Administrative Law

Disability Benefits

Termination of Benefits

Sufficiency of Evidence

Plaintiff appealed the district court’s order affirming an ALJ’s termination of plaintiff’s disability benefits. The ALJ concluded that while plaintiff was disabled from February 2014 through December 2016 due to her residual functional capacity rendering her unable to work, plaintiff’s disability ended that December due to improvement in her medical condition that allowed her to perform other types of work.

Where the record did not support the ALJ’s conclusion that plaintiff’s pain improved to the point that she would no longer miss multiple days from work per month, the ALJ erroneously determined that plaintiff’s disability had ended.

Judgment is vacated, case remanded.

Koch v. Kijakazi (MLW No. 77037/Case No. 19-3421 – 18 pages) (U.S. Court of Appeals, 8th Circuit, Smith, J.) Appealed from U.S. District Court, Western District of Arkansas, Bryant, J. (Nicholas Lynn Coleman,

of Bentonville, AR for appellant) (Jennifer J. Selby, of Dallas, TX for appellee)

https://ecf.ca8.uscourts.gov/opndir/21/07/193421P.pdf

Bankruptcy

Chapter 12

Plan Confirmation

Dispute Over Value of Secured Claim

Bank appealed from the bankruptcy court’s approval of debtor’s Chapter 12 plan. The bankruptcy court approved the plan over bank’s objection, accepting debtor’s valuation of bank’s collateral as establishing the amount of its secured claim, and disallowing bank’s unsecured claim where it had failed to file proof of claim.

Where bankruptcy court failed to hold an evidentiary hearing despite parties’ good faith dispute over the value of bank’s secured claim, the bankruptcy court erred in accepting debtor’s valuation based on the minor difference in the parties’ positions.

Judgment is vacated and remanded.

In re: Adam R. Schiller (MLW No. 77043/Case No. 21-6001 – 10 pages) (U.S. Court of Appeals, 8th Circuit, Nail, J.) Appealed from U.S. Bankruptcy Court, District of Minnesota.

https://ecf.ca8.uscourts.gov/opndir/21/07/216001P.pdf

Civil Rights

42 U.S.C. §1983

Sexual Harassment by Fellow Inmate

Disciplinary Violation

Plaintiff appealed from the dismissal of his Section 1983 complaint alleged that he was subject to a disciplinary violation after reporting sexual harassment by a fellow inmate.

Where plaintiff alleged that defendant imposed the disciplinary violation to intimidate plaintiff from pursuing further harassment complaints, plaintiff had plausibly stated a First Amendment violation claim.

Judgment is affirmed in part, reversed and remanded in part.

Thornsberry v. Barden (MLW No. 77076/Case No. 21-2029 – 4 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Arkansas.

https://ecf.ca8.uscourts.gov/opndir/21/07/212029U.pdf

42 U.S.C. §1983

Unlawful Seizure

Mental Health Evaluation

On remand from the Supreme Court, plaintiff appealed from the district court’s grant of summary judgment to defendants. Plaintiff had filed suit against police officers and the City of Minneapolis after the officers entered her home, seized her, and transported her for a mental health evaluation, all without a warrant, after a series of interactions between plaintiff and the police department. The district court concluded that the officers were entitled to qualified immunity

Where the officers entered plaintiff’s home pursuant to the community-caretaking exception and detained her upon a reasonable belief that plaintiff was suffering a mental health emergency, the district court properly afforded the officers qualified immunity.

Judgment is affirmed.

Graham v. Barnette (MLW No. 77045/Case No. 19-2512 – 26 pages) (U.S. Court of Appeals, 8th Circuit, Gruender, J.) Appealed from U.S. District Court, District of Minnesota, Ericksen, J. (Jordan S. Kushner, of Minneapolis, MN for appellant) (Brian Scott Carter, of Minneapolis, MN. and Heather Passe Robertson, of Minneapolis, MN for appellees)

https://ecf.ca8.uscourts.gov/opndir/21/07/192512P.pdf

Incarcerated Individual

Denial of Medication

Sovereign Immunity

Defendant appealed from the denial of its motion to dismiss plaintiffs’ wrongful death claim alleging that their son died after being denied necessary medication while incarcerated. The district court rejected defendant’s invocation of sovereign immunity, finding that immunity waived because defendant had purchased liability insurance to cover wrongful death claims.

