S.D. Ohio Notes Split Re How a Beneficiary is Determined Under ERISA

Per Lynch v. Fortis Benefits Ins. Co., Slip Copy, 2007 WL 2331940 (S.D.Ohio Aug 13, 2007) (NO. 1:05CV599):

There is a split among the circuits with respect to the manner in which a beneficiary is determined. Some circuits, finding no explicit answer in the text of ERISA, immediately look to the federal common law for the controlling principles for designating beneficiaries. See, e.g., Guardian Life Ins. Co. of Am. v. Finch, 395 F.3d 238, 240-41 (5th Cir.2004); Hill v. AT & T Corp., 125 F.3d 646, 648 (8th Cir.1997); Estate of Altobelli v. Int'l Bus. Machs. Corp., 77 F.3d 78, 81-82 (4th Cir.1996); Fox Valley & Vicinity Constr. Workers Pension Fund v. Brown, 897 F.2d 275, 280-81 (7th Cir.1990) (en banc).

"The Sixth Circuit takes a different view and holds that ERISA itself supplies the rule of law." Metropolitan Life Ins. Co. v. Pressley, 82 F.3d 126, 130 (6th Cir.1996); see also McMillan v. Parrott, 913 F.2d 310, 311 (6th Cir.1990); Unicare Life & Health Ins. Co. v. Craig, 157 F. App'x 787, 791 (6th Cir.2005). The Sixth Circuit's rule is grounded in the ERISA provision that requires a plan administrator to administer the plan "in accordance with the documents and instruments governing the plan." 29 U.S.C. § 1104(a)(1)(D). See Craig, 157 F. App'x at 791.

"We have consistently held that Section 1104(a)(1)(D) of ERISA establishes 'a clear mandate that plan administrators follow plan documents to determine the designated beneficiary.' " Craig, 157 F. App'x at 791 (quoting Pressley, 82 F.3d at 130); see also Central States, Southeast & Southwest Areas Pension Fund v. Howell, 227 F.3d 672, 678 (6th Cir .2000) ("It is clear that the law of this Circuit requires the ERISA plan administrator to pay out plan proceeds in accordance with the ERISA plan documents."). "A participant is master of his own ERISA plan." McMillan, 913 F.2d at 312. Therefore, under the Sixth Circuit's bright-line rule, the Court must examine the plan documents to determine whether a beneficiary designation has been made in accordance with the plan documents. Howell, 227 F.3d at 678.

2nd Circuit Notes Split Re Whether a Motion to Reopen Suffices to Satisfy Due Process in BIA Hearing

Per Burger v. Gonzales, --- F.3d ----, 2007 WL 2331944 (2nd Cir. Aug 17, 2007) (NO. 03-40395-AG L, 05-1058-AG CON):
The Government does not dispute that the noticed facts were dispositive of Burger's claim, and it concedes that the BIA failed to warn Burger that it would take notice. Rather, the Government contends that Burger's motion to reopen gave her a full and fair opportunity to present her claim and thus cured the lack of advance notice. The circuits are divided.

The Fifth, Seventh, and D.C. Circuits have held that a motion to reopen suffices to satisfy due process in this context. See Gutierrez-Rogue v. INS, 954 F.2d 769, 773 (D.C.Cir.1992) ("The availability of the petition to reopen secures [petitioner's] due process right to a meaningful hearing."); Rivera-Cruz v. INS, 948 F.2d 962, 968 (5th Cir.1991) (same); Kaczmarczyk v. INS, 933 F.2d 588, 597 (7th Cir.1991) (same).

The Ninth and Tenth Circuits, however, have held that due process requires that the BIA provide applicants with notice and an opportunity to be heard before the BIA determines on the basis of administratively noticed facts that a petitioner lacks a wellfounded fear of persecution. See Getachew v. INS, 25 F.3d 841, 846 (9th Cir.1994) (advance notice and opportunity to respond required when BIA determines, on the basis of administrative notice, whether an "election has vitiated any previously well-founded fear of persecution"); de la Llana-Castellon v. INS, 16 F.3d 1093, 1100 (10th Cir.1994) (availability of motion to reopen did not satisfy due process where BIA reversed IJ's finding that petitioners had a well-founded fear of persecution based solely on administratively noticed facts).

