Second Circuit Addresses Split Re Jurisdiction to Review Single-Member BIA Decisions

Per Kambolli v. Gonzales, --- F.3d ----, 2006 WL 1453116 (2d Cir. May 26, 2006):

We consider here whether we have jurisdiction to review a decision by a member of the Board of Immigration Appeals (“BIA”) unilaterally to affirm without opinion a decision of an immigration judge (“IJ”) pursuant to the BIA's “streamlining” procedures codified at 8 C.F.R. § 1003.1(e) rather than to refer the case to a three-member panel of the BIA …

Our sister circuits have split… on the question of whether Courts of Appeals are vested with jurisdiction to review the Board's decision to have a particular case decided by a single member rather than by a three-member BIA panel. Compare Ngure v. Ashcroft, 367 F.3d 975, 983 (8th Cir.2004) (decision to steamline “a particular case is committed to agency discretion and not subject to judicial review”), and Tsegay v. Ashcroft, 386 F.3d 1347, 1353-58 (10th Cir.2004) (concluding that appellate review is precluded because BIA summary affirmances provide no rationale, the regulations were not intended to grant aliens substantive rights, and review would be impractical and would defeat the “streamlining” purpose), with Smriko v. Ashcroft, 387 F.3d 279, 290-95 (3d Cir.2004) (remanding case to BIA for three-member panel review), and Haoud v.. Ashcroft, 350 F.3d 201, 206-08 (1st Cir.2003) (holding that, in a case in which a one-member decision without opinion left unclear whether affirmance was based on an application's untimeliness-a discretionary ground for denial that cannot be reviewed-or on the merits-which may be reviewed-Court of Appeals cannot know if it possesses jurisdiction and therefore must remand to BIA for explanation of ratio decidendi), and Chong Shin Chen v. Ashcroft, 378 F.3d 1081, 1086-88 (9th Cir.2004) (remanding a one-member decision without opinion to the BIA for determination of a “novel legal issue” by a three-member panel of the BIA).

We . . . conclude that we lack jurisdiction to review decisions by BIA members to affirm IJ decisions without opinion without reference to a three-member BIA panel--substantially for the reasons articulated by our sister circuits reaching the same result.


Tenth Circuit Splits with Fifth, Seventh Circuits over Effect of Adding Parties Post-CAFA on "Commencement”

BNA’s Class Action Litigation Report (Volume 7 Number 10, May 26, 2006, Page 334, ISSN 1529-8000) is reporting on Prime Care of Northeast Kansas LLC v. Humana Insurance Co., --- F.3d ----, 2006 WL 1305229 (10th Cir. May 12, 2006), in which the Tenth Circuit found that “only pleading amendments that do not relate back to the pre-CAFA initial filing date of a civil action ‘commence’ the action anew for Class Action Fairness Act purposes.”

"Remanding the suit to the district court for further analysis, Judge Mary Beck Briscoe determined that the statute, which applies to "any civil action commenced on or after [the statute's effective date--Feb. 18, 2005]" authorizes removal of a case filed pre-CAFA by a defendant first added in a post-CAFA pleading amendment, as long as the amendment does not relate back to the original filing."

BNA subscribers can view the full report on the case by clicking here.


Law.com Posts Article Discussing Circuit Divide over Lethal Injection

An article entitled Awaiting High Court Review of Lethal Injection, Circuits Are Divided is available at law.com by clicking here.


Seton Hall Circuit Review Publishes Summary of Current Circuit Splits

The Seton Hall Circuit Review has just published its latest catalogue of circuit splits. Westlaw subscribers can access the report by clicking here: 2 Seton Hall Circuit Rev. 509 (2006).


