CIVIL: Social Security, Subjective Symptoms
Blakeman v. Astrue, No. 06-3577
Eighth Circuit Court of Appeals (Loken, C.J.), December 10, 2007
From the U.S. District Court for the District of South Dakota

AFFIRMED denial of benefits.
DISSENT: Bye, J.
2 majority, 1 dissent

FACTS: Plaintiff-appellant Blakeman applied for Social Security disability benefits based on fatigue caused by a genetic heart condition. He testified to having difficulty walking any distance, and to needing to lay down in the afternoon. The administrative law judge (ALJ) found that his subjective complaints of disabling fatigue were not credible, and that he was not disabled. The district court affirmed. Blakeman appeals.

LAW: 1. Fatigue is one of the subjective symptoms that must be considered when it is cited by a claimant as a cause of his disability and a medically determinable impairment could reasonably be expected to produce that symptom.
  2. Because questions of fact, including the credibility of a claimant's subjective testimony, are primarily for the Commissioner to decide, the reviewing court is limited to determining whether the ALJ considered all the evidence relevant to the complaints of disabling fatigue and whether that evidence contradicted his account sufficiently that the ALJ could discount his testimony as not entirely credible.
  3. The ALJ's finding discounting Blakeman's complaints of fatigue to the extent inconsistent with the findings of his RFC assessment is supported by good reasons and substantial evidence.
DISSENT (Bye, J.):
    1. The majority's focus on whether Blakeman's complaints of fatigue are credible to the extent consistent with the RFC findings begs the question, because the ALJ's credibility determination formed the basis for his RFC finding. The majority's analysis does nothing more than confirm that the ALJ discounted Blakeman's complaints of fatigue.
    2. If there are any inconsistencies in the evidence, as a whole, an ALJ is permitted to disbelieve a plaintiff's subjective complaints. The ALJ must list specific reasons for the finding on credibility, supported by the evidence in the case record.
    3. Here, the record as a whole corroborates Blakeman's subjective complaints in such a qualitative manner as to negate the inconsistencies pointed out by the ALJ. The decision of the district court should be reversed, and, because the record convincingly establishes disability, immediate benefits should be awarded.

CIVIL: Personal Jurisdiction
Coen v. Coen, No. 06-3812/07-1210
Eighth Circuit Court of Appeals (Riley, J.), December 10, 2007
From the U.S. District Court for the District of Minnesota

AFFIRMED dismissal for lack of jurisdiction.

FACTS: Edward Coen (who later assigned his interest in this action to plaintiff-appellant Deborah Coen) initiated a sale of his portion of the family business, located in Great Britain, to his brother, defendant-appellee Louis Coen, who lives in France. After five years of correspondence and one meeting in New York, over the course of which Edward changed his mind numerous times about when he wanted to sell, a price was agreed upon and the sale took place. Several years later, Deborah brought this action for fraud. The family defendants reside in France, and the trustee defendants reside in England and France. They moved to dismiss for lack of personal jurisdiction, and the district court granted the motion. Deborah appeals.

