Federal Judiciary

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...

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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...

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