Thomas E. Johnston

The case involved Defendant Heywood Smith IV, who was indicted on two counts of violating 18 U.S.C. § 922(g)(9) by knowingly possessing firearms after a prior misdemeanor domestic violence conviction. The defendant moved to dismiss the indictment, arguing that the statute violates the Second Amendment right to keep and bear arms and is overbroad, vague, and irrational. The court denied the motion, applying intermediate scrutiny and concluding that the statute is substantially related to the important government interest of preventing domestic gun violence by individuals with such convictions.

gunscriminal law

The case involved the sentencing of a defendant convicted by jury on three federal counts of receiving obscene visual depictions of child sexual abuse, receiving such material as a registered sex offender, and possessing child pornography, following evidence of decades-long collection of such materials and a prior state conviction for sexual abuse of a minor. The court addressed the defendant's objections to the Presentence Investigation Report, his request for a downward variance from the Sentencing Guidelines range of 210-262 months (plus a consecutive 10-year term) to the statutory minimums, and his arguments that the guidelines lack empirical support and that a within-guidelines sentence would violate the Eighth Amendment. The court overruled the PSR objections, rejected the variance request after applying the 18 U.S.C. § 3553(a) factors, and found no Eighth Amendment violation, reasoning that the guideline enhancements were appropriate given the offense conduct and that comparable sentences for similar child pornography offenses with prior sexual abuse history had been upheld as constitutional.

criminal lawprocedure

The case concerned a federal prisoner's habeas corpus petition under 28 U.S.C. § 2241 challenging the Bureau of Prisons' refusal to designate his New Jersey state prison as the site for service of his federal sentence nunc pro tunc. Petitioner had been sentenced in federal court to 210 months for bank robbery and firearm possession, with an upward departure based on pending state armed robbery and attempted murder charges; after pleading guilty in state court, the state sentence was ordered concurrent with the federal one, but he served the full state term first and received no federal credit. The court analyzed the BOP's authority under 18 U.S.C. § 3621(b), the federal sentencing judge's intent, statutory limits on concurrent sentencing with unimposed state terms, and potential due process concerns arising from the sequence of custody and loss of appeal rights.

criminal lawprocedurefederal power

This case concerns IRS petitions to enforce administrative summonses served on Gerard and Kathnell O'Shea requiring them to testify and produce documents about their tax liabilities for 2002-2004 in connection with two trusts they allegedly administered. The O'Sheas appeared but refused to comply, asserting Fifth Amendment protections against self-incrimination and claiming the summonses were procedurally defective or sought irrelevant information. The court granted the petitions in part and denied them in part after finding the government had made a prima facie showing of good faith under the Powell factors, that the trusts qualified as collective entities ineligible for Fifth Amendment document-production privileges, and that certain procedural challenges lacked merit while limiting enforcement to avoid compelled testimony in some respects.

taxesfederal power

This case involves West Virginia consumers who sued Fingerhut and CIT Bank after the companies made 89 debt collection calls to their home even after being notified that the consumers had hired an attorney. The plaintiffs alleged violations of the West Virginia Consumer Credit and Protection Act provisions prohibiting unreasonably oppressive debt collection conduct and unfair contact with represented debtors. The defendants moved to dismiss, arguing that one provision was unconstitutionally vague and that the Act's penalties unduly burdened their First Amendment commercial speech rights. The court denied the motion to dismiss, holding that debt collection calls receive limited First Amendment protection, that the statute provided fair notice to sophisticated creditors like the defendants, and that the challenged provisions were not unconstitutionally vague or burdensome.

free speechbusiness & regulatory

In United States v. Talada, the defendant was charged under 18 U.S.C. § 2250 with failing to register as a sex offender in West Virginia after relocating from New York, where he had prior felony convictions for attempted sexual abuse and possessing a sexual performance by a child. He moved to dismiss the indictment, arguing that SORNA was unconstitutional as applied to pre-enactment offenders because it violated the Ex Post Facto Clause and other provisions when the full regulatory scheme was not yet implemented in states. The district court denied the motion to dismiss, adopting the magistrate judge's recommendation after de novo review of the objections. The court reasoned that the Attorney General's 2007 interim rule made SORNA's registration requirements applicable to pre-SORNA offenders, the criminal penalties were not retrospective as applied here, and the majority of constitutional challenges had been rejected by other courts.

