Federal Judiciary

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

Posted on October 31, 2009
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...

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

Posted on October 27, 2009
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...

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

Posted on October 23, 2009
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...

Sixth Circuit Notes Split Re Interpretation of Speedy Trial Act

Posted on October 13, 2009
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...

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

Posted on October 06, 2009
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...

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

Posted on August 31, 2009
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...

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

Posted on August 26, 2009
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...

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

Posted on August 21, 2009
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...

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

Posted on August 19, 2009
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?)...

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

Posted on August 10, 2009
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)...

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

Posted on August 07, 2009
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...

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

Posted on July 24, 2009
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...

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

Posted on June 30, 2009
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...

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

Posted on June 17, 2009
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...

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

Posted on June 16, 2009
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...

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

Posted on May 27, 2009
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...

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

Posted on May 25, 2009
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...

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

Posted on April 17, 2009
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)...

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

Posted on April 16, 2009
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...

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

Posted on April 07, 2009
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...

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

Posted on April 01, 2009
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...

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

Posted on March 26, 2009
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...

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

Posted on March 23, 2009
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...

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

Posted on March 17, 2009
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...

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

Posted on March 16, 2009
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...

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

Posted on February 25, 2009
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...

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

Posted on February 23, 2009
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...

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

Posted on February 20, 2009
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...

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

Posted on February 16, 2009
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...

William Mitchell Law Review Call for Papers ? Eighth Circuit Splits

Posted on February 12, 2009
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)...

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

Posted on February 10, 2009
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...

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

Posted on February 03, 2009
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...

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

Posted on January 29, 2009
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...

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

Posted on January 26, 2009
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...

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

Posted on December 30, 2008
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...

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

Posted on December 08, 2008
Per Line Const. Ben. Fund v. Allied Elec. Contractors, Inc., Slip Copy, 2008 WL 5101989 (N.D. Ill. Nov. 26, 2008):Defendant contends that Plaintiff, a plan rather than a group of trustees, lacks standing to bring an action for unpaid contributions. Defendant's argument rests in part on a split in authority among the circuits as to whether a plan itself is a fiduciary within the meaning of ERISA...

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

Posted on December 01, 2008
Per Coastal Federal Credit Union v. Hardiman, 2008 WL 4899529 (E.D.N.C. Oct 28, 2008): [T]he Fourth Circuit rejected the Seventh Circuit's conclusion that the three options in section 521(a)(2)(A) were exclusive. The Fourth Circuit noted, inter alia, that the Seventh Circuit's analysis rested on another case which reasoned in part from the premise that ipso facto clauses were enforceable in that circuit...

Circuit Split Widens on Aggravated Felony Issue

Posted on November 25, 2008
Per BNA's U.S. Law Week, 77 U.S.L.W. 1320 (Nov. 25, 2008): A second simple possession conviction is not an aggravated felony for immigration purposes so as to make the offending alien ineligible for cancellation of removal, the U.S. Court of Appeals for the Second Circuit holds, joining the First, Third, and Sixth Circuits in a circuit split on the question...

E.D. Va. Notes Circuit Split Re Whether "Unclean Hands" Doctrine Is Applicable to RICO Claims

Posted on November 24, 2008
Per Smithfield Foods, Inc. v. United Food and Commercial Workers Intern. Union, --- F.Supp.2d ----, 2008 WL 4899535 (E.D. Va. Oct 14, 2008): The well-recognized doctrine of unclean hands prevents a plaintiff from obtaining equitable relief if the plaintiff has been "guilty of any inequitable or wrongful conduct with respect to the transaction or subject matter sued on...

11th Cir. Identifies Split Re Whether Dist. Ct. Must Consider Each Enhancing Sentencing Factor on the Record

Posted on November 18, 2008
Per U.S. v. Santiago Moreno, 2008 WL 4787153 (11th Cir. Nov 4, 2008): The [Sentencing] Guidelines Application Note 20 states "the court shall include consideration of the following factors" in determining whether the offense [manufacture of methamphetamines] created a substantial risk of harm to human life or the environment ...

Justices Agree to Examine Arbitration Agreement; Appeals Courts Have Split

Posted on November 15, 2008
Per BNA's Class Action Litigation Report, 11/14/2008:The U.S. Supreme Court Nov. 7 granted review of an issue that the petitioner says has generated an ?intractable divide? among the federal appeals courts: Does the Federal Arbitration Act give appellate jurisdiction over the appeal from an order denying application to stay claims involving nonsignatories to an arbitration agreement? (Arthur Andersen LLP v...

D. Mont. Recognizes that "Whether a Walk-Away Escape is a Violent Crime Under the ACCA is the Subject" of a Circuit Split

Posted on November 14, 2008
Per U.S. v. Smith, 2008 WL 4534021 n.2 (D. Mont. Oct 09, 2008): The issue of whether a walk-away escape is a violent crime under the ACCA [Armed Career Criminal Act] is the subject of a split of authority within the circuits. See United States v. Springfield, 196 F...

9th Cir. Weighs in on Split Re Whether Protected Status of Speech is a Question of Mixed Law and Fact

Posted on November 12, 2008
Per Posey v. Lake Pend Oreille School Dist. No. 84, --- F.3d ----, 2008 WL 4570616 (9th Cir. Oct 15, 2008): Given the factual disputes presented in the record, we must therefore determine whether the inquiry into the protected status of speech remains one purely of law as stated in Connick, or if instead Garcetti has transformed it into a mixed question of fact and law...

E.D. Va. Notes Split Re Whether Doctrine of Unclean Hands Applies in Civil RICO Claims

Posted on November 05, 2008
Per Smithfield Foods, Inc. v. United Food and Commercial Workers Intern. Union, --- F.Supp.2d ----, 2008 WL 4610312 (E.D.Va. Oct. 14, 2008): The Defendants have asserted the affirmative defense of ?unclean hands.? The well-recognized doctrine of unclean hands prevents a plaintiff from obtaining equitable relief, if the plaintiff has been ?guilty of any inequitable or wrongful conduct with respect to the transaction or subject matter sued on...

Split Over Whether "Actual Innocence" Exception is Available to those who were Erroneously Sentenced as Habitual Offenders Remains Unresolved

Posted on October 30, 2008
Per Harper v. Hubert, 2008 WL 4534097 (E.D. La. Oct 07, 2008): In Haley v. Cockrell, 306 F.3d 257 (5th Cir.2002), the United States Fifth Circuit Court of Appeals, after noting that a split exists among the circuits on that issue, held that the "actual innocence" exception is available to petitioners in noncapital proceedings who claim they were erroneously sentenced as habitual or multiple offenders...

D. Colo. Notes Split Re Whether Plaintiff's Assertion of Post-Conviction Access to Biological Evidence for DNA Testing Is Cognizable under § 1983

Posted on October 27, 2008
Per McDaniel v. John Suthers, 2008 WL 4527697 (D. Colo. Oct 02, 2008): [T]he Court must determine whether Plaintiff's claim, asserting a post-conviction right of access to biological evidence for DNA testing, is cognizable under Section 1983 or whether it is properly limited to the realm of habeas corpus...

