Split Circuits

First Circuit Notes Split Re Excludability of Plea Negotiations Time Period under Speedy Trial Act

2012-01-03T09:59:00.001-05:00

Per U.S. v. Huete-Sandoval, --- F.3d ----, 2011 WL 6823186 (1st Cir. Dec. 29, 2011):

[W]e conclude that the sixteen days between July 22 and August 7, 2009, were not excludable pursuant to the STA and in light of prior circuit precedent.^FN8

FN8. We note that other circuits are divided as to whether plea negotiations are automatically excludable from the Speedy Trial Act calculation as “other proceedings” pursuant to 18 U.S.C. § 3161(h)(1). Compare United States v. Leftenant, 341 F.3d 338, 344–45 (4th Cir.2003) (holding that plea negotiations trigger automatic exclusion pursuant to 18 U.S.C. § 3161(h)(1)); United States v. Van Someren, 118 F.3d 1214, 1218–19 (8th Cir.1997) (same); United States v. Montoya, 827 F.2d 143, 150 (7th Cir.1987) (same); United States v. Bowers, 834 F.2d 607, 610 (6th Cir.1987) (same), with United States v. Alvarez–Perez, 629 F.3d 1053, 1058 (9th Cir.2010) (holding that plea negotiations do not trigger automatic exclusion pursuant to 18 U.S.C. § 3161(h)(1)); United States v. Lucky, 569 F.3d 101, 107 (2d Cir.2009) (same). We need not and do not reach that issue here. To the extent the parties entered plea negotiations between July 16 and July 22, the total number of days excluded would be insufficient to avoid a violation of the Speedy Trial Act.

Fifth Circuit Notes Split Re Propriety of Internet Restrictions During Probation for Sex Crime Convicts

2011-12-14T11:12:00.000-05:00

Per U.S. v. Miller, --- F.3d ----, 2011 WL 6160220 (5th Cir.Dec. 13, 2011):

[W]e acknowledge that there is some tension among various courts of appeals' opinions regarding the reasonableness of restrictions on computer use and Internet access [for sex crime convicts].^FN63

FN63. See United States v. Sullivan, 451 F.3d 884, 895 (D.C.Cir.2006) (observing “[t]his circuit has yet to decide whether individuals convicted of sex crimes may have their Internet usage conditioned on Probation Office approval, and our sister circuits are divided on the issue.”) (comparing United States v. Rearden, 349 F.3d 608, 621 (9th Cir.2003), and United States v. Zinn, 321 F.3d 1084, 1093 (11th Cir.2003), with Crume, 422 F.3d at 733, and United States v. Sofsky, 287 F.3d 122, 126 (2d Cir.2002)).

Judge Moore (Fed. Cir.) Notes Need to Clarify Claim Construction Principles

2011-11-27T10:28:00.001-05:00

Check out this dissent from a denial of a petition for rehearing en banc in Retractable Technologies, Inc. v. Becton, Dickinson and Co. 659 F.3d 1369(Fed. Cir. Oct. 31, 2011), in which Judge Moore stresses the need for more clarity in the claim construction area:

Claim construction is the single most important event in the course of a patent litigation. It defines the scope of the property right being enforced, and is often the difference between infringement and non-infringement, or validity and invalidity. Despite the crucial role that claim construction plays in patent litigation, our rules are still ill-defined and inconsistently applied, even by us. Commentators have observed that claim construction appeals are “panel dependent” which leads to frustrating and unpredictable results for both the litigants and the trial court. See, e.g., Fed. Cir. Split for 2nd Time In 2011 On Use of Patent Specification In Claim Construction, BNA Patent, Trademark & Copyright Law Daily (noting the “disagreement within the Federal Circuit on the extent to which judges may look to the patent specification to interpret claims continues”); Court Continues to Struggle with Claim Construction, Patently–O (2011), http:// www. patentlyo. com/ patent/ 2011/ 07/ court- continues- to- struggle- with- claim- construction. html (noting the “panel dependence” in claim construction); see also Wegner, H.C., Arlington Indus. v. Bridgeport Fittings: The 20 Year Claim Construction Debate, IP Frontline, http:// www. ipfrontline. com/ depts/ printable template. aspx? id= 24829 (“Until there is a final resolution of this debate there will never be clarity in claim construction at the Federal Circuit.”). Nowhere is the conflict more apparent then in our jurisprudence on the use of the specification in the interpretation of claim language. The familiar mantra is “there is a fine line between construing the claims in light of the specification and improperly importing a limitation from the specification into the claims.” Retractable Techs., Inc. v. Becton, Dickinson & Co., 653 F.3d 1296, 1305 (Fed.Cir.2011). This case is a good vehicle to address two important claim construction principles: the role of the specification in construing the claims and whether deference should be given to the district court in the claim construction process. Accordingly, I dissent from the denial of rehearing en banc.

Fith Circuit Weighs in on Split Re Stay Pending Arbitrability Appeal

2011-11-03T10:33:00.000-04:00

Per Weingarten Realty Investors v. Miller, --- F.3d ----, 2011 WL 5142183(5th Cir. Nov. 1, 2011):

Whether an appeal from a denial of a motion to compel arbitration divests the district court of jurisdiction to proceed to the merits is the subject of a circuit split. The Second and Ninth Circuits have held that a stay is not automatic. In Britton, the court pointed out that normally, appellate review of a collateral order does not deprive the district court of jurisdiction to proceed to the merits. The court cited the determination in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 21, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), that because arbitrability is an issue easily separable from the merits of the underlying dispute, the district court could address the merits while the appellate court reviewed arbitrability. Additionally, the Britton court noted that an automatic stay would allow litigants to delay resolution of the matter by filing frivolous appeals. In the absence of an automatic stay, the district court nonetheless retains the power to determine, on a case-by-case basis, whether proceedings should be stayed until the appeal regarding arbitrability has been resolved.

The Seventh Circuit, later joined by the Third, Fourth, Tenth, and Eleventh, has held that a notice of appeal automatically stays proceedings in the district court. The Seventh Circuit reasoned in Bradford–Scott Data Corp. v. Physician Computer Network, 128 F.3d 504 (7th Cir.1997), that the underlying claims before the district court are not collateral to the issue presented by an appeal, because the appeal is to determine whether the matter should be litigated in the district court at all. The court was worried about inconsistent handling of the case by the two courts and was concerned that allowing simultaneous proceedings would defeat the speed and cost benefits parties seek from arbitration. Id. at 505. These courts analogize arbitrability appeals to appeals regarding double jeopardy, sovereign immunity, and qualified immunity, see id. at 506, reasoning that because a district court cannot proceed past these issues when there are interlocutory appeals, it similarly cannot proceed when arbitrability is appealed.

The legal debate turns on Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). Although appeals transfer jurisdiction from the district court to the appellate court concerning “those aspects of the case involved in the appeal,” id. at 58, the district court is nonetheless free to adjudicate matters that are not involved in that appeal, see Alice L. v. Dusek, 492 F.3d 562 (5th Cir.2007). At issue here is whether the merits of an arbitration claim are an aspect of a denial of an order to compel arbitration.

The Ninth Circuit interpreted Griggs narrowly, holding that because answering the question of arbitrability does not determine the merits of the case, the merits are not an aspect of the case that is involved in the appeal on arbitrability. To the contrary, the Seventh Circuit interpreted Griggs broadly, holding that because an appeal on arbitrability concerns whether the case will be heard in the district court at all, the merits in district court are an aspect of the case that is involved in the appeal.

The narrower interpretation better comports with our precedents and the nature of arbitration. “How broadly a court defines the aspects of the case on appeal depends on the nature of the appeal.” Alice L. v. Dusek, 492 F.3d 563, 565 (5th Cir.2007) (per curiam). The facts of Griggs suggest a narrow interpretation is normally appropriate.

Third Circuit Joins Majority on Time for Removal

2011-10-19T09:55:00.000-04:00

From BNA's U.S. Law Week, Oct. 17, 20100:

The 30-day period under 28 U.S.C. § 1446(b) for filing of the notice of removal of a civil action begins to run separately for each defendant after service upon them of the initial pleading setting forth the claim, the U.S. Court of Appeals for the Third Circuit held Oct. 12. The court, which had not previously addressed the issue in a precedential opinion, noted that Section 1446(b) specifies that the notice be filed “within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting for the claim for relief[.]” Although the Fourth and Fifth Circuits have adopted variations of the” first-served” defendant rule, under which removal by any defendant must occur within 30 days of service on the first-served defendant, the court aligned itself with the Sixth, Eighth, Ninth, and Eleventh circuits, which follow the “later-served” rule under which “each defendant individually has thirty days to file a notice of removal beginning when the particular defendant is served.” Quoting Destfino v. Reiswig, 630 F.3d 952,(79 U.S.L.W. 1965 (9th Cir. 2011) the court favored the “later-served” rule “for reasons grounded in statutory construction, equity and common sense.” Delalla v. Hanover Insurance, 3d Cir., No. 10-3933, 10/12/11.

First Circuit Weighs in on Split Re Meaning of "Warrant" in 18 U.S.C. sections 3606 & 3583(i)

2011-09-30T11:06:00.001-04:00

PerU.S. v. Collazo-Castro, --- F.3d ----, 2011 WL 4495851 (1st Cir. Sept. 29, 2011):

The central dispute is whether the district court had relation-back jurisdiction under the Delayed Revocation Statute, which provides:

The power of the court to revoke a term of supervised release for violation of a condition of supervised release, and to order the defendant to serve a term of imprisonment and, subject to the limitations in subsection (h), a further term of supervised release, extends beyond the expiration of the term of supervised release for any period reasonably necessary for the adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.

18 U.S.C. § 3583(i) (emphasis added). “While section 3583 extends the jurisdiction of a court to hold revocation hearings after the term of supervised release has expired, [18 U.S.C. § 3606] actually governs the issuance of warrants for the arrest of probationers or supervised releasees.” Garcia–Avalino, 444 F.3d at 446 n. 3; see also Vargas–Amaya, 389 F.3d at 906 (same). Section 3606 provides:

If there is probable cause to believe that a probationer or a person on supervised release has violated a condition of his probation or release, he may be arrested, and, upon arrest, shall be taken without unnecessary delay before the court having jurisdiction over him. A probation officer may make such an arrest wherever the probationer or releasee is found, and may make the arrest without a warrant. The court having supervision of the probationer or releasee, or, if there is no such court, the court last having supervision of the probationer or releasee, may issue a warrant for the arrest of a probationer or releasee for violation of a condition of release, and a probation officer or United States marshal may execute the warrant in the district in which the warrant was issued or in any district in which the probationer or releasee is found.

18 U.S.C. § 3606. Sections 3606 and 3583 were enacted in 1984 as part of the Sentencing Reform Act package that transformed the federal parole system into a supervised release system. “Under the Sentencing Reform Act's provisions for supervised release, the sentencing court, rather than the Parole Commission, would oversee the defendant's postconfinement monitoring.” Gozlon–Peretz v. United States, 498 U.S. 395, 400–01 (1991).

Appellant argues that in the absence of a statutory definition of “warrant,” this Court should apply the word's ordinary meaning, which, in her view, is the definition in the Warrant Clause of the Fourth Amendment. The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” U.S. Const. amend. IV. If the term “warrant” in sections 3606 and 3583(i) is defined to require sworn facts, the district court did not have jurisdiction to revoke appellant's supervision.

Two circuit courts have split on this precise issue. The Ninth Circuit held that the term “warrant” requires an oath or affirmation both as a matter of statutory interpretation and to avoid an interpretation inconsistent with the Constitution. See Vargas–Amaya, 389 F.3d at 904, 906. The Fifth Circuit came to the opposite conclusion. See Garcia–Avalino, 444 F.3d at 447. We agree with the Fifth Circuit.^FN3

FN3. Two other courts of appeal have alluded to the split between the Fifth and Ninth Circuits, but neither took a position. See United States v. Brennan, 285 F. App'x 51, 56 (4th Cir.2008); United States v. Presley, 487 F.3d 1346, 1348 (11th Cir.2007).

Ninth Circuit Notes Intracircuit Split Re Compatability of Rule 23 Class Actions and Collective Actions under FLSA

2011-08-10T09:08:00.002-04:00

Per Pitts v. Terrible Herbst, Inc. --- F.3d ----, 2011 WL 3449473 (9th Cir. Aug. 9, 2011):

Aside from dismissing Pitts's entire action for lack of subject matter jurisdiction, the district court alternatively dismissed Count 2 of the complaint because, in its view, a Rule 23 class action could not co-exist with a related collective action under the FLSA. Although the question has divided district courts in our circuit, compare Misra v. Decision One Mortg. Co., LLC, 673 F.Supp.2d 987, 994 (C.D.Cal.2008) (holding that “an opt-out class under Rule 23 is not inherently incompatible with an FLSA opt-in class”), with Williams v. Trendwest Resorts, Inc., 2007 WL 2429149, at *4 (D.Nev. Aug. 20, 2007) (holding that “the class action mechanisms of the FLSA and Rule 23 are incompatible”), we need not address this issue because Pitts has told us—as he told the district court—that he will not pursue his FLSA claims.^FN6 Because Pitts has abandoned these claims, any alleged incompatibility between a Rule 23 class action and an FLSA collective action is not present in this case.

FN6. The only circuit that has addressed this issue has held that Rule 23 class actions and FLSA collective actions may peacefully co-exist. See Ervin v. OS Rest. Servs., 632 F.3d 971, 976–79 (7th Cir.2011).

