Eleventh Circuit Notes Split Re Whether Indictment under Both the Bank Robbery Act and the Hobbs Act Is Multiplicitous

Per U.S. v. Reddick, Slip Copy, 2007 WL 1540210 (11th Cir. May 29, 2007):

Reddick and Bannister argue that the Government should not have indicted them for violating both the Bank Robbery Act and the Hobbs Act since these statutes proscribe the same conduct. As we noted previously, the defendants did not raise this issue at trial, so we only review the decision for plain error. This Court has not addressed the question of whether prosecuting someone for armed bank robbery under both the FBRA and the Hobbs Act is multiplicitous. Our sister circuits have, but their decisions are inconsistent. Compare United States v. Maldonado-Rivera, 922 F.2d 934, 981-983 (2d Cir.1990) (holding that the imposition of punishment for convictions under both § 1951 and § 2113 does not violate the Double Jeopardy Clause) and United States v. Golay, 560 F.2d 866 (8th Cir.1977) (holding that it was proper to convict under both statutes, but improper to sentence under both).

The very fact that the circuits are split on this issue indicates the district court did not commit plain error in this case. Indeed, we have held that “where neither the Supreme Court nor this Court has ever resolved an issue, and other circuits are split on it, there can be no plain error in regard to that issue.” Aguillard, 217 F.3d at 1321.


Judge Stahl Notes Split Re Disclosure Obligation of Government Employers Interrogating Employees Granted Immunity

Per Judge Stahl, dissenting in Sher v. U.S. Department Of Veterans Affairs, --- F.3d ----, 2007 WL 1532655 (May 29, 2007):

Given the complexity of this area of the law, it is not surprising that the circuits are split as to whether a government employer is required to advise an employee of his rights and obligations before he can be disciplined for maintaining his silence. As I read the cases, three circuits-the Fifth, Eighth, and Eleventh-have arguably held that the government employer does not have a disclosure obligation. See Hill v. Johnson, 160 F.3d 469, 471-72 (8th Cir.1998) (“[T]he mere failure affirmatively to offer immunity is not an impermissible attempt to compel a waiver of immunity.”); Hester v. City of Milledgeville, 777 F.2d 1492, 1496 (11th Cir.1985) (“We fail ... to see how the city's failure to offer the plaintiffs use immunity could make any constitutional difference.... [A]ny grant of use immunity to the plaintiffs would have been duplicative.”); Gulden v. McCorkle, 680 F.2d 1070, 1075 (5th Cir.1982), cert. denied, 459 U.S. 1206, 103 S.Ct. 1194, 75 L.Ed.2d 439 (1983) (“Failure to tender immunity was simply not the equivalent of an impermissible compelled waiver of immunity.”). However, even among these circuits, the answer at least in the Fifth and Eleventh circuits is not wholly clear.

In contrast, three circuits--the Second, Seventh, and the Federal Circuit--have concluded that the government has a disclosure obligation. See Atwell v. Lisle Park Dist., 286 F.3d 987, 990 (7th Cir.2002) (“[T]he government employer who wants to ask an employee potentially incriminating questions must first warn him that because of the immunity to which the cases entitle him, he may not refuse to answer the questions on the ground that the answers may incriminate him.”); Modrowski v. Dep't of Veterans Affairs, 252 F.3d 1344, 1351 (Fed.Cir.2001) (“Invocation of the Garrity rule for compelling answers to pertinent questions about the performance of an employee's duties is adequately accomplished when that employee is duly advised of his options to answer under any immunity actually granted or remain silent and face dismissal.”); Sanitation Men, 426 F.2d at 627 (permitting the firing of an employee for remaining silent where “only pertinent questions” are asked “about the performance of his duties” and he is “duly advised of his options and the consequences of his choice.”). In addition, the Tenth Circuit has suggested the same result in dicta. See In re Grand Jury Subpoenas Dated December 7 and 8 v. United States, 40 F.3d 1096, 1102 n. 5 (10th Cir.1994), cert. denied, 514 U.S. 1107, 115 S.Ct. 1957, 131 L.Ed.2d 849 (1995) (“While this case does not require us to decide whether the government must affirmatively advise [an employee of his rights under Garrity ], other circuits arguably have adopted such a requirement.”).


