Federal Judiciary

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...

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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...

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