10th Circuit Mentions Split Noted in Bench Trial Re Awarding of Attorneys Fees in Suits for Personal Financial Gain Under Clean Air Act

Per Pound v. Airosol Company, Inc., --- F.3d ----, 2007 WL 2358674 (10th Cir.(Kan.) Aug 20, 2007) (NO. 06-3299):

On December 18, 2002, Pro Products brought suit against Airosol under the citizen suit provision of the CAA, 42 U.S.C. § 7604(a)(1) . Pro Products sued Airosol, alleging, in pertinent part, that Airosol was in violation of § 7671i(d)(1)(A) of the CAA. On March 10, 2004, the district court granted Pro Products' motion for partial summary judgment finding, as a matter of law, that Airosol's manufacture, sale, and distribution of Black Knight violated § 7671i(d)(1)(A) of the CAA. Following a bench trial, the district court entered an order on July 18, 2006, declining to penalize Airosol for its CAA violations. The court cited other factors, but relied heavily on its conclusion that Pro Products' suit was brought to remove a competitor from the market and not out of a concern for the environment. The court also denied Pro Products' renewed request for attorney fees and costs noting a circuit split, and no guidance from this court, on whether an award of attorney fees is appropriate "when the prevailing party brought the suit for personal financial gain rather than to further the purpose of the Clean Air Act." Appx. at 545. Pro Products now challenges the district court's decision not to penalize Airosol for violating the Act, and also the district court's denial of its request for attorney fees and costs.

1st Circuit Creates Split Re Application of RICO Statute to Defendants Involved In Noneconomic Criminal Enterprises

Per U.S. v. Nascimento, 491 F.3d 25 (1st Cir.(Mass.) Jul 02, 2007) (NO. 06-1152, 06-1153, 06-1154):

The pivotal issue in this case concerns the application of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962, to a street gang engaged in violent, but noneconomic, criminal activity. That issue possesses constitutional implications weighty enough to have led one of our sister circuits to fashion a special, more rigorous, version of RICO's statutory "affecting commerce" requirement for use in connection with defendants involved with enterprises that are engaged exclusively in noneconomic criminal activity. See Waucaush v. United States, 380 F.3d 251, 256 (6th Cir.2004). Although we are reluctant to create a circuit split, we conclude, after grappling with this difficult question, that the normal requirements of the RICO statute apply to defendants involved with enterprises that are engaged only in noneconomic criminal activity. Based on that conclusion and on our resolution of a golconda of other issues ably raised by highly competent counsel, we affirm the appellants' convictions.

5th Circuit Notes Split Re Whether an ERISA Claimant Needs to Establish Reliance and/or Prejudice Based Conflicting Terms of an SPD

Per Washington v. Murphy Oil USA, Inc., 497 F.3d 453 (5th Cir.(La.) Aug 16, 2007) (NO. 05-31063):

FN1. We certainly do not write on a clean slate. Indeed, there appears to be a five-way circuit split regarding whether an ERISA claimant needs to establish reliance and/or prejudice based on the conflicting terms of an SPD [summary plan description]. The Third and Sixth Circuits do not require a showing of reliance. See Burstein v. Ret. Account Plan for Employees of Allegheny Health Edu. and Research Found., 334 F.3d 365, 380-82 (3d Cir.2003); Edwards v. State Farm Mut. Auto. Ins. Co., 851 F.2d 134, 137 (6th Cir.1988). The Second Circuit also does not require a showing of reliance, but does require a showing of a likelihood of prejudice, which an employer may then rebut through evidence that the deficient SPD was in effect a harmless error. See Burke v. Kodak Ret. Income Plan, 336 F.3d 103, 111-14 (2d Cir.2003). The Seventh and Eleventh Circuits require a showing of reliance. See Health Cost Controls of Illinois, Inc. v. Washington, 187 F.3d 703, 711 (7th Cir.1999); Branch v. G. Bernd Co., 955 F.2d 1574, 1579 (11th Cir.1992). The First, Fourth, and Tenth Circuits require a showing of reliance or prejudice, though it appears that the terms "reliance" and "prejudice" are sometimes treated synonymously. See Govoni v. Bricklayers, Masons & Plasterers International Union, Local No. 5 Pension Fund, 732 F.2d 250, 252 (1st Cir.1984); Aiken v. Policy Management Sys. Corp., 13 F.3d 138, 141 (4th Cir.1993); Chiles v. Ceridian Corp., 95 F.3d 1505, 1519 (10th Cir.1996). Finally, the Eighth Circuit requires a showing of reliance or prejudice, but only if the SPD is "faulty." See Palmisano v. Allina Health Sys., 190 F.3d 881, 887-88 (8th Cir.1999); Marolt v. Alliant Techsystems, 146 F.3d 617, 621-22 (1998).