E.D. Ky. Discusses Split Re Whose Viewpoint Should Be Considered in Determining the Amount in Controversy

Per Clay v. K. Petroleum, Inc., Slip Copy, 2007 WL 1520925 (E.D. Ky. May 23, 2007):

In actions in which a plaintiff is seeking declaratory or injunctive relief, the amount in controversy is measured by the value of the object of the litigation. Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 347 (1977); see also Columbia Gas Transmission Corp. v. Meadow Preserve York, 2006 WL 1376912 (N.D.Ohio May 18, 2006). Here, the Plaintiffs are seeking monetary damages and declaratory relief. Thus, for purposes of determining the amount in controversy, the Court must consider not only the money judgment sought but also the “value of the object of the litigation.” Hunt, 432 U.S. 333; McNutt v. General Motors Acceptance Corp., 298 U.S. 178 (1936). And while the parties agree that the maximum amount of damages sought by the Plaintiffs is $36,000.00, the Plaintiff contends that the value of the oil and gas lease does not exceed $75,000.00, exclusive of interest and costs.

In addressing the parties' dispute, the Court must first assess whether the monetary value of the lease is calculated from the Plaintiffs' or the Defendants' perspective. The Sixth Circuit has recognized that there is a split of authority regarding whose viewpoint should be considered in determining the amount in controversy in cases such as the present one. Courts have taken three approaches: (1) the plaintiff's perspective, in which the amount in controversy is determined by the amount stated in the complaint or the value of the right plaintiff is asserting; (2) the defendant's viewpoint, which generally considers the defendant's cost of compliance with the requested injunctive relief; and (3) either party's viewpoint.FN1 The Sixth Circuit has acknowledged that the question regarding whose viewpoint should be used to measure to value of the object of the litigation poses a “jurisdictional morass.” However, the court has explicitly declined to decide the issue. Everett v. Verizon Wireless, Inc., 460 F.3d 818, 829 (6th Cir.2006); see also Olden v. Lafarge Corp., 383 F.3d 495, 503 n. 1 (6th Cir.2004).

FN1. There is a circuit split regarding whether a court may determine the amount in controversy from the perspective of the plaintiff, defendant or either party. See e.g., Garcia v. Koch Oil Co. of Tex., Inc., 351 F.3d 636, 640 n. 4 (5th Cir.2003) (applying the “plaintiff's viewpoint” rule); Ericsson GE Mobile Communications, Inc. v. Motorola Communications & Elecs., Inc., 120 F.3d 216, 219-20 (11th Cir.1997) (same); Massachusetts State Pharm. Ass'n v. Fed. Prescription Serv., Inc., 431 F.2d 130, 132 n. 1 (8th Cir.1970) (same); but see In re Ford Motor Co./Citibank, 264 F.3d 952, 958 (9th Cir.2001) (applying the “either viewpoint rule”); In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 609 (7th Cir.1997) (same); Oklahoma Retail Grocers Ass'n v. Wal-Mart Stores, Inc., 605 F.2d 1155, 1159 (10th Cir.1979) (same); Williams v. Kleppe, 539 F.2d 803, 804 n. 1 (1 st Cir.1976) (same); Tatum v. Laird, 444 F.2d 947, 951 (D.C.Cir .1971) (same), rev'd on other grounds, 408 U.S. 1 (1972); but see Hartridge v. Aetna Cas. & Sur. Co., 415 F.2d 809 (8th Cir.1969) (adopting the viewpoint of the party invoking federal jurisdiction approach in dictum); Thomas v. General Elec. Co., 207 F.Supp. 792, 794-95 (W.D.Ky.1962) (same).