Fifth Circuit Declines to Weigh in on Split Re Authority to Issue Injunction Pending Arbitration

2011-07-25T14:13:00.003-04:00

Per Janvey v. Alguire --- F.3d ----, 2011 WL 2937949 (5th Cir. July 22, 2011):

The circuit split concerns the power of a district court to issue an injunction while arbitration is pending. The Fifth Circuit acknowledged the circuit split in RGI, Inc. v. Tucker & Associates, Inc., 858 F.2d 227, 229 (5th Cir.1988), but did not enter the fray.^FN6 The Employee Defendants contend that once again we may avoid the fray and still decide the issue in their favor because both the Eighth Circuit, on one side of the split, and the Seventh Circuit, on the other side of the split, would not permit an injunction here. The Eighth Circuit held that “where the [Federal Arbitration Act (“FAA”) ] is applicable to the dispute between the parties and no qualifying language has been alleged, the district court errs in granting injunctive relief” because the judicial inquiry required to determine “the propriety of injunctive relief necessarily would inject the court into the merits of issues more appropriately left to the arbitrator.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Hovey, 726 F.2d 1286, 1292 (8th Cir.1984). The Seventh Circuit held that the district court may only issue injunctive relief that is effective only until the arbitration panel is able to address whether the equitable relief should remain in effect. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Salvano, 999 F.2d 211, 215–16 (7th Cir.1993).

. . .

The RGI Court found that “[t]he crux of the problem [in the circuit split] is whether the commands of the [FAA] require that a federal court immediately divest itself of any power to act to maintain the status quo once it decides that the case before it is arbitrable.” RGI, 858 F.2d at 228–29 (emphasis added). Here, however, the district court has not yet decided whether the case is arbitrable and thus the circuit-split cases are not applicable.
. . .

FN7. Given that the facts at issue here do not require us to enter the circuit split, we reserve for another day the issues of whether a district court divests itself of the discretion to maintain the status quo once it decides the case before it is arbitrable and, if not, what the limits of that discretion may be.

U.S. Law Week Reports Circuit Splits

2011-07-12T11:05:00.003-04:00

Here are the circuit splits reported recently in BNA's U.S. Law Week, 80 U.S.L.W. 22
(June 2011):

Bankruptcy—Farm Debtors: United States v. Dawes (In re Dawes)  (79 U.S.L.W. 2786)

Are income taxes flowing from the sale of a farm asset during Chapter 12 bankruptcy proceedings taxes “incurred by the estate”under Section 503(b) of the Bankruptcy Code, and are they therefore subject to downgrade and discharge? The Tenth Circuit joins the Ninth Circuit in saying “no.” It explains that “post-petition income taxes incurred during Chapter 12 proceedings are liabilities of the individual debtor and not the bankruptcy estate,”and are therefore not subject to discharge. The Eighth Circuit has held that such taxes are subject to discharge.

Schools—Disciplinary Action: Layshock v. Hermitage School District  J.S. v. Blue Mountain School District  (79 U.S.L.W. 2739)

Are schools allowed to punish vulgar student speech on the internet? Based on the facts before it in two separate, but similar, cases, the Third Circuit says derogatory profiles about their principals posted on MySpace by two students were protected by the First Amendment. The Second Circuit, faced with different facts, however, has allowed a school to punish vulgar internet speech by a student.

United States—False Claims: United States ex rel. Hutcheson v. Blackstone Medical Inc.  (79 U.S.L.W. 2646)

Under the False Claims Act, may a claim made to the government be false or fraudulent for failure to meet an implied legal condition of payment that is found in a source other than a statute or regulation? The Second and Ninth circuits have held that the legal condition must appear in a statute or regulation, while the First Circuit sides with the Tenth Circuit in holding that such conditions can be spelled out in other places, such as the underlying contract.

Taxation—Limitations: Salman Ranch Ltd. v. Commissioner of Internal Revenue  (79 U.S.L.W. 2692)

May the Internal Revenue Service extend the limitations period for issuing a final partnership administrative adjustment from three to six years where an understatement of gross income results from an overstatement of basis? The Tenth Circuit joins the Seventh and Federal Circuits in holding that Section 6501 of the tax code is ambiguous, opening the door for IRS regulation. The Fourth and Fifth circuits have held that the statute is not ambiguous, blocking agency regulation on the subject.

Fourth Circuit (splitting with other circuits) finds problem with appeal wavier demand for extra acceptance reduction

2011-07-05T19:35:00.000-04:00

From the Sentencing Law & Policy Blog:

Hard-core sentencing fans (and perhaps only hard-core sentencing fans) should find very interesting and perhaps somewhat surprising a ruling today from the Fourth Circuit in US v. Divens, No. 09-4967 (4th Cir. July 5, 2011) (available here). Here is the start of the opinion along with an excerpt from part of the opinion spotlighting why the Fourth Circuit is splitting from its sisters on this issue:

Lashawn Dwayne Divens pled guilty to possession with intent to distribute cocaine. Divens signed an acceptance of responsibility statement but declined to sign a plea agreement waiving certain rights to appellate review and collateral attack. Solely because Divens would not waive these rights, the Government refused to move for an additional one-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b). Divens appeals, challenging the district court’s failure to compel the Government to move for the § 3E1.1(b) reduction. For the reasons that follow, we vacate Divens’s sentence and remand for further proceedings consistent with this opinion.....
Section 3E1.1(a) of the Guidelines provides for a two-level decrease in a defendant’s offense level if he "clearly demonstrates acceptance of responsibility for his offense."... The district court awarded Divens the two-level reduction under § 3E1.1(a), but because the Government refused to file a motion under § 3E1.1(b), the court did not award Divens the additional one-level reduction provided by that subsection. The Government makes no claim that Divens does not qualify for a decrease.... [;] the Government’s sole contention is that Divens’s failure to sign the appellate waiver justifies the Government’s refusal to move for the additional one-level reduction under § 3E1.1(b)....
[In our view], under § 3E1.1(b) the Government retains discretion to refuse to move for an additional one-level reduction, but only on the basis of an interest recognized by the guideline itself — not, as with § 5K1.1, on the basis of any conceivable legitimate interest.
We recognize that this holding does not accord with that of other circuits. See United States v. Deberry, 576 F.3d 708 (7th Cir. 2009); United States v. Johnson, 581 F.3d 994 (9th Cir. 2009); United States v. Beatty, 538 F.3d 8 (1st Cir. 2008); United States v. Newson, 515 F.3d 374 (5th Cir. 2008). Those courts have concluded that the Government may withhold a § 3E1.1(b) motion based on any rational interest. This conclusion relies heavily on cases interpreting § 5K1.1.
In our view, for the reasons explained above, the commentary to § 3E1.1(b) forecloses courts from relying on § 5k1.1 cases in interpreting § 3E1.1(b). This commentary, however, has received little attention from our sister circuits. Instead, those courts focus almost exclusively on the fact that Congress in 2003 amended § 3E1.1(b) to insert the governmental motion requirement. See PROTECT Act, Pub. L. No. 108-21, § 401(g). According to those courts, the mere fact of this 2003 amendment somehow demonstrates that Congress intended that the Government possess the wide discretion under § 3E1.1(b) that it enjoys under § 5K1.1. But nothing in the 2003 reforms evinces such an intent. After all, Congress could have amended the § 3E1.1(b) commentary so that it conformed to the commentary surrounding § 5K1.1. Congress declined to do so; it instead left unchanged § 3E1.1(b)’s mandatory commentary and inserted language suggesting that the Government’s newfound discretion applies only to the question of "whether the defendant has assisted authorities in a manner that avoids preparing for trial." U.S.S.G. § 3E1.1 cmt. 6.

Seventh Circuit Notes Split Re Whether Attempted Bank Robbery Is A Specific Intent Crime

2011-06-29T09:38:00.001-04:00

Per U.S. v. Durham --- F.3d ----, 2011 WL 2535801 (7th Cir. June 28, 2011):

Neither this Court nor the Supreme Court has decided whether specific intent is an essential element of attempted bank robbery in violation of § 2113(a); our sister circuits are split on the issue. Compare United States v. Darby, 857 F.2d 623, 626 (9th Cir.1988) (attempted bank robbery under § 2113(a) requires the specific intent to take the property by force, violence or intimidation), with United States v. Johnston, 543 F.2d 55, 57–58 (5th Cir.1976) (attempted bank robbery under § 2113(a) is not specific intent crime) and United States v. Armstrong, 116 F.3d 489 (10th Cir.1997) (unpublished) (same). We need not decide the issue to address defendants' argument here.

First Circuit Notes Split Re Copyright Act Requires Written Agreement Before Creation of the Work

2011-06-14T08:02:00.002-04:00

Per TMTV v. MASS PRODUCTIONS, INC.; EMMANUEL --- F.3d ----, 2011 WL 2306514 (1st Cir. June 13, 2011):

Jiménez and Morales confirmed in depositions that this was their own oral understanding with the production company; but the statute [Copyright Act] requires express agreement in a signed written instrument, see 17 U.S.C. § 101 (definition); and the circuits are divided as to whether the language and policy require the writing before the creation or at least the completion of the work.^FN3

FN3. Compare Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410, 413 (7th Cir.1992) (written work-for-hire agreement must precede creation of work), and Gladwell Gov't Servs., Inc. v. Cnty. of Marin, 265 F. App'x 624, 626 (9th Cir.2007) (same), with Playboy Enters., Inc. v. Dumas, 53 F.3d 549, 559 (2d Cir.) (written agreement might postdate creation if “memorializing” earlier oral agreement), cert. denied, 516 U.S. 1010 (1995). See also 1 Nimmer & Nimmer, supra, § 5.03[B][2][b], at 5–56.

Ninth Circuit Creates Split Re Waiver of Sovereign Immunity under Public Vessels Act

2011-06-13T11:05:00.001-04:00

United States—Sovereign Immunity

Tobar v. United States  (79 U.S.L.W. 2449) (May 2011)

Does the United States' waiver of sovereign immunity in the Public Vessels Act for “damages caused by a public vessel”apply when a crew from a public vessel boards a private vessel? The Ninth Circuit says that it does, but the Eleventh Circuit has held that it does not.

Sixth Circuit Weighs in on Split Re Ability of Agency to Exempt Itself from Privacy Act's Civil Remedies Provision

2011-06-13T11:04:00.001-04:00

Freedom of Information—Privacy Act

Shearson v. Department of Homeland Security  (79 U.S.L.W. 2441) (May 2011)

May an agency exempt itself from the Privacy Act's civil remedies provision, 5 U.S.C. § 552a(g), by properly issuing rules to exempt a records system? The Sixth Circuit joins the D.C. Circuit in holding that a record system may be excluded only when Section 552a(j) permits the information to be exempted. The Fourth, Seventh, and Ninth circuits, however, allow an agency to exempt material if the records system was exempted by properly issued rules.

Ninth Circuit Creates Split Re Proper Test for Government Waiver of Confidentiality under FOIA

2011-06-13T11:00:00.002-04:00

Freedom of Information—Exemptions

Watkins v. U.S. Bureau of Customs and Border Protection  (79 U.S.L.W. 2520) (May 2011)

What is the proper test for determining whether the government has waived confidentiality under the Freedom of Information Act? The Ninth Circuit says that when the government freely discloses to a third party confidential information without limiting the third-party's ability to disseminate it, the government waives the ability to claim an exemption to a FOIA request for the disclosed information. The D.C. Circuit, however, previously adopted the public domain test, which asks whether the information was preserved in a public record.

Fourth Circuit Creates Split Re Removability of Parens Patriae Action by State AG

2011-06-13T10:57:00.001-04:00

Civil Procedure—Removal

West Virginia ex rel. McGraw v. CVS Pharmacy Inc.  (79 U.S.L.W. 2592) (May 2011)

Is a parens patriae action brought by a state attorney general removable to federal court under the 2005 Class Action Fairness Act? The Fourth Circuit rules that it is not. The Fifth Circuit has held that such a suit is removable.

Second Circuit Weighs in on Split Re Meaning of "Otherwise Defend" in FRCP 55(a)

2011-06-13T10:56:00.001-04:00

Civil Procedure—Default Judgment

City of New York v. Mickalis Pawn Shop LLC  (79 U.S.L.W. 2511) (May 2011)

Does a defendant's withdrawal from a suit after initially defending on personal jurisdiction constitute a failure to “otherwise defend” the suit under Fed. R. Civ. P. 55(a)? The Second Circuit holds that it does, agreeing with the First, Third, Fourth, Eighth, and Ninth circuits' broad reading of Rule 55;the Fifth and Eleventh circuits have read the rule more narrowly.

Sixth Circuit Notes Split Re Subclassing and Bifurcation

2011-06-13T10:54:00.001-04:00

Civil Procedure—Class Actions

Randleman v. Fidelity National Title Insurance Co.  (79 U.S.L.W. 2590) (May 2011)

Issue: May subclassing and bifurcation be used to remedy predominance issues in class actions? The Sixth Circuit, declining to take sides, notes that the Second and Ninth circuits allow the practices so long as common issues predominate, while the Fifth and Eleventh Circuits do not permit them.

N.D. Ill. Notes Split Re Whether Civil Service Reform Act Precludes Court From Authorizing Injunctive Relief

2011-05-22T14:56:00.002-04:00

Per Pubentz v. Holder, 2011 WL 1900196 (N.D. Ill. May 19, 2011):

[T]here is a circuit split as to whether, under the CSRA [Civil Service Reform Act of 1978], a court is precluded from authorizing injunctive relief.^FN5 The Seventh Circuit has not addressed the issue.

FN5. Compare Saul v. United States, 928 F.2d 829, 843 (9th Cir.1991), and Stephens v. Dep't of Health & Human Servs., 901 F.2d 1571, 1576 (11th Cir.1990), and Lombardi v. Small Bus. Admin., 889 F.2d 959, 962 (10th Cir.1989) (holding CSRA as the exclusive vehicle for all federal employee claims related to federal employment), with Spagnola v. Mathis, 859 F.2d 223, 229 (D.C.Cir.1988) and Mitchum v. Hurt, 73 F.3d 30 (3d Cir.1995).