11th Circuit Notes Split Re Whether an Intervenor Must Demonstrate Standing in Addition to Requirements of Rule 24(a)

Per Dillard v. Chilton County Com'n, --- F.3d ----, 2007 WL 2350246 (11th Cir.(Ala.) Aug 20, 2007) (NO. 06-14950):

So long as an original party on the intervenor's side remains party to the action and maintains an adversarial litigating position vis-a-vis the opposing parties, at least in this circuit an intervenor need not make an independent showing that he or she meets the standing condition of Article III. Chiles, 865 F.2d at 1213; see also Diamond, 476 U.S. at 68-69, 106 S.Ct. 1697 (leaving undecided the question whether every intervenor must demonstrate standing in addition to the requirements of Fed.R.Civ.P. 24(a)). FN10

FN10. Other circuit courts have split in answering the question that the Supreme Court left open in Diamond. The Second, Fifth, Sixth, Ninth, and Tenth Circuits have joined this circuit's general rule that proposed intervenors need not demonstrate standing to intervene in an ongoing controversy. See San Juan County v. United States, 420 F.3d 1197, 1204-05 (10th Cir.2005) (permitting intervention without an independent showing of standing); United States v. Tennessee, 260 F.3d 587, 595 (6th Cir.2001) (same); Ruiz v. Estelle, 161 F.3d 814, 829-30 (5th Cir.1998) (same); Yniguez v. Arizona, 939 F.2d 727, 731 (9th Cir.1991) (same); U.S. Postal Serv. v. Brennan, 579 F.2d 188, 190 (2d Cir.1978) (same). The Seventh, Eighth, and D.C. Circuits, on the other hand, require a demonstration of intervenor standing in all cases. See Jones v. Prince George's County, 348 F.3d 1014, 1017 (D.C.Cir.2003) (requiring intervenors demonstrate standing in addition to Rule 24 requirements); South Dakota v. Ubbelohde, 330 F.3d 1014, 1023 (8th Cir.2003) (same); Solid Waste Agency v. U.S. Army Corps of Eng'rs, 101 F.3d 503, 507 (7th Cir.1996) (same).

D. Vermont Notes Split Re Whether BOP Officials are Law Enforcement Officials Under Federal Tort Claims Act

Per Carter v. U.S., Slip Copy, 2007 WL 2439500 (D.Vt . Aug 23, 2007) (NO. 106-CV-225):

The second question is whether BOP officials are law enforcement officers under § 2680(c). While some circuits have held that § 2860(c) extends to all detentions by law enforcement officers, see Chapa, 339 F.3d at 390; Bramwell v. Bureau of Prisons, 348 F.3d 804, 807 (9th Cir.2003); Hatten v. White, 275 F.3d 1208, 1210 (10th Cir.2002); Schlaebitz v. Dep' of Justice, 924 F.2d 193, 195 (11th Cir.1991); Ysasi v. Rivkind, 856 F.2d 1520, 1525 (Fed.Cir.1988), others have limited the exception to the tax and customs contexts, see Kurinsky v. United States, 33 F.3d 594, 598 (6th Cir.1994), cert. denied, 514 U.S. 1082 (1995) ; Bazuaye v. United States, 83 F.3d 482, 486 (D.C.Cir.1996). In a recently-filed notice of supplemental authority, the government has notified the Court that the United States Supreme Court will be addressing this circuit split in the near future.