criminal lawfederal power

This case arose from a fraud and check-kiting scheme by debtor Kevin O'Brien involving cattle sales, in which plaintiff Robert Dwyer paid for cattle that were later sold to a bank director and the proceeds used by First National Bank to offset O'Brien's debts. Dwyer filed an adversary proceeding in bankruptcy court seeking a declaratory judgment that funds traceable to the cattle sale were held in constructive trust for him, along with tort claims against the bank and its officers for fraud and related misconduct. The bank moved to withdraw the reference to the district court, arguing the claims were non-core proceedings. The court analyzed whether the claims qualified as core under 28 U.S.C. § 157, finding the declaratory judgment action analogous to cases imposing constructive trusts in fraud schemes and thus core, while noting the tort claims' relation to the bankruptcy estate.

procedurebusiness & regulatorycriminal law

In Ballard v. PNC Financial Services Group, Inc., the plaintiff filed suit in West Virginia state court alleging breach of contract and violations of the West Virginia Consumer Credit and Protection Act against the defendant, a nonresident corporation headquartered in Pennsylvania. After the case was removed to federal court, the defendant moved to quash service of process on the grounds that the summons and complaint had been mailed by the Secretary of State to an Ohio address rather than properly served under applicable rules. The court denied the motion, determining that service satisfied the requirements of Federal Rule of Civil Procedure 4, the West Virginia Rules of Civil Procedure, and West Virginia Code § 31D-15-1510(d) because the documents were forwarded to the designated address, signed for, and ultimately delivered to the defendant. The ruling was based on evidence that the defendant received actual notice of the action and on the principle that the plaintiff had substantially complied with statutory service procedures.

procedurebusiness & regulatory

This case involved a dispute between neighboring landowners over an alleged prescriptive easement on a roadway in Greenbrier County, West Virginia, where the plaintiffs sought an easement and injunction to prevent the defendant from obstructing access. The defendant removed the action to federal court under diversity jurisdiction, asserting that the amount in controversy exceeded $75,000 based on the potential diminution in property value if the easement were granted. The plaintiffs moved to remand, arguing that the jurisdictional threshold had not been established. The court granted the motion to remand and denied the defendant's request for additional time to gather evidence, holding that the removing party must prove by a preponderance of the evidence at the time of removal that the amount in controversy requirement is satisfied when damages are unspecified, and no such proof existed in the record.

propertyprocedure

This case concerns allegations that Bluestone Coal Corporation and related defendants conducted underground coal mining that illegally penetrated the safety buffer zone beneath Pinnacle Mining Company’s impoundment, causing cracks and threatening structural integrity, which prompted involvement by state and federal regulators. Pinnacle filed claims for negligence, strict liability, violations of the Surface Mining Control and Reclamation Act, a permanent injunction requiring perpetual water pumping and financial assurances, and alter-ego liability. The court evaluated the defendants’ motion to dismiss under the Twombly plausibility standard and considered doctrines such as primary jurisdiction, denying dismissal of the negligence, strict liability, and SMCRA counts while staying or dismissing others pending agency determinations; it also addressed the preliminary injunction motion by requiring evidence of imminent harm before granting relief.

environmentbusiness & regulatorytorts & liability

The case involves a pro se inmate's lawsuit against prison officials, a dental contractor, and medical services providers alleging violations of the Eighth and Fourteenth Amendments due to repeated delays in providing dental care for a broken tooth and subsequent complications while incarcerated at Mount Olive Correctional Complex. The court reviewed objections to a magistrate judge's proposed findings and recommendations on multiple motions to dismiss and for summary judgment. It granted summary judgment to the corrections commissioner and former warden, dismissed deliberate indifference claims against the individual dentist, and dismissed certain other claims, while remanding for further consideration of whether the medical services company's policies and practices were constitutional. The reasoning focused on the plaintiff's failure to exhaust administrative remedies, applicable statutes of limitations, and insufficient evidence of deliberate indifference by some defendants under the governing constitutional standards.

civil rightscriminal law

This case involves Barbarah J. McPherson's action seeking judicial review of the Social Security Commissioner's final decision denying her applications for Disability Insurance Benefits under Titles II and XVI of the Social Security Act. The district court referred the matter to a magistrate judge, who recommended denying the plaintiff's motion for judgment on the pleadings, granting the defendant's motion, affirming the Commissioner's decision, and dismissing the case. After conducting de novo review of the portions of the proposed findings and recommendation to which the plaintiff objected, the court adopted the magistrate's findings and recommendation in full. The court concluded that the Administrative Law Judge's determinations regarding severe impairments and the absence of disability were supported by substantial evidence and reached through correct application of the relevant legal standards, requiring deference even where conflicting evidence might allow differing conclusions.