N.D. Cal. Analyzes Circuit Split Re Whether Failure to Act Constitutes a Continuing Violation of Agency's Statutory Duty

Posted on October 24, 2008
Per Public Citizen, Inc. v. Mukasey, 2008 WL 4532540 (N.D. Cal. Oct 09, 2008): Here, plaintiffs suggest that the continuing violations doctrine applies to government in action. Although the Ninth Circuit has extended the continuing violations doctrine to employment and civil rights contexts, it has not offered any explicit guidance regarding application of the continuing violations doctrine to the situation at bar...

Eleventh Circuit Adopts Last Served Defendant Rule for Removal

Posted on October 22, 2008
Per ABA's Litigation News, Oct. 9, 2008:Weighing in on a long-standing circuit split over when the time for removal runs in a multidefendant suit, the Eleventh Circuit in Bailey v. Janssen Pharmaceutica, Inc. [PDF] has adopted the so-called last-served defendant rule, suggesting that the U...

SCOTUS Denies Cert. in Case Addressing Split Re Standard of Review for Bremen Dismissals

Posted on October 21, 2008
Yesterday the Supreme Court denied certiorari in Arrow Electronics Inc. v. E.ON AG (9th Cir., 268 Fed. Appx. 551), a case that sought to resolve a circuit split regarding appellate review of dismissals under M/S Bremen v. Zapata Off-Shore Co., 407 U...

D. Mass. Reviews Split Re Whether PLRA Limits Attorneys' Fees to Rate Paid or Rate Set by the Judicial Conference

Posted on October 20, 2008
Per Hudson v. Dennehy, 568 F. Supp. 2d 125 (D. Mass. Jul 25, 2008): Defendant's second objection relates to the cap on fees imposed by the PLRA. The PLRA limits the hourly rate to no "greater than 150 percent of the hourly rate established under [the CJA] for payment of court-appointed counsel...

Fifth Cir. Notes Split Re Decision Whether Crime is "Particularly Serious" is Matter for Court Jurisdiction

Posted on October 14, 2008
Per Solorzano-Moreno v. Mukasey, 2008 WL 4538322 n.5 (5th Cir. Oct 10, 2008): We need not address the government's alternative jurisdictional argument that section 1252(a)(2)(B) precludes our review of the immigration judge's finding under section 1231(b)(3) that Solorzano's crime was "particularly serious...

Despite Circuit Split, D.V.I. Allows Hague Convention Signatories to be Served by Certified Mail

Posted on October 10, 2008
Per Harvey v. Sav-U-Car Rental, 2008 WL 4394670 (D.V.I. Sep 22, 2008): Fed.R.Civ.P. 4(f). A review of the caselaw considering the rule, reflects a split among the circuits and even within the Third Circuit regarding whether the Hague Convention, to which Japan is a signatory, allows service by certified mail...

W.D. Pa. Reports Circuit Split Re Whether Title II Applies to Employment Claims

Posted on October 08, 2008
Per Hemby-Grubb v. Indiana University of Pennsylvania, 2008 WL 4372937 (W.D.Pa. Sep 22, 2008): The Third Circuit has yet to squarely address the issue. There is a split in the Circuits before whom the question has come. In Zimmerman v. Or. Dep't of Justice, 170 F...

10th Cir. Reports Split Re Justiciability of Equitable Relief Claims by Servicemembers for Unconstitutional Personnel Decisions

Posted on October 06, 2008
Per Hanson v. Wyatt, 540 F.3d 1187 (10th Cir. Sep 10, 2008): In Dibble v. Fenimore, 339 F.3d 120, 126 (2d Cir.2003), the court noted a circuit split regarding "the justiciability of claims [by servicemembers] who seek equitable relief for alleged constitutional violations in personnel decisions...

S.D.N.Y. Notes Split Re Whether CAFA Removal Provision Trumps Non-Removal Provision of Securities Act

Posted on September 30, 2008
Per New Jersey Carpenters Vacation Fund v. Harborview Mortg. Loan Trust 2006-4, Slip Copy, 2008 WL 4369840 (S.D.N.Y. Sept. 24, 2008):This putative class action, which is rooted in the mortgage-backed securities crisis, addresses an issue of first impression in this Circuit-whether the removal provision of the Class Action Fairness Act of 2005, Pub...

D. Md. Notes Split Re Burden of Persuasion in FMLA Context

Posted on September 24, 2008
Per Jordan v. Radiology Imaging Associates, --- F.Supp.2d ----, 2008 WL 4286840 (D. Md. Sept. 12, 2008):Therefore, an employer that does not restore an employee returning from FMLA [Family Medical Leave Act] leave can avoid liability by showing ?that [the] employee would not otherwise have been employed at the time reinstatement is requested...

E.D. La. Reports Uncertainty of Whether "Actual Innocence" Exception Applies to Noncapital Sentencing Errors

Posted on September 22, 2008
Per Taylor v. Cain, 2008 WL 4186883 (E.D.La. Sep 10, 2008): Without a showing of cause and prejudice, a petitioner's defaulted claims are procedurally barred unless the application of the bar will result in a fundamental miscarriage of justice. The fundamental miscarriage of justice exception is limited to claims of actual innocence...

Eleventh Circuit Notes Split Re Whether Laches May Bar Copyright Infringement Claim Filed within the Statute of Limitations

Posted on September 17, 2008
Per Peter Letterese And Associates, Inc. v. World Institute Of Scientology Enterprises, 533 F.3d 1287 (11th Cir. Jul 08, 2008): We next consider whether summary judgment for defendants was appropriate as to Count 1 on the alternate ground that PL&A's claim is barred by the defense of laches, which prevents a plaintiff who has slept on his rights from enforcing those rights against a defendant...

First Circuit Resorts to Lenity Rule, Splitting with Other Circuits Re Application of Scienter Requirement in Identity Theft Statute

Posted on September 15, 2008
Per U.S. v. Godin, 534 F.3d 51 (1st Cir. Jul 18, 2008): The circuits are divided on the issue of whether the "knowingly" scienter requirement in § 1028A(a)(1) [an identity theft statute] extends to "of another person." The Fourth, Eighth, and Eleventh Circuits have concluded that it does not...

Ninth Circuit Sides with Seventh, Finding the Private Right of Action under the Odometer Act Limited to Mileage Fraud

Posted on September 08, 2008
Per Bodine v. Graco, Inc., 533 F.3d 1145 (9th Cir. Jul 24, 2008): Does the Motor Vehicle Information and Cost Savings Act ("the Odometer Act" or "the Act"), 49 U.S.C. §§ 32701-32711, and its implementing regulations, 49 C.F.R. pt. 580, allow a private right of action where the fraud relates to something other than the vehicle's mileage-in this case, its accident history? Two of our sister circuits have split on this issue...

Third Cir. Characterizes "Hybrid-Rights Theory" as Dicta in Split from Other Circuits

Posted on September 04, 2008
Per Combs v. Homer-Center School Dist., --- F.3d ----, 2008 WL 3863701 (3rd Cir. Aug 21, 2008): Smith's hybrid-rights theory has divided our sister circuits. Some characterize the theory as dicta and others use different standards to decide whether a plaintiff has asserted a cognizable hybrid-rights claim...

S.D. Ohio Reports Circuit Split Re Whether Plan Administrators, as Opposed to the Plan Itself, May be Defendants in ERISA Action

Posted on September 02, 2008
Per Garringer v. Employer Ben. Services of Ohio, Inc., 2008 WL 3822311 (S.D. Ohio Aug 12, 2008): Although the circuits are split on the issue of whether a plan is the only proper defendant in a suit to recover benefits under section 502(a)(1)(B), in the Sixth Circuit, plan administrators may be properly named as parties in an ERISA action...

