11th Circuit Discusses Circuit Split Re: Application of Collateral Estoppel to a Partial Verdict

Per United States v. Ohayon, --- F.3d ----, 2007 WL 1079999 (11th Cir. April 12, 2007):

This appeal by the United States involves the application of collateral estoppel to a partial verdict, which is an issue that has divided not only our sister circuits but panels of our circuit as well. The question presented is whether an acquittal on a charge of an attempted drug offense requires, under the Double Jeopardy Clause of the Fifth Amendment, the dismissal of a charge of a drug conspiracy on which the jury was unable to reach a verdict. Binyamin Ohayon was tried on charges of conspiracy to possess with intent to distribute and attempt to possess with intent to distribute MDMA, or ecstasy. 21 U.S.C. §§ 841(a)(1), 846. . . . A jury acquitted Ohayon of the attempt count but was unable to reach a unanimous verdict on the conspiracy count. The United States sought to retry Ohayon for conspiracy, but the district court concluded that Ohayon's acquittal of attempt collaterally estopped the government from retrying him on the conspiracy charge. Because it is clear that the jury found reasonable doubt that Ohayon knew that he was acquiring drugs, and a conviction for conspiracy would require the government to prove beyond a reasonable doubt that Ohayon knew that he was acquiring drugs, we hold that the government is collaterally estopped from retrying Ohayon for conspiracy to possess with intent to distribute those drugs. . . . The government . . . argues that the partial verdict itself is evidence that the jury did not acquit Ohayon based on his ignorance of the contents of the bags. The government argues that, if the jury had acquitted Ohayon of attempt because it found him to be unaware of the contents of the bags, it necessarily would have acquitted him of conspiracy as well. The government reasons that the failure of the jury to acquit Ohayon of the conspiracy charge establishes that the jury rested its acquittal of Ohayon on the attempt charge on some other ground. . . .

Our prior precedent, . . . establishes that a partial verdict can bar another prosecution of a mistried charge based on collateral estoppel. In United States v. Larkin, the defendant was charged with conspiring to embezzle funds and falsify records, and with several substantive counts of the same, based on the vicarious liability theory of Pinkerton v. United States, 328 U.S. 640 (1946). Larkin, 605 F.2d 1360, 1371 (5th Cir.1979), modified on other grounds, 611 F.2d 585 (5th Cir.1980). The jury acquitted Larkin of the vicarious liability counts but was unable to reach a verdict on the conspiracy count. Id., 605 at 1363. Applying Ashe v. Swenson, 397 U.S. 436, 444 (1970), we held that the government was estopped from retrying Larkin for conspiracy because, regardless of which of two potential issues served as the basis of the jury's verdict, the government would be required to prove a fact established against it by the acquittals to convict Larkin of conspiracy. Id. at 1371. . . . Although Larkin settles the issue, if we were writing on a clean slate, we would recognize that the argument of the government does not follow the standard established in Ashe. Ashe requires that we look at all potential bases of a verdict of a rational jury and ask what the record tells us about the basis for an acquittal, but the government asserts that we should search for the basis of a mistried count. The problem with the argument of the government is that the search for the basis of a mistried count will necessarily be in vain. The argument presumes that a mistried count, like an acquitted count, is a decision for which we can discern, or to which we can impute, a single basis. In truth, the failure of a jury to reach a verdict is not a decision; it is a failure to reach a decision. A partial verdict does not comprise two decisions that we must try to reconcile, because the mistried count is not a decision for which we can discern, or to which we can impute, a single, rational basis. The very essence of a mistried count is that the jury failed to reach agreement.