S.D.N.Y. Notes Intra-Circuit Split Re Trademark Infringement Claims Under N.Y. Deceptive Trade Practices Statute

Per Karam Prasad, LLC v. Cache, Inc., Slip Copy, 2007 WL 2438396 (S.D.N.Y . Aug 27, 2007) (NO. 07 CIV. 5785 (PAC)):

Prasad alleges that "unlawful use of [its] trademark and trade dress is a consumer-oriented deceptive practice that is materially misleading and injurious to consumers, to Plaintiff, and to the public interest." (Am.Compl.¶ 22.) The Court finds that this is insufficient as a matter of law. Although there is a split in this Circuit regarding infringement claims under § 349, the "the majority [of courts] have held that trademark cases are outside the scope of this general consumer protection statute." Tommy Hilfiger Licensing, Inc. v. Nature Labs, LLC, 221 F.Supp.2d 410, 413 n. 2 (S.D.N.Y.2002). As Judge Marrero explained:

Claims that arise out of a trademark infringement action, and disputes between competitors where the core of the claim is harm to another business as opposed to consumers, both constitute situations which courts have found to reflect a public harm that is too insubstantial to satisfy the pleading requirements of § 349. See, e.g., Sports Traveler, 1997 WL 137443, at *3 (noting that "[t]he courts of this Circuit have held that trademark infringement actions alleging only general consumer confusion do not threaten the direct harm to consumers that is required to state a claim under Section 349."); Winner Int'l v. Kryptonite Corp., No. 95 Civ. 247, 1996 WL 84476, at *3 (S.D.N.Y. Feb. 27, 1996) (noting that "Courts routinely reject such attempts to fashion Section 349 ... claims from garden variety disputes between competitors" where the gravamen of the complaint is harm to another business); Fashion Boutique of Short Hills, 1992 WL 170559, at *4 (dismissing a claim under § 349 where the "alleged harm to [the claimant's] business far outweighs any incidental harm to the public at large."). Gucci, 277 F.Supp.2d at 273-74.

3rd Circuit Notes Split Re Application of McNabb-Mallory Rule for a Confession Under 18 U.S.C . § 3501

Per U.S. v. Corley, --- F.3d ----, 2007 WL 2458536(3rd Cir.(Pa.) Aug 31, 2007) (NO. 04-4716):

As explained above, our reading of the statute in Gereau begins with the language in subsection (a) that "a confession ... shall be admissible in evidence if it is voluntarily given," and reads the remainder of the statute in the context of that language. It therefore follows that "shall not be inadmissible solely because of delay in bringing such person before a magistrate judge" in subsection (c) refers to the voluntariness standard in subsections (a) and (b).

Corley disputes that reading, noting that three other Courts of Appeals-those in the Second, Ninth, and D.C. Circuits-understand that phrase in subsection (c) to refer to the McNabb-Mallory rule. FN5 See Alvarez-Sanchez, 975 F.2d at 1402-03; United States v. Perez, 733 F.2d 1026, 1031 (2d Cir.1984); United States v. Robinson, 439 F.2d 553, 563-64 (D.C.Cir.1970); see also United States v. Alvarez-Sanchez, 511 U.S. 350, 361 & n. (1994) (Ginsburg, J., concurring) (noting the split of authority). Instead of reading § 3501 in the context of subsection (a), those Courts begin with the language of subsection (c), which gives three conditions for the admissibility of a confession, only one of which is voluntariness, another being unreasonable delay. From this, they draw the negative inference that the absence of any of those conditions is a sufficient reason for suppressing the confession. See Perez, 733 F.2d at 1031. It therefore follows, they reason, that confessions given within the extendable six-hour period in subsection (c) are inadmissible only if they are involuntary; but confessions outside that period are subject to the McNabb-Mallory rule and may be excluded if they are either (1) involuntary, or (2) voluntary but elicited after a period of "unnecessary delay" within the meaning of Rule 5(a), as it was applied under the McNabb-Mallory line of cases. Put differently, these Courts believe that " section 3501 legislatively overrule[s] the McNabb-Mallory rule only to the extent of (1) unreasonable pre-arraignment, pre-confession delays of less than six hours and (2) reasonable delays in excess of six hours." Id. at 1035.

FN5. The Seventh Circuit Court has taken an alternative approach, which we will not discuss at length, holding that a trial judge has discretion whether to suppress confessions elicited outside of the six-hour period. United States v. Gaines, 555 F.2d 618, 623-24 (7th Cir.1977) ( "Whatever the merits of the opposing approaches, we think it clear that a district judge retains discretion to exclude a confession where there is a delay in excess of six hours. However, the exercise of discretion depends on a congeries of factors, including such elements as the deterrent purpose of the exclusionary rule.").