Where defendant had paid its third-party inmate health services contractor money to procure liability insurance, that action was sufficient under state law to constitute a waiver of sovereign immunity.

Stras, J., dissenting: “The question in this case is whether, through this arrangement, the County “purchase[d]” the insurance…There is more than one reasonable answer to that question, and under Missouri’s strict construction canon, we must adopt the one that preserves immunity.”

Judgment is affirmed.

Davis v. Buchanan County (MLW No. 77066/Case No. 20-1834 – 8 pages) (U.S. Court of Appeals, 8th Circuit, Gruender, J.) Appealed from U.S. District Court, Western District of Missouri, Laughrey, J. (Kenneth Joseph Berra, of Overland Park, KS for appellant) (William W. Bird, of Liberty, for appellee)

https://ecf.ca8.uscourts.gov/opndir/21/07/201834P.pdf

Constitutional Law

First Amendment

University Policies

Selective Enforcement against Religious Groups

Defendants appealed from the district court’s grant of summary judgment to plaintiff. Defendants targeted religious student groups for discriminatory enforcement of a university Human Rights Policy. After a district court ordered the university to stop selectively enforcing the policy against one religious group, the university subsequently deregistered plaintiff, another group. Plaintiff filed suit, and the district court ruled defendants had violated plaintiff’s First Amendment rights. On appeal, defendants argued they were entitled to qualified immunity because the law was not clearly established.

Where the university’s policy enforcement effectively constituted viewpoint discrimination, that resulted in violation of plaintiff’s clearly-established First Amendment rights, precluding defendants from enjoying qualified immunity.

Judgment is affirmed.

InterVarsity Christian Fellowship/USA v. University of Iowa (MLW No. 77046/Case No. 19-3389 – 17 pages) (U.S. Court of Appeals, 8th Circuit, Kobes, J.) Appealed from U.S. District Court, Southern District of Iowa, Rose, J. (Jeffrey S. Thompson, Solicitor General, of Des Moines, IA for appellants; George A. Carroll, AAG, of Des Moines, IA on brief) (Daniel H. Blomberg, of Washington, DC for appellees; William R. Gustoff, of Cedar Rapids, IA., Eric S. Baxter, of Washington, DC., Christopher C. Hagenow, of Cedar Rapids, IA on brief)

https://ecf.ca8.uscourts.gov/opndir/21/07/193389P.pdf

Contracts

Inmate Communications System

Contractual Dispute

Forum Selection Clause

Plaintiff filed suit against defendant county following a dispute over the parties’ contract, under which plaintiff provided inmate communications services to defendant’s detention center. The contract included a forum selection clause. Defendant successfully moved to dismiss plaintiff’s action based on the forum selection clause, which the district court held precluded plaintiff from filing suit in federal court.

Where the forum selection clause required any litigation to be brought in “Arkansas courts,” the court interpreted that phrase to mean specifically the courts established by the state government, not all courts found within state borders.

Judgment is affirmed.

Smart Communications Collier Inc. v. Pope County Sheriff’s Office (MLW No. 77070/Case No. 20-2496 – 7 pages) (U.S. Court of Appeals, 8th Circuit, Smith, J.) Appealed from U.S. District Court, Eastern District of Arkansas, Marshall, J. (Darby Vincent Doan, of Texarkana, TX for appellant; Jennifer H. Doan, of Texarkana, TX., Robert Cannedy Dalby, of Rogers, AR., Mariah Leigh Hornok, of Texarkana, TX on brief) (Jason E Owens, of Conway, AR for appellee)

https://ecf.ca8.uscourts.gov/opndir/21/07/202496P.pdf

Criminal Law

Assault of a Federal Officer

Revocation of Supervised Release

Substantive Reasonableness of Sentence

Defendant appealed from the prison sentence imposed after defendant violated the conditions of his supervised release imposed for his conviction for assaulting a federal officer. On appeal, defendant challenged the substantive reasonableness of his sentence.