healthcarefederal power

This case consolidated challenges by two nonprofit organizations against multiple West Virginia campaign finance statutes and regulations, which they claimed were unconstitutionally vague or overbroad in restricting corporate spending on advocacy and imposing disclosure rules for independent expenditures and electioneering communications. The plaintiffs sought preliminary injunctions to allow planned public communications referencing candidates without fear of enforcement. The court determined that the organizations had standing based on a credible fear of prosecution, rejected defenses such as estoppel by acquiescence and laches, and analyzed how recent legislative amendments affected prior injunctions that had limited the laws to express advocacy under Buckley v. Valeo standards. It proceeded to evaluate the amended provisions' constitutionality while addressing motions to dismiss and related procedural issues.

free speechelections

The case concerns a former waitress at The Greenbrier resort who suffered a work-related back injury in 2002, received workers' compensation benefits, and later alleged that the employer's return-to-work policy requiring functional capacity evaluations prevented her from resuming employment and amounted to disability and racial discrimination under the ADA and Title VII. After the plaintiff filed complaints with the West Virginia Human Rights Commission and the parties cross-moved for summary judgment, the district court granted the defendant's motion in part and denied it in part, while denying the plaintiff's cross-motion as moot. The core reasoning examined whether the employer regarded the plaintiff as disabled within the meaning of the ADA, the appropriateness of the evaluations in assessing her ability to perform her specific job duties, and the sufficiency of evidence supporting the various discrimination and related claims.

labor & employmentcivil rights

This case involved defendant Teddy Dean Davis's motion to suppress evidence obtained from a search of his hotel room in connection with an investigation into credit card fraud and identity theft. The district court adopted the magistrate judge's recommendation and denied the motion in full. The core reasoning was that officers lawfully entered the room with consent, conducted a justified protective sweep for officer safety upon learning another person was present, and obtained valid consent to search the room, all consistent with Fourth Amendment requirements.

criminal lawprocedure

The case involved Barbara Kitchen suing Summers Nursing and Rehabilitation Center for wrongful discharge and failure to accommodate under the Americans with Disabilities Act and West Virginia Human Rights Act after she lost her left arm in a car accident and was terminated following her request for extended medical leave beyond FMLA. The district court granted the employer's motion for summary judgment. The core reasoning was that Kitchen did not establish she was a qualified individual able to perform essential job functions like lifting heavy equipment, climbing ladders, and assisting in emergencies at the time of her termination, as her doctor had not released her to return to work and indicated indefinite disability.

labor & employmentcivil rights

This case concerned a taxpayer's appeal from an IRS determination in a collection due process hearing upholding assessments of unpaid trust fund taxes for two periods in 1993. The assessments were made after the taxpayer, as an officer of a bankrupt company, signed a consent form while her personal bankruptcy case was pending. The court granted the taxpayer's motion for summary judgment and denied the IRS's cross-motion, holding that the IRS's solicitation of the consent form and the resulting assessments violated the automatic stay under the Bankruptcy Code and were therefore void. The court reasoned that acts taken in violation of the automatic stay are invalid, the taxpayer properly raised the issue in the hearing, and the consent form did not cure the violation or waive her right to challenge the assessments.

taxesprocedure

The case involved the United States seeking to recover unpaid federal income taxes and trust fund taxes assessed against Dr. Francis J. Whelan by foreclosing on a 2.97-acre parcel of real property in Wyoming County, West Virginia. The sons, who were substituted as defendants after Dr. Whelan's death, asserted that their interests under 1992 promissory notes secured by a 1996 deed of trust took priority over the government's tax liens. The court found that the United States had valid tax liens totaling $412,448.75 plus interest and that the sons held valid prior liens in the amounts of $13,394, $12,631, and $15,603. The court granted the United States' motion for summary judgment in part, determining that the tax liens were enforceable through foreclosure and sale of the property with proceeds distributed according to the priority of the liens.

taxesproperty

The case concerned the government's motion under Fed.R.Crim.P. 35 to reduce Patricia McMillion's 60-month sentence for distributing oxycodone, based on her provision of supplier names leading to two prosecutions plus extensive assistance by her daughter, who made 32 controlled buys resulting in over a dozen additional prosecutions. The court granted the motion and reduced the sentence to 30 months. It reasoned that Rule 35 permits consideration of third-party assistance when the defendant instigates or directs it, the assistance is substantial and gratuitous, the government would not have obtained it otherwise, and no countervailing circumstances exist, applying a multi-factor test drawn from United States v. Doe and United States v. Abercrombie.

criminal lawprocedure

The case involved a dispute over whether Georgia-Pacific Corporation could be required by a state family court order to reinstate health insurance benefits for an employee's spouse during divorce proceedings, despite the plan's open enrollment rules. Georgia-Pacific sought a declaratory judgment in federal court to declare the order unenforceable under ERISA. The court granted the motion to dismiss, holding that the Anti-Injunction Act barred the federal court from enjoining the state court proceedings because no statutory exception applied, including under ERISA.

family lawfederal powerhealthcare