Fifth Circuit Sides With Eleventh Circuit and Taxpayer in Lisle, Orders Tax Court to Adopt Special Trial Judge's Report

Posted on August 29, 2008
The Tax Prof Blog is reporting that on Monday the 5th Circuit sided with the 11th Circuit and the taxpayer in the long-running Ballard - Kanter - Lisle saga in Lisle v. Commissioner, No. 07-60862 (Consolidated with 07-60863 & 07-60864) (5th Cir. Aug...

N.D. Ill. Analyzes Circuit Split as to Whether the EEOC may Issue Early Right-to-Sue Letters

Posted on August 28, 2008
Per Krause v. Turnberry Country Club, --- F.Supp.2d ----, 2008 WL 2819353 (N.D. Ill. Apr 17, 2008): Courts have engaged in much discussion regarding the validity of 29 C.F.R. § 1601.28(a)(2). See King v. Dunn Mem'l Hosp., 120 F.Supp.2d 752, 755 (S...

Seventh Circuit Reviews Split Re Interpretation of 8 C.F.R. § 208.13 Corroboration Rule as it Applies to Credible Testimony

Posted on August 27, 2008
Per Rapheal v. Mukasey, 533 F.3d 521 (7th Cir. Jul 02, 2008): We explained in Gontcharova that the Board's interpretation of § 208.13(a) is not the only one possible, and then explained the then-existent circuit split: The Second and Third Circuits endorsed the Board's interpretation of the regulation, while the Ninth Circuit interpreted the regulation as meaning that it "does not require corroborative evidence ...

D.C. Circuit Recognizes Split Re Application of Updated "Advisory" Sentencing Guidelines as Ex Post Facto Violation

Posted on August 26, 2008
Per U.S. v. Andrews, 532 F.3d 900 (D.C. Cir. Jul 15, 2008): [I]n its 2005 opinion in United States v. Booker, the Supreme Court held that the Sentencing Guidelines must now be regarded as advisory rather than mandatory. 543 U.S. at 245, 125 S.Ct. 738...

Third Circuit Notes Recent Split Re Congress's Authority to Regulate Intrastate Activities

Posted on August 25, 2008
Per U.S. v. Stevens, 533 F.3d 218 n.22 (3rd Cir. Jul 18, 2008): [T]he question of whether Congress exceeds its constitutional authority when regulating intrastate activities was one that had, until just recently, divided the circuits. Compare, e.g...

Seventh Circuit Discusses Split Re Whether a District Court's Order to Remand to Bankruptcy Court is Appealable

Posted on August 22, 2008
Per In re Holland, --- F.3d ----, 2008 WL 3844140 (7th Cir. Aug 19, 2008): Circuit courts remain split on which test to apply in determining whether a district court order that remands a case to a bankruptcy court is appealable. See, e.g., In re Lopez, 116 F...

N.D. Fla. Notes Split Re Removal from State Administrative Agencies Under § 1441

Posted on August 20, 2008
Per Johnson v. Albertson's LLC, 2008 WL 3286988 (N.D. Fla. Aug 06, 2008): The Eleventh Circuit has yet to decide whether cases may be removed from state administrative agencies pursuant to § 1441, and if so, under what circumstances. See Bellsouth Telecomm...

D. Neb. Recognizes Split Among Circuits Re Fourth Amendment Violation During Traffic Stop Based on Unrelated Police/Suspect Conversation

Posted on August 18, 2008
Per U.S. v. Dortch, 2008 WL 3287515 (D. Neb. Aug 07, 2008): Absent consent or reasonable suspicion, the Eighth Circuit Court of Appeals acknowledges a split among the circuit courts with respect to "whether an officer conducting a traffic stop based upon probable cause violates the Fourth Amendment 'by asking a few questions about matters unrelated to the traffic violation, even if this conversation briefly extends the length of the detention,' " but has not resolved the issue in this circuit...

First Circuit Notes Split Re Defining "Relatedness" between ERISA Claims and Wrongful Termination Claims for Compulsory Joinder Purposes

Posted on August 15, 2008
Per Negron-Fuentes v. UPS Supply Chain Solutions, 532 F.3d 1 (1st Cir. Jun 18, 2008): However, applying claim preclusion to bar the two ERISA claims (one only arguably so but we will return to this later) is contested by Negron and here we think the district court erred...

Ninth Circuit Weighs in on Split Re Measurement of "Materiality" in Context of False Claims Act

Posted on August 14, 2008
Per U.S. v. Bourseau, 531 F.3d 1159 (9th Cir. Jul 14, 2008): The Supreme Court has stated that "[i]n general, a false statement is material if it has 'a natural tendency to influence, or [is] capable of influencing, the decision of the decisionmaking body to which it was addressed...

Third Circuit Notes Resolution of Split Re Whether Mixed-motive Theory Discrimination Claims Must be Proven with Direct Evidence

Posted on August 13, 2008
Per Makky v. Chertoff, --- F.3d ----, 2008 WL 3091785 (3rd Cir. Aug 07, 2008): Although the courts were divided about whether a discrimination claim brought under a mixed-motive theory had to be proven with direct evidence, the Supreme Court resolved the circuit split in Desert Palace by holding that a plaintiff does not need to present "direct evidence" of discrimination to proceed on a mixed-motive theory of discrimination under Title VII...

Fifth Circuit Judge Notes Split Re Interpretation of Lawrence as it applies to Commercial Activity

Posted on August 11, 2008
Per Reliable Consultants Inc. v. Earle, --- F.3d ----, 2008 WL 2941355 (5th Cir. Aug 01, 2008) (Garza, J., dissenting from the denial of rehearing en banc): In construing the personal liberty interest announced in Lawrence to encompass commercial activity, the Reliable majority also split with an opinion of the Eleventh Circuit in a case strikingly similar to Reliable...

Seventh Circuit Notes Split Re Interpretation of Mens Rea Requirement in Drug Manufacturing Statute

Posted on August 08, 2008
Per U.S. v. Khattab, --- F.3d ----, 2008 WL 2971808 (7th Cir. Aug 05, 2008): There is a split among our sister circuits as to the proper interpretation of the mens rea requirement in 21 U.S.C. § 841(c)(2)-one circuit believes the statute requires a defendant's subjective knowledge that the drugs he possesses or distributes will be used to manufacture a controlled substance, while at least three other circuits parse the statute to allow conviction based upon either subjective knowledge or an objective "cause to believe...

Sixth Circuit Notes Split Re Application of Earmarking Doctrine in the Context of a Refinancing Transaction

Posted on August 06, 2008
Per In re Lee, 530 F.3d 458 (6th Cir. Jun 26, 2008): When applying the earmarking doctrine in the context of a refinancing transaction, courts have split over whether to characterize the refinancing as a single unitary transaction or as a number of parts...

Ninth Circuit Weighs in on Split Re Scope of Attorney's Fees under § 406(b)

Posted on August 05, 2008
Per Clark v. Astrue, 529 F.3d 1211 (9th Cir. Jun 25, 2008): The issue presented here is one of first impression in the Ninth Circuit: Does 42 U.S.C. § 406(b) limit only the attorney's fees awarded under § 406(b) for representation before the court to 25% of the claimant's past-due benefits, or does § 406(b) limit the combined total of attorney's fees awarded under both § 406(a) and § 406(b) to 25% of past-due benefits? Other circuits that have addressed this issue have reached different results...

