Third Circuit Switches Sides in Split Re Whether Violations of IDEA-Created Rights Are Actionable under § 1983

A.W. v. Jersey City Public Schools, 486 F.3d 791 (3d Cir. May 24, 2007):

In [W.B. v. ]Matula . . . we held that violations of IDEA-created rights are actionable under § 1983.

In Matula, we concerned ourselves with the jurisprudential and legislative directives regarding the availability of relief for IDEA violations. We noted that in Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), the Supreme Court held that the IDEA FN8 provided the exclusive means by which parents and children could remedy violations of the rights guaranteed therein, and that no constitutional claim would be therefore allowed. . . . However, in response to this decision, Congress enacted § 1415( l ) of the IDEA, to countermand Smith and make clear that actions can be maintained under the Constitution or under federal laws protecting the rights of children with disabilities notwithstanding the fact that the IDEA also protects these rights.

. . .

However, following Matula, reasonable minds have differed as to the correctness of our interpretation of the congressional reaction to Smith v. Robinson embodied in § 1415( l ). In addition, over the past decade, the Supreme Court has further refined its guidance as to how we should decide whether § 1983 relief is available for violations of statutory rights, most recently in City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 120, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005). All of these developments since Matula have informed our analysis in a way that requires us to reconsider our view.

The Courts of Appeals for the Fourth and Tenth Circuits have taken issue with our reading of § 1415( l ) and discernment of Congress' intent in enacting it. They note that the provision does not refer to § 1983; rather, it focuses on substantive rights.FN10 In *798 Sellers v. School Board of Manassas, Virginia, 141 F.3d 524 (4th Cir.1998), and Padilla v. School District No. 1, 233 F.3d 1268, 1273 (10th Cir.2000), the Courts of Appeals for the Fourth and Tenth Circuits, respectively, challenged our analysis of the congressional enactment of § 1415( l ) in reaction to Smith. . . .

In Padilla, the Court of Appeals for the Tenth Circuit noted that the issue had created a circuit split. Padilla, 233 F.3d at 1273 (comparing Sellers with Matula and Marie O. v. Edgar, 131 F.3d 610, 620-22 (7th Cir.1997)). . . .

Were we deciding this case in the year 2001, after these courts had voiced their disagreement with Matula, we might be conflicted as to whether to revisit the issue. On the one hand, the Courts of Appeals for the Fourth and Tenth Circuits offered the convincing arguments, noted above, as to how Congress' enactment of § 1415( l ) did not provide for § 1983 as a remedial tool here, and as to how our analysis with respect to the availability of relief in Matula was incomplete in light of other Supreme Court cases. On the other hand, several other courts had expressed views similar to ours in Matula, or had assumed § 1983 to be available.FN12 While the former may have tipped the scales somewhat towards rethinking Matula even then, the Supreme Court's discussion of the availability of § 1983 as a vehicle for redressing violations of federal statutory rights in Rancho Palos Verdes, 544 U.S. 113, 125 S.Ct. 1453, has tipped them definitively, and we are now convinced that our ruling in Matula is no longer sound.

S.D.N.Y. Notes Split Re Application of Administrative Exaustion Requirement to Statutory ERISA Claims

Per American Medical Ass'n v. United HealthCare Corp., Slip Copy, 2007 WL 1771498 (S.D.N.Y. June 18, 2007):

Decisions from six other circuits have held that the administrative exhaustion requirement applies to plan-based ERISA claims-that is, claims relating to violations of the terms or provisions of the plan at issue-but not to statutory ERISA claims-that is, claims that arise from a violation of the statute itself rather than of a plan. See Smith v. Snydor, 184 F.3d 356, 364-65 (4th Cir.1999); Chailland v. Brown & Root, Inc., 45 F.3d 947 (5th Cir.1995); Richards v. General Motors Corp., 991 F.2d 1227 (6th Cir.1993); Held v. Manufacturers Hanover Leasing Corp., 912 F.2d 1197 (10th Cir.1990); Zipf v. American Telephone & Telegraph Co., 799 F.2d 889, 891-92 (3d Cir.1986); Amaro v. Continental Can Co., 724 F.2d 747, 749-50 (9th Cir.1984). See also De Pace v. Matsushita Elec. Corp. of Am., 257 F .Supp.2d 543, 557 (E.D.N.Y.2003) (collecting cases). The Seventh and Eleventh Circuits, however, have declined to distinguish between statutory and plan-based ERISA claims, and instead require exhaustion regardless of the nature of the claim. See Mason v. Continental Group, Inc., 763 F.2d 1219, 1227 (11th Cir.1985); Kross v. Western Electric Co., 701 F.2d 1238 (7th Cir.1983).

