Opinions

O’CONNOR, Associate Justice (Ret.).

The Bureau of Alcohol, Tobacco, Firearms, and Explosives appeals from the district court’s grant of summary judgment holding that the Bureau lacks authority to issue a letter requiring a small percentage of licensed firearms dealers to submit portions of their records relating to secondhand firearms. Because we find that the Bureau acted within its statutory authority under 18 U.S.C. § 923(g)(5)(A), we reverse the district court’s grant of summary judgment. We affirm, however, the district court’s determination that the Bureau did not act in an arbitrary and capricious fashion in deciding which dealers should receive the disputed letter.

I.

The Gun Control Act of 1968, 18 U.S.C. § 921 et seq., requires persons wishing to “engage in the business of importing, manufacturing, or dealing in firearms” to apply for and obtain a license from the Bureau of Alcohol, Tobacco, Firearms, and Explosives.1 18 U.S.C. § 923(a). Successful applicants, known as federal firearms licensees (“FFLs”), must create and maintain detailed records documenting the firearms transactions that they conduct. When FFL dealers receive a firearm they must record “the date of receipt, the name and address or the name and license number of the person from whom received, the name of the manufacturer and importer (if any), the model, serial number, type, and the caliber or gauge.” 27 C.F.R. § 478.125(e). After selling a firearm, FFL dealers must further record the name and address

O’CONNOR, Associate Justice (Ret.).

A jury convicted Raul Jiminez of conspiracy to distribute and to possess with intent to distribute more than 500 grams of methamphetamine. Jiminez challenges the proceedings below on two grounds. First, Jiminez contends that the district court improperly allowed certain evidence to be introduced which was unfairly prejudicial. Second, Jiminez contends that there was insufficient evidence to support his conviction. Because the district court did not abuse its discretion in the contested evidentiary rulings and a reasonable jury could have found Jiminez guilty beyond a reasonable doubt, we affirm the judgment of the district court.

I.

Using a federal wiretap to intercept phone calls, law enforcement officials learned of a drug shipment that was to be delivered to Norfolk, Nebraska. On the morning of March 3, 2005, a Nebraska State Patrol official informed Trooper Timothy Stopak of suspicions that a shipment of methamphetamine was being transported in a green Plymouth minivan, with the Minnesota license plate number NHB030, traveling north on Highway 81 toward Norfolk, Nebraska. Later that morning, Trooper Stopak saw the green minivan and pulled the vehicle over for speeding.

Trooper Stopak approached the vehicle and asked Jiminez, who was the only occupant of the minivan, for his driver’s license, registration, and proof of insurance. As Jiminez handed over some of the materials, Trooper Stopak observed that Jiminez’s hand was shaking. When

O’CONNOR, Associate Justice (Ret.).

This case considers the response of the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) to Donald Greer’s complaint filed under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), as amended. Because the OFCCP promptly discharged its duty to conduct an investigation into Greer’s administrative complaint, we conclude that the Secretary of Labor’s response in this case represents a decision committed to agency discretion and is, therefore, immune from judicial review.

I.

The Vietnam Era Veterans Readjustment Assistance Act of 1974 (VEVRAA), as amended, provides that the federal government shall require its contractors to “take affirmative action to employ and advance in employment qualified covered veterans.” 38 U.S.C. § 4212(a). In addition, the statute provides that a covered veteran who believes that a government contractor has not complied with VEVRAA “may file a complaint with the Secretary of Labor, who shall promptly investigate such complaint and take appropriate action in accordance with the terms of the contract and applicable laws and regulations.” 38 U.S.C. § 4212(b). The Secretary of Labor has charged the Office of Federal Contract Compliance Programs (OFCCP) with investigating complaints made against contractors. 41 C.F.R. 60–250.60, 60–250.61(a). After the OFCCP receives such a complaint, it is directed to “prompt[ly] investigat[e],” 41 C.F.R. 60–250.61(d), and determine whether

O’CONNOR, Associate Justice (Ret).

