8th Circuit Judges
Judges Kermit E. Bye, James B. Loken
and Michael J. Melloy

At the Circuit Level—8th Circuit Panel Hears Arguments

Eighth Circuit panels of judges visited Kansas City twice this year–once during the week of Feb. 13-17 and again from March 12-16.

Feb. 13-17

The February panel was composed of Judges James B. Loken (MN), Kermit E. Bye (ND) and Michael J. Melloy (IA). There were many interesting issues that week, and the Western District of Missouri was well-represented, including arguments on the following three cases:


1. Bridget Raswaw, et al. v. United Consumers Credit Union; Michael J. Knight v. Central Communications Credit Union; Bernard W. Moran v. Missouri Central Credit Union

Three credit unions participated in a subprime motor vehicle lending program administered by Centrix Financial, LLC. Centrix provided financing for the purchase of motor vehicles and took a security interest, and the loans were purchased by the credit unions, but Centrix continued to service the loans. After the loans were defaulted, the cars were repossessed. The pre-sale notifications sent by Centrix on behalf of the credit unions did not comply with the Uniform Commercial Code, and when the credit unions became aware of the defective notices, the credit unions sent out new notices—also defective. Car owners brought suit against three participating credit unions in three separate actions alleging violations of the UCC and the Missouri Merchandising Practices Act, and conversion. In each case, the District Court dismissed the UCC and conversion claims as time-barred and concluded the MMPA did not apply to credit unions. The car owners appealed, arguing the District Court erred by applying the incorrect statute of limitations, in concluding the claims for damages were not claims for penalties and forfeitures for purposes of the applicable statute of limitations, and in concluding credit unions were exempt from the MMPA.

2. Crystal Henley v. Kansas City Missouri Board of Police Commissioners, et al.

Crystal Henley enrolled in the Kansas City MO Police Academy. She claimed that during her field training course, instructors engaged in a series of actions to make her quit, including sexually harassing her, invading her privacy, degrading and humiliating her, physically assaulting her, and injuring her. Henley brought a civil rights action alleging gender discrimination and sexual harassment under the Equal Protection Clause and the Due Process Clause. The District Court dismissed the action against certain defendants, concluding that Henley failed to exhaust her administrative remedies. On appeal, Henley argues the District Court erred in concluding that the exhaustion requirement in Title VII is required in civil rights actions.

3. Government of Ghana v. ProEnergy Services, LLC, et al.

The government of Ghana filed an ex-parte application for discovery in a foreign proceeding pursuant to 28 U.S.C. § 1782, relating to information from a lawsuit between ProEnergy Services and Balkan Energy Co. in WDMO. Ghana had a pending dispute in The Hague and in the High Court in Ghana against Balkan Energy Limited (Ghana) over a Power Purchase Agreement. The District Court initially granted Ghana’s application in February 2011. Balkan Energy Limited was allowed to intervene and moved for reconsideration of the application for discovery. ProEnergy filed a motion for protective order, contending the information includes trade secrets, and proprietary and confidential information. The District Court denied the motion for reconsideration and directed counsel for ProEnergy and Ghana to confer over the discovery requested. After a telephone conference, the District Court ruled that ProEnergy need not produce documents relating to the settlement of the Balkan/ProEnergy litigation. On appeal, the government of Ghana argues the District Court abused its discretion in denying the discovery documents relating to the settlement.

March 12-17

In March, the 8th Circuit panel sitting on Tuesday and Wednesday was composed of Judges Roger L. Wollman (SD), Stephen M. Colloton (IA) and Duane Benton (MO). Tuesday’s arguments were held at UMKC School of Law, and two of the three cases originated in the courts of our northern neighbor, Iowa. Tuesday’s cases at UMKC involved the Telecommunications Act of 1996, a Bankruptcy Appellate Panel appeal from the Bankruptcy Court for the Western District of Missouri, and wrongful termination. (Sprint Communications Co. v. Robert Berntsen; Joseph Terry v. Standard Insurance Company; and David Fesler v. Whelen Engineering Company)

On Wednesday, issues included the Family Medical Leave Act, the Americans with Disabilities Act, immigration and the Equal Pay Act, as well as a case involving the estate of the president of the Elvis Presley Fan Club and the disposition of his extensive collection of Elvis memorabilia.

On Thursday and Friday, Judges Wollman and Colloton welcomed to their panel newly appointed Western District of Arkansas Judge Susan O. Hickey. The panel heard arguments on Sentencing Guidelines, distribution and possession of meth, and bank fraud. Two additional arguments are outlined below:

1. United States v. Carl Deon Shinn

An officer in the Iowa Internet Crimes Against Children Task Force, posing as a 14-year-old girl, engaged in an extended exchange with Carl Shinn over the course of several months. When Shinn agreed to meet her at a Motel 6 for sex, Shinn was arrested and found to have three cameras and nine condoms in his vehicle. At trial, Shinn presented an entrapment defense and requested an entrapment instruction, which the District Court denied. Shinn was convicted and sentenced to 63 months. On appeal, Shinn asserts the court erred in rejecting his entrapment defense and instruction, insufficient evidence, and an unreasonable sentence.

2. United States v. Robert Green

An appeal from the Western District involved a convicted bank robber, Robert Green, who challenged the Terry stop, and the upward departure in sentencing based on the Green’s past criminal history (bank robbery).

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