6th Circuit Notes Split Re Distinction Between "Jailbreak" and "Walk Away" for Purposes of Determining a Violent Felony

Per U.S. v. Lancaster, --- F.3d ----, 2007 WL 2457448 (6th Cir.(Tenn.) Aug 31, 2007) (NO. 06-5668):
We recognize that the circuits are split on whether the distinction between a jailbreak and a "walk away" is meaningful. Some have said or suggested that a "walk away" escape should not be considered categorically violent. Others have rejected any distinction between a jailbreak and a "walk away," typically reasoning that the "potential risk" officers might encounter in attempting to re-apprehend the escapee is "serious" enough to justify characterizing the offense as violent. The D.C. Circuit, however, has noted that this reasoning proves too much. That is, "While it may be true that the recapture of an escapee inherently contains a risk of violent encounter between the escapee and the arresting officers, the same is true as to the capture of any lawbreaker"; according to this logic, "all crimes become crimes of violence."

M.D. Florida Notes Split Re Whether "Final Decision" Rule Announced in Williamson County Applies to FHA or FHAA Claims

Per New Life Outreach Ministry Inc. v. Polk County, Slip Copy, 2007 WL 2330854 (M.D.Fla . Aug 14, 2007) (NO. 8:06-CV-1547-T-27MAP):

Under the ripeness doctrine, a plaintiff must satisfy the "final decision" hurdle; namely, the plaintiff must demonstrate that the decision maker "charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 191, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). In Williamson County, a Just Compensation Clause case, the Supreme Court held that although the planning commission's refusal to approve the plaintiff's preliminary plat prevented the plaintiff from developing the land, it was not a complete taking because it left open the possibility of development after obtaining a variance. Id. at 193-94. The Court reasoned that since the refusal of the preliminary plat was not conclusive as to whether the plaintiff would be denied all reasonable use of the property, it was not a final, reviewable decision. Id. at 194. The Eleventh Circuit applies Williamson County's reasoning in Just Compensation Clause cases. See Reahard v. Lee County, 30 F.3d 1412, 1415 (11th Cir.1994), cert. denied, 514 U.S. 1064, 115 S.Ct. 1693, 131 L.Ed.2d 557 (1995) (holding that in most cases, no "final decision" has been reached until an aggrieved landowner has applied for at least one variance to a contested zoning ordinance); see also Resolution Trust Corp. v. Town of Highland Beach, 18 F.3d 1536, 1547 (11th Cir.1994) (holding that in most instances a property owner must apply for a variance). But the circuit has not ruled if Williamson County's final decision rule strictly applies to FHA/FHAA claims. See Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1541 n. 16 (11th Cir.1994) (expressly not deciding the ripeness doctrine's application in FHA claims). And the remaining circuits that have addressed the issue are split.

The Seventh and Eighth Circuits strictly apply the "final decision" rule of Williamson County to reasonable accommodation claims brought by plaintiffs who do not seek a variance before filing a claim. See Oxford House-C v. City of St. Louis, 77 F.3d 249 (8th Cir.1995); U.S. v. Village of Palatine, Ill., 37 F.3d 1230, 1233 (7th Cir.1994). Yet, even the Seventh Circuit recognizes an exception to the ripeness doctrine applied in Just Compensation Clause cases-futility. See Palazzolo v. Rhode Island, 533 U.S. 606, 622, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (holding in a takings case that the "[r]ipeness doctrine does not require a landowner to submit applications for their own sake"); Village of Palatine, Ill., 37 F.3d at 1234. FN3 The Fourth and the Fifth Circuits distinguish FHA/FHAA claims from takings claims and hold that the "final decision" rule does not apply. See Bryant Woods Inn, Inc., v. Howard County, Md., 124 F.3d 597, 602 (4th Cir.1997); Groome Resources Ltd., L.L.C. v. Parish of Jefferson, 234 F.3d 192 (5th Cir.2000). These courts recognize injuries under the FHA/FHAA are sufficiently concrete for judicial resolution once the disabled resident is first denied a reasonable accommodation. Bryant Woods Inn, Inc., 124 F.3d at 602.