Mark Lou Meyer appeals the district court’s revocation of his probation. Because the district court’s factual findings on the two grounds on which it justified revoking Meyer’s probation were not clearly erroneous, we affirm the judgment below.

I.

On January 22, 2004, Mark Lou Meyer was indicted for being an unlawful drug user in possession of a firearm, in violation of 18 U.S.C. § 922(g)(3). After Meyer pleaded guilty to this charge, the district court sentenced him to a term of three years’ probation on September 2, 2004. As relevant to this appeal, Meyer’s probation came with two conditions. First, Meyer was prohibited from possessing or using unlawful drugs. Second, Meyer was prohibited from leaving Iowa’s Northern District without first obtaining permission from a probation officer or the court.

While he was on probation, Meyer participated in two distinct methods of drug testing. Under the first method, a probation officer affixed sweat patches to Meyer’s skin to monitor whether he was using illegal drugs. The sweat patch technology at issue here is a relatively novel drug testing device. The sweat patch, which is “marketed by PharmChem, Inc., is composed of an absorbent pad and an outer membrane. After the skin is cleaned with alcohol, the patch is applied to the wearer[ ], and the absorbent pad collects the wearer’s sweat, over a period of a week or more.” United States v. Bentham, 414 F.Supp.2d 472, 473 (S.D.N.Y.2006). “The [wearer]’s

O’CONNOR, Associate Justice (Retired):

Melvin Gary appeals the district court’s decision to allow the government to introduce evidence obtained from a search of his home pursuant to a warrant. He claims the affidavit underlying that warrant failed to establish probable cause on its face, and that the warrant was void because the affidavit excluded material information. Because the warrant was issued in good faith and the information excluded was not material, we affirm the district court.

I.

Late on the evening of March 25, 2005, Officer Graves of the Richmond Police Department investigated a tip from an unnamed informant. The informant had suggested that an individual named “Melvin” was selling illegal narcotics from 601 Northside Avenue. Graves visited the address in question and noticed that there were several green trash cans in the alley behind the home. Two of those trash cans were directly behind number 601. One can was spray-painted with the number “601”; adjacent to it was a second trash can, which was unmarked.

Graves removed several large, black trash bags from both cans. All the bags he removed were tied in a similar fashion. Graves did not document which bag came from which can. Inside the trash bags, Officer Graves found two plastic bags containing a white powder residue, which he believed to be heroin, squares of foil and plastic bags with the corners removed (materials often used in packaging narcotics), a document addressed to “Tammy Sauls” at 601 Northside

O’CONNOR, Associate Justice (Ret.).

The United States Forest Service appeals from the district court’s award of attorneys’ fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d) to plaintiff Biodiversity Conservation Alliance (“BCA”). Because we hold that plaintiff was not a “prevailing party” in the underlying litigation, we reverse the district court’s award of fees and remand for proceedings consistent with this opinion.

I.

The EAJA provides that “a court shall award to a prevailing party… fees and other expenses… incurred by that party in any civil action.” 28 U.S.C. § 2412(d). BCA claims it is entitled to attorneys’ fees under the EAJA as a “prevailing party” because of victories it obtained in a dispute over defendant United States Forest Service’s proposed usage of land in the Black Hills National Forest.

In 2003, the Forest Service came up with several proposals for the management and future development of the Black Hills National Forest. One of the proposals, called the Cement Project, included a sale of timber in the Cement Area of that forest. The Forest Service sought an environmental assessment of this sale and concluded that there would be no significant environmental impact. As a result, the Forest Service authorized the sale of several thousand acres of timber in the Cement Area.

BCA, who had registered its opposition to the Cement Project before the agency, filed suit in 2004. It claimed that the Forest Service’s actions with regards

O’CONNOR, Associate Justice (Retired):

Appellant Hashmel Turner claims that the Council for the City of Fredericksburg, Virginia, violated his First Amendment rights when it implemented a policy beginning in 2005 requiring that legislative prayers be nondenominational. Because the prayers at issue here are government speech, we hold that Fredericksburg’s prayer policy does not violate Turner’s Free Speech and Free Exercise rights. Likewise, the requirement that the prayers be nondenominational does not violate the Establishment Clause.

