N.D. Ill. Notes Intracircuit Split Re whether the PSLRA Applies to Section 14(a) Exchange Act Cases

Per In re JPMorgan Chase & Co. Securities Litigation, Slip Copy, 2007 WL 4531794 (N.D. Ill. Dec. 18, 2007):

Plaintiffs argue that (1) negligence is not a state of mind, and therefore does not require a pleading of particular facts to give strong inference, and (2) even if it were, the pleadings are sufficient. There seems to be some discrepancy on how a 14(a) negligence allegation should be treated under 15 U.S.C. § 78u-4(b) (2). The Seventh Circuit has not ruled on whether the PSLRA applies to Section 14(a) cases. The district courts in this circuit have been split on the issue. In Blau v. Harrison, Judge Hibbler stated that “Plaintiffs' Section 14(a) allegations are not required to meet the PSLRA particularity requirement because these claims are based on averments of negligence.” 2006 U.S. Dist. LEXIS 18785 (N.D.Ill., 2006). Judge Hibbler reasoned that because the Seventh Circuit ruled that Rule 9(b) pleading requirements were not applicable to negligence claims, the PSLRA heightened requirements would not be applicable either. Id.; Kennedy v. Venrock Assocs., 348 F.3d 584, 593 (7th Cir.2003). Judge Leinenweber disagreed with the ruling in Blau, concluding that “the Seventh Circuit's opinion in [ Kennedy ] ... never addressed the PSLRA at all,” but only stated that Rule 9(b)'s heightened pleading standards did not apply to Section 14(a) claims unless those claims charged fraud, as opposed to negligence. Beck v. Dobrowski, et al ., 2007 U.S. Dist. LEXIS 84093 (N.D.Ill.2007). Judge Leinenweber found that this analysis was inapplicable to the PSLRA, because Rule 9(b) was “expressly limited to claims of fraud or mistake,” whereas the PSLRA encompasses negligence claims as well. Id. Judge Leinenweber states the following, specifically finding that negligence constitutes a “state of mind”:

The Court concludes that the PSLRA governs Plaintiff's claim. Although the Seventh Circuit has not decided whether the PSLRA applies to Section 14(a) cases, the statutory language is unambiguous. All relevant sections of the Act commence with the phrase, “in any private action arising under this chapter,” 15 U.S.C. § 78u-4(b)(1),(2). & (4) (emphasis added). The Act contains no exceptions based on considerations of scienter or previous common law causation rules. Indeed, the Act's pleading standard provisions are to the contrary. Section(b)(2) applies to actions for money damages requiring proof of only “a particular state of mind.” Since negligence is a state of mind, the language of Section (b) (2) by its terms encompasses negligence-based securities actions.

D. Mass. Notes Split Re Whether Purchasing a Sponsored Link Associated with Another's Trademark Constitutes Lanham Act Trademark Use

Per Boston Duck Tours, LP v. Super Duck Tours, LLC, --- F.Supp.2d ----, 2007 WL 4465464 (D. Mass. Dec. 05, 2007):

The question of whether purchasing a sponsored link associated with a plaintiff's trademark constitutes Lanham Act trademark use has not been addressed in this circuit. Courts elsewhere have split on the issue. In the Southern and Eastern Districts of New York, purchasing sponsored links has been found not to be Lanham Act use. Merck & Co., Inc. v. Mediplan Health Consulting, Inc., 425 F.Supp.2d 402 (S.D.N.Y.2006) (dismissing trademark-violation claim based on sponsored linking); Site Pro-1, Inc. v. Better Metal, LLC, 506 F.Supp.2d 123 (E.D.N.Y.2007) (same); Fragrancenet.com, Inc. v. FragranceX.com, Inc., 493 F.Supp.2d 545 (E.D.N.Y.2007) (denying as futile plaintiff's motion for leave to amend complaint to include a count alleging trademark infringement by sponsored linking).

Those decisions are consistent with the holding of the Second Circuit Court of Appeals that other forms of internal use of a trademark in website operation are not “use” in that sense. 1-800 Contacts, Inc. v. WhenU.Com, Inc., 414 F.3d 400 (2d Cir.2005) (reversing trial court's grant of a preliminary injunction against use of plaintiff's mark to trigger pop-up advertising). The reasoning emphasizes the fact that the use of the trademark is entirely internal: the customer sees only the defendant's advertisement, which makes no mention or other use of the trademarked phrase. That “internal utilization”, the Second Circuit concludes, “is analogous to an individual's private thoughts about a trademark.” 414 F.3d at 409.

