1st Circuit Discusses Split Re Whether Transition and Self-Regulation Plans Under the Title II of the ADA are Enforceable by a Private Right of Action

Per Iverson v. City of Boston, 452 F.3d 94 (1st Cir. June 30, 2006):

This case requires us to decide whether the self-evaluation and transition plan regulations promulgated by the Attorney General under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12165, are enforceable through a private right of action. Two of our sister circuits have divided over the appropriate answer to this thorny question. Compare Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 913-15 (6th Cir.2004) (holding that the transition plan regulation is not so enforceable), with Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 857-60 (10th Cir.2003) (holding that both the self-evaluation and transition plan regulations are enforceable in that manner). After careful consideration, we conclude that recent Supreme Court precedent dashes any hope that these regulations are so enforceable. We also conclude that the plaintiffs' other arguments are unavailing and, accordingly, affirm the district court's grant of summary judgment in the defendant's favor.


It is beyond peradventure that, in certain aspects, Title II creates a private right of action against noncompliant public entities. See 42 U.S.C. § 12133; see also Lane, 541 U.S. at 517, 124 S.Ct. 1978. Here, however...the plaintiffs do not claim a direct violation of Title II; instead, they claim violations of, and concomitant rights to enforce, the self-evaluation and transition plan regulations...

An implementing regulation may under certain circumstances be enforced through the private right of action available under the organic statute that it implements. See Alexander v. Sandoval, 532 U.S. 275, 284- 85 (2001). Under Sandoval, however, a private plaintiff may not, merely by referencing the organic statute, enforce regulations that interdict a broader swath of conduct than the statute itself prohibits. After all, the power to create a private right of action, like the power to create positive federal law itself, lies exclusively with Congress. [T]he Sixth Circuit has held that the transition plan regulation is not enforceable through the instrumentality of Title II's private right of action. See Ability Ctr., 385 F.3d at 913-15. Although the development of a transition plan "may ultimately facilitate compliance with Title II," the court explained, "there is no indication that a public entity's failure to develop a transition plan [seriously] harms disabled individuals" or that a public entity cannot make its services, programs, or activities accessible to qualified disabled persons without first developing a transition plan. Id. at 914. In short, the transition plan regulation imposes an obligation beyond the statutory mandate and, therefore, is not privately enforceable. Id.

We embrace this reasoning...[and] reject the position of the Tenth Circuit, see Chaffin, 348 F.3d at 856-60.


D.C. Circuit Notes Split Re Probationary Internet Restrictions for Those Convicted of Sex Crimes

Per United States v. Sullivan, 451 F.3d 884 (D.C. Cir. June 27, 2006):

This circuit has yet to decide whether individuals convicted of sex crimes may have their Internet usage conditioned on Probation Office approval, and our sister circuits are divided on the issue. Compare United States v. Rearden, 349 F.3d 608, 621 (9th Cir.2003) (upholding Internet restriction), and United States v. Zinn, 321 F.3d 1084, 1093 (11th Cir.2003) (same), with United States v. Crume, 422 F.3d 728, 733 (8th Cir.2005) (reversing Internet restriction), and United States v. Sofsky, 287 F.3d 122, 126 (2nd Cir.2002) (same). This division among the circuits, coupled with the indication in the Sentencing Guidelines that some measure of Internet restriction is appropriate in cases like this one, commands our conclusion that the trial court committed no plain error [in holding that indictment of defendant for possessing child pornography should not be dismissed, because Congress acted within its authority under Article I, § 8 of the Constitution when it criminalized certain activities relating to material constituting or containing child pornography].


D.N.J. Considers Whether § 1983 Establishes a Cause of Action for Loss of Consortium

Per Norcross v. Town of Hammonton, Slip Copy, 2006 WL 1995021 (D.N.J. Jul 13, 2006):

Defendants argue that Plaintiff Robert Singletary cannot recover for loss of his wife's companionship and society after her arrest because 42 U.S.C. § 1983 does not provide for derivative claims, such as loss of consortium.