LAW: 1. Dismissal for lack of personal jurisdiction is reviewed de novo. The nonmoving party needs only make a prima facie showing of jurisdiction. If jurisdiction is controverted, the plaintiff has the burden of proving facts supporting personal jurisdiction.
  2. A federal court may assume jurisdiction over foreign defendants only to the extent permitted by the forum's long-arm statute and by the Due Process Clause. Minnesota's long-arm statute confers jurisdiction to the fullest extent permitted by the Due Process Clause.
  3. The Due Process Clause requires minimum contacts between the nonresident defendant and the forum state before the court may exercise jurisdiction over the defendant. Sufficient contacts exist when the defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there, and when maintenance of the suit does not offend traditional notions of fair play and substantial justice.
  4. 'Reasonable anticipation' means there must be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protection of its laws.
  5. There is a five-part test for measuring minimum contacts: (1) the nature and quality of the contacts with the forum state; (2) the quantity of those contacts; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) the convenience of the parties. With respect to the third factor, there is a distinction between general and specific jurisdiction. Specific jurisdiction is that which arises from or is related to a defendant's actions within the forum state; general jurisdiction refers to the power of a state to adjudicate any cause of action involving a particular defendant, regardless of where the cause of action arose.
  6. In considering specific jurisdiction, the court looks at the nature and quality of the contacts, and their source and connection to the cause of action. The only relevant contact here was the correspondence between Edward and Louis, which Edward initiated. Although Minnesota has an interest in providing a forum to its residents, it would be substantially inconvenient and extremely burdensome to require all defendants and their witnesses to travel from Europe to Minnesota.
  7. The effects' test allows the assertion of personal jurisdiction over non-resident defendants whose acts are performed for the very purpose of having their consequence felt in the forum state.
  8. The facts do not support the exercise of personal jurisdiction over the defendants. The district court is affirmed.

CIVIL: Covenants Not to Compete
Guardian Fiberglass, Inc. v. Whit Davis Lumber Co., No. 06-3896
Eighth Circuit Court of Appeals (Smith, J.), December 12, 2007
From the U.S. District Court for the Eastern District of Arkansas

This action was brought in diversity and the court applies Michigan substantive law.

AFFIRMED grant of summary judgment to defendant.

FACTS: Defendant-appellee Whit Davis Lumber entered into an agreement with plaintiff-appellant Guardian Fiberglass, under which it would sell and install Guardian's insulation exclusively. Prior to the agreement, Whit Davis Lumber did not install insulation. Guardian provided information and training regarding installation. The agreement contained a covenant not to compete, restricting Whit Davis from providing installation services for two years if it terminated the agreement. The agreement also contained a choice of law provision that declared Michigan law would govern. After Whit Davis Lumber began selling a competitor's product, Guardian refused to sell any more product to it, sued for breach of contract, and sought enforcement of the non-compete covenant. Whit Davis Lumber moved for, and was granted, partial summary judgment declaring the covenant invalid. Guardian appeals.

LAW: 1. Federal district courts sitting in diversity must apply the forum state's substantive law, including its conflict of law rules. Arkansas law thus applies. Under Arkansas law, choice of law provisions are honored as long as the law selected is reasonably related to the transaction and does not violate a fundamental public policy of the state. Therefore Michigan law governs here.
  2. The grant of summary judgment is reviewed de novo. Summary judgment is appropriate when a party can demonstrate that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. On review, the evidence is considered in the light most favorable to the nonmoving party, and all reasonable inferences are drawn in its favor.
  3. Under Michigan law, a covenant not to compete will be upheld provided that the covenant is reasonable. To be reasonable, the covenant must protect a legitimate business interest, and the duration, geographic area, and scope must be reasonable.
  4. Guardian's business interest justifying the covenant must be greater than merely preventing competition. Whether a party has a legitimate business interest is a question of law to be decided by the court.
  5. Covenants not to compete commonly appear in employment contracts, sales of businesses, and franchise agreements. They are generally justified as effective means for: (1) protecting goodwill in a business that was recently sold; (2) protecting a franchisor's goodwill in the franchise; or (3) protecting an employer from unfair competition from a previous employee.
  6. A legitimate business interest can be demonstrated by a showing that the covenant is necessary to protect the goodwill of a business or to prevent unfair competition. Guardian cannot show that the covenant here serves either purpose, therefore the district court did not err in granting summary judgment.

CRIMINAL (Immigration): Asylum, Credibility, Disclosure of Information
Averianova v. Mukasey, No. 06-3717
Averianova v. Mukasey, No. 06-3718
Eighth Circuit Court of Appeals (Gruender, J.), December 10, 2007
From the Board of Immigration Appeals

DENIED petition for review.

