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Taxation
Change in Method of Accounting; Lack of Approval
Petitioner appealed the tax court’s approval of the commissioner’s determination that petitioner had changed its method of accounting without the commissioner’s approval. Petitioner did not claim deductions for amortization of its base acres for tax years 2004 through 2008, but started doing so in 2009 after learning other farmland buyers were. The commissioner disallowed petitioner’s amortization, concluding that it constituted a change in accounting method requiring IRS approval. The tax court agreed.
Where amortizing changed the timing of petitioner’s cost recovery, it also changed the timing of the deduction, and thus Treasury regulations required IRS approval of the change.
Judgment is affirmed.
Civil Rights
§1983
Excessive Force; Deliberate Indifference to Medical Need
Plaintiff appealed the grant of summary judgment to defendants. Defendant officers suspected plaintiff of causing a domestic disturbance; plaintiff fled when defendants approach him. When plaintiff started climbing a fence, one defendant tased him, causing him to fall over the fence and suffer a traumatic spinal cord injury, leaving him permanently paralyzed. Although plaintiff told defendants he could not feel his legs and was in pain when they ordered him up, the defendants disbelieved plaintiff’s claims. An EMT called to the scene also concluded that plaintiff could feel his legs. However, plaintiff was ultimately transported to the hospital and diagnosed with a spinal cord injury. Plaintiff filed a §1983 action alleging excessive force and deliberate indifference to medical need.
Although being tased at an elevation posed a risk of severe injury or death, plaintiff’s right to be free from such deadly force was not clearly established at the time of his arrest. However, there were genuine issues of material fact as to whether defendants were aware that plaintiff was severely injured or paralyzed, potentially supporting a deliberate indifference claim when defendants moved plaintiff’s body for purposes unrelated to exigency or treatment. But defendants’ summoning of EMS was sufficient to defeat a deliberate indifference claim.
Gruender, J., concurring in part: “I write separately to address Part II.C., which asserts that a reasonable factfinder could conclude that Officer Garcia was deliberately indifferent to Stewart’s medical needs during the fourteen minutes preceding the arrival of the emergency medical technicians. Our caselaw squarely holds that deliberate indifference is a difficult standard to meet, and no reasonable factfinder could conclude under these facts that Stewart has met that standard.”
Judgment is affirmed.
Expulsion from County Property
Constitutional Violations; Qualified and Legislative Immunity
Defendants appealed the denial of their motion for summary judgment asserting defenses of qualified and legislative immunity. Plaintiff sued defendants after they voted to ban plaintiff from all county property for one year, claiming a violation of his First and Fourteenth Amendment rights.
Where defendants’ claim of qualified immunity raised genuine issues of material fact, the court lacked jurisdiction to resolve those issues on appeal, and defendants were not entitled to legislative immunity because their vote did not involve the enactment of public policy but rather to discipline plaintiff’s conduct.
Judgment is affirmed in part, appeal dismissed in part.
Criminal Law
Aggravated Sexual Abuse of a Child
Motion for New Trial; Sufficiency of Evidence
The government appealed the district court’s grant of defendant’s motion for a new trial following his jury conviction for aggravated sexual abuse and abusive sexual contact of a child. The district court granted a new trial after concluding that the government conducted leading questioning of the minor victim by introducing the term “vagina” into her testimony and finding that her testimony was very clear that no penetrative conduct occurred. The district court also found that the presentation of defendant’s interrogation could have also misled the jury.
Where the district court granted a new trial on grounds not raised in defendant’s motion, it overstepped its authority.
Stras, J., concurring in part and dissenting in part: “I agree with reversing on Count 2, see 18 U.S.C. §§ 1153, 2244(a)(5), 2246(3), but would have affirmed the grant of a new trial on Count 1, see id. §§ 1153, 2241(c), 2246(2)(D).”
Judgment is reversed and remanded.
Child Exploitation
Restitution Order; Statutory Authority for Restitution
Defendant appealed the district court’s restitution order following his conviction on child exploitation offenses. Defendant had pled guilty to two counts of receipt of child pornography and several counts of sexual exploitation of a minor. Based on the PSR that indicated defendant’s offenses were child pornography trafficking offenses, the court imposed the statutorily mandated restitution for trafficking offenses.