Consistent with this reasoning, two of the three of our sister circuits to have decided the issue have also concluded, as we did in Larkin, that a partial verdict can bar prosecution of mistried charges based on collateral estoppel. In United States v. Romeo, a jury acquitted on a charge of possession with intent to distribute marijuana but failed to reach a verdict on a charge of importation of marijuana. 114 F.3d 141, 142 (9th Cir.1997). The only contested element at trial was whether Romeo knew there was marijuana in the car he drove from Mexico into the United States. Id. Applying “ Ashe' s ‘realism and rationality’ approach,” the Ninth Circuit found that a rational jury could only have acquitted Romeo of the possession charge on the ground that he was unaware there was marijuana in the car. Id. at 143 (quoting Ashe, 397 U.S. at 444). The court concluded that, because Romeo's knowledge of the presence of marijuana in the car was “also an essential element of the [charge] remaining for retrial,” the government was estopped from retrying Romeo on the importation charge. Id. at 143-44.

The Sixth Circuit has likewise held that a partial verdict can bar another prosecution of a mistried charge based on collateral estoppel. In United States v. Frazier, a jury acquitted the defendants of a charge of misapplication of funds but failed to reach a verdict on a charge of making false entries. 880 F.2d 878, 885 (6th Cir.1989). The court concluded that the government was estopped from retrying the defendants for making false entries, because “[a] jury could not conclude that the defendants willfully caused false entries to be made ... without also finding that the defendants willfully and knowingly misapplied bank funds” as charged in the acquitted count. Id. at 886.

One of our sister circuits has held to the contrary. In United States v. White, the District of Columbia Circuit refused to apply collateral estoppel to another prosecution of a mistried charge based on the same reasoning we employed in Quintero and Bennett. The court in White concluded that, if the jury had acquitted White on the ground he asserted, it would not have failed to reach a verdict on the count the government sought to retry. 936 F.2d 1326, 1329 (D.C.Cir.1991) (citing United States v. Scott, 464 F.2d 832, 833 (D.C.Cir.1972)). See also Romeo, 114 F.3d at 145 (O'Scannlain, J., dissenting) (“[I]f the jury necessarily decided that Romeo did not know that drugs were in his trunk, the jury necessarily would have acquitted him of knowingly importing drugs into the United States.”). That reasoning, as we have already explained, is flawed.


D. Connecticut Notes Split Re: Whether Bona Fide Error Defense Applies to Mistakes of Law

Per Gervais v. Riddle & Associates, P.C., --- F. Supp. 2d ----, 2007 WL 867986 (D. Conn. Mar. 19, 2007):

In its prior Ruling, this Court held that Defendant could not avail itself of the "bona-fide error" ("BFE") defense provided under § 1692k(c) of the FDCPA. Section 1692k(c) provides:

A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error. Upon reconsideration, this Court affirms its prior holding.

It is undisputed that Defendant's communications to Plaintiff were intentional. However, Defendant argues that it is entitled to the BFE defense because it did not subjectively intend to violate the FDCPA. (Def.'s Mot. Recons. 21.) However, as the Seventh Circuit noted in Neilson v. Dickerson, 307 F.3d 623, 641 (7th Cir.2002), "[t]here is a split of authority among the circuits as to whether the bona fide error defense applies to mistakes of law. The majority view is that the defense is only available for clerical and factual errors." The Second Circuit is included within this majority. See Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22, 27 (2d Cir. 1989) ("[I]t is likely that the violations which we have found resulted from a mistaken view of the law, which section 1692k(c) does not excuse."); see generally Clomon v. Jackson, 988 F.2d 1314, 1322 (2d Cir. 1993) (rejecting the defense of reliance upon "authoritative interpretations" of the law). Defendant's argument is accordingly without merit. Therefore, upon reconsideration, this Court's prior Ruling denying Defendant's BFE defense under § 1692kc is affirmed.


Fifth Circuit Discusses Circuit Split Re: What Demonstration of Consent is Required to Delegate Jury Selection

Per United States v. Gonzalez, --- F.3d ----, 2007 WL 949710 (5th Cir. Mar. 30, 2007):

[I]n Peretz v. United States, 501 U.S. 923 (1991), the Court held that under some circumstances, when the defendant does not object, voir dire is one of the Article III duties that may be delegated. Id. at 940, 111 S.Ct. 2661. . . . Peretz did not clearly address whether the magistrate judge must obtain the defendant's affirmative consent before conducting voir dire and, if so, whether the defendant must consent personally or whether counsel's consent is binding. The ambiguity in Peretz has led to a circuit split on what demonstration of consent is required to delegate jury selection. This appears to be a question of first impression for our court.