Sixth Circuit Weighs in on Split Re Level of Knowledge Aider and Abetter Must Have under 18 U.S.C. § 922(g)(1)

Per U.S. v. Gardner, --- F.3d ----, 2007 WL 1518077 (6th Cir. May 25, 2007):

Gardner next argues that there was insufficient evidence that he aided and abetted a felon in possession of a firearm. Gardner was charged with being a felon in possession of a firearm, pursuant to 18 U.S.C. § 922(g)(1).

. . .

[F]or Gardner's conviction to stand, there must . . . be sufficient evidence to show that Gardner aided and abetted McMillion in the commission of that crime. The elements that the government must show to prove aiding and abetting are: (1) an act by a defendant that contributes to the commission of a crime; and (2) the intent to aid in the commission of the crime. Lawson, 872 F.3d at 181. Because there is evidence that Gardner brought both weapons into the car, Gardner certainly committed an act that contributed to McMillion's commission of the offense. Thus, we now consider whether Gardner had the required intent to aid in McMillion's commission of the crime.

We have yet to decide whether this element requires proof that the aider and abetter knew or should have known that the principal, McMillion in this case, was a convicted felon. The circuits are split on this question. The Ninth Circuit has held that the government need not show that the defendant knew the principal was a felon. United States v. Canon, 993 F.2d 1439, 1442 (9th Cir.1993); United States v. Graves, 143 F.3d 1185, 1188 (9th Cir .1998) (“Canon decided the question of whether an aider and abettor is required to know of the principal's status as a felon.”). Also, while the Seventh Circuit has not directly confronted this particular question, that court has held that a defendant in this type of case need only share the principal's knowledge that the principal possessed a gun. United States v. Moore, 936 F.2d 1508, 1527-28 (7th Cir.1991) (“Moore was clearly aware of Miles' use of a gun in both armed robberies and, thus, satisfied this prong of the ‘aiding and abetting’ test.”). In contrast, the Third Circuit has held that the government must show that the defendant must know or have reasonable cause to know that the principal is a felon in order to sustain an aiding-and-abetting conviction under § 922(g). United States v. Xavier, 2 F.3d 1281, 1286 (3d Cir.1993).

. . .

[W]e agree with the Third Circuit and hold that, in order for aiding-and-abetting liability to attach under § 922(g), the government must show that the defendant knew or had cause to know that the principal was a convicted felon. Xavier, 3 F.3d at 1286.


N.D. Ga. Notes Split Re Whether Claims under Title II of the ADA Are Available in Instances of Employment Discrimination

Per Clifton v. Georgia Merit System, 478 F.Supp.2d 1356 (N.D. Ga. Mar. 06, 2007):

Title II of the ADA, 42 U.S.C. §§ 12131-12134, provides, “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. The law is unclear whether claims under Title II are available in instances of employment discrimination. See Garrett, 531 U.S. at 360, n. 1, 121 S.Ct. at 960 (noting that the courts of appeals are split on the issue, but declining to address it). Neither does the language of Title I clarify the issue, as it says nothing about being an exclusive remedy or avenue for suit. See Currie v. Group Insurance Commission, 290 F.3d 1, 6 (1st Cir.2002); 42 U.S.C. § 12112.