The Eastern District of Pennsylvania, the District of New Jersey and the Eastern District of Virginia, however, have found to the contrary. J.G. Wentworth, S.S.C. Ltd. P'ship v. Settlement Funding LLC, 2007 WL 30115 (ED Pa.2007) (finding trademark use in sponsored linking but allowing defendant's motion to dismiss on other grounds); Buying for the Home, LLC v. Humble Abode, LLC, 459 F.Supp.2d 310 (D.N.J.2006) (denying defendant's motion for summary judgment on plaintiff's trademark infringement claim based on sponsored linking); Gov't Employees Ins. Co. v. Google, Inc., 330 F.Supp.2d 700 (E.D.Va.2004) (same). The Ninth and Tenth Circuit Courts of Appeals have also held, contrary to the Second Circuit, that similar internal uses of a plaintiff's mark are “use” under the Lanham Act. Playboy Enters., Inc. v. Netscape Commc'ns Corp., 354 F.3d 1020 (9th Cir.2004) (reversing trial court's allowance of summary judgment in favor of defendant who allegedly used plaintiff's mark to trigger pop-up advertisements); Australian Gold Inc. v. Hatfield, 436 F.3d 1228 (10th Cir.2006) (same). The reasoning applied in those cases is that “the mark was used to provide a computer user with direct access (i.e. a link) to defendant's website.” Buying for the Home, 459 F.Supp.2d at 323.

In short, the emerging view outside of the Second Circuit is in accord with the plain language of the statute. Because sponsored linking necessarily entails the “use” of the plaintiff's mark as part of a mechanism of advertising, it is “use” for Lanham Act purposes.

D. South Dakota Notes Split Re Whether Dual Sovereign Doctrine Should Apply in the Sixth Amendment Context

Per U.S. v. Killeaney, Slip Copy, 2007 WL 4459348 (D.S.D. Dec. 17, 2007):

The court notes the circuits are split as to whether the dual sovereign doctrine should apply in the Sixth Amendment right to counsel context. Of the circuits that have addressed the issue, three have applied the doctrine to the Sixth Amendment, two have declined to, and one chose not to address the issue. See United States v. Alvarado, 440 F.3d 191, 194 (4th Cir.2006) (holding that “federal and state crimes are necessarily separate offenses for the purposes of the Sixth Amendment, because they originate from autonomous sovereigns that each have the authority to define and prosecute criminal conduct”); United States v. Coker, 433 F.3d 39, 44 (1st Cir.2005) (stating that “the dual sovereignty doctrine applies for the purpose of defining what constitutes the same offense in the Sixth Amendment right to counsel context”); United States v. Avants, 278 F.3d 510, 517 (5th Cir.2002) (stating “[i]t is plain to see that the federal and state murder prosecutions against Avants are not the ‘same offense’ under the Sixth Amendment because each was initiated by a separate sovereign”); United States v. Mills, 412 F.3d 325, 327 (2d Cir.2005) (stating “the Sixth Amendment right of counsel extends to offenses considered to be the ‘same offense’ as those to which the right has already attached even when they are prosecuted by different sovereigns”); United States v. Red Bird, 287 F.3d 709,715 (8th Cir.2002) (stating “the federal and tribal complaints charge the same offense for Sixth Amendment purposes”); and United States v. Krueger, 415 F.3d 766, 768 (7th Cir.2005) (determining that it did not have to reach the issue because the case could be decided on other grounds). See also Charles Morrison, The Supreme Court May Have Meant What It Said, But It Needs To Say More: A Comment on The Circuit Split Regarding the Application of the Dual Sovereignty Doctrine To the Sixth Amendment Right to Counsel, 39 U. Tol. L.Rev. 153, 183-84 (2007) (arguing that the dual sovereignty doctrine should be applied to the Sixth Amendment because there are considerations related to connecting the federal government's prosecutorial efforts to the quality of a state's previous investigation and courts should respect the United States Supreme Court's adherence to the multi-sovereign nature of the Constitution as well as its belief that the Fifth and Sixth Amendment rights to counsel are designed to serve different purposes).

