Alston was resentenced after remand and appealed the new sentence. The panel affirmed. It held that the remand was a general remand and nothing was necessarily decided which prevented the district court from considering all relevant facts in fashioning a new sentence. The panel held the district court erred in failing to apply the Fair Sentencing Act retroactively, but, the error was harmless as the district court considered the appropriate factors and would have arrived at eh the same sentence even if the Act applied. Finally, the panel held that the district court did not base its sentence on the need for Alston to obtain drug treatment. Instead, it considered the correct facts and properly crafted an individualized sentence.
Board moved to enforce orders to bargain against Enterprise and another company. The panel, with one judge adding a concurrence and one dissenting in part, denied the motions on the ground that there were only two members of the Board properly appointed and at least three members must be on the Board for it to take official action. Turning first to statutory arguments, the panel held that Board correctly determined the election in the Enterprise case was properly recognized as there were no forged documents, the weather did not prevent employees form voting and there was no evidence of coercion. As to the other case, the panel held that certifying the radiation technology unit as the bargaining unit instead of all technical employees was supported by substantial evidence as they performed different task and did not interact with other technical workers thus demonstrating their commonality of interest. Turning to the constitutional issue, the majority held that “the Recess” in the recess appointment clause is ambiguous. It adopted the intersession definition as it granted “the” some significance, the Constitution uses “adjournment “ to refer to breaks in legislative sessions either during or at the end of a session, the Framers understood “the Recess” to mean the break between session of the Senate, the practice of the country for the first 132 years of its existence was consistent with the intersession definition intersession or unavailable for business definitions would undermine the advise and consent power of the Senate and the intersession definition keeps the Senate’s power to make its own rules. The majority noted the unavailable for business definition advocated by the dissent lacks historical support, would allow for intersession appointments to last twice as long as intersession appointments, does not give proper place to the advise and consent power, gives the recess appointment power improper equivalence with the veto and pardon power, is unnecessary to prevent giving the House a de facto veto over appointments and does in fact interfere with the Senate’s ability to make it own rules. As three purported members of the Board were appointed when there was no Recess, their appointments were not valid and the Board was without power to act. The concurrence stated that the majority position was more plausible as a textual matter and served both legislative and executive branch powers and is more workable. The dissent argued that as the text is ambiguous, adopting the definition of “the recess” as any period when the Senate is not available for business best serves the purpose of the clause which s to allow appointments to keep the government running. It also argued that there sufficient other checks on presidential power to alleviate any concerns that the unavailable for business rule may allow abuse of power by the then sitting President. It further argued the majority has effectively written the clause out of the Constitution by allowing the Senate (or House if it won’t agree to an adjournment) to stop all recess appointments. As the Senate was not conducting regular business, it was unavailable and in recess thus the appointments were valid. The dissent also argued that a vacancy for recess appointment purposes is one that exists when the Recess occurs as this is most consistent with the text and purpose of the clause.
Carriers promised to clear ice from a ship which Bunn came aboard to assist in loading coal into the ship. Bunn fell twice on ice and was injured. The jury found for Bunn. The panel, 2-1, affirmed. The majority held that Bunn presented sufficient evidence to prove Carriers breached its assumed duty to make the ship safe by removing the ice. Thus, Carriers’ argument that it had no duty to warn was beside the point. The majority also held Carriers’ jury instruction argument was not preserved and failed in any event as the proposed instruction was an incomplete statement of the law. The dissent argued that Carriers’ duty was narrow and consisted of warning of hidden dangers, the ice was open and obvious, Bunn could have used a flashlight to help prevent the accident and the proper remedy here is to remand for a new trial so the facts can be fleshed out on the correct legal issue.
Regional sued American alleging copyright infringement through use of photographs form its real estate listing site. The district court granted a preliminary injunction as to the photographs. The panel affirmed. It held that for purposes of 17 USC 409, the better rule is to allow registrants to list “photographs” generally as a description of the materials being registered as this is consistent with the purpose of the section to promote registration prior to allowing suit and with 17 USC 408 which aims to lessen burdens on registrants. Applied here, Regional field a registration listing photographs as a component of its databases and thus met the registration requirement. The panel also held that clicking on “Agree” on Regional’s website, the owners of the photographs effectively transferred their rights for purposes of 17 IUSC 204 given the Electronic Signature Act and consistent with cases applying that act to arbitration clauses.
Weon pled guilty to tax evasion. In his plea agreement, he agreed to a loss amount of $2.4 million. He later moved to withdraw his plea arguing the true loss was $46,000. The district court held Weon to his stipulation and sentenced him to 30 months imprisonment. The panel affirmed. It held that Weon was bound under his plea agreement to the stipulated amount as it was part of the bargain between him and the government and Weon testified under oath that it was correct. The panel noted that it was joining all other circuits to consider the issue. The panel also held the 30month sentence was reasonable.