Gonzalez relies heavily on the Eleventh Circuit decision in United States v. Maragh, 174 F.3d 1202 (11th Cir.1999), which presented a factual scenario similar to this case. Prior to conducting jury selection, the magistrate judge said, "I am here to select a jury and everybody has agreed to me selecting the jury for Judge Graham. Is that correct?" Both the defense attorney and the Government attorney agreed. Id. at 1204. A divided panel found that it was "unclear whether counsel's response to the magistrate judge's question represented the defendant's consent" and remanded to the district court for a factual finding on this question. Id. at 1205. The court then held "prospectively, under [its] supervisory powers ..., that henceforth it will be error for a magistrate to conduct voir dire in a felony case unless the record clearly shows that the defendant has knowingly consented to such procedure." Id. at 1207. The Eleventh Circuit appears to be alone in having reached the conclusion that the defendant's personal consent is required for the delegation of jury selection to be constitutionally valid. The First Circuit, in contrast, has held that the delegation of voir dire is permissible unless the defendant objects. Failure to object constitutes a waiver. United States v. Desir, 273 F.3d 39, 44 (1st Cir.2001). The Seventh Circuit has held that absent an objection, it is not plain error for a magistrate to conduct jury selection in a felony trial. United States v. Jones, 938 F.2d 737, 744 (7th Cir.1991). The Ninth Circuit has not directly addressed jury selection but, relying on Peretz, has held that some form of affirmative consent is required before a magistrate judge may poll the jury. United States v. Gomez-Lepe, 207 F.3d 623, 631 (9th Cir.2000). Similarly, the Eighth Circuit has found that some form of consent is required before a magistrate judge may supervise jury deliberations. Harris v. Folk Construction Co., 138 F.3d 365, 369-70 (8th Cir.1998).

Given the unsettled state of the law interpreting Peretz, and given that this court has never decided what level of consent is required (if any), it is difficult to see how Gonzalez could demonstrate that the delegation of jury selection constituted a plain error. Even if, however, we were to review under a less stringent standard, Peretz still provides little support for the position Gonzalez adopts. The fact pattern in Peretz, in which the delegation was found to be permissible, is almost identical to that in the instant case. Furthermore, there is no indication that the Court found the absence of specific consent by the defendant to be a dispositive, or even relevant consideration. No court other than the Maragh panel of the Eleventh Circuit has reached the outcome Gonzalez proposes, and the debate among the other circuits appears to turn on whether affirmative consent is required at all, not on what form this consent must take. . . .

In sum, there is no error here; the right to have an Article III judge conduct voir dire is one that may be waived through the consent of counsel.


S.D. Cal. Weighs in on Split Re: 28 U.S.C. § 1915(b)(2) of the Prison Litigation Reform Act

Per Hendon v. Ramsey, --- F. Supp. 2d ----, 2007 WL 841414 (S.D. Cal. Feb. 23, 2007):

On July 3, 2006, this Court granted Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), found that the allegations in his Complaint survived the initial screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and directed the U.S. Marshal to effect service. [Doc. No. 4.] Because Plaintiff submitted an affidavit in support of his Motion to Proceed IFP showing he had no funds with which to pay any initial partial filing fees, he was ordered to pay none. However, the Court ordered the CDCR "to collect from Plaintiff's prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from [his] trust account in an amount equal to twenty percent (20%) of the preceding month's income credited to the account and [to] forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2)." (See IFP Order at 4.) It is this provision of the Prison Litigation Reform Act (PLRA) that Plaintiff now challenges. . . .

