscriminatory interest.” The plaintiff can still prevail if they then show that a less discriminatory alternative could serve that interest.

Flex Frac Logistics, LLC v. NLRB – 12-60752: The Court adopted the NLRB’s position that the National Labor Relations Act forbids workplace confidentiality policies that appear to forbid workers from discussing wages.

United States v. Purser – 12-20542: A case raising rather convoluted issues regarding the Sentencing Guidelines; however, the Court concludes that the defendant’s appeal waiver applies because the Government cured their breach of the plea agreement, and thus they lacked jurisdiction.

Sixth Circuit

Bray v. Planned Parenthood, et al. – 12-04476: U.S. Marshals raided the plaintiff’s home to satisfy an order of execution in another case. Their conduct was rather egregious; they detained the plaintiff, seized all of his personal property except children’s books and Bibles, did not let him leave the couch he sat on, go outside, or call his lawyer, and videotaped the home. The Court affirms the dismissal of a Bivens action against the U.S. Marshals, because they carried out the execution of a presumptively valid judicial order, and because while some of their actions, such as seizing the plaintiff’s books (for clarity: books the plaintiff had written) were unconstitutional, the unconstitutionality of those actions were not clearly established, so that dismissal based on qualified immunity was proper.

CNA Ins. Co. v. Hyundai Merchant Marine Co. – 12-6118/12-6201: Judge Batchelder describes this case pretty well in her first sentence: “At its core, this appears to be a simple case: Corning hired Hyundai to transport cargo overseas, Hyundai’s subcontractors
accidentally destroyed the cargo during transit, and nobody wants to pay for it.” This case concerns the Carmack Amendment to the Interstate Commerce Act, which provides that liability to a shipper is borne by the receiving carrier and the delivering carrier. Under the Amendment, if a shipper demonstrates that they delivered the cargo in good condition, that it was damaged, and the amount of damages, then these two carriers must pay, unless they demonstrate both a lack of negligence and one of five affirmative defenses. However, after a lengthy (very lengthy) discussion of the evolution of Carmack cases, the Court concluded that “the Carmack Amendment does not apply to the road or rail leg of an intermodal overseas export shipped under a single through bill of lading.” However, the statute that does apply, the Carriage of Goods by Sea Act (COGSA), did not protect Hyundai from liability (as it could have), because at the time of damages, Hyundai was not in possession of the goods. In fact, because the contract between the shipper and Hyundai provided that liability based on damage caused by a subcontractor to the extent that the subcontractor would have been liable to the shipper. Since Carmack applied to the subcontractors, had they separately contracted, Hyundai was subject to Carmack under the contract (as opposed to under the ICA). The Court also reverses the denial of prejudgment interest and remands for reconsideration. Judge O’Malley dissents from the finding that Carmack applies under the contract.

Wallace v. Diversified Consultants, Inc. – 13-2214: A Fair Debt Collection Practices Act notice that requires a debt to be disputed within “30 days of receiving this notice,” is functionally equivalent to one that requires a debt to be disputed within “30 days after receiving this notice,” and therefore complies with the Act.

In re: Bradley – 13-8010: The Bankruptcy Appellate Panel reverses a dischargability finding, concluding that the secured property sold out of trust was a willful and malicious injury to a creditor, and thus nondischargable. It also found that the debtor used false pretenses to obtain settlement with the creditor, and remanded for determination of damages for this cause of action.

Eighth Circuit

Bank of America v. Peterson – 12-2508: The Court affirmed summary judgment on a claim for rescission under the Truth in Lending Act as time-barred, because while the notice of intent to rescind was timely, the lawsuit seeking rescission was not. However, a claim for damages due to the lender’s failure to rescind was not untimely, because it does not accrue until the actual failure to rescind occurs. The plaintiff’s testimony that they never received the TILA disclosure was sufficient to create a fact issue precluding summary judgment.

Roe v. St. Louis University – 13-1206: The Court affirmed summary judgment for the university in this Title IX case alleging deliberate indifference to the plaintiff’s alleged rape by another student. The university’s response was to urge Roe to report the rape to the administration through formal channels, which she did not do. The Court concluded that the university could not be deliberately indifferent, because it did not control the circumstances where the rape occurred (a private party off-campus), it adequately responded to the plaintiff’s report, and the adverse events the plaintiff suffered were not connected to her report, but were based on her grades and poor class attendance.

Fourte v. Faulkner County, Arkansas – 13-2241: In this interlocutory appeal from the denial of qualified immunity, the Court concludes that the doctor and nurse at the county jail were not deliberately indifferent to the plaintiff’s known serious medical needs because the plaintiff had no right to a medical screening on admission to the jailthe failure to initially prescribe blood pressure medication was a medical malpractice claim not contained within the Eighth Amendment, and the doctor and nurse had no control over the delays in medicine delivery once it was prescribed. The County’s potential liability was “inextricably intertwined” with the doctor and nurse’s conduct on the first two claims, and thus their immunity extended to the County; however, there was a fact question as to whether the County’s failure to deliver the medication was the result of deliberate indifference, and because the doctor and nurse had no control over that failure, it was not inextricably intertwined. Thus, qualified immunity did not apply. Because denials of qualified immunity based on fact questions are not appealable orders, the Court dismissed this portion of the appeal.

Jones v. McNeese – 12-2696: Reversal of a denial of qualified immunity because the plaintiff presented no evidence of racial animus, and his claims for stigmatizing defamation failed because the evidence he offered was hearsay

Eleventh Circuit

Walthour v. Chipio Windshield Repair, LLC – 13-11309: Arbitration provisions depriving employees of the right to bring collective actions under the Fair Labor Standards Act are enforceable.

Samson v. Federal Express Corp. – 12-14145: The Court reversed a grant of summary judgment in this Americans with Disabilities Act claim for failure to hire. The plaintiff applied for a mechanics job in Fort Myer, Florida; the employer made its offer contingent on the plaintiff’s completion of a Department of Transportation medical examination. Due to the plaintiff’s diabetes, which is a recognized disability under the Act, he could not pass the examination. FedEx then rescinded the offer. FedEx argued that test-driving its trucks, which required a DOT medical certificate, was an essential function of the job, and thus the plaintiff’s inability to do so was a defense. The Court concluded that test-driving could be found not to be an essential function, because the candidate who was eventually hired has test-driven three times in three years; he has sat in a passenger seat diagnosing mechanical problems while another employee drove (a potential reasonable accommodation); and statistical analysis discloses that mechanics in similar positions spend 3.71 hours per year test-driving. Thus, there was a factual dispute as to whether test-driving was an essential function, precluding summary judgment. The Court also rejected FedEx’s affirmative defense based on the DOT regulations, because mechanics do not drive in interstate commerce, and thus are not subject to the regulations. Judge Hill dissents, noting that the regulations apply to employers as well, such that FedEx could be liable for the plaintiff’s driving without a DOT certificate, even if the employee himself would not be.

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