At the Circuit Level

8th Circuit Sits in Kansas City―Decisions Pending

Circuit Court SealA panel from the 8th Circuit Court of Appeals sat in Kansas City Nov. 15-19, 2010.  Judges Wollman (SD), Hansen (IA) and Shepherd (AR) sat the first three days of that week, and Judges Wollman, Bye (ND) and Shepherd closed out the last two days. The cases argued ranged from felon-in-possession and sentencing guidelines cases, to multi-party bankruptcy and trademark infringement. 

A Tuesday case involved an allegation of employment discrimination on the basis of religion (Hosea Harrell Jr.  v. John E. Potter, Postmaster General, Case No. 10-1694).  Harrell is a member of the Seventh-day Adventist church and is employed by the USPS, a job that required him to work five days a week with Sunday off, and a second day off that rotated.  He requested accommodation on the basis of his religion for leave every week between Friday and Saturday evenings.  Short of other carriers voluntarily relinquishing their Saturdays off, his requests were denied and Harrell rejected a transfer to another position.  He then requested leave for each Saturday he was scheduled to work; his requests were denied and he was terminated for three absences without leave.  The District Court (Judge Dean Whipple) granted summary judgment to the USPS, concluding the claims under the Religious Freedom Restoration Act (RFRA) were barred, as Title VII was the exclusive remedy for federal employees.  The court concluded that USPS offered Harrell reasonable accommodation and, alternatively, that to offer every Saturday off would have constituted undue hardship because to do so would violate seniority rules of the collective bargaining agreement, and Harrell failed to demonstrate his religion was the motivating factor in his termination.  Harrell argues the District Court erred in concluding, as a matter of law, that any preferential treatment created an undue hardship where the accommodation did not violate the collective bargaining agreement or constitute a preference, and erred in concluding he could not pursue a claim under RFRA.

Wednesday featured a trademark infringement case brought by Community of Christ (COC) against Devon Park Restoration Branch and its pastor asserting Devon Park’s use of the name “Reorganized Church of Jesus Christ of Latter Day Saints” and “RLDS” violated COC’s recently obtained trademarks.  The District Court (Judge Gary A. Fenner) granted COC a preliminary injunction, then summary judgment making the preliminary injunction permanent and denied Devon Park’s cross-claim to cancel the mark.  The court also granted COC attorney fees, noting this was an exceptional case.  On appeal, Devon Park argues the names had become generic and lost trademark protection; COC did not demonstrate undisputed facts showing a confusion or likelihood of confusion; COC abandoned any right to RLDS by discontinuing use of the mark; the court erred in denying its claim for cancellation of the mark, ruling in favor of COC on the state law claims, making the preliminary injunction permanent, and concluding this was an exceptional case to justify attorney fees. (Community of Christ Copyright Corp., et al. v. Devon Park Restoration Branch of Jesus Christ’s Church, et al. Case No 10-1707)

On Thursday, the judges heard arguments on sentencing for a violation of 18 U.S.C. § 2423, interstate transportation of a minor to engage in sexual activity (U.S. v. Neil Kramer, Case No. 10-1983).  Kramer was working in Louisiana when he received a misdirected text from a 15-year-old girl in rural Missouri.  The two exchanged texts for several months, and he eventually came to Missouri and took the girl back to Louisiana.  Kramer had sex with the girl on several occasions.  Kramer admitted he knew the girl was underage and pleaded guilty.  At sentencing he objected to the imposition of an enhancement (under Guidelines § 2G1.3(b)(3)(A)), arguing his use of a cell phone to text the victim did not qualify as use of a computer to facilitate the offense.  The District Court (Judge Richard Dorr) disagreed, analogizing texting to e-mail, and imposed the enhancement.  On appeal, Kramer renews his objection to the computer enhancement. 

The appellate judges have taken these cases under advisement and will issue decisions in due course.  An appellate panel is scheduled to sit again in Kansas City in May 2011.  The calendar of cases for argument will be set in March or April 2011. 

For more information on the 8th Circuit Appellate Court, check the 8th Circuit Web page at 8th Circuit opinion page is here:


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