2d Circuit Notes Split Re Whether to Treat Convicted Unsentenced Inmates as Pretrial Detainees

Per Iqbal v. Hasty, 490 F.3d 143 (2d Cir.(N.Y.) Jun 14, 2007):

FN8. The Defendants do not seriously contest Judge Gleeson's characterization of the Plaintiff as a pretrial detainee, although Ashcroft and Mueller briefly contend that his private interest in avoiding detention in the ADMAX SHU after he pled guilty should be evaluated "within the context of the prison system," i.e., under Eighth Amendment standards. The Plaintiff argues that he should be treated as a pretrial detainee until he was sentenced, citing Fuentes v. Wagner, 206 F.3d 335, 341 (3d Cir.2000).

The circuits are divided as to whether to treat convicted, but unsentenced, inmates as pretrial detainees. Compare id. (treated as pretrial detainee) with Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir.2000) (treated as prisoner), Whitnack v. Douglas County, 16 F.3d 954, 956-57 (8th Cir.1994) (same), and Berry v. City of Muskogee, 900 F.2d 1489, 1493 (10th Cir.1990) (same). Because none of the Defendants seriously challenges Judge Gleeson's characterization of the Plaintiff as a pretrial detainee throughout his entire confinement in the ADMAX SHU, we will refer to him as a pretrial detainee, a status that plainly applies during the several months of confinement prior to the Plaintiff's plea. We do not consider the question of whether convicted, but unsentenced, inmates are pretrial detainees under the Supreme Court's jurisprudence establishing criteria for evaluating constitutional limits on conditions of confinement.

S.D. Tex. Notes Split Re Meaning of "Full and Fair Review" Under ERISA

Per Boldt v. Dow Chemical Co. Voluntary Group Acc. Ins. Plan, Slip Copy, 2007 WL 2329873 (S.D.Tex . Aug 15, 2007) (NO. 6:06-CV-25):

The Eighth Circuit found one of the core requirements of "full and fair review" is providing the claimant an opportunity to engage in "meaningful dialogue" with the administrator. Id. While this court agrees that the claimant is entitled to know what evidence was relied upon by the administrator and respond to that evidence, there is a distinction between Abram and the present case. Unlike Abram, the claimant in this case did not attempt at all during the administrative proceeding to engage in any dialogue with the administrator. In addition to not presenting any evidence to refute AIG's initial denial, the Plaintiff did not even request Dr. Hubbard's report until three months after the final decision had been rendered. It appears to the court that the Plaintiff was not interested in meaningfully participating in the administrative process, but only now seeks to use this technical violation as a means to reopen her case.

Further, the Tenth Circuit also recently addressed this issue and came to the opposite conclusion. In Metzger v. UNUM Life Ins. Co. of Am., 476 F.3d 1161 (10th Cir.2007), the court addressed whether the administrator violated ERISA regulations by "failing to make [the] reviewers' reports available prior to a final decision on appeal." Id. at 1162. Similar to the present case, the administrator sent claimant's complete file for review to two medical professionals who had not been involved in the original denial of benefits. Id. at 1163. The reports analyzed the new medical evidence submitted on appeal, but "they contained no new factual information and recommended denial on the same grounds as the initial claim determination." Id. The court found that reports generated during the appeals process did not have to be disclosed to a claimant until after the conclusion of the administrative appeal. Id. at 1166. In support of its decision, the court noted that in subsection (h)(3)(iii) of the applicable regulations, an administrator is required to consult with a health care professional in "deciding an appeal of any adverse benefit determination that is based in whole or in part on a medical judgment." 29 C.F.R. § 2560.503-1. Because this regulation mandates consultation with a health care professional on appeal, the court concluded that "[p]ermitting a claimant to receive and rebut medical opinion reports generated in the course of administrative appeal-even when those reports contain no new factual information and deny benefits on the same basis as the initial decision-would set up an unnecessary cycle of submission, review, re-submission, and re-review." Id. Further, the court relied on the Department of Labor's description of the disclosure regulation. The Department stated it believed the disclosure of the relevant documents would "serve the interests of both claimants and plans by providing clarity as to the plans' disclosure obligations, while providing claimants with adequate access to the information necessary to determine whether to pursue further appeal." Id. at 1167 (citing ERISA Claims Procedure, 65 Fed.Reg. 70,246, 70,252 (Nov. 21, 2000) (emphasis added)). The court reasoned that requiring reports generated on appeal to be disclosed prior to the final decision would belie the Department's description because access to these documents "would not aid claimants in determining 'whether to pursue further appeal,' because claimants would not yet know if they faced an adverse decision." Id. The court held "[s]o long as appeal-level reports analyze evidence already known to the claimant and contain no new factual information" disclosing an appeal-level report after the final decision is consistent with full and fair review. Id.