Where the district court noted the danger defendant posed due to his intoxication and his prior failure to complete court-ordered substance abuse treatment, it did not abuse its discretion in sentencing defendant to prison instead of his request for placement in a treatment facility.

Judgment is affirmed.

U.S. v. Flying Horse (MLW No. 77073/Case No. 20-2832 – 3 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, District of South Dakota, Kornmann, J. (Molly C. Quinn, AFPD, of Sioux Falls, SD appellant) (Kirsten E. Jasper, AUSA for appellee)

https://ecf.ca8.uscourts.gov/opndir/21/07/202832P.pdf

Bank Robbery

Upward Sentencing Variance

Substantive Reasonableness of Sentence

Defendant pled guilty to robbing several banks over a period of four months. After calculating an advisory sentencing guidelines range of 92 to 115 months, the district court found the range inadequate and varied upward to sentence defendant to 135 months. On appeal, defendant argued that his sentence was substantively unreasonable.

Where the advisory guideline factors could also be used to support an upward variance and where the district court was presumed to consider all factors brought to its attention, the district court did not abuse its discretion in deciding to impose an upward variance.

Judgment is affirmed.

U.S. v. Schultz (MLW No. 77040/Case No. 20-2419 – 4 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Southern District of Iowa, Jarvey, J.

https://ecf.ca8.uscourts.gov/opndir/21/07/202419U.pdf

Child Pornography

Knowing Receipt

Reasonableness of Sentence

Defendant appealed from his sentence and conviction for receipt of child pornography. Defendant argued that the government failed to prove defendant knowingly received child pornography. Defendant further challenged the reasonableness of his sentence.

Where there was sufficient evidence to support the jury’s verdict and where the district court considered all the statutory sentencing factors and imposed a within-guidelines sentence, the court affirmed.

Judgment is affirmed.

U.S. v. Barraza (MLW No. 77074/Case No. 20-2948 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Western District of Missouri, Ketchmark, J.

https://ecf.ca8.uscourts.gov/opndir/21/07/202948U.pdf

Child Pornography

Motion to Suppress

Search Outside Scope of Warrant

Defendant appealed from his guilty plea conviction for possession of and receiving child pornography, after the district court denied his motion to suppress images recovered from his cell phone.

Although the search warrant did not specifically list defendant’s cell phone, police had a good-faith basis to believe the cell phone fell within the scope of “storage devices, computers, and computer systems.”

Judgment is affirmed.

U.S. v. Pospisil (MLW No. 77068/Case No. 20-2375 – 4 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Missouri, Fleissig, J.

https://ecf.ca8.uscourts.gov/opndir/21/07/202375U.pdf

Conspiracy to Distribute

Drug Quantity Calculation

Substantive Reasonableness of Sentence

Defendant appealed from his conviction for conspiracy and distribution of heroin, for which the district court imposed a 120-month term of imprisonment followed by five years of supervised release. On appeal, defendant challenged the district court’s drug quantity calculation and the substantive reasonableness of his sentence.

Where the district court could impose a sentence on a drug quantity greater than that found by the jury, defendant’s sentence was substantively reasonable.

Judgment is affirmed.

U.S. v. Horton (MLW No. 77071/Case No. 20-2821 – 3 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Northern District of Iowa, Williams, J.

https://ecf.ca8.uscourts.gov/opndir/21/07/202821U.pdf

Conspiracy to Distribute

Exclusion of Controlled Buy Recordings

Theory-of-Defense Jury Instruction

Defendant appealed from his drug distribution and conspiracy conviction, arguing that the district court erred in denying his motion to exclude video records of two controlled buys and in denying his proffered theory-of-defense jury instruction.