D. Puerto Rico Discusses Split Re Interpretation of FTCA Exception

Per Solis-Alarcon v. U.S., Not Reported in F.Supp.2d, 2006 WL 1360028 (D.Puerto Rico May 17, 2006):

28 U.S.C.A. § 2680(c), in relevant part, provides an exception to the United States' waiver of sovereign immunity found in the Federal Tort Claims Act as to “[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer.” The parties disagree over whether this subsection may be applied to the actions of Federal Defendants in seizing the Dodge Durango. Specifically, they hold opposing views as to the contours of the phrase “any other law enforcement officer”. Federal Defendants contend that they are covered by the exception… Plaintiffs respond that they may not seek refuge in that exception since the phrase should be interpreted to mean any other law enforcement officer working in a customs or tax-related capacity. Both contentions find some support in the case law; the Supreme Court has yet to resolve the issue, see Kosak v. U.S., 465 U.S. 848, 853 n. 6 (1984), there are no First Circuit decisions on this point, and there is a split among the circuits that have been faced with the issue.

Four Circuits, the Fourth, Sixth, Seventh, and District of Columbia Circuits, have championed the view espoused here by Plaintiffs: that § 2680(c)'s reference to “any other law enforcement officer” should be limited, by the terms of the section taken as a whole, to any other law enforcement officer, other than customs officers, working in the enforcement of tax or customs laws. See, Kurisnky v. U.S., 33 F.3d 594 (6th Cir.1994), Bazuaye v. U.S., 83 F.3d 482 (D.C.Cir.1996), Ortloff v. U.S., 335 F.3d 652 (7th Cir.2003), Andrews v. U.S., 441 F.3d 220 (4th Cir.2006)….Specifically, these courts have noted that if the ejusdem generis canon is applied, the general phrase “any other law enforcement officer” must be defined so as to only include items of the type that preceded it in § 2680's recitation. Andrews, 441 F.3d at 223-24. Therefore, the term “any other law enforcement officer” would encompass other law enforcement officers performing functions similar to those carried out by excise or customs officers. Id. The application of the noscitur a sociis canon would yield the same result, since it requires that the meaning of an undefined phrase be determined by the words immediately surrounding it. Id.at pp. 224-25. Moreover, as these decisions discuss, such an interpretation is consistent with the purpose of the FTCA and its exceptions…

Taking a different route, a majority of the other circuits that have addressed the issue--the Fifth, Eighth, Ninth, Tenth, Eleventh, and the Federal Circuit--have interpreted the phrase “any other law enforcement officer” expansively. See, Chapa v. U.S. Dep't of Justice, 441 F.3d 388 (5th Cir.2003) (§ 2680(c) precludes claim for loss of inmate's property, which he had given to Bureau of Prisons officers to be returned to him once he had transferred from one prison facility to another); Cheney v. U.S., 972 F.2d 247 (8th Cir.1992) (finding plaintiff's claim against federal drug task agent who seized a car title certificate and later returned it to plaintiff's girlfriend, who obtained the car and in whose possession it was damaged, covered by § 2680(c) and therefore not cognizable under the FTCA) …Many of these decisions have brief, if any, explanation for their holding…. Perhaps the fullest explanation for construing § 2680(c) as including law enforcement officers other than those acting in an excise or customs capacity can be found in Chapa, supra. There the Fifth Circuit reasoned that such interpretation comported with another of the exceptions found in § 2680, namely subsection (h), in which law enforcement officers are defined as “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law”. Chapa, 339 F.3d at p. 390 (quoting from 28 U.S.C.A.. § 2680(h)). However, addressing that line of reasoning, the Fourth Circuit noted that it would be erroneous to use § 2680(h)'s definition of law enforcement officer to ascertain the limits of the phrase “any other law enforcement officer” in § 2680(c) because § 2680(h) explicitly provides the definition for the purpose of that subsection only.

…[T]his Court is persuaded by the reasoning of the Fourth, Sixth, Seventh, and District of Columbia circuits.