Despite its earlier reference in Leonelli to administrative exhaustion in connection with fiduciary duty claims, the Second Circuit has explicitly recognized that the question of whether exhaustion is required for statutory as well as plan based claims remains open in this circuit. See Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 102 (2d Cir.2005) (recognizing the existence of a split among the circuits on this question and declining to “here decide whether administrative exhaustion is a prerequisite to a statutory ERISA claim.”).FN15 As the Nechis Court recognized, “[d]istrict courts in the Second Circuit have routinely dispensed with the exhaustion prerequisite where plaintiffs allege a statutory ERISA violation.” Id. (quoting De Pace, 257 F.Supp.2d at 558). District courts have continued to do so subsequent to the Nechis decision. See, e.g., Richards v. FleetBoston Financial Corp., 427 F.Supp.2d 150, 180 (D.Conn.2006) (declining to require exhaustion of administrative remedies where the plaintiff sought “relief for statutory violations, rather than violations of the terms of the Amended Plan.”) This Court agrees with the reasoning of De Pace and Richards, as well as with that of the Third, Fourth, Fifth, Sixth, Ninth, and Tenth Circuits, and notes that the Second Circuit has hinted that it also may do so, observing that it was “dubious that Nechis's claims may be dismissed for failure to exhaust administrative remedies[.]” Nechis, 421 F.3d at 100. The Court declines, therefore, to require administrative exhaustion of statutory-as opposed to plan-based-ERISA claims.

W.D.N.C. Notes Split Re Whether Rule 59(e) Motions Are Successive Applications for Habeas Relief

Per Strickland v. Lee, Slip Copy, 2007 WL 1792503 (W.D.N.C. June 19, 2007):

The Court is aware that two Federal Appellate Courts have issued published opinions treating the movants' Rule 59(e) motions as successive applications for habeas relief under 28 U.S.C. § 2244(b). See U.S. v. Pedraza, 466 F.3d 932, 933 (10th Cir.2006) ( citing Spitznas v. Boone, 464 F.3d 1213 (10th Cir.2006) (finding that Rule 59(e) motion was, in part, a successive § 2255 motion for habeas relief); U.S. v. Lambros, 404 F.3d 1034, 1036 (8th Cir.2005) (requiring certificate of appealability for Rule 59(e) motion because the motion “sought ultimately to resurrect the denial of [the] earlier [28 U.S.C.] § 2255 motion”); but see, Curry v. U.S., 307 F.3d 664, 666 (7th Cir.2002) (Since a 59(e) motion does not seek collateral relief, it is not subject to AEDPA's statutory limitations on such relief). The Court also is aware that separate three-judge panels of the Fourth Circuit Court of Appeals have issued unpublished opinions finding that the movants' Rule 59(e) motions were successive motions attacking their convictions and sentences under § 2255. See U.S. v. Mann, 141 Fed.Appx. 175 (4th Cir.2005) (unpublished) (citing United States v. Winestock, 340 F.3d 200, 206-07 (4th Cir.) cert. denied, 540 U.S. 995, 124 S.Ct. 496, 157 L.Ed.2d 395 (2003).); U.S. v. Martin, 132 Fed.Appx. 450 (4th Cir.2005) (unpublished) (citing Winestock, 340 F.3d at 207). However, in light of the split among the circuit courts, and in the absence of a published opinion from the Fourth Circuit, the Court will not treat Petitioner's Rule 59(e) Motion as successive under § 2244(b).

Second Circuit Notes Split Re Whether Ability of BIA Petitioner to Move to Reopen Cures a Lack of Notice

Per Chhetry v. U.S. Department of Justice, --- F.3d ----, 2007 WL 1759472 (2d Cir. June 20, 2007):

[T]he BIA did exceed its allowable discretion in denying Chhetry's motion to reopen based on inferences it drew from those noticed facts without giving him the opportunity to rebut the significance of the noticed facts as applied to his particular situation. The U.S. Courts of Appeals for the Fifth, Seventh, Ninth, Tenth, and D.C. Circuits have all concluded that petitioners must be given the opportunity to challenge, for both truth and significance, facts of which the BIA takes administrative notice when its reliance on those facts is dispositive, as was the case here. See Rivera-Cruz v. INS, 948 F.2d 962, 968 (5th Cir.1991) (“It is a fundamental proposition of administrative law that interested parties must have an effective chance to respond to crucial facts.”) (internal quotation marks omitted); Kaczmarczyk v. INS, 933 F.2d 588, 596 (7th Cir.1991) (“We believe the due process clause of the fifth amendment requires that petitioners be allowed an opportunity to rebut officially noticed facts, particularly when ... those facts are crucial to-indeed dispositive of-the outcome of the administrative proceeding.”); Castillo-Villagra v. INS, 972 F.2d 1017, 1029 (9th Cir.1992) (holding that the BIA violated the Fifth Amendment's due process clause “in taking notice of the change of government without providing the petitioners an opportunity to rebut the noticed facts”); de la Llana-Castellon, 16 F.3d at 1099 (holding, where the BIA made “disputable inferences” based on noticed facts, “due process require[d] the BIA to give Petitioners advance notice and an opportunity to be heard”); Gutierrez-Rogue v. INS, 954 F.2d 769, 773 (D.C.Cir.1992) (“[D]ue process guarantees an asylum applicant the right to challenge an officially noticed fact-with respect both to its truth and its significance.”). No court of appeals has concluded otherwise. We agree with our sister circuits that a petitioner must be given notice of, and an effective chance to respond to, potentially dispositive, administratively noticed facts.