Where defendant’s receipt of child pornography offenses were not among the listed crimes for which the district court was to impose a mandatory minimum amount of restitution, the district court erred in imposing a restitution obligation upon defendant as there was no evidence of the victims’ losses.
Judgment is affirmed in part and vacated and remanded in part.
Distribution of Child Pornography
Sentencing Enhancement; Distribution for Valuable Consideration
Defendant appealed the sentence imposed following his guilty plea to distribution of child pornography and travel with intent to engage in illicit sexual conduct, arguing that the district court erred in applying a sentencing enhancement for distribution “in exchange for any valuable consideration.”
Where the undisputed facts in the PSR indicated that defendant agreed to send another party child pornography in exchange for more child pornography, there was sufficient evidence to at least infer that defendant had an agreement to exchange child pornography with others for personal sexual gratification.
Judgment is affirmed.
Drug and Firearm Offenses
Below-Guidelines Sentence; Substantive Reasonableness of Sentence
Defendant challenged the substantive reasonableness of the below-Guidelines sentence imposed following his guilty plea to drug and firearm offenses, arguing that the district court did not sufficiently weigh mitigating factors.
Where the district court already weighed defendant’s mitigating factors to vary downward, there was no abuse of sentencing discretion in not varying downward further.
Judgment is affirmed.
Drug and Firearm Offenses
Sentencing Enhancement; Maintaining a Drug Premises
Defendant appealed the sentence imposed following his guilty plea to drug and firearm offenses, challenging the imposition of a sentencing enhancement for maintaining a drug premises.
Where the evidentiary record supported the sentencing enhancement, the court affirmed defendant’s sentence.
Judgment is affirmed.
Drug Offenses
Motion to Suppress Evidence; Search Warrant
Defendant appealed his conviction for drug offenses, challenging the denial of his motion to suppress evidence. A police officer walked into a hotel as part of routine patrol and noticed the odor of marijuana in the front entrance. He then went door to door before detecting the odor of marijuana emanating from a specific room. Hotel staff provided the officer with the guest’s information; the officer recognized the guest as defendant from prior investigations. The officer accordingly applied for a search warrant, which was issued and executed the following morning. Police recovered thousands of fentanyl pills, over $15,000 in cash, and firearm parts. Although defendant moved to suppress the evidence, the district court ruled that the warrant was supported by probable cause and that the good-faith exception would apply to justify the search.
Where the smell of marijuana alone could provide probable cause for a search, narrowing the odor as most strongly coming from defendant’s room was sufficient to justify the warrant. Moreover, the scope of the warrant was not exceeded given the obviously incriminating nature of the items seized by police.
Judgment is affirmed.
Felon in Possession of Firearm
Armed Career Criminal Designation; Enhanced Sentence
Defendant appealed the enhanced sentence imposed by the district court after it designated him an armed career criminal following his guilty plea to begin a felon in possession of a firearm.
Where defendant’s prior convictions qualified him as an armed career criminal, there was no abuse of sentencing discretion.
Judgment is affirmed.
Firearm Offense
Appeal Waiver; Armed Career Criminal Designation
Defendant appealed the sentence imposed under the Armed Career Criminal Act following his guilty plea to a firearm offense pursuant to a plea agreement containing an appeal waiver, challenging the district court’s reliance on his prior residential burglary conviction as a predicate offense under the ACCA.
Where the appeal waiver was enforceable against defendant’s challenge, the court was constrained to dismiss the appeal.
Appeal is dismissed.
Possession of Ammunition by Unlawful Drug User
Withdrawal of Guilty Plea; Motion to Dismiss
Defendant appealed his conviction and sentence following his guilty plea. Defendant had unsuccessfully moved to withdraw his guilty plea and dismiss his indictment. Defendant challenged the denial of his motion. Defendant also challenged the district court’s sentencing determination.
Where there had been no intervening change in controlling law for defendant’s challenge to the constitutionality of his offense of conviction, there was no basis to withdraw his guilty plea. Furthermore, there was sufficient evidence to support a sentencing enhancement. Moreover, the court found no abuse of discretion in the district court’s weighing of the statutory sentencing factors.
Judgment is affirmed.
Possession with Intent to Distribute
Mitigating Role Reduction; Sufficiency of Evidence
Defendant appealed the sentence imposed for his conviction for possession with intent to distribute. Defendant argued that he was entitled to a further reduction in his sentence for his minor or mitigating role in the overall drug distribution enterprise, claiming that he was merely a low-level courier.