Where there was sufficient evidence to support finding that the video recordings had not been altered, the district court properly rejected defendant’s motion to exclude on reliability grounds.

Judgment is affirmed.

U.S. v. Logwood (MLW No. 77038/Case No. 20-2462 – 5 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Arkansas, Miller, J.

https://ecf.ca8.uscourts.gov/opndir/21/07/202462U.pdf

Conspiracy to Distribute

Judgment of Acquittal

Sufficiency of Evidence

Defendant appealed from his conviction for conspiracy to distribute methamphetamine, challenging the district court’s denial of his motion for judgment of acquittal.

Where the government presented multiple witnesses who testified to working with defendant on various tasks involved in drug distribution, there was sufficient testimony evidence, if believed by the jury, to convict defendant on his conspiracy charge.

Judgment is affirmed.

U.S. v. Smith (MLW No. 77065/Case No. 20-1245 – 10 pages) (U.S. Court of Appeals, 8th Circuit, Kobes, J.) Appealed from U.S. District Court, District of South Dakota, Lange, J. (John Stephen Rusch, of Rapid City, SD for appellant) (Cameron J. Cook, AUSA, of Pierre, SD appellee)

https://ecf.ca8.uscourts.gov/opndir/21/07/201245P.pdf

Drug and Firearm Offenses

Guilty Plea

Appeal Waiver

Defendant appealed from conviction on drug and firearm offenses after he pled guilty pursuant to a plea agreement that included an appeal waiver. Among other issues, defendant challenged the factual basis for his firearms conviction.

Where defendant established a sufficient factual basis for his guilty plea to the firearms charge, the court dismissed defendant’s appeal where his remaining issues fell within the scope of the appeal waiver.

Judgment is affirmed.

U.S. v. Harris (MLW No. 77069/Case No. 20-2427 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Western District of Missouri, Bough, J.

https://ecf.ca8.uscourts.gov/opndir/21/07/202427U.pdf

Drug Conspiracy

Motion to Withdraw Guilty Plea

Ineffective Assistance of Counsel

Defendant appealed from his guilty plea conviction for drug conspiracy, arguing that the district court erred or abused its discretion in denying his motion to withdraw his guilty plea because his plea was not knowing or voluntary and because his prior counsel provided ineffective representation.

Where defendant’s under-oath statements at his plea hearing contradicted the factual basis upon which defendant sought to withdraw his plea, the district court did not err in denying the motion to withdraw the plea.

Judgment is affirmed.

U.S. v. Mitchell (MLW No. 77075/Case No. 20-3512 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, District of North Dakota, Welte, J.

https://ecf.ca8.uscourts.gov/opndir/21/07/203512U.pdf

Felon in Possession of Firearm

Appeal Waiver

Below-Statutory Maximum Sentence

Defendant pled guilty to being a felon in possession of a firearm. Under his plea agreement, defendant waived appeal of his sentence unless it exceeded the statutory maximum. The district court imposed a sentence below the statutory maximum. On appeal, defendant argued that ineffective assistance of counsel led to a substantively unreasonable sentence.

Where defendant’s claims fell squarely within the scope of his appeal waiver and an ineffective-assistance claim was properly brought in a collateral proceeding, the court dismissed the appeal.

Appeal is dismissed.

U.S. v. Johnson (MLW No. 77050/Case No. 20-2604 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Western District of Missouri, Kays, J.

https://ecf.ca8.uscourts.gov/opndir/21/07/202604U.pdf

Felon in Possession of Firearm

Upward Sentencing Variance

Substantive Reasonableness of Sentence

Defendant pled guilty to being a felon in possession of a firearm. Based on defendant’s extensive criminal history, the district court imposed an upward variance from the advisory guidelines range to impose the maximum sentence allowed by law. On appeal, defendant argued that his sentence was substantively unreasonable.