I.

The Council of the City of Fredericksburg, Virginia (“the Council”) begins every meeting with a Call to Order, which consists of an opening prayer offered by one of the Council’s elected members followed by the Pledge of Allegiance. Only Council members are allowed to offer the opening prayer, and the Council members rotate the Call to Order duty. Until 2005, members of the Council were allowed to offer denominational prayers.

Turner was first elected to the Council in 2002. He is an ordained minister and a part-time pastor of the First Baptist Church of Love. Turner’s religious beliefs require him to close his prayers in the name of Jesus Christ. Turner’s prayers on behalf of the Council reflected this practice.

In 2005, the American Civil Liberties Union threatened to file a lawsuit if the Council’s practice of opening with sectarian prayers continued. The City Attorney examined the relevant case law and concluded that the safest course

O’CONNOR, Associate Justice (Retired).

The government in this case brings an extraordinary appeal: It asks us to reverse a district court ruling barring from evidence recordings of phone calls made between an attorney and his client. These calls were recorded in clear violation of state and federal regulations. But appellee, the attorney, has not raised a Sixth Amendment challenge, and for Fourth Amendment purposes, his client consented to the monitoring of his calls. On these narrow facts, we reverse the determination of the district court that the calls must be excluded.

I.

Scott Holyoke was a prisoner held in pretrial detention at the Barnstable County Jail in Massachusetts. Holyoke was represented by the Federal Defenders, and planned to plead guilty to charges of methamphetamine trafficking. He did not, however, wish to face sentencing with his state convictions on his record, because under the Sentencing Guidelines, the effect of those convictions on his criminal history would result in a longer prison sentence.

For assistance with these state convictions, Holyoke turned to appellee Lawrence Novak in 2005. Novak was a Massachusetts attorney. All of Holyoke’s contact with Novak was conducted through telephone calls made from the County Jail, which randomly records and monitors inmate calls.

Inmates are informed of the monitoring in two ways. First, phones in the jail contain signs which state, “Calls are subject to monitoring and recording.” Second, an automated message

SANDRA DAY O’CONNOR, Associate Justice (Retired).

Appellant claims the introduction into evidence of phone calls between him and Kenneth Durgin, an inmate in a correctional facility, violated the Federal Wiretap Act, 18 U.S.C. § 2510 et seq. Because Durgin consented to monitoring of his calls, we affirm the district court’s denial of appellant’s motion to suppress.

I.

Appellant Christopher Conley first came to the government’s attention during an investigation into a drug trafficking ring. Kenneth Durgin, who was serving time in the Maine Correctional Center (“MCC”), was also suspected of involvement in that ring. Witnesses identified appellant as a potential member of the organization. But when he was called before a grand jury and interviewed by government agents, he denied his involvement with the group, his alias of “White Boy,” and any relationship with Durgin.

Another arm of the investigation focused on inmate Durgin. Agent Paul McNeil informed Peter Herring, the correctional investigator responsible for investigating alleged crimes at MCC, that he suspected Durgin was involved in ongoing drug trafficking operations while he was incarcerated. He requested permission to record and listen to Durgin’s phone conversations. Permission was granted, and Herring transferred recordings of Durgin’s calls to McNeil.

Unfortunately for appellant, the phone conversations were all too illuminating. During those calls, Durgin spoke with appellant. Appellant bragged that the government

O’CONNOR, Associate Justice (Retired).

We consider claims of constitutional violations brought in the aftermath of Puerto Rico’s Popular Democratic Party election victories in 2001, and affirm the district court’s dismissal of some claims, and grant of summary judgment on other claims.

I.

Appellant Juan Pérez–Sánchez, a member of Puerto Rico’s New Progressive Party (“NPP”), has worked at the Public Building Authority (“PBA”) since 1993. His long work service was rewarded with promotions; in December of 2000, he was appointed as acting regional director of PBA.

Appellant’s career victory, however, was shortlived. In January of 2001, the NPP was defeated in the Puerto Rican general elections, and the Popular Democratic Party (“PDP”) won instead. Shortly after the PDP’s rise to power, appellant alleged that he suffered discrimination as a result of his political orientation.

