11th Circuit Slip Opinions

General Information

The United States 11th Circuit Court of Appeals generally releases opinions on Fridays. This page contains links to the full text of each opinion released this month, plus a list of all the cases decided each week, whether or not an opinion was released. If the case summary interests you, click on the name of the case and you should see the full text of the opinion, which you can save to your computer.

Elsewhere, we have included opinions and summaries of cases from the Alabama Court of Civil Appeals, the Alabama Court of Criminal Appeals, and the United States Supreme Court of Alabama.

Slip Opinions

July 2

Ford v. Moore
Summary: (per curiam) Reversing the dismissal of this § 2254 habeas petition, the Court held the AEDPA’s one-year statute of limitation is tolled when a state collateral attack does not present a federally cognizable claim, following the 7th and 9th Circuits on the issue.

Royal Ins. Co. of America v. Whitaker Contracting Corp.
Summary: (Birch, J.) Reversing the District Court’s ruling in this insurance dispute following the Alabama Supreme Court’s answer to a certified question, the Court held the Defendant must reimburse the Plaintiff for the amount it paid to settle a wrongful-death lawsuit because the Defendant’s indemnity agreement included a non-delegable duty of maintaining the safety of a roadway for the traveling public during paving.

Sierra Club v. Meiburg
Summary: (Carnes, J.) Reversing the District Court’s refusal to modify an environmental consent decree, the Court held (1) the District Court’s requirement that the EPA develop an implementation plan for water quality standards was a modification of the consent decree that gave the Court jurisdiction to review the District Court’s action, and (2) the District Court abused its discretion by grafting onto the decree a substantial modification that was not part of the original bargain between the parties.

July 3

Southland Distributors Marketing Company v S&P Company
Summary: (per curiam) Vacating the District Court’s ruling against the Plaintiff in this breach of contract, diversity action, the Court held the District Court erred in failing to address the Plaintiff’s argument that it sold non-Pabst products in order to create good will that would advance the sales and marketing of its Pabst products; the District Court improperly concluded that these non-Pabst sales were a breach of the exclusive wholesale arrangement between the parties that precluded the Plaintiff’s breach of contact claim.

United States v Woodruff
Summary: (Marcus, J.) Affirming the Defendant’s conviction and sentence for bank robbery, the Court held (1) the indictment sufficiently set forth the necessary mens rea under the Hobbs Act, even though it did not use the word “knowingly,” (2) the Government presented sufficient evidence that the robberies affected interstate commerce, and thus the District Court did not err in denying the Defendant’s motion for judgment of acquittal, (3) the Government presented sufficient evidence to establish that the weapon the Defendant used during the robberies was a firearm capable of expelling a projectile by the action of an explosive under 18 U.S.C. § 9219(a)(3), and (4) Apprendi was inapplicable to the Defendant’s sentence because every conviction under § 924(c)(1)(A) carries with it a statutory maximum sentence of life imprisonment, regardless of what subsection the defendant is sentenced under.

July 5

Associated Rubber Company v. NLRB
Summary: (Carnes, J.) Setting aside an NLRB order directing the Employer to bargain with the United Steel Workers of America following a close election, the Court held (1) when an employer seeks to overturn union election results based on third-party misconduct, proof of actual effect on votes is not required if the misconduct is serious and the election results are close, and (2) the NLRB’s conclusion that the third party’s misconduct was not caused by his desire to threaten employees for not supporting the union found no support in the record evidence.

Johnson v. Hamrick
Summary: (Marcus, J.) Affirming the District Court’s order finding no vote dilution under § 2 of the Voting Rights Act in this challenge to Gainesville, Georgia’s at-large method of electing city counsel members, the Court held the District Court did not clearly err in concluding that the Plaintiffs failed to establish the three factors required to prove bloc voting under Thornburg v. Gingles, 478 U.S. 30 (1986).

July 9

United States v. Wattleton
Summary: (Hull, J.) Affirming the insanity verdict against the Defendant for making a bomb threat, the Court held (1) the Government did not impose the insanity defense on the Defendant at trial, (2) 18 U.S.C. § 4243(d), which places the burden of proof on the insanity acquittee at a post-verdict hearing, does not violate due process, and (3) the District Court correctly determined that the Defendant was not eligible for release.

July 10

In Re Paschen
Summary: (Wilson, J.) In this bankruptcy appeal, the Court held as a matter of first impression that 11 U.S.C. § 1322(c)(2) permits Chapter 13 debtors to bifurcate undersecured, short-term home mortgages into secured and unsecured claims, with the unsecured claim subject to “cramdown” pursuant to 11 U.S.C. § 1325(a)(5), splitting from the Fourth Circuit on the issue.

Preferred Sites, LLC v. Troup County
Summary: Affirming the District Court’s summary judgment order directing the Defendant to approve a conditional use permit under the Telecommunications Act of 1996, the Court held (1) “final action” for purposes of triggering the Act’s 30-day statute of limitations occurs when the state or local authority issues its final, written zoning decision, and thus the Plaintiff’s case was timely filed, (2) the District Court did not err in concluding that the Defendant’s zoning decision was not supported by “substantial evidence” under the Act, and (3) an injunction (or other equitable relief) directing the defendant to issue the relevant permit is the proper form of relief under the Act.