Plaintiff requests that the Court "should adopt the position taken in Lafauci v. Cunningham, 139 F.Supp.2d 144 (D.Mass.2001), which hold[s] that the total deducted from an inmate's monthly income for filing fees cannot exceed 20%," and that filing fees incurred for multiple federal cases and/or appeals "should be paid off sequentially." (Id. ¶ 3.) See also Whitfield v. Scully, 241 F.3d 264, 277 (2d Cir.2001) (holding that § 1915(b)(2) "generally requires the recoupment of multiple encumbrances in sequential fashion at a constant rate of 20 percent of monthly receipts to the prisoner's account."). Defendants acknowledge that the issue before the Court is one of first impression in the Ninth Circuit, and that there is a split of authority within the Circuit Courts of Appeal. (Defs. Opp'n at 3.) Defendants argue that 28 U.S.C. § 1915(b) is properly interpreted to require 20 percent of a prisoner's trust account to be collected for each suit initiated by the prisoner. (See Defs.' Opp'n at 2-3) (citing Atchison v. Collins, 288 F.3d 177 (5th Cir.2002); Lefkowitz v. Citi-Equity Group, Inc., 146 F.3d 609 (8th Cir.1998); Newlin v. Helman, 123 F.3d 429 (7th Cir.1997), overruled in part on other grounds by Lee v. Clinton, 209 F.3d 1025 (7th Cir.2000).) Defendants argue that the plain language of the PLRA and the underlying purpose of the statute support this reading. (Defs. Opp'n at 2.) . . .

In the instant Motion for Sequential Fee Collection, Plaintiff challenges Defendants' interpretation of 1915(b)(2). This provision of the PLRA provides for the continued payment of the remainder of the filing fee after the initial partial filing fee has been paid. . . . As noted above, there is a split of authority as to the manner in which prisoners are required to pay filing fees under § 1915(b)(2). The Second Circuit has held that § 1915(b)(2) requires that filing fees be collected sequentially, meaning an indigent prisoner can be assessed no more than 20 percent of his monthly income, regardless of the number of lawsuits filed. See Whitfield, 241 F.3d at 277. Each filing fee then is satisfied in the order incurred. The Fifth, Seventh, and Eighth Circuits have held that § 1915(b)(2) requires that filing fees be collected simultaneously, meaning that an inmate with multiple filing fees must pay 20 percent of his monthly income for each fee incurred. See Atchison, 288 F.3d at 181; Lefkowitz, 146 F.3d at 612; Newlin, 123 F.3d at 436. An inmate filing five cases, for instance, would be assessed 100% of his monthly income. The reasoning behind the two interpretations is discussed in detail below. . . .

The Court first turns to the language of § 1915(b) to determine whether the statute mandates that only 20 percent of Plaintiff's monthly income can be deducted for filing fees, or whether the statute requires that 20 percent of Plaintiff's income be collected for each action he has initiated. The Court agrees with the Fifth Circuit's analysis in Atchison and finds that the language of the statute lends itself to a reading that 20 percent of Plaintiff's monthly income must be deducted for each suit Plaintiff has filed. . . . [T]he overall statutory scheme is written in a manner that requires prisoners to complete procedures and pay fees on a per case basis, rather than a per prisoner basis. Further, § 1915(b)(2) references "the initial partial filing fee" discussed in § 1915(b)(1), suggesting that the subsections of the statute are intended to be read as an overall statutory scheme. The Court thus FINDS that when read in the context of the entire statute, § 1915(b)(2) mandates that after payment of the initial partial filing fee for each action or appeal filed, prisoners are also required to make monthly payments of 20 percent of their income for each civil action or appeal filed.


M.D. Pennsylvania Notes Circuit Split Re: Whether Action for Employment Discrimination by Employee of Public Entity Exists Under Title II

Per Pennsylvania State Troopers Association v. Commonwealth, 2007 WL 853958 (M.D. Pa. Mar. 20, 2007):

Title II of the ADA states that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Whether this language creates a cause of action for employment discrimination by an employee of a public entity is a question that has split the circuit courts of appeal. Compare Zimmerman v. Or. Dep't of Justice, 170 F.3d 1169, 1178 (9th Cir.1999) (claim for employment discrimination is not cognizable under Title II) with Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816, 820 (11th Cir.1998) (claim for employment discrimination is cognizable under Title II). The Third Circuit has not addressed the issue. See Koslow, 302 F.3d at 166 n. 3. . . .