The precise facts of appellant’s alleged discrimination have not been fully presented by the parties. Nonetheless, appellant claims that in 2001, he was removed from his office by a member of the PDP. He was stripped of the supervisory functions which he had formerly exercised, and those duties were given to another member of the PDP. Appellant alleges further that he was subjected to numerous indignities over the course of the next half-decade: Some unknown person broke his office door, his office keys were taken away, his parking spot was removed, and ethics violations were filed against him on the grounds

O’CONNOR, Associate Justice (Retired).

Appellant John McGill appeals the district court’s grant of summary judgment against him on his claims that his insurer breached its insurance contract and its fiduciary duty, and engaged in misrepresentation and fraud. Because the insurer never contracted to pay McGill disability benefits until age 65, we affirm.

I.

As this case arises on summary judgment, we state the facts in the light most favorable to appellant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256–57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Maldonado–Denis v. Castillo–Rodriguez, 23 F.3d 576, 581 (1st Cir.1994).

John McGill was employed by Eastern Shore Printing Corporation of Virginia, later renamed the Interflex Group (“Interflex”). In May of 1992, McGill spoke with a broker, who sold insurance through appellee Minnesota Mutual Life Insurance Company (“MML”), about obtaining disability insurance.

McGill applied for insurance that would have provided benefits, if disabled, until he reached the age of 65. On his application, he included both his home address and his work address, and indicated that he wished MML to send correspondence to his work address.

After he submitted his application, MML went through standard procedures to determine coverage: It sent a nurse to his office to perform a physical, and obtained McGill’s medical records. On the basis of that information, MML chose not to issue a policy that would provide benefits until McGill reached 65. Instead,

O’CONNOR, Associate Justice (Retired).

Under federal law, it is a crime for any person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” to ship, transport, receive or possess a firearm or ammunition. 18 U.S.C. § 922(g)(1). In Small v. United States, 544 U.S. 385, 125 S.Ct. 1752, 161 L.Ed.2d 651 (2005), the Supreme Court construed the phrase “convict [ions] in any court” in that statute to “encompas[s] only domestic, not foreign, convictions.” Id. at 387, 125 S.Ct. 1752. The question presented is whether appellant’s conviction in a Puerto Rican court for the possession of marijuana is a “foreign” or “domestic” conviction under § 922(g)(1), a question of first impression in the Courts of Appeals. The District Court concluded that it was a domestic conviction within the ambit of the statute’s prohibition. We agree, and accordingly affirm the court’s denial of appellant’s motion to dismiss his indictment.

I.

The material facts are not in dispute. In July 1999, appellant Marco Laboy–Torres was convicted in the Superior Court of Mayaguez, Puerto Rico, for possessing marijuana, and was sentenced to 36 months’ probation. Two years later, he moved to the United States in violation of the terms of his sentence. When he returned to Puerto Rico in 2005, he was rearrested, his probation was revoked, and he was sentenced to serve a three year term of incarceration, with two years’ credit for the probation he had previously served.

SANDRA DAY O’CONNOR, Associate Justice (Retired):**

Plaintiff–Appellant Dana Alegria suffered egregious physical and verbal sexual harassment at the hands of her probation officer. She sued this probation officer, his supervisor, and the State of Texas, alleging violations of 42 U.S.C. § 1983 and Title IX of the Education Act Amendments of 1972. On appeal, she challenges the grant of summary judgment of her § 1983 claims to the State and both the probation officer and his supervisor in their official capacities. She also challenges the grant of summary judgment to the State on her Title IX claim. Because she seeks only monetary damages, her § 1983 claims cannot succeed. Similarly, because she has failed to establish that the State’s probation system is an “education program or activity” within the ambit of Title IX, 20 U.S.C. § 1681(a), her Title IX claim also fails as a matter of law. We thus affirm the relevant judgments of the district court.

I.