FACTS: Petitioners Antonina and Oksana Averianova are a mother and daughter from Uzbekistan seeking asylum because of alleged persecution on account of their Jewish ethnicity and religious beliefs. They submitted various documents in support of their petition, but an INS investigation -- including obtaining photographs of original documents in Uzbekistan -- revealed that many of the documents were forgeries. The immigration judge (IJ) found that the Averianovas had submitted false documents, and without credible proof of their Jewish ethnicity their asylum claims failed. The Board of Immigration Appeals (BIA) adopted and affirmed the IJ's determination. The Averianovas petition for review.

LAW: 1. When the BIA adopts the IJ's decision and adds its own reasoning, both decisions are reviewed. The BIA's factual findings are reviewed for substantial evidence and its legal determinations de novo. The BIA's decision can be reversed only if the evidence was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.
  2. The Attorney General has discretion to grant asylum to a refugee, who is any person outside the country of their nationality and who is unable or unwilling to return to that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The applicant can establish a well-founded fear of future persecution by showing that she has a subjective fear of persecution and that credible, direct and specific evidence establishes that a reasonable person in the applicant's situation would fear persecution.
  3. An applicant bears the burden of satisfying the IJ that her testimony is credible, is persuasive and refers to specific facts sufficient to demonstrate that the applicant is a refugee. 8 U.S.C. § 1158(b)(1)(B)(ii). A credibility determination is a finding of fact, and it should be accepted unless any reasonable adjudicator would be compelled to conclude to the contrary.
  4. The combination of an adverse credibility finding and a lack of corroborating evidence for the claim of persecution means that the applicant's claim fails regardless of the reason for the alleged persecution. An IJ may base an adverse credibility determination upon submission of fraudulent documents if the petitioner fails to offer a legitimate explanation for the suspected fraud.
  5. The Averianovas do not offer sufficient corroborating evidence that they suffered past persecution or that they have a well-founded fear of future persecution.
  6. Courts generally accord government records and official conduct a presumption of legitimacy.
  7. Information contained in or pertaining to any asylum application is not to be disclosed without the written consent of the applicant. 8 C.F.R. § 208.6(a). There is an exception that allows the INS to reveal information to government officials who need to examine an asylum application.
  8. Seeking the originals of the Uzbek documents was not a breach of confidentiality because simply requesting access to birth records does not disclose any information in an asylum application.
  9. The INS has interpreted 8 C.F.R. § 208.6 to mean that there is a disclosure that results in a breach of confidentiality only if the disclosure allows a third party to link the identity of the applicant to a request for asylum. If a disclosure gives rise to a reasonable inference that the applicant has applied for asylum, an applicant may have a new and independent basis for an asylum claim.
  10. To the extent there was any disclosures, they do not give rise to a reasonable inference that the Averianovas had applied for asylum.
  11. To establish a claim for withholding of removal under 8 U.S.C. § 1231(b)(3), an applicant must demonstrate a clear probability of persecution, which is a more difficult standard to meet than demonstrating a well-founded fear of future persecution. Because the Averianovas did not meet the burden of proof for their asylum claims, they also fail to meet the higher burden of proof required for withholding of removal.

CRIMINAL (Immigration): Reopening Proceeding, Changed Country Conditions
Alemu v. Mukasey, No. 06-3309
Eighth Circuit Court of Appeals (Gibson, J.), December 11, 2007
From the Board of Immigration Appeals

DENIED petition for review.

FACTS: Petitioner Alemu is a native and citizen of Ethiopia. Her application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) was denied by the immigration judge (IJ). The Board of Immigration Appeals (BIA) affirmed, and the Eighth Circuit denied review. Alemu filed a motion to reopen, alleging that an academic article on the health effects of torture, which was based in part on interviews with Ethiopian refugees, constituted new evidence. The BIA denied the motion to reopen. Alemu petitions for review.