Seventh Circuit Notes Split Re Eligibility of Aliens for § 212(c) Relief

2011-05-04T13:06:00.003-04:00

Per Frederick v. Holder, --- F.3d ----, 2011 WL 1642811 (7th Cir. May 3, 2011):

Cases from this circuit have agreed with and adopted the BIA's holding in Blake that aliens who are removable for sexually abusing a minor are not eligible for § 212(c) relief because that offense has no comparable ground of inadmissibility in § 212(a). See Zamora–Mallari, 514 F.3d at 692–93; Valere, 473 F.3d at 761–62. We are joined in this approach to the statutory-counterpart rule by the majority of circuits to have considered the issue. See De la Rosa v. U.S. Att'y Gen., 579 F.3d 1327, 1337 (11th Cir.2009), cert. denied, 130 S.Ct. 3272 (2010); Koussan v. Holder, 556 F.3d 403, 412–14 (6th Cir.2009); Vue v. Gonzales, 496 F.3d 858, 861 (8th Cir.2007); Abebe v. Gonzales, 493 F.3d 1092, 1104 (9th Cir.2007); Dalombo Fontes v. Gonzales, 483 F.3d 115 (1st Cir.2007); Vo v. Gonzales, 482 F.3d 363, 368–69 (5th Cir.2007); Caroleo v. Gonzales, 476 F.3d 158, 167–68 (3d Cir.2007). Moreover, in applying the statutory-counterpart test, we look to the actual charge of removal, not what DHS could have charged as a basis for removal. Zamora–Mallari, 514 F.3d at 692; see id. (“[I]f courts were to look beyond the charged grounds of deportation to the underlying criminal offense to determine whether the criminal offense could have been treated as a crime of moral turpitude, that would greatly expand the role Congress assigned the judiciary in immigration cases.”). Only the Second Circuit takes a different approach.^FN3 The Supreme Court has just granted certiorari to resolve the lopsided circuit split. Judulang v. Holder, 249 F. App'x 499 (9th Cir.2007), cert. granted, 79 U.S.L.W. 3344 (U.S. Apr. 18, 2011) (No. 10–694).

FN3. In Zamora–Mallari, 514 F.3d at 692, we declined to follow the Second Circuit's decision in Blake v. Carbone, 489 F.3d 88 (2d Cir.2007). The Second Circuit's decision in Blake adopted an offense-based approach to the statutory-counterpart inquiry. Instead of comparing the actual ground of removal to a ground of inadmissibility, Blake requires that the BIA consider whether a “particular aggravated felony offense could form the basis of exclusion under § 212(a) as a crime of moral turpitude.” Id. at 104 (emphasis added). * * *

Firth Circuit Notes Split Re Whether Gant Applies Solely in the Vehicular-Search Context

2011-03-15T10:22:00.002-04:00

Per U.S. v. Curtis, --- F.3d ----, 2011 WL 846703 (5th Cir. Mar. 11, 2011):

Curtis argued that Edwards's search of Curtis's cell phone was unlawful under the new rule announced by the Supreme Court in Arizona v. Gant. In Gant, the Court held that police may “search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Our sister circuits have divided over whether Gant applies solely in the vehicular-search context or whether it generally limits the scope of the search-incident-to-arrest exception.^FN22 We need not reach this question.

FN22. Compare United States v. Brewer, 624 F.3d 900, 905-06 (8th Cir.2010) (declining to apply Gant to a search of an arrestee's person), petition for cert. filed, No. 10-9224 (Feb. 24, 2011), and United States v. Perdoma, 621 F.3d 745, 751-52 (8th Cir.2010) (declining to apply Gant to a search of a bag recovered from an area within the arrestee's immediate control), petition for cert. filed, No. 10-8844 (Feb. 2, 2011), with United States v. Shakir, 616 F.3d 315, 318 (3d Cir.) (“Because Gant involved an automobile search, and because it interpreted Belton, another automobile case, the Government contends that the rule of Gant applies only to vehicle searches. We do not read Gant so narrowly. The Gant Court itself expressly stated its desire to keep the rule of Belton tethered to the justifications underlying the Chimel exception, and Chimel did not involve a car search.” (internal citation and quotation marks omitted)), cert. denied, 131 S.Ct. 841 (2010).

Eleventh Circuit Weighs in on Split Re Proper Vehicle for Enforcing Forum-Selection Clauses

2011-03-09T10:36:00.001-05:00

Per Slater v. Energy Services Group Intern. Inc., --- F.3d ----, 2011 WL 782023 (11th Cir. Mar. 8, 2011):

Slater contends that the district court abused its discretion by dismissing her claims for improper venue pursuant to Rule 12(b)(3) rather than applying the transfer analysis under 28 U.S.C. 1404(a). Slater claims that because § 1404(a) is the only proper procedural mechanism for enforcing a forum-selection clause which designates venue in another United States District Court, the district court erred by applying Rule 12(b)(3) instead of § 1404(a).

Our sister circuits disagree regarding the appropriate vehicle for enforcing forum-selection clauses. Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285, 1289 (11th Cir.1998) (recognizing circuit split); see e.g., Kerobo v. Sw. Clean Fuels, Corp., 285 F.3d 531, 539 (6th Cir.2002) (holding that the proper analysis is under 28 U.S.C. § 1404(a)); Richards v. Lloyd's of London, 135 F.3d 1289, 1292 (9th Cir.1998) (applying Rule 12(b)(3) to an international forum-selection clause); Lambert v. Kysar, 983 F.2d 1110, 1112 n.1 (1st Cir.1993) (applying Rule 12(b)(6)); AVC Nederland B.V. v. Atrium Inv. P'ship, 740 F.2d 148, 153 & n.8 (2d Cir.1984) (applying Rule 12(b)(1) to an international forum-selection clause).

. . .

[W]e conclude that § 1404(a) is the proper avenue of relief where a party seeks the transfer of a case to enforce a forum-selection clause, while Rule 12(b)(3) is the proper avenue for a party's request for dismissal based on a forum-selection clause.

SCOTUS Resolves Split Re Interpretation of FOIA Exemption

2011-03-08T09:21:00.003-05:00

The Supreme Court has resolved a split regarding the interpretation of Exemption 2 of the Freedom of Information Act. The case is Milner v. Navy, 09-1163 (Mar. 7, 2011). Here is an excerpt from the Syllabus of the case:

Petitioner Milner submitted FOIA requests for explosives data and maps used by respondent Department of the Navy (Navy or Government) in storing munitions at a naval base in Washington State. Stating that disclosure would threaten the security of the base and surrounding community, the Navy invoked Exemption 2 and refused to release the data. The District Court granted the Navy summary judgment, and the Court of Appeals affirmed, relying on the High 2 interpretation.

Held: Because Exemption 2 encompasses only records relating to employee relations and human resources issues, the explosives maps and data requested here do not qualify for withholding under that exemption.

(a) Exemption 2 shields only those records relating to “personnel rules and practices.” When used as an adjective in this manner, the key statutory word “personnel” refers to human resources matters.

Fifth Circuit Notes Split on SORNA-APA Intersection, and Chooses Third Way

2011-02-21T08:24:00.000-05:00

Per United States v. Undra Johnson, __ F.3d __ (5th Cir. Feb. 4, 2011):

The courts of appeals are divided over whether the Attorney General properly complied with the APA. The Fourth and Eleventh Circuits did not find an APA violation, while the Sixth and Ninth Circuits held that the Attorney General lacked good cause. The Supreme Court has acknowledged the conflict but "express[ed] no view" on the matter.

...

Here, we do not find the Attorney General’s reasons for bypassing the APA’s notice and-comment and thirty day provisions persuasive.

...

... We find both errors to be harmless in the particular circumstances of this case.

...

... In so holding, we recognize that our interpretation of SORNA is a position not previously held by the majority in another circuit. Cf. Dean, 604 F.3d at 1288 (Wilson, J., concurring) (endorsing the harmless error doctrine’s applicability to SORNA).

EDNY Notes Split Re Interpretatin of FRE 606(b)

2011-02-17T12:33:00.002-05:00

Per Leibstein v. LaFarge North America, Inc., --- F.Supp.2d ----, 2011 WL 499952 (E.D.N.Y. Feb. 14, 2011):

Fed. R. of Evid. 606(b) provides that “[u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations....” Fed. R. of Evid. 606(b). Query: Does Rule 606(b) preclude a juror-such as those who spoke to Elena Leibstein-from testifying about supposed misconduct by another juror learned during jury deliberations? That question does not lend itself to a simple answer, for there is a split among the Circuits on this point. Compare, e.g., Hard v. Burlington Northern R.R., 812 F.2d 482, 485 (9th Cir.1987)(Ninth Circuit held that “[s]tatements [offered in support of an application for a new trial] which tend to show deceit during voir dire are not barred by [Rule 606(b) ] )” with (1) Williams v. Price, 343 F.3d 223 (3d Cir.2003) in which then-Judge Alito opined that the Ninth Circuit decision in Hard “appears [to be] inconsistent with Fed. R. of Evid. 606(b),” id. at 236, n. 5, and (2) United States v. Benally, 546 F.3d 1230, 1235-36, 1239-41 (10th Cir.2008).

Eleventh Circuit Splits With Second Circuit Re Excusing Failure to Raise Objection Due to Anticipated Judicial Disapproval

2011-02-02T09:55:00.004-05:00

Here is an excerpt from a post from the Florida Legal Blog noting a split between the Second and Eleventh Circuits regarding excusing the failure to make objections that judges may dislike:

In United States v. Rodriguez (08-16696), the Eleventh Circuit disagreed with the Second Circuit and began its opinion as follows:

This case poses the question of whether there is a vindictive judge or cowardly counsel exception to the contemporaneous objection rule. Unless there is such an exception, the only issue that the appellant is pressing on appeal is barred for failure to object because she cannot meet the requirements of the plain error rule. Disagreeing with the Second Circuit, we hold that the possibility a judge may be unhappy with an objection does not excuse the failure to make it.

Read the full post here.

W.D. Tex. Notes Split Re AEDPA Provision

2011-01-24T09:58:00.001-05:00

Per Jasper v. Thaler, Slip Copy, 2011 WL 186976 (W.D. Tex. Jan. 19, 2011):

The AEDPA also significantly restricts the scope of federal habeas review of state court fact findings. Section 2254(d)(2) of Title 28, United States Code provides federal habeas relief may not be granted on any claim that was adjudicated on the merits in the state courts unless the state court's adjudication of the claim resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Wood v. Allen, --- U.S. ----, 130 S.Ct. 841, 849, ---L.Ed.2d ---- (2010) (“[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.”); Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. at 1522 (“[A]n unreasonable application of federal law is different from an incorrect application of federal law.”). Even if reasonable minds reviewing the record might disagree about the factual finding in question (or the implicit credibility determination underlying the factual finding), on habeas review, this does not suffice to supersede the trial court's factual determination. Wood v. Allen, --- U.S. at ----, 130 S.Ct. at 849; Rice v. Collins, 546 U.S. 333, 341-42, 126 S.Ct. 969, 976, 163 L.Ed.2d 824 (2006).

In addition, Section 2254(e)(1) provides a petitioner challenging state court factual findings must establish by clear and convincing evidence the state court's findings were erroneous. Schriro v. Landrigan, 550 U.S. at 473-74, 127 S.Ct. at 1939-40 (“AEDPA also requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.’ ”); Rice v. Collins, 546 U.S. 333, 338-39, 126 S.Ct. 969, 974, 163 L.Ed.2d 824 (2006) ( “State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.’ ”); Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 2325, 162 L.Ed.2d 196 (2005) (“[W]e presume the Texas court's factual findings to be sound unless Miller-El rebuts the ‘presumption of correctness by clear and convincing evidence.’ ”); 28 U.S.C. § 2254(e)(1). It remains unclear at this time whether Section 2254(e)(1) applies in every case presenting a challenge to a state court's factual findings under Section 2254(d) (2). See Wood v. Allen, --- U.S. at ----, 130 S.Ct. at 849 (choosing not to resolve the issue of Section 2254(e)(1)'s possible application to all challenges to a state court's factual findings); Rice v. Collins, 546 U.S. at 339, 126 S.Ct. at 974 (likewise refusing to resolve the Circuit split regarding the application of Section 2254(e)(1)).

Split Re Attorney's Fees in Civil Rights Cases Noted in Ninth Circuit Case

2011-01-21T09:50:00.001-05:00

Per Harris v. Maricopa County Superior Court, --- F.3d ----, 2011 WL 167040 (9th Cir. Jan. 20, 2011):

The majority joins the short side of an existing circuit split that is currently before the Supreme Court. The First, Fifth, Seventh, and Eleventh Circuits have held that defendants in civil rights cases may recover attorney's fees even when the plaintiff's frivolous claims are intertwined with nonfrivolous claims. See Ward v. Hickey, 996 F.2d 448 (1st Cir.1993); Fox v. Vice, 594 F.3d 423 (5th Cir.2010), cert. granted, 131 S.Ct. 505 (Nov. 1, 2010) (No. 10-114); Curry v. A.H. Robins Co., 775 F.2d 212 (7th Cir.1985); Quintana v. Jenne, 414 F.3d 1306 (11th Cir.2005); Head v. Medford, 62 F.3d 351 (11th Cir.1995). The one clear outlier is the Sixth Circuit, which has adopted a rule that a prevailing defendant may not recover attorney's fees if the plaintiff has raised even one nonfrivolous claim. See Balmer v. HCA, Inc., 423 F.3d 606, 616-l7 (6th Cir.2005). The majority does not agree outright with any of these circuits-thus enabling the split-but its position is closest to the Sixth Circuit's plainly unreasonable rule. We can anticipate further guidance from the Court when it decides Fox, a case in which it recently granted a writ of certiorari.

Ninth Circuit Notes Split Re Whether A Courtroom Appearance Raises A Public Employee's Testimony To A Public Concern

2011-01-20T07:06:00.002-05:00

Per Clairmont v. Sound Mental Health, --- F.3d ----, 2011 WL 149371 (9th Cir. Jan. 19, 2011):

Clairmont argues that, regardless of the subject matter, truthful testimony given pursuant to a subpoena should be considered per se a matter of public concern. As we detailed in Alpha Energy Savers, our sister circuits are split on “whether the context of a courtroom appearance raises a public employee witness's testimony to the level of public concern, regardless of its content.” 381 F.3d at 926 n. 6. There, we declined to decide whether a public employee's testimony was inherently a matter of public concern. Id.

So too here, we need not decide whether truthful testimony given pursuant to a subpoena is per se a matter of public concern because in this case, the content, form, and context of Clairmont's testimony establish that his speech related to a matter of public concern.

