First Circuit Discusses Split Re Hypothetical Federal Felony Approach to Determining What Constitutes an “Aggravated Felony” Under the INA

Per Berhe v. Gonzales, --- F.3d ---- , 2006 WL 2729689 (1st Cir. Sept. 26, 2006):

Herman Henry and Ambessa Hagos Berhe each petition for review of Board of Immigration Appeals' decisions ordering their removal. We have written a single opinion dealing with those separate petitions because they both question whether a state misdemeanor drug offense can constitute an "aggravated felony" for the purposes of the Immigration and Nationality Act (INA). See 8 U.S.C. § 1101(a)(43).

We reject the petitioners' contentions that we may only look to state law in such cases and reaffirm that a state misdemeanor drug offense can amount to an "aggravated felony" if that offense would have been a felony had it been charged under the federal drug laws.

. . .

[U]nder the Board's strict "hypothetical federal felony" approach, the phrase "drug trafficking crime" meant any conviction punishable by more than one year of imprisonment under one of the federal drug laws.

This approach has received mixed reviews from the circuit courts. In the civil immigration context, several circuits have adopted the Board's hypothetical federal felony approach. E.g., Gonzales-Gomes v. Achim, 441 F.3d 532, 534-36 (7th Cir.2006); United States v. Palacios-Suarez, 418 F.3d 692, 698-700 (6th Cir.2005); Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912-18 (9th Cir.2004); Gerbier, 280 F.3d at 308-12; Aguirre v. INS, 79 F.3d 315, 317-18 (2d Cir.1996). Under this approach, the underlying state classification of the offense is irrelevant. The circuits that have adopted this approach emphasize that focusing solely on federal law properly accounts for the need to apply the nation's immigration laws uniformly, and that an approach that allows the vagaries of state law to influence the determination would defeat this purpose. See, e.g., Achim, 441 F.3d at 535; Gerbier, 280 F.3d at 311-12.

At least two circuits have taken a more flexible approach. These circuits hold that a state conviction constitutes an "aggravated felony" if it (1) is punishable under one of the federal drug enforcement statutes, and (2) is a hypothetical federal felony or is a felony under the law of the convicting state. E.g., Lopez v. Gonzales, 417 F.3d 934, 936-37 (8th Cir.2005), cert. granted, --- U.S. ----, 126 S.Ct. 1651, 164 L.Ed.2d 395 (2006); United States v. Hernandez-Avalos, 251 F.3d 505, 507-08 (5th Cir.2001). This "dual approach" derives from circuit decisions interpreting the meaning of "aggravated felony" in the criminal sentencing context. [FN2]

FN2. The majority of circuits that have confronted the "aggravated felony" question in this context have utilized the dual approach, finding that a felony drug conviction under state law can amount to a "drug trafficking crime" regardless of how the crime would be classified under analogous federal law. See, e.g., United States v. Sanchez-Villalobos, 412 F.3d 572, 574 (5th Cir.2005); United States v. Ramirez, 344 F.3d 247, 251, 253-54 (2d Cir.2003); United States v. Wilson, 316 F.3d 506, 512-13 (4th Cir.2003); United States v. Ibarra-Galindo, 206 F.3d 1337, 1339-40 (9th Cir .2000); United States v. Briones-Mata, 116 F.3d 308, 309 (8th Cir .1997). But see Palacios-Suarez, 418 F.3d at 697-700 (adopting the hypothetical federal felony approach for both immigration and sentencing cases).

In light of the split in circuit authority, the Board retreated from strictly applying the hypothetical federal felony approach in all cases, in favor of applying the approach of the circuit in which the case before it originated. See In re Yanez-Garcia, 23 I & N Dec. 390, 396-98 (BIA 2002). In those circuits that have not definitively ruled on the issue, the Board follows the position taken by the majority of the circuits in criminal sentencing cases-- the dual approach. Id.


SCOTUS Grants Cert. in Forum Non Conveniens Case

The Supreme Court has granted review in Sinochem International Co. v. Malaysia International Shipping Corp., No. 06-102, a case that will resolve whether a district court must first conclusively establish jurisdiction before dismissing a suit on the ground of forum non conveniens.