LAW: 1. The BIA's denial of a motion to reopen is reviewed de novo. The discretion in deciding such motions is broad, since motions to reopen are disfavored because they undermine the government's legitimate interest in finality, which is heightened in removal proceedings where every delay works to the advantage of the deportable alien. The BIA abuses its discretion where it gives no rational explanation for its decision; departs from its established policies without explanation; relies on impermissible factors or legal error; or ignores or distorts the record evidence.
  2. Motions to reopen removal proceedings are governed by 8 U.S.C. § 1229a(c)(7) and 8 C.F.R. § 1003.2. An alien may file one motion to reopen, which must state new facts that will be proven if the motion is granted and which must be supported with substantiating evidentiary material. Such motions must be filed within 90 days of the final administrative order unless it falls within an exception. One such exception is a change in country conditions arising in the country of nationality, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.
  3. The BIA's conclusion that the academic article did not show changed country conditions was a reasonable interpretation of the record and did not distort or ignore the evidence.

CRIMINAL: Sentencing Variance
U.S. v. Jones, No. 07-1212
Eighth Circuit Court of Appeals (Gruender, J.), December 11, 2007
From the U.S. District Court for the District of South Dakota

AFFIRMED sentence.

FACTS: Defendant-appellant Jones pleaded guilty to intentionally damaging Oglala Sioux Tribe property. The government recommended a two-level acceptance of responsibility reduction, but while Jones was in jail awaiting sentencing he assaulted officers numerous times and engaged in destructive behavior. The final PSR recommended that the district court deny the acceptance of responsibility reduction based on Jones's conduct. The district court not only denied the reduction, it also imposed an upward variance. Jones appeals.

LAW: 1. A challenge to the reasonableness of a sentence is reviewed for abuse of discretion. A district court abuses its discretion when it fails to consider a relevant factor, gives significant weight to an irrelevant or improper factor, or considers only appropriate factors but nevertheless commits a clear error of judgment by arriving at a sentence that lies outside the limited range of choice dictated by the facts of the case.
  2. A four-level variance is significant and at the upper bounds of what the Sentencing Commission envisioned for most adjustments for aggravating and mitigating circumstances, but it is not necessarily extraordinary.
  3. District courts are normally discouraged from granting significant variances based on facts or factors that have already been accounted for in the advisory sentencing guidelines. However, variances may be allowed on factors already taken into account, particularly when a district court applies broader § 3553(a) considerations in granting the variance. A district court may impose an upward variance based on facts already taken into account where the advisory guidelines do not fully account for those facts.
  4. The denial of the acceptance of responsibility reduction did not fully account for the extent of Jones's jailhouse misconduct. The district court did not err in varying upwards.
  5. A district court can decline to depart from the advisory sentencing guidelines range but still impose a variance under § 3553(a).
  6. A sentencing court need not categorically rehearse each of the § 3553(a) factors on the record when it imposes a sentence as long as it is clear that they were considered. If a district court adverts some of the considerations contained in § 3553(a), the reviewing court will be satisfied that the sentencing court was aware of the entire contents of the relevant statute.

CRIMINAL: Sentencing Guidelines, Enhancement, Use of Website
U.S. v. Hanny, No. 07-1010
Eighth Circuit Court of Appeals (Smith, J.), December 12, 2007
From the U.S. District Court for the Northern District of Iowa

AFFIRMED sentence.

FACTS: Defendant-appellant Hanny began working for internet pharmacies after retiring from his medical practice. He would approve prescription sales based solely on a questionnaire submitted by the customer. He pleaded guilty to conspiracy to distribute and one count of engaging in an illegal monetary transaction. The district court applied a two-level enhancement for distributing a controlled substance through mass-marketing by means of an interactive computer service. Hanny appeals.

