Federal Judiciary

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...

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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...

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