Eighth Circuit Notes Split Re Whether Lanham Act Requires Willful Infringement

2011-01-07T10:31:00.002-05:00

Per Masters v. UHS of Delaware, Inc., --- F.3d ----, 2011 WL 31524 (8th Cir. Jan. 6, 2011):

A circuit split exists concerning whether a Lanham Act plaintiff must prove willful infringement, rather than mere infringement, to be eligible for monetary damages under 15 U.S.C. § 1125(a). The question turns on the effect of amendments to the Lanham Act Congress made in 1999. Compare Synergistic Int'l., LLC v. Korman, 470 F.3d 162, 175 n. 13 (4th Cir.2006) (concluding that amendments removed willfulness as a prerequisite for awarding profits under § 1125(a)); Banjo Buddies, Inc. v. Renosky, 399 F.3d 168, 174-75 (3d Cir.2005) (same) with W. Diversified Servs., Inc. v. Hyundai Motor Am., Inc., 427 F.3d 1269, 1272-73 (10th Cir.2005) (adhering to pre-amendment precedent regarding § 1125(a) and requiring proof of willfulness to sustain the cause of action); Contessa Foods Prods. Inc. v. Lockpur Fish Processing Co., 123 F. Appx. 747, 751 (9th Cir.2005) (same). See also 5 J. McCarthy, McCarthy on Trademarks and Unfair Competition § 30:62 (4th ed.2010) (criticizing circuit courts that have removed the willfulness requirement from § 1125(a) on the basis of the 1999 amendments and arguing that such circuits “have leveraged this statutory change beyond its intended scope”). For purposes of adjudicating this appeal, we assume, without deciding, that willful infringement is a prerequisite of monetary relief.

W.D. Va. Notes Split Re Whether ID Retention Is Fourth Amendment Violation

2010-11-29T06:41:00.001-05:00

Per Rutledge v. Town of Chatham, Slip Copy, 2010 WL 4791840 (W.D. Va. Nov. 18, 2010):

Although no Fourth Amendment violation appears to have occurred here, even if a violation did in fact happen, Officer Roach's actions hardly constitute a violation of clearly established rights. Cleveland, 372 F.3d at 301 (for second prong of qualified immunity inquiry). The proper inquiry for determining whether a right is clearly established “is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Couden, 446 F.3d at 492 (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). Indeed, the unclear nature of the extent of the right on facts such as these is demonstrated by the circuit split on the issue of whether retaining a person's identification is a per se Fourth Amendment violation. Compare Weaver, 282 F.3d at 312 (no per se seizure in the Fourth Circuit) with Lopez, 443 F.3d at 1285 (per se seizure in the Tenth Circuit). If the answer is not clear to the various federal appellate courts, then what better position would Officer Roach be in to know the answer? The Fourth Circuit has commented that “qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.” Henry, 501 F.3d at 377 (internal citing references and quotation marks omitted). Officer Roach's actions could not be characterized as either. Thus, even if there was a Fourth Amendment violation, Officer Roach would be entitled to qualified immunity on the facts offered by the Plaintiff.

Tenth Circuit Weighs in on Split Re Applicability of Heck Favorable-Termination Requirement When Plaintiff Lacks Habeas Remedy

2010-10-24T20:38:00.002-04:00

Per Cohen v. Longshore, --- F.3d ----, 2010 WL 4069365 (10th Cir. Oct. 19, 2010):

In his amended complaint, Plaintiff sought to raise two claims: false imprisonment and denial of access to the courts. As for the false imprisonment claim, the district court concluded that this claim lacked merit because Plaintiff had not invalidated his imprisonment and thus could not recover damages under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), which generally prohibits an individual from recovering damages in a civil rights action for an allegedly unlawful confinement where there has not been a favorable termination of the criminal action on appeal or in a collateral action. Plaintiff argues, however, that Heck should not bar this action because Plaintiff has no available habeas remedy. Indeed, Plaintiff in fact sought to invalidate his imprisonment through a 28 U.S.C. § 2241 petition but was prevented by his transfer out of Immigration and Customs Enforcement custody, which mooted his habeas claims. See Cohen Ma v. Hunt, 372 F. App'x 850 (10th Cir.2010). Under these circumstances, Plaintiff argues, his false imprisonment claim should not be barred by his failure to obtain relief in habeas.

The circuits have split on the question of whether the Heck favorable-termination requirement applies when the plaintiff lacks an available habeas remedy. See Vasquez Arroyo v. Starks, 589 F.3d 1091, 1096 (10th Cir.2009) (discussing the circuit split but resolving the case on other grounds).

. . .

We [] adopt the reasoning of these circuits and hold that a petitioner who has no available remedy in habeas, through no lack of diligence on his part, is not barred by Heck from pursuing a § 1983 claim.

M.D.N.C. Notes Split Re Whether 2241 or 2254 Is Proper Statute for State Inmates to Challenge Execution of Sentence

2010-10-13T10:35:00.002-04:00

Per Reeves v. Herron, Slip Copy, 2010 WL 3945115 (M.D.N.C. Oct. 6, 2010):

The bulk of the federal statutory provisions related to habeas corpus matters are codified in “Chapter 153 of Title 28 of the United States Code.” In re Vial, 115 F.3d 1192, 1194 (4th Cir.1997). Within this Chapter lies Section 2241, the provisions of which trace directly back to both the first Congress's codification of habeas corpus and the 1867 Congress's statutory expansion of the writ, see Felker, 518 U.S. at 659-60 & nn. 1-2, as well as the now more-commonly invoked Sections 2254 and 2255, see Vial, 115 F.3d at 1194. “Under this framework, individuals convicted of crimes in state courts seek federal habeas corpus relief through [Section] 2254. Those convicted in federal court are required to bring collateral attacks challenging the validity of their judgment and sentence by filing a motion to vacate sentence pursuant to [Section] 2255.” Id. However, in some cases, convicted state and federal prisoners can proceed directly under Section 2241 (rather than Sections 2254 or 2255, respectively), as do other persons in custody though not convicted; uncertainty over these statutory boundaries has spawned substantial litigation, for example: “[W]here a state inmate is challenging the execution of his state court sentence, circuit courts are split on whether 28 U.S .C. § 2241 or 2254 is the proper statute under which a state inmate should proceed.” Ford v. Ozmint, C/A No. 4:08-450-CMC-TER, 2009 WL 250022, at *1 n. 1 (D.S.C. Feb. 2, 2009) (unpublished). The United States Court of Appeals for the Fourth Circuit has noted this divide, but not staked out its position. See Gregory v. Coleman, 218 Fed. Appx. 266, 267 & n.* (4th Cir.2007). Although the technical issue of whether Section 2241 is available in a particular case (in lieu of Section 2254) often carries dispositive significance, see Martin v. Johnson, No. 7:07CV436, 2007 WL 2746962 (W.D.Va. Sept. 20, 2007) (unpublished), on other occasions, it does not, see Crowe v. South Carolina Dep't of Corr., C/A No. 4:08-2955-CMC-TER, 2008 WL 4831484, at *1 n. 1 (D.S.C. Nov. 4, 2008) (unpublished). Because this case appears to fall into the latter category, the Court will not focus on the subject noted in Gregory at this time.

Tenth Circuit Notes Split Re Whether ERISA Imposes a Duty of Disclosure

2010-09-08T06:35:00.002-04:00

Jensen v. Solvay Chemicals, Inc., --- F.3d ----, 2010 WL 3472945 (10th Cir. Sept. 7, 2010):

Plaintiffs' remaining criticism of Solvay's disclosure is that it “Breached Its Fiduciary Duties By Refusing to Provide Information in Response to Inquiries from Employees.” Aplt. Br. at 58. Their complaint alleges that this fiduciary duty to disclose arises under ERISA § 404(a)(1), 29 U.S.C. § 1104(a)(1), although their discussion of the issue in their appellate brief does not cite that provision.

It is an interesting question whether the fiduciary duties imposed by § 404(a)(1) include a duty of disclosure. The Supreme Court left the issue open in Varity Corp. v. Howe, 516 U.S. 489, 506 (1996) (“[W]e need not reach the question whether ERISA fiduciaries have any fiduciary duty to disclose truthful information on their own initiative, or in response to employee inquiries.”). The circuit courts are divided on the matter. Some have held that any duty to disclose is imposed only by ERISA's specific disclosure requirements. See Faircloth v. Lundy Packing Co., 91 F.3d 648, 657 (4th Cir.1996); Ehlmann v. Kaiser Found. Health Plan of Tex., 198 F.3d 552, 555 (5th Cir.2000); Sprague v. Gen. Motors Corp., 133 F.3d 388, 405 (6th Cir.1998) (en banc). Others, however, have held that § 404(a) can impose additional duties of disclosure. See Glaziers & Glassworks Union Local No. 252 Annuity Fund v. Newbridge Sec. Inc., 93 F.3d 1171, 1181-82 (3d Cir.1996); Shea v. Esensten, 107 F.3d 625, 628-29 (8th Cir.1997); Eddy v. Colonial Life Ins. Co. of Am., 919 F.2d 747, 750-51 (D.C.Cir.1990).

We need not enter the debate, however, because Plaintiffs have not adequately presented the issue in their appellate brief. They have not specified a single employee question to which Solvay did not respond. Without more, we cannot determine what, if any, fiduciary duties were violated. Appellate courts will not address abstract legal issues that are not tied to specific events. See United States v. Allen, 603 F.3d 1202, 1209 (10th Cir.2010) (A court will not “analyze the record for [the appellant] to determine whether a violation occurred. That task was for [appellant's] counsel and it has not been performed.”). We therefore decline to consider this argument. See Cisneros v. Aragon, 485 F.3d 1226, 1233 (10th Cir.2007) (arguments not adequately addressed on appeal are waived).

Fifth Circuit Notes Split Re Propriety of Delegating Conditions of Probation Is Permissible

2010-08-30T10:09:00.003-04:00

Per U.S. v. Turpin, Slip Copy, 2010 WL 3377231 (5th Cir. Aug. 25, 2010):

Turpin contends on appeal that the district court impermissibly delegated its judicial authority and committed plain error by requiring participation in the mental health and anger management programs “as deemed necessary and approved by the probation officer .” There is currently a circuit split on this issue. The Third, Fourth, and Eleventh Circuits have held that imposing a sentence, including conditions of probation, is a strictly judicial function that may not be delegated. United States v. Pruden, 398 F.3d 241, 251 (3d Cir.2005); United States v. Johnson, 48 F.3d 806, 808 (4th Cir.1995) (“[T]he imposition of a sentence, including any terms for probation or supervised release, is a core judicial function”); United States v. Heath, 419 F.3d 1312, 1315 (11th Cir.2005) (“[D]elegating to the probation office the authority to decide whether a defendant will participate in a treatment program is a violation of Article III.”).

However, the Eight and Ninth Circuits have held that, as long as a judicial officer retains ultimate authority and responsibility for approving conditions of probation, limited authority regarding the details of supervised release may be delegated to probation officers. United States v. Mickelson, 433 F.3d 1050, 1057 (8th Cir.2006); United States v. Bowman, 175 F. App'x. 834, 838 (9th Cir.2006) (unpublished) (finding that delegating limited authority to probation officer to recommend whether or not defendant should have unsupervised visits was permissible, because “if the probation officer arbitrarily or unfairly denies [defendant] a favorable recommendation, [defendant] is free to seek relief from the district court....”). The Sixth Circuit has held that, although “fixing the terms and conditions of probation is a judicial act which may not be delegated,” delegating such things as the schedule of restitution payments is permissible. Weinberger v. United States, 268 F.3d 346, 359-61 (6th Cir.2001) (quoting Whitehead v.. United States, 155 F.2d 460, 462 (6th Cir.1946)). The Fifth Circuit has not yet decided whether it is permissible for a court to delegate to a probation officer the determination of whether mental health treatment will be required as part of supervised release.

However, we need not reach the delegation issue in Turpin's appeal, because Turpin also argues that the case should be remanded for clarification.

Eleventh Circuit Voices Disagreement Re Applicability of 3553 Safety-Valve to 3582 Procedings

2010-08-10T17:18:00.002-04:00

A district court may not modify a term of imprisonment once it has been imposed, except in some cases where modification is expressly permitted by statute or Fed.R.Crim.P. 35. 18 U.S.C. § 3582(c)(1)(B). One circumstance in which modification is permitted is specified in 18 U.S.C. § 3582(c)(2), which grants “a district court ... discretion to reduce the term of imprisonment of an already incarcerated defendant when that defendant was sentenced based on a sentencing range that was subsequently lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o).” United States v. Bravo, 203 F.3d 778, 780 (11th Cir.2000). The district court can reduce the sentence on its own motion and without a hearing. 18 U.S.C. § 3582(c)(2); Fed.R.Crim.P. 43(b)(4).

The question we must resolve today is this one: can a district court grant safety-valve relief when reducing a defendant's sentence pursuant to section 3582(c)(2)? The answer is “no,” because the safety-valve is inapplicable to sentence-modification proceedings.

* * *

We agree with the Ninth Circuit that section 3553(f)'s “references to the time of sentencing all support a construction requiring that the safety valve be applied only if the findings were made when the criminal was originally sentenced, as opposed to the later time when his sentence was reduced.” ^FN6 United States v. Stockdale, 129 F.3d 1066, 1068 (9th Cir.1997).

FN6. We must disagree with the circuits that have concluded that the safety-valve does apply in section 3582(c)(2) proceedings. See, e.g., United States v. Mihm, 134 F.3d 1353, 1355 (8th Cir.1998); United States v. Clark, 110 F.3d 15, 18 (6th Cir.1997).

