Fifth Circuit Notes Split re Need for Viewpoint Neutrality under Hazelwood

Per Chiras v. Miller, --- F.3d ----, 2005 WL 3367698 (5th Cir. Dec. 12, 2005):

A split exists among the Circuits on the question of whether Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), requires viewpoint neutrality. Compare Fleming v. Jefferson County Sch. Dist., 298 F.3d 918, 928 (10th Cir.2002) ("We hold ... that Hazelwood does not require educators' restrictions on school-sponsored speech to be viewpoint neutral.") and Ward v. Hickey, 996 F.2d 448, 454 (1st Cir.1993) ("[T]he Court in Kuhlmeier did not require that school regulation of school-sponsored speech to be viewpoint neutral.") with Planned Parenthood of S. Nev., Inc. v. Clark County Sch. Dist., 941 F.2d 817, 830 (9th Cir.1991) ("Because their decision to limit access, whether wise or unwise, is reasonable and not an effort at viewpoint discrimination, the school district did not violate the first amendment in declining to publish Planned Parenthood's advertisements.") and Searcey v. Harris, 888 F.2d 1314, 1319 n. 7 (11th Cir.1989) ("Hazelwood ... does not alter the test for reasonableness in a nonpublic forum such as a school but rather provides the context in which the reasonableness of regulations should be considered .... [T]here is no indication that the [Hazelwood] Court intended to drastically rewrite First Amendment law to allow a school official to discriminate based on a speaker's views.") Because we conclude that Hazelwood does not apply in this case, we do not consider whether Hazelwood requires viewpoint neutrality.

Fourth Circuit Notes Circuit Split Re Jurisdiciton to Award Attorneys' Fees Under Sec. 1988

Per the Fourth Circuit in Wendt v. Leonard, --- F.3d ----, 2005 WL 3358875 (4th Cir. Dec 12, 2005):

As discussed in the district court's order denying Wendt's 60(b)(4) motion, however, there appears to be a split among the circuits regarding whether courts can award attorney fees under 42 U .S.C.A. § 1988 after having dismissed the underlying action for lack of subject matter jurisdiction. See Citizens for a Better Environment v. Steel Co., 230 F.3d 923, 925-28 (7th Cir.2000) (finding that, even if a court lacks power to rule on the substantive claims of the plaintiff, it does not necessarily lack power to award attorney fees, but discussing cases reaching a contrary result); Branson v. Nott, 62 F.3d 287, 293 (9th Cir.1995)("By itself, § 1988 does not provide the district court with jurisdiction to grant an attorney fee award where subject matter jurisdiction to hear the underlying § 1983 claim is lacking."); Keene Corp. v. Cass, 908 F.2d 293, 298 (8th Cir.1990)("[S]ection 1988 does not by its terms confer subject matter jurisdiction upon federal courts, but rather relies upon the provisions of other federal statutes, such as section 1983 read in conjunction with 28 U.S.C. § 1343 (1988) (civil rights and elective franchise jurisdictional statute), to confer subject matter jurisdiction.").

The parties' arguments concerning which courts are correct in the split of authority, however, ignore the unique nature of the extraordinary relief Wendt seeks in his Rule 60(b)(4) motion--vacating a final, unappealed order. Viewed in this context, we need not resolve which view of the law is correct. Rather, the mere fact that authorities disagree on this issue confirms that the district court had an "arguable basis" for jurisdiction. Mindful that we must not transform a Rule 60(b)(4) motion into a belated appeal that was never taken, we will not disrupt a final, unappealed order under these circumstances.

Readers can view the Federal Civil Practice Bulletin's post on this case by clicking here.

Tenth Circuit Discusses Split Re Inter-District Treatment of Federal Plea Agreements

Per U.S. v. Crobarger, No. 04-4264 (10th Cir. Dec. 07, 2005):

The circuit split involves the question of whether an agreement between an AUSA of one district and an individual should be construed as binding on another district where the agreement itself is ambiguous. The Second Circuit has held that while an AUSA of one district may theoretically bind another district, any ambiguity must be construed in the other district's favor. United States v. Annabi, 771 F.2d 670, 672 (2d Cir.1985) (holding that "[a] plea agreement binds only the office of the United States Attorney for the district in which the plea is entered unless it affirmatively appears that the agreement contemplates a broader restriction"). The Third, Fourth, and Ninth Circuits have held that any ambiguity must be construed against the government, and in favor of enforcing the agreement. Gebbie, 294 F.3d at 552 (construing ambiguity in plea agreement "against the Government and hold[ing] that .... [the] agreement [ ] bars the United States Attorney for the Western District of Pennsylvania from prosecuting [the defendants] for the same crimes and offenses that were at issue in the Ohio plea agreements"); United States v. Johnston, 199 F.3d 1015, 1021 (9th Cir.1999) (holding that while ambiguities in plea agreement must be construed against the government, where language is clear in binding only a particular district, another district is not bound by agreement); United States v. Harvey, 791 F.2d 294, 303 (4th Cir.1986) (construing ambiguity in plea agreement against the Government and thus holding agreement was binding on another federal district).

Supreme Court Resolves Circuit Split Re Attorney Fees under 28 U.S.C. § 1447(c)

The Supreme Court yesterday in Martin v. Franklin Capital Corp., --- S.Ct. ----, 2005 WL 3299410(U.S. Dec. 7, 2005) resolved a circuit split on the standard for an award of attorney fees under 28 U.S.C. § 1447(c). Section 1447(c) provides, in pertinent part, that an order remanding a removed case "may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal."

The Court held that "Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied."

This opinion is Chief Justice Roberts' first signed opinion as a member of the Court.

U.C. Davis Publishes Student Note on Split re PLRA Exhaustion Pleading Obligation

The U.C. Davis Law Review has just published a student note discussing the split among the circuits regarding which party has the burden of pleading exhaustion under the Prison Litigation Reform Act ("PLRA"). Here's an excerpt from the introduction:

The PLRA, which governs all prisoner-initiated suits brought under federal laws, creates various obstacles for prisoners who want to bring suit in federal court. The most important barrier to federal court is the PLRA's exhaustion requirement, section 1997e(a). Section 1997e(a) requires prisoners to exhaust their administrative remedies before they can bring valid suits alleging violations of prison conditions. However, the plain language of the PLRA does not indicate which party should plead administrative remedial exhaustion. The circuits are split about whether the plaintiff or defendant must bear the burden of pleading remedial exhaustion. The majority circuits hold that the defendant must plead failure to exhaust as an affirmative defense. On the other hand, the minority circuits hold that the burden of pleading administrative exhaustion falls on the plaintiff. This Comment argues that section 1997e(a) creates an affirmative defense requiring the defendant to plead failure to exhaust.

Jamie Ayers, Comment, To Plead or not to Plead: Does the Prison Litigation Reform Act's Exhaustion Requirement Establish a Pleading Requirement or an Affirmative Defense?, 39 U.C. Davis L. Rev. 247 (2005) [39 UCDLR 2].