The ruling below was from the Third Circuit, Malaysia Intern. Shipping Corp. v. Sinochem Intern. Co. Ltd., 436 F.3d 349. There, the court recognized a circuit split on the matter:

Courts of Appeals have split on the issue. Compare In re Arbitration Between Monegasque de Reassurances S.A.M. v. Nak Naftogaz of Ukraine, 311 F.3d 488, 497-98 (2d Cir.2002) (holding that courts may pass over jurisdictional questions and decide a forum non conveniens issue), and In re Papandreou, 139 F.3d 247, 255-56 (D.C.Cir.1998) (same), superseded by statute on other grounds, with Dominguez-Cota v. Cooper Tire & Rubber Co., 396 F.3d 650, 654 (5th Cir.2005) (per curiam ) (holding that they may not). These are the three cases most often referred to, but the Seventh and the Ninth Circuits have also reached the same result as the Fifth Circuit's Dominguez-Cota opinion. See Patrickson v. Dole Food Co., 251 F.3d 795 (9th Cir.2001), aff'd in part, cert. dismissed in part, 538 U.S. 468, 123 S.Ct. 1655, 155 L.Ed.2d 643 (2003); Kamel v. Hill-Rom Co., 108 F.3d 799 (7th Cir.1997).

The Third Circuit's position was that yes, jurisdictional questions had to be resolved before a court could get to the forum non conveniens issue.

The petition for certiorari was filed this past July by Gregory A. Castanias, Victoria Dorfman (a law school classmate of mine), and Jones Day, all of Washington, D.C., and Stephen M. Hudspeth, of Wilton, Conn., who handled the case before the Third Circuit.


M.D. Tennessee Notes Split Re Standing for Immediate Family Members to Bring § 1983 Suits for Own Injuries

Per Kinzer v. Metro. Gov’t of Nashville, --- F.Supp.2d ----, 2006 WL 2642605 (M.D. Tenn. Sept. 11, 2006):

Defendants contend that the loss-of-consortium claim brought by Plaintiff Mona Lisa Kinzer must be dismissed as a matter of law pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, because such a claim is not cognizable "under" 42 U.S.C. § 1983. As discussed below, the Court finds that there is no binding case law in this circuit requiring dismissal of Ms. Kinzer's claim for loss of consortium, and that it is permissible as a pendant state-law claim. Defendants' motion will therefore be denied.

. . .

The issue of whether the family members themselves could bring a § 1983 action based upon the same injuries was not at issue there, nor is it at issue in Ms. Kinzer's case. [FN4]

FN4. Although there is a split among the federal circuit courts as to whether the immediate family members of a person killed by unconstitutional government action can recover for their own injuries, those courts that do not allow such recovery are nonetheless uniform in their recognition that family members may nonetheless have standing under state wrongful-death statutes to recover for their own injuries, including loss-of-consortium type injuries if such are permitted by state law. See, e.g., Andrews v.. Neer, 253 F.3d 1052, 1064 (8th Cir.2001) (denying victim's widow recovery for her own injuries under § 1983, noting that the widow had not pursued her own separate wrongful-death claim under which such damages might have been recoverable); Berry v. City of Muskogee, 900 F.2d 1489, 1507 (10th Cir.1990) (holding that wrongful-death-type damages (such as loss of consortium) were not authorized under §§ 1983 and 1988, but noting that wrongful death claims were not foreclosed by § 1983 claims but "remain[ed] as pendent state claims").


Sixth Circuit Discusses Split Re Preemption of Title IX Claims Pursuant to § 1983

Per Communities for Equity v. Michigan High School Athletic Ass'n, 459 F.3d 676 (6th Cir. Aug 16, 2006):

On remand, MHSAA argues that, based on the Supreme Court's decision in Ranchos Palos Verdes, Title IX provides the exclusive remedy for the alleged violations that bars CFE from seeking additional remedies under 42 U.S.C. § 1983. CFE responds by contending that Rancho Palos Verdes does not apply to the present case and that CFE is therefore entitled to prevail under both Title IX and § 1983.