SCOTUS Resovles One Split on Regarding SORNA and Dodges Another

2010-06-03T15:56:00.003-04:00

Per Carr v. U.S., --- S.Ct. ----, 2010 WL 2160783 (2010):

In view of the division among the Circuits as to the meaning of § 2250's “travel” requirement,^FN1 we granted certiorari, 557 U.S. ----, 130 S.Ct. 47, 174 L.Ed.2d 631 (2009), to decide the statute's applicability to pre-SORNA travel and, if necessary, to consider the statute's compliance with the Ex Post Facto Clause.^FN2

FN1. While the Seventh and Tenth Circuits have confronted the question directly, other Circuits have also touched on it. Aligning itself with the Seventh Circuit, the Eleventh Circuit has analogized 18 U.S.C. § 2250(a) to the felon-in-possession statute, § 922(g), and applied it to a sex offender who traveled before SORNA became applicable to him. United States v. Dumont, 555 F.3d 1288, 1291-1292 (2009) (per curiam). In contrast, the Eighth Circuit has stated in dictum that § 2250(a) “punishes convicted sex offenders who travel in interstate commerce after the enactment of SORNA.” United States v. May, 535 F.3d 912, 920 (2008) (emphasis added).

FN2. There is a separate conflict among the Courts of Appeals as to when SORNA's registration requirements became applicable to persons convicted of sex offenses prior to the statute's enactment. Several Circuits, including the Seventh, have taken the position that the Act did not apply to such sex offenders until the Attorney General provided for their inclusion by issuing an interim regulation, 28 CFR § 72.3, 72 Fed.Reg. 8897, on February 28, 2007. See, e.g., United States v. Hatcher, 560 F.3d 222, 226-229 (C.A.4 2009); United States v. Cain, 583 F.3d 408, 414-419 (C.A.6 2009); United States v. Dixon, 551 F.3d 578, 582 (C.A.7 2008) (case below); United States v. Madera, 528 F.3d 852, 857-859 (C.A.11 2008) (per curiam). Other Circuits have held that persons with pre-SORNA sex-offense convictions became subject to the Act's registration requirements upon the statute's enactment in July 2006. See, e.g., May, 535 F.3d, at 915-919; United States v. Hinckley, 550 F.3d 926, 929-935 (C.A.10 2008). Because Carr traveled from Alabama to Indiana before both the enactment of SORNA and the Attorney General's regulation, we have no occasion to consider whether a pre-SORNA sex offender whose travel and failure to register occurred between July 2006 and February 2007 is subject to liability under § 2250, and we express no view on that question. We similarly express no view as to whether § 72.3 was properly promulgated-a question that has also divided the Circuits. Compare Cain, 583 F.3d, at 419-424 (holding that the Attorney General lacked good cause for issuing the interim regulation without adhering to the notice-and-comment and publication requirements of the Administrative Procedure Act (APA)), with United States v. Dean, 604 F.3d 1275, ---- - ----, 2010 WL 1687618 *3-*8 (C.A.11 2010) (finding no APA violation); United States v. Gould, 568 F.3d 459, 469-470 (C.A.4 2009) (same).

Eleventh Circuit Weighs in on Split Re AG's Rulemaking Authority under SORNA

2010-04-29T12:15:00.003-04:00

Per U.S. v. Dean, --- F.3d ----, 2010 WL 1687618 (11th Cir. Apr. 28, 2010):

Dean's remaining argument is that the Attorney General's rule that SORNA applied retroactively did not comply with the requirements of the APA. Dean does not dispute that SORNA would apply to him if the rule making it retroactive is valid. Whether the Attorney General had good cause to bypass the notice and comment requirements of the APA is an issue of first impression in this Court and one that has split our sister circuits. See United States v. Gould, 568 F.3d 459 (4th Cir.2009), cert. denied,-S. Ct. -, 2010 WL 680575 (2010); United States v. Cain, 583 F.3d 408 (6th Cir.2009). . . . We conclude that the public safety argument advanced by the Attorney General is good cause for bypassing the notice and comment period.

E.D. Pa. Notes Split Re Determination of "Costs of Appeal" For a FRAP 7 Bond

2010-03-03T22:12:00.002-05:00

Per In re American Investors Life Ins. Co. Annuity Marketing and Sales Practices Litigation, Slip Copy, 2010 WL 653543 (E.D. Pa. Feb. 22, 2010):

There is no binding authority for the Court to follow to determine the “costs of appeal” for a bond issued under Federal Rule of Appellate Procedure 7. Circuit courts are divided as to whether to look to Federal Rule of Appellate Procedure 39(e) or to the underlying statute on which the plaintiff's claim is based in order to determine costs, and specifically whether attorneys' fees are among those “costs.” Because the Court finds that attorneys' fees are unavailable under either approach, the Court will not include attorneys' fees in Ms. Michael's appeal bond, and it need not resolve the split in authority.

M.D. Alabama Notes Split Re Ancillary Jurisdiction to Determine Matters of Expungement

2010-02-22T06:53:00.003-05:00

Per Hall v. Alabama Slip Copy, 2010 WL 582076 (M.D. Ala. Feb. 18, 2010):

[I]n 1994 the Supreme Court issued its opinion in Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) and explained the limited reach of ancillary jurisdiction. Tyler, --- F.Supp.2d at ----, 2009 WL 4059156 at *2. The Supreme Court stated that ancillary jurisdiction exists in two separate, but related, premises: “(1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent; and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.” Id. at 379-80, 114 S.Ct. at 1676 (citations omitted).

After the Kokkonen decision, a split among the circuits has developed with regard to whether a federal district court has ancillary jurisdiction to determine matters of expungement. See United States v. Paxton, 2007 WL 2081483 (M.D.Ala.2007) (unpublished). Several circuits, including the First, Third, Eighth, and Ninth, have concluded that, after Kokkonen, a request for expungement does not serve the limited purposes necessary for invocation of ancillary jurisdiction and that equitable considerations standing alone are not sufficient to support jurisdiction over such a request. See United States v. Coloian, 480 F.3d 47, 52 (1st Cir.2007); United States v. Meyer, 439 F.3d 855, 859-60 (8th Cir.2006); United States v. Dunegan, 251 F.3d 477, 479-80 (3d Cir.2001); United States v. Sumner, 226 F.3d 1005, 1013-15 (9th Cir.2000)

This Court has not found any Eleventh Circuit opinions on expungement in general since the Kokkonen case. See also Tyler, --- F.Supp.2d at ----, 2009 WL 4059156 at *2 (noting the lack of a post- Kokkonen opinion from the Eleventh Circuit); United States v. Carson, 366 F.Supp.2d 1151, 1155 (M.D.Fla.2004) (finding that the Eleventh Circuit has published no opinions on expungement in general outside the realm concerning the now-repealed “Youth Corrections Act”); Paxton, 2007 WL 2081483 at *1 (citing Carson and the proposition that the Eleventh Circuit has not addressed the issue). Absent statutory authority and a post- Kokkonen opinion from the Eleventh Circuit, this Court agrees with the analysis set forth by the First, Third, Eighth, and Ninth Circuits as well as the district courts in Tyler, Carson, and Paxton. Kokkonen effectively narrowed the scope of ancillary jurisdiction. Therefore, the court does not have ancillary jurisdiction to determine the issue of expungement.

D. Mass Notes Split Re Constitutionality of Adam Walsh Act

2009-12-09T21:54:00.002-05:00

Per U.S. v. Wilkinson, 646 F.Supp.2d 194 (D. Mass.,2009. 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”), 626 F.Supp.2d 184, 185-86 (D.Mass.2009). This is an issue that has split the district courts and several circuits that have decided it. Id. at 186-87. 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 --- U.S. ----, 129 S.Ct. 2828, 174 L.Ed.2d 551 (2009). In view of the uncertainty of the law and the risk that Wilkinson might be found to be sexually dangerous, the court stayed his release from federal custody, at least until the merit of the government's request for civil commitment was decided. Wilkinson II, 626 F.Supp.2d at 195.

W.D. La. Notes Split Re Fees Awardable under 42 U.S.C. § 406(b)

2009-10-31T00:20:00.000-04:00

Per Raposa v. U.S. Com'r Social Sec. Admin. Slip Copy, 2009 WL 3460433 (W.D. La. Oct. 22, 2009):

David Raposa (“Plaintiff”) commenced this civil action to appeal the Commissioner's denial of disability benefits. This court entered a judgment that reversed and remanded the case for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Soon afterward, the court granted Plaintiff's motion for fees under the Equal Access to Justice Act (“EAJA”) and awarded $3,618.75.

. . .

With respect to the substance of the motion, Plaintiff signed a contingency fee agreement to pay 25% of any past due benefits awarded. That agreement may provide the amount of the Section 406(b) award so long as the amount is reasonable under the facts of the case. Gisbrecht v. Barnhart, 122 S.Ct. 1817, 1828 (2002). In the Fifth Circuit, Section 406(b) is construed to limit the combined amount of attorney fees awarded by the agency under Section 406(a) and by the court under Section 406(b) to a total of 25% of the past due benefits. Dawson v. Finch, 425 F.2d 1192 (5th Cir.1970). ^FN1 Thus, the court must take into consideration any amount awarded by the agency.

FN1. There is a circuit split on this issue, with some courts holding that a court may award an amount equal to 25% of past due benefits, irrespective of any amount awarded by the agency under Section 406(a). See Clark v. Astrue, 529 F.3d 1211 (9th Cir.2008) (describing the split).

Court of Federal Claims Notes Split Re Culpability Needed for Spoliation Finding

2009-10-27T10:00:00.004-04:00

Per Consolidated Edison Co. of New York, Inc. & Subsidiaries v. U.S. --- Fed.Cl. ----, 2009 WL 3418533 (Fed. Cl. Oct. 21, 2009):

The relevant circuit for this court, the United States Court of Appeals for the Federal Circuit, has not definitively addressed whether a finding of bad faith is required before a court can find spoliation or impose an adverse inference or other sanction. Because many of the spoliation cases decided to date by the Federal Circuit have been patent cases in which the Federal Circuit applies the law of the relevant regional circuit, the Federal Circuit has not had the opportunity to announce a position binding on this court as to a possible “bad faith” or other standard to trigger a spoliation of evidence sanction. See United Med. Supply Co. v. United States, 77 Fed. Cl. at 266. Consequently, judges of the United States Court of Federal Claims have taken differing positions on the “bad faith” requirement. Compare, id. at 268 (“[A]n injured party need not demonstrate bad faith in order for the court to impose, under its inherent authority, spoliation sanctions.”), with Columbia First Bank, FSB v. United States, 54 Fed. Cl. 693, 703 (2002) (noting findings of bad faith are required before the court can determine that there was spoliation). While fully discussing the issues raised by a spoliation claim in the United Medical Supply case, a judge of this court discussed how the circuits are also split on this issue, with their views covering a broad spectrum. United Med. Supply Co. v. United States, 77 Fed. Cl. at 266 (and cases cited therein).

Ninth Circuit Creates Split Re Meaning of "Actual Damages" in 11 U.S.C. s. 362(k)(1)

2009-10-23T09:31:00.003-04:00

Per Sternberg v. Johnston, --- F.3d ----, 2009 WL 3381162 (9th Cir. Oct. 22, 2009):

Sternberg also argues that the bankruptcy court erred in calculating Johnston's damages because it awarded attorney fees not only for the work associated with remedying the stay violation but also for the subsequent adversary proceeding in which Johnston sought to collect damages for the stay violation. We agree. . . . The relevant statute, 11 U.S.C. § 362(k)(1), states that “an individual injured by any willful violation of a stay ... shall recover actual damages, including costs and attorneys' fees, and, in appropriate circumstances, may recover punitive damages.” . . .

[W]e conclude that the plain meaning of “actual damages” points to a different result. The dictionary defines “actual damages” as “[a]n amount awarded ... to compensate for a proven injury or loss; damages that repay actual losses.” BLACK'S LAW DICTIONARY 416 (8th ed.2004). Following this definition, the proven injury is the injury resulting from the stay violation itself. Once the violation has ended, any fees the debtor incurs after that point in pursuit of a damage award would not be to compensate for “actual damages” under § 362(k)(1).

We recognize that the Fifth Circuit appears to have held to the contrary: “The lower courts in our Circuit have concluded that it is proper to award attorney's fees that were incurred prosecuting a section 362(k) claim [,]” and “[w]e adopt the same reading of section 362(k) and therefore agree.” Young v. Repine (In re Repine), 536 F.3d 512, 522 (5th Cir.2008). We do not create a circuit split lightly. But the above-quoted language is all the court said on the issue. Without more, we are hard-pressed to find this decision persuasive.

Sixth Circuit Notes Split Re Interpretation of Speedy Trial Act

2009-10-13T14:02:00.000-04:00

Per U.S. v. Tinklenberg, 579 F.3d 589 (6th Cir. Sept. 3, 2009):

Of more substance is Tinklenberg's argument that the Speedy Trial Act limits to ten days the time excludable for the transportation of a defendant to and from the location of his competency evaluation. Although 18 U.S.C. § 3161(h)(1)(A) appears to exclude all time during which a defendant's competency evaluation and determination is pending, § 3161(h)(1)(F) provides that any delay caused by the transportation of a defendant “to and from places of examination or hospitalization” that is longer than ten days is “presumed to be unreasonable.” Whether the ten day limit in § 3161(h)(1)(F) applies to the time in which a defendant is transported to a place of examination pursuant to a court's competency evaluation order appears to be a matter of first impression for this Court. The few other appellate courts to have ruled on the issue are split: the First and Fifth Circuits have held that an unreasonable delay in the transportation of the defendant for a competency determination is not excludable, see United States v. Noone, 913 F.2d 20, 25-26 (1st Cir.1990) and United States v. Castle, 906 F.2d 134, 137 (5th Cir.1990), while the Second Circuit has held that any delay associated with a competency evaluation from the date of the order directing the evaluation until completion of the competency hearing, including delay from transporting a defendant for the evaluation, is excludable under § 3161(h)(1)(A), see United States v. Vasquez, 918 F.2d 329, 333 (2d Cir.1990).

E.D. Tex. Magistrate Notes Split Re Whether Magistrate's May Rule on Motions to Remand

2009-10-06T11:58:00.002-04:00

Per Doucet v. State Farm Fire and Cas. Co., Slip Copy, 2009 WL 3157478 (E.D. Tex. Sept. 25, 2009):

A threshold question is whether a motion to remand is a pretrial matter not dispositive of a party's claim or defense that magistrate judges may hear and decide pursuant to 28 U.S.C. § 636(b)(1)(A) or (3).

