Barton and other employees sued farms alleging wage and retaliation claims. The district court granted summary judgment to Farms on the federal wage claim and a jury found in favor of several plaintiffs on the state wage claim and retaliation claim. The panel, with one judge dissenting in part, affirmed in part and reversed in part. The majority reversed the state wage claim as the underlying employment relationship was controlled by a collective bargaining agreement and the state law claim was thus preempted by the Federal Labor Relations Act. The majority reversed as to six retaliation claims holding there was no evidence those employees initiated a workers compensation claim as there was no evidence Farms agreed to pay for their care or received a bill for care from an independent care provide and their terminations were under a system which was not a mechanism to retaliate. The panel affirmed as to two employees on their retaliation claims as they received treatment by a company doctor and the district court was entitled to believe the employees testimony that they were observed off the line when they were returning from an authorized visit to the nurse’s station. The partial dissent argued that the state wage claims were not preempted as the collective bargaining agreement was silent as to what periods counted for paid hours and the state law only controlled notice of terms of payment. As to the retaliation claims, the dissent argued that seeking treatment form the nurse asking to see the company doctor then seeking treatment from a private doctor was sufficient to initiate a claim and the improper counting of absences arising from the failure to properly characterize the injuries as work related caused the discharges of the six employees.
Lincoln field a petition for attorney fees under 33 USC 928. The petition was denied. The panel affirmed. It held that because the employer paid some money to Lincoln within 30 days of the worker’s compensation claim, it paid “any compensation” under 928(a) and was not liable for attorney fees. The panel rejected Lincoln’s argument that “any compensation” meant all amounts due under the claim as contrary to the statutory text and purpose. The panel held that because Lincoln failed to utilize informal process to resolve his claim, he was not entitled to fees under 928(b). The panel held the monies paid within 30 days were tied to the disability alleged and not merely made to avoid liability for attorney fees.
The district court ordered Abdelbary to pay attorney fees incurred by a victim in the bankruptcy proceeding in which Abdelbary committed fraud. The panel, 2-1, affirmed. The majority held that under 18 USC 3663A(b), when attorney fees are incurred in a proceeding which is the basis for the criminal conviction, as here, the fees are directly and proximately caused and restitution is proper. The majority distinguished forma case involving the recovery of tangible equipment as the applicable statutory language there characterized attorney fees as collateral and thus outside the court’s power to order restitution. The dissent argued that the actual conduct which gave rise to the fraud convictions did not cause the victim to incur any fees that would not have been incurred anyway. Thus, there was no connection between the offense and the fees and the dissent argued the order should be reversed.
Based on a National Crime Information Center report, the district court concluded McDowell had three prior felony convictions and sentenced him as a career criminal. The panel affirmed. It held that NCIC reports are generally reliable as demonstrated by their use by courts, prosecutors and probation offices as well as scholarly and anecdotal evidence of more than 955 accuracy. It rejected McDowell’s arguments about his NCIC report holding the district court did not clearly error in relying on the government’s evidence and argument that McDowell used the alias connected to the felony conviction, was connected to the conviction through fingerprint evidence and that McDowell did not object to the 1971 conviction at a 1983 sentencing. The panel finally rejected McDowell 6th Amendment argument holding that prior convictions can still be proved by preponderance of the evidence at sentencing despite this rule being entirely inconsistent with other United States Supreme Court cases on the jury trial right.
Neuhauser was confined for several years while the government’s civil claim that he was a sexually dangerous person was litigated. He moved to have his supervised release ended based on the argument that he was released form imprisonment when his prison term ended not when he was released from custody after his civil proceeding ended. The district court rejected his argument and denied his motion. The panel affirmed. It held the ordinary meaning of imprisonment is putting someone in prison and Neuhauser was certainly in prison while being civilly detained. The panel noted that this is consistent with the structure of the post-conviction supervision statute, the purpose of supervised release and Supreme Court precedent