N.D. Ohio Notes Split Re Whether Dismissal or Stay Is Appropriate After Grant of a Motion to Compel Arbitration

Per Eikona Technologies, Inc. v. Hitachi Medical Systems America, Inc., Slip Copy, 2006 WL 1345810 (N.D. Ohio May 16, 2006):

Defendant's Motion to Compel Arbitration is unopposed. The only issue remaining before this Court is whether the action should be stayed or dismissed. Plaintiff requests that the action be stayed. Defendant requests the action be dismissed. Upon review, there appears to be no determining Sixth Circuit case law on point. Additionally, it appears that there is a split among the Circuits as to this issue. Compare Lloyd v. Hovensa, LLC., 369 F.3d 263 (3rd Cir.2004) (holding that the court would take the text of 9 U.S.C § 3 at face value and would stay proceedings as opposed to dismissing them), and Adair Bus Sales, Inc. v. Blue Bird Corp., 25 F.3d 953, 955 (10th Cir.1994), with Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir.1992) (“The weight of authority clearly supports dismissal of the case when all of the issues raised in the district court must be submitted to arbitration.”), and Sparling v. Hoffman Const. Co., Inc., 864 F .2d 635, 638 (9th Cir.1988) (“9 U.S.C. section 3 gives a court authority, upon application by one of the parties, to grant a stay pending arbitration, but does not preclude summary judgment when all claims are barred by an arbitration clause.”), and Choice Hotels Intern., Inc. v. BSR Tropicana Resort, Inc., 252 F.3d 707, 709-10 (4th Cir.2001) (“Notwithstanding the terms of § 3, however, dismissal is a proper remedy when all of the issues presented in a lawsuit are arbitrable.”).

The plain language of the statute states:

If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.

9 U.S.C. § 3. Based on the above language, and absent any guidance on the issue from the Sixth Circuit, this Court hereby STAYS this action until completion of arbitration.


E.D. Ark. Discusses Split Re Whether Right to Privacy In Medical Information

Per Leher v. Bailey, Slip Copy, 2006 WL 1307658 (E.D. Ark. May 10, 2006):

The Supreme Court has never declared that there is a general right to privacy nor does the Constitution specifically confer such a right in its text. The Court has, however, carved different, specific privacy rights. Roe v. Wade, 410 U.S. 113 (abortion); Eisenstate v. Baird, 405 U.S. 438 (1972) (contraception); Loving v. Virginia, 388 U.S. 1 (1967) (marriage). However, there is no Supreme Court case declaring that medical information constitutes a zone of privacy protected by the Fourteenth Amendment. Although courts finding a right of privacy in medical information have cited to the Supreme Court decision in Whalen v. Roe, 429 U .S. 589 (1977), Whalen did not establish a zone of privacy for medical information. . . .

As could be predicted, the Circuits have split on the issue. Powell v. Schriver, 175 F.3d 107 (2nd Cir.1999) (holding based on prior Second Circuit authority that inmates have a right to privacy in their HIV and transsexualism status but that such a right was not clearly established in 1991 at the time of disclosure); Doe v. Wigginton, 21 F.3d 733 (6th Cir.1994) (no privacy right in medical information); Anderson v. Romero, 72 F.3d 518 (7th Cir.1995) (no privacy right in confidentiality of medical information); Doe v. Delie, 257 F.3d 309 (3rd Cir.2001) (disclosure of HIV status is protected by the right of privacy). The undersigned has been unable to find any Eighth Circuit or United States Supreme Court precedent that establishes that the right to confidentiality in HIV status in the prison context. Thus, it is with confidence that the undersigned reaches the conclusion that there was no clearly established right in 2003 under the Fourteenth Amendment for an inmate not to have medical information, such as HIV status, disclosed by government actors regardless of whether or not the actors made the disclosure on the basis of a legitimate penological reason.


D.N.H. Notes Split Re Right of a Civil Party to be Physically Present at Trial

Per McElwain v. Harris, Not Reported in F.Supp.2d, 2006 WL 1049935 (D.N.H. Apr 18, 2006):

In Fillippon v. Albion Vein Slate Co., the United States Supreme Court recognized the right of a civil litigant to be present in some capacity during the trial of her case: "We entertain no doubt that the orderly conduct of a trial by jury, essential to the proper protection of the right to be heard, entitles the parties who attend for the purpose to be present in person or by counsel at all proceedings from the time the jury is impaneled until it is discharged after rendering the verdict." 250 U.S. 76, 81, 39 S.Ct. 435, 63 L.Ed. 853 (1919). Fillippon, however, left open the question whether a civil party, if represented by counsel, has a right to be physically present. The First Circuit has never directly resolved this question.