There is, however, a circuit split as to whether a petitioner's ability to file a subsequent motion to reopen cures a lack of notice. The Fifth, Seventh, and D.C. Circuits have held that, for a petitioner on direct appeal from a final order of removal, the availability of a motion to reopen serves as a sufficient “mechanism to rebut officially noticed facts” because petitioners can use such a motion to present the BIA with “evidence that the facts it officially noticed are incorrect or that they are true but irrelevant to their case,” and, if the BIA refuses the motion, petitioners can appeal. Kaczmarczyk, 933 F.2d at 597; see also Rivera-Cruz, 948 F.2d at 968-69; Gutierrez-Rogue, 954 F.2d at 773. The Ninth and Tenth Circuits, on the other hand, have held in similar cases that the availability of a motion to reopen is an inadequate substitute for a full opportunity to rebut administratively noticed facts because, inter alia, the discretionary nature of motions to reopen does not guarantee a petitioner an effective ability to respond to previously-noticed facts, and petitioners are not guaranteed a stay of deportation while awaiting a decision on reopening. See Castillo-Villagra, 972 F.2d at 1030; Gomez-Vigil v. INS, 990 F.2d 1111, 1124 (9th Cir.1993) (Fletcher, J., concurring); de la Llana-Castellon, 16 F.3d at 1100.

Like the Ninth and Tenth Circuits, we doubt whether the protection afforded by the availability of a motion to reopen is enough for petitioners on direct appeal from final orders of removal. However, we need not decide this broader question because Chhetry appeals from the denial of a motion to reopen; he does not appeal from the BIA's final order of removal.

10th Circuit Notes Split Re Proper Test for Evaluating Constitutionality of DNA Analysis Backlog Elimination Act

Per Banks v. U.S., --- F.3d ----, 2007 WL 1739692 (10th Cir. June 18, 2007):

Although much ink has been spilled on the Fourth-Amendment question we must address in this appeal-whether the DNA Analysis Backlog Elimination Act of 2000, as amended, passes constitutional muster under the Fourth Amendment-our sister circuits have taken different analytical routes to analyzing DNA-indexing statutes. While the Second and Seventh Circuits have applied a special-needs analysis, see Green v. Berge, 354 F.3d 675 (7th Cir.2004); Roe v. Marcotte, 193 F.3d 72 (2d Cir.1999), the Third, Fourth, Fifth, Eighth, Ninth, Eleventh, and District of Columbia Circuits apply a reasonableness test informed by the totality of the circumstances, see United States v. Kraklio, 451 F.3d 922, 924-25 (8th Cir.2006); Johnson v. Quander, 440 F.3d 489, 496 (D.C.Cir.2006); United States v. Sczubelek, 402 F.3d 175, 184 (3d Cir.2005); Padgett v. Donald, 401 F.3d 1273, 1280 (11th Cir.2005); United States v. Kincade, 379 F.3d 813 (9th Cir.2004); Groceman v. U.S. Dep't of Justice, 354 F.3d 411 (5th Cir.2004); Jones v. Murray, 962 F.2d 302 (4th Cir.1992). Despite this initial disagreement, each of these circuit courts has arrived at the same conclusion: the federal DNA Act and its State law analogues survive Fourth-Amendment scrutiny.

Like the circuit split on which Fourth-Amendment test to apply, our own precedents are divided. In three successive opinions, this Court applied a totality-of-the-circumstances test to substantially similar DNA-indexing statutes; in each case, we ultimately concluded that the statutes did not violate the Fourth Amendment. See Shaffer v. Saffle, 148 F.3d 1180, 1181 (10th Cir.1998) (citing Boling v. Romer, 101 F.3d 1336 (10th Cir.1996), with approval and upholding a State DNA-indexing statute under the Fourth Amendment's totality-of-the-circumstances test); Schlicher, 103 F.3d at 943 (same); Boling, 101 F.3d at 1339-40 (applying the totality-of-the-circumstances test and concluding that a State DNA-indexing statute is constitutional).

But in United States v. Kimler, 335 F.3d 1132 (10th Cir.2003), this Court upheld a federal DNA statute under a special-needs test. The Kimler Court held that “[t]he DNA Act ... is a reasonable search and seizure under the special needs exception to the Fourth Amendment's warrant requirement because the desire to build a DNA database goes beyond the ordinary law enforcement need.” Id. at 1146. Notably, Kimler neither explained why building a DNA database is a special need, nor applied a balancing test to determine whether this special need outweighed the defendant's right to privacy. See id. Moreover, Kimler cited Shaffer, Schlicher, and Boling-all Tenth Circuit cases that applied the totality-of-the-circumstances test to DNA-indexing statutes-for the proposition that the statute at issue was constitutional under the special-needs test.

