Sixth Circuit Notes Split Re Whether RLUIPA Authorizes Suits for Damages against State Officials in Individual Capacity

Per Heard v. Caruso, Slip Copy, 2009 WL 2628293 (6th Cir. Aug. 27, 2009):

With respect to Heard's RLUIPA [Religious Land Use and Institutionalized Persons Act] claim against defendants in their official capacities, Heard may seek only declaratory or injunctive relief and not monetary relief. See Cardinal v. Metrish, 564 F.3d 794, 798-801 (6th Cir.2009) (holding that the doctrine of sovereign immunity bars the recovery of monetary damages under RLUIPA when state officials are sued in their official capacities). This court has not ruled, however, on whether RLUIPA authorizes suits for monetary damages against state officials in their individual capacities. See Nelson v. Miller, 570 F.3d 868, 885-89 (7th Cir.2009) (discussing split of authority on issue; holding that RLUIPA does not subject state officials to suit in their individual capacities). Because the parties have not briefed this issue and because we are remanding to the district court for further consideration of whether a Nation-of-Islam diet meets MDOC nutritional standards, we decline to decide this issue at this time.


D. Mass. Notes Split Re Constitutionality of the Adam Walsh Act

Per U.S. v. Wilkinson, --- F.Supp.2d ----, 2009 WL 2591157 (D. Mass. Aug. 20, 2009):

The court also addressed Wilkinson's claim that the Adam Walsh Act is unconstitutional. In June, 2009, the court held that the Adam Walsh Act is unconstitutional because it exceeds Congress' power under the Commerce Clause of the United States constitution and is not necessary or proper to effectuate any other enumerated legislative or executive power. See United States v. Wilkinson (“Wilkinson II”), --- F.Supp.2d ----, 2009 WL 1740358, at *1 (D.Mass. Jun. 22, 2009). This is an issue that has split the district courts and several circuits that have decided it. Id. at *2. The Supreme Court will hear a case which should decide this issue in the coming term. See United States v. Comstock, 551 F.3d 274 (4th Cir.2009), aff'g 507 F.Supp.2d 522, 540 (E.D.N.C.2007), cert. granted 129 S.Ct. 2828 (2009).


Eleventh Circuit NOtes Split Re INA Sec. 212(c) Interpretation

Per De La Rosa v. U.S. Attorney General, --- F.3d ----, 2009 WL 2527296 (11th Cir. Aug. 20, 2009):

As it stands, there exists a three-way circuit split on the question of whether certain deportees who have not temporarily left the country are eligible for [Immigration and Naturalization Act] § 212(c) relief. The BIA and the majority of our sister circuits have adopted the Francis v. INS, 532 F.2d 268, 272 (2d Cir.1976) rule and have applied the categorical approach when dealing with the resulting statutory counterpart test.FN11

FN11. See, e.g., Gonzalez-Mesias v. Mukasey, 529 F.3d 62, 64-65 (1st Cir.2008); Caroleo v. Gonzales, 476 F.3d 158, 162-63 (3d Cir.2007); Vo v. Gonzales, 482 F.3d 363, 372 (5th Cir.2007); Koussan v. Holder, 556 F.3d 403, 412-13 (6th Cir.2009); Valere v. Gonzales, 473 F.3d 757, 762 (7th Cir.2007); Soriano v. Gonzales, 489 F.3d 909 (8th Cir.2006) (per curiam).


D. Maryland Notes Split Re Whether Public Employees Can Be Held Liable in their Individual Capacities for FMLA Violations

Per Sadowski v. U.S. Postal Service, --- F.Supp.2d ----, 2009 WL 2496282 (D. Md. Aug. 17, 2009):

The precise issue raised in the pending motion is whether or not public employees, such as Defendant Walls and Edward Weche, can be held liable in their individual capacities for violations of the Family and Medical Leave Act (“FMLA”). This is an issue previously addressed by this Court thirteen years ago, which now requires a more detailed analysis in light of subsequent case law. See Knussman v. State of Md., 935 F.Supp. 659, 664 (D.Md.1996). Resolution of this strictly legal question centers on the FMLA's definition of “employer,” which is contained in 29 U.S.C. § 2611(4)(A).

There is no directly applicable case law from either the Supreme Court or the United States Court of Appeals for the Fourth Circuit on the issue presented herein. There is also a nationwide split of decisional authority on this issue at both the appellate and trial levels, and the parties have agreed that the “courts are in some disarray over this issue.” In fact, not only is there a split of authority among the circuit courts of appeal, but the district courts within the Fourth Circuit are also split. Indeed, this Court's opinion in this case is at variance with an opinion it issued thirteen years ago. See Knussman, 935 F.Supp. at 664.

