January 31, 2024
Roe v. St. John University (No. 21-1125, 2024 BL 30956, 2024 Us App Lexis 2114 (2d Cir.)
- Broad case issue: Whether there was a well pleaded complaint of a Title IX violation
- Split Issue: Can allegations of an erroneous conclusion and flawed procedures support a claim of sex bias under Title IX of the 1972 Education Amendments?
- Split:
- Holding: The court affirmed the district court's rejection of Roe's erroneous outcome and selective enforcement theories of discrimination. While Roe has alleged a few significant facts that do indeed weigh in favor of his claims, his allegations as a whole are not sufficient to plausibly support a minimal inference of sex-based discrimination.
- Does the holding create a new split or deepen an already existing split?:
January 12, 2024
Young Israel of Tampa, Inc v. Hillsborough Area Reg’l Transit Auth. (1//24)
: 11th.
- Broad case issue: 1st Am. speech/religion issue analysis.
- Split Issue: whether a government prohibition against ads on buses that “primarily promote a religious faith or religious organization” is viewpoint discrimination that violates the First Amendment.
- Split:
- look at the nature of the forum before addressing the nature of the restriction, which can be deemed a permissible content restriction in a non-public forum.
- analyzes the viewpoint discrimination issue without first looking at the nature of the forum.
- Holding: 11th Circuit "refused to join the split, instead basing its holding on the district court’s alternative ruling that the policy isn’t workable and its enforcement haphazard.” Via Bloomberg News article
- Does the holding create a new split or deepen an already existing split?: Does not engage in split.
- Any additional information that you think would make this case a good case for ELSSCAP to take on?:
- This is not a new split/11th circuit joining a split, but an interesting split to note
- Link: Link to case in Bloomberg
January 11, 2024
Citation: Hunt Refin. Co. v. EPA, 90 F.4th 1104 (11th Cir. 2024).
- Circuit: 11th
- Broad Case Issue: Whether the case before the 11th circuit should be dmissed or transferred to the D.C. Circuit.
- Split Issue: Were the EPA denials of Hunt Refining Co’s 2022 requests for hardship exemptions from the Clean Air Act’s production requirements nationally applicable and therefore could be challenged only in the D.C. Circuit?
- Split
- Deniedal actions were nationally applicable and could only be challenged in the DC circuit
- The challenged actions were locally or regionally applicable and not based on a determination of nationwide scope or effect.
- Holding: April and June 2022 EPA decisions in this case were nationally applicable and may be challenged only in the D.C. Circuit. Even if they were only locally or regionally applicable, they were based on a determination of nationwide scope or effect because they announced a new, universally applicable approach to evaluating hardship petitions, and the EPA published a finding to that effect.
- Link
Vision Warriors Church, Inc. v. Cherokee Cnty Bd. of Comm’rs
- Circuit: 11th
- Broad case issue
- Split issue: What is needed to show a substantial burden on the religious use of property that violates the Religious Land Use and Institutionalized Persons Act?
- Split
- Modified behavior will suffice to show a substantial burden if its the result of government coercion or pressure
- Requires a showing that the restriction was absolute
December 20, 2023
Citation United States v Esteras (not reported)
- Circuit: 6th
- Broad case issue: When revoking supervised release, should a court consider unenumerated sentencing factors (punishment)>
- Split Issue: The 6th circuit has precedent from Lewis that says yes, consider unenumerated sentencing factors
- Split:
- Yes, consider unenumerated sentencing factors
- 10th, 9th, 3rd, 5th, 4th, 7th
- Do not consider unenumerated sentencing factors
Dec. 21, 2023
Citation United States v Jackson (not reported)
- Circuit: 6th
- Broad case issue: Jackson appeals (again) to ask if carjacking is a crime under §924(c) and whether the district court should have applied the First Step Act’s revised penalties (§403)
- Split Issue: when should the revised penalties of §403 be applied?
