Tenth Circuit Notes Intra-Circuit Split Re Whether Review of Sufficiency-of-the-Evidence Issue is Legal or Factual Determination

Per Hicks v. Jones, Slip Copy, 2008 WL 5378335 (N.D.Okla. Dec. 24, 2008):

A writ of habeas corpus will not issue unless the state court's legal conclusions are “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or the state court's factual conclusions are “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” § 2254(d)(2). “[A] determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). Tenth Circuit authority is divided as to “whether, under AEDPA, we review a sufficiency-of-the-evidence issue as a legal determination under 28 U.S.C. § 2254(d)(1) or a factual finding under § 2254(d)(2) and (e)(1).” Romano v. Gibson, 239 F.3d 1156, 1164 n. 2 (10th Cir.2001); see also Dockins v. Hines, 374 F.3d 935, 939 (10th Cir.2004); Torres v. Mullin, 317 F.3d 1145, 1151 (10th Cir.2003). Under either standard, Petitioner's claim in this case fails.

N.D. Ill. Notes Split Re Whether Pension Plan Has Standing to Sue for Delinquent Payments under ERISA

Per Line Const. Ben. Fund v. Allied Elec. Contractors, Inc., Slip Copy, 2008 WL 5101989 (N.D. Ill. Nov. 26, 2008):

Defendant contends that Plaintiff, a plan rather than a group of trustees, lacks standing to bring an action for unpaid contributions. Defendant's argument rests in part on a split in authority among the circuits as to whether a plan itself is a fiduciary within the meaning of ERISA. For example, the Sixth Circuit held that a plan has standing to bring a counterclaim for collection of unpaid contributions because “[t]he Plan, as a party before the court, necessarily includes those who must act for the Plan to administer it and to effectuate its policies.” Saramar Aluminum Co. v. Pension Plan for Employees of Aluminum Industry and Allied Indus. of Youngstown Ohio Metro. Area, 782 F.2d 577, 581 (6th Cir.1986). By contrast, the Ninth Circuit distinguishes plans from their fiduciaries, reasoning that a fund cannot be a fiduciary of itself. Local 159, 342, 343 & 444 v. Nor-Cal Plumbing, Inc., 185 F.3d 978, 981 (9th Cir.1999). In Nor-Cal Plumbing, the court recognized that a trust fund “could qualify as a fiduciary of a separate ERISA plan so long as it exercises discretionary authority over the management or administration of the plan or its assets.” Id. at 982. The trust fund in that case, however, did not have standing to sue because it was not a separate entity from the plan itself. Id. (noting that “the Trust Agreement and the Trust Funds' complaint treat them as one and the same”). The Second Circuit, similarly, employs a strict textualist approach, interpreting the language of the statute as not explicitly authorizing pension funds to assert a cause of action for breach of fiduciary duty and denying standing on that ground. Pressroom Unions-Printers League Income Sec. Fund v. Continental Assur. Co., 700 F.2d 889, 891 (2d Cir.1983) (denying pension fund standing to sue under ERISA for breach of fiduciary duty by defendant insurance companies that allegedly charged excessive premium payments and fees to the fund).

. . .

This court concludes that a pension plan has standing to sue for delinquent payments under ERISA. The court hereby denies Defendant's motion to dismiss on this ground is denied.

E.D.N.C. Reports Circuit Split: Are Title 11 Debtor Duties Options Exclusive?

Per Coastal Federal Credit Union v. Hardiman, 2008 WL 4899529 (E.D.N.C. Oct 28, 2008):

[T]he Fourth Circuit rejected the Seventh Circuit's conclusion that the three options in section 521(a)(2)(A) were exclusive. The Fourth Circuit noted, inter alia, that the Seventh Circuit's analysis rested on another case which reasoned in part from the premise that ipso facto clauses were enforceable in that circuit. See id. at 347-18 (rejecting Edwards and its reliance on In re Bell, 700 F.2d 1053 (6th Cir.1983)).

In so holding, the Fourth Circuit chose its side in a vigorous circuit split. This circuit split persisted for over fifteen years. See Donald, 343 B.R. at 530-31. The Supreme Court never resolved whether the three options listed in section 521(a)(2)(A) were exclusive, or whether there was a "fourth option." Rather, this issue was the subject of ten different decisions of the courts of appeals. Five courts of appeals held that a debtor is not limited by the options enumerated in current section 521(a)(2)(A). Five others held to the contrary.

[FN7] In re Price, 370 F.3d 362, 379 (3d Cir.2004) (explaining that current section 521(a)(2)(A) is merely a notice provision); In re Parker, 139 F.3d 668, 673 (9th Cir.1998) ("The debtor's other options remain available...."); In re Boodrow, 126 F.3d 43, 51 (2d Cir.1997) (explaining that current section 521(a)(2)(A) "appears to serve primarily a notice function, not necessarily to restrict the substantive options available to a debtor"); Belanger, 962 F.2d at 347-18 ("Nothing in [current] section 521[a](2)(A) requires the debtor to choose redemption, reaffirmation or surrender of the property to the exclusion of all other alternatives...."); Lowry Fed. Credit Union v. West, 882 F.2d 1543, 1547 (10th Cir.1989) ("[W]e do not believe those provisions make redemption or reaffirmation the exclusive means by which a bankruptcy court can allow a debtor to retain secured property.").

[FN8] Four courts of appeals rejected the ride-through option. In re Burr, 160 F.3d 843, 849 (1st Cir.1998) ("[W]e believe that [current] 11 U.S.C. § 521 [ (a) ](2) unambiguously requires chapter 7 debtors wishing to retain property of the estate that secures a consumer debt to elect one of the retention options specified...."); In re Johnson, 89 F.3d 249, 252 (5th Cir.1996) (per curiam) ("[D]ebtors are limited to the three options set forth in the statute."); In re Taylor, 3 F.3d 1512, 1517 (11th Cir.1993) ("[W]e hold the plain language of [current] 11 U.S.C. § 521 [ (a) ](2) does not permit a Chapter 7 debtor to retain the collateral property without either redeeming the property or reaffirming the debt...."); Edwards, 901 F.2d at 1387 ("[W]e hold that [current] 11 U.S.C. § 521 [ (a)(2) ] requires a debtor to choose between the reaffirmation, redemption or surrender of property...."). Additionally, the Sixth Circuit rejected an argument that approximated ridethrough shortly before Congress amended the Bankruptcy Code in 1984 to include the language that gave rise to the ride-through dispute. See Bell, 700 F.2d at 1054-55, 1058 (rejecting argument that debtor may "redeem" property by making installment payments); see also Taylor, 3 F.3d at 1515 n. 3 ("The Sixth Circuit decided Bell the year before Congress passed the 1984 Amendments to the Bankruptcy Code.").