On the one hand, the Sixth and Eleventh Circuits have concluded that public employees cannot be held individually liable under the FMLA. See Mitchell v. Chapman, 343 F.3d 811 (6th Cir.2003), cert denied, 542 U.S. 937 (2004); Wascura v. Carver, 169 F.3d 683 (11th Cir.1999). . . . On the other hand, however, the Fifth and Eighth Circuits have adopted the opposing position, concluding that public employees may be held individually liable under the FMLA. See Modica v. Taylor, 465 F.3d 174 (5th Cir.2006); Darby v. Bratch, 287 F.3d 673 (8th Cir.2002).

. . .

This Court finds convincing the reasoning given in Mitchell v. Chapman, 343 F.3d 811 (6th Cir.2003) and Keene v. Rinaldi, 127 F.Supp.2d 770 (M.D.N.C 2000), and therefore concludes that the language of the FMLA prohibits public employees from being found individually liable.


Eighth Circuit Notes Split Re Whether a Defendant Can Appeal the Adequacy of a Factual Basis after Entering an Unconditional Guilty Plea

Per U.S. v. Cheney, 571 F.3d 764 (8th Cir. July 8, 2009):

Although Holland limited his appeal waiver to exclude a challenge to the factual basis for his plea, he did not enter a conditional guilty plea in accordance with the procedure of Federal Rule of Criminal Procedure 11(a)(2). The law is unsettled about whether a defendant can appeal the adequacy of a factual basis after entering an unconditional guilty plea. In United States v. Beck, 250 F.3d 1163, 1165 (8th Cir.2001), we held that a defendant, by entering a guilty plea that was not conditional, waived his right to appeal the sufficiency of the factual basis for one element of the offense of conviction, but in United States v. Marks, 38 F.3d 1009, 1012-13 (8th Cir.1994), we reviewed the adequacy of a factual basis under Rule 11 despite an unconditional guilty plea. Other circuits appear to be divided on the question. Compare, e.g., United States v. Lacey, 569 F.3d 319, 323 (7th Cir.2009) (reviewing adequacy of factual basis), United States v. Baymon, 312 F.3d 725, 727-28 (5th Cir.2002) (same), and United States v. McKelvey, 203 F.3d 66, 69-70 (1st Cir.2000) (same), with United States v. Johnson, 89 F.3d 778, 784 (11 th Cir.1996) (holding that right to challenge factual basis is waived by guilty plea), United States v. Willis, 992 F.2d 489, 490 (4th Cir.1993) (same), and United States v. Freed, 688 F.2d 24, 25-26 (6th Cir.1982) (same).

We need not decide this point of law, because the government does not contend that Holland's guilty plea bars him from challenging the factual basis for his plea-in effect, waiving any claim to rely on a possible waiver by Holland. See United States v. Jacobo Castillo, 496 F.3d 947, 954 (9th Cir.2007) (en banc). Therefore, we proceed to consider the sufficiency of the factual basis for Holland's plea. See Fed.R.Crim.P. 11(b)(3).


Sixth Circuit Notes Split Re Whether Guidelines Range Is Mandatory in a 3582 Procedding

Per U.S. v. Quinn, --- F.3d ----, 2009 WL 2391856 (6th Cir. Aug. 6, 2009):

But Quinn did not ask the district court to grant him a downward variance and has not argued on appeal that the district court should have-or could have-varied below the properly calculated Guidelines range. In fact, Quinn explicitly stated that “the only relief [he] seeks is a full 2 level reduction in his crack sentence pursuant to Amendment 706,” and contrasts his request with the arguments of defendants in other cases who requested outside-Guidelines sentences at the modification stage. The government's arguments regarding the somewhat murky interplay between the Booker line of Supreme Court cases and 18 U.S.C. § 3582(c)(2) are therefore only tangentially relevant to this case. Compare U.S.S.G. § 1B1.10(b)(2) (prohibiting district courts, when modifying pre- Booker sentencing determinations, from using 18 U.S.C. § 3582(c)(2) to reduce a term of imprisonment below the bottom of the recalculated Guidelines range), and United States v. Rhodes, 549 F.3d 833 (10th Cir.2008) (holding that district courts lack authority to impose a sentence that falls below the amended Guidelines range in a sentence-modification proceeding) with United States v. Johnson, 553 F.3d 990, 992 (6th Cir.2009) (making note of a district court's authority to “reject and vary from the crack-cocaine Guidelines based solely on a policy disagreement with those Guidelines” (citing Spears v. United States, 129 S.Ct. 840 (2009))), and United States v. Hicks, 472 F.3d 1167 (9th Cir .2007) (holding that a newly calculated Guidelines range in a sentence-modification proceeding is advisory). We thus note that a circuit split exists on the question of whether a Guidelines range is mandatory in a sentence-modification proceeding under § 3582(c)(2), but decline to resolve the issue in this case because Quinn has not requested a downward variance.

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