- Split:
- 4th, 9th, 3rd, 2nd, the government
- Ds sentenced before Dec. 21, 2018 gets §403 applied
- Decide issue directly
- Would not grant an appeal to Jackson
December 18, 2023
United States v. Tovar, 88 F.4th 720 (7th Cir. 2023)
- Circuit: Seventh
- Broad case issue: Defendant/Tovar sold cocaine and was arrested by police a month later. Upon searching the defendant’s house, police found a pistol, ammunition, $33,500, marijuana, cocaine, two drug scales, and powder. The defendant pleaded guilty, admitting that he sold cocaine and possessed drugs and a firearm in his house. Later, the defendant filed two pro se motions to withdraw his guilty plea for possession of a firearm in furtherance of a drug trafficking crime. The district court denied both motions. A few months after that, the defendant filed a motion once again withdrawing his guilty plea and requesting an evidentiary hearing. The defendant argued that his possession of the firearm was legal. The district court denied the evidentiary hearing on the ground that the prior Rule 11 hearing was adequate and the evidence the defendant provided was inadequate in showing a need for the evidentiary hearing. The defendant was convicted and the defendant appealed, challenging the district court’s calculation of the guidelines sentence. In his appeal, the defendant argued he could not be subjected to the “controlled substance offense” enhancement because Illinois’s definition of cannabis is broader than the federal definition of marijuana under the federal Controlled Substances Act. The district court held that the defendant’s prior cannabis conviction sufficed to convict the defendant for the present conduct with the “controlled substance offense” enhancement.
- Split Issue: whether a “controlled substance” refers only to substances banned under the federal Controlled Substances Act?
- Split:
- Second, Fifth, Eight, and Ninth Circuits hold that “controlled substance” means the federal definition under the Act. These Circuits argue that Congress would have made it clear if it wanted states to consider its own criminal law in the application of the federal law.
- Sixth, Seventh, and Eleventh Circuits hold that “controlled substance” can go beyond the federal definition under the Act. These Circuits argue that Congress is aware of the variations present in state criminal law.
- Holding: The court held that no, a “controlled substance” can refer to substances beyond the Act. In United States v. Ruth (7th Cir. 2020), the court held that “controlled substance offense” includes “state-law offenses related to controlled substances,” and because Illinois regulates cannabis, then cannabis falls under the “controlled substance offense” enhancement. The court continues to uphold Ruth despite numerous requests to overturn it and the circuit split. The court affirmed in favor of the United States/the plaintiff.
- Does the holding create a new split or deepen an already existing split?:
- Deepens an already existing split because the court maintains the validity of United States v. Ruth.
- Any additional information that you think would make this case a good case for ELSSCAP to take on?:
- I think this could be an interesting case for ELSSCAP to monitor. It is interesting seeing how different circuits determine what “controlled substance offense” means, but I think there are other cases that are more interesting beyond statutory interpretation.
December 14, 2023
Wilson v. Midland Cty., 89 F.4th 446 (5th Cir. 2023). (Decided Dec. 14, 2023)
No. 22-50998, 2023 BL 454417
- Circuit: 5th
- Broad case issue: Plaintiff sued under 42 USC § 1983 alleging ADA's dual role as both prosecutor and law clerk for the judge denied P due process. P had not satisfied Heck's "favorable termination" requirement, because no longer in custody and unable to file a federal habeas petition, because P didn't learn of ADA's conflict at issue until after P had served her entire sentence.
- Split Issue: Whether Heck's "favorable-determination" rule, which bars a convicted party from seeking § 1983 damages for unconstitutional conviction/imprisonment unless party can show the conviction/sentence has been declared invalid.
- Split: Do noncustodial plaintiffs have to comply with Heck's favorable-termination requirement (requiring sentence/conviction be reversed, declared invalid, or questioned by federal court's issuance of a writ of habeas corpus) in order to have a cognizable §1983 claim?
- 2nd, 4th, 6th, 9th, 10th, 11th
- Holding: "as Wilson has not shown favorable termination, her § 1983 suit cannot proceed. Only the en banc court (or the Supreme Court given the entrenched circuit split) can decide whether Randell's expansive reading of Heck subverts § 1983's broad textual command." Wilson v. Midland Cty., 89 F.4th 446 (5th Cir. 2023)
- Does the holding create a new split or deepen an already existing split?: Deepens- nudges SCOTUS to resolve.
- Any additional information that you think would make this case a good case for ELSSCAP to take on?: Court's acknowledgment of unjustness of case outcome and frustration with SCOTUS' confusing direction on this issue might make worth following to see if any of the other minority-rule circuits express similar frustration/coax SCOTUS to address the split.
- Link: Lexis doc. Bloomberg News article covering case.
