N.D. Ill. Notes Split re Damages under the Electronic Communications Privacy Act

Per DirecTV, Incorporated v. Schulien, --- F.Supp.2d ----, 2005 WL 3115894 (N.D. Ill. Nov. 17, 2005):

There is some debate over whether damages under section 2520(c)(2) [a provision of the Electronic Communications Privacy Act] are discretionary or mandatory. The issue that has divided the appellate circuits, but the Seventh Circuit--the first to address this issue--has held that the language of section 2520(c)(2) requires trial courts to award damages to prevailing parties under the Act. Rodgers, 910 F.2d at 448. The Seventh Circuit stated that the term “may” as used in the subsection is “ambiguous” and “there is nothing in the legislative record explaining why Congress made the change from the word ‘shall’ to the word ‘may.’ In the absence of any such statement, we are hesitant to read a grant of discretion to the district courts where none had been permitted in the past.” Rodgers, 910 F.2d at 448. Since then, the Fourth, Sixth, Eighth, and Eleventh Circuits have rejected this analysis and held that an award of damages under section 2520(c)(2) is discretionary based on the change in the plain language of section 2520(c)(2). Nalley v. Nalley, 53 F.3d 649, 652 (4th Cir.1995); Dorris v. Absher, 179 F.3d 420, 429 (6th Cir .1999); Reynolds v. Spears, 93 F.3d 428, 434 (8th Cir.1996); DirecTV, Inc. v. Brown, 371 F.3d 814, 818 (11th Cir.2004). I am constrained to follow the Seventh Circuit's decision in calculating damages.


Eleventh Circuit on Split Re Judicial Estoppel

Per the Eleventh Circuit in Transamerica Leasing, Inc. v. Institute Of London Underwriters, --- F.3d ----, 2005 WL 3110515 (11th Cir. Nov. 22, 2005):

"[W]e have not yet had occasion to decide whether judicial estoppel should apply when the prior position resulted in a settlement, and not in the court actually adopting a position. This question has divided the circuits. Some courts have held that judicial estoppel does not apply when the prior position was asserted in a case that resulted in settlement. See In re Bankvest Capital Corp., 375 F.3d 51, 60-61 (1st Cir.2004) (refusing to apply judicial estoppel where prior proceeding ended in settlement); Blanton v. Inco Alloys Int'l, Inc., 108 F.3d 104, 109-10 (6th Cir.), supplemented by,123 F.3d 916 (6th Cir.1997) (noting that judicial estoppel should be applied only to positions a party successfully maintained in a prior suit, and that a settlement results in “successful” positions for neither side); Bates v. Long Island R.R. Co., 997 F.2d 1028, 1038 (2d Cir.1993) (noting that because a settlement neither requires nor implies judicial endorsement of a particular argument, a position taken in a case that settles cannot give rise to judicial estoppel). Not all courts share this view. See Commonwealth Ins. Co. v. Titan Tire Corp., 398 F.3d 879, 887 (7th Cir.2004) (noting that judicial estoppel can apply when the prior dispute resulted in settlement); Rissetto v. Plumbers Local 343, 94 F.3d 597, 604-05 (9th Cir.1996) (noting that a favorable settlement is the equivalent of winning a judgment for the purposes of judicial estoppel). We need not address this difficult question because the other elements of judicial estoppel have not been established."


D. Maine Judge Discusses Differences Among Circuits in Attorney Fee Calculations

Judge Hornby in D. Maine (Nilsen v. York County, --- F.Supp.2d ----, 2005 WL 3006684 (D. Me. Nov. 10, 2005)) has just issued a very thorough opinion providing a detailed discussion of the various methods of calculating appropriate attorney fees awards across the circuits in a common fund case. He ultimately rejected the popular multi-factored tests in favor of the "market-mimicking" approach embraced by the Seventh Circuit. Applying the market-mimicking approach, Judge Hornby found that the 30% share of the $3.3 million settlement won by the civil rights plaintiffs' attorneys was too high and permitted an award of 25%.

Check out the opinion if you are interested in reading a comprehensive discussion of the various approaches the circuits take to calculating attorneys fees in common fund cases.


W.D. Va. Notes Split re Proper Course When Plaintiff's 1983 Claim is Silent as to Capacity

Per Plaster v. Brown, Slip Copy, 2005 WL 3021961 (W.D. W. Va. Nov 08, 2005):

Circuits have split over the proper course of action to take when plaintiff's § 1983 claim is silent as to capacity. Id. at 59-60. The Sixth and Eighth Circuits presume that defendant is only being sued in his official capacity if the complaint does not state otherwise. Id. at 59-60. A majority of circuits, including the Fourth Circuit, look to the substance of the plaintiff's claim, the relief sought and the course of the proceedings to determine the nature of a § 1983 suit when plaintiff fails to allege capacity. Id. at 59. In this case, the question of capacity need not be resolved.