United States v. Root
Summary: (Hull, J.) Affirming the Defendant’s conviction and sentence for attempting to persuade a minor to engage in criminal sexual activity, the Court held (1) an actual minor victim is not required for an attempt to conviction under 18 U.S.C. § 2422(b); instead an undercover officer posing as a minor is sufficient, (2) an actual minor is not required to sustain a conviction for traveling in interstate commerce for the purpose of engaging in any sexual with a minor under 18 U.S.C. § 2423(b), and (3) as a matter of first impression, the District Court did not err in applying a two-level sentence enhancement under U.S.S.G. § 2A3.2(b)(2)(B) applicable to defendants convicted of criminal sexual abuse of a minor. Judge Kennedy concurred in the majority’s affirmance of the convictions but dissented on the sentencing enhancement because the applicable guideline, in her opinion, increased the penalty only where criminal sexual activity has actually taken place.

July 11

Franz v. Equitable Assurance
Summary: (Dubina, J.) Reversing the District Court’s certification of a securities fraud class action, the Court held the District Court erred in certifying the class because the class representatives’ claims were barred by the statute of limitations.

Smith v. United Parcel Service
Summary: (Dubina, J.) Affirming dismissal of this dispute over an interstate shipment, the Court held that the Carmack Amendment, 49 U.S.C. § 14706, preempted the Plaintiff’s state-law claims for fraud, negligence, wantonness, and outrage arising from the shipment. The Court made clear that the Carmack Amendment preempts all such claims because it embraces “all losses resulting from any failure to discharge a carrier’s duty as to any part of the agreed transportation,” quoting Georgia Florida & Alabama Railway Company v. Blish Milling Company, 241 U.S. 190 (1916).

Soliman v. United States
Summary: (per curiam) Dismissing this immigration appeal, the Court held the Petitioner’s appeal was moot because he had been removed from the United States and returned to his native country; thus, he was no longer being detained or force-fed by the INS. The Court rejected the Petitioner’s reliance on the “capable of repetition yet evading review” exception to the mootness doctrine. The Court also vacated the District Court’s opinion pursuant to its dismissal under the mootness doctrine.

July 12

Apogee Coal Company v Central Ohio Coal Company
Summary: (Siler, J., by designation) Affirming summary judgment for the Defendants in this pension fund dispute governed by the Coal Industry Retiree Health Benefit Act of 1992, the Court held the Defendants, the Fund Trustees, properly reassessed premiums retroactively against the Plaintiffs in response to the Supreme Court’s decision in Eastern Enterprises v. Apfel, 524 US 498 (1998).

Bubetsky v Applied Card Systems, Inc.
Summary: (Black, J.) Affirming summary judgment for the Defendant in this Title VII religious discrimination case, the Court held the Plaintiff failed to establish a prima facie case of intentional religious discrimination because he did not present any evidence that the decisionmaker knew of his religion at the time the employment decision was made.

EEOC v. Joe's Stone Crabs, Inc.
Summary: (per curiam) Reviewing final judgment for four of the Claimants in this Title VII gender discrimination case, the Court held (1) the continuing violation doctrine could not extend the scope of the action more than 300 days prior to the EEOC’s filing of its discrimination charge, (2) although none of the Claimants applied for a job during the actionable period, they all made a sufficient showing that they refrained from applying due to a justifiable belief that the Defendant’s discriminatory practices made application a futile gesture, (3) the EEOC did not meet its burden of showing that two of the Claimants possessed real and present interests in the job positions during the actionable period, (4) the EEOC made a sufficient showing that the other two Claimants possessed a real and present interest in applying during the actionable period, (5) the evidence supported the District Court’s finding that the Defendant’s reputation for discriminatory hiring practices was the Defendant’s fault, (6) the District Court’s properly concluded that these two Claimants were subjected to unlawful discrimination because the Defendant did not offer evidence of a legitimate, non-discriminatory reason, and (7) remand was necessary for the District Court to recalculate damages with respect to one Claimant.

In Re Cash Cow Services of Florida LLC
Summary: (per curiam) Reversing the District Court’s judgment in this bankruptcy appeal, the Court held that a Chapter 11 debtor’s consumer loans were “disbursements” within the meaning of 28 U.S.C. § 1930(a)(6) and thus subject to the Trustee’s quarterly fees.

In Re New Midland Plaza Associates
Summary: (per curiam) The Court in this bankruptcy appeal affirmed the judgment of the District Court affirming the ruling of Bankruptcy Court. The Court’s opinion gives no indication of the legal issues in question.

Marotte v. American Airlines, Inc.
Summary: (Magill, J., by designation) Affirming summary judgment for the Defendant in this case arising from an altercation when the Plaintiffs were embarking on a international flight from Miami to the Bahamas, the Court held the Plaintiffs’ injury was covered by the Warsaw Convention and thus their lawsuit was timed-barred under the Convention’s two-year statute of limitations.

United States v. Duarte-Acero
Summary: (Cox, J.) Affirming the Defendant’s conviction and sentence for conspiring to murder two DEA agents, the Court held (1) dismissal of an indictment is not an available remedy under the Venna Convention on Consular Relations, joining the First, Second, and Sixth Circuits on the issue, (2) the International Covenant on Civil and Political Rights does not require the dismissal of the indictment because the alleged violations of the Defendant’s rights occurred in Ecuador, where he was arrested, and (3) the Defendant’s sentence did not violate Apprendi, notwithstanding that the indictment failed to allege, and the jury failed to find, that his attempted murder was either premeditated or malicious.

United States v. Venske
Summary: (Cox, J.) Reviewing the Defendant’s convictions and sentences for a fraudulent telemarketing scheme, the Court held (1) the District Court did not abuse its discretion in denying two of the Defendants’ motion for a new trial and an evidentiary hearing based on allegations of juror misconduct and extrinsic influence on jurors, but (2) the District Court erred in sentencing those two Defendants upon a count charging a multiple-object conspiracy without determining beyond a reasonable doubt which offense was the object of the conspiracy, requiring a remand for re-sentencing. This opinion contains a good discussion of improper contact with jurors in a criminal case.

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