Seventh Circuit Notes Split Re Analysis to Determine If Case is "Extraordinary" for Purposes of Sentencing

Posted on July 30, 2008
Per U.S. v. Swanson, 2008 WL 2795275 (7th Cir. Jul 21, 2008): Still, in "extraordinary cases" both an upward adjustment (for obstruction) under § 3C1.1 and a downward adjustment (for acceptance) under 3E1.1(a) may be warranted. U.S.S.G. § 3E1.1, cmt...

Third Circuit Notes Split Re Treatment of Jurisdictional Attack Intertwined with Merits

Posted on July 29, 2008
Per CNA v. U.S., --- F.3d ----, 2008 WL 2801978 (3rd Cir. Jul 22, 2008): A split among our sister courts of appeals has emerged on the proper procedure for handling situations in which jurisdiction is intertwined with the merits. In some circuits, whether a Government employee was acting in the scope of his employment for purposes of an FTCA claim must be handled as a question of the merits in order to give plaintiffs the appropriate procedural safeguards ( e...

Ninth Circuit Notes Split Re Reviewability of Remand Based on Declining Supplemental Jurisdiciton

Posted on July 28, 2008
Per California Dept. of Water Resources v. Powerex Corp., --- F.3d ----, 2008 WL 2797031 (9th Cir. Jul 22, 2008): As DWR notes, the Federal Circuit has come to the opposite conclusion, holding that "a remand based on declining supplemental jurisdiction must be considered within the class of remands described in § 1447(c) and thus barred from appellate review by § 1447(d)...

Ninth Cir. Adopts "Natural Tendency Test" in Deciding "Materiality" in the Context of the False Claims Act

Posted on July 16, 2008
Per U.S. v. Bourseau, --- F.3d ----, 2008 WL 2718878 (9th Cir. Jul 14, 2008):The Supreme Court has stated that "[i]n general, a false statement is material if it has 'a natural tendency to influence, or [is] capable of influencing, the decision of the decisionmaking body to which it was addressed...

D.R.I. Notes Split Re Automatic Divestiture of Jurisdiction Following Interlocutory Appeal of the Denial of a Motion to Stay & Compel Arbitration

Posted on July 15, 2008
Per Narragansett Elec. Co. v. Constellation Energy Commodities Group, Inc., --- F.Supp.2d ----, 2008 WL 2467008 (D.R.I. Jun 18, 2008): In this case Judge Woodcock reviewed the authority regarding interlocutory appeals of the denial of a motion to stay and compel arbitration under the FAA, and concluded that such an appeal "divests the district court of the power to proceed with the aspects of the case on appeal...

Sixth Circuit Reports Split Re Relation Back of Government's Interest in Substitute Assets in Forfeiture Context

Posted on July 09, 2008
Per U.S. v. Parrett, --- F.3d ----, 2008 WL 2619886 (6th Cir. Jul 03, 2008): This statutory provision regarding substitute assets does not explicitly provide for relation back; currently the circuits are split as to whether the government's interest in substitute property relates back to the date of the act giving rise to the forfeiture in the same way as the government's interest vests regarding property directly tainted by the illegal activity...

M.D. Fla. Notes Split Re Whether Coercive Terry Stops Constitute Miranda Custody

Posted on July 07, 2008
Per U.S. v. Artiles-Martin, Slip Copy, 2008 WL 2600787 (M.D. Fla. June 30, 2008):There is currently a split in the circuits over whether coercive Terry stops constitute Miranda custody .FN38 While the Eleventh Circuit has not expressly adopted either view, the Circuit addressed this issue in United States v...

N.D. Ohio Finds Split Among Circuits Re Question of Habeas Petitioners' Mental State as one of Fact or Mixed Law and Fact

Posted on July 03, 2008
Per Stallings v. Bagley, --- F.Supp.2d ----, 2008 WL 918712 (N.D. Ohio Mar 31, 2008): In its prior discovery order, the Court assumed, without deciding, that § 2254(d)(2) would apply. Since issuing that order, however, it appears that circuit courts have split on this issue...

Ninth Circuit Dissent Condemns Split from Seventh Circuit Cases Holding Sale of Property Ends Endorsement of Religion

Posted on July 02, 2008
Per Buono v. Kempthorne, 527 F.3d 758 (9th Cir. May 14, 2008) (O'Scannlain, J., dissenting): Buono IV squarely contradicts two Seventh Circuit opinions holding that "[a]bsent unusual circumstances, a sale of real property is an effective way for a public body to end its inappropriate endorsement of religion...

8th Cir. Concurrence Notes Split Re "Multi-Factor" Approach to Determination of Prior Conviction's "Similarity" to Offense in Criminal History Statute

Posted on July 01, 2008
Per U.S. v. Leon-Alvarez, 527 F.3d 732 (8th Cir. Jun 10, 2008) (NO. 07-2146): BRIGHT, Circuit Judge, concurring. In adhering to the "elements" or "essential characteristics" approach to determine whether a prior conviction has the requisite similarity to an offense in § 4A1...

whether duplicative aggravating factors are unconstitutional

Posted on June 30, 2008
Per U.S. v. Fell, --- F.3d ----, 2008 WL 2552863 (2d Cir. June 27, 2008):Three years after the Tenth Circuit's decision in McCullah, the issue of duplicative aggravating factors was considered by the Supreme Court in Jones v. United States, 527 U...

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

Posted on June 25, 2008
Per Munoz v. England, --- F.Supp.2d ----, 2008 WL 723596 (D. Haw. Mar 18, 2008): The court recognizes the circuit split regarding whether courts have jurisdiction to enforce private employer (as opposed to federal agency) settlement agreements reached prior to EEOC involvement, i...

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

Posted on June 23, 2008
Per R.A.F. ex rel. Woodall v. Southern Co. Pension Plan, 2008 WL 2397391 (M.D. Ala. Jun 10, 2008):The defendants claim the divorce decree does not qualify as a QDRO because it forces the Plan to pay benefits not otherwise provided under the Plan. The defendants claim that under the Plan, when a participant dies single without a QDRO in place, all benefits end...

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

Posted on June 20, 2008
Per United States v. Whitley, --- F.3d ----, 2008 WL 2405707 (2d Cir. Jun 16, 2008):Finally, the Government points out that the Fourth, Sixth, and Eighth Circuits have declined to read the "except" clause literally, see United States v. Studifin, 240 F...

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

Posted on June 18, 2008
Per Dunn v. Cox, 2008 WL 2370247 (M.D.Fla. Jun 06, 2008): In the Eleventh Circuit, "a district court conducting a de novo review of an [a]dministrator's benefits determination is not limited to the facts available to the [a]dministrator at the time of the determination...

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

Posted on June 16, 2008
Per Fowler v. Potter, Slip Copy, 2008 WL 2383073 (N.D. Cal. Jun. 09, 2008):Turning to her claim itself, the Court notes, while ?[i]t is unlawful to coerce, intimidate, threaten, harass or interfere with any individual in the exercise or enjoyment of, or because that individual aided or encouraged any other individual in the exercise of, any right granted or protected by this part,? 29 C...