D.D.C. Notes Split Re Standard Governing Claims By Pretrial Detainees Asserting Their Right to Medical Care

Per Austin v. District of Columbia, Slip Copy, 2007 WL 1404444 (D.D.C. May 11, 2007):

In Count IV of his Complaint, Austin alleges that Officer Thomas-through action or inaction-denied him the established right of pre-trial detainees to adequate medical treatment. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983). Thomas correctly characterizes the constitutional right at issue as based in the substantive component of the Fifth Amendment's Due Process Clause. But the relevant constitutional standard is not, as Thomas submits, that Austin can prove a violation only by showing that Thomas's conduct “shocks the conscience” of the Court. Rather, Austin can establish a constitutional violation in this setting by demonstrating that Thomas acted with deliberate indifference to his medical needs.FN5

FN5. The Court is aware that there is some division among the federal courts of appeals as to the standard governing claims by pretrial detainees asserting their right to medical care while in police custody. After the parties submitted their memoranda of law in support of the pending motions, the Supreme Court declined the opportunity to resolve what one party seeking review had characterized as a five-to-five circuit split as to the appropriate standard. See Petition for a Writ of Certiorari, Butler v. Fletcher, 465 F.3d 340 (8th Cir.2006) (No. 06-955), cert. denied, --- S.Ct. ----, 2007 WL 120288 (April 30, 2007), available at 2007 WL 98147. This Court has previously relied on the deliberate-indifference case law in the analogous (albeit unique) context of challenges brought by detainees at the Guantanamo Bay Naval Station. See Al-Ghizzawi v. Bush, Civ. A. No. 05-2378, 2006 WL 2844781, at *4 & n. 8 (D.D.C. Oct.2, 2006); O.K., 344 F.Supp.2d at 61 & n. 23. That reliance finds strong support in existing Supreme Court precedent, which indicates that, because deliberately indifferent conduct suffices to establish liability under the Eighth Amendment, such “conduct must also be enough to satisfy the fault requirement for due process claims based on the medical needs of someone jailed while awaiting trial.” Lewis, 523 U.S. at 850.


E.D. Va. Notes Intracircuit Split Re Need to Show Good Cause to Warrant Extension of FRCP 4(m)'s 120-day Period

Per U.S. v. Sea Bay Development Corp., Slip Copy, 2007 WL 1378544 (E.D.Va. May 08, 2007):

The standards for proper service as set forth in Federal Rule of Civil Procedure 4 are incorporated into Rule 12(b)(5). 5B Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 1353 (3d ed.2004); see Lilly v. Winter, No. 1:05cv879, 2006 WL 543977, at *1 (E.D.Va. March 3, 2006) (incorporating the Rule 4(m) time limit into a Rule 12(b)(5) analysis). Rule 4(m) states that, “if the plaintiff shows good cause for the failure [to effect service within 120 days after the filing of the complaint], the court shall extend the time for service for an appropriate period.” Fed.R.Civ.P. 4(m). Good cause requires “reasonable and diligent efforts to effect service” within the 120-day limit. Quann v. Whitegate-Edgewater, 112 F.R.D. 649, 661 (D.Md.1986); see also Hammad v. Tate Access Floors, Inc., 31 F.Supp.2d 524, 528 (D.Md.1999). A defendant's evasion of service can constitute good cause. T & S Rentals v. United States, 164 F.R.D. 422, 425 (N.D.W.Va.1996). Attorney inadvertence, however, weighs against a finding of good cause. Id.

. . .

The Court notes that the United States Court of Appeals for the Fourth Circuit (the “Fourth Circuit”) has held that a finding of good cause is required before the 120-day limit can be extended, and a district court lacks discretion to extend the period otherwise. Mendez v. Elliot, 45 F.3d 75, 78-79 (4th Cir.1995). However, subsequent to Mendez, the United States Supreme Court stated, albeit in dicta, that “courts have been accorded discretion to enlarge the 120-day period ‘even if there is no good cause shown.’ “ Henderson v. United States, 517 U.S. 654, 662-63 (1996) (quoting Fed.R.Civ.P. 4 advisory committee's note). After Henderson, courts in the Fourth Circuit have been divided over the continuing validity of Mendez. Compare Scruggs v. Spartanburg Reg ‘l Med. Ctr., No. 98-2364, 1999 WL 957698, at *2 (4th Cir. Oct. 19, 1999) (stating that the district court “in its discretion, could have extended the time for proper service of process ....”), and Hammad, 31 F.Supp.2d at 527-28 (“[T]his court concludes that Mendez is no longer good law and that, if given the opportunity, the Fourth Circuit perforce would adopt the interpretation of Rule 4(m) held by the Supreme Court ....”), with In re Hall, 222 B.R. 275, 278 (Bankr.E.D.Va.1998) ( “Although courts have criticized Mendez, it remains binding precedent in this circuit”).