LAW: 1. The district court's interpretation and application of the Sentencing Guidelines is reviewed de novo.
  2. The Guidelines require a two-level enhancement if the defendant's crime involved the distribution of any controlled substance though mass-marketing by means of an interactive computer service. U.S.S.G. § 2D1.1(b)(5). Mass marketing by means of interactive computer service is defined as the solicitation, by means of an interactive computer service, of a large number of persons to induce those persons to purchase a controlled substance. U.S.S.G. § 2D1.1(b)(5), cmt. n.22. An interactive computer service is any information service, system or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system offered by libraries or educational institutions. U.S.S.G. § 2D1.1(b)(5), cmt. n.22; 47 U.S.C. § 230(f)(2).
  3. The mere use of a website is not sufficient to trigger this enhancement. However, the operation of an interactive website devoted to the illegal sale of controlled substances that is freely accessible to all members of the public is sufficiently enticing to constitute solicitation. The district court did not err in applying the enhancement here.

CRIMINAL: Use of Firearm in Drug Crime
Watson v. U.S., No. 06-571, 552 U.S. ___
United States Supreme Court (Souter, J.), December 10, 2007
On Certiorari to the U.S. Court of Appeals for the Fifth Circuit

REVERSED and REMANDED conviction.
CONCUR: Ginsburg, J.
8 majority, 1 concur

FACTS: Defendant-petitioner Watson pleaded guilty to, among other things, using a firearm during and in relation to a drug trafficking crime, but reserved his right to challenge the conviction. He had traded prescription drugs to a government informer for a pistol. The Court of Appeals affirmed the conviction. The Court granted certiorari to Watson.

LAW: 1. There is a statutory minimum sentence for a defendant who, during an in relation to any crime of violence or drug trafficking crime uses or carries a firearm. 18 U.S.C. § 924(c)(1)(A). The term 'uses' is not defined in the statute.
  2. In Smith v. U.S., 508 U.S. 223 (1993), the Court held that a defendant who trades a firearm for drugs 'uses' it during and in relation to a drug trafficking offense within the meaning of § 924(c)(1). The Court relied on the ordinary meaning of the word 'use,' finding that it was reasonable and normal to say the defendant 'used' the firearm to obtain the drugs.
  3. In Bailey v. U.S., 516 U.S. 137 (1995), the Court held that § 924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense.
  4. The Court holds that a person who trades drugs for a gun does not 'use' a firearm during and in relation to a drug trafficking crime within the meaning of § 924(c)(1)(A).
CONCUR (Ginsburg, J.):
    1. I concur in the result reached in this case, but would overrule Smith because it makes little sense to distinguish between trading a gun for drugs and trading drugs for a gun.
    2. I would read the word 'use' to mean 'use as a weapon,' not use in a bartering transaction.

CRIMINAL: Sentencing Guidelines, Crack vs. Powder Cocaine
Kimbrough v. U.S., No. 06-6330, 552 U.S. ___
United States Supreme Court (Ginsburg, J.), December 10, 2007
On Certiorari to the U.S. Court of Appeals for the Fourth Circuit

REVERSED and REMANDED conviction.
CONCUR: Scalia, J.
DISSENT: Thomas and Alito, JJ.
6 majority, 1 concur, 2 dissent

FACTS: Defendant-petitioner Kimbrough pleaded guilty to charges involving the possession with intent to deliver both powder and crack cocaine. The district court found that the Guidelines with regard to crack cocaine were too harsh, and concluded that the statutory minimum sentence was long enough. The Circuit Court vacated the sentence on appeal, finding that a sentence outside the Guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder offenses. The Court granted certiorari to Kimbrough.

