Federal Judiciary

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...

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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...

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