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

Posted on June 10, 2008
Per April v. Brooks, Slip Copy, 2008 WL 2275486 (W.D. Pa. May 30, 2008):The United States Court of Appeals for the Third Circuit has explicitly held that the exhaustion requirement of the PLRA includes a procedural default component, by analogizing it to the exhaustion doctrine (with its corollary procedural default component) in the habeas context...

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

Posted on June 04, 2008
The Sixth Circuit has granted en banc review in a case in which a panel of the court noted that the Circuit's rule applying state law to determine spoliation of evidence issues was out of step with the approach taken in other circuits. Here is an excerpt from the panel opinion in Adkins v...

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

Posted on June 03, 2008
Per Environmental Conservation Organization v. City of Dallas, --- F.3d ----, 2008 WL 2174066 (5th Cir. May 27, 2008):We recognize that, in some limited instances, ?a federal court has leeway to choose among threshold grounds for denying audience to a case on the merits...

Ninth Circuit Notes Split Re Continuing Seizure Approach

Posted on May 30, 2008
Per Torres v. City of Madera, 524 F.3d 1053 (9th Cir. May 5, 2008):However, the Ninth Circuit employs a ?continuing seizure? rule, which provides that ?once a seizure has occurred, it continues throughout the time the arrestee is in the custody of the arresting officers...

Fifth Circuit Notes Split Re Application of Res Judicata to Clean Water Act Citizen Suits

Posted on May 29, 2008
Per Environmental Conservation Org. v. City of Dallas, --- F.3d ----, 2008 WL 2174066, (5th Cir. May 27, 2008):We recognize that, in some limited instances, ?a federal court has leeway to choose among threshold grounds for denying audience to a case on the merits...

N.D. Ala. Notes Split Re Test For Determining Whether Matter was Prepared in Anticipation of Litigaiton

Posted on May 26, 2008
Per Regions Financial Corp. v. U.S., Slip Copy, 2008 WL 2139008 (N.D. Ala. May 08, 2008):Courts have wrestled with the articulation of a clear test for interpreting what constitutes ?prepared in anticipation of litigation? in the context of an IRS summons...

Fifth Circuit Notes Split Re Whether S. 253 of FTA Creates Privately Enforceable Right

Posted on May 21, 2008
Per Southwestern Bell Telephone, LP v. City Of Houston, --- F.3d ----, 2008 WL 2102283 (5th Cir. May 20, 2008):Section 253(a) of the Federal Telecommunications Act of 1996 (FTA) provides: ?No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service?...

S.D.N.Y. Notes Split Re Standard for Evaluating the Validity of Facially Discriminatory State Statutes under FHA

Posted on May 15, 2008
Per Sierra v. City of New York, --- F.Supp.2d ----, 2008 WL 2036834 (S.D.N.Y. May 13, 2008):The Second Circuit has not yet ruled on the appropriate standard for evaluating the validity of state statutes that are facially discriminatory under the FHA, and the Courts of Appeals that have considered the question are divided...

E.D. Wis. Notes Split Re Application of Drug Trafficking Offense Statute

Posted on May 14, 2008
Per U.S. v. Colla, Slip Copy, 2008 WL 1969600 (E.D. Wis. May 3, 2008):The evidence is surely sufficient to create a reasonable belief that defendant violated 21 U.S.C. § 843(b), use of a telephone to facilitate a drug trafficking offense. The Seventh Circuit has held that simply calling a drug dealer to obtain drugs for one's own personal use is sufficient to sustain a conviction under this statute...

M.D. Fla. Notes Split Re Burden of Proving Waiver of Jury Trial Right Was Knowing and Voluntary

Posted on May 07, 2008
Per Winiarski v. Brown & Brown, Inc., Slip Copy, 2008 WL 1930484 (M.D. Fla. May 01, 2008):A party may validly waive its Seventh Amendment right to a jury trial so long as the waiver is knowing and voluntary. . .Plaintiff suggests that the burden is upon the Defendant to prove that the waiver was knowing and voluntary...

E.D.N.Y. Notes Split Re Whether Motions to Amend Are Dispositive or Nondispositive

Posted on May 05, 2008
Per Wilson v. City of New York, Slip Copy, 2008 WL 1909212 (E.D.N.Y. Apr. 30, 2008):Courts in this Circuit are divided on the issue of whether, and under what circumstances, motions to amend a pleading are dispositive or nondispositive. The Second Circuit has not yet ruled on the issue, see Children First Found...

Sixth Circuit Notes Split Re Existence of Mens Rea Requirement for Sentencing under 18 U.S.C. § 942(c)(1)(A)

Posted on April 30, 2008
Per U.S. v. Nelson, Slip Copy, 2008 WL 1836732 (6th Cir. Apr. 24, 2008):The statute in question provides that ?any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm ... shall, in addition to the punishment provided for such crime ...

SCOTUS Resolves Split Re Whether State Misdemeanors Can Rank As a "Felony Drug Offence" under 21 U.S.C. § 841(b)(1)(A)

Posted on April 28, 2008
Per Burgess v. U.S., 128 S.Ct. 1572 (Apr. 16, 2008):Burgess, proceeding pro se, petitioned for a writ of certiorari. We granted the writ, 552 U.S. ----, 128 S.Ct. 740, 169 L.Ed.2d 578 (2007), to resolve a split among the Circuits on the question Burgess presents: Does a drug crime classified as a misdemeanor by state law, but punishable by more than one year's imprisonment, rank as a ?felony drug offense? under 21 U...

Eleventh Circuit Discusses Split Re whether Requirements of § 303(b) Are Jurisdictional

Posted on April 25, 2008
Per In re Trusted Net Media Holdings, LLC, --- F.3d ----, 2008 WL 1816396 (11th Cir. Apr. 23, 2008):[T]he circuits, and other courts, are split on whether the requirements of § 303(b) must be satisfied to convey subject matter jurisdiction over an involuntary case upon the bankruptcy court or whether, instead, they are merely ?substantive matters which must be proved or waived for petitioning creditors to prevail in involuntary proceedings...

E.D. Ark. Notes Split Re Authority to Order Restitution Beyond 90 Days after Sentencing

Posted on April 15, 2008
Per U.S. v. Balentine, Slip Copy, 2008 WL 1699225 (E.D. Ark. Apr. 9, 2008):The Eighth Circuit has not ruled under which circumstances, if any, a court may impose an order for restitution beyond 90 days after sentencing. There is a split among the Circuits that have addressed this issue...

Seventh Circuit Notes Split Re Whether Contents of Bag Were in "Plain View" Because Known By Police With Certainty

Posted on April 11, 2008
Per U.S. v. Tejada, --- F.3d ----, 2008 WL 962837 (7th Cir. April 10, 2008):The police unquestionably were lawfully in the apartment, and unquestionably entitled to open the cabinet in the entertainment center. And there in plain view was the blue travel bag that they knew contained cocaine...

S.D.N.Y. Notes Split Re Whether ERISA Plan Administrators Are Required to Recognize a Beneficiary's Waiver of Benefits in External Documents

Posted on April 04, 2008
Per Hallingby v. Hallingby, --- F.Supp.2d ----, 2008 WL 878290 (S.D.N.Y. Mar. 26, 2008):Section 1104 [of ERISA] requires plans to be administered ?in accordance with the documents and instruments governing the plan.? As noted in McGowan, there is a Circuit split regarding whether administrators of an ERISA plan are required to recognize a beneficiary's waiver of his or her benefits in external documents...