Where defendant failed to present evidence to show how his conduct compared to that of other participants in the drug distribution enterprise, there was no error in further reducing defendant’s offense level.
Judgment is affirmed.
Sexual Exploitation of Minors
Admission of Social Media Evidence; Sufficiency of Evidence
Defendant appealed his conviction for sex trafficking a minor and sexually exploiting a minor, arguing that the district court erred in admitting social media evidence and various witness testimony and challenging the sufficiency of the evidence.
Where the government presented evidence that defendant was holding the phone searched by investigators at the time of his arrest and that the phone had stored login information for the social media profiles, there was a sufficient basis to admit the evidence and related witness testimony of prior bad acts to show similar conduct to the current charges. Furthermore, there was no requirement for proof of a commercial sex act.
Judgment is affirmed.
Supervised Release
Revocation; Substantive Reasonableness of Sentence
Defendant challenged the substantive reasonableness of his sentence imposed following the revocation of his supervised release.
Where the district court sufficiently considered the statutory sentencing factors, there was no abuse of sentencing discretion.
Judgment is affirmed.
Employer-Employee
Discrimination
Dismissal; Lack of Support in Record
Plaintiff appealed the dismissal of her discrimination action against defendant, her former employer.
Where the record supported dismissal, the court found no basis for reversal.
Judgment is affirmed.
Medical Residency
Hostile Work Environment; Constructive Discharge
The parties cross-appealed the district court dismissal of their claims against one another. Plaintiff sued defendants, claiming he was compelled to resign due to a hostile work environment and that defendants engaged in conduct to prevent him from transferring to another medical residency program. Plaintiff asserted claims of breach of contract, tortious interference, fraudulent inducement and defamation. Defendants counterclaimed for violation of the Missouri Computer Tampering Act and sought attorneys’ fees. The district court denied the parties’ claims.
Where defendants had no obligation to supervise the residency program operated by plaintiff’s university and where the parties’ alleged oral agreement was barred by the statute of frauds, the district court correctly dismissed plaintiff’s claims. Furthermore, the tender of payment to defendants satisfied their request for compensatory damages, leaving no amount in controversy to support an award of attorneys’ fees.
Judgment is affirmed.
Religious Discrimination
Disability Discrimination; Vaccination Requirements
Plaintiff appealed the dismissal of his religious and disability discrimination complaint against defendant, his former employer, under Title VII, the Americans with Disabilities Act, the Religious Freedom Restoration Act and state law. The district court dismissed plaintiff’s complaint, concluding that he failed to plausibly plead religious beliefs that conflicted with defendant’s COVID-19 policy, which required either vaccination or weekly testing, and failed to allege that defendant regarded him as disabled due to his unvaccinated status.
Where plaintiff failed to explain how COVID-19 testing would intrude upon his body in a manner that violated his religious beliefs, he failed to state an adequate religious discrimination. Furthermore, plaintiff failed to exhaust his administrative remedies for his disability discrimination claim.
Judgment is affirmed.
Religious Discrimination
Wrongful Termination; COVID-19 Policy
Plaintiff appealed the dismissal of her action against defendant, her former employer, which alleged religious discrimination in violation of Title VII and the Minnesota Human Rights Act, and wrongful discharge in violation of Minnesota’s Refusal of Treatment statute. The district court dismissed the case, ruling that plaintiff had failed to plead an adverse employment action or plausibly allege religious beliefs that conflicted with defendant’s COVID-19 policy.
Where plaintiff adequately alleged religious beliefs that would preclude her ability to follow either the vaccination or testing options of defendant’s COVID-19 policy, she stated a prima facie Title VII and MHRA claim. However, the court agreed that Minnesota’s Refusal of Treatment statute did not create a private cause of action.
Judgment is affirmed in part and reversed and remanded in part.
Restrictive Covenants
Enforceability; Choice of Law
Plaintiffs appealed the district court’s grant of preliminary injunctive relief to defendant. After acquiring plaintiffs’ employer, defendant renegotiated employment contracts with plaintiffs that included noncompete and non-solicitation provisions. The covenants had choice of law and forum clauses selecting Texas law and the state court in Texas where defendant was headquartered. Plaintiffs later resigned from defendant’s Omaha office and joined a rival, taking customers with them. Plaintiffs filed suit to invalidate the restrictive covenants and obtain injunctive relief. Applying Nebraska law, the federal district court granted a preliminary injunction.