There is no apparent rationalization for Kimler's break from our prior case law. Further, the fact that our prior precedents upheld State DNA-indexing statutes, as opposed to the federal statute challenged here, does not materially change our analysis concerning which Fourth-Amendment test to apply. Nor does the fact that the Plaintiffs here are on parole, supervised release, or probation, whereas the offenders in our prior cases were prisoners. See Padgett, 401 F.3d at 1279 (observing that “[i]f the Supreme Court approves dispensing with the special needs analysis for probationers, we are persuaded that we may take a similar approach in cases involving prisoners”). Thus, while we do not eliminate the possibility that the Act satisfies the special-needs test, we follow Shaffer, Schlicher, and Boling, all decided before Kimler, by applying the totality-of-the-circumstances test here.

D.D.C. Notes Split Re Time Limit of Federal Rule of Criminal Procedure 35(a)

Per U.S. v. Anderson, --- F.Supp.2d ----, 2007 WL 1719556 (D.D.C. June 15, 2007):

The Court agrees with the defendant that the Court's authority to “correct a sentence” pursuant to Rule 35(a) is restricted to circumstances not present in this case.FN4 Furthermore, for the reasons stated in open court on March 27, 2007, and as further explained below, the Court concludes that it has no legal authority to order restitution for the tax loss on the federal counts in this case.

FN4. There is a procedural wrinkle that, in view of its decision on the merits, the Court need not address. Rule 35(a) on its face does not provide a time limit for when a motion must be filed, but a time limit within which the Court must act. The circuits are split on how to deal with this language. Compare United States v. Barragan-Mendoza, 174 F.3d 1024, 1030 (9th Cir.1999) (timely motion filed pursuant to Rule 35(c) [the predecessor to Rule 35(a) ] does not give jurisdiction to court for so long as it takes to dispose of motion because court itself is required to act within the prescribed time limit by plain language of the Rule); United States v. Morillo, 8 F.3d 864, 869 (1st Cir.1993) (same); United States v. Turner, 998 F.2d 534, 536 (7th Cir.1993) (same) with United States v. Carmouche, 138 F.3d 1014, 1016 (5th Cir.1998) (holding that timely filing of Rule 35(c) [predecessor to Rule 35(a) ] motion renders otherwise final order of district court nonfinal until disposition of that motion); United States v. Corey, 999 F .2d 493, 496 (10th Cir.1993) (same). See also United States v. Abreu-Cabrera, 64 F.3d 67, 73 (2d Cir.1995) (holding that time limit in Rule 35(c) [predecessor to Rule 35(a) ] is jurisdictional); United States v. Lopez, 26 F.3d 512, 519 n. 8 (5th Cir.1994) (same); United States v. Fahm, 13 F.3d 447, 453 (1st Cir.1994) (same).

Seventh Circuit Notes Split Re Limiting Appeal of Critical Comments by Court when No Monetary Sanctions Have Been Imposed

Per Seymour v. Hug, 485 F.3d 926 (7th Cir. May 03, 2007):

The “general rule [is] that a nonparty cannot challenge on appeal the rulings of a district court.” Gautreaux v. Chicago Hous. Auth., 475 F.3d 845, 850 (7th Cir.2007) (citing Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988) (per curiam); B.H. ex rel. Pierce v. Murphy, 984 F.2d 196, 199 (7th Cir.1993)). We have recognized that an attorney can bring an appeal on her own behalf when challenging a district court decision imposing monetary sanctions on the attorney, but this rule does not allow an appeal of otherwise critical comments by the district court when no monetary sanctions have been imposed. Crews & Assoc., Inc. v. United States, 458 F.3d 674, 677 (7th Cir.2006); Clark Equip. Co. v. Lift Parts Mfg. Co. Inc., 972 F.2d 817, 820 (7th Cir.1992) (citing Bolte v. Home Ins. Co., 744 F.2d 572, 573 (7th Cir.1984)). Judge Cole has not imposed a monetary sanction on Ms. Matlaw in this case and therefore she cannot base her appeal on the alleged damage to her professional reputation regardless of how harmful Judge Cole's comments might have been.

Ms. Matlaw notes that our position of limiting an appeal to monetary sanctions conflicts with the positions taken by other circuits. We recognize that other circuits allow appeals involving critical comments but those circuits have split among themselves over whether the district court must formally sanction the attorney to allow the appeal or whether critical comments by themselves, without a formal sanction, are sufficient for an appeal. See Bowers v. Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 542-44 (3d Cir.2007); Butler v. Biocore Med. Tech., Inc., 348 F.3d 1163, 1166-69 (10th Cir.2003); Precision Specialty Metals, Inc. v. United States, 315 F.3d 1346, 1350-53 (Fed.Cir.2003); In re Williams, 156 F.3d 86 (1st Cir.1998) (discussing the positions of the various circuits in this area of law).We reaffirm our decision that it is appropriate to limit an appeal to situations involving monetary sanction only. This limitation on our jurisdiction is based on the realization that allowing appeals by those allegedly harmed by a judge's comments, including “[l]awyers, witnesses, victorious parties, victims, [and] bystanders” would result in a “breathtaking expansion in appellate jurisdiction.” Bolte, 744 F.2d at 573; see also Hoagland ex rel. Midwest Transit, Inc. v. Sandberg, Phoenix & von Gontard, P.C., 385 F.3d 737, 740 (7th Cir.2004)