Sixth Circuit Notes Split Re Appropriate Standard for Reviewing Supervised Release Revocation Sentences Post-Booker

Per U.S. v. Bolds, --- F.3d ----, 2007 WL 4440403 (6th Cir. Dec. 20, 2007):

Post- Booker, the courts of appeals have struggled with the question of whether to continue to review supervised release revocation sentences under the “plainly unreasonable” standard or to apply the Booker “unreasonableness” review standard to such cases. In considering this question, the courts have confronted two issues: (1) whether, by announcing a standard of “unreasonableness” review in Booker, the Supreme Court intended to displace the “plainly unreasonable” standard that the courts had used in reviewing supervised release revocation sentences; and (2) whether there is any practical difference between these two standards.

From the twelve circuits, five different approaches have emerged. ^FN2 The Fourth and Seventh Circuits have found that Booker did not displace the “plainly unreasonable” standard of review for supervised release revocation sentences and that review under this standard, while similar to review for “unreasonableness,” is not the same. See United States v. Kizeart, 505 F.3d 672, 674 (7th Cir.2007); United States v. Crudup, 461 F.3d 433, 436-439 (4th Cir.2006). The Tenth Circuit appears to agree with the Fourth and Seventh Circuits that Booker did not change the standard of review of supervised release revocation sentences, but concludes that review under this standard is the same as under the Booker-created standard-sentences will be upheld if they are “reasoned and reasonable.” United States v. Tedford, 405 F.3d 1159, 1161 (10th Cir.2005) (quoting United States v. Tsosie, 376 F.3d 1210, 1218 (10th Cir.2004)). The Second, Third, and Ninth Circuits, in contrast, have found that Booker did replace the “plainly unreasonable” standard found in § 3742(e)(4) with an “unreasonableness” standard and, accordingly, have not considered what differences, if any, exist between the two standards. See United States v. Bungar, 478 F.3d 540, 542 (3d Cir.2007); United States v. Miqbel, 444 F.3d 1173, 1176 (9th Cir.2006) (Reinhardt, J .); United States v. Fleming, 397 F.3d 95, 97-99 (2d Cir.2005). The Eighth and Eleventh Circuits have likewise held that Booker reasonableness review should apply to supervised release revocation sentences, but they have additionally indicated that “the reasonableness standard of Booker is the essentially the same as the ‘plainly unreasonable’ standard of § 3742(e)(4).” United States v. Sweeting, 437 F.3d 1105, 1106 (11th Cir.2006); accord United States v. Cotton, 399 F.3d 913, 916 (8th Cir.2005). Finally, our Circuit and the Fifth Circuit have consistently refused to decide either issue. See, e.g., United States v. Smith, No. 07-10041, 2007 WL 4166152, at *1 (5th Cir. Nov. 21, 2007) (unpublished) (“This court has yet to decide which standard of review is applicable to revocation sentences.”); United States v. Jones, 484 F.3d 783, 792 (5th Cir.2007); United States v. Hinson, 429 F.3d 114, 120 (5th Cir.2005); see also supra p. 4.

FN2. W e note, however, that, as a practical matter, there is essentially only a two-way circuit split between those circuits applying the “plainly unreasonable” standard of review (Fourth, Seventh) and those applying “unreasonableness” review (Second, Third, Eighth, Ninth, Tenth, Eleventh), with two circuits undecided (Sixth, Fifth), and two which have yet to confront the issue (First, D.C.).

Having evaluated these various approaches, we find that, while the Supreme Court in Booker did not technically displace the “plainly unreasonable” standard contained in 18 U.S.C. §§ 3742(a)(4) and 3742(b)(4), there is no practical difference between Booker's “unreasonableness” review and the “plainly unreasonable” standard in §§ 3742(a)(4) and 3742(b)(4). Rather than creating a new “unreasonableness” standard of review for supervised release revocation sentences, the Supreme Court in Booker was simply directing appellate courts to apply the same reasonableness standard that they use to review supervised release revocation sentences to their review of all sentences. Accordingly, for the reasons that follow, we hold that post- Booker, this Circuit will review supervised release revocation sentences in the same way that we review all other sentences-“ ‘under a deferential abuse of discretion standard’ for reasonableness.” United States v. Lalonde, ---F.3d ----, No. 06-4563, 2007 WL 4321998, at * 17 (quoting Gall, 2007 WL 4292116, at *2).

