Suit Against City of Chattanooga and the Chattanooga Police Dept. Begins in Federal Court

Plaintiff, Mickel Hoback, a former Chattanooga Police Department Officer is suing the City of Chattanooga for $1.5 Million claiming the City violated his rights under the Americans with Disabilities Act when he was wrongfully terminated from the department for having Post Traumatic Stress Disorder (PTSD). Hoback served one year in Iraq, returning to work with the CPD in 2006. According to the federal complaint, former Chief of Police Freeman Cooper fired Hoback in 2009 upon learning of his PTSD.

During his cross-examination on Tuesday, Hoback admitted that he spoke to a counselor in 2009. During these sessions he admitted that his counselor suggested Mr. Hoback pursue a less stressful profession. He also admitted that he is on regular medication for his PTSD.

Once Chief Cooper learned of Hoback's condition, he ordered Hoback to undergo a mental evaluation with a city-contracted psychiatrist. Hoback was deemed unfit for duty after this evaluation. However, according to Hoback, he saw two other psychiatrists after this evaluation and was told he was fit for duty.

Hoback is asking for his job back with backpay and benefits, as well as $1.5 million for "humiliation and embarrassment, invasion of privacy, emotional pain and suffering, and mental anguish."

The trial will continue on Wednesday morning.

$3 Million Lawsuit Involving the University of the South Begins in Federal Court This Week

An interesting case began in Federal Court this week involving Sewanee: The University of the South. The Plaintiff, John Doe, brings this suit against Sewanee claiming negligence and a breach of contract. Specifically, he claims he was denied due process when he was punished for a rape allegation from another student.

The entire disciplinary process took less than a few days. It began with A.B. meeting with Dean Eric Hartman and submitting a written statement. Doe was then informed of the charges against him and was told about a disciplinary hearing the next day. He was told he would need a character witness, and that he should submit a written statement claiming he was too drunk to remember his actions that night.

The details of the hearing are not known, but Doe was not allowed inside the hearing except for when he testified. When the committee met the next day, it only took them a few hours to find Doe guilty. They told Doe he had two days to leave campus. It is alleged that Dean Hartman told Doe that appealing the ruling would increase his punishment and would likely cause A.B. to pursue criminal charges. Doe was also told to "destroy" all related material.

Doe was not permanently expelled from Sewanee. Instead, he was given two punishment options: he could leave school for a semester and reapply to the school with the disciplinary action on his record; or he could leave school for a year and reapply with a clean record. Doe chose the second option, but later decided not to return to the school. Doe, along with his parents, filed this lawsuit in June 2009.

The case began this week with jury selections. Seven women and two men make up the final nine jurors selected. Parties are expected to introduce expert witnesses in school administration, school disciplinary practices, and sexual harassment.

Federal Judge Harry "Sandy" Mattice told the court that the trial could last until August 31st. It will certainly be an interesting case to watch.

6th Circuit Denies Retroactivity of the Fair Sentencing Act

• United States v. Marrero

The 6th Circuit decided Wednesday that the Fair Sentencing Act of 2010 is not retroactive to the date when a defendant commits an offense. The FSA was enacted to alleviate some of the disparities in sentencing for offenses involving crack cocaine and offenses involving powder cocaine. Specifically, the FSA raises the amounts of crack cocaine required to trigger a mandatory minimum sentence.


Marrero was convicted of possessing 27.25 grams of crack cocaine. He was sentenced on August 11, 2008 to 360 months (30 years) of incarceration. Marrero appealed and argued that the FSA, enacted on August 3, 2010, should apply retroactively. Without FSA amended guidelines, Marrero faced an incarceration range from a 10-year mandatory minimum sentence to a maximum life sentence. With FSA guidelines, Marrero faced no mandatory minimum and a maximum of 30 years.


The 6th circuit refused to apply the FSA retroactively to offence date stating:

"In United States v. Carradine 621 F.3d 575 (6th Cir. 2010), cert. denied, 131 S.Ct. 1706 (2011), this court determined that the Fair Sentencing Act's penalty provisions do not apply to offenses committed prior to their enactment, id at 580 ("The new law at issue here, the Fair Sentencing Act of 2010, contains no express statement that it is retroactive nor can we infer any such express intent from its plain language. Consequently, we must apply the penalty provision in place at the time [the defendant] committed the crime in question.") Because Carradine is a prior published opinion of this court, we are bound by its pronouncement that the Fair Sentencing Act has no bearing on Marrero's case."

Because Marrero committed his offense prior to the enactment of the FSA, the 6th circuit denied his request for resentencing.


We discussed Chief Judge Curtis Collier's ruling in US v. Toney Robinson, Docket No. 1:10-CR-66 in February from the Eastern District of TN involving whether the FSA applied retroactively to those offenders who committed offenses before enactment, but were sentenced after enactment, here is the post. Today's opinion in Marrero clears up the issue of retroactivity of FSA to offence date but leaves open still other issues.  Read Judge Collier's opinion above for a full discussion.

Eastern District Finds Fair Sentencing Act Retroactive

Chattanooga--Chief Judge Curtis Collier ruled in US v. Toney Robinson, Docket No. 1:10-CR-66 that the Fair Sentencing Act applies to defendants whose offense occurred before August 4, 2010, and who are sentenced after that date.  Judge Collier distinguishes the Sixth Circuit's Carradine opinion.

This means that defendants who are sentenced after the FSA's effective date will have the new guidelines and the new and greater mandatory minimum thresholds applied: 28 and 280 grams of crack rather than 5 and 50 to trigger the mandatory 5 and 10 year minimum terms of imprisonment.

The government objects to the court's position and has said so last week in sentencing hearings in open court.  Many local lawyers suspect that this issue will go up to the Sixth Circuit for review soon.