Fifth Circuit Notes Split Re Scope of Primary Liability for Secondary Actors under Section 10(b)

Per Regents of University of California v. Credit Suisse First Boston (USA), Inc., 482 F.3d 372 (5th Cir. Mar. 19, 2007):

Although plaintiffs try to reconcile the cases, the Eighth and Ninth Circuits have split with respect to the scope of primary liability for secondary actors.FN24 The district court adopts a rule advocated by the Securities and Exchange Commission (“SEC”), in an amicus curiae brief before the Ninth Circuit, under which primary liability attaches to anyone who engages in a “transaction whose principal purpose and effect is to create a false appearance of revenues.” We agree with the Eighth Circuit that the SEC's proposed test (by which we are not bound) is too broad to fit within the contours of § 10(b).

FN24. Compare Simpson v. AOL Time Warner Inc., 452 F.3d 1040, 1048 (9th Cir.2006) (“[T]o be liable as a primary violator of § 10(b) for participation in a ‘scheme to defraud,’ the defendant must have engaged in conduct that had the principal purpose and effect of creating a false appearance of fact in furtherance of the scheme.”), petition for cert. filed (Oct. 19, 2006) (No. 06-560) with In re Charter Commc'ns, Inc., Sec. Litig., 443 F.3d 987, 992 (8th Cir.2006) (“[A]ny defendant who does not make or affirmatively cause to be made a fraudulent statement or omission, or who does not directly engage in manipulative securities trading practices, is at most guilty of aiding and abetting and cannot be held liable under § 10(b) or any subpart of Rule 10b-5.”), petition for cert. filed (July 7, 2006) (No. 06-43).


3d Circuit Notes Split Re Whether Filing of an Interlocutory Appeal under Section 16(a) of the FAA Deprives Trial Court of Jurisdiction to Proceed

Per Ehleiter v. Grapetree Shores, Inc., 482 F.3d 207 (Apr. 06, 2007):

There is a circuit split on the question of whether the filing of an interlocutory appeal pursuant to Section 16(a) of the FAA automatically deprives the trial court of jurisdiction to proceed until such time as the appeal is fully litigated or determined to be frivolous or forfeited. Compare McCauley v. Halliburton Energy Servs., Inc., 413 F.3d 1158, 1162-63 (10th Cir.2005) (automatic divestiture of trial court jurisdiction unless appeal is frivolous or forfeited); Blinco v. Green Tree Servicing, LLC, 366 F.3d 1249, 1253 (11th Cir.2004) (automatic divestiture of trial court jurisdiction unless appeal is frivolous); Bradford-Scott Data Corp. v. Physician Computer Network, Inc., 128 F.3d 504, 505 (7th Cir.1997) (endorsing automatic divestiture rule, reasoning that “[c]ontinuation of proceedings in the district court largely defeats the point of the appeal and creates a risk of inconsistent handling of the case by two tribunals”), with Motorola Credit Corp. v. Uzan, 388 F.3d 39, 53-54 (2d Cir.2004) (no automatic stay); Britton v. Co-op Banking Group, 916 F.2d 1405, 1412 (9th Cir.1990) (same). In our order granting GSI's motion to stay, we expressed our agreement with the majority rule of automatic divestiture where the Section 16(a) appeal is neither frivolous nor forfeited.