This court concludes that the plain language of Title II does not create a cause of action for employment discrimination, thus the contrary interpretation of the statute by the Department of Justice is due no deference. . . . Those courts holding that Title II encompasses employment discrimination claims rely on the second clause of the statute, which states that no qualified individual with a disability shall "be subjected to discrimination by any [public] entity." Bledsoe, 133 F.3d at 821-22. These courts construe "discrimination" as an umbrella phrase that prohibits all discrimination, of any kind, by a public entity, including employment discrimination. Id. at 822. Reading § 12132 in this manner, however, is not consistent with the plain language of Title II as a whole. . . . Although the second clause of § 12132 appears to be all-encompassing, it is limited by Title II's definition of "qualified individual with a disability." Thus, employment discrimination claims against public entities are not cognizable under the second clause of Title II. . . . Congress created a cause of action for employment discrimination in Title I only. The court concludes that DOJ's interpretation of Title II, inferring a cause of action for employment discrimination, is manifestly contrary to the plain language of the statute and is not entitled to deference.


Fifth Circuit Discusses Circuit Split Re: Burden of Persuasion With Regard to Exclusionary Provision in Note 12 to U.S.S.G. § 2D1.1; Joins Majority

Per United States v. Davis, 478 F.3d 266 (5th Cir. Jan. 31, 2007):

We are called upon to construe and apply note 12 to U.S.S.G. [U.S. Sentencing Guidelines] § 2D1.1, which states in pertinent part: ["]Types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level .... In an offense involving an agreement to sell a controlled substance, the agreed-upon quantity of the controlled substance shall be used to determine the offense level unless the sale is completed and the amount delivered more accurately reflects the scale of the offense .... If, however, the defendant establishes that the defendant did not intend to provide or purchase, or was not reasonably capable of providing or purchasing, the agreed-upon quantity of the controlled substance, the court shall exclude from the offense level determination the amount of controlled substance that the defendant establishes that the defendant did not intend to provide or purchase or was not reasonably capable of providing or purchasing.["] . . .

As an initial matter, Davis argues that he has only the burden of production with regard to the exclusionary provision in the final paragraph of note 12 to section 2D1.1 of the Guidelines and that the burden of persuasion regarding the drug quantity remains with the Government. This court has not had occasion to decide this issue, [FN15] although in applying the iteration of note 12 in effect before 1995, we noted a split among the circuits. [FN16] Although the Commission expressly observed in stating its reasons for amending note 12 that "[d]isputes over the interpretation of this application note have produced much litigation," [FN17] interpretations of note 12 have diverged even after the amendments. At least one circuit has concluded that the defendant has only the burden of production, while other circuits have held that a defendant bears the burden of production and persuasion with respect to the exclusionary provision. [FN18]

FN15. Cf. United States v. Posada-Rios, 158 F.3d 832, 878-79 (5th Cir.1998) (under an earlier version of note 12, affirming the district court's drug calculation because there was "no evidence" that the defendant lacked intent or capability but not considering whether the defendant had a burden of production or persuasion).
FN16. United States v. Mora, 994 F.2d 1129, 1142 n. 15 (5th Cir.1993) (noting a circuit split on the burden of proof issue under an earlier version of note 12, but not deciding the question); see also United States v. Raven, 39 F.3d 428, 434-35 (3d Cir.1994) (the defendant bears only a burden of production regarding intent and capability); United States v. Tillman, 8 F.3d 17, 19 (11th Cir.1993) (Government bears the burden of persuasion); United States v. Rodriguez, 975 F.2d 999, 1008 (3d Cir.1992) (implicitly charging the Government with the burden of persuasion); United States v. Richardson, 939 F.2d 135, 142-43 (4th Cir.1991) (not explicitly discussing the burden of proof, but vacating the defendant's sentence because no evidence of ability in the record); United States v. Ruiz, 932 F.2d 1174, 1183-84 (7th Cir.1991) (the Government bears the burden of persuasion); United States v. Bradley, 917 F.2d 601, 605 (1st Cir.1990) (the Government bears the burden of persuasion); United States v. Smiley, 997 F.2d 475, 480-81 n. 7 (8th Cir.1993) (suggesting that the defendant bears the burden of persuasion); United States v. Barnes, 993 F.2d 680, 683-84 (9th Cir.1993) (defendant bears the burden of persuasion); United States v. Christian, 942 F.2d 363, 368 (6th Cir.1991) (defendant bears the burden of persuasion).