Fourth Circuit Weighs in on Split Re Meaning of Sentencing Guideline Provision

Per U.S. v. Delfino, --- F.3d ----, 2007 WL 4394412 (4th Cir. Dec. 18, 2007):

The jury found the Delfinos guilty on all counts. At sentencing, the Delfinos argued that the tax loss contained in the presentence report was erroneous because it did not credit them with the deductions which they could have claimed had they filed their tax returns. The district court rejected this argument and sentenced the Delfinos based on the tax loss calculated in the presentence report.

. . .

The Delfinos next look to U.S.S.G. § 2T1.1(c)(2)(A) for relief. Section 2T1.1(c)(2)(A) provides:

If the offense involved failure to file a tax return, the tax loss shall be treated as equal to 20% of the gross income ... less any tax withheld or otherwise paid, unless a more accurate determination of the tax loss can be made.

The Delfinos claim that the phrase “a more accurate determination of the tax loss” mandates the calculation of deductions before tax loss is determined. The three courts of appeals which have considered this issue have split, with a majority rejecting the position advanced by the Delfinos. Compare Chavin, 316 F.3d at 679 (rejecting the inclusion of deductions) and United States v. Spencer, 178 F.3d 1365, 1368 (10th Cir.1999) (same) with United States v. Gordon, 291 F.3d 181, 187 (2d Cir.2002) (concluding that § 2T1.1(c)(1)(A) requires the calculation of deductions). We agree with and adopt the majority view.

[Thanks to Sean Sirrine of www.objectivejustice.org for bringing this case to my attention.]

E.D. Cal. Notes Split Re Whether Title IX Subsumes a Claim under § 1983

Per Brust v. Regents of University of Cal., Slip Copy, 2007 WL 4365521 (E.D. Cal. Dec. 12, 2007):

There is presently a split in circuit authority as to whether Title IX subsumes a claim under § 1983. Compare Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 179-80 (1st Cir.2007) (holding that plaintiff's § 1983 claim based upon alleged Equal Protection Clause violations were precluded by Title IX's remedial scheme); Bruneau v. South Kortright Cent. Sch. Dist., 163 F.3d 749, 758 (2d Cir.1998) (”[A] § 1983 claim based on the Equal Protection Clause is subsumed by Title IX), and Waid v. Merrill Area Pub. Sch., 91 F.3d 857, 862 (7th Cir.1996) (holding that a plaintiff may not claim that a single set of facts leads to causes of action under both Title IX and section 1983), and Pfeiffer v. Marion Ctr. Area Sch. Dist., 917 F.2d 779, 789 (3d Cir.1990) (same), and Travis v. Folsom Cordova Unified Sch. Dist., 2007 U.S. Dist. LEXIS 11566 (E.D.Cal.2007) (holding that “Title VI is sufficiently comprehensive to evince congressional intent to foreclose a § 1983 remedy”), with Communities for Equity v. Mich. Hish Sch. Athletic Ass'n, 459 F.3d 676, 683-86 (6th Cir.2006); Crawford v. Davis, 109 F.3d 1281, 1284 (8th Cir.1997) (holding that Title IX has no preemptive power over section 1983 claims), and Seamons v. Snow, 84 F.3d 1226, 1233 (10th Cir.1996) (holding that plaintiff has independent rights under Title IX and under § 1983), and Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 722-23 (6th Cir.1996) (holding that a § 1983 claim seeks to enforce distinct and independent substantive due process rights).

Section 1983 does not create substantive rights, but provides the procedural framework for a plaintiff to bring suit for violations of federal rights. “Section 1983 supplies a cause of action to a plaintiff when a person acting under the color of state law deprives that plaintiff of any ‘rights, privileges, or immunities secured by the Constitution and laws of the United States.’ “ Bruneau, 163 F.3d at 756 (citing 42 U.S.C. § 1983). However, § 1983 does not provide a remedy for violations of all federal statutes. “When the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.” Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 20 (1981). In determining if Title IX precludes resort to § 1983, courts consider (1) whether plaintiffs' Title IX claims are “virtually identical” to their constitutional claims, and (2) whether the remedies provided in Title IX indicate that Congress intended to preclude reliance on § 1983. Smith v. Robinson, 468 U.S. 992, 1009 (1984); Communities for Equity, 459 F.3d at 685. While the Ninth Circuit has not decided the specific issue of whether § 1983 claims are subsumed by Title IX, it has recognized that federal statutes may preclude a § 1983 remedy if they are sufficiently comprehensive. See, e.g., Dittman v. California, 191 F.3d 1020, 1028 (9th Cir.1999); Dep't of Educ. v. Katherine D., 727 F.2d 809, 820 (9th Cir.1983). The court agrees with the reasoning of the Second Circuit in Bruneau that, under the Sea Clammers doctrine, Title IX's enforcement scheme is sufficiently comprehensive to subsume plaintiffs' virtually identical § 1983 claims and demonstrate that Congress intended to preclude § 1983 claims when it enacted this statute. See Bruneau, 163 F.3d at 756-57. Contra Communities for Equity, 459 F.3d at 685-86.