Lower courts are split on this question,^FN1 and there is no definitive ruling from the governing United States Court of Appeals for the Fifth Circuit. But, in a recent case, the Fifth Circuit voiced no objection to a magistrate judge's ruling on a remand motion when the presiding district judge considered the aggrieved party's objection.^FN2 Since the parties here will have an opportunity to secure district-judge review of any perceived errors or defects in the order,^FN3 the undersigned elects to decide the motion rather than issue a more cumbersome recommendation for its disposition.

FN1. Compare Saxon v. Thomas, No. 06-2339, 2007 WL 1974914, at *2 (W.D. La. June 29, 2007), Robinson v. Cheetah Transp., No. Civ. A. 06-0005, 2006 WL 1453036, at *1 (W.D.La. May 17, 2006), Vaquillas Ranch Co. v. Texaco Exploration & Prod., Inc., 844 F.Supp. 1156, 1160-63 (S.D.Tex.1994), and City of Jackson v. Lakeland Lounge of Jackson, Inc., 147 F.R.D. 122, 124 (S.D.Miss.1993) (holding that motions to remand are not dispositive and, consequently, may be referred to a United States magistrate judge for determination), with First Union Mortgage Corp. v. Smith, 229 F.3d 992, 996 (10th Cir.2000), and In re U.S. Healthcare, 159 F.3d 142, 146 (3d Cir.1998) (both holding that inasmuch as remand orders banish litigants from federal court, they are equivalent to final decisions or dispositive actions that must ultimately be performed by a district judge).

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

2009-08-31T06:20:00.002-04:00

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

2009-08-26T07:09:00.000-04:00

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

2009-08-21T07:01:00.003-04:00

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

2009-08-19T10:28:00.003-04:00

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

2009-08-10T00:02:00.000-04:00

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

2009-08-07T09:59:00.002-04:00

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.

Eleventh Circuit Notes Split Re Standard of Review for a District Court's Denial of a Franks Hearing

2009-07-24T07:21:00.001-04:00

Per U.S. v. Sarras, --- F.3d ----, 2009 WL 2176643 (11th Cir. July 23, 2009):

Generally, a court's decision about whether to hold an evidentiary hearing lies within that court's sound discretion and will be reviewed only for an abuse of discretion. We have not stated a precise standard of review for a district court's denial of a Franks hearing, and other circuits are split on the issue.” United States v. Arbolaez, 450 F.3d 1283, 1293 (11th Cir.2006) (internal citations omitted) (concluding that “[because] ... the more exacting de novo standard of review is satisfied here, we need not address the issue further.” (quotation marks omitted)). As in Arbolaez, we need not decide which standard of review to apply, as we discern no error under even a de novo standard of review.

Seventh Circuit Notes Split Re Whether Verbal Complaints Are Protected Activity under the FLSA

2009-06-30T08:51:00.003-04:00

Per Kasten v. Saint-Gobain Performance Plastics Corp., --- F.3d ----, 2009 WL 1838291 (7th Cir. June 29, 2009):

The next question pertinent to this appeal is whether unwritten, purely verbal complaints are protected activity under the statute.

Again, we start with the language of the statute. Sapperstein, 188 F.3d at 857. The FLSA's retaliation provision prohibits “discharg[ing] ... any employee because such employee has filed any complaint....” 29 U.S.C. § 215(a)(3) (emphasis added). . . . Looking only at the language of the statute, we believe that the district court correctly concluded that unwritten, purely verbal complaints are not protected activity. The use of the verb “to file” connotes the use of a writing.

. . .

Other circuit courts that have tackled this issue are split. The Fourth Circuit found that verbal complaints were not protected activity in Ball v. Memphis Bar-B-Q Co., Inc., 228 F.3d 360, 364 (4th Cir.2000). The court recognized that the FLSA's “statutory language clearly places limits on the range of retaliation proscribed by the act.” Specifically, in interpreting the “testimony” clause of the FLSA's retaliation provision, the Fourth Circuit held that the FLSA “prohibits retaliation for testimony given or about to be given but not for an employee's voicing of a position on working conditions in opposition to an employer.” Id. (emphasis added). Although the Fourth Circuit acknowledged that the retaliation in that case-which followed an employee's statement to the company president that, if he were deposed in a lawsuit, he would not testify to the president's suggested version of events-was “morally unacceptable,” the court concluded that a faithful interpretation of the statute did not recognize mere statements to a supervisor as a protected activity. Id.; see also Lambert v. Genesee Hospital, 10 F.3d 46, 55 (2d Cir.1993) (“The plain language of this provision limits the cause of action to retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to a supervisor.”) (citations omitted).

Other courts have found oral complaints to be protected activity, but it is difficult to draw guidance from these decisions because many of them do not specifically state whether the complaint in question was written or purely verbal, and none discusses the statute's use of the verb “to file” and whether it requires a writing. See EEOC v. Romeo Community Schools, 976 F.2d 985, 989-90 (6th Cir.1992) (holding, without discussion of the verbal/written distinction, that plaintiff's apparently oral complaints to supervisors were protected activity); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1989) (holding, without discussion of the verbal/written distinction, that plaintiffs' oral complaints were protected activity); Brock v. Richardson, 812 F.2d 121, 125 (8th Cir.1987) (holding, without discussion of the verbal/written distinction, that defendant's mistaken belief that plaintiff had made apparently oral complaints to supervisors was grounds for suit); Brennan v. Maxey's Yamaha, 513 F.2d 179, 183 (8th Cir.1975) (holding, without discussion of the verbal/written distinction, that employee's “voicing” of concern was protected activity).

Eleventh Circuit Notes Split Re Standard of Review for a District Court's Denial of a Franks Hearing

2009-06-17T06:33:00.002-04:00

Per U.S. v. Sarras, --- F.3d ----, 2009 WL 1661152 (11th Cir. June 16, 2009):

Sarras moved to suppress the evidence seized from his Tweed residence, alleging that (1) Ortiz's affidavit contained deliberate and material falsehoods and omissions and (2) a Franks hearing was required.^FN5FN5. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676 (1978) (instructing that where a defendant makes a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in [a] warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request”).

. . .

Sarras contends that the district court abused its discretion by denying his motion to suppress evidence without first conducting a Franks hearing.^FN37FN37. “Generally, a court's decision about whether to hold an evidentiary hearing lies within that court's sound discretion and will be reviewed only for an abuse of discretion. We have not stated a precise standard of review for a district court's denial of a Franks hearing, and other circuits are split on the issue.” United States v. Arbolaez, 450 F.3d 1283, 1293 (11th Cir.2006) (internal citations omitted) (concluding that “[because] ... the more exacting de novo standard of review is satisfied here, we need not address the issue further.” (quotation marks omitted)). As in Arbolaez, we need not decide which standard of review to apply, as we discern no error under even a de novo standard of review. See United States v. Kapordelis, No. 07-14499, 2009 WL 1508342, at *19-20 (11th Cir. June 1, 2009) (same).

Fourth Circuit Concludes that § 2515 Does not Permit a Clean Hands Exception to Its Exclusionary Rule

2009-06-16T06:23:00.002-04:00

Per U.S. v. Crabtree, 565 F.3d 887 (4th Cir. May 19, 2009):

Whether § 2515 should be understood as containing a “clean hands” exception to its exclusionary rule is an issue that has divided the circuits. The Sixth Circuit has concluded that § 2515 does not preclude the government in a criminal prosecution from introducing evidence of a recording made in violation of Title III if the government had no involvement in the illegal interception, see United States v. Murdock, 63 F.3d 1391, 1404 (6th Cir.1995), while the First, Third, and Ninth Circuits have refused to read such a clean-hands exception into § 2515, see Chandler v. United States Army, 125 F.3d 1296, 1302 (9th Cir.1997); In re Grand Jury, 111 F.3d 1066, 1079 (3d Cir.1997); United States v. Vest, 813 F.2d 477, 481 (1st Cir.1987). We agree with the majority and conclude that § 2515 does not permit an exception to its exclusionary rule in cases where the government was not involved in illegal interception.

In our view, the issue is resolved by the language of § 2515 itself. Section 2515 states, in its entirety, that

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.

18 U.S.C.A. § 2515. The statute seems to clearly and unambiguously prohibit the use in court of improperly intercepted communications; we simply see no gaps or shadows in the language that might leave lurking a clean-hands exception.

M.D. Alabama Notes Split Re whether Eyewitness-Identification Expert Testimony Violates FRE 403

2009-05-27T10:14:00.000-04:00

Per U.S. v. Smith, --- F.Supp.2d ----, 2009 WL 1444446 (M.D.Ala. May 26, 2009)

The Eleventh Circuit has not had occasion to address whether eyewitness-identification expert testimony would violate [Federal Evidence] Rule 403, and other circuits have split on this question. The Second, Seventh, and Eighth Circuits have reasoned that eyewitness-identification expert testimony might usurp the jury's role of determining witness credibility, thus causing jurors to be confused and misled regarding their role as the trier of fact. United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir.1999) (holding a district court was within its discretion to exclude an expert who “would effectively have inserted his own view of the officers' credibility for that of the jurors, thereby usurping their role”); United States v. Kime, 99 F.3d 870, 884 (8th Cir.1996) (applying a deferential standard to conclude that “the district court properly recognized the very real danger that the proffered expert testimony could either confuse the jury or cause it to substitute the expert's credibility assessment for its own”); United States v. Curry, 977 F.2d 1042, 1052 (7th Cir.1992) (“the district court's decision to exclude Dr. Loftus' testimony was a proper exercise of its discretion, whether under Rule 702 or Rule 403.”); but cf. United States v. Gallardo, 497 F.3d 727, 733 (7th Cir.2007) (holding that expert testimony on effect of drug abuse on witness memory would “intrude upon the jury's role in assessing witness credibility” only because the defendant had not put forth any evidence to show that the witnesses actually used drugs and that, thus, there was no “factual link” between the expert's testimony and the specific witnesses).

Similarly, in United States v. Rincon, 28 F.3d 921, 923-26 (9th Cir.1994), appellate court affirmed a district court's decision to exclude an eyewitness-identification expert under Rules 403 and 702. The court cautioned, though, that the opinion represents an “individualized inquiry” that “does not preclude the admission of such testimony when the proffering party satisfies the standard established in Daubert by showing that the expert opinion is based upon ‘scientific knowledge’ which is both reliable and helpful to the jury in any given case.” Id. at 926.

In contrast, the Third and Sixth Circuits have ruled that eyewitness-identification expert testimony comports with Rule 403. In United States v. Mathis, 264 F.3d 321, 339-40 (3rd Cir.2001), the court reversed a district court's decision to exclude eyewitness testimony based on Rules 403 and 702. Judge Pollack explained that eyewitness-identification experts who employ “reliable scientific expertise to juridically pertinent aspects of the human mind and body should generally, absent explicable reasons to the contrary, be welcomed by federal courts, not turned away.” Id. at 340. The Sixth Circuit has likewise concluded that a trial court erred in excluding an eyewitness-identification expert under Rule 403, but held that the error was harmless. United States v. Smith, 736 F.2d 1103, 1107 (6th Cir.1984); see also Smithers, 212 F.3d at 316 (finding that eyewitness-identification expert testimony did not violate Rule 403's prohibition against evidence that invites unjustified “delay”).

Eleventh Circuit Notes Split Re Relevance of Subjective Intent to Lability under the National Firearms Act

2009-05-25T00:01:00.002-04:00

Per U.S. v. Spoerke, --- F.3d ----, 2009 WL 1423919 (11th Cir. May 22, 2009):

Spoerke asserts that the pipe bombs were intended for social enjoyment, he detonated them only underwater, and he enjoyed the concussion of the device when detonated. Our sister circuits are split over whether the court should consider the subjective intent of the defendant when determining whether the device was designed as a weapon. Compare United States v. Oba, 448 F.2d 892, 894 (9th Cir.1971) (considering the defendant's subjective intent), with United States v. Posnjak, 457 F.2d 1110, 1118-20 (2d Cir.1972) (applying an objective standard to determine whether the device falls within the reach of the Firearms Act), and United States v. Johnson, 152 F.3d 618, 628 (7th Cir.1998) (adopting a mixed standard). Although the district court instructed the jury on the mixed standard, we decline to adopt a standard because the evidence of Spoerke's intent, under any standard, is sufficient to sustain his conviction.

Second Circuit Notes Split Re Sentencing under Criminal Rule 11(c)(1)(C) and Recourse to Resentencing

2009-04-17T00:49:00.000-04:00

Per U.S. v. Walker, Slip Copy, 2009 WL 983031 (2d Cir. Apr. 14, 2009):

As the Government correctly notes in its 28(j) letter, there is currently a circuit split on the legal issue of whether defendants sentenced under Federal Rule of Criminal Procedure Rule 11(c)(1)(C) plea agreements may ever have recourse to resentencing pursuant to § 3582(c)(2). We need not resolve this issue for our Circuit today, however, because the district court in this case provided sufficient justification for its determination that it would not resentence Walker even if given the opportunity.

Seventh Circuit Notes Split Re When a Copyright Registration Application is Complete

2009-04-16T11:39:00.001-04:00

Per Brooks-Ngwenya v. Indianapolis Public Schools, --- F.3d ----, 2009 WL 996998 (7th Cir. Apr. 15, 2009):

Compliance with the registration requirements of 17 U.S.C. § 411(a) is not a condition of copyright protection but is a prerequisite to suing for infringement. 17 U.S.C. § 411(a); Automation By Design, Inc. v. Raybestos Prods. Co., 463 F.3d 749, 752 n. 1 (7th Cir.2006). The circuits have split over whether registration is complete when an application is made or only after the Copyright Office has acted on the application. Compare Action Tapes, Inc. v. Mattson, 462 F.3d 1010, 1013 (8th Cir.2006) (application is sufficient), and Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357, 365 (5th Cir.2004) (same), with Jennette v. United States, 77 Fed.Cl. 126, 131 (2007) (action on application is required); La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195, 1201 (10th Cir.2005) (same); cf. Chicago Board of Education v. Substance, Inc., 354 F.3d 624, 631 (7th Cir.2003) (“an application for registration must be filed before the copyright can be sued upon”).