FN17. U.S.S.G. app. C, vol. 1, amend. 518 at 433 (1997).

FN18. Compare United States v. Hazut, 140 F.3d 187, 192 (2d Cir.1998) (the defendant bears only a burden of production) with United States v. Barnes, 244 F.3d 172, 177 & n. 6 (1st Cir.2001) (defendant bears a burden of persuasion); United States v. Munoz, 233 F.3d 410, 415 (6th Cir.2000) (same); United States v. Wash, 231 F.3d 366, 373 (7th Cir.2000) (same); United States v. Maldonado, No. 99-3334, 2000 WL 825717 at *3 (10th Cir. June 26, 2000) (same); Brown v. United States, 169 F.3d 531, 534-35 (8th Cir.1999) (same); United States v. Lopes-Montes, 165 F.3d 730, 731 (9th Cir.1999) (same).

The language of note 12 states explicitly that if "the defendant establishes" he or she had no intent to provide or purchase the agreed-upon quantity of the controlled substance, the district court shall exclude the amount "that the defendant establishes that the defendant did not intend to provide or purchase." We accordingly join a majority of the circuits and conclude that the defendant bears the burden of persuasion.


Tenth Circuit Notes Split Re What Standard of Review Applies to a District Court's Refusal to Conduct a Franks Hearing

Per U.S. v. Archuleta, Slip Copy, 2007 WL 779276 (10th Cir. Mar. 16, 2007):

In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held that affidavits supporting search warrants are presumed to be valid and that a criminal defendant may make a post hoc challenge to a facially sufficient affidavit only in very limited circumstances. Id. at 171-72. "Under Franks, a[n] [evidentiary] hearing on the veracity of the affidavit supporting a warrant is required if the defendant makes a substantial showing that the affidavit contains intentional or reckless false statements[, or material omissions,] and if the affidavit, purged of its falsities, would not be sufficient to support a finding of probable cause." United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir.1997) (citing Franks, 438 U.S. at 155-56); see United States v. McKissick, 204 F.3d 1282, 1297 (10th Cir.2000) (applying the Franks standard to material omissions in affidavit). In other words, "no hearing is required" "if, when material that is the subject of the alleged falsity," "reckless disregard," or material omission "is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause...." Franks, 438 U.S. at 171-72.

The district court in this case refused, after reviewing the affidavit at issue and Archuleta's motion and supporting materials, to conduct an evidentiary hearing. More specifically, the district court concluded that Archuleta failed to establish "that Detective Lane made a false statement in any manner at all, much less, knowingly and intentionally, or with reckless disregard for the truth," and that "even if the Court were to so find, the allegedly false statements [we]re in no way necessary to the finding of probable cause." ROA, Vol. I, Doc. 26 at 9. To date, we have not expressly indicated what standard of review applies to a district court's refusal to conduct a Franks hearing. "[T]he [other] circuits are split as to the proper standard of review" on this issue. United States v. Stewart, 306 F.3d 295, 304 (6th Cir.2002). Some "employ [a] clear error" standard of review. Id.; see United States v. Buchanan, 985 F.2d 1372, 1378 (8th Cir.1993) (employing clear error standard); United States v. Skinner, 972 F.2d 171, 177 (7th Cir.1992) (same); United States v. Hadfield, 918 F.2d 987, 992 (1st Cir.1990) (same); United States v. One Parcel of Property, 897 F .2d 97, 100 (2d Cir.1990) (same). Others apply a de novo standard of review. Id.; see United States v. Gonzalez, Inc., 412 F.3d 1102, 1110 (9th Cir.2005) (applying de novo standard); United States v. Martin, 332 F.3d 827, 833 (5th Cir.2003) (same). We conclude it is unnecessary to resolve the issue in this case because, for the reasons outlined below, we would affirm the district court's under either standard of review.