A. The district court appropriately construed plaintiff’s proffered evidence and allegations in her favor in light of the procedural posture in which it confronted them. We briefly summarize the pertinent facts in the same manner: In 1999 plaintiff Dana Alegria began serving a 10 year term of probation under the authority of the Galveston County Community Supervision and Corrections Department. She was placed under the supervision of probation officer Larry Williams in September 2005. On multiple occasions, when she met with Williams

O’CONNOR, Associate Justice (Retired):

These consolidated appeals concern the vitality of the lease of a nursing home facility, Valley Grand Manor. The lessor, Valley Educational Foundation (“VEF”), argues that it validly terminated the lease in June 2005, before the lease’s primary term expired. It also argues that if the lease survived the attempted termination, the lessee, ElderCare Properties Ltd. (“ElderCare”), failed effectively to exercise its option to renew the lease for an additional five-year term and that the lease consequently expired in December 2006. ElderCare argues that VEF never effectively terminated the lease. As to its failure strictly to comply with the lease’s renewal terms, ElderCare contends that Texas common law principles of equitable intervention render its renewal effective.

The dispute has unfolded in the course of ElderCare’s Chapter 11 bankruptcy. The issue whether the lease was validly terminated arose when ElderCare’s bankruptcy estate moved to assume the lease in order to reorganize for the sole purpose of continuing to operate the nursing home. The United States Bankruptcy Court for the Southern District of Texas sided with ElderCare and allowed it to assume the lease, concluding that the lease had not been terminated. The court also ordered the parties to mediate certain ongoing lease terms. While the mediation process unfolded, ElderCare failed to provide timely notice of its intent to renew the lease, and VEF later sought to evict ElderCare,

O’CONNOR, Associate Justice (Retired):

This is a case about a wolf named Dutchess. Concerned that the wolf’s presence on residential property posed a risk to the public, a Prince George’s County Animal Control Officer seized Dutchess and left word for her absent owners. Those owners sued the officer and the county for monetary damages, arguing that the seizure violated their civil rights. The district court concluded that the officer was entitled to qualified immunity and that the plaintiffs failed adequately to plead a claim against the county. We agree and consequently affirm the court’s judgment.

I

Because plaintiffs-appellants Robert and Courtney Walker’s claims were rejected on summary judgment, we view the factual evidence in the light most favorable to them. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In February 2006, Robert Walker obtained an animal that he believed was a dog. Walker and his wife, Courtney Walker, named the animal Dutchess and had her vaccinated for rabies. The veterinarian who performed the vaccination determined that Dutchess was an Alaskan Malamute, a breed of dog that looks like a husky. He gave the Walkers proof of the vaccination, which identified Dutchess as a dog. The Walkers used this report to obtain a “dog/ferret/cat license” from Prince George’s County.

In July, Robert Walker and his sister, Antonia Payne, had a heated confrontation in front of his home. Walker struck and cracked the windshield

Affirmed by unpublished opinion. Associate Justice O’CONNOR wrote the opinion, in which Judge NIEMEYER and Judge GREGORY joined.

Unpublished opinions are not binding precedent in this circuit.

O’CONNOR, Associate Justice (Retired):

Defendant-appellant Paul Guild sexually assaulted two boys entrusted to his care by their respective parents on his promise that he would tutor them and arrange for their participation in music lessons and team sports. He presents a host of challenges to his conviction and sentence. We find none meritorious and consequently affirm the judgment of the district court.

I.

Guild served as a Regional Supervisory Executive Officer for the U.S. Agency for International Development (“USAID”) stationed in Kiev, Ukraine. When one of his colleagues was transferred from Kiev to the United States, Guild agreed to take in her fourteen-year-old son, Nathan, so that Nathan could complete orthodontic treatments. Guild agreed to arrange for music lessons, team sports, and summer jobs for Nathan, and also to tutor Nathan in math and English. When another member of the Kiev diplomatic community learned of these planned activities, he asked if his fifteen-year-old stepson, Ousmane, could participate as well, and Guild agreed.

One night when Ousmane was sleeping over, Guild called the two boys to his room, where he was seated with a towel over his lap, otherwise naked. Guild told the boys that he had been spanked as a child, made each take off his pants and underwear,

SANDRA DAY O’CONNOR, Associate Justice (Retired).