First Circuit Notes Split Re Interpretation of "Single Common Scheme or Plan" in the Sentencing Guidelines

Per United States v. Godin, --- F.3d ----, 2007 WL 1696139 (1st Cir. June 13, 2007):

Burglary is classified under the pertinent guideline as a crime of violence, U.S.S.G. § 4B1.2(a)(2), so the two 2002 burglaries-together with the instant armed robbery of the motel-supplied the necessary predicates for career offender status, unless the two prior burglaries are counted as only one conviction. The career offender guidelines, by cross-reference, treat the two convictions as only one (if not separated by an intervening arrest) where the offenses: (A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing.U.S.S.G. § 4A1.2, cmt. 3.

. . .

The “single common scheme or plan” rubric of subsection (B) raises a more difficult issue. The concept is vague and unlike subsection (C) there is no formal test, such as a single indictment or a formal order of consolidation. The circuit courts are divided FN5 as to whether the meaning of the phrase in subsection (B) is the same as the phrase “common scheme or plan” in section 1B1.3(a)(2), which attributes to the defendant being sentenced “relevant conduct” including certain acts and omissions “that were part of the same course of conduct or common scheme or plan as the offense of conviction.”

FN5. Compare United States v. Berry, 212 F.3d 391, 393-95 (8th Cir.), cert. denied, 531 U.S. 907 (2000), United States v. Brown, 209 F.3d 1020, 1024 n.9 (7th Cir.2000), and United States v. Beckett, 208 F.3d 140, 147 n.2 (3d Cir.2000), with United States v. LaBarbara, 129 F.3d 81, 86 (2d Cir.1997), and United States v. Mullens, 65 F.3d 1560, 1565 (11th Cir.1995), cert. denied, 517 U.S. 1112 (1996).

D.N.J. Notes Split Re Whether U.S. Citizenship & Immigration Services' Delay in Processing an Application for Adjustment of Status Is a "Judgment"

Per Pool v. Gonzales, Slip Copy, 2007 WL 1613272 (D.N.J. June 01, 2007):


The fundamental question raised by Defendant's Motion to Dismiss is whether the USCIS's [United States Citizenship and Immigration Services] delay in processing an application for adjustment of status constitutes “a judgment” or “any other decision or action” under 8 U.S.C. § 1252(a)(2)(B), thereby depriving this Court of subject matter jurisdiction to hear Plaintiff's plea for a writ of mandamus. At the outset, the Court notes there is a split of authority across Circuit Courts of Appeals and within the Third Circuit's District Courts, as to whether failure or delay in processing an application for adjustment of status constitutes an “action” by the USCIS under § 1252(a)(2)(B), thereby stripping jurisdiction from federal courts. Compare Song v. Klapakas, 06-5589, 2007 U.S. Dist. LEXIS 27203, at *12 (E.D.Pa. Apr. 12, 2007) (finding that defendants' failure to adjudicate an application for adjustment of status was not a discretionary decision); Loo v. Ridge, No. 045553, 2007 U.S. Dist. LEXIS 17822, at *9 (E.D.N.Y. Mar. 14, 2007) (noting that adjudicating an adjustment of status application is not at the discretion of defendants because defendants are required to do so); Duan v. Zamberry, No. 06-cv-1351, 2007 U.S. Dist. LEXIS 12697, at *7 (W.D.Pa. Feb. 23, 2007) (“Although the speed of processing may be ‘discretionary’ in the sense that it is determined by choice, and that it rests on various decisions that Defendants may be entitled to make, it is not discretionary in the manner required by the jurisdiction-stripping language of the IIRIRA.”); Singh v. Still, 470 F.Supp.2d 1064, 1068 (N.D.Cal.2007) (noting that defendants had conceded that they have a mandatory duty to act on adjustment applications); Yu v. Brown, 36 F.Supp.2d 922, 931-32 (D.N.M.1999) (holding that the INS owes plaintiff a duty to process her application for a change of status to permanent resident); with Elzerw v. Mueller, No. 07-166, 2007 U.S. Dist. LEXIS 30429, at *4-8 (E.D.Pa. Apr. 23, 2007); Serrano v. Quarantillo, No. 06-5221, 2007 WL 1101434 (D.N.J. Apr. 9, 2007); Safadi v. Howard, 466 F.Supp.2d 696, 700 (D.Va.2006). There is no precedent directly on point from the Third Circuit Court of Appeals.



