Tooele County v United states (Southern Utah Wilderness Alliance Intervenor)

County and Utah officials sued the United States seeking to quiet title in certain rights of way. The district court issued an order enjoining Alliance for an indefinite period from prosecuting its state court suit seeking a declaration that Utah officials lack authority to bring the federal quiet title action and baring funding of the suit. Alliance appealed the order. The panel, with one judge concurring, reversed. The majority held the district court had jurisdiction to issue the order as it protected its jurisdiction over the quiet title suit. It held the panel had jurisdiction because the order was in effect for more than 14 days and was thus a preliminary injunction for appellate jurisdiction purposes. It held the order was improper as the anti-injunction act 28 USC 2283 generally bars injunctions against state suits and the exception argued below did not apply as state court case did not involve in rem or quasi in rem jurisdiction but the authority of Utah officials to bring suit. It held this case was distinguishable from the cases county relied upon as there is no multidistrict litigation, the state suit in no way impinges on the case management order entered in the federal suit and the possibility that the state suit may make settlement more difficult is not a ground to enjoin the state suit. The majority refused to consider whether another exception to 2283 applied as the issue was not briefed below. The concurrence argued that while the part of the state suit seeking a ban on funding could justify an injunction here, it was unnecessary as such state law bans are beyond the state court’s authority. It also argued that seeking answers to state law issues in parallel suits has long been approved and the state court suit here is not troubling.

Ceco Concrete Construction, LLC v Centennial State Carpenters Pension Trust

Trust appealed the district court’s grant of summary judgment to Ceco confirming an arbitration award which allowed Ceco to not pay withdrawal liability for stopping contributions to the Trust and the award of costs. The panel reversed and remanded. It held that under 29 USC 1301(b)(1) and 1383(b)(2), liability is imposed on entities which are under common control and one of the entities does covered work within  five years of the termination of responsibility to make contributions. Here, Ceco’s responsibility to make contributions ended in 2010, its owner bought a competitor which did the same kinds of construction work as Ceco within the five year window and this work by the acquired entity triggered the liability. The panel emphasized that it the resumption of work which triggers the liability and thus a court must evaluate the whole five year period in determining if a statutory withdrawal has occurred. I also reasoned this construction of 1301 and 1382 best effectuates the purpose of the statute to protect multiemployer pensions from withdrawing employers by preventing end runs though transferring work to other entities within a controlled group of entities. The panel included instructions in the remand to vacate the cost award as Ceco was no longer a prevailing party.

McCormick v Parker

McCormick appealed the denial of his Brady claim in his habeas proceeding. The panel reversed. It held that Oklahoma had waived its procedural default affirmative defense as it failed to raise it in the district court despite an earlier panel inviting tit to do so. The panel held that because the forensic nurse who testified at McCormick’s trial examined the alleged child victim at law enforcement’s request and kept a record in anticipation of trial, she was part of the prosecution team. The panel noted this was consistent with the holding of the only other appellate court to rule on the issue. It held that the nurse’s knowledge that she was not certified was imputed to the prosecutor on these facts. It held the nurse’s lack of certification at the time of trial was material as she was the only witness to offer corroborating evidence of the child’s testimony and two jurors stated during voir dire that expert testimony would be necessary for them to convict. Thus, there was a Brady violation and habeas relief was granted subject to Oklahoma’s right to retry McCormick.

Castaneda v JBS USA, LLC

The panel and the active membership of the court denied Castaneda’s petition for rehearing and rehearing en banc. The panel sua sponte added a word to the original opinion on page 17.