December 13, 2023
Lapham v. Walgreen Co, 88 F.4th 879 (11th Cir. 2023).
- Circuit: 11th
- Broad case issue: Standards for showing employer retaliation sufficient to qualify for relief under FMLA § .
- Split Issue: What burden of proof must a claimant meet to show employer termination was retaliation sufficient to qualify for relief under FMLA.
- Split: Bloomberg Article: “By ruling that but-for causation is the proper standard needed to prove FMLA retaliation, the Eleventh Circuit imposed a higher threshold than motivating factor, which some other courts use” creating Cir. Split.
- "But-for" causation standard applies to FMLA retaliation claims. Considers only 29 USC § 2615(a)(2) as exclusive retaliation provision of FMLA.
- Motivating factor required to show retaliation sufficient to sustain an FMLA claim. Consider FMLA's § 2615(a)(1) as alternative retaliation provision ("may be a better fit, depending on the circumstances of the case.")
- Holding: Claimants must meet a "but-for" causation standard to show retaliation sufficient for relief under FMLA.
- Does the holding create a new split or deepen an already existing split?: Creates new split.
- Any additional information that you think would make this case a good case for ELSSCAP to take on?:
- Link: Bloomberg case link
December 5, 2023
Bielski v. Coinbase, 87 F.4th 1003 (9th Cir. 2023).
December 13, 2023
United States v. Kemp, 88 F.4th 539 (4th Cir. 2023).
November 28, 2023
Sargeant v. Barfield, 87 F.4th 358 (7th Cir. 2023)
- Circuit: Seventh
- Broad case issue: Plaintiff/Sargeant is a federal prisoner who underwent retaliatory acts by Barfield/defendant, who is the plaintiff’s case manager that monitors the plaintiff’s progress. Plaintiff filed a grievance against a prison official, who found out about the grievance, so the plaintiff notified the defendant that the prison official should not have known about the grievance. The defendant was annoyed and told other prison officials about the plaintiff’s grievance. This prompted the plaintiff to file a grievance against the defendant. The defendant retaliated by putting the plaintiff in cells with violent prisoners. The plaintiff alleged that this violated prison policy because the plaintiff had a non-active protective custody status, yet was housed with active prisoners. The plaintiff sued for monetary damages, alleging that the defendant’s retaliatory acts stemmed from the grievance plaintiff filed, and therefore violated the plaintiff’s 1st Amendment rights. The defendant moved to dismiss under the Bivens doctrine, which establishes that a federal prisoner cannot recover damages from a 1st Amendment violation. The lower court dismissed the complaint. The plaintiff appealed, arguing not a 1st Amendment violation but instead an 8th Amendment violation, specifically alleging the defendant failed to protect him from other prisoners and that this claim survives the Bivens doctrine. The defendant argues that the failure-to-protect claim is not an exception to the Bivens doctrine.
- Split Issue: whether the 8th Amendment claim for failure to protect arises in an existing Bivens context?
- Split: whether Farmer v. Brennan (the Court assumed there was a Bivens remedy, but never held such) creates a new context?
- Fourth Circuit holds that Farmer does not create a new context because it does not believe the Supreme Court would create a new context, and ultimately binding precedent, via a silent assumption in an opinion.
- Third Circuit holds that Farmer does create a new context.
- Holding: The Seventh Circuit joined the Fourth Circuit, on the ground that the Supreme Court cautions against implying new remedies. The Seventh Circuit fears that allowing a remedy based on a silent assumption would create chaos by enabling litigants to assert remedies based on silent assumptions in other opinions. The Seventh Circuit also reasons that Farmer has not been recently cited by the Supreme Court in regard to cases concerning Bivens. The Court holds that there is no Bivens context for the claim the plaintiff is asserting. The plaintiff resorts to asserting his claim against a recognized Bivens precedent. The Court ultimately affirms in favor of the defendant, after finding that the plaintiff’s claim is not accounted for by any Bivens precedent and involves separation of powers concerns.
- Does the holding create a new split or deepen an already existing split?:
- Deepens an already existing split because the Seventh Circuit joins the Fourth Circuit.
- Any additional information that you think would make this case a good case for ELSSCAP to take on?:
- I think this could be an interesting case to monitor. There are only three circuits involved in this split, however, so I would suggest that ELSSCAP continues to merely monitor this case.