Where there was no evidence that the district court failed to consider any of the statutory sentencing factors and the district court could again cite defendant’s criminal history for an upward variance, there was no abuse of discretion.

Judgment is affirmed.

U.S. v. Goodloe (MLW No. 77049/Case No. 20-2753 – 4 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Arkansas, Miller, J.

https://ecf.ca8.uscourts.gov/opndir/21/07/202753U.pdf

Possession of Firearm by Prohibited Person

Motion to Suppress Evidence

Warrantless Entry into Residence

On remand from the Supreme Court, defendant, charged with possession of a firearm by a prohibited person, argued that the district court denied his motion to suppress evidence on grounds that police had made a warrantless entry into a house, in violation of the Fourth Amendment.

Where police were responding to a domestic disturbance and observed signs of a physical assault and minor children in distress, officers were objectively justified in entering the home to protect those inside and they also had a reasonable basis to believe there was a firearm and search for it to ensure everyone’s safety.

Judgment is affirmed.

U.S. v. Sanders (MLW No. 77044/Case No. 19-1497 – 10 pages) (U.S. Court of Appeals, 8th Circuit, Erickson, J.) Appealed from U.S. District Court, Northern District of Iowa, Reade, J. (Nova D. Janssen, AFPD, of Des Moines, IA for appellant) (Emily K. Nydle, AUSA, of Cedar Rapids, IA for appellee)

https://ecf.ca8.uscourts.gov/opndir/21/07/191497P.pdf

Possession with Intent to Distribute

Drug Quantity Calculation

Substantive Reasonableness of Sentence

Defendant pled guilty to possession with intent to distribute and received a 240-month sentence. On appeal, defendant challenged the district court’s drug quantity calculation and the substantive reasonableness of his sentence.

Where defendant’s statements to police and the quantity of drugs seized from him supported the drug quantity calculation, the district court did not abuse its discretion when it varied downward from the advisory sentencing guideline.

Judgment is affirmed.

U.S. v. Schuckman (MLW No. 77052/Case No. 20-3017 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Western District of Arkansas, Brooks, J.

https://ecf.ca8.uscourts.gov/opndir/21/07/203017U.pdf

Supervised Release

Violation of Conditions

Challenge to Sentence Length

Defendant appealed from his 14-month sentence of imprisonment imposed after he violated the conditions of his supervised release.

Defendant’s release from prison mooted his challenge to the length of his sentence.

Appeal is dismissed.

U.S. v. Stands Alone (MLW No. 77072/Case No. 20-2822 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, District of South Dakota, Kornmann, J.

https://ecf.ca8.uscourts.gov/opndir/21/07/202822U.pdf

Violation of Condition of Release

Revocation of Supervised Release

Imposition of Additional Term of Supervised Release

After pleading guilty to two felonies, defendant was sentenced to supervised release. After committing multiple violations of the conditions of his release, the district court revoked defendant’s release, sentencing him to seven months in prison followed by 60 months of supervised release. On appeal, defendant challenged the imposition of an additional term of supervised release.

Where defendant’s additional term was within the statutory maximum and where the district court had discretion in weighing the statutory sentencing factors, the imposition of an additional term of supervised release was not substantively unreasonable.

Judgment is affirmed.

U.S. v. Barber (MLW No. 77067/Case No. 20-2114 – 6 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Southern District of Iowa, Jarvey, J. (Susan Renee Stockdale of Windsor Heights, IA for appellant) (Andrew H. Kahl, AUSA, of Des Moines, IA for appellee)

https://ecf.ca8.uscourts.gov/opndir/21/07/202114P.pdf

Elections

Challenge to State Election Statutes

Plaintiffs’ Motion for Attorney Fees

Timeliness of Motion

Defendant appealed from the order of the district court that granted plaintiffs’ motion for attorneys’ fees. Plaintiffs had filed suit to challenge portions of North Dakota’s election statutes, with the parties ultimately resolving the case through consent decree. Plaintiffs moved for an award of attorney fees, which the district court granted over defendant’s timeliness objection.