Eighth Circuit Notes Intra-Circuit Split Re Appropriateness of Plain-Error Review in the Habeas Context

Posted on April 02, 2008
Per Chang v. Minnesota, --- F.3d ----, 2008 WL 850210 (8th Cir. Apr. 01, 2008):There appears to be a decisional split within our Circuit regarding the appropriateness of plain-error review in the habeas context. In James v. Bowersox, Chief Judge Loken wrote that ?we may not simply conduct our own plain error review de novo,? but must apply AEDPA (and, according to the Supreme Court in Fry, Brecht )...

D. Md. Notes Split Re Whether Incidents that Occur Outside of the Office Contribute to a Hostile Work Environment

Posted on March 26, 2008
Per Reed v. Airtran Airways, 531 F.Supp.2d 660 (D. Md. Jan. 22, 2008):The circuits are split on whether incidents that occur outside of the office contribute to a hostile work environment. See e.g., Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 510-11 (5th Cir...

D. Hawai'i Notes Split Re Whether Courts Have Jurisdiction to Enforce Private Employer Settlement Agreements Prior to EEOC Involvement

Posted on March 25, 2008
Per Munoz v. England, Slip Copy, 2008 WL 723596 (D. Hawai?i Mar. 18, 2008):The court recognizes the circuit split regarding whether courts have jurisdiction to enforce private employer (as opposed to federal agency) settlement agreements reached prior to EEOC involvement, i...

N.D. Cal. Notes Split Re Eighth Amendment Recognition of De Minimis Uses of Force against Prisoners

Posted on March 24, 2008
Per Sweets v. Contra Costa County Bd. of Supervisors, Slip Copy, 2008 WL 728551 (N.D. Cal. Mar. 17, 2008:Every malevolent touch by a prison guard does not give rise to a federal cause of action. The Eighth Amendment's prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition de minimis uses of physical force...

Sixth Circuit Weighs in on Split Re Whether 1991 Amendment to Sec. 1981 Created Action against State Actors

Posted on March 21, 2008
Per Arendale v. City of Memphis, --- F.3d ----, 2008 WL 731226 (6th Cir. Mar. 20, 2008):While § 1981 does not expressly afford a cause of action to private parties, the Supreme Court held in Runyon v. McCrary, 427 U.S. 160 (1976), that private defendants may be held liable under its provisions...

D. Mass Notes Split Re Whether Title II of ADA Extends to the Employment Context

Posted on March 19, 2008
Per Brown v. Massachusetts Office on Disability, Slip Copy, 2008 WL 687412 D. Mass. Mar. 07, 2008):Plaintiff next claims pursuant to Title II of the ADA, which provides in relevant part, ?no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity...

9th Circuit Notes Split Re Whether Illegally Seized Property Must Be Suppressed when It Is the Object of a Forfeiture

Posted on March 14, 2008
Per U.S. v. $493,850.00 in U.S. Currency, --- F.3d ----, 2008 WL 659574 (9th Cir. Mar. 13, 2008):We note that circuit courts are split on the issue whether and to what extent illegally seized property must be suppressed when it is the object of a forfeiture action...

M.D. Pa. Notes Intra-Circuit Split Re Amendment of a Judgment to Account for Negative Tax Consequences of Front or Back Pay Award

Posted on March 11, 2008
Per E.E.O.C. v. Federal Express Corp., --- F.Supp.2d ----, 2005 WL 6073699 (M.D. Pa. Jan. 18, 2005):No decision of the Third Circuit authorizes the amendment of a judgment to account for negative tax consequences that result from a lump sum award of front or back pay...

Eleventh Circuit Mentions Split Re Liquidated Damages Issue in FLSA

Posted on March 07, 2008
Per Rodriguez v. Farm Stores Grocery, Inc., --- F.3d ----, 2008 WL 601845 (11th Cir. Mar. 06, 2008):The parties cite the decisions of three circuits showing a clear split over whether the standards for finding willfulness and for finding the absence of good faith are the same so that the jury's finding on the former issue controls the judge's finding on the latter one...

D. Hawai'i Notes Split Re Statute of Limitations Applicable to IDEA Attorney's Fees Actions

Posted on March 05, 2008
Per Brandon E. v. Department of Educ., Slip Copy, 2008 WL 563478 (D. Hawai?i Feb. 29, 2008):There is a circuit split regarding the appropriate state statute of limitations to apply to actions for attorney's fees under the IDEA. See Holmes v. Dep't of Educ...

D.N.J. Notes Split Re Ability to Pursue Benefits and Breach of Fiduciary Duty Claims Together under ERISA

Posted on February 26, 2008
Per DeVito v. Aetna, Inc., --- F.Supp.2d ----, 2008 WL 482847 (D.N.J. Feb. 25, 2008):There is a split among circuits and within this district as to the effect of Varity Corp. v. Howe, 516 U.S. 489, 515 (1996) and Great-West Life & Annuity Ins...

N.D. Olka. Briefly Notes Intra-Circuit Split Re Review of AEDPA Sufficiency-of-the-Evidence Issue

Posted on February 23, 2008
Per Veasman v. Mullin, Slip Copy, 2008 WL 450378 (N.D. Okla. Feb. 15, 2008):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)...

D. Colorado Notes Split Re Whether Sec. 1927 Authorizes Fee Awards agaisnt Law Firms

Posted on February 18, 2008
Per Medtronic Navigation, Inc. v. BrainLAB Medizinische Computersystems Gmbh,Slip Copy, 2008 WL 410413 (D. Colo. Feb. 12, 2008):There is a split of authority on the question of whether section 1927 authorizes fee awards against law firms. See Claiborne v...

Fifth Circuit Notes Split Pertaining to 5th Amendment Privilege against Self-Incrimination

Posted on February 12, 2008
Per U.S. v. Martinez-Larraga, --- F.3d ----, 2008 WL 324783 (5th Cir. Feb. 07, 2008):We also note that this court has not resolved, and there is a circuit split as to, whether the Fifth Amendment privilege against self-incrimination prohibits prosecution proof, as substantive evidence of guilt, of a nontestifying defendant's post-arrest, pre- Miranda warning silence not in response to custodial interrogation...

D. Mass Discusses Split Re Whether the Government Bears the Burden of Establishing a Defendant's Competency to Stand Trial

Posted on February 07, 2008
Per U.S. v. Patel, 524 F.Supp.2d 107 (D. Mass. Nov. 27, 2007):Surprisingly, a question arises regarding whether the Government bears the burden of establishing competency, or the defendant bears the burden of establishing incompetency. 18 U.S.C. § 4241 is silent on this point, noting only that the court must find by a preponderance of the evidence that the defendant is incompetent to stand trial...

10th Circuit Notes Intra-Circuit Split Re Whether, under AEDPA, a Sufficiency-of-the-Evidence Issue Is Reviewed as Legal or Factual Finding

Posted on February 05, 2008
Per Denson v. Wilson, Slip Copy, 2008 WL 281579 (N.D. Okla. Jan. 31, 2008):As stated above, a writ of habeas corpus will not be issued 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 ...