Other circuits are split. Compare Kulas v. Flores, 255 F.3d 780, 786 (9th Cir.2001) (“In a civil suit, the parties do not have a constitutional right to be personally present during trial.”), and Arrington v. Robertson, 114 F.2d 821, 823 (3d Cir.1940) (“The due process clause of the Fifth Amendment to the Constitution requires that a defendant be accorded the right to be present in person or by counsel at every stage of ··· trial.” (emphasis supplied)), with Preferred Prop., Inc. v. Indian River Estates, Inc., 276 F.3d 790, 797 (6th Cir.2002) (“[T]here is no doubt that a civil litigant has the right to be present in person ‘at all proceedings from the time the jury is impaneled until it is discharged after rendering a verdict.’ ” (quoting Fillippon, 250 U.S. at 81) (emphasis supplied)), Helminski v. Ayerst Labs., 766 F.2d 208, 213-218 (6th Cir.1985) (finding that, consistent with the Due Process Clause of the Fifth Amendment, a civil litigant may be excluded from her own trial only in certain circumstances), and Macartney v. Compagnie Generale Transatlantique, 253 F.2d 529, 536 (9th Cir.1958) (interpreting Fillippon to mean that “both parties (and their counsel) are entitled to attend all proceedings from the time the jury is impaneled until it is discharged.” (emphasis supplied)).


D.N.M. Notes Split Re Burden of Proof in “Reasonable Accommodation” Claims under the Fair Housing Act

Per Jama Investments, L.L.C. v. Incorporated County of Los Alamos, Slip Copy, 2006 WL 1228771 (D.N.M. February 16, 2006):

The Plaintiffs assert … that the Defendants have the burden of proving that the Plaintiffs' proffered accommodation [for a residential group home] is unreasonable…

The Tenth Circuit has not provided guidance on which party bears the burden of proof in a reasonable accommodation claim. Other Circuits have split on this question. In the Third Circuit, “the plaintiff bears the initial burden of showing that the requested accommodation is necessary to afford handicapped persons an equal opportunity to use and enjoy a dwelling, at which point the burden shifts to the defendant to show that the requested accommodation is unreasonable.” Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment, 284 F.3d at 457

The United States Courts of Appeals for the Fourth, Fifth, Sixth, and Eleventh Circuits allocate the reasonable accommodation burden differently. These Circuits require the plaintiff to show that an accommodation is reasonable, rather than forcing the defendant to show that an accommodation is unreasonable. See Loren v. Sasser, 309 F.3d 1296, 1302 (11th Cir.2002) (citations omitted); Groner v. Golden Gate Gardens Apts., 250 F.3d at 1045; Bryant Woods Inn v. Howard County, 124 F.3d at 603-04 (citation omitted); Elderhaven, Inc. v. City of Lubbock, 98 F.3d 175, 178 (5th Cir.1996).

…[A] plaintiff's burden with respect to the plausibility of reasonable accommodation is one of production only... It is enough for the plaintiff to suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits. Once the plaintiff has made this facial showing that accommodation is possible, the burden shifts to the defendant to prove that accommodating the plaintiff would pose an undue hardship. Woodman v. Runyon, 132 F.3d 1330, 1334 (10th Cir.1997).


10th Circuit Notes Split Re Mens Rea Requirement for Kidnapping Threat Statute

Per U.S. v. Teague, 443 F.3d 1310 (10th Cir. Apr. 21, 2006):

The statute that Mr. Teague was found to have violated, 18 U.S.C. § 875(c), provides:

Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.

Section 875(c) does not have an explicit mens rea requirement.

. . .

