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Bar News - December 17, 2014

US District Court Decision Listing
November 2014
* Published

Conservation Law Foundation, Inc. v. Plourde Sand and Gravel Co., Inc.
Case No. 13-cv-214-SM, Opinion No. 2014 DNH 235

Plaintiff, a regional non-profit organization dedicated to protecting the environment, including New Hampshire’s waterways, filed suit against defendant alleging specified violations of the Clean Water Act. Defendant moved to dismiss the complaint on grounds that plaintiff had not alleged sufficient facts to demonstrate that it had constitutional standing to maintain the lawsuit, and, it had not complied with the statutory preconditions to filing suit set out in the citizen suit provisions of the Clean Water Act. Concluding that plaintiff’s pre-suit notice to defendant complied with the statutory requirements and that plaintiff’s allegations regarding organizational standing, as supplemented by the declaration of one of its members, established plaintiff’s Article III standing to pursue its claims, the court denied defendant’s motion to dismiss. 31 pages. Judge Steven J. McAuliffe.

Dann Nerich v. Carolyn Colvin, Acting Commissioner, Social Security Administration
Case No. 13-cv-396-PB, Opinion No. 2014 DNH 239

Dann Nerich appealed the Social Security Administration’s (“SSA’s”) refusal to reopen his initial claim for disability benefits. The SSA had previously denied that claim, and the deadline for Nerich to appeal the denial had already expired. The ALJ rejected Nerich’s petition to reopen his prior claim, deciding that no basis existed to revisit the claim’s denial. This court affirmed the ALJ’s decision. First, this court determined that substantial evidence supported the ALJ’s finding that Nerich did not lack the mental capacity to understand the procedures for requesting further review when his original claim was denied. Thus, this court concluded, no basis existed under Social Security Ruling 91-5p to retroactively extend the deadline for Nerich to appeal the original claim’s denial. Next, this court held that it lacked jurisdiction to review the ALJ’s finding that Nerich had not submitted new and material evidence that would allow the ALJ to reopen the prior claim. Finally, this court concluded that the ALJ had not constructively reopened Nerich’s prior claim in a way that would subject the ALJ’s decision to this court’s review. Thus, this court affirmed the ALJ’s decision. 22 Pages. Judge Paul J. Barbadoro.

Sarah Lane Brown v. Carolyn Colvin, Acting Commissioner, Social Security Administration
Case No. 14-cv-51-PB, Opinion No. 2014 DNH 242

Sarah Lane Brown sought judicial review of a ruling by the Social Security Administration denying her application for disability insurance benefits and supplemental security income. Brown claimed that the Administrative Law Judge (“ALJ”) erred by failing to (1) properly assess her credibility about “the intensity, persistence and limiting effects” of her symptoms, and (2) assign appropriate weight to her treating physician’s opinions. This court rejected Brown’s arguments and affirmed the Administration’s decision. First, this court held that the ALJ’s credibility determination was supported by substantial evidence. Second, this court held that the ALJ did not need to give controlling weight to the treating physician’s opinions because the physician did not have a treatment relationship at the time of his first opinion and his second opinion was inconsistent with his own treatment notes. 35 pages. Judge Paul J. Barbadoro.

Deborah Parker v. Accellent, Inc.
Case No. 13-cv-053-JL, Opinion No. 2014 DNH 237

The plaintiff’s former employer moved for summary judgment on her claims that they had discriminated against her due to her alleged disability, and retaliated against her for requesting an accommodation for it. Granting the motion, the court ruled that (1) no rational jury could find that the alleged harassment of the plaintiff, insofar as it was based on her alleged disability, rose to the level of an actionable hostile environment, (2) since there was no genuine issue that, within one week of being notified of the plaintiff’s claimed need for a workplace accommodation, the employer proposed one, and that the proposed accommodation was reasonable, no rational jury could find that the employer failed to reasonably accommodate the plaintiff’s alleged disability,(3) since, after receiving that proposal as well as an invitation to submit a formal request for a workplace accommodation, the plaintiff quit, no rational jury could find she was constructively discharged, (4) there was no proof of a causal connection between the plaintiff’s requesting an accommodation and the allegedly retaliatory acts, and (5) there was no proof as to when the plaintiff had even availed herself of her rights under the Family Medical Leave Act, let alone of any causal connection between that and any alleged retaliation. 35 pages. Judge Joseph N. Laplante.

United States v. Olawaseun Adekoya
Case No. 13-cr-98/01-JL, Opinion No. 2014 DNH 236*

The defendant moved to suppress phone records and other evidence obtained as a result of the government’s seizure of his cellular phone and its viewing of an identification number inscribed on the exterior of the phone, both without a warrant. After hearing evidence, the court found that the phone had been in the defendant’s hand at the time of his arrest, making its seizure permissible under the “search incident to arrest” exception to the Fourth Amendment’s warrant requirement. The court rejected the defendant’s argument that this exception did not apply because neither of its twin aims–-protecting officer safety and preventing the destruction of evidence–-was implicated. The court further held that after seizing the phone, the government was entitled to examine its physical aspects, including the identification number, without first obtaining a warrant. 15 pages. Judge Joseph N. Laplante.

US v. Devon Smith
Case No. 14-cr-89/01-JL, Oral Order

Defendant moved to suppress the seizure of a sawed-off shotgun from his Rochester apartment where search warrant affidavit was based on purported anonymous tip of marijuana grow in the apartment, observations made during a warrantless entry into stairwell of defendant’s apartment building, and defendant’s un-Mirandized statements to a county jail correctional officer. Motion denied where court found that probable cause was established by the warrant affidavit, defendant’s jailhouse statements were neither “custodial” nor involuntary for Fifth Amendment purposes, that there is no Constitutional prohibition to using un-Mirandized statements in search warrant applications, and that purported misstatements or omissions in the search warrant affidavit, if any existed, were neither intentional nor reckless nor material under Supreme Court and Circuit precedent. No written order; ruling issued from bench after evidentiary suppression hearing. Judge Joseph N. Laplante.

Marcie Daniels v. Carolyn Colvin, Acting Commissioner, Social Security Administration
Case No. 13-cv-364-JL, Opinion No. 2014 DNH 243

The claimant appealed a decision by an Administrative Law Judge at the Social Security Administration that, if the claimant ceased her substance abuse, she would not be disabled by her severe impairments and, therefore, was not entitled to benefits. Affirming the decision, the court ruled that, in support of this conclusion, the ALJ supportably relied on the identical opinion of an independent psychologist who testified at the hearing, particularly when the record contained no contrary medical source opinion evidence. 8 pages. Judge Joseph N. Laplante.

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