Although the Third Circuit has yet to resolve the issue, district courts within the Circuit are split over whether § 1983 establishes a cause of action for loss of consortium. See, e.g., Colburn v. City of Philadelphia, 2001 WL 872960, *2 (E.D.Pa.2001) (rejecting § 1983 claim for loss of consortium without addressing possible deprivation of plaintiff spouse's constitutional rights); Ballas v. City of Reading, 2001 WL 73737 at *7 (E.D.Pa.2001) (same); Wiers v. Barnes, 925 F.Supp. 1079, 1095 (D.Del.1996) (same); Quitmeyer v. SEPTA, 740 F.Supp. 363, 370 (E.D.Pa.1990) (same); but see Pahle v. Colebrookdale Twp., 227 F.Supp.2d 361, 380-81 (E.D.Pa.2002) (permitting consortium claim under § 1983); Brodlic v. City of Lebanon, 2005 WL 2250840 *8 (M.D.Pa.2005) (same).


[V]arious Circuit Courts have declined to find a constitutional right to consortium, on the grounds that “the United States Supreme Court has never held that the protections of substantive due process extend to claims based on governmental action which affects the family relationship only incidentally.” Shaw v. Stroud, 13 F.3d 791, 805 (4th Cir.1994) (rejecting plaintiff wife's argument that she had a substantive due process claim arising from the death of her husband); Niehus v. Liberio, 973 F.2d 526, 534 (7th Cir.1992) (“The right to a husband's assistance in raking leaves is not a liberty protected by the Fourteenth Amendment.”); Stallworth v. City of Cleveland, 893 F .2d 830, 838 (6th Cir.1990) (“[T]the relevant jurisdictional statute, 42 U.S.C. § 1983, does not reach [plaintiff's] claim of loss of consortium.”). While the Supreme Court has recognized constitutional protection for “rights to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, and to abortion,” the Court has never sanctioned constitutional protection of consortium. Id. (citations omitted).

. . .

This Court now finds that there exists no constitutional interest in the consortium of one's spouse and deigns to create such a right.


Ninth Circuit Acknowledges Split Re Availability of Alternatives to Tucker Act Jurisdiction

Per Marceau v. Blackfeet Housing Authority, 2006 WL 2035345 (9th Cir. Jul 21, 2006):

[Footnote 6] Contrary to Plaintiffs' assertions, where a case falls under Tucker Act jurisdiction, federal question jurisdiction cannot serve as an alternative basis for jurisdiction. Plaintiffs cite a Seventh Circuit case holding that federal question jurisdiction can be an alternative basis for jurisdiction, W. Sec. Co. v. Derwinski, 937 F.2d 1276, 1280-81 (7th Cir.1991), and indeed the circuits appear to be divided on this question. Compare C.H. Sanders Co. v. BHAP Hous. Dev. Fund Co., 903 F.2d 114, 118-20 (2d Cir.1990) (finding Tucker Act jurisdiction not exclusive, where there is federal question jurisdiction and a waiver of sovereign immunity), with A.E. Finley & Assoc. v. United States, 898 F.2d 1165, 1167 (6th Cir.1990) (“[I]f an action rests within the exclusive jurisdiction of the Claims Court under the Tucker Act ... the district court does not have jurisdiction regardless of other possible statutory bases.”). The Ninth Circuit has not squarely confronted the particular arguments raised in those two cases, but has generally held that Tucker Act jurisdiction is exclusive. See, e.g., Skokomish Indian Tribe v. United States, 410 F.3d 506, 511 (9th Cir.2005) (en banc); M-S-R Pub. Power Agency v. Bonneville Power Admin., 297 F.3d 833, 840 (9th Cir.2002); Wilkins v. United States, 279 F.3d 782, 785 (9th Cir.2002). We see no reason to disturb that conclusion here. Because Tucker Act jurisdiction is exclusive, except where the Little Tucker Act provides concurrent district court jurisdiction, such claims are properly reviewed in the court of claims, not in the federal district courts.


Third Circuit Notes Split Re Application of FRCP 58's Separate Document Requirement

Per In re Cendant Corp. Securities Litigation, --- F.3d ----, 2006 WL 1994522 (3d Cir. Jul. 18, 2006):

Our Court's application of Rule 58(a) is controlled by Local Union No.1992, IBEW v. Okonite Co., 358 F.3d 278, 285 (3d Cir.2004). There we held that an "order's denomination as an 'order,' rather than a 'judgment,' does not mean that it fails to satisfy the separate document requirement." Id. [FN3] Instead, we explained that an order will be treated as a separate document if it meets three criteria: first, the order must be self-contained and separate from the opinion; second, the order must note the relief granted; and third, the order must omit (or at least substantially omit) the District Court's reasons for disposing of the parties' claims.