Although plaintiffs’ motion was patently untimely, plaintiffs’ reasonable interpretation that a preliminary injunction was not the appropriate point to request attorneys’ fees constituted excusable neglect for the untimeliness of their motion.

Judgment is affirmed.

Spirit Lake Tribe v. Jaeger (MLW No. 77048/Case No. 20-2142 – 8 pages) (U.S. Court of Appeals, 8th Circuit, Colloton, J.) Appealed from U.S. District Court, District of North Dakota, Hovland, J. (James E. Nicolai, AAG, of Bismarck, ND for appellant) (Mr. Richard Brakebill, Mr.Della Merrick, Mr. Elvis Norquay, Mr. Ray Norquay and Lucille Vivier for appellees; Daniel David Lewerenz, of Washington, DC on brief)

https://ecf.ca8.uscourts.gov/opndir/21/07/202142P.pdf

Employer-Employee

FLSA

Overtime Pay

Agricultural Employee Exemption

Plaintiff appealed the district court’s grant of summary judgment in favor of defendant, his employer. Plaintiff argued that defendant violated the overtime pay provisions of the Fair Labor Standards Act. Defendant successfully contended that plaintiff was an agricultural worker and therefore exempt from overtime.

Where plaintiff’s job duties were incidental to the pig-growing operations conducted by the independent farms contracted by defendant to grow the pigs defendant owned, the district court correctly concluded that plaintiff was an employee in agriculture.

Judgment is affirmed.

Bills v. Cactus Family Farms, LLC (MLW No. 77041/Case No. 20-2600 – 9 pages) (U.S. Court of Appeals, 8th Circuit, Wollman, J.) Appealed from U.S. District Court, Northern District of Iowa, Williams, J.(Lori Ann Bullock, of Des Moines, IA for appellant; Thomas James Bullock, of Des Moines, IA on brief) (Shawn David Twing, of Amarillo, TX for appellee; Danielle Dixon Smid, of Des Moines, IA., Elizabeth Chermel, of Dallas, TX on brief)

https://ecf.ca8.uscourts.gov/opndir/21/07/202600P.pdf

Immigration

Adjustment of Status

Denial of Application

Issue Preclusion

The government appealed from the district court’s grant of summary judgment to plaintiff. Plaintiff, a citizen of Liberia, applied for adjustment of status to legal permanent resident. After the government denied plaintiff’s application, he filed suit. The district court ruled in plaintiff’s favor, concluding that issue preclusion barred the government’s reasoning for denying plaintiff’s application.

Where the issue of plaintiff’s alleged solicitation of funds for a terrorist organization was not brought up during his original asylum proceeding, the government could later use that basis to deny his subsequent application for adjustment of status.

Judgment is reversed, case remanded.

Fofana v. Mayorkas (MLW No. 77039/Case No. 20-1623 – 6 pages) (U.S. Court of Appeals, 8th Circuit, Colloton, J.) Appealed from U.S. District Court, District of Minnesota, Tunheim, J. (Ruth Ann Mueller, USDOJ, OIL, of Washington, DC for appellant; Joseph F. Carilli, Jr., USDOJ, OIL, of Washington, DC on brief) (David L. Wilson, of Minneapolis, MN for appellee; Brittany Sue Bakken, of Minneapolis, MN., Matthew Paul Lawlyes, of Minneapolis, MN on brief)

https://ecf.ca8.uscourts.gov/opndir/21/07/201623P.pdf

Asylum

Denial of Application

Jurisdiction over Removal

Plaintiffs appealed the BIA’s dismissal of their appeal of an immigration judge’s decision denying plaintiffs’ asylum, withholding of removal, and protection under the Convention Against Torture.