Seventh Circuit on Split re Persecution of Boyfriend Based on Forced Sterilization of Girlfriend

Per Chen v. Gonzales, Slip Copy, 2005 WL 2709346 (7th Cir. Oct. 24, 2005):

To qualify for asylum, a petitioner must show that he is a refugee by proving that he was persecuted in the past or has a well-founded fear of future persecution on account of race, religion, nationality, membership in a social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A); Liu v. Ashcroft, 380 F.3d 307, 312 (7th Cir.2004). Under § 1101(a)(42)(B), an asylum applicant may establish persecution by showing that he or she has been forced to undergo sterilization or abortion; has been persecuted for failing to undergo either procedure; or has experienced persecution for other resistance to coercive family planning procedures. Lin v. Ashcroft, 385 F.3d 748, 752-53 (7th Cir.2004).

To the extent Chen is arguing before this court that the IJ erred in concluding that he could not avail himself of relief under § 1101(a)(42)(B) because he and his girlfriend were unmarried, he runs into the problem of deference to the agency's interpretation of the rules. As the IJ pointed out, although In re C-Y-Z- found past persecution of a husband based on the forced sterilization of his wife, see 21 I & N Dec. at 919, Chen and his girlfriend were not married and the BIA has never extended the C-Y-Z- rule to unmarried couples. Other courts of appeals have accepted this reading of the statute. See, e.g., Chen v. Ashcroft, 381 F.3d 221, 227-29 (3d Cir.2004) (presumption of persecution afforded to spouses of women forced to undergo abortions not extended to unmarried men); Zhang v. Ashcroft, 395 F.3d 531, 532 (5th Cir.2004) (same). The Ninth Circuit extends C-Y-Z- to couples who are married in traditional ceremonies, but are unable to legally register their marriage. See Ma v. Ashcroft, 361 F.3d 553, 559 (9th Cir.2004) (BIA decision not to extend C-Y-Z- to couples who are married in traditional ceremonies, but not legally registered, was not entitled to deference because § 1101(a)(42)(B) protects "couples"); Zheng v. Ashcroft, 397 F.3d 1139, 1148 (9th Cir.2005) (traditionally, but not legally, married husband eligible for asylum on the basis of wife's forced abortion). Notably, the First Circuit has characterized the case law as a circuit split. See Chen v. Gonzales, 418 F.3d 110, 111 & n. 2 (1st Cir.2005) (declining to address the question). And the Second Circuit, in Lin v. United States Department of Justice, 416 F.3d 184, 191-92 (2d Cir.2005), recently remanded a number of cases of the BIA to explain the rationale for limiting the asylum presumption to spouses. We are not persuaded that we should reach a result different than the Third and Fifth Circuits.

Seventh Circuit Weighs in on Reviewability of BIA Decision Affirming IJ Opinion Containing Reviewable and Non-Reviewable Bases

Per the Seventh Circuit in Cuellar Lopez v. Gonzales, 427 F.3d 492 (7th Cir. Oct. 26, 2005):

Our sister circuits have come to different conclusions about the reviewability of an IJ decision that contains both a reviewable and nonreviewable basis, which the BIA affirms without opinion.

. . .

The Ninth, Fifth, and First Circuits have concluded that the proper disposition when an IJ opinion contains both reviewable and nonreviewable grounds is to remand to the BIA so that it may clarify the basis of its holding. See Lanza v. Ashcroft, 389 F.3d 917, 919-20, 932 (9th Cir.2004) (holding that a remand to the BIA is necessary where the IJ's decision is founded on a discretionary and nondiscretionary basis and the BIA affirms without an opinion); Zhu v. Ashcroft, 382 F.3d 521, 527 (5th Cir.2004) (same); Haoud v. Ashcroft, 350 F.3d 201, 206-08 (1st Cir.2003) (same). The Tenth Circuit, in contrast, rejects the "assum[ption] that the decision from which jurisdiction is determined must be the decision by the highest tribunal in the hierarchy that considers the matter," holding instead that "we look to the IJ's decision (rather than the BIA's unexpressed reasons) ... when we are determining our jurisdiction." Ekasinta v. Gonzales, 415 F.3d 1188, 1193-94 (10th Cir.2005).

We agree with the reasoning of the majority position in this circuit split, which seems to us the best way to apply the rules that confine our jurisdiction in immigration matters to particular questions, while still safeguarding due process.


Seton Hall Publishes Circuit Split Summary

I have just come across the following article from the Seton Hall Circuit Review, which catalogues circuit splits existing earlier this year. The article is entitled Current Circuit Splits and the citation is 1 Seton Hall Circuit Rev. 147 (Spring 2005). Clicking here will take you to the Westlaw version of the article.

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