FN3. Some of our sister Circuits are divided on this point. Compare Kanematsu-Gosho, Ltd. v. M/T Messiniaki Aigli, 805 F.2d 47, 49 (2d Cir.1986) (per curiam) (holding that a document must be denominated a "judgment" in order to satisfy Rule 58), with United States v. Johnson, 254 F.3d 279, 285 n. 7 (D.C.Cir.2001) ("The fact that the page is labeled 'Order' rather than 'Judgment' is not relevant.").


Sixth Circuit Widens Split Re Whether § 1396a(a)(30) Provides Medicaid Recipients or Providers with a Right Enforceable under § 1983

Per Westside Mothers v. Olszewski, --- F.3d ----, 2006 WL 1976057, 2006 Fed.App. 0247P (6th Cir. Jul. 17, 2006):

Prior to Gonzaga University v. Doe, 536 U.S. 273 (2002), the circuits were split on the question of whether § 1396a(a)(30) provides Medicaid recipients or providers with a right enforceable under § 1983. The Fifth and Eighth Circuits each held that Medicaid recipients have a private right of action under § 1396a(a)(30). See Evergreen Presbyterian Ministries Inc. v. Hood, 235 F.3d 908, 927-28 (5th Cir.2000); Ark. Med. Soc'y, Inc. v. Reynolds, 6 F.3d 519, 528 (8th Cir.1993); cf. Pa. Pharmacists Ass'n v. Houstoun, 283 F.3d 531, 543-44 (3d Cir.2002) (en banc) (positing, in dicta, a right for recipients while rejecting such a right for providers); Visiting Nurse Ass'n v. Bullen, 93 F.3d 997, 1004 n. 7 (1st Cir.1996) (positing, in dicta, a right for recipients while holding that such a right existed for providers). The First, Seventh, and Eighth Circuits held that a private right of action existed for Medicaid providers. See Bullen, 93 F.3d at 1005; Methodist Hosps., Inc. v. Sullivan, 91 F.3d 1026, 1029 (7th Cir.1996); Ark. Med. Soc'y, 6 F.3d at 528. By contrast, the Third and Fifth Circuits explicitly held that § 1396a(a)(30) did not create a right enforceable by Medicaid providers. See Pa. Pharmacists Ass'n, 283 F.3d at 543; Walgreen Co. v. Hood, 275 F.3d 475, 478 (5th Cir.2001); Evergreen Presbyterian Ministries, 235 F.3d at 929. Since Gonzaga, the federal courts of appeals considering whether § 1396a(a)(30) provides Medicaid recipients or providers with a right enforceable under § 1983 have also come to conflicting conclusions. Compare Long Term Pharmacy Alliance v. Ferguson, 362 F.3d 50, 59 (1st Cir.2004) (holding that Medicaid providers do not have a private right of action under § 1396a(a)(30)), and Sanchez v. Johnson, 416 F.3d 1051, 1062 (9th Cir.2005) (concluding that § 1396a(a)(30) does not unambiguously manifest congressional intent to create individual rights), with Pediatric Specialty Care, Inc. v. Ark. Dep't of Human Servs., 443 F.3d 1005, 1015-16 (8th Cir.2006) (holding that § 1396a(a)(30) is enforceable by Medicaid recipients and providers through a § 1983 private cause of action).

After examining the text and structure of § 1396a(a)(30), we agree with the First and Ninth Circuits that § 1396a(a)(30) fails the first prong of the Blessing test and does not therefore provide Medicaid recipients or providers with a right enforceable under § 1983.


N.D. Cal. Notes Split Re Whether a Plaintiff May Recover Damages for Emotional Distress under the Privacy Act

Per Stafford v. Social Sec. Admin., --- F.Supp.2d ----, 2006 WL 1795120 (N.D.Cal. Jun. 28, 2006):

Finally, the Court notes the Circuit split on whether a plaintiff may recover damages for emotional distress under the Privacy Act, which the Ninth Circuit has not yet addressed. Compare Johnson v. Dep't of Treasury, 700 F.2d 971 (5th Cir.1983) (compensation allowed for proven mental injuries), with Fitzpatrick v. IRS, 665 F.2d 327, 331 (11th Cir.1982) (no compensation for "generalized mental injuries, loss of reputation, embarrassment or other non-quantifiable injuries"); see also Hudson v. Reno, 130 F.3d 1193, 1207 (6th Cir.1997); Orekoya, 330 F.3d at 7-10. The Supreme Court explicitly left the question unresolved in [Doe v.]Chao. 540 U.S. 614, 627 n. 12 (2004).