Several circuits have considered the mens rea necessary to violate § 875(c). The issue is generally discussed in terms of whether the statute requires specific intent or merely general intent, with only the Ninth Circuit requiring specific intent, see United States v. Twine, 853 F.2d 676, 680 (9th Cir.1988). The others state that general intent is all that is required. See United States v. Whiffen, 121 F.3d 18, 21 (1st Cir.1997); United States v. Francis, 164 F.3d 120, 121 (2d Cir.1999); United States v. Himelwright, 42 F.3d 777, 783 (3d Cir.1994) (“[S]ection 875(c) requires proof of a defendant's general intent to threaten injury, but does not require proof of a specific intent to injure another or the present ability to carry out the threat.” (emphasis added, internal italics omitted)); United States v. Darby, 37 F.3d 1059, 1066 (4th Cir.1994); United States v. Myers, 104 F.3d 76, 81 (5th Cir.1997); United States v. DeAndino, 958 F.2d 146, 150 (6th Cir.1992) (Section 875(c)“does not require specific intent in regard to the threat element of the offense, but only general intent”); United States v. Stewart, 411 F.3d 825, 827-28 (7th Cir.2005). We recognize that the terms general intent and specific intent can be ambiguous in many contexts, and further elaboration may be necessary to clarify precisely what the accused must know and intend. See United States v. Zuni, --- F.3d ----, ----, slip. op at 5-10 (10th Cir.2006); 1 Wayne R. LaFave, Substantive Criminal Law § 5.1(b), at 336-37, 355 (2d ed. 2003) (“[C]ourts have often said that a ‘general intent’ is needed, but this is often not helpful because of the ambiguity attending that phrase···· [G]reater clarity could be accomplished by abandoning the ‘specific intent'-‘general intent’ terminology····”); 1 Paul H. Robinson, Criminal Law Defenses § 65(e), at 298 (1984) (“The distinction [between general and specific intent] is a troublesome one.”). But the thrust of the circuit opinions is clear. Even Mr. Teague acknowledges that there is a circuit split on the issue before us.


W.D. Va. Discusses Split Re Whether Tacking Is Question of Law or Fact; Holds That Tacking Is Issue of Fact

Per Adventis, Inc. v. Consolidated Property Holdings, Inc., Slip Copy, 2006 WL 1134129 (W.D. Va. April 24, 2006):

The tacking doctrine is essentially a constructive use theory that recognizes the ability of a trademark owner to claim priority in a mark based on the first use date of a similar, but technically distinct, mark.

. . .

Although the courts that have addressed the tacking doctrine have universally allowed it, the issue of whether tacking is one of law or fact has garnered differing opinions.

The Federal, Sixth, and Ninth Circuits have held that the issue of tacking is a legal conclusion premised upon whether two designs are legal equivalents. See Van-Dyne Crotty, Inc., 926 F.2d at 1159, Data Concepts, Inc., 150 F.3d at 623; Brookfield Comm'ns, Inc., 174 F.3d at 1048. A district court in the Seventh Circuit, however, has held that the issue of tacking is one of fact. See Navistar Int'l Transp. Corp. v. Freightliner Corp., 52 U .S.P.Q.2d 1074, 1079 (N.D.Ill.1998). Similar to the circuit split on the issue of likelihood of confusion, certain circuits have held that that issue is one of fact, while the remaining circuits have held it is a mixed issue of law and fact. Compare Adventis, Inc., 124 Fed. Appx. at 173 (citing Anheuser-Busch, Inc. v. L. & L. Wings, Inc., 962 F.2d 316, 318 (4th Cir.1992), for the holding that likelihood of confusion is an issue of fact in the Fourth Circuit) with Little Caesar Enters., Inc. v. Pizza Caesar, Inc. ., 834 F.2d 568, 570 (6th Cir.1987) (holding that likelihood of confusion is a mixed question of law and fact). As an issue of first impression, the court holds that whether two designs should tack is an issue of fact.