Legal Blog Watch Posts Note on D.C. Circuit Gun Case that Created Split

Here is a post from yesterday's Legal Blog Watch from Law.com:

D.C. Gun Case May Shoot to the Supreme Court

Looks like the liberals who support gun rights as well as all others may have a good chance to make their case before the Supreme Court. As Lyle Denniston at SCOTUS Blog reports here, the D.C. Circuit today denied rehearing en banc by a vote of 6-4 in Parker v. District of Columbia, thus paving the way for resolution of the case by the Supreme Court. The District government had sought reconsideration following a Circuit panel's 2-1 ruling on March 9 that held the Second Amendment protects an individual right to have a handgun in one's own home. Denniston writes that a grant of cert is "quite likely" because of conflict between the circuit courts on the meaning of the Second Amendment. Denniston also notes that the D.C. Circuit is the first to rely on an individual right theory under the Second Amendment to strike down a gun ban. But there's another conflict: The District of Columbia Court of Appeals, has upheld the D.C. gun law under the collective right theory, which it reiterated last week in the case of Andrews v. United States (D.C. Court of Appeals docket 02-1043).

Eugene Volokh also gives the D.C. Circuit case a good chance at cert -- well over 50 percent. He writes:

That's a rare thing to say, given that the Court hears only about 1% of the cases that it's asked to hear. But here there is a split among federal courts of appeals on an important constitutional question — the D.C. Circuit and the Fifth Circuit take the individual rights view (see here and here for why the Fifth Circuit's decision can't be dismissed as dictum), while I think nine other circuits take the collective rights view. There is also a split between a federal court of appeals and D.C.'s highest court on the constitutionality of a specific law, which is itself usually seen as a strong signal in favor of cert. This is also the sort of question that the Justices would likely think ought to be decided by the Supreme Court; it's one thing to have different views in different circuits on some technical question, and another to have different views on whether an Amendment in the Bill of Rights secures an individual right or not.

As to whether the Supreme Court will accept the individual right view of the Second Amendment, Volokh says ,"Now that's a mystery." He notes that even on the Court, one Republican appointee seemed to reject the individual rights approach, as did most of the liberals (though, as Bob Ambrogi described in yesterday's post, plenty of liberal scholars and jurists are coming around to the individual rights view -- which Volokh notes in his post as well).
Even if the Court grants cert, it likely won't hear the case for quite some time, which should give both sides a chance to strenghthen their arguments and figure out which approach is likely to trigger a result in their favor.

[Posted on Legal Blog Watch by Carolyn Elefant on May 8, 2007]


Seventh Circuit Notes Split Re Limiting An Appeal to Monetary Sanctions

Per Seymour v. Hug, --- F.3d ----, 2007 WL 1287513 (May 03, 2007):

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

Ms. Matlaw notes that our position of limiting an appeal to monetary sanctions conflicts with the positions taken by other circuits. We recognize that other circuits allow appeals involving critical comments but those circuits have split among themselves over whether the district court must formally sanction the attorney to allow the appeal or whether critical comments by themselves, without a formal sanction, are sufficient for an appeal. See Bowers v. Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 542-44 (3d Cir.2007); Bulter v. Biocore Med. Tech., Inc., 348 F.3d 1163, 1166-69 (10th Cir.2003); Precision Specialty Metals, Inc. v. United States, 315 F.3d 1346, 1350-53 (Fed.Cir.2003); In re Williams, 156 F.3d 86 (1st Cir.1998) (discussing the positions of the various circuits in this area of law).

We reaffirm our decision that it is appropriate to limit an appeal to situations involving monetary sanction only. This limitation on our jurisdiction is based on the realization that allowing appeals by those allegedly harmed by a judge's comments, including “[l]awyers, witnesses, victorious parties, victims, [and] bystanders” would result in a “breathtaking expansion in appellate jurisdiction.”