The Securities Litigation Uniform Standards Act of 1998 (SLUSA), Pub.L. No. 105–353, 112 Stat. 3227, “provides that private state-law ‘covered’ class actions alleging untruth or manipulation in connection with the purchase or sale of a ‘covered’ security may not ‘be maintained in any State or Federal court.’ ” Kircher v. Putnam Funds Trust, 547 U.S. 633, 636–37, 126 S.Ct. 2145, 165 L.Ed.2d 92 (2006) (citing 15 U.S.C. § 77p(b)). In this case, the district court dismissed Jerry L. Demings’s proposed class-action lawsuit after determining that it was precluded under SLUSA. Demings does not now dispute that his proposed class-action suit was a covered state-law class action that would generally be precluded under SLUSA’s terms. Instead, he argues that his suit fits within the “state actions” exception to SLUSA preclusion. 15 U.S.C. § 77p(d)(2)(A). We agree with the district court and find that the proposed class action does not fit within the narrow state-actions exception to SLUSA preclusion. We therefore AFFIRM the district court’s judgment dismissing the suit.

I.

Jerry L. Demings is the Sheriff of Orange County Florida. In his capacity as sheriff, he sponsors a § 457 “deferred compensation plan” for his employees. See 26 U.S.C. § 457(b). Employees who participate in the plan have individually funded accounts and—through the plan’s contracts with Nationwide Life Insurance Co., Nationwide Retirement Solutions, Inc., and Nationwide

SANDRA DAY O’CONNOR, Associate Justice (Retired).

This is a maritime shipping case involving a claim for rust damage to steel coils caused by exposure to seawater during a journey from Szczecin, Poland to Toledo, Ohio. The central issue in this appeal is whether a ship manager charged with providing a Master, officers and crew, and performing various other ship-management tasks for the shipping vessel qualifies as a “carrier” under the Carriage of Goods by Sea Act (COGSA). We agree with the district court’s finding that such a manager is not a COGSA carrier, and therefore COGSA’s one-year statute of limitations does not bar the underlying suit. We also reject Appellant’s argument that the district court’s judgment rested on clearly erroneous factual findings, and we AFFIRM.

I.

Fortis Corporate Insurance insured a cargo of 176 steel coils belonging to Metallia LLC. The coils were carried from Szczecin, Poland to Toledo, Ohio aboard the M/V Inviken, a 17,313 gross ton bulk carrier. During the journey, seawater entered the cargo hold containing the steel coils and caused significant rust damage to 99 of them. Fortis, as underwriter, paid Metallia $375,000 for the damage to the steel coils. Fortis then brought a lawsuit as Metallia’s subrogee, alleging negligence and breach of bailment against the Inviken’s owner, Viken Lakers, along with the ship’s manager, Viken Ship Management (VSM).

Fortis I

This dispute has previously come before this court. See Fortis Corporate Ins. v.

Before: SANDRA DAY O’CONNOR, Associate Justice,* ALEX KOZINSKI, Chief Judge, and SANDRA S. IKUTA, Circuit Judge.

OPINION

O’CONNOR, Associate Justice (Ret.):

Arizona’s Constitution provides: “No person who is adjudicated an incapacitated person shall be qualified to vote at any election, nor shall any person convicted of treason or felony, be qualified to vote at any election unless restored to civil rights.” Ariz. Const. art. VII, § 2. Arizona statutes give effect to this constitutional provision by suspending the voting rights of any person convicted of a felony, Ariz.Rev.Stat. § 13–904(A)(1), and automatically restoring those rights to any person convicted of only one felony, provided he: “1. Completes a term of probation or receives an absolute discharge from imprisonment,” and “2. Pays any fine or restitution imposed.” Ariz.Rev.Stat. § 13–912(A).