D.N.J. Discusses Split Re Whether a District Court Can Order a Federal Sentence to Run Consecutively to a State Sentence Not Yet Imposed

Per Palacio v. Nash, Slip Copy, 2006 WL 1128711 (D.N.J. April 25, 2006):

In United States v. Randolph, the Court of Appeals for the Third Circuit noted the split between the circuits as to whether a district court can order a federal sentence to run consecutively to a state sentence not yet imposed. 80 Fed. Appx. 190, 2003 WL 22596104 (3d Cir. Oct. 20, 2003). The Sixth, Seventh, and Ninth Circuits have held that the district court may not order a federal sentence to run consecutively to a future state sentence, while the Fifth, Tenth, and Eleventh Circuits have held that a district court may so order consecutive sentences. See Randolph, 80 Fed. Appx. at 193-94 (citations omitted). The Third Circuit found that the last sentence of § 3584(a) requires that sentences be served consecutively if the federal court does not address the issue, “as they unquestionably [are] multiple terms of imprisonment imposed at different times····” See id. at 195. The court held that a petitioner “in Randolph's position must serve his state and federal terms of imprisonment consecutively unless he can convince the Bureau of Prisons to designate the state prison as ‘the official detention facility at which the sentence is to be served.” ’ Id. at 196 (citing 18 U.S.C. § 3585(a); 18 U.S.C. § 3621(b); FN4 Barden, 921 F.2d at 481-84) (other citation omitted).


First Circuit Notes Split Re Need For Prior Notice When Deviating From Guideline Range on New Grounds

Per U.S. v. Jones, Slip Copy, 2006 WL 1085543 (1st Cir. 2006):

[T]he circuits are divided on the issue of whether prior notice is required before a sentencing court, operating under advisory guidelines, may deviate from the GSR [guideline sentencing range] on a ground neither argued by the government in its pre-sentencing memorandum nor elaborated in the PSI Report. Compare, e.g., United States v. Long Soldier, 431 F.3d 1120, 1122 (8th Cir.2005) (holding that no such prior notice is required), with, e.g., United States v. Dozier, --- F.3d ----, ---- (10th Cir.2006) [2006 WL 864877, at *2] (holding to the contrary).


Tenth Circuit Notes Split re Continuing Availability of Guidelines-Based Departures after Booker

Per U.S. v. Sanchez-Juarez, --- F.3d ----, 2006 WL 1165967 (10th Cir. May 3, 2006):

After Booker, which excised § 3553(b)(1) from the Sentencing Reform Act, see Booker, 543 U.S. at 259,FN2 circuits are divided in regard to whether such Guidelines-based departures may still be granted or have become obsolete. Compare United States v. Vaughn, 433 F.3d 917, 923 (7th Cir.2006) (“[T]he concept of a discretionary departure-over which we previously had no jurisdiction-has been rendered obsolete in the post- Booker world.” (internal quotation omitted)), with United States v. McBride, 434 F.3d 470, 477 (6th Cir.2006) (“[W]e believe that Guideline departures are still a relevant consideration for determining the appropriate Guideline sentence. This Guideline sentence is then considered in the context of the [ § ] 3553(a) factors.”). This circuit has stated that “[w]e view a direct challenge to a district court's discretionary decision not to depart downward as a challenge to the district court's preliminary application of the guidelines (the first step under [ United States v.] Kristl [, 437 F.3d 1050 (10th Cir.2006) (per curiam) ] ), and this challenge ··· remains unreviewable.” Chavez-Diaz, 2006 WL 1000811, at *5.

However, the different positions on that issue have had no bearing on circuits' assessment of their post-Booker jurisdiction. This is because post-Booker sentences within the Guidelines range do not result simply from the district court's determination that no departure is warranted under 18 U.S.C. § 3553(b)(1) and USSG Ch. 5 Pt. K. Rather, after Booker, every sentence that a district court ultimately imposes must reflect its determination of what is reasonable in light of the same § 3553(a) factors, whether that sentence is within or outside the Guidelines range.

Accordingly, as five other circuits have concluded, unreasonable sentences, whether they fall within or outside the advisory Guidelines range, are “imposed in violation of law” and thus reviewable pursuant to § 3742(a)(1). In effect, then, the meaning of “in violation of law” in § 3742(a)“is ··· broadened for sentences imposed after Booker.” Chavez-Diaz, 2006 WL 1000811, at *5. We note, furthermore, that the Supreme Court in Booker expressly directed appellate courts to review all sentences for reasonableness.