11th Cir. Notes Split Re Whether Federal Rule of Criminal Procedure 32(i)(1)(A) Requires the District Court to Personally Ask Defendant about PSI

2009-04-07T08:32:00.002-04:00

Per U.S. v. Martinez, Slip Copy, 2009 WL 839093 (11th Cir. Apr. 1, 2009):

Martinez contends that the district court plainly erred, under Fed.R.Crim.P. 32(i)(1)(A), in failing to personally ask him whether he had read the PSI [presentence investigation report]prior to sentencing. . . . [T]he parties have not cited, and research does not reveal, any binding case law requiring a district court to personally address the defendant to determine whether he read and discussed the PSI with counsel, and other circuits are split on the issue. See United States v. Romero, 491 F.3d 1173, 1179-80 & n. 3 (10th Cir.2007) (noting a circuit split on the issue).

11th Cir. Discusses Split Re Impact of IIRIRA on Section 212(c) of the INA

2009-04-01T10:24:00.005-04:00

Per Ferguson v. U.S. Attorney General, --- F.3d ----, 2009 WL 824434 (11th Mar. 31, 2009):

INS v. St. Cyr addressed the way that two statutory amendments to the INA-namely, AEDPA and IIRIRA-impacted § 212(c), 8 U.S.C. § 1182(c).

. . .

The circuits are split on how to apply St. Cyr to aliens outside of the guilty plea context. The majority of circuits to address the issue have held that IIRIRA does not have an impermissible retroactive effect on aliens who relied on § 212(c) relief in deciding to go to trial. See Hernandez-Castillo v. Moore, 436 F.3d 516, 520 (5th Cir.2006); Montenegro v. Ashcroft, 355 F.3d 1035, 1036-37 (7th Cir.2004); Rankine v. Reno, 319 F.3d 93, 102 (2d Cir.2003); Chambers v. Reno, 307 F.3d 284, 290-93 (4th Cir.2002); Dias v. INS, 311 F.3d 456, 458 (1st Cir.2002) (“[A]pplication of the new statutory limitations on discretionary relief does not have an impermissible retroactive effect on those aliens who would have been eligible for discretionary relief when they were convicted of a felony after trial.”).

. . .

Although our Court has not squarely decided the retroactivity issue splitting the circuits, we have come close to doing so on two occasions. We have all but said that St. Cyr 's retroactivity analysis does not apply to aliens who were convicted after a trial-as opposed to a guilty plea-and that § 212(c) relief is, therefore, not available to such aliens.

1st Cir. Discusses Split on Issue of Apportionment of Multi-Defendant Settlement Offers to Trigger Rule 68

2009-03-26T08:02:00.000-04:00

Per King v. Rivas, 555 F.3d 14 (1st Cir. Feb 02, 2009):

The circuit courts have been divided about variations on the central problem. The Seventh Circuit has insisted that to trigger Rule 68 in multi-defendant cases an offer must contain amounts allocated to each defendant, Harbor Motor Co., Inc. v. Arnell Chevrolet-Geo, Inc., 265 F.3d 638, 648-49 (7th Cir.2001); but it did so citing a prior case, Gavoni v. Dobbs House, Inc., 164 F.3d 1071 (7th Cir.1999), involving joint plaintiffs, who present quite different problems; and the result in Harbor Motor was more than justified on a different ground, namely, that the verdict in favor of the co-defendant was being reversed, Harbor Motor, 265 F.3d at 644-45, so the plaintiff's total package could in the end well exceed the package offer.

Similarly, the Fifth Circuit also said the failure to allocate was fatal; but it did so on facts where it was otherwise plainly right to refuse to shift costs because the judgment against the defendant exceeded the offer-when combined with a settlement received from the other. Johnston, 803 F.2d at 870. The apportionment notion was invoked to reach a correct result but one properly reached by saying that the joint offer was less than the total amount actually recovered by the plaintiff.

The Third Circuit, by contrast, approved use of Rule 68 cost shifting where an unapportioned offer had been made that exceeded the amount recovered; it said that the suit against multiple defendants involved joint liability and an indemnification contract, although it is not clear how much this mattered to the court nor why it should matter. Le v. Univ. of Pa., 321 F.3d 403, 408 (3d Cir.2003). And district courts have employed Rule 68 without difficulty in multiple defendant cases where the offer was not apportioned and the total recovery was less than the unapportioned offer.^FN4

. . . .

[W]e agree with the outcomes in the Seventh and Fifth Circuit decisions ( Harbor Motor and Johnston ) because comparability was impossible in the first case and favored the plaintiff in the second, but not the putative rationales adopted by those courts, and we align ourselves with the Third Circuit, save that we do not see why it matters whether liability was joint or several or how the defendants were related: a package offer is simply to be taken on its own terms and compared with the total recovery package.

6th Cir. Reveals Split Re Whether Comity and Federalism Preclude Federal Jurisdiction over State Taxation Claims

2009-03-23T06:35:00.001-04:00

Per Commerce Energy, Inc. v. Levin, 554 F.3d 1094 (6th Cir. Feb 04, 2009):

Yet there is a circuit split. The district court heavily relied on DIRECTV v. Tolson, 513 F.3d 119 (4th Cir.2008), which, in dismissing a § 1983 claim, rejected the idea that Hibbs did anything to limit an expansive reading of Fair Assessment because the comity principle is “broader than the Act itself, and its scope is not restricted by § 1341.” DIRECTV, 513 F.3d at 127 (citing Fair Assessment, 454 U.S. at 110). To the Fourth Circuit, the comity principle's breadth “was simply not before the Supreme Court in Hibbs.” Id. at 127-28.

Other circuits disagree. The Seventh Circuit, for instance, has reconciled these cases by holding that Fair Assessment cannot bar each and every challenge to a state's taxation scheme because Hibbs “restrict[s] comity to cases that could tie up rightful tax revenue.” Levy v. Pappas, 510 F.3d 755, 761 (7th Cir.2007) (quotations omitted).

. . . .

Similarly, the Ninth Circuit, in Wilbur v. Locke, 423 F.3d 1101 (9th Cir.2005), took at face value Hibbs's admonition that comity principles preclude jurisdiction “only when plaintiffs have sought district-court aid in order to arrest or countermand state tax collection” and observed that the plaintiffs before it sought “no such relief.” 423 F.3d at 1110 (quoting Hibbs, 542 U.S. at 107 n. 9, 124 S.Ct. 2276).

Animating these courts' disagreement with the Fourth Circuit are twin concerns. First, a sweeping reading of Fair Assessment runs squarely against Hibbs's instruction that comity guts federal jurisdiction only when plaintiffs try to thwart tax collection. Hibbs, 542 U.S. at 107 n. 9, 124 S.Ct. 2276.^FN4 Second, an unduly broad view of comity would render an Act of Congress-the Tax Injunction Act-effectively superfluous, as its contours would never be dispositive so long as extant “comity principles” uniformly barred challenges to state taxation. In recognizing this, the Hibbs Court warned lower courts that prior cases in this area are “not fairly cut loose from their secure, state-revenue-protective moorings.” Id. at 107, 124 S.Ct. 2276.

SCOTUS Resolves Split Regarding Nature of Required Predicate Offense in the Gun Control Act

2009-03-17T18:54:00.004-04:00

Last month the Supreme Court issued a ruling in U.S. v. Hayes, 129 S.Ct. 1079 (Feb. 24, 2009), which resolved a split regarding the question of whether 18 U.S.C. § 922(g)(9) requires that the offense predicate to a defendant's firearm possession conviction have as an element a domestic relationship between offender and victim. Here is an excerpt:

The federal Gun Control Act of 1968, 18 U.S.C. § 921 et seq., has long prohibited possession of a firearm by any person convicted of a felony. In 1996, Congress extended the prohibition to include persons convicted of “a misdemeanor crime of domestic violence.” § 922(g)(9). The definition of “misdemeanor crime of domestic violence,” contained in § 921(a)(33)(A), is at issue in this case.

. . .

Asserting that his 1994 West Virginia battery conviction did not qualify as a predicate offense under § 922(g)(9), Hayes moved to dismiss the indictment. Section 922(g)(9), Hayes maintained, applies only to persons previously convicted of an offense that has as an element a domestic relationship between aggressor and victim. The West Virginia statute under which he was convicted in 1994, Hayes observed, was a generic battery proscription, not a law designating a domestic relationship between offender and victim as an element of the offense. The United States District Court for the Northern District of West Virginia rejected Hayes's argument and denied his motion to dismiss the indictment. 377 F.Supp.2d 540, 541-542 (2005). Hayes then entered a conditional guilty plea and appealed.

In a 2-to-1 decision, the United States Court of Appeals for the Fourth Circuit reversed. A § 922(g)(9) predicate offense, the Court of Appeals held, must “have as an element a domestic relationship between the offender and the victim.” 482 F.3d 749, 751 (2007). In so ruling, the Fourth Circuit created a split between itself and the nine other Courts of Appeals that had previously published opinions deciding the same question. According to those courts, § 922(g)(9) does not require that the offense predicate to the defendant's firearm possession conviction have as an element a domestic relationship between offender and victim. We granted certiorari, *1084 552 U.S. ----, 128 S.Ct. 1702, 170 L.Ed.2d 512 (2008), to resolve this conflict.

. . .

Most sensibly read, then, § 921(a)(33)(A) defines “misdemeanor crime of domestic violence” as a misdemeanor offense that (1) “has, as an element, the use [of force],” and (2) is committed by a person who has a specified domestic relationship with the victim. To obtain a conviction in a § 922(g)(9) prosecution, the Government must prove beyond a reasonable doubt that the victim of the predicate offense was the defendant's current or former spouse or was related to the defendant in another specified way. But that relationship, while it must be established, need not be denominated an element of the predicate offense.

M.D.N.C. Chronicles Circuit Split Re Extent to which a RICO Complaint Must Allege Turkette “Enterprise” Factors

2009-03-16T08:45:00.000-04:00

Per AARP v. American Family Prepaid Legal Corp., Inc., 2009 WL 485154 (M.D.N.C. Feb. 25, 2009):

Neither party has cited, nor has the court found, any precedent in the Fourth Circuit as to the extent to which a RICO complaint must allege the requisites of an “enterprise” as set forth in Turkette. Tillett was decided on a full record after conviction and therefore does not speak directly to the issue. 763 F.2d at 630-61. The circuits are split in their approach. See, e.g., City of New York v. Smokes-Spirts.com, Inc., 541 F.3d 425, 451 (2d Cir.2008) (affirming dismissal of civil RICO claim for failure to allege facts supporting Turkette factors); Odom v. Microsoft Corp., 486 F.3d 541 (9th Cir.2007) (holding enterprise does not require separate structure and finding sufficient under Turkette a complaint alleging enterprise had common purpose, ongoing organization, and continuing unit); Asa-Brandt, Inc. v. ADM Investors Servs., Inc., 344 F.3d 738, 752 (8th Cir.2003) (noting requirement of separate enterprise structure but affirming grant of summary judgment for lack of proof); Pavlov v. Bank of New York Co. ., 25 F. App'x 70, 71 (2d Cir.2002) (holding complaint sufficiently alleged enterprise without pleading centralized hierarchy formed for the sole purpose of carrying out a pattern of racketeering acts); United States v. Patrick, 248 F.3d 11, 19 (1st Cir.2001) (refusing to require structure requirement in jury instructions); Begala v. PNC Bank, Ohio, Nat'l Ass'n, 214 F.3d 776, 781-82 (6th Cir.2000) (dismissing complaint for failing to allege Turkette factors); Richmond, 52 F.3d at 645 (same); Montesano v. Seafirst Commercial Corp., 818 F.2d 423, 427 (5th Cir.1987) (same); Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 790-91 (3d Cir.1984) (holding Turkette factors are burden of proof, not pleading); see also 1-7 CIVIL RICO P 7. 02, at 21 (Matthew Bender & Co., Inc.2008) (noting that ‘[t]he importance of the proper pleading of RICO's enterprise element cannot be overemphasized”). The court must therefore make a determination on a statute that our circuit has already characterized as “tormented,” Combs v. Bakker, 886 F.2d 673, 677 (4th Cir.1989), and whose interpretation remains in flux at the moment.

E.D. Pa. Reviews Circuit Split Re Equitable Tolling of Habeas Petitions for Prisoners with Actual Innocence Claims

2009-02-25T08:34:00.001-05:00

Per Ragan v. Horn, 2009 WL 323107 (E.D. Pa. Feb 10, 2009):

Ragan also argues that his claim of actual innocence forms a basis for a grant of equitable tolling. The Circuits are split on this issue.[FN6] The Circuits that have not yet ruled on the issue, including the Third Circuit, have deferred ruling on the issue until presented with a "proper case" (i.e., a case with a viable claim of actual innocence). See e.g., Knecht v. Shannon, 132 Fed.Appx. 407, 409 (3d Cir.2005) (not precedential) ("[U]nless we accept Knecht's argument that he is 'actually innocent,' and that equitable tolling is therefore warranted, we must affirm the dismissal of his petition as untimely."); Hussman v. Vaughn, 67 Fed. Appx. 667 (3d Cir.2003) (not precedential) (declining to address whether a claim of actual innocence could toll the statute of limitations where petitioner did not have a viable claim of actual innocence); See also Horning v. Lavan, 197 Fed. Appx. 90, 94 (3d Cir.2006) (not precedential) (indicating that even if it were to permit equitable tolling based on a viable claim of actual innocence, the petitioner would still have to show reasonable diligence in pursuing his actual innocence claim).[FN7] Therefore, I must determine if Ragan has a viable claim of actual innocence before ruling on the equitable tolling issue.