Judge Marcus of 11th Circuit Notes Split Re Interpretation of Provision of Federal Arbitration Act

Per Judge Marcus, concurring, in Community State Bank v. Strong, --- F.3d ----, 2007 WL 1225343 (11th Cir. Apr. 27, 2007):

As should be clear from the majority opinion, I concur in the judgment and in all other aspects of our opinion in this case. I do so because I believe that we are bound by Tamiami Partners Ltd. ex rel. Tamiami Development Corp. v. Miccosukee Tribe of Indians of Florida, 177 F.3d 1212 (11th Cir.1999) ( “ Tamiami III”), which held that the text of § 4 of the FAA, 9 U.S.C. § 4, requires a district court, in determining whether it has federal question jurisdiction over a § 4 arbitration claim, to “look through” that claim and instead ask whether the underlying dispute the petitioner seeks to arbitrate states a federal question.FN1 I write separately to explain why I believe this holding is wrong, or at the very least ill-considered, and why the important, indeed basic, jurisdictional question embodied both in Tamiami III and in this case is ripe for en banc review by this Court or certiorari review by the Supreme Court.

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

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

Moreover, this issue on which the circuits are plainly split is an important one. Actions are regularly filed under the FAA, and the approach adopted by our Court in Tamiami III and by the Fourth Circuit in Vaden, which finds federal question jurisdiction to compel arbitration whenever the dispute before the arbitrator raises a federal question even though the federal court itself is asked only to enforce a private contract, considerably expands federal court jurisdiction. At the very least, this important issue merits more consideration than we were able to give it in Tamiami III, where we were confronted, for the third time, with a multi-count complaint presenting an array of complex issues including many that were federal in nature.


S.D. Ind. Discusses Split Re Whether the Existence of Probable Cause Precludes a First Amendment Retaliatory Arrest Claim

Per Baldauf v. Davidson, Slip Copy, 2007 WL 1202911 (April 23, 2007):

[T]he court must first address whether the existence of probable cause precludes a First Amendment retaliatory arrest claim. Contrary to Baldauf's assertion, the court did not assume a ruling on this issue in its Entry. It did not need to reach this issue then, but it is necessary now.

The Seventh Circuit has not addressed the question directly. In Abrams v. Walker, 307 F.3d 650, 657 (7th Cir.2002), overruled on other grounds by Spiegla v. Hull, 371 F.3d 928, 941-42 (7th Cir .2004), one of the parties asked the Seventh Circuit to find the existence of probable cause to be a complete defense to a First Amendment retaliatory arrest claim. While noting that such a decision would parallel the rule that probable cause is a complete defense to a false arrest claim, the court declined the invitation to issue a ruling. Id. Other circuits have split over this question, but the extent of their rulings is not entirely clear.

For example, in Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir.2001), a bar owner alleged that police officers arrested him, following an altercation at his pub, in retaliation for criticisms he had made of the police while campaigning for office months earlier. The court stated that because police officers had probable cause for the arrest, the court did not need to inquire further into the officers' motives. Id. However, the court also noted that were such an inquiry to be made, the bar owner had produced no evidence of the officers' motive. Id. Given the court's focus on the time between the bar owner's criticisms and his arrest, and the lack of evidence regarding retaliatory motive, Curley might not stand for a blanket rule in the Second Circuit that the existence of probable cause precludes all First Amendment retaliatory arrest claims. Compare Redd v. City of Enterprise, 140 F.3d 1378, 1383-84 (11th Cir.1998) (declaring that when a officer has probable cause to arrest someone, or qualified immunity in the sense of “arguable probable cause,” he is immune from First Amendment claims arising from that arrest) with Greene v. Barber, 310 F.3d 889, 895-97 (6th Cir.2002) (suggesting that probable cause would not defeat a retaliatory arrest claim). But see Barnes v. Wright, 449 F.3d 709, 720 (6th Cir.2006) (stating that Greene's holding had been modified by a Supreme Court ruling but leaving the extent of that modification an open question).

Visit Aspen Publishers today! Free Shipping!