Where the district court applied the improper legal standard, the court was constrained to vacate the antisuit injunctions for application of the first-filed rule. The district court also erred in applying a state standard for granting the preliminary injunction rather than the federal standard.
Judgment is vacated and remanded.
Insurance
Construction Project
Liability Insurance; Coverage Dispute
Plaintiff appealed the grant of summary judgment to defendant. Plaintiff contracted a construction company to build an apartment complex, requiring the company to purchase insurance; the contractor obtained a policy from defendant, naming plaintiff as an additional insured. When a retaining wall failed during construction, plaintiff and the contractor submitted claims to defendant, which paid money to an escrow account and divided it between the parties. Plaintiff also asserted a claim against defendant for loss of rental income and soft costs arising from the delay in construction. Defendant denied the claim. Plaintiff filed suit, but the district court ruled that plaintiff was not entitled to payment.
Where the policy only provided a named insured coverage for loss of rental income and soft costs from construction delays, plaintiff was not entitled to that coverage as an additional named insured, which did not necessarily have the same rights and responsibilities as a named insured.
Judgment is affirmed.
Insurance Dispute
Removal; Adverse Summary Judgment
Plaintiff appealed the adverse summary judgment in a removed insurance dispute.
Where the record supported summary judgment for defendant, the court affirmed the district court’s ruling.
Judgment is affirmed.
Municipal
County Ordinances
Interstate Pipelines; Federal Preemption
Defendants appealed the grant of summary judgment to plaintiffs and the imposition of a permanent injunction against the enforcement of defendants’ county ordinances. Plaintiffs proposed to build an interstate pipeline to transport captured carbon dioxide; the pipeline would pass through defendants’ counties. In response, defendants passed ordinances imposing various setback, emergency response plan and local permit requirements. Plaintiff filed suit to enjoin the ordinances, arguing that they were preempted by the federal Pipeline Safety Act, which expressly preempted state safety standards, and the Iowa Utilities Commission which granted permits for new pipelines. Although defendants contended that their ordinances were not “safety standards,” the district court imposed a permanent injunction.
Where the text of the ordinances indicated that safety was the primary consideration for their adoption and the ordinances also adopted requirements above and beyond those required by the PHMSA, the ordinances were preempted by federal law, and were also preempted by Iowa law by imposing additional requirements such that the ordinances would prohibit activity otherwise permitted under state law.
Kelly, J., concurring in part and dissenting in part: “But I would conclude the setback requirements are location and routing standards that, though animated in part by safety considerations, do not have a “direct and substantial” effect on safety and thus do not amount to the type of standards that Congress expressly reserved for federal regulation.”
Judgment is affirmed.
Torts
Products Liability
Defective Design; Failure to Adequately Warn or Instruct
Plaintiff appealed the grant of summary judgment to defendant on plaintiff’s defective design and failure to warn/instruct claims relating to defendant’s artificial knee system, after plaintiff’s artificial knee debonded. Defendant successfully moved for summary judgment after excluding plaintiff’s expert’s opinion. On appeal, plaintiff argued that the district court erred in excluding her expert and dismissing her design defect claim because it was supported by another expert’s testimony.
Where plaintiff’s expert’s opinions were not subjected to typical scientific scrutiny through peer review or publication but instead were prepared solely for litigation and based on limited case studies, the district court correctly concluded that the opinion failed to meet the requirements of Rule 702 or Daubert. Furthermore, plaintiff did not previously assert that her other expert’s opinion could support a design defect claim.
Erickson, J., concurring: “I agree that the district court did not abuse its discretion when it excluded the expert opinions of Dr. Truman. As to the grant of summary judgment, as noted by the Court, the record also contains expert opinions from Dr. Breien, which DePuy did not seek to exclude, related to the ATTUNE knee replacement system and the cause of Sprafka’s injury. Further, the district court did not analyze Sprafka’s failure to warn claim when it dismissed her case. While the issue of whether summary judgment is appropriate is a close one for me on the record before us, I concur in the Court’s conclusion that these issues were not preserved for our review.”
Judgment is affirmed.