Where plaintiffs failed to exhaust administrative remedies in their challenge to the agency’s exercise of jurisdiction over their removal and where plaintiffs failed to establish past persecution or fear of future persecution, their application for asylum was properly denied.

Petition is denied.

Zetino-Mejia v. Garland (MLW No. 77042/Case No. 20-2944 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Petition for Review of an Order of the Board of Immigration Appeals.

https://ecf.ca8.uscourts.gov/opndir/21/07/202944U.pdf

Cancellation of Removal

Denial of Application

Family Hardship

Plaintiff, a native and citizen of Mexico, entered the U.S. without inspection and applied for cancellation of removal based on the potential for exceptional hardship to his children, who were U.S. citizens. However, an immigration judge found that plaintiff’s children were well cared-for by their mother and that plaintiff could likely find work in Mexico, and accordingly denied plaintiff’s application. On appeal, plaintiff argued that the substitution of immigration judges during the proceedings violated his due process rights.

Where the statute did not require that the same immigration judge oversee removal proceedings from initiation to completion, there was no violation of plaintiff’s due process rights

Petition is denied.

Orpinel-Robledo v. Garland (MLW No. 77051/Case No. 20-2624 – 4 pages) (U.S. Court of Appeals, 8th Circuit, Wollman, J.) Petition for Review of an Order of the Board of Immigration Appeals. (Peter J. Antosh of Dodge City, KS for petitioner; Jesse B. Garcia of Dodge City, KS on brief) (Robert D. Tennyson, Jr., USDOJ, OIL, Washington, DC for respondent)

https://ecf.ca8.uscourts.gov/opndir/21/07/202624P.pdf

Removal

Prior Conviction

“Crime of Child Abuse”

Plaintiff petitioned for review of an order of the BIA deeming plaintiff removable due to his prior conviction under Iowa state law for enticing a minor, which the government and BIA determined constituted a “crime of child abuse” after concluding that prosecutions under the Iowa Code would only involve infliction of harm to a child.

Where Iowa’s definition of enticing only concerned a person drawing a minor into a situation where the minor could be subjected to an illegal act but did not define what qualifying illegal acts would be, the BIA concluded that plaintiff’s conviction constituted a crime of child abuse.

Judgment is vacated and remanded.

Peh v. Garland (MLW No. 77047/Case No. 20-1508 – 8 pages) (U.S. Court of Appeals, 8th Circuit, Colloton, J.) Petition for Review of an Order of the Board of Immigration Appeals. (Benjamin David Bergmann, of Des Moines, IA for petitioner; Alexander D. Smith, of Des Moines, IA on brief) (Stephen Finn, USDOJ, OIL, of Washington, DC for respondent)

https://ecf.ca8.uscourts.gov/opndir/21/07/201508P.pdf

Torts

Products Liability

Power Saw

Exclusion of Expert Testimony

Plaintiff appealed from the district court’s grant of summary judgment to defendants in plaintiff’s products liability action brought after he suffered injuries to his hand after a handle on the power saw manufactured and sold by defendant allegedly detached. On appeal, plaintiff also challenged the district court’s exclusion of his expert’s opinion testimony.

Where plaintiff’s expert’s opinion was not based on the specific factual circumstances alleged by plaintiff, the district court did not err in excluding the opinion testimony, or in granting defendants summary judgment with the lack of expert testimony.

Judgment is affirmed.

McMahon v. Robert Bosch Tool Corp (MLW No. 77064/Case No. 19-3637 – 11 pages) (U.S. Court of Appeals, 8th Circuit, Smith, J.) Appealed from U.S. District Court, Eastern District of Missouri, Clark, J. (Dale R. Funk, of St. Louis, for appellant) (Patrick Paul Clyder, of Chicago, IL for appellee; Robert W. Stephens, of St. Louis, MO., Joseph P. Switzer, of Chicago, IL on brief)

https://ecf.ca8.uscourts.gov/opndir/21/07/193637P.pdf