However, the majority of federal courts that have considered similar claims have found that subject matter jurisdiction exists and that mandamus relief, at times, may be appropriate. See, e.g., Song, 2007 U.S. Dist. LEXIS 27203, at *9-10. “These courts have reasoned that even though the actual decision to grant or deny an application for adjustment is discretionary, the USCIS has a non-discretionary duty to act on applications within a reasonable time.” Id. This Court finds this reasoning persuasive, and will deny Defendant's Motion to Dismiss on that basis.

Fifth Circuit Notes Split Re Whether Booker Changed the Standard of Review for Revocation Sentences from "Plainly Unreasonable" to Reasonableness

Per U.S. v. Cantrell, Slip Copy, 2007 WL 1655271 (5th Cir. June 06, 2007):


Prior to United States v. Booker, 543 U.S. 220 (2005), we reviewed a sentence imposed after revocation of supervised release to determine whether it was “in violation of the law or plainly unreasonable.” United States v. Mathena, 23 F.3d 87, 89 (5th Cir.1994). Subsequent to Booker, we have recognized that there is a circuit split regarding whether Booker changed the standard of review for revocation sentences from “plainly unreasonable” to reasonableness. United States v. Jones, --- F.3d ----, Nos. 06-30535 & 06-30563, 2007 WL 1098433, *7 (5th Cir. April 13, 2007). We further recognized that other courts of appeals found the two standards functionally equivalent. Id. Nonetheless, we did not reach the issue because the appellant had not preserved the objection and thus it was “subject only to plain error review on appeal.” Id. at *7. Here, because Cantrell is precluded from obtaining relief in any event, we will assume solely for the purposes of this appeal that we would ultimately choose to follow the circuits that have reviewed post- Booker revocation sentences for reasonableness.FN2


FN2. However, it should be noted that this Court has indicated-though not held-that “[t]he Fourth Circuit persuasively reasons that § 3742(a)(4), which authorizes the ‘plainly unreasonable’ standard for revocation sentences, was not invalidated by Booker.” Hernandez-Martinez, 2007 WL 1140327 at *3 (citing United States v. Crudup, 461 F.3d 433, 437 (4th Cir.2006)).

Ninth Circuit Notes Split Re Standard for Determining the Propriety of Justifications for Facial Discrimination under the FHA

Per Community House, Inc. v. City of Boise, --- F.3d ----, 2007 WL 1651315 (9th Cir. June 08, 2007):

We have not previously adopted a standard for determining the propriety or acceptability of justifications for facial discrimination under the Fair Housing Act. The circuits that have addressed this issue are split. The Eighth Circuit employs the same standards for analyzing a defendant's rationales in challenges under the Fair Housing Act as it applies to claims under the Equal Protection Clause. See Oxford House-C v. City of St. Louis, 77 F.3d 249, 252 (8th Cir.1996) (applying rational basis review to a defendant's proffered justifications for an ordinance that facially discriminated against disabled persons); Familystyle of St. Paul v.. City of St. Paul, 923 F.2d 91, 94 (8th Cir.1991) (same). The Sixth and Tenth Circuits employ a more searching method of analysis. To allow the circumstance of facial discrimination under the Sixth and Tenth Circuits' approach, a defendant must show either: (1) that the restriction benefits the protected class or (2) that it responds to legitimate safety concerns raised by the individuals affected, rather than being based on stereotypes. See Larkin, 89 F.3d at 290; Bangerter, 46 F.3d at 1503-04.

Judge Notes Split Re Whether FAA Makes Federal Question Jurisdiction over a Petition to Compel Arbitration Dependent on Nature of the Underlying Claim

Per Judge Marcus, concurring in Community State Bank v. Strong, 485 F.3d 597 (11th Cir. Apr. 27, 2007):

As should be clear from the majority opinion, I concur in the judgment and in all other aspects of our opinion in this case. I do so because I believe that we are bound by Tamiami Partners Ltd. ex rel. Tamiami Development Corp. v. Miccosukee Tribe of Indians of Florida, 177 F.3d 1212 (11th Cir.1999) (“ Tamiami III”), which held that the text of § 4 of the FAA, 9 U.S.C. § 4, requires a district court, in determining whether it has federal question jurisdiction over a § 4 arbitration claim, to “look through” that claim and instead ask whether the underlying dispute the petitioner seeks to arbitrate states a federal question. I write separately to explain why I believe this holding is wrong, or at the very least ill-considered, and why the important, indeed basic, jurisdictional question embodied both in Tamiami III and in this case is ripe for en banc review by this Court or certiorari review by the Supreme Court.

As more than one court of appeals has noted, the “clear weight of authority” is that § 4 does not make federal question jurisdiction over a petition to compel arbitration dependent on the nature of the underlying dispute to be arbitrated. See, e.g., Kasap v. Folger Nolan Fleming & Douglas, Inc., 166 F.3d 1243, 1246 (D.C.Cir.1999) (noting as much but not reaching the issue itself); see also U.S. Bank Nat'l Ass'n ND v. Strand, 243 F.Supp.2d 1139, 1141-45 (D.Or.2002) (following the “great weight of authority” in holding irrelevant the federal nature of the underlying claim to be arbitrated).

