Second Circuit Notes Split Re Whether Duplicative Aggravating Factors Are Unconstitutional

Per U.S. v. Fell, --- F.3d ----, 2008 WL 2552863 (2d Cir. June 27, 2008):

Three years after the Tenth Circuit's decision in McCullah, the issue of duplicative aggravating factors was considered by the Supreme Court in Jones v. United States, 527 U.S. 373 (1999), a case that reviewed a Fifth Circuit decision applying McCullah. The Fifth Circuit had found that two of the aggravating factors charged by the government were unconstitutionally duplicative. The Supreme Court declined to decide whether the Tenth Circuit's double-counting theory was either valid or appropriately applied by the Fifth Circuit. Id. at 398-99. . . .FN26

FN26. Currently, the circuit courts are split as to whether duplicative aggravating factors are unconstitutional and as to the meaning of the Supreme Court's decision in Jones. The Fourth and Ninth Circuits have aligned with the Tenth Circuit and adopted their own variations of the rule in McCullah. See Allen v. Woodford, 395 F.3d 979, 1012-13 (9th Cir.2005) (finding that it was unconstitutional for the court and the prosecutor to present the defendant's prior crimes as the heart of three different aggravating factors); United States v. Tipton, 90 F.3d 861, 900 (4th Cir.1996) (“We agree with the McCullah court that ... a submission ... that permits and results in cumulative findings of more than one of the [statutory aggravating factors] is constitutional error.”). In contrast, the Eighth Circuit has rejected the duplicative aggravating factor theory when applied to the FDPA, see Purkey, 428 F.3d at 762, and the Fifth Circuit has withdrawn its support of the double-counting theory in light of Jones, see United States v. Robinson, 367 F.3d 278, 292-93 (5th Cir.2004) (“Although our case law once [supported the theory], the Supreme Court recently admonished that it does not support that theory of review.”)


D. Haw. Notes Circuit Split Re Court Jurisdiction over Settlement Agreements Reached Prior to EEOC Involvement

Per Munoz v. England, --- F.Supp.2d ----, 2008 WL 723596 (D. Haw. Mar 18, 2008):

The court recognizes the circuit split regarding whether courts have jurisdiction to enforce private employer (as opposed to federal agency) settlement agreements reached prior to EEOC involvement, i.e., "predetermination settlement agreements." See Lindstrom v. United States, 510 F.3d 1191, 1195 n. 5 (10th Cir.2007) (collecting cases); Kraft v. Johanns, 2007 WL 2212890, at * 13 (D.N.D. Jul.31, 2007) (same). The Ninth Circuit has determined that in the private sector, "[g]enuine investigation, reasonable cause determination and conciliation are jurisdictional conditions precedent to suit...." E.E.O.C. v. Pierce Packing Co., 669 F.2d 605, 608 (9th Cir.1982); see also Cook v. City of Pomona, 884 F.Supp. 1457, 1462-63 (C.D.Cal.1995) (applying Pierce Packing Co. to find that an action seeking enforcement of a settlement agreement between two private parties was not brought under Title VII, but was rather "merely an action to enforce a private settlement agreement" governed by state law).


M.D. Ala. Addresses Split Among Circuits Re Requirement of ERISA That Qualified Domestic Relations Order Be Received Before Death

Per R.A.F. ex rel. Woodall v. Southern Co. Pension Plan, 2008 WL 2397391 (M.D. Ala. Jun 10, 2008):

The defendants claim the divorce decree does not qualify as a QDRO because it forces the Plan to pay benefits not otherwise provided under the Plan. The defendants claim that under the Plan, when a participant dies single without a QDRO in place, all benefits end. Because there was no QDRO on file when Fondren died, the Plan cannot pay any benefits. The Eleventh Circuit has not addressed whether ERISA requires a party to qualify a QDRO prior to the death of a participant, and there is a circuit split on this issue. See Jayne E. Zanglein & Susan Stable, ERISA Litigation 887-88 (2d ed.2005). Some courts have required a party to qualify a QDRO before a participant's death. See Samaroo v. Samaroo, 193 F.3d 185, 191 (3d Cir.1999) (holding that a QDRO must be qualified prior to a participant's death because "successful operation of a defined benefit plan requires the plan's liabilities be ascertainable as of particular dates"); Guzman v. Commonwealth Edison Co., No. 99-582, 2000 WL 1898846, at *3 (N.D.Ill.Dec.28, 2000) (stating that "[c]ourts have routinely concluded that rights to survivor's benefits are fixed a[t] the participant's death, and a valid QDRO cannot be entered after the participant's death that would expand the liability of the Plan"). Others have found ERISA contains no such requirement. See Patton v. Denver Post Corp., 326 F.3d 1148, 1153 (10th Cir.2003) (allowing for a nunc pro tunc order); Hogan v. Raytheon, Co., 302 F.3d 854, 857 (8th Cir.2002) (holding that a domestic relations order could be qualified posthumously); Trs. of Dirs. Guild of Am.-Producer Pension Benefits Plans v. Tise, 234 F.3d 415, 421-23, amended, 255 F.3d 661 (9th Cir.2000) (finding that "[b]ecause a QDRO only renders enforceable an already-existing interest, there is no conceptual reason why a QDRO must be obtained before the plan participant's benefits become payable on account of his retirement or death"). In the absence of Eleventh Circuit authority, the court assumes here that ERISA does not require a QDRO to be received prior to a participant's death.


