Federal Judiciary

No Longer Posting; Call for Collaborator

Posted on September 20, 2013
My current responsibilities and projects do not permit me to keep up with circuit splits in support of posting to this blog.  So I will no longer be posting for the foreseeable future.  However, if there is a law professor or practitioner who has an interest in writing for the blog, just contact me to let me know and we can discuss it...

SDNY Notes Split Re Conflict between Federal Reserve Act and State Anti-Discrimination Law

Posted on January 10, 2013
Per Goonan v. Federal Reserve Bank of New York, --- F.Supp.2d ----, 2013 WL 69196 (S.D.N.Y. Jan. 7, 2013:The proper interpretation of the FRA's dismiss at pleasure provision is undeniably a difficult question. Some courts have concluded that there is no conflict between the FRA and state anti-discrimination laws because this provision speaks only to contractual and other common law rights created under state law...

Third Circuit Declines to Weigh in on Split Re Whether Adjustment under Guideline § 3E1.1(b) Is Mandatory under Certain Circumstances

Posted on January 09, 2013
Per U.S. v. Castro, --- F.3d ----, 2013 WL 69214 (3d Cir. 2013): Castro also contends that his 60?month sentence under Count Nine is procedurally unreasonable because the District Court erred in refusing to reduce his offense level under § 3E1.1(b). In his view, the additional adjustment is mandatory if the government moves for it and the other requirements of the provision are met...

Sixth Circuit on Split Re Need for Automatic Reversal after Deprivation of Counsel at Competency Hearing

Posted on January 02, 2013
Per U.S. v. Ross, --- F.3d ----, 2012 WL 6734087 (C.A.6 2012):The issue of a remedy for deprivation of counsel at a competency hearing is a question of first impression in this Circuit. However, ?[i]t is settled that a complete absence of counsel at a critical stage of a criminal proceeding is a per se Sixth Amendment violation warranting reversal of a conviction, a sentence, or both, as applicable, without analysis for prejudice or harmless error...

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First Circuit Weighs In on Circuit Split re Jurisdiction over Defense Base Act Claims

Posted on November 27, 2012
From BNA's U.S. Law Week, 81 U.S.L.W. 739 (Nov. 27, 2012):The circuit courts have jurisdiction to take the first crack at judicial review of claims under the Defense Base Act, the U.S. Court of Appeals for the First Circuit held Nov. 20, evenly splitting the eight circuits that have considered the issue (Truczinskas v...

Fort Lee soldier?s custody case gets SCOTUS hearing

Posted on September 04, 2012
From the Virginia Law Weekly Blog:A soldier from Fort Lee will get a U.S. Supreme Court hearing in his custody dispute with his ex-wife, who moved with their five-year-old daughter to her native ScotlandIn August, the high court granted a writ and scheduled oral argument for Dec...

SCOTUS Resolves Split Re Interpretation of IIRIRA

Posted on April 17, 2012
Here is the West synopsis of Vartelas v. Holder 132 S.Ct. 1479 (March 28, 2012), which resolved a circuit split regarding the interpretation and application of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA):Background: Lawful permanent resident (LPR) alien, a native and citizen of Greece, petitioned for review of a decision of the Board of Immigration Appeals (BIA), 2009 WL 331200, denying his motion to reopen removal proceedings...

D. Colo. Notes Split Re Whether FRCP 9(b) Applies to Negligent Misrepresentation Claims

Posted on March 13, 2012
Per Denver Health and Hosp. Authority v. Beverage Distributors Co., LLC --- F.Supp.2d ----, 2012 WL 400320 (D.Colo. Feb. 8, 2012):Beverage contends that Rule 9(b), not Rule 8(a), applies to the negligent misrepresentation claim and that the claim cannot meet Rule 9(b)...

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

Posted on January 03, 2012
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.FN8FN8. 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...

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

Posted on December 14, 2011
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]...

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

Posted on November 27, 2011
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...

Fith Circuit Weighs in on Split Re Stay Pending Arbitrability Appeal

Posted on November 03, 2011
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...

Third Circuit Joins Majority on Time for Removal

Posted on October 19, 2011
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...

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

Posted on September 30, 2011
Per U.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...

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

Posted on August 10, 2011
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...

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

Posted on July 25, 2011
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...

U.S. Law Week Reports Circuit Splits

Posted on July 12, 2011
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...

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

Posted on July 05, 2011
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...

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

Posted on June 29, 2011
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...

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

Posted on June 14, 2011
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...

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

Posted on June 13, 2011
United States?Sovereign ImmunityTobar 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

Posted on June 13, 2011
Freedom of Information?Privacy ActShearson 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...

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

Posted on June 13, 2011
Freedom of Information?ExemptionsWatkins 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...

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

Posted on June 13, 2011
Civil Procedure?RemovalWest 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...

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

Posted on June 13, 2011
Civil Procedure?Default JudgmentCity 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...

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

Posted on March 15, 2011
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...

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

Posted on March 09, 2011
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...

SCOTUS Resolves Split Re Interpretation of FOIA Exemption

Posted on March 08, 2011
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...

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

Posted on February 21, 2011
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...

EDNY Notes Split Re Interpretatin of FRE 606(b)

Posted on February 17, 2011
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...

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