Fourth Circuit Weighs in on Split Re Status of Denial of Parker Protection under Collateral Order Doctrine

Per South Carolina State Bd. of Dentistry v. F.T.C., --- F.3d ----, 2006 WL 1134136 (4th Cir. May 01, 2006):

The central question in this case is whether the Board may presently appeal the FTC's determination that it is not entitled to [“state action antitrust immunity” under Parker v. Brown, 317 U .S. 341 (1943)]. Generally, a party may only appeal from an order that “ends litigation on the merits and leaves nothing for the court to do but execute the judgment.” Caitlin v. United States, 324 U.S. 229, 233 (1945). See also28 U.S.C.A. § 1291 (West 1993) (“The courts of appeals ··· shall have jurisdiction of appeals from all final decisions of the district courts of the United States····”). The Supreme Court has, however, allowed interlocutory appeals in a “small class” of cases that “finally determine claims of right separable from, and collateral to, rights asserted in the action.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).

. . .

The Court has [] reserved “collateral order” status only for orders that meet three “stringent” conditions: an order must “[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment.” Will, 126 S.Ct. at 957. See also Digital Equip. Corp., 511 U.S. at 867. “If the order fails to satisfy any one of these requirements, it is not an immediately appealable collateral order.” Carefirst of Md., Inc. v. Carefirst Urgent Care Ctr., 305 F.3d 253, 258 (4th Cir.2002).

There is no dispute that the denial of Parker protection satisfies the first collateral order requirement; a decision that the Board is not entitled to such protection “conclusively determines” the question of whether the Board is subject to the Federal Trade Commission Act restrictions on anticompetitive conduct. The circuits are divided, however, as to whether the denial of Parker protection satisfies the final two requirements. Two circuits have said that it does. See Martin v. Memorial Hosp., 86 F.3d 1391, 1394-97 (5th Cir.1996); Commuter Transp. Sys. v. Hillsborough Cty. Aviation Auth., 801 F.2d 1286, 1289 (11th Cir.1986). Two others have suggested the same in dicta. See We, Inc. v. City of Philadelphia, 174 F.3d 322, 329 (3rd Cir.1999); Segni v. Commercial Office of Spain, 816 F.2d 344, 346 (7th Cir.1987). The Sixth Circuit, however, has held that the denial of Parker protection fails to meet either of the final two collateral order requirements. See Huron Valley Hosp., Inc. v. City of Pontiac, 792 F.2d 563, 567 (6th Cir.1986). Because we too conclude that the Parker analysis is neither “completely separate from the merits” nor “effectively unreviewable” after trial, we join the Sixth Circuit in holding that the denial of Parker protection is not an immediately appealable collateral order.


Sixth Circuit Joins Split re Whether Crawford Applies Retroactively

Per Fulcher v. Motley, --- F.3d ----, 2006 WL 996615 (6th Cir. Apr. 18, 2006):

Several circuit courts of appeal have addressed the retroactivity of Crawford [Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (holding testimonial out-of-court statements by witnesses barred, under the Confrontation Clause, unless witnesses unavailable and defendants had prior opportunity to cross-examine witnesses, regardless of whether such statements are deemed reliable by court, abrogating Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597,)]. The Second, Tenth, and Seventh Circuits have held that Crawford does not apply retroactively. The Ninth Circuit has held that Crawford does apply retroactively and that [Antiterrorism and Effective Death Penalty Act (AEDPA)] does not bar such retroactive application.

. . .

The Teague [Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)] analysis requires this Court to 1) determine whether Crawford announced a new rule, 2) determine whether that rule was a “watershed rule” in criminal procedure, 3) apply the rule in the case at bar (if the rule is found to be retroactive), and 4) determine whether any resulting error was harmless. Because Ash's statement falls squarely within the facts of Crawford, the parties do not dispute the statement's inadmissibility under Crawford.

. . .

Because Crawford is a watershed rule of criminal procedure, I would apply Crawford [retroactively] to find that the introduction of Ash's taped statement violated Petitioner's rights under the Confrontation Clause of the Sixth Amendment. . . .