Second Circuit Creates Split Re Statutory Construction of the "Except" Clause of 18 USC s. 924(c)(1)(A)

Per United States v. Whitley, --- F.3d ----, 2008 WL 2405707 (2d Cir. Jun 16, 2008):

Finally, the Government points out that the Fourth, Sixth, and Eighth Circuits have declined to read the "except" clause literally, see United States v. Studifin, 240 F.3d 415, 423 (4th Cir.2001); Jolivette, 257 F.3d at 587 (Sixth Circuit); Alaniz, 235 F.3d at 389 (Eighth Circuit), as have the Fifth and Sixth Circuits in non-precedential decisions, see Collins, 205 Fed.Appx. at 198 (Fifth Circuit); United States v. Baldwin, 41 Fed.Appx. 713, 715 (6th Cir.2002).

Although we hesitate to precipitate a circuit split, we conclude that there are substantial grounds for doing so with respect to the interpretation of the "except" clause. First, we have repeatedly been instructed to give statutes a literal reading and apply the plain meaning of the words Congress has used. See, e.g., Connecticut National Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992); Central Trust Co. v. Official Creditors' Committee of Geiger Enterprises, Inc., 454 U.S. 354, 359-60, 102 S.Ct. 695, 70 L.Ed.2d 542 (1982); Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981); Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917).

Read literally, as we believe the "except" clause of subsection 924(c)(1)(A) should be, the clause exempts Whitley from the consecutive ten-year minimum sentence for discharging a firearm because he is subject to the higher fifteen-year minimum sentence provided by section 924(e). The case must therefore be remanded for resentencing.


M.D. Fla. Identifies Circuit Split Re Facts to Be Considered During De Novo Review of an ERISA Administrator's Determination

Per Dunn v. Cox, 2008 WL 2370247 (M.D.Fla. Jun 06, 2008):

In the Eleventh Circuit, "a district court conducting a de novo review of an [a]dministrator's benefits determination is not limited to the facts available to the [a]dministrator at the time of the determination." Kirwan v. Marriott Corp., 10 F.3d 784, 789 (11th Cir.1994). As the Kirwan court noted, "[t]here is a split among the circuits as to whether a de novo review should include facts not before the plan administrator. This circuit and the Third Circuit have squarely held that de novo review includes facts not before the administrator." Id. n. 31 (citation omitted).


N.D. Cal. Notes Split Re Whether ADA Gives Rise to a Harassment Claim

Per Fowler v. Potter, Slip Copy, 2008 WL 2383073 (N.D. Cal. Jun. 09, 2008):

Turning to her claim itself, the Court notes, while “[i]t is unlawful to coerce, intimidate, threaten, harass or interfere with any individual in the exercise or enjoyment of, or because that individual aided or encouraged any other individual in the exercise of, any right granted or protected by this part,” 29 C.F.R. § 1630.12(b), the Ninth Circuit, has never recognized the Act or the ADA as giving rise to a harassment claim, and the Circuits are split on the issue. See Brown v. City of Tucson, 336 F.3d 1181, 1188-93 (9th Cir.2003) (distinguishing anti-interference claim from hostile work environment claim); Mannie v. Potter, 394 F.3d 977, 982 (7th Cir.2005) (Seventh Circuit has never decided the issue under the Act or ADA); Quiles-Quiles v. Henderson, 439 F.3d 1, 5 n. 1 (1st Cir.2006) (assuming the Act would give rise to one for analysis, but not so holding); Jeseritz v. Potter, 282 F.3d 542, 547 (8th Cir.2002) (same); Walton v. Mental Health Ass'n, 168 F.3d 661, 666-67 n. 2 (3d Cir.1999) (same); Soledad v. Dep't of Treasury, 304 F.3d 500, 506 (5th Cir.2002) (recognizing harassment theory under Act and ADA); Fox v. Gen. Motors Corp., 247 F.3d 169, 176 (4th Cir.2001) (same for ADA); Flowers v. S. Regional Physician Servs. Inc., 247 F.3d 229, 232-33 (5th Cir.2001) (same).


