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By FindLaw Staff on June 04, 2010 | Last updated on March 21, 2019

Berhane v. Holder, No. 09-3153, concerned a challenge to the BIA's affirmance of IJ's denial of an application for asylum and related relief by a citizen and a native of Ethiopia, on the ground that throwing rocks at the Ethiopian police constituted a serious nonpolitical crime.  In vacating the denial, the court held that a decision committed to the Attorney General's discretion by regulation does not satisfy the prerequisite that Congress specify by statute the Attorney General's discretion over an issue.  Furthermore, the court held that the Board's determination that the criminal nature of petitioner's actions "outweighed their political components is without sufficient reasons. 

Swanson v. DeSantis, No. 09-1501, concerned habeas proceedings arising from a conviction for killing a pedestrian while driving under the influence.  In dismissing an appeal of the district court's grant of the petition in part in determining that defendant had failed to exhaust her jury instruction claim but had exhausted her Blakely claim,  the court held that it lacks jurisdiction as the district court's decision to grant or deny a stay of its own proceedings is not ordinarily a final decision for the purposes of section 1291. 

Gor v. Holder, No. 08-3859, concerned a petition for review of a removal order of an Indian citizen, entered on the ground that he is an alien convicted of child abandonment.  The court dismissed the matter as it lacked  jurisdiction to review the original BIA decision as well as the denial of the motion to reopen sua sponte. 

Bennett v. MIS Corp., No.08-2567, concerned a challenge to the district court's order dismissing the complaint for failure to state a claim in air traffic controllers' suit alleging personal injuries based on their exposure to toxic mold at the airport.  First, the court affirmed in part the judgment of the district court in concluding that the first mold remediation firm's section 1442(a)(1) removal was proper and the district court therefore possessed subject matter jurisdiction over plaintiffs' claims.  Next, the court held that the Fultz rule of law forecloses plaintiffs' claims against the consulting defendants as they did not assume the FAA's duty to provide a reasonably safe working environment when the FAA hired them to provide consulting services. 

However, the court reversed the part the judgment of the district court dismissing the second mold remediation firm in concluding that the firm's use of an allegedly unapproved biocide gave rise to a duty under Michigan law to foreseeable persons that was "separate and distinct" from its contract with the FAA.  Finally, the court held that the district court did not err when it denied plaintiffs' motion for leave to file an amended complaint with respect to their proposed common law fraud claim as futile. 

In re: Metro. Gov of Nashville, No. 09-5511, concerned a defendants' petition for a writ of mandamus, arising from plaintiffs' racial discrimination suit against their employer. First, the court dismissed defendant's appeal of the district court's grant of plaintiffs' motion for a new trial as such an order is generally not appealable as the order does not qualify as a "final decision" under 28 U.S.C section 1291.  In addition, the court rejected the defendant's contention that jurisdiction exists to consider its appeal by means of reviewing the district court's purported finding of alleged attorney misconduct.  Next, the court granted the petition in part to the extent of directing the district court to rule on the outstanding disparate-impact claims within 90 days from the filing of this opinion and denied remainder of the petition.

Nat'l Union Fire Ins. Co. v. VP Bldg., Inc., No. 08-4537, concerned a challenge to the district court's affirmance of the bankruptcy court's decision disallowing an insurer's petition for administrative expenses, on the ground that the claim was not "actual" and did not benefit the estate.  In affirming the decision, the court held that, pursuant to In re HNRC Dissolution Co., 371 B.R. 210, (E.D. Ky. 2007), the insurer's request for reimbursement is not an "actual" expense within the meaning of the bankruptcy code. 

White Oak Prop. Dev., LLC v. Washington Township, No. 09-3527, concerned a housing developer's suit against a town and its trustees, alleging various claims of constitutional violations. In affirming the district court's grant of defendants' motion for summary judgment, the court held that the plaintiff's attempt to void the Zoning Regulation for vagueness fails.  The court also held that the district court properly granted summary judgment to defendants on the FHA claim, and on the Equal Protection claim as plaintiff has failed to demonstrate the Zoning Regulation's prohibition against multiple-family dwellings, on its face, discriminates on the basis of race.  Lastly, the court held that plaintiff's substantive due process claim was properly dismissed as it did not have a protected property interest in developing its property in accordance with its development plan. 

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