As there seems to be a split in circuit reasoning, this court is not inclined to adopt the hard and fast rule established in Abram without further guidance from the Fifth Circuit. Further, while the Fifth Circuit has not addressed this issue directly, it has more generally held that despite technical noncompliance with ERISA procedural requirements, if the purpose of ERISA section 1133 is fulfilled then only substantial compliance with the regulations is required. Lacy v. Fulbright & Jaworski, 405 F.3d 254, 256 (5th Cir.2005); Robinson v. Aetna Life Ins. Co., 443 F.3d 389, 392 (5th Cir.2006) ("Challenges to ERISA procedures are evaluated under the substantial compliance standard."). Under § 1133(2), "full and fair review" has been interpreted to mean that the claimant should know what evidence the decision-maker relied upon, have an opportunity to address the accuracy and reliability of the evidence, and have the decision-maker consider the evidence presented by both parties prior to reaching and rendering its decision. Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 598 (5th Cir.1994).

Dissent in 9th Circuit Insists Majority Erroneously Perpetuates a Split Re Credit for Pre-PDA Pregnancy Leave

Per Hulteen v. AT&T Corp., --- F.3d ----, 2007 WL 2332071 (9th Cir.(Cal.) Aug 17, 2007) (NO. 04-16087):

By concluding that Pallas v. Pacific Bell, 940 F.2d 1324 (9th Cir.1991), cert. denied, 502 U.S. 1050, 112 S.Ct. 916, 116 L.Ed.2d 815 (1992) , remains good law, the majority erroneously perpetuates a circuit split with the Sixth and the Seventh Circuits. FN1 I believe that Pallas was wrong then and is wrong now. Because this en banc court can and should overrule Pallas and follow the Seventh Circuit's well-reasoned decision in Ameritech Benefit Plan Committee v. Communication Workers of America, 220 F.3d 814 (7th Cir.), cert. denied, 531 U.S. 1127, 121 S.Ct. 883, 148 L.Ed.2d 791 (2000) , I must respectfully dissent from the majority's conclusion that the sex discrimination claims in this case are timely. FN2

. . .

As Judge Dumbauld lamented in his dissent to Pallas, we consider " 'a melancholy tale [o]f things done long ago, and ill-done.' " 940 F.2d at 1327 (Dumbauld, J., dissenting) (quoting John Ford, The Lover's Melancholy). Because Pallas invented a timely Title VII violation where the determination of benefits simply gave present effect to past, unchallenged acts, contrary to Supreme Court authority, it must be overruled. Because the majority today erroneously embraces Pallas and perpetuates a circuit split with the Sixth and Seventh Circuits, I must respectfully dissent.

FN1. Compare Pallas, 940 F.2d at 1327, with Ameritech Benefit Plan Comm. v. Commc'n Workers of Am., 220 F.3d 814 (7th Cir.2000), and Leffman v. Sprint Corp., 481 F.3d 428, 433 (6th Cir.2007). No circuit has followed our decision in Pallas.

FN2. The majority devotes considerable attention to whether intervening Supreme Court authority is "clearly irreconcilable" with our prior decision in Pallas. Ante, at 10037-43. That standard governs whether a three-judge panel of our court is free to reexamine the holding of prior circuit precedent. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc). Here, of course, we sit as an en banc court. If Pallas is wrongly decided, we are free to overrule it even if subsequent authorities are not "clearly irreconcilable." See id. at 902 (O'Scannlain, J., concurring in part) ("The en banc court, however, is unencumbered by any obligation to follow the decision of a three-judge panel, and therefore is free to do what ... [a] panel could not."); see also Robbins v. Carey, 481 F.3d 1143, 1149 n. 3 (9th Cir.2007) ( "Ordinarily, panels cannot overrule a circuit precedent; that power is reserved to the circuit court sitting en banc."). I turn directly to that inquiry.

2d Circuit Notes Split Re Due Process Concerns When BIA Denies Motion to Reopen

Per Burger v. Gonzales, --- F.3d ----, 2007 WL 2331944 (2d Cir. Aug 17, 2007) (NO. 03-40395-AG L, 05-1058-AG CON):

The Government does not dispute that the noticed facts were dispositive of Burger's claim, and it concedes that the BIA failed to warn Burger that it would take notice. Rather, the Government contends that Burger's motion to reopen gave her a full and fair opportunity to present her claim and thus cured the lack of advance notice. The circuits are divided.