W.D. Pa. Notes Split Re Whether PLRA's Exhaustion Requirement Includes a Procedural Default Component

Per April v. Brooks, Slip Copy, 2008 WL 2275486 (W.D. Pa. May 30, 2008):

The United States Court of Appeals for the Third Circuit has explicitly held that the exhaustion requirement of the PLRA includes a procedural default component, by analogizing it to the exhaustion doctrine (with its corollary procedural default component) in the habeas context. Spruill v. Gillis, 372 F.3d 218, 228-229 (3d Cir.2004).FN3

FN3. There is a split of authority among the Circuits on this issue. Compare Berry v. Kerik, 366 F.3d 85 (2d Cir.2004), Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir.2004), and Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir.2002), with Thomas v. Woolum, 337 F.3d 720 (6th Cir.2003).


Sixth Circuit Grants En Banc Review in Case to Determine Whether State or Federal Law Governs Spoliation of Evidence

The Sixth Circuit has granted en banc review in a case in which a panel of the court noted that the Circuit's rule applying state law to determine spoliation of evidence issues was out of step with the approach taken in other circuits. Here is an excerpt from the panel opinion in Adkins v. Wolever, 520 F.3d 585 (6th Cir. Mar. 21, 2008):

Under the law as it currently stands in our Court, we cannot say that the district court abused its discretion in failing to provide relief for third-party spoliation of evidence. At present, the rules that apply to spoliation of evidence require the application of state law in federal question cases such as this one. See Beck v. Haik, 377 F.3d 624, 641 (6th Cir.2004); Welsh v. United States, 844 F.2d 1239, 1245 (6th Cir.1988). We are bound by these decisions, correct or not. See Salmi v. Sec'y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.1985); 6th CIR. R. 206(c) ( “Reported panel opinions are binding on subsequent panels.”). The decisions are not without contrary precedent, however. See Beil v. Lakewood Engineering and Mfg. Co., 15 F.3d 546, 552 (6th Cir.1994). In Beil, we stated that although evidence destroyed during the course of a lawsuit in our Court is subject to Federal Rule 37 sanctions, the availability of sanctions for pre-litigation destruction “must be found in the substantive law of the case.” Id. Because the conduct for which Adkins seeks sanctions arose before litigation, and because Adkins's lawsuit arises under 42 U.S.C. § 1983, federal law arguably could apply. Indeed, every other circuit to directly address the issue of spoliation of evidence and appropriate sanctions applies federal law, and does so even in diversity cases. See Davison v. Cole Sewell Corp., 231 Fed.Appx. 444, 452 n. 4 (6th Cir.2007).

Applying federal law in this evidentiary realm makes good sense. Federal courts generally apply their own evidentiary rules in both diversity and federal question matters, and therefore federal law should govern whether a district court abused its discretion in declining to apply spoliation sanctions. See King v. Ill. Central R.R., 337 F.3d 550, 556 (5th Cir.2003); Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 449-50 (4th Cir.2004). Quite simply, imposition of sanctions for spoliation is an inherent power of federal courts, and therefore the decision to impose them should be governed by federal law.


Fifth Circuit Notes Split Re Proper Privity Analysis in Context of EPA-Negotiated Consent Decree on a Prior CWA Suit

Per Environmental Conservation Organization v. City of Dallas, --- F.3d ----, 2008 WL 2174066 (5th Cir. May 27, 2008):

We recognize that, in some limited instances, “a federal court has leeway to choose among threshold grounds for denying audience to a case on the merits.” Sinochem, 127 S.Ct. at 1191 (internal quotation marks omitted). However, we do not think this is one of those instances. In this case, the res judicata analysis is no less burdensome than the standing inquiry. ECO argues that the common law doctrine of res judicata cannot be applied to CWA citizen suits, and there is some precedent to that effect. See Sierra Club v. Coca-Cola Corp., 673 F.Supp. 1555 (M.D.Fla.1987). The City points to later authority that disagrees. See EPA v. City of Green Forest, 921 F.2d 1394, 1404 (8th Cir.1990). Even were we to resolve that argument in the City's favor, we would still face an apparent circuit split regarding the proper “privity” analysis in the context of determining the preclusive effect of an EPA-negotiated consent decree on a prior-filed CWA citizen suit. Compare Friends of Milwaukee's Rivers v. Milwaukee Metro. Sewerage Dist., 382 F.3d 743 (7th Cir.2004) (satisfaction of res judicata “privity” element requires showing of “diligent prosecution”) with City of Green Forest, 921 F.2d at 1394 (applying res judicata without any discussion of “diligent prosecution”); see Ellis v. Gallatin Steel Co., 390 F.3d 461, 473 (6th Cir.2004) (expressly rejecting “diligent prosecution” requirement when applying res judicata to a prior-filed Clean Air Act citizen suit).

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