S.D. Ind. Notes Split Whether Title II of the Americans with Disabilities Act Applies to Employment

Per Canfield v. Isaacs, --- F.Supp.2d ----, 2007 WL 3333378 (N.D.Ind. Nov. 07, 2007):

This case poses the interesting question of whether Title II of the Americans with Disabilities Act applies to employment. It is before the Court on a motion to dismiss. The circuit courts of appeal are split on the issue, and the Seventh Circuit, while recognizing the split in authority, has not had the occasion to decide the issue. (The district courts in this circuit are likewise split on the issue). Title I of the ADA specifically applies to employment but it requires that plaintiffs exhaust their remedies through the EEOC before coming to court. Because the plaintiff in this case failed to exhaust his remedies, he is out of luck unless it is found that Title II also applies to employment. For the reasons stated below, I find that the plain language of the statute makes it clear that Title II does not cover employment.

E.D. Pa. Notes Split Re Applicability of Rule 11 in a Removal Case Where the Defendant Seeks Sanctions for the Filing of a State Court Complaint

Per Dieffenbach v. Cigna Corp., Slip Copy, 2007 WL 4275502 (E.D. Pa. Dec. 04, 2007):

The question of the applicability of Rule 11 in a removal case where the defendant seeks sanctions for the filing of a state court complaint is an unresolved one in this circuit. There appears to be a split among the other circuits on the issue with the Second, Fourth and Fifth Circuits holding that Rule 11 sanctions cannot be imposed on state court complaints, while the Sixth Circuit has held that they can. See, e.g., Tompkins v. Cyr, 202 F.3d 770 (5th Cir.2000); Herron v. Jupiter Transportation Co., 858 F.2d 332, (6th Cir.1988); Kirby v. Allegheny Beverage Corp., 811 F.2d 253 (4th Cir.1987); Stiefvater Real Estate, Inc. v. Hinsdale, 812 F.2d 805 (2d Cir.1987). The only Court in this district to consider the matter, however, followed the 6th Circuit to conclude that the fact that the case was removed from state court had no bearing on the application of Rule 11, which applies to a pleading once it is removed to federal court and thereby imposes upon the attorney a duty to reevaluate his signed pleadings once they are in federal court. See, Riley v. City of Philadelphia, 136 F.R.D. 571, 574 (E.D.Pa.1991).

We do not believe that we need to reach the issue of whether Rule 11 is properly applied to pleadings originally filed in the state court to resolve the motion now before us. While it was the plaintiff's filing of a complaint in the Chester County Court of Common Pleas which once again initiated these proceedings in July, 2007, it is the plaintiff's continuing insistence on the prosecution of this matter and his repeatedly signing papers, motions and amended pleadings in this Court which is at the heart of the Rule 11 motion before us.

10th Circuit Notes Split Re How Court Determines Felon's Right to Possess Firearms upon Release from Parole or Imprisonment

Per U.S. v. Baker, --- F.3d ----, 2007 WL 4269055 (10th Cir. Dec. 6, 2007):

In this Circuit, however, to determine whether state law expressly restricts a felon's right to possess firearms, we “look to the whole of state law.” Burns, 934 F.2d at 1160 (consulting provisions of the Kansas criminal code to determine a felon's right to possess a firearm).^FN4

FN4. We note a split in the circuits regarding whether a court may look only to a certificate of restoration of civil rights upon release from parole or imprisonment to decide whether the certificate expressly limits a felon's right to possess firearms, or whether, as in this Circuit, we may look to the whole of state law to make such a determination. See United States v. Chenowith, 459 F.3d 635, 638 (5th Cir.2006) (noting that the Fifth, Seventh, and Ninth Circuits adhere to the former approach, while the Fourth, Sixth, and Tenth Circuits adhere to the latter approach).