[FN6] See Souter v. Jones, 395 F.3d 577, 602 (6th Cir.2005) (holding that a petitioner who can demonstrate actual innocence "should be allowed to pass through the gateway and argue the merits of his underlying constitutional claims."); Flanders v. Graves, 299 F.3d 974, 978 (8th Cir.2002) (holding that an actual innocence claim could justify equitable tolling where there was "some action or inaction on the part of the respondent that prevented him from discovering the relevant [exculpatory] facts in a timely fashion, or, at the very least, that a reasonably diligent petitioner could not have discovered these facts in time to file a petition within the period of limitations."); Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.2000) ("Equitable tolling would be appropriate, for example, when a prisoner is actually innocent."). But see Escamilla v. Jungwirth, 426 F.3d 868, 872 (7th Cir.2005) ("Prisoners claiming to be innocent, like those contending that other events spoil the conviction, must meet the statutory requirement of timely action."); David v. Hall, 318 F.3d 343, 347 (1st Cir.2003) (holding that petitioners "who may be innocent are constrained by the same explicit statutory or rule-based deadlines as those against whom the evidence is overwhelming"); Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.2000) (holding that a claim of actual innocence would not constitute a "rare and exceptional" circumstance which would justify the equitable tolling of the limitations period).

[FN7] The Third Circuit is joined by the Second, Ninth, and Eleventh Circuits in reserving ruling on this issue until presented with a showing of actual innocence. See Whitley v. Senkowski, 317 F.3d 223 (2d Cir.2003) ("The constitutionality of the AEDPA's statute of limitations if applied to a claim of actual innocence is an open question today."); Majoy v. Roe, 296 F.3d 770, 776 (9th Cir.2002) (remanding to the district court to determine whether a claim of actual innocence as defined under Schlup had been established before addressing "what consequences such a finding has with respect to AEDPA's one-year statue of limitation"); Wyzykowski v. Dept. of Corrections, 226 F.3d 1213, 1218 (11th Cir.2000) ("[T]he factual issue of whether the petitioner can make a showing of actual innocence should be first addressed, before addressing the constitutional issue of whether the Suspension Clause requires such an exception for actual innocence.").

10th Cir. Concurrence Notes Split Re Justiciability of Employment Claims Brought by National Guardsmen

2009-02-23T10:27:00.001-05:00

Per Hanson v. Wyatt, 552 F.3d 1148 (10th Cir. Sep 10, 2008) (Gorsuch, J., concurring):

Interpreting the Supreme Court's guidance as I have, and consistent with our decision in Costner, the vast majority of circuits have held that, while judicial review may be had of congressionally authorized BCMRs, direct suits against military superiors challenging discharge and other discrete personnel decisions are not congressionally authorized and therefore would represent an inappropriate intrusion into matters textually and prudentially committed to the political branches. They have frequently done so, moreover, in the very context here-suits brought by National Guard members challenging their dismissal by the relevant adjutant general. See, e.g., Watson v. Ark. Nat'l Guard, 886 F.2d 1004, 1009 (8th Cir.1989); Crawford v. Tex. Army Nat'l Guard, 794 F.2d 1034, 1036 (5th Cir.1986); Speigner v. Alexander, 248 F.3d 1292, 1296-98 (11th Cir.2001); Kreis, 866 F.2d at 1511; Dibble v. Fenimore, 339 F.3d 120, 127-28 (2d Cir.2003); Knutson v. Wisc. Air Nat'l Guard, 995 F.2d 765, 770-71 (7th Cir.1993); Christoffersen v. Wash. State Air Nat'l Guard, 855 F.2d 1437, 1440-45 (9th Cir.1988); Scott v. Rice, 1993 WL 375664, at *2 (4th Cir. Sept.23, 1993); see also E. Roy Hawkins, The Justiciability of Claims Brought by National Guardsmen Under the Civil Rights Statutes for Injuries Suffered in the Course of Military Service, 125 Mil. L.Rev. 99, 128-32 (1989); Christopher G. Froelich, Comment, Closing the Equitable Loophole: Assessing the Supreme Court's Next Move Regarding the Availability of Equitable Relief for Military Plaintiffs, 35 Seton Hall L.Rev. 699 (2005). But see Wigginton v. Centracchio, 205 F.3d 504, 512-13 (1st Cir.2000); Jorden v. Nat'l Guard Bureau, 799 F.2d 99, 109-11 (3d Cir.1986). By holding Col. Hanson's claim justiciable and reaching its merits, the majority cements not only an intra- but also an inter-circuit split on a significant point of law and does so without affording the consideration due this substantial body of learning from our sister circuits.

Dissenting C.A.D.C. Judge Brown Describes Circuit Split Re Sentencing Guidelines for "Renting or Managing a Drug Establishment"

2009-02-20T13:18:00.000-05:00

Per In re Sealed Case, 552 F.3d 841 (D.C. Cir. Jan 16, 2009) (Brown, J., dissenting):

However, under the plain error standard that should be applied here, Appellant loses; this court has never resolved whether § 2D1.8(a)(2) sets the base offense level or is a mitigation provision, and in fact, as the majority observes but fails fully to credit, there is a circuit split on this very question. Compare United States v. Dickerson, 195 F.3d 1183, 1189-90 (10th Cir.1999) (holding burden is on the defendant to show applicability of § 2D1.8(a)(2)) and United States v. Leasure, 319 F.3d 1092, 1098 (9th Cir.2003) (holding burden is on the government to show participation under § 2D1.8(a)(1)). Indeed, it is not surprising that there is a circuit split, because § 2D1.8(a)'s legal character is by no means obvious. Thus even assuming error, we should affirm because the district court did not "fail[ ] to follow an absolutely clear legal norm." United States v. Andrews, 532 F.3d 900, 909 (D.C.Cir.2008).

E.D. Mo. Notes Decisional Split within Eighth Circuit

2009-02-16T10:15:00.001-05:00

Per Jackson v. Steele, Slip Copy, 2009 WL 350633 (E.D. Mo. Feb. 10, 2009):

Authority within the Eighth Circuit is mixed in regard to whether a state prisoner can raise a claim pursuant to a § 2254 petition which has only been reviewed by the state court for plain error. The Eighth Circuit acknowledged in Hornbuckle v. Groose that “ ‘[t]here appears to be a decisional split within our Circuit on whether plain-error review by a state appellate court waives a procedural default by a habeas petitioner, allowing collateral review by this court.’ “ 106 F.3d 253, 257 (8th Cir.1997) (quoting Mack v. Caspari, 92 F.3d 637, 641 n. 6 (8th Cir.1996)). In Hornbuckle, 106 F.3d at 257, the Eighth Circuit chose to follow cases holding that where Missouri courts review procedurally defaulted claims of a habeas petitioner for plain error, the federal habeas court may likewise review for plain error. In Thomas v. Bowersox, 208 F.3d 699, 701 (8th Cir.2000), the Eighth Circuit addressed the merits of a habeas petitioner's claim where the state court had reviewed the claim for plain error. However, in Evans v.. Luebbers, 371 F.3d 438, 443 (8th Cir.2004), the Eighth Circuit stated that a habeas claim was procedurally defaulted “notwithstanding the fact that the Missouri Court of Appeals reviewed the claim for plain error.”

William Mitchell Law Review Call for Papers – Eighth Circuit Splits

2009-02-12T12:03:00.002-05:00

Here is a call for papers that I received recently:

Call for Papers – Eighth Circuit Split
William Mitchell Law Review, Vol. 36, Issue IV (Spring 2010)

The William Mitchell Law Review is proud to dedicate its fourth issue to Eighth Circuit Splits in its upcoming Volume 36 (Spring 2010). We are currently seeking papers that examine areas where the Eighth Circuit Court of Appeals has decided an issue differently from the other Circuit Courts of Appeals. These may be areas where the Eighth Circuit stands alone in its decision, or with a minority of other courts. Submissions may either take the form of shorter commentaries or longer law review articles. We are also accepting submission proposals at this time.

The William Mitchell Law Review is highly regarded both regionally and nationally. Our Law Review recently ranked twenty-second in citations by judges and ranked fifty-seventh in citations by other law journals, culminating in an overall ranking of seventieth. Over the years, the William Mitchell Law Review has featured the works of various scholars and practitioners such as Congressman Tim Penny, and former Vice President Walter Mondale. The William Mitchell Law Review has also published nationally known legal experts ranging from Philip Bruner, to Supreme Court Justices Sandra Day O’Connor, Byron White, and Harry Blackmun. Now, we would like to invite you to join us to publish in our upcoming volume.

Please direct inquiries to Executive Editor Ellen M. Ahrens at ellen.ahrens@wmitchell.edu. Please send submissions to lreview@wmitchell.edu or mail them to our Editorial Office. Please note that the Law Review prefers electronic submissions.

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N.D. Cal. Weighs In On Split Re Arbitration Consent Statute

2009-02-10T10:23:00.001-05:00

Per Polimaster Ltd. v. RAE Systems, Inc., 2009 WL 196169 (N.D. Cal. Jan 13, 2009):

Polimaster and Na & Se contend that the award may not be confirmed because the License Agreement did not contain any consent to the arbitration award being confirmed by a Court. The two provisions of the FAA that provide courts with authority to confirm arbitration awards contain conflicting consent requirements. 9 U.S.C. § 207 instructs that "within three years after an arbitral award falling under the Convention is made, any party to the arbitration may apply to any court having jurisdiction under this chapter for an order confirming the award as against any other party to the arbitration." 9 U.S.C. § 9 is more restrictive:

If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award.

In reconciling these two provisions, circuit courts have split with respect to the question of whether consent is required. Compare Daihatsu Motor Co., Inc v. Terrain Vehicles, Inc., 1992 WL133036 at *3 (N.D.Ill.1992), aff'd on other grounds, 13 F.3d 196 (7th Cir.1993) with Phoenix Aktiengeselshaft v. Ecoplas, Inc., 291 F.3d 433 436-38 (2d Cir.2004). The Ninth Circuit has not addressed this issue. However, they [sic] Court finds the Second Circuit's analysis to be persuasive.

S.D.N.Y Tracks Circuit Split Re Applicability of Title II to Employment Discrimination

2009-02-03T10:19:00.000-05:00

Per Melrose v. N.Y. State Dept. of Health Office of Professional Medical Conduct, 2009 WL 211029 (S.D.N.Y. Jan 26, 2009):

The 4th, 5th, 9th, 10th, and 11th Circuits, as well as district courts within the Second Circuit, have addressed the applicability of Title II to employment discrimination with conflicting results. See, e.g., Zimmerman v. Oregon Dep't of Justice, 170 F.3d 1169, 1173 (9th Cir.1999) (holding Title II inapplicable to employment discrimination); Davoll v. Webb, 194 F.3d 1116, 1130 (10th Cir.1999) (assuming Title II applicable to employment discrimination); Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816, 820 (11th Cir.1998) (holding Title II permits an employment discrimination claim against a public entity); Holmes v.. Texas A & M Univ., 145 F.3d 681, 683-84 (5th Cir.1998) (assuming Title II applicable to employment discrimination); Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir.1995) (assuming Title II applicable in the employment context); Sworn v. Western N.Y. Children's Psychiatric Ctr., 269 F.Supp.2d 152, 157 (W.D.N.Y.2003) (holding Title II inapplicable); Smith v. State Univ. of N.Y., No. 00-1454, 2003 WL 1937208, at *8 (N.D.N.Y. Apr. 23, 2003) (holding Title II applicable); Syken v. State of N.Y., Executive Dep't, Div. of Hous. & Cmty. Renewal, No. 02-4673, 2003 U.S. Dist. LEXIS 5358, at *23 (S.D.N.Y. Apr. 2, 2003) (holding Title II inapplicable); Winokur v. Office of Ct. Adm., 190 F.Supp.2d 444, 449 (E.D.N.Y.2002) (holding Title II applicable); see also Hinton v. The City College of New York, 05 Civ. 8951, 2008 U.S. Dist. LEXIS 16058, at *70-71 & n. 22 (S.D.N.Y. Feb. 29, 2008) (noting split among circuits as well as fact that "[a]lthough the Second Circuit has yet to address this issue, district courts in this Circuit have been split").

. . . .

Defendant's motion to dismiss Plaintiff's Title II claims for monetary and equitable relief against Defendant for failure to state a claim should be granted.

Sixth Circuit Fuels Circuit Split Over Use of Tables to Value Lottery Winnings

2009-01-29T12:03:00.002-05:00

The Sixth Circuit yesterday (Negron v. United States, No. 07-4460 (6th Cir. Jan. 28, 2009)) added more fuel to the split in the circuits over whether the § 7520 valuation tables should be used to value lottery payments, joining the Fifth Circuit (Cook v. Commissioner, 349 F.3d 850 (5th Cir. 2003)) in upholding the use of the tables, contrary to the position of the Second and Ninth Circuits (Estate of Gribauskas v. Commissioner, 342 F.3d 85 (2d Cir. 2003); Shackleford v. United States, 262 F.3d 1028 (9th Cir. 2001)).

Thanks to Professor Paul Caron for bringing this to my attention.

D.N.J. Bankruptcy Court Notes Split Re Mental State for Defalcation under Bankruptcy Code

2009-01-26T06:36:00.003-05:00

Per In re Tamis, 398 B.R. 124 (Bkrtcy.D.N.J. Dec. 17, 2008):

Chase seeks a judgment determining that its “entire debt” is nondischargeable under § 523(a)(4) of the Bankruptcy Code “because Defendants committed defalcation while acting in a fiduciary capacity.”

Section 524(a)(4) provides, inter alia, that an individual debtor may not be discharged from a debt that arises from a fraud or defalcation while acting in a fiduciary capacity. . . . Like the phrase “fiduciary capacity,” the meaning of the term “defalcation” is a matter of federal law. Carlisle Cashway, Inc. v. Johnson (In re Johnson), 691 F.2d 249, 254 (6th Cir.1982)(“Federal, not state law controls our determination because it is the intent of Congress in using the word ‘defalcation’ that we seek to discover.”) Unfortunately, ascertaining the meaning of defalcation in § 523(a)(4) is hampered by the fact that the term is not defined in the Bankruptcy Code and there is no legislative history that illuminates its intended meaning. As a result of this lack of statutory guidance, the courts, including the Circuit Courts of Appeal, are split on the mental state required to establish defalcation or whether wrongful conduct is a necessary element.

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

2008-12-30T07:43:00.002-05:00

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.