. . .

Two of our sister circuits, moreover, have relied on Lillard to hold that Title IX is not comprehensive enough to be exclusive even though the plaintiffs in those cases sought relief under § 1983 for equal protection violations rather than substantive due process violations. See Crawford v. Davis, 109 F.3d 1281, 1284 (8th Cir.1997) (distinguishing Sea Clammers and finding "unpersuasive the [ ] argument that Title IX contains a sufficiently comprehensive remedial scheme") (quotation marks omitted); Seamons v. Snow, 84 F.3d 1226, 1234 (10th Cir.1996) ("We agree with the Sixth Circuit [in Lillard ], and conclude that [the plaintiff's] § 1983 action [to enforce independent constitutional rights] is not barred by Title IX."). The analysis employed by the Eighth and Tenth Circuits in those cases did not differ from the analysis of Lillard even though those courts were, like in the present case, considering the preemption of equal protection claims pursuant to § 1983. In sum, the question of whether Title IX is comprehensive enough to be exclusive is an inquiry that does not change regardless of the constitutional claim at issue.

MHSAA's own characterization of the Sea Clammers holding--"that specific statutory remedies displace the general private right of action under 42 U.S.C. § 1983 when they are comprehensive enough to be exclusive "--demonstrates why Lillard is still good law. The Lillard court acknowledged the Sea Clammers doctrine and held that it did not apply to Title IX because Title IX was not comprehensive enough to be exclusive. In other words, the Lillard court found that the dearth of remedies authorized in Title IX, either private or public, indicated that Congress did not intend to preclude recovery under § 1983 when it enacted Title IX. See Lillard, 76 F.3d at 723.

We see nothing in Rancho Palos Verdes that requires modification of Lillard or its reasoning, even though, as MHSAA notes, three other circuits have held that Congress intended Title IX to be exclusive. See Bruneau v. South Kortright Cent. Sch. Dist., 163 F.3d 749, 756-59 (2d Cir.1998); Waid v. Merrill Area Pub. Sch., 91 F.3d 857, 862-63 (7th Cir.1996); Pfeiffer v. Marion Ctr. Area Sch. Dist., 917 F.2d 779, 789 (3d Cir.1990). Unlike this court in Lillard, the Second, Third, and Seventh Circuits declined to distinguish Sea Clammers on the basis that the Title IX cases concerned application of § 1983 to enforce independent constitutional rights rather than federal statutory law. See, e.g., Bruneau, 163 F.3d at 757 ("We see nothing in Sea Clammers that would support a constitutional rights exception."). Those circuits also held that because the Supreme Court concluded that Title IX contains an implied damages remedy, see Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), Title IX "gives plaintiffs access to the full panoply of judicial remedies." See Waid, 91 F.3d at 862-63 (holding that such access indicates Congress's intent to preclude reliance on § 1983).

In short, we cannot agree with our dissenting colleague that Title IX precludes relief under § 1983 simply because the Supreme Court has implied a private right of action. The Supreme Court has never held that an implied judicial remedy is enough to preclude relief under § 1983, and the caselaw does not support such a conclusion in the present case. The rationale on which Lillard was based, therefore, remains persuasive. Because we conclude that Lillard remains good law and is unaffected by Rancho Palos Verdes, CFE may seek remedies under § 1983 as well as under Title IX.


Eleventh Circuit Sides with Majority of Circuits, Holding Non-Fraud Securities Claims Must be Plead with Particularity

Per Wagner v. First Horizon Pharmaceutical Corp., 2006 WL 2661652 (11th Cir. Sept. 18, 2006):

Section 11 of the Securities Act creates a cause of action against persons preparing and signing materially misleading registration statements. 15 U.S.C. § 77k(a). A registration statement can be misleading either by containing an untrue statement or by omitting facts that are necessary to prevent other statements from being misleading. Id. There is no state of mind element to a § 11 claim, and liability is "virtually absolute, even for innocent misstatements." Herman & MacLean v. Huddleston, 459 U.S. 375, 382 (1983). Likewise, § 12(a)(2) extends similar liability to misrepresentations in prospectuses and oral communications. See 15 U.S.C. § 77l(a)(2). It is clear that neither allegations of fraud nor scienter are necessarily part of either of these claims. For this reason, we refer to these two claims as "nonfraud" claims in this opinion.