Eleventh Circuit Widens Split Re What Qualifies as "Physical Force" under § 922(g)(9) of the Armed Career Criminal Act

Per U.S. v. Griffith, --- F.3d ----, 2006 WL 1976047 (11th Cir. Jul. 17, 2006):

Jerry Lee Griffith was convicted for possession of a firearm in violation of 18 U.S.C. § 922(g)(9), the provision of the Armed Career Criminal Act (ACCA) that makes it a crime for anyone who has been convicted of a "misdemeanor crime of domestic violence" to possess a firearm. Griffith contends that his Georgia simple battery conviction does not qualify as a predicate offense for § 922(g)(9) purposes because its contact element does not require physical force. That was the sole basis of his motion to dismiss the indictment and is the principal basis of his appeal from the district court's order denying that motion. The underlying issue of statutory interpretation about what qualifies as "physical force" for § 922(g)(9) purposes has been decided by three other circuits, which have split two-to-one against Griffith's position. Our decision will make it three-to-one.


D. Colo. Notes Split Re Whether Enforcement of a Forum Selection Clause Is A Procedural or Substantive Matter

Per ADT Sec. Services, Inc. v. Apex Alarm, LLC, 430 F.Supp.2d 1199 (D. Colo. May 09, 2006):

The authorities are divided on the question whether enforcement of a forum selection clause is a procedural-governed by federal law-or substantive-governed by state law-matter for purposes of Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The Second, Fifth, and Ninth Circuits refer to federal law when considering motions to dismiss predicated upon forum selection clauses. Jones v. Weibrecht, 901 F.2d 17, 19 (2d Cir.1990); International Software Sys. v. Amplicon, Inc., 77 F.3d 112, 115 (5th Cir.1996); Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509 (9th Cir.1988). The Third Circuit has applied state law. General Eng'g Corp. v. Martin Marietta Alumina, Inc., 783 F.2d 352, 357 (3d Cir.1986). The Fourth Circuit in an unpublished opinion has applied state law without explanation. Nutter v. New Rents, Inc., 1991 WL 193490 (4th Cir.1991). Other circuits have declined to take a position on the question. Lambert v. Kysar, 983 F.2d 1110, 1116 (1st Cir.1993); Northwestern Nat'l Ins. Co. v. Donovan, 916 F.2d 372, 374 (7th Cir.1990); M.B. Restaurants, Inc. v. CKE Restaurants, Inc., 183 F.3d 750, 752 n. 4 (8th Cir.1999).

The Tenth Circuit has not ruled expressly on this issue. * * *


D.C. Circuit Discusses Split Re Use of Hearsay Evidence in Decision to Revoke Parole

Per Singletary v. Reilly, --- F.3d ---, 2006 WL 1867227 (July 7, 2006):

Parole revocation violates due process if the decision is “either totally lacking in evidentiary support or ··· so irrational as to be fundamentally unfair.” Duckett v. Quick, 282 F.3d 844, 847 (D.C.Cir.2002). In Crawford v. Jackson, 323 F.3d 123, 128 (D.C.Cir.2003), we found that “[r]eliance on hearsay in parole revocation hearings is not per se impermissible.” However, “the use of unsubstantiated or unreliable hearsay would certainly eviscerate the safeguards guaranteed by Morrissey and Gagnon.” Id. (internal quotation marks and ellipses omitted). Rather than focusing on whether evidence would be admissible at a criminal trial, courts reviewing revocation decisions “are properly more concerned with whether the evidence considered as a whole, including the hearsay evidence, was both sufficient in quantity and reliability to ensure fundamental due process rights.” Id. We applied the Duckett standard for the sufficiency of the evidence and “follow[ed] other circuits that have examined the reliability of the particular hearsay evidence, condemning reliance on it when the court reaches a negative evaluation.” Id. at 129.

Other circuits have split on the question of whether, prior to admitting hearsay, the parole authority must make an explicit finding of good cause for not allowing a parolee to confront an adverse witness. See, e.g., Barnes v. Johnson, 184 F.3d 451, 454 (5th Cir.1999) (“[T]he hearing officer must make an explicit, specific finding of good cause and state the reasons for that finding.”); Egerstaffer v. Israel, 726 F.2d 1231, 1234 (7th Cir.1984) (stating that no explicit finding is required when hearsay evidence “bears substantial guarantees of trustworthiness”). While we have not required an explicit finding of good cause at the hearing, we have placed the burden on the “parole authorities to ensure, before relying on hearsay, that there are sufficient indicia of reliability under the circumstances at hand to protect the prisoner's due process rights.” Crawford, 323 F.3d at 129.