Judge Wilkinson Discusses Split Re Whether Stigmatizing Allegations Against Former Government Employee Is Actionable Prior to Dissemination

Per Judge Wilkinson, dissenting, in Sciolino v. City of Newport News, Va., --- F.3d ----, 2007 WL 726740 (Mar. 12, 2007):

The circuits are split as to whether stigmatizing allegations can deprive a former government employee of a constitutional liberty interest before the allegations are disseminated to prospective employers or others.

The First and Seventh Circuits have written that such statements can only deprive a former government employee of a liberty interest when the allegations are publicly disseminated. See Johnson v. Martin, 943 F.2d 15, 16-17 (7th Cir.1991); Burton v. Town of Littleton, 426 F.3d 9, 17 (1st Cir.2005); Wojcik v. Mass. State Lottery Comm'n, 300 F.3d 92, 103 (1st Cir.2002). The Third Circuit has suggested the same, in my view, by stating that a plaintiff “must produce evidence that the reason for his termination was made public by the city” and rejecting a plaintiff's argument that he had been deprived of liberty because future disclosure was likely. Copeland v. Philadelphia Police Dep't, 840 F.2d 1139, 1148 (3d Cir.1988).

The Second and Tenth Circuits have written, in contrast, that stigmatizing allegations can deprive a person of a liberty interest even if the allegations have not been publicly disclosed. The Second Circuit held in Brandt v. Board of Cooperative Educational Services that a liberty interest is implicated “where the stigmatizing charges are placed in the discharged employee's personnel file and are likely to be disclosed to prospective employers.” 820 F.2d 41, 45 (2d Cir.1987) (emphasis added). The Tenth Circuit also recognized a claim based upon statements that the plaintiff did not allege went beyond a government employer's own offices. Bailey v. Kirk, 777 F.2d 567, 580 n. 18 (10th Cir.1985).

Other circuits do not fit neatly into these two camps. The Eighth Circuit has suggested that a claim would lie if a plaintiff established that a record “ would be available to prospective employers,” Clark v. Mann, 562 F.2d 1104, 1116 (8th Cir.1977) (emphasis added), but suggested in another case that information must be disclosed before it could give rise to a cause of action, Merritt v. Reed, 120 F.3d 124, 126 (8th Cir.1997).

The Fifth Circuit's cases also seem to be in some internal tension. The court appears to have sanctioned claims based upon the possibility that allegations would be disclosed in the future, writing that an ex-employee could establish deprivation of a liberty interest by showing “that his employer has made or is likely to make the allegedly stigmatizing charges public in any official or intentional manner.” In re Selcraig, 705 F.2d 789, 796 n. 6 (5th Cir.1983) (emphasis added; internal quotations omitted). Yet a subsequent court rejected a plaintiff's likelihood-of-dissemination theory, equating it with an argument that “the mere presence” of stigmatizing allegations in a personnel file was sufficient to create a triable issue of fact. Hughes v. City of Garland, 204 F.3d 223, 228 (5th Cir.2000).

Finally, other circuits have recognized liberty claims when authorities lacked the power to keep statements confidential because personnel files were publicly available under state law, but have not addressed whether predictions of dissemination would suffice in the absence of such statutes. See Cox v. Roskelley, 359 F.3d 1105, 1110-12 (9th Cir.2004); Buxton v. City of Plant City, 871 F.2d 1037, 1042-46 (11th Cir.1989).

Thus to say there is a circuit split is at once true and not indicative of the full extent of the problem. Whether a liberty interest is infringed by a letter in a file drawer has generated answers with shades and permutations that mock the clarity law must provide for human conduct.