The question presented to us, however, regards whether there are circumstances when Federal Rule of Civil Procedure 9(b) would require nonfraud securities claims to be pled with particularity. Our sister circuits split on this matter. Compare Cal. Pub. Employees' Ret. Sys. v. Chubb Corp., 394 F.3d 126, 161 (3d Cir.2004); Rombach v. Chang, 355 F.3d 164, 171 (2d Cir.2004); Lone Star Ladies Inv. Club v. Schlotzsky's, Inc., 238 F.3d 363, 368 (5th Cir.2001); In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1404-05 (9th Cir.1996), with In re Nationsmart Corp. Sec. Litig., 130 F.3d 309, 314- 15 (8th Cir.1997). In line with the majority of circuits to address the matter, we hold that Rule 9(b) applies when the misrepresentation justifying relief under the Securities Act is also alleged to support a claim for fraud under the Exchange Act and Rule 10(b)-5.


E.D. N.Y Discusses Split Re Correct Scrutiny Standard for Review of Gender-Based Affirmative Action Plans

Per U.S. v. New York City Bd. of Educ., --- F.Supp.2d ----, 2006 WL 2591394 (E.D.N.Y. Sep. 11, 2006):

Prior to Croson, it was clear that gender-based affirmative-action plans were subject to intermediate scrutiny, which required that such plans "serve important governmental objectives and ... be substantially related to achievement of those objectives." Califano v. Webster, 430 U.S. 313, 317 (1977) (quoting Craig v. Boren, 429 U.S. 190, 197 (1976)). Subsequent to Croson, the Sixth Circuit began subjecting gender-based affirmative-action plans to strict scrutiny. See Brunet v. City of Columbus, 1 F.3d 390, 404 ("Under the [post-Croson ] precedent in this Circuit, gender based affirmative action plans are subject to strict scrutiny when challenged under the Equal Protection Clause." (citing Conlin v. Blanchard, 890 F.2d 811 (6th Cir.1989); see also Long v. City of Saginaw, 911 F.2d 1192 (6th Cir.1990). The other circuits to have considered the issue have concluded that, notwithstanding Croson, gender-based affirmative-action plans remain subject to intermediate scrutiny. See Ensley Branch, 31 F.3d at 1580 ("Intermediate scrutiny remains the applicable constitutional standard in gender discrimination cases."); Contractors Ass'n v. City of Philadelphia, 6 F.3d 990, 1001 (3d Cir.1993) ("We agree with the district court's choice of intermediate scrutiny to review the Ordinance's gender preference."); Coral Constr. Co. v. King County, 941 F.2d 910, 932 (9th Cir.1991) ("[W]e shall employ intermediate scrutiny to review King County's [Women-Owned Business Enterprise] program."); cf. Milwaukee County Pavers Ass'n v. Fiedler, 922 F.2d 419, 422 (7th Cir.1991) (assuming that Croson applied to gender-based affirmative action because state failed to argue that it did not, but noting that "Croson is about favoritism toward racial and ethnic groups, not about favoritism toward women"). The Second Circuit has recognized this circuit split, but has yet to weigh in on it. See Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 62 (2d Cir.1992) ("Croson may not apply to women-owned business enterprise programs, see Milwaukee County Pavers, 922 F.2d at 422, and the appropriate standard of review concerning gender-based set-asides remains unclear."). [FN51]

FN51. The Court recognizes that the plan at issue in Barhold was both race- and gender-conscious and that the Second Circuit nevertheless subjected the plan to strict scrutiny. Since, however, the court concluded that the plan survived the rigorous "narrowly tailored" standard, See 863 F.2d at 238, it did not have to address the possibility that a lesser standard might apply to affirmative action for women. Cf. Ensley Branch, 31 F.3d at 1580 (distinguishing prior case applying strict scrutiny to gender-based affirmative-action plan because "[w]e did not need to do [consider whether a less-exacting standard applied], given our holding that the plan satisfied even the searching Croson test").