Indeed, Tamiami III 's stance puts this Court squarely at odds with at least four of our sister circuits, and aligns us with just one other circuit. Compare Westmoreland Capital Corp. v. Findlay, 100 F.3d 263, 267-69 (2d Cir.1996) (“[T]he text of FAA § 4 should not be interpreted to mean that a federal court has subject matter jurisdiction over an action to compel or stay arbitration merely because the underlying claim raises a federal question. A petition under FAA § 4 to compel or stay arbitration must be brought in state court unless some other basis for federal jurisdiction exists, such as diversity of citizenship or assertion of a claim in admiralty.”); Prudential-Bache Sec., Inc. v. Fitch, 966 F.2d 981, 986-88 (5th Cir.1992) (holding, in response to an argument that § 4 directs the federal courts to take federal question jurisdiction over a § 4 petition based on the federal nature of the dispute to be arbitrated, that “when we read the [FAA] in light of its history and purpose and in conjunction with well established rules for determining federal question jurisdiction, we find that interpretation unpersuasive”); Smith Barney, Inc. v. Sarver, 108 F.3d 92, 94 (6th Cir.1997) (“Our cases have made clear ... that the Federal Arbitration Act does not supply an independent basis for federal jurisdiction, nor does the federal nature of the underlying claims that were submitted to arbitration. The rights asserted by Smith Barney in this case are based simply on an interpretation of the contract to arbitrate, as opposed to the actual merits of the underlying substantive claims.” (citations omitted)); and Wisconsin v. Ho-Chunk Nation, 463 F.3d 655, 659 (7th Cir.2006) (“[T]his circuit has recognized that [a] strong body of caselaw has developed ... holding that the nature of the underlying dispute [in arbitration] is irrelevant for purposes of subject matter jurisdiction, even on a motion to compel [arbitration] ... [T]he motion itself must involve diversity or federal question jurisdiction. Thus, we do not look to the Nation's underlying complaint in arbitration, but confine our analysis to the federal claims articulated in Wisconsin's complaint before the district court.” (citations and quotation marks omitted, first and last alterations added)), with Discover Bank v. Vaden, 396 F.3d 366, 373 (4th Cir.2005) (“A federal court may ... hear a § 4 petition to compel arbitration if, but for the arbitration agreement, subject matter jurisdiction over the case would otherwise exist by virtue of a properly invoked federal question in the underlying dispute.”).

E.D. Mich. Notes Split Re Application of Colorado River Doctrine in Situations Involving Parallel Proceeding in Foreign Court

Per Grammar, Inc. v. Custom Foam Systems, Ltd., 482 F.Supp.2d 853 (E.D. Mich. Mar. 22, 2007):

A federal court has a “virtually unflagging obligation” to exercise the jurisdiction bestowed upon it. Colorado River Water Conservation Dist. et al. v. United States, 424 U.S. 800, 817-18, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). This obligation should be avoided in only a few “extraordinary and narrow” circumstances. ( Id.)

. . .

This doctrine is almost always used in situations where the parallel proceeding is in a state court, but is applied in the same manner when a federal court proceeding is parallel to a court proceeding in a foreign country.FN5 See Finova Capital Corp. v. Ryan Helicopters USA, Inc., 180 F.3d 896, 898 (7th Cir.1999).

FN5. There appears to be a split of the circuits on this issue. The Seventh and Eleventh Circuits appear to agree with the rationale given in Finova. The Eighth Circuit, however, seems to have created a new test in dicta for abstention in international cases, with the following factors: “[1] the similarity of the two actions, [2] the degree of progress already made in the [foreign] action, [3] the adequacy and appropriateness of the [foreign] forum, ... [4] notions of international comity[,] and [5] [notions of] judicial efficiency.” Boushel v. Toro Co., 985 F.2d 406, 409 n. 2 (8th Cir.1993) cited in Goldhammer v. Dunkin' Donuts, Inc., 59 F.Supp.2d 248, 252-53 (D.Mass.1999). I will apply the standard Colorado River analysis in this case, however, as I find that test to be better supported by precedent and because I believe it to be the more rigorous standard.

E.D. Pa. Notes Split Re Standard to Be Used to Determine Whether a Shipper's Damages Claim Is Sufficient

Per Lewis v. Atlas Van Lines, Inc., Slip Copy, 2007 WL 1576452 (M.D. Pa. May 30, 2007):

In 1906, Congress enacted the Carmack Amendment which created a national policy regarding an interstate carrier's liability for damages arising from the interstate transportation of goods. See 49 U.S.C. § 14706; New York, New Haven & Hartford Railroad Co. v. Nothnagle, 346 U.S. 128, 131 (1953). The Carmack Amendment “codifies the common-law rule making a carrier liable, without proof of negligence, for all damage to the goods transported by it, unless it affirmatively shows that the damage was occasioned by the shipper, acts of God, the public enemy, public authority, or the inherent vice or nature of the commodity.” Secretary of Agriculture v. United States, 350 U.S. 162, 166 n. 9 (1956).