Plaintiffs brought suits challenging Arizona’s disenfranchisement scheme. Their first argument was that disenfranchisement for felonies not recognized as such at common law violates the Equal Protection Clause of the Fourteenth Amendment. While plaintiffs acknowledged that Section 2 of the Fourteenth Amendment insulates felon-disenfranchisement schemes from equal protection challenges to some extent, seeRichardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974), they argued that Section 2 only permits disenfranchisement for common-law felonies. In their view, disenfranchisement for statutory felonies not recognized

SANDRA DAY O’CONNOR, Associate Justice (Ret.).

Defendant-Appellant Gerald Fields pleaded guilty to one count of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846. Fields was sentenced to a term of 151 months’ imprisonment, at the bottom of his uncontested Guidelines range. Fields now argues that his sentence was unreasonable. He also argues, for the first time on appeal, that the district court erred in failing to inquire as to whether Fields admitted or denied a prior felony drug conviction used to enhance his sentence, as required by 21 U.S.C. § 851(b). Finding no reversible error, we AFFIRM.

BACKGROUND

On June 6, 2007, the Northern Kentucky Drug Strike Force intercepted a United Parcel Service package that was found to contain more than four kilograms of cocaine. The package was delivered to one of Fields’s co-defendants, Alberto Martinez, who was immediately detained by the Strike Force. Martinez cooperated with authorities and arranged to meet Fields at a Red Roof Inn to deliver the package. That evening, Fields and two other individuals arrived at the Red Roof Inn. Fields was identified as the intended recipient of the drugs. Fields had $94,314 in currency with him, and he was arrested by the Strike Force and subsequently indicted. While charges were pending, the government filed a “prior conviction information” on September 7, 2007. The information indicated that Fields had been convicted of felony possession of cocaine in 1999

SANDRA DAY O’CONNOR, Associate Justice (Ret.).

This case involves a property dispute over 6.4 acres on the shoreline of Reelfoot Lake. Natalie Hornbeak–Denton and Anne Hornbeak (Appellants) claim ownership of the land and have taken various measures consistent with that claim (such as excluding the public from the property and soliciting buyers for portions of it). Tennessee also asserts ownership of this 6.4–acre parcel of land. Officers of the Tennessee Wildlife Resources Commission and Tennessee Wildlife Resources Agency (TWRA1) informed Appellants of Tennessee’s ownership claim. They also threatened to bring a lawsuit against Appellants if they continued to exert control over the disputed territory. Appellants struck first and filed their own § 1983 suit against TWRA, arguing that their First and Fourteenth Amendment rights were violated when TWRA officials threatened to file a lawsuit against them. Appellants argue that the threat constituted a final determination of property rights without due process of law and amounted to retaliation for exercising their First Amendment rights to criticize TWRA. The district court granted TWRA’s motion to dismiss on the pleadings, and we affirm.

I.

“The beauty of Reelfoot Lake is a natural resource unparalleled in its region.” Bunch v. Hodel, 793 F.2d 129, 130 (6th Cir.1986). Despite its beauty, Reelfoot Lake has been the source of considerable conflict (both human and natural) since its beginning. The lake was formed in the aftermath

O’CONNOR, Associate Justice (Ret.).

Quinten E. Spivey challenges the district court’s grant of summary judgment against him on his claims against Adaptive Marketing for breach of contract and unjust enrichment. Because we find that no reasonable jury could find in favor of Spivey, we affirm the judgment of the district court.

I

Appellant Spivey called a telemarketing number in January 2003 and ordered an Atkins diet product. This dispute arises from the rest of that telephone conversation.

A.

Adaptive has produced a partial recording of what it alleges is the conversation between the telemarketer and Appellant. According to the district court, the recording is as follows:

Telemarketer: Thank you for your order. We’re sending you a risk free 30–day membership to HomeWorks, offering hundreds of dollars in savings at stores like the Home Depot, K–Mart, Linens & Things and many more. After 30 days, the service is extended to a full year for just $8.00 per month, just $96.00 annually. Billed in advance as HomeWorks with the credit card you are using today. You will be charged an annual fee at the end of your 30–day trial period and at the beginning of each new membership year. If you want to cancel, simply call the toll-free number that appears in your kit in the first 30 days and you will not be billed. If you don’t save hundreds of dollars in your first year, just call and you’ll get a full refund. So look for your kit in your mail is that okay?