Tenth Circuit Discusses Split Re Jury’s Role in Pickering Balancing Test

Per Weaver v. Chavez, 458 F.3d 1096 (10th Cir. Aug. 10, 2006):

Weaver's second argument is that the district court erred in concluding that her workplace speech sufficiently interfered with the operation of the City Attorney's office to support her termination. We disagree.

We apply a four-part test to determine whether a public employer's actions unjustifiably infringe on free speech rights. Schrier v. Univ. of Colo., 427 F.3d 1253, 1262 (10th Cir.2005). Steps one and two bear on the First Amendment interests at stake:

First, we must determine whether the employee's speech involves a matter of public concern. If so, we then balance the employee's interest in commenting upon matters of public concern against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

. . .

A preliminary question in this case involves the relative role of the trial court and the jury in determining the balancing of interests required at step two.

It is well-settled that the balancing assessment must be performed by the court, not the jury. See Gardetto, 100 F.3d at 811; see also Connick, 461 U.S. at 148 n. 7, 103 S.Ct. 1684 (noting that "[t]he inquiry into the protected status of speech is one of law, not fact"). The circuits are split, however, as to whether the jury has any role in the Pickering balancing, especially where the application of the balancing might turn on disputed questions of fact. See Lytle v. City of Haysville, 138 F.3d 857, 864 n. 1 (10th Cir.1998) (recognizing the circuit split but not reaching the issue because appellant failed to allege that any underlying factual disputes affected the Pickering balancing). Compare Johnson v. Ganim, 342 F.3d 105, 114-15 (2d Cir.2003) (stating "factual disputes pertaining to the potential for disruption and defendants' motivations in suspending and terminating plaintiff" are issues which "would properly be regarded as a question of fact, to be answered by the jury prior to the district court's application of the Pickering balancing test") (quotations omitted), and Belk v. City of Eldon, 228 F.3d 872, 881 (8th Cir.2000) ("Although the balancing of interests is a matter of law for the district court, the underlying factual questions should be submitted to the jury, generally through interrogatories or a special verdict form."), with Joyner v. Lancaster, 815 F.2d 20, 23 (4th Cir.1987) (holding "the advisory jury had no role to play" in resolving the question of "constitutional law for the court").


Ninth Circuit Notes Possible Split Re Federal Court’s Power to Inquire into Validity of State Court Orders under § 922(g)

Per U.S. v. Young, 458 F.3d 998 (9th Cir. Aug. 17, 2006):

We consider the conditions under which federal criminal law prohibits an individual from possessing a firearm if he is the subject of a state domestic violence restraining order.

. . .

The government contends that the district court wrongly expanded the requirements of § 922(g)(8) beyond the statutory text. Young, however, argues that the statute requires a state court hearing meeting the traditional requirements of due process. This case requires us only to construe § 922(g)(8); we do not consider whether the procedural protections in the underlying Washington DVNC statute satisfy due process.

First, we address Young's argument that "Congress only attached a firearms disability to those individuals who ... have already had a due process hearing." [FN14]

FN14. We note at the outset that there is a Circuit split as to whether § 922(g)(8) requires proof of a valid restraining order. The Fifth Circuit has squarely rejected the contention that a federal court should probe into state proceedings, noting that " 'nothing in section 922(g)(8) suggests that the validity of the particular predicate court order may be inquired into in the section 922(g)(8) criminal prosecution.' " United States v. Hicks, 389 F.3d 514, 534 (5th Cir.2004), cert. denied --- U.S. ----, 126 S.Ct. 1022, 163 L.Ed.2d 853 (2006) (quoting United States v. Emerson, 270 F.3d 203, 213 (5th Cir.2001)). However, the Seventh Circuit's decision in Wilson, 159 F.3d at 289-90, by entertaining a defendant's challenge to the underlying restraining order proceedings, has implicitly concluded that a due process hearing is required. To the extent that the Seventh Circuit intended to adopt this view, we decline to follow it, as explained below, because it appears to be in tension with the Supreme Court's decision in Lewis.