. . .

There is a split in the federal circuit courts concerning the standard to be used to determine whether a shipper's damages claim is sufficient. The dueling standards are “strict compliance” and “substantial performance.” Plaintiffs cite to dicta contained in S & H Hardware & Supply v. Yellow Transport, 432 F.3d 550, 554 (3d Cir.2005) to support its contention that the Third Circuit has indicated it would follow the “substantial performance” standard. In Yellow Transport, the Third Circuit discussed the applicability of the “substantial performance” standard as it related to whether a communication was to be considered written notice at all. The case did not address the contents, adequacy, sufficiency or determinability of the notice of damages claim, and therefore is simply not persuasive on the point for which Plaintiffs cite it.

Eleventh Circuit Notes Split Re Retroactive Applicability of Castillo in Petition for Habeas Corpus Under 28 U.S .C. § 2241

Per Rivers v. McKelvy , Slip Copy, 2007 WL 1575323 (11th Cir. June 1, 2007):

When a prisoner previously has filed a § 2255 motion to vacate, he must apply for and receive permission from the circuit court prior to filing a successive § 2255 motion. 28 U.S.C. §§ 2255, 2244(b)(3); In re Blackshire, 98 F.3d 1293, 1293 (11th Cir.1996). A petitioner who has filed and been denied a previous § 2255 motion may not circumvent the successive-petition rule simply by filing another petition under § 2241. Wofford, 177 F.3d at 1245.

Here, Rivers cannot show that § 2255 was inadequate or ineffective. Rivers relies on two cases to enable him to file under § 2241 through § 2255's savings clause: Edwards and Castillo. As a starting point, the decision in Edwards would not affect Rivers's conviction or sentence, Edwards did not announce a new rule of law, and Edwards was available to him before the district court denied his first § 2255 motion to vacate. Thus, to succeed, Rivers must rely on Castillo as the basis for his claim.

This court has not addressed whether Castillo is retroactively applicable on collateral review, and other circuits are divided on the issue. See United States v. Gonzales, 327 F.3d 416 (5th Cir.2003) (holding that Castillo is not retroactively applicable); but see United States v. Wiseman, 297 F.3d 975, 981-982 (10th Cir.2002) (concluding Castillo is retroactively applicable). We need not resolve this issue, however, because Rivers cannot meet Wofford's second prong and show that he was convicted of a "nonexistent offense." Wofford, 177 F.3d at 1244. In Castillo, the Supreme Court did not de-criminalize the offense conduct for which Rivers has been convicted; it determined that the offense conduct was a separate aggravated offense. 530 U.S. at 131. Therefore, even if the jury did not find that the firearm involved was a machine gun for purposes of the enhanced sentence, Rivers was convicted of an existent offense and cannot satisfy the second Wofford prong. Accordingly, he is not entitled to relief under § 2241.

N.D. Ohio Notes Split Re Whether a Petitioner Must Show that He Has Good Cause for a Delay in Filing His Habeas Petition

Per Hudach v. Money, Slip Copy, 2007 WL 1560551 (N.D. Ohio May 25, 2007):

The question of whether a petitioner must show that he has good cause for a delay in filing his habeas petition and that he has a supportable claim of actual innocence has divided the circuits.FN63 Nonetheless, the Sixth Circuit has consistently held that actual innocence is a separate, independent “gateway” by which a habeas petitioner may obtain equitable tolling of the limitations period of the statute.FN64

FN63. The Eighth Circuit in Flanders v. Graves, 299 F.3d 974 (8th Cir.2002), has concluded that a petitioner must still show he was diligent in pursuing his claims of actual innocence in addition to establishing the merits of that claim. Accord, Araujo v. Chandler, 435 F.3d 678, 682 (7th Cir.2005).

FN64. See, Harvey v. Jones, 179 F. App'x 294, 297 (6th Cir.2006) ( “In the present case, there are two arguments for equitable tolling ... If [petitioner] fails to establish actual innocence under the standard enunciated in Souter, he may still equitably toll the limitations period based on the five factors outlined by this Court in Dunlap.”).

E.D. Pa. Notes Split Re "Same Actor Inference"

Per Folcher v. Appalachian Insulation Supply, Inc., Slip Copy, 2007 WL 1544693 (May 24, 2007):

Appalachian Insulation also argues it is entitled to a “same actor inference,” that is, when a person in a protected class is hired by the same person who later fires him, the defendant is entitled to an inference of non-discrimination. Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 271 (9th Cir.1996) (holding the plaintiff's evidence was insufficient as a matter of law to rebut the strong same-actor inference). Although, the circuits are split, see Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 573 (6th Cir.2003) (collecting cases), the Third Circuit has come down against the inference. See Waldron v. SL Indus., Inc., 56 F.3d 491, 496 n. 6 (3d Cir.1995) (noting the same-actor inference “is simply evidence like any other and should not be afforded presumptive value”).