Male: Okay.

Spivey v. Adaptive

O’CONNOR, Associate Justice (Ret.):

Section 7407 of Title 26 of the United States Code permits the United States to seek, and a district court to issue, an injunction prohibiting tax preparers from engaging in certain deceptive or fraudulent practices. 26 U.S.C. § 7407. The district court may specifically enjoin a tax preparer from engaging in a variety of deceptive practices, including misrepresenting his eligibility to practice before the Internal Revenue Service (“IRS”). § 7407(b)(1)(A)-(D), (b)(2). If the district court finds that the tax preparer has continuously engaged in offensive conduct, and that an injunction specifically prohibiting such conduct would not be effective at preventing further abuses, “the court may enjoin such person from acting as a tax return preparer” altogether. § 7407(b)(2).

In this case, the Government brought a suit against Abelardo Ernest Cruz and four co-defendants seeking to enjoin them from operating as tax return preparers. The complaint alleged that the defendants engaged in a fraudulent tax preparation scheme in which they would intentionally overstate deductions and credits on their clients’ tax returns in an effort to reduce their clients’ tax liabilities and increase their refunds. It further alleged that the defendants made various misrepresentations regarding their eligibility to practice before the IRS.

The District Court found that the defendants had engaged in deceptive practices in preparing tax returns and issued an injunction

O’CONNOR, Associate Justice (Ret.):

Dr. Ana Alvarez and Nurse Sandra Mateos were employees at St. Jude Rehabilitation Center during its brief time as an operating clinic in 2003. St. Jude was ostensibly an HIV treatment center, but it was established as a front for a massive Medicare scam. The fraud involved falsely diagnosing patients with a condition that would justify treatments of WinRho, an expensive drug reimbursable by Medicare at a rate of about $4,900 per treatment to St. Jude. Because the treatment was medically unnecessary, employees at St. Jude would purchase only a small fraction of the drugs and drug treatments for which they billed Medicare. They would then use a simple saline solution or an extremely diluted dose of WinRho to inject patients, thereby pocketing much of the money that Medicare had paid for the WinRho treatments. All of the patients were HIV-positive Medicare beneficiaries who had been recruited for the purpose of seeking WinRho treatments they did not actually need. The patients were typically paid about $150 per visit in exchange for their knowing participation. During the approximately five-month span in which this scam continued, St. Jude received more than $8 million from Medicare.

For their roles in this operation, Dr. Alvarez and Nurse Mateos were indicted on several counts. Both Alvarez and Mateos were indicted for: (1) conspiracy to defraud the United States, to cause the submission of false claims, and to pay health care kickbacks, in

Affirmed by unpublished opinion. Justice O’CONNOR wrote the opinion, in which Judge DUNCAN and Judge AGEE joined.

Unpublished opinions are not binding precedent in this circuit.

O’CONNOR, Associate Justice:

Appellant Stanley McWhite appeals the district court’s grant of summary judgment to Appellee ACE American Insurance Company in his suit claiming that his employer’s automobile insurance policy includes or should be reformed to include underinsured motorist coverage. For the reasons set forth below, we affirm the judgment of the district court.

I.

Appellant Stanley McWhite was employed by Ahold Americas Holdings, Inc. On February 10, 2005, McWhite was driving a tractor-trailer truck owned by Ahold, when the truck jack-knifed. McWhite exited the truck, and while setting up warning triangles along the road, as required by Ahold policy and Department of Transportation regulations, McWhite was struck and injured by a vehicle driven by an “underinsured” motorist.1

After recovering $25,000 from the driver of the vehicle, see Covenant Not to Execute, J.A. 57, McWhite filed suit against his employer’s insurance company, Appellee ACE American Insurance Company, in the Florence County, South Carolina, Court of Common Pleas. McWhite sought a declaratory judgment that he is an “insured” for purposes of underinsured motorist (“UIM”) coverage under a policy issued by ACE to Ahold. ACE removed the case to the U.S. District Court for the District of South Carolina on the grounds of diversity