E.D. Texas Notes Circuit Split re Whether Federal Aviation Act Preempts Field of Aviation Safety

Per Monroe v. Cessna Aircraft Co., 417 F. Supp. 2d 824 (E.D. Tex. Feb. 17, 2006):

Circuit courts are split on whether the field of aviation safety is preempted by the Federal Aviation Act. The Supreme Court has yet to directly address the issue. The Tenth and Third Circuits have directly addressed the issue and come to opposite conclusions. As discussed above, the Fifth Circuit has only addressed specific areas of aviation safety and has yet to come to a conclusion as to the entire field.

. . .

The field of aviation safety is not preempted by the Federal Aviation Act. There is not sufficient evidence of a clear intent by Congress to preempt, neither through a pervasive scheme of federal regulations set forth by the FAA nor within the Act's text and legislative history. Although some courts have found that the entire field of aviation safety is preempted by the Federal Aviation Act, the Fifth Circuit has not come to the same conclusion. . . . [N]either the field of aviation safety nor negligence and strict product liability claims against aircraft manufacturers are impliedly preempted by federal law in the Fifth Circuit. . . .


S.D. Georgia Notes Circuit Split re Whether the FTCA Statute of Limitations is Jurisdictional

Per Nelson v. Chaney, 2006 WL 1039885 (Apr. 19, 2006):

When plaintiff filed the instant action on December 6, 2004, the six month period had elapsed and plaintiff's complaint was untimely. Under either limitations period, plaintiff is forever barred from seeking relief for these claims in the federal courts.FN5

Footnote 5: In his response to the motion to dismiss, plaintiff argues that defendants did not affirmatively raise the statute of limitations defense in their answer as required by Fed.R.Civ.P. 8(c), and should be prohibited from raising it in a motion to dismiss. Although the circuits are split on whether the FTCA statute of limitations is jurisdictional, the Eleventh Circuit has held that § 2401 is jurisdictional. “The district court has jurisdiction over a claim under the FTCA only if the plaintiff has first applied to the appropriate agency and been denied.” Keira v. United States Postal Inspection Service, 157 Fed. Appx. 135, 136 (11th Cir.2005) (unpublished opinion) (affirming district court dismissal of plaintiff's FTCA claims where administrative claim not brought to agency within two years of accrual of claim). See also Skwira v. United States, 344 F.3d 64, 71 (1st Cir.1997) (“failure to comply with the FTCA's statute of limitations means that the district court lacks subject matter jurisdiction to entertain the suit and must dismiss it”), cert. denied,542 U.S. 903, 124 S.Ct. 2836, 159 L.Ed.2d 267 (2004); Johnson v. United States, 2005WL 1605822 (W.D. Tex. June 30, 2005). But see Hughes v. United States, 263 F.3d 272 (3d Cir.2001) (since equitable tolling may apply to FTCA's statute of limitations, it is not jurisdictional and therefore a waivable affirmative defense).


D. Conneticut Notes Split re Whether Discovery During Litigation is Publicly Disclosed

Per U.S. ex rel Smith v. Yale Univ., 415 F.Supp.2d 58 (D. Conn. Feb. 14, 2006) in Footnote 7:

Although the Second Circuit adopted the Stinson approach in Kreindler, the circuits are split on how to treat discovery disclosed during litigation. Both the D.C. Circuit and the Seventh Circuit disagreed with the Stinson approach, holding that “discovery material which has not been filed with the court and is only theoretically available upon the public's request” is not “publicly disclosed” within the meaning of Section 3730(e)(4)(A). United States ex rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 652 (D.C.Cir.1994); United States v. Bank of Farmington, 166 F.3d 853, 860 (7th Cir.1999). Every Court of Appeals to consider whether discovery material which has been filed with a court has been publicly disclosed within the meaning of Section 3730(e)(4)(A), however, has answered that question in the affirmative. See Quinn, 14 F.3d at 651 n. 4 (collecting cases). As the Second Circuit has already spoken on the issue, the approach adopted in Kreindler controls in this case and any information disclosed during discovery in the State Court Action to a party not under a “court imposed limitation as to its use” will be deemed “publicly disclosed.”

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