The Fifth, Seventh, and D.C. Circuits have held that a motion to reopen suffices to satisfy due process in this context. See Gutierrez-Rogue v. INS, 954 F.2d 769, 773 (D.C.Cir.1992) ("The availability of the petition to reopen secures [petitioner's] due process right to a meaningful hearing."); Rivera-Cruz v. INS, 948 F.2d 962, 968 (5th Cir.1991) (same); Kaczmarczyk v. INS, 933 F.2d 588, 597 (7th Cir.1991) (same).

The Ninth and Tenth Circuits, however, have held that due process requires that the BIA provide applicants with notice and an opportunity to be heard before the BIA determines on the basis of administratively noticed facts that a petitioner lacks a wellfounded fear of persecution. See Getachew v. INS, 25 F.3d 841, 846 (9th Cir.1994) (advance notice and opportunity to respond required when BIA determines, on the basis of administrative notice, whether an "election has vitiated any previously well-founded fear of persecution"); de la Llana-Castellon v. INS, 16 F.3d 1093, 1100 (10th Cir.1994) (availability of motion to reopen did not satisfy due process where BIA reversed IJ's finding that petitioners had a well-founded fear of persecution based solely on administratively noticed facts).

As the Ninth and Tenth Circuits have noted, the reopening procedure has serious limitations as a guaranty of due process. See, e.g., de la Llana-Castellon, 16 F.3d at 1100; Castillo-Villagra v. INS, 972 F.2d 1017, 1029-30 (9th Cir.1992). The BIA's decision to grant a motion to reopen is purely discretionary. 8 C.F.R. § 1003.2(a). Moreover, because the filing of a motion to reopen does not automatically stay the execution of an order of removal, id. § 1003.2(f), the applicant's due process rights depend entirely on the BIA's good faith. Cf. Kaczmarczyk, 933 F.2d at 597 n. 9 ("We presume that when an asylum applicant uses a good faith motion to reopen to dispute officially noticed facts, the Board will exercise its discretion to stay the execution of its decision until it has had an opportunity to rule on the applicant's motion.").

D.D.C. Notes Split Re Definition of the Term "Proceeds"

Per U.S. v. Palfrey, --- F.Supp.2d ----, 2007 WL 2327078 (D.D.C . Aug 16, 2007) (NO. CRIM.07-46GK):

The Indictment in this case alleges facts that are more than sufficient to inform Defendant of the offense charged as required by Hamling. Specifically, the Indictment alleges that Defendant hired women to perform prostitution activities for customers of Pamela Martin and Associates; that Defendant directed those women to convert a portion of the funds from those activities into money orders and send them via the United States mail to Defendant in California; that Defendant maintained United States Post Office Box 1211 in Benicia, California 94510 for receipt of portions of the proceeds of said prostitution activities; and that Defendant would receive the money orders and deposit them into her own accounts in California and use them to support the enterprise. Indictment ¶¶ 10, 17-18. As Defendant concedes, the Indictment "contain[s] a modest description of the alleged organizational structure of Ms. Palfrey's business." Def.'s Mot. (Dkt. No. 65) at 6. Although modest, the Court finds that the description is constitutionally sufficient.

Defendant further argues that ambiguity of the term "proceeds," as evidenced by a circuit split on the precise definition of that term, deprives her of constitutionally required notice of the charge. Def.'s Mot (Dkt. No. 65) at 7-8; compare United States v. Santos, 461 F.3d 886 (7th Cir.2006), cert. granted, --- U.S. ----, 127 S.Ct. 2098, 167 L.Ed.2d 812 (2007) (defining "proceeds" as "gross income") and United States v. Iacoboni, 363 F.3d 1, 4 (1st Cir.2004) (same) with United States v. Scialabba, 282 F.3d 475 (7th Cir.2000) (defining "proceeds" as "net income"). Since "proceeds" is not further defined in the Indictment, she argues, it is unclear whether the Grand Jury considered her "net income" or her "gross income" to return the Indictment in this case. She contends that this ambiguity undercuts her ability to fight the charges against her.