11th Circuit Weighs in on Split Re Impact of Jury's Finding on Limitations Period Question in an FLSA Case

Posted on January 31, 2008
Per Perez v. Sanford-Orlando Kennel Club, Inc., --- F.3d ----, 2008 WL 220070 (11th Cir. Jan. 29, 2008):We conclude, based on the reasoning and holdings of our Glenn and Castle decisions, that in an FLSA case a jury's finding in deciding the limitations period question that the employer acted willfully precludes the court from finding that the employer acted in good faith when it decides the liquidated damages question...

M.D. Fla. Notes Split Re Whether a Plaintiff Alleging Retaliation under ADA Has Right To Seek Compensatory and Punitive Damages and to Jury Trial

Posted on January 29, 2008
Per Rumler v. Department of Corrections, Florida, Slip Copy, 2008 WL 215699 (M.D. Fla. Jan. 24, 2008):[T]he Court must determine whether a plaintiff alleging retaliation under the ADA, arising from the plaintiff's employment, has the right to seek compensatory and punitive damages, and to request a trial by jury as to these issues...

Sixth Circuit Notes Split Re Whether 18 U.S.C. whether § 3583(i) Nevertheless Contains an Implicit Sworn-Facts Requirement

Posted on January 28, 2008
Per U.S. v. Madden, --- F.3d ----, 2008 WL 199540 (6th Cir. Jan. 25, 2008):At the outset, we note that the plain language of the statute does not require that a warrant or summons relating to a supervised-release violation be supported by probable cause...

S.D.N.Y. Discusses Split Re Meaning of ?Arise out of or Relate to? in the Context of a Personal Jurisdiction Analysis

Posted on January 24, 2008
Per Del Ponte v. Universal City Development Partners, Ltd., Slip Copy, 2008 WL 169358 (S.D.N.Y. Jan. 16, 2008):What does it mean for a cause of action to ?arise out of or relate to? a given defendant's conduct in a forum? As the Second Circuit has observed, there is little consensus on this issue...

Federal Circuit Discusses Split Re Appellate Jurisdiction over Dismissals Without Prejudice

Posted on January 23, 2008
Per Doe v. U.S., --- F.3d ----, 2008 WL 170188 (Fed. Cir. Jan. 22, 2008):[T]he government contends that the judgment is not final because the claims that were not dismissed for failure to state a claim were dismissed voluntarily and without prejudice...

Eighth Circuit Notes Split Re Whether Assistance to State or Local Authorities Can Be a Basis for the Govt's Filing of a Motion for Downward Departure

Posted on January 15, 2008
Per U.S. v. Fields, --- F.3d ----, 2008 WL 114850 (8th Cir. Jan. 14, 2008):We have not previously ruled on whether assistance to state or local authorities can be a basis for the government filing a motion under § 3553(e) or § 5K1.1. Other circuits have addressed this issue, however, and the result has been a circuit split...

E.D. Ark. Notes Split Re Authority to Award Attorney's Fees under Sec. 1988 After Dismissal of 1983 Claim for Lack of SMJ

Posted on January 14, 2008
Per U.S. ex rel Montgomery v. St. Edward Mercy Medical Center, Slip Copy, 2008 WL 110858 (E.D. Ark. Jan. 08, 2008):The Eighth Circuit, applying § 1988 in a lawsuit brought pursuant to 42 U.S.C. § 1983, concluded that the district court lacked the authority to award attorney's fees under § 1988 after it had dismissed the plaintiff's § 1983 claim for lack of subject matter jurisdiction...

W.D. Pa. Notes Split Re Exhaustion Requirement of Prison Litigation Reform Act

Posted on January 10, 2008
Per Burkhart v. Crawford County Correctional Facility, Slip Copy, 2008 WL 65600 (W.D. Pa. Jan. 04, 2008):The United States Court of Appeals for the Third Circuit has explicitly held that the exhaustion requirement of the PLRA includes a procedural default component, by analogizing it to the exhaustion doctrine (with its corollary procedural default component) in the habeas context...

Eleventh Circuit Discusses Split Re Standards Governing the Opening of Prisoners' Legal Mail

Posted on January 08, 2008
Per Al-Amin v. Smith, --- F.3d ----, 2008 WL 60018 (11th Cir. Jan. 07, 2008):Post- Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254 (1987), this Court has accorded ?wide-ranging? and ?substantial? deference to prisoner administrators in their execution of policies and practices that they consider necessary to preserve internal order and discipline and to maintain institutional security...

N.D. Fla. Notes Split Re Whether Guilty Plea Waives a Defendant's Claim under Brady

Posted on January 03, 2008
Per Wiggins v. McDonough Slip Copy, 2007 WL 457057 (N.D. Fla. Dec. 21, 2007):There is no Supreme Court law that clearly establishes whether a guilty plea waives a defendant's claim under Brady, and the Eleventh Circuit has not decided the issue, see United States v...

N.D. Ill. Notes Intracircuit Split Re whether the PSLRA Applies to Section 14(a) Exchange Act Cases

Posted on December 31, 2007
Per In re JPMorgan Chase & Co. Securities Litigation, Slip Copy, 2007 WL 4531794 (N.D. Ill. Dec. 18, 2007):Plaintiffs argue that (1) negligence is not a state of mind, and therefore does not require a pleading of particular facts to give strong inference, and (2) even if it were, the pleadings are sufficient...

D. Mass. Notes Split Re Whether Purchasing a Sponsored Link Associated with Another's Trademark Constitutes Lanham Act Trademark Use

Posted on December 28, 2007
Per Boston Duck Tours, LP v. Super Duck Tours, LLC, --- F.Supp.2d ----, 2007 WL 4465464 (D. Mass. Dec. 05, 2007):The question of whether purchasing a sponsored link associated with a plaintiff's trademark constitutes Lanham Act trademark use has not been addressed in this circuit...

D. South Dakota Notes Split Re Whether Dual Sovereign Doctrine Should Apply in the Sixth Amendment Context

Posted on December 26, 2007
Per U.S. v. Killeaney, Slip Copy, 2007 WL 4459348 (D.S.D. Dec. 17, 2007):The court notes the circuits are split as to whether the dual sovereign doctrine should apply in the Sixth Amendment right to counsel context. Of the circuits that have addressed the issue, three have applied the doctrine to the Sixth Amendment, two have declined to, and one chose not to address the issue...

Sixth Circuit Notes Split Re Appropriate Standard for Reviewing Supervised Release Revocation Sentences Post-Booker

Posted on December 21, 2007
Per U.S. v. Bolds, --- F.3d ----, 2007 WL 4440403 (6th Cir. Dec. 20, 2007):Post- Booker, the courts of appeals have struggled with the question of whether to continue to review supervised release revocation sentences under the ?plainly unreasonable? standard or to apply the Booker ?unreasonableness? review standard to such cases...

Fourth Circuit Weighs in on Split Re Meaning of Sentencing Guideline Provision

Posted on December 20, 2007
Per U.S. v. Delfino, --- F.3d ----, 2007 WL 4394412 (4th Cir. Dec. 18, 2007):The jury found the Delfinos guilty on all counts. At sentencing, the Delfinos argued that the tax loss contained in the presentence report was erroneous because it did not credit them with the deductions which they could have claimed had they filed their tax returns...