LAW: 1. The Court's opinion in U.S. v. Booker, 543 U.S. 220 (2005), made the Sentencing Guidelines advisory, as opposed to mandatory. Reasonableness is the standard controlling appellate review of the sentences imposed by district courts.
  2. A drug trafficker dealing crack cocaine is subject to the same sentence as one dealing 100 times more powder cocaine.
  3. The Court holds that, under Booker, the cocaine Guidelines are advisory only, and the Court of Appeals erred in holding the crack/powder disparity was mandatory. A district judge must include the Guidelines range in the array of factors warranting consideration. The judge may determine, however, that, in the particular case, a within-Guidelines sentence is greater than necessary to serve the objectives of sentencing. In making that determination, the judge may consider the disparity between the Guidelines' treatment of crack and powder cocaine offenses.
CONCUR (Scalia, J.):
    1. The district court is free to make its own reasonable application of the § 3553(a) factors, and to reject after due consideration the advice of the Guidelines.
    2. If the Guidelines were mandatory, effectively increasing the sentences in most cases based on facts found by the judge rather than the jury, it would be a violation of the Sixth Amendment.
DISSENT (Thomas, J.):
    1. I disagree with the remedy fashioned in Booker. Requiring the facts considered by the judge at sentencing to be submitted to the jury would remedy any Sixth Amendment Violation.
    2. The statutes make the Guidelines mandatory, and I think it is best to apply the statute as written. Applying the statutes as written, the district court erred in departing below the mandatory guidelines range.
DISSENT (Alito, J.):
    1. I would hold that, under Booker, a district judge is still required to give significant weight to the policy decisions embodied in the Guidelines. I would not draw a distinction between the Guideline at issue here and other Guidelines.

CRIMINAL: Sentencing Guidelines, Standard of Review
Gall v. U.S., No. 06-7949, 552 U.S. ___
United States Supreme Court (Stevens, J.), December 10, 2007
On Certiorari to the U.S. Court of Appeals for the Eighth Circuit

REVERSED and REMANDED conviction.
CONCUR: Scalia and Souter, JJ.
DISSENT: Thomas and Alito, JJ.
5 majority, 2 concur, 2 dissent

FACTS: Defendant-petitioner Gall was involved in a conspiracy to distribute ecstasy. He withdrew from the conspiracy after seven months, and has neither sold nor used illegal drugs since, and has worked steadily. He pleaded guilty to his participation. The district court sentenced Gall to 36 months probation instead of the recommended 30 to 37 months in prison, based on his voluntary withdrawal from the conspiracy and post-offense conduct. The Eight Circuit reversed on the grounds that a sentence outside the Guidelines range must be supported by extraordinary circumstances. The Court granted certiorari to Gall.

LAW: 1. When a district judge's discretionary decision in a particular case accords with the sentence the U.S. Sentencing Commission deems appropriate, the court of appeals may presume the sentence is reasonable. Rita v. U.S., 551 U.S. ___ (2007).
  2. The Court holds that, while the extent of the difference between a particular sentence and the recommended Guidelines range is surely relevant, courts of appeals must review all sentences -- whether inside, just outside or significantly outside the Guidelines range -- under a deferential abuse-of-discretion standard. The sentence imposed in this case was reasonable.
CONCUR (Scalia, J.):
    1. I continue to believe that the substantive-reasonableness review is inherently flawed, but give stare decisis effect to the holding of Rita.
    2. The highly deferential standard adopted by the Court in this decision will result in far fewer unconstitutional sentences than the proportionality standard applied by the Eighth Circuit. The door is still open, as well, to 'as-applied' constitutional challenges.
CONCUR (Souter, J.):
    1. I think the best resolution of the tension between substantial consistency throughout the system and the right of jury trial would be a new act of Congress, reestablishing a statutory system of mandatory guidelines, but providing for jury findings of all facts necessary to set the upper range of sentencing discretion.
DISSENT (Thomas, J.):
    1. I would affirm the Court of Appeals for the reasons set forth in my dissent to Kimbrough v. U.S., 552 U.S. ____ (2007).
DISSENT (Alito, J.):
    1. A district court must give the policy decisions that are embodied in the Sentencing Guidelines at least some significant weight in making sentencing decisions.
    2. I believe the Eighth Circuit correctly interpreted and applied the standards set out in Booker.