Young argues that the Sixth Circuit has also followed Wilson in United States v. Calor, 340 F.3d 428, 431 (6th Cir.2003). We disagree. Calor did not endorse the Seventh Circuit's view that the defendant could challenge the constitutionality of the state court proceedings in federal court. Rather, it interpreted the statute itself and then noted that its result was "consistent with that of the Seventh Circuit." Id.


Sixth Circuit Discusses Split Re Standard of Probable Cause in Searches

Per U.S. v. Pruitt, 458 F.3d 477 (6th Cir. Aug. 11, 2006):

Pruitt argues . . . that a circuit-split exists regarding the standard required for establishing a "reasonable belief" upon which officers may rely in order to enter a third-party's dwelling with only an arrest warrant. Pruitt urges this court to adopt the Ninth Circuit's ruling in United States v. Gorman, 314 F.3d 1105 (9th Cir.2002). In Gorman, the court ruled that probable cause was required to support the reasonable belief that the subject of an arrest warrant was in a third-party's residence. Id. at 1111-15. Pruitt contends that the officers here could not have had probable cause based only on an uncorroborated anonymous tip and the statement of an unknown and untested drug-seeking informant who provided the officers with fraudulent identification. Pruitt argues that such evidence is insufficient to meet the probable cause standard enunciated in Gorman.

In response, the Government argues that while a circuit-split does exist, a majority of the circuits that have ruled on the issue have determined that a lesser reasonable belief standard, and not probable cause, is sufficient to allow officers to enter a residence to enforce an arrest warrant, and that the officers here had adequate information in this case to meet this standard. We agree.

Our decision is consistent with the majority of our sister circuits who have ruled that consideration of common sense factors and the totality of the circumstances is sufficient to formulate a reasonable belief that a suspect is on the premises. See United States v. Route, 104 F.3d 59, 62-3 (5th Cir.1997) (finding that sound of television on the inside of the house and the presence of a car in the driveway was sufficient to form basis of the reasonable belief that the suspect was in the home); United States v. Risse, 83 F.3d 212, 216-17 (8th Cir.1996) (deciding that telephone call to residence confirming that suspect was there was far beyond what is necessary to establish reasonable belief); United States v. Lauter, 57 F.3d 212, 215 (2d Cir.1995) (holding that informant's tip that suspect was unemployed and liked to sleep late was sufficient to establish reasonable belief that suspect was in apartment); United States v. Edmonds, 52 F.3d 1236, 1248 (3d. Cir.1995) (deciding that surveillance in front of apartment and observation that no one left apartment during surveillance was sufficient to constitute reasonable belief that suspect was in apartment) . . . [and] United States v. Thomas, 429 F.3d 282, 286 (D.C.Cir.2005) (deciding that early morning hour of entry was sufficient to establish reasonable belief that suspect would be home) . . . Accordingly, we hold that an arrest warrant is sufficient to enter a residence if the officers, by looking at common sense factors and evaluating the totality of the circumstances, establish a reasonable belief that the subject of the arrest warrant is within the residence at that time.

Our holding contrasts with that of the Ninth Circuit, which alone has ruled that reasonable belief is the equivalent of probable cause in determining whether a suspect is within the residence. United States v. Gorman, 314 F.3d 1105, 1111 (9th Cir.2002) (" 'the reason to believe,' or reasonable belief, standard of Payton ... embodies the same standard of reasonableness inherent in probable cause."). . . [T]he dissent disregards the majority of our sister circuit's holdings, as well as the D.C. Circuit's assertion that it is more than "likely ... that the Supreme Court in Payton used a phrase other than 'probable cause' because it meant something other than 'probable cause.' " Thomas, 429 F.3d at 286 (referring to "[t]hus, for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Payton, 445 U.S. at 603, 100 S.Ct. 1371) (emphasis added). We find the D.C. Circuit's analysis convincing. The Payton Court's use of "probable cause" in describing the foundation for an arrest warrant and its use of "reason to believe" in describing the basis for the authority to enter a dwelling shows that the Court intended different standards for the two. Had the Court intended probable cause to be the standard for entering a residence, it would have either expressly stated so or used the same term for both situations. Instead, its use of different terms indicates that it intended different standards apply.