Eleventh Circuit Weighs in on Split Re Holding of Rapanos v. U.S.

Per U.S. v. Robison, 505 F.3d 1208 (11th Cir. Oct. 24, 2007):

The parties dispute what constitutes the governing definition of “navigable waters” under Rapanos v. United States, ---U.S. ----, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). The defendants argue that only Justice Kennedy's concurrence (i.e., the “significant nexus” test) applies. The government responds that if Avondale Creek can be shown to satisfy either the plurality's test or Justice Kennedy's test, that is sufficient to sustain CWA jurisdiction in this case.

The circuits likewise are split on the question of which Rapanos opinion provides the holding. Both the Seventh and the Ninth Circuits concluded that Justice Kennedy's concurrence controls and adopted the “significant nexus” test. See N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 999-1000 (9th Cir.2007) (“ River Watch II”);^FN12 United States v. Gerke Excavating, Inc., 464 F.3d 723, 724-25 (7th Cir.2006), cert. denied, --- U.S. ----, 128 S.Ct. 45, 76 U.S.L.W. 3156, 2007 WL 1035893 (U.S. Oct. 1, 2007) (No. 06-1331). The First Circuit, on the other hand, concluded that because the dissenting Rapanos Justices would find jurisdiction under either Justice Scalia's plurality test or Justice Kennedy's “significant nexus” test, “ ‘the United States may elect to prove jurisdiction under either test.’ ” United States v. Johnson, 467 F.3d 56, 64 (1st Cir.2006) (citation omitted), cert. denied, --- U.S. ----, 128 S.Ct. 375, 76 U.S.L.W. 3186, 2007 WL 1999079 (U.S. Oct. 9, 2007) (No. 07-9).

. . .

[W]e join the Seventh and the Ninth Circuits' conclusion that Justice Kennedy's “significant nexus” test provides the governing rule of Rapanos.

SCOTUS Resolves Split Re Meaning of Armed Career Criminal Act Exception

Per Logan v. U.S., --- S.Ct. ----, 2007 WL 4232786 (Dec. 04, 2007):

We granted certiorari, 549 U.S. ----, 127 S.Ct. 1251, 167 L.Ed.2d 72 (2007), to resolve a split among the Circuits as to whether § 921(a)(20)'s [of the Armed Career Criminal Act (ACCA)] exception for “civil rights restored” should be interpreted to include civil rights retained at all times. Compare 453 F.3d, at 809 (case below) (“civil rights restored” does not include civil rights never revoked), and McGrath v. United States, 60 F.3d 1005 (C.A.2 1995) (same), with United States v. Indelicato, 97 F.3d 627, 631 (C.A.1 1996) (“civil rights restored” includes civil rights never lost).

. . .

Congress framed § 921(a)(20) to serve two purposes. See Tr. of Oral Arg. 28-29. It sought to qualify as ACCA predicate offenses violent crimes that a State classifies as misdemeanors yet punishes by a substantial term of imprisonment, i.e., more than two years. See § 921(a)(20)(B). Congress also sought to defer to a State's dispensation relieving an offender from disabling effects of a conviction. Had Congress included a retention-of-rights exemption, however, the very misdemeanors it meant to cover would escape ACCA's reach. Logan complains of an anomalous result. Yet the solution he proposes would also produce anomalies. Having no warrant to stray from § 921(a)(20)'s text, we hold that the words “civil rights restored” do not cover the case of an offender who lost no civil rights.

Fifth Circuit Discusses Split Re Is Whether 7 U.S.C. § 6912(e) Requires the Exhaustion of Administrative Remedies as a Prerequisite to Federal SMJ

Per Dawson Farms, LLC v. Farm Service Agency, 504 F.3d 592, (5th Cir. Oct. 16, 2007)

The Eighth and Ninth Circuits have held that the 7 U.S.C. § 6912(e) exhaustion requirement is jurisprudential rather than jurisdictional in its effect. The Second Circuit's contrary view is that § 6912(e) is a prerequisite to a district court's subject matter jurisdiction in a person's suit against the Secretary, the USDA, or any of its agencies, officers or employees.

. . .

[W]e now join the Eighth and Ninth Circuits in holding that § 6912(e) analogously codifies the jurisprudential doctrine of exhaustion and is not jurisdictional.