N.D. Cal. Alludes to Split Re Emotional Distress Damages under Privacy Act

Per Stafford v. Social Sec. Admin., Slip Copy, 2006 WL 1795120 (N.D.Cal. June 28, 2006):

Finally, the Court notes the Circuit split on whether a plaintiff may recover damages for emotional distress under the Privacy Act, which the Ninth Circuit has not yet addressed. Compare Johnson v. Dep't of Treasury, 700 F.2d 971 (5th Cir.1983) (compensation allowed for proven mental injuries), with Fitzpatrick v. IRS, 665 F.2d 327, 331 (11th Cir.1982) (no compensation for “generalized mental injuries, loss of reputation, embarrassment or other non-quantifiable injuries”); see also Hudson v. Reno, 130 F.3d 1193, 1207 (6th Cir.1997); Orekoya v. Mooney, 330 F.3d 1, 7-10 (1st Cir. 2003). The Supreme Court explicitly left the question unresolved in Doe v. Chao, 540 U.S. 614, 627 n. 12. Because there is a triable issue of fact on causation, the Court need not address the issue unless and until Plaintiff establishes that her damages were caused by the disclosure at trial.


Tenth Circuit Notes Split re Level of Control Required for Subordinate Bias Liability Under Title VII

Per E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, --- F.3d ----, 2006 WL 1545501 (10th Cir. Jun. 7, 2006):

Despite broad support for some theory of subordinate bias liability [under Title VII], our sister circuits have divided as to the level of control a biased subordinate must exert over the employment decision. Some courts take a lenient approach, formulating the inquiry as whether the subordinate “possessed leverage, or exerted influence, over the titular decisionmaker.” See Russell, 235 F.3d at 227. . . . This standard apparently contemplates that any “influence,” the reporting of any “factual information,” or any form of “other input” by a biased subordinate renders the employer liable so long as the subordinate “may have affected” the employment action. . . .

At the opposite extreme, the Fourth Circuit has held that an employer cannot be held liable even if a biased subordinate exercises “substantial influence” or plays a “significant” role in the employment decision. Hill, 354 F.3d at 291. Taking its cue from the Supreme Court's statements in Reeves that “petitioner [had] introduced evidence that [the supervisor] was the actual decisionmaker” and was “principally responsible” for his firing, Reeves, 530 U.S. at 151-52, the Fourth Circuit held that these formulations mark “the outer contours of who may be considered a decisionmaker for purposes of imposing liability upon an employer.” Hill, 354 F.3d at 289. . . .

We find ourselves in agreement with the Seventh Circuit, which has rejected the Fourth Circuit's approach. . . . Rather, the issue is whether the biased subordinate's discriminatory reports, recommendation, or other actions caused the adverse employment action. . . .


Eleventh Circuit notes Split re Standard of Review for Denial of Franks Hearings

Per U.S. v. Arbolaez, --- F.3d ----, 2006 WL 1493833 (11th Cir. Jun. 1, 2006):

Generally, a court's decision about whether to hold an evidentiary hearing lies within that court's sound discretion and will be reviewed only for an abuse of discretion. See United States v. Dynalectric Co., 859 F.2d 1559, 1580 (11th Cir.1988). We have not stated a precise standard of review for a district court's denial of a Franks [v. Delaware, 438 U.S. 154 (1978)] hearing [to challenge the veracity of the affidavit supporting the search warrant], and other circuits are split on the issue.FN11 Because, as was the case for the Sixth Circuit in United States v. Stewart,“the more exacting de novo standard of review is satisfied” here, we need not address the issue further. Stewart, 306 F.3d 295, 304 (6th Cir.2002).

Footnote 11. Compare United States v. Fairchild, 122 F.3d 605, 610 (8th Cir.1997) (review for abuse of discretion), United States v. Skinner, 972 F.2d 171, 177 (7th Cir.1992) (review for clear error), United States v. Hadfield, 918 F.2d 987, 992 (1st Cir.1990) (same), and United States v. One Parcel of Property, 897 F.2d 97, 100 (2d Cir.1990) (same), with United States v. Homick, 964 F.2d 899, 904 (9th Cir.1992) ( de novo review), and United States v. Mueller, 902 F.2d 336, 341 (5th Cir.1990) (same); see also United States v. Stewart, 306 F.3d 295, 304 (6th Cir.2002) (discussing split).

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