Federal Judiciary

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

Posted on February 02, 2011
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...

W.D. Tex. Notes Split Re AEDPA Provision

Posted on January 24, 2011
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...

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

Posted on January 21, 2011
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...

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

Posted on January 20, 2011
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...

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Eighth Circuit Notes Split Re Whether Lanham Act Requires Willful Infringement

Posted on January 07, 2011
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...

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

Posted on November 29, 2010
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...

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

Posted on October 24, 2010
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...

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

Posted on October 13, 2010
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...

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

Posted on September 08, 2010
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...

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

Posted on August 30, 2010
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 ...

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

Posted on August 10, 2010
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...

SCOTUS Resovles One Split on Regarding SORNA and Dodges Another

Posted on June 03, 2010
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...

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

Posted on April 29, 2010
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...

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

Posted on March 03, 2010
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...

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

Posted on February 22, 2010
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...

D. Mass Notes Split Re Constitutionality of Adam Walsh Act

Posted on December 09, 2009
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...

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...

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...

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