E.D. Cal. Notes Split Re Whether Title IX Subsumes a Claim under § 1983

Posted on December 18, 2007
Per Brust v. Regents of University of Cal., Slip Copy, 2007 WL 4365521 (E.D. Cal. Dec. 12, 2007): There is presently a split in circuit authority as to whether Title IX subsumes a claim under § 1983. Compare Fitzgerald v. Barnstable Sch. Comm., 504 F...

S.D. Ind. Notes Split Whether Title II of the Americans with Disabilities Act Applies to Employment

Posted on December 14, 2007
Per Canfield v. Isaacs, --- F.Supp.2d ----, 2007 WL 3333378 (N.D.Ind. Nov. 07, 2007):This case poses the interesting question of whether Title II of the Americans with Disabilities Act applies to employment. It is before the Court on a motion to dismiss...

E.D. Pa. Notes Split Re Applicability of Rule 11 in a Removal Case Where the Defendant Seeks Sanctions for the Filing of a State Court Complaint

Posted on December 12, 2007
Per Dieffenbach v. Cigna Corp., Slip Copy, 2007 WL 4275502 (E.D. Pa. Dec. 04, 2007):The question of the applicability of Rule 11 in a removal case where the defendant seeks sanctions for the filing of a state court complaint is an unresolved one in this circuit...

10th Circuit Notes Split Re How Court Determines Felon's Right to Possess Firearms upon Release from Parole or Imprisonment

Posted on December 10, 2007
Per U.S. v. Baker, --- F.3d ----, 2007 WL 4269055 (10th Cir. Dec. 6, 2007):In this Circuit, however, to determine whether state law expressly restricts a felon's right to possess firearms, we ?look to the whole of state law.? Burns, 934 F.2d at 1160 (consulting provisions of the Kansas criminal code to determine a felon's right to possess a firearm)...

Eleventh Circuit Weighs in on Split Re Holding of Rapanos v. U.S.

Posted on December 07, 2007
Per U.S. v. Robison, 505 F.3d 1208 (11th Cir. Oct. 24, 2007):The parties dispute what constitutes the governing definition of ?navigable waters? under Rapanos v. United States, ---U.S. ----, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). The defendants argue that only Justice Kennedy's concurrence (i...

SCOTUS Resolves Split Re Meaning of Armed Career Criminal Act Exception

Posted on December 05, 2007
Per Logan v. U.S., --- S.Ct. ----, 2007 WL 4232786 (Dec. 04, 2007):We granted certiorari, 549 U.S. ----, 127 S.Ct. 1251, 167 L.Ed.2d 72 (2007), to resolve a split among the Circuits as to whether § 921(a)(20)'s [of the Armed Career Criminal Act (ACCA)] exception for ?civil rights restored? should be interpreted to include civil rights retained at all times...

Fifth Circuit Discusses Split Re Is Whether 7 U.S.C. § 6912(e) Requires the Exhaustion of Administrative Remedies as a Prerequisite to Federal SMJ

Posted on December 03, 2007
Per Dawson Farms, LLC v. Farm Service Agency, 504 F.3d 592, (5th Cir. Oct. 16, 2007)The Eighth and Ninth Circuits have held that the 7 U.S.C. § 6912(e) exhaustion requirement is jurisprudential rather than jurisdictional in its effect. The Second Circuit's contrary view is that § 6912(e) is a prerequisite to a district court's subject matter jurisdiction in a person's suit against the Secretary, the USDA, or any of its agencies, officers or employees...

Federal Circuit Creates Split Re Reviewability of Remand Orders Based on Rejection of Supplemental Jurisdiction

Posted on November 28, 2007
Per U.S. Law Week Volume 76 Number 20, Tuesday, November 27, 2007:An order remanding a removed case in which the district court declined to exercise supplemental jurisdiction over state claims is not reviewable in federal appeals court, the U.S. Court of Appeals for the Federal Circuit held Nov...

Seventh Circuit Notes Split Re Whether there is a Due Process Right of an Adult Child to Associate with Parent

Posted on November 27, 2007
Per Struck v. Cook County Public Guardian, --- F.3d ----, 2007 WL 4145845 (7th Cir. Nov. 26, 2007):The plaintiff appeals from the dismissal of his suit, which the district court held was outside its jurisdiction. The complaint alleged that an Illinois state court had appointed a guardian for the plaintiff's mother because she was incompetent to manage her own affairs, and that the plaintiff had asked the court to revoke the guardianship because the guardian was abusing his mother, refusing to let him visit her, and denying him access to her records, mail, and assets...

Fourth Circuit Notes Split within the Ninth Circuit Re whether the FLSA Preempts Duplicative State Law Claims

Posted on November 20, 2007
Per Anderson v. Sara Lee Corp., --- F.3d ----, 2007 WL 4098229 (4th Cir. Nov. 19, 2007):The Ninth Circuit has suggested, without deciding, that ?[c]laims that are directly covered by the FLSA (such as overtime and retaliation disputes) must be brought under the FLSA...

4th Circuit Notes Split Re Effect of Statutory Provisions Authorizing Recidivism-Based Sentencing Enhancements

Posted on November 16, 2007
Per UNITED STATES v. WILLIAMS, --- F.3d ----, 2007 WL 3379689 (4th Cir. Nov. 15, 2007):In Baseem Shakir Williams, we did not consider the effect of statutory provisions authorizing sentencing enhancements based solely on recidivism in determining the maximum sentence prescribed by law for a predicate offense...

Sixth Circuit Notes Split Re Interpretation of Tax Reform Act of 1986

Posted on November 13, 2007
Per Estate of Gerson v. C.I.R.,--- F.3d ----, 2007 WL 3307024 (6th Cir. Nov. 09, 2007):The Code defines ?generation-skipping transfer? to include ?(1) a taxable distribution, (2) a taxable termination, and (3) a direct skip.? I.R.C. § 2611(a). In this case the facts evidence a direct skip, ?a transfer subject to a tax imposed by chapter 11 or 12 of an interest in property to a skip person...

Fifth Circuit Notes Split Re whether § 1997e(e) Bars Recovery for Nominal and Punitive Damages

Posted on November 12, 2007
Per Brown v. Sudduth, Slip Copy, 2007 WL 3283777 (5th Cir. Nov. 7, 2007):This court has not addressed the issue of whether § 1997e(e) bars a claim for nominal and punitive damages absent an allegation of physical injury. We need not do so today because the issue of damages is premature given that there has been no determination of whether Brown has even suffered a constitutional violation in the first place...

Fourth Circuit Weighs in on Split Re Meaning of Lopez-Mendoza the "Identity Statement"

Posted on November 09, 2007
Per UNITED STATES v. RAUL MESA OSCAR-TORRES, --- F.3d ----, 2007 WL 3293266 (4th Cir. Nov. 08, 2007):The meaning of the Lopez-Mendoza ?identity statement? has bedeviled and divided our sister circuits. Compare United States v. Olivares-Rangel, 458 F.3d 1104, 1106 (10th Cir...

S.D. Texas Notes Split Re the Meaning of "Full and Fair Review" Under ERISA Regulations

Posted on November 08, 2007
Per Boldt v. Dow Chemical Co. Voluntary Group Acc. Ins. Plan, Slip Copy, 2007 WL 2329873 (S.D. Tex. Aug 15, 2007) (NO. 6:06-CV-25):The Eighth Circuit found one of the core requirements of "full and fair review" is providing the claimant an opportunity to engage in "meaningful dialogue" with the administrator...