S.D. Fla Notes Split Re Whether Laches May Be a Viable Defense in Copyright Suits When Copyright Holder Files Within Three-Year Statute of Limitations

Per Oravec v. Sunny Isles Luxury Ventures L.C., 469 F.Supp.2d 1148 (S.D. Fla. Jul. 24, 2006):

The statute of limitations on a copyright claim is three years. 17 U.S.C. § 407(b). Oravec filed his lawsuit within two years. There is a split among the circuits about whether laches is a viable defense where the copyright holder files his case within the statutory period. Compare Danjaq LLC v. Sony Corporation, 263 F.3d 942, 954 (9th Cir.2001) (“If a defendant can show harm from the delay, the court may, in extraordinary circumstances, defeat the claim based on laches, though the claim is within the analogous limitations period”) (citation omitted) with Lyons Partnership v. Morris Costumes, Inc., 243 F.3d 789, 797 (4th Cir.2001) (“in connection with copyright claims, separation of powers principles dictate that an equitable timeliness rule adopted by courts cannot bar claims that are brought within the legislatively prescribed statute of limitations”). The Eleventh Circuit has yet to address the subject. That question need not be answered here, however, because Defendants have not shown inexcusable delay nor undue prejudice.


First Circuit Notes Split re: Whether 10-day Requirement for Perfecting Security Interest of a New Lender Under 11 USC § 547 May Be Extended

Per In re Lazarus, 478 F.3d 12, (1st Cir. Jan. 09, 2007):

Because of the failure to perfect within 10 days, we must (under section 547(e)(2)(B)) treat the property transfer as occurring on recordation on July 15, 2004; because the debt arose earlier-either on June 22 (when the note was signed) or July 1 (when the funds were disbursed)-it is antecedent but by only two or three weeks. GAMC says that this is contemporaneous enough; the trustee, that the 10-day period specified in section 547(e)(2) should control.

Section 547(c)(1) was aimed, as its legislative history shows, at a generic problem: those on the verge of bankruptcy still need to buy things ( e.g., groceries or household items) and the fact that checks are used (with a brief gap between purchase and payment) ought not render the payment avoidable as one made for an antecedent debt. H.R.Rep. No. 95-595, at 373 (1977).

By contrast, section 547(e)'s 10-day limit is directed specifically to mortgages and applies even if the loan and mortgage are exchanged simultaneously. Congress' concern, therefore, was not with whether the exchange was simultaneous or nearly so, but with getting the mortgage recorded within a reasonably brief and predefined period. The aim was to combat secret liens and protect those who might lend in ignorance of the mortgage.

. . .

The cases on this precise issue are few and are divided. One circuit has flatly rejected the attempt to use section 547(c)(1) to extend the 10-day period, while another has allowed such an extension, supported by a summary affirmance in another circuit of such an extension by a bankruptcy appellate panel where the delay in perfection was satisfactorily explained.FN8 But nothing in the latter two cases does anything to answer our concern that this is simply an end run around the 10-day limit and so a disregard of Congress' specific intent.

FN8. Compare In re Arnett, 731 F.2d 358, 364 (6th Cir.1984), with In re Dorholt Inc., 224 F.3d 871, 874 (8th Cir.2000), and In re Marino, 193 B.R. 907, 915 (9th Cir. BAP 1996), aff'd, 117 F.3d 1425 (9th Cir.1997). Yet another circuit decided a similar issue in the state insurance context (relying on interpretations of the federal bankruptcy code), Pine Top Ins. Co. v. Bank of Am. Nat'l Trust and Sav. Ass'n, 969 F.2d 321 (7th Cir.1992), and its holding has been expanded by other courts to federal bankruptcy. See In re McLaughlin, 183 B.R. 171, 175 (Bankr.W.D.Wis.1995). But see In re Messamore, 250 B.R. at 920 & n. 11 (noting that Pine Top might not be controlling, but finding a failure to meet even this flexible standard). In the context of section 547(c)(3), other circuits have held that section 547(c)(1) cannot be used to give more flexibility to the limitation given in section 547(c)(3). See, e.g., In re Davis, 734 F.2d 604, 606-07 (11th Cir.1984).

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