W.D. La. Notes Split Re Availability of ERISA Actions Against Parties Other Than a Plan Itself

Per Pippin v. Broadspire Services, Inc., Not Reported in F. Supp. 2d, 2006 WL 2588009 (W.D. La. Sept. 8, 2006):

The federal appellate courts are divided as to whether to permit an ERISA claim against parties other than the plan itself. See Gelardi v. Pertec Computer Corp., 761 F.2d 1323, 1324 (9th Cir.1985) (holding that plain language of ERISA permits only actions against plan as entity for recovery of benefits under § 1132(a)(1)(B) and actions for breach of fiduciary duty under § 1109(a) and § 1105(a)); Jass v. Prudential Health Care Plan, Inc., 88 F.3d 1482, 1490 (7th Cir.1996) (following Gelardi ); Lee v. Burkhart, 991 F.2d 1004, 1009 (2d Cir.1993) (rejecting notion that employer was de facto co-administrator jointly liable with named plan administrator); Garren v. John Hancock Mut. Life Ins., Co., 114 F.3d 186, 187 (11th Cir.1997) ("The proper party defendant in an action concerning ERISA benefits is the party that controls administration of the plan."); Terry v. Bayer Corp., 145 F.3d 28, 36 (1st Cir.1998) (quoting Garren ); Daniel v. Eaton Corp., 839 F.2d 263, 266 (6th Cir.1988) (holding that employer is proper defendant in suit for benefits under ERISA if it controlled administration of plan); Hall v. Lhaco, Inc., 140 F.3d 1190, 1194 (8th Cir.1998) (recognizing circuit split). Broadspire has cited district court decisions in the Sixth and Seventh Circuits in which it was dismissed as a party. Pippin, in turn, has cited district court decisions in the First, Third, and Eleventh Circuits in which motions to dismiss filed by Broadspire were denied.

The Fifth Circuit addressed this issue in Musmeci v. Schwegmann Giant Super Markets, Inc., 332 F.3d 339 (5th Cir.2003), where the plaintiff named both a pension plan and the corresponding employer as defendants. The employer in question acted as both the plan administrator and plan sponsor. In deciding that the employer was properly named as a defendant, the court observed, inter alia, that it was "indisputably" the employer's decision to deny benefits to the plaintiffs. Id. at 350; cf. Carroll v. United of Omaha Life Ins. Co., 378 F.Supp.2d 741, 747 (E.D.La.2005) (employer not proper defendant where plan insurer had "ultimate authority to determine eligibility for benefits, as well as the obligation to pay additional benefits"); Mello v. Sara Lee Corp., 292 F.Supp.2d 902, 907 (N.D.Miss.2003) (finding, in light of Musmeci, that plan trustee was proper defendant "assuming the plaintiff can establish that [plan trustee] exerted the requisite control over the Plan"). Based on the Fifth Circuit's reasoning, we conclude that an examination of Broadspire's role in denying Pippin's benefits claim is essential in order to determine whether it is a proper party.

. . . As Pippin contends that Broadspire maintains discretionary authority over the plan, Broadspire is a fiduciary to the plan, and therefore was properly named as a defendant. Accordingly, the defendant's motion to dismiss the plaintiff's complaint against the plan administrator should be denied because the defendant as movant for dismissal under Rule 12(b)(6) has not met its burden to prove that the plaintiff "can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46, 78 S.Ct. at 102; see also DuBois v. Wal-Mart Stores, Inc., No. 05- 0433, 2005 WL 1801977, at *2 (W.D.La. July 28, 2005) (Little, J.) (denying motion to dismiss cause of action against employer for denial benefits under Musmeci).

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