November 27, 2023
Kravitz v. Purcell, 87 F.4th 111 (2d Cir. 2023)
- Circuit: Second
- Broad case issue: Kravitz, who was formerly incarcerated, brought claims against the officers of Downstate Correctional Facility for violating his First Amendment RIght to the free exercise of religion when they prevented him from observing the Jewish holiday of Shavuot on two consecutive evenings. The District Court granted summary judgment because some of the officers named in the complaint were not personally involved in the alleged violation and because Kravitz’s observance of the second night of the holiday was only shortened, not denied, which did not rise to the level of a “substantial burden” on his religious beliefs
- Split Issue: Must an inmate claiming that a prison violated his FIrst Amendment right to freely exercise his religion show that the policy imposes a substantial burden on his religious practice?
- Split:
- Second, Third, Fifth, Ninth:
- No longer apply the substantial burden test.
- Fourth, Eighth, Tenth, DC:
- Still apply the substantial burden test.
- Holding: Vacate the judgment insofar as the district court granted summary judgment because of a purported “substantial burden” requirement.
- Does the holding create a new split or deepen an already existing split?:
USA v. Yun Zheng (6th Cir. 2023).
November 21, 2023
United States v. Carter, 87 F.4th 217 (4th Cir. 2023)
- Circuit: 4th
- Broad case issue: 5th Amendment; sentencing guidelines
- Split Issue: Whether naming (or failing to name) an accomplice can be used as a sentencing determination
- Split:
- These circuits say that if a defendant fails or refuses to implicate others, enforcing a stricter punishment is a violation of the 5th Amendment.
- This circuit does not believe it violates the 5th Amendment
November 20, 2023
Ark. State Conf. NAACP v. Ark. Bd. of Apportionment, 86 F.4th 1204 (8th Cir 2023).
Wiggins v. Griffin (2d Cir. 2023).
November 16, 2023
Jose Martinez v. Merrick Garland (4th Cir. 2023)?
November 14, 2023
Cunningham v. Cornell Univ. 86 F.4th 961 (2d Cir. 2023).
Cunningham v. Cornell Univ., 86 F.4th 961 (2d Cir. 2023)
- Broad case issue: Employee Benefits - Whether university pension plans were being improperly managed under the Employee Retirement Income Security
- Split Issue: Must a prohibited transaction claim under the Employee Retirement Income Security Act that is based on money paid to a retirement plan service provider include allegations that the services were unnecessary or that the compensation was unreasonable?
- Split:
- Second vs. Third, Seventh, Tenth vs. Eighth, Ninth
- Second: the allegations must
- This is the most narrow reading
- complaint must plausibly allege that a fiduciary has caused the plan to engage in a transaction that constitutes the "furnishing of . . . services . . . between the plan and a party in interest" where that transaction was unnecessary or involved unreasonable compensation.”
- Third, Seventh, and Tenth: have declined to apply ERISA’s prohibited transaction rules to cast doubt on routine retirement plan service contracts, but the
- Eighth and Ninth: allow plan participants to challenge these arrangements under the rules
- The other circuits have said this reading is too broad, would force the defendant to have to explain the reasonableness of every service provider
- Holding: The Second Circuit holds that a plaintiff suing their employer under a violation of the ERISA must plausibly allege that the fiduciary has caused the plan to engage in a service where the transaction was unnecessary or involved unreasonable compensation
- Does the holding create a new split or deepen an already existing split?:
- This deepens a preexisting split, but the Second Circuit takes an even firmer stance
October 31, 2023
EC v. Govil, No. 22-1658, 2023 BL 389396 (2d Cir. Oct. 31, 2023)
- When a defendant engaged in several fraudulent securities offerings and agreed to pay back the proceeds, can the court authorize additional disgorgement?
- Fifth Circuit: Fifth circuit held that 78u(d)(7) “authorizes disgorgement in a legal- not equitable- sense” meaning that disgorgement under this statute is not limited by the equitable principles recognized in Lui but follows the standards the fed courts developed before Hiu.
- Second Circuit: In a previous case the second circuit the court concluded that the word disgorgement along with unjust enrichment refers to a remedy grounded in equity and must be deemed to contain the limitations upon its availability that equity typically imposes.
- Holding: he disgorgement remedies under § 78u(d)(5) and § 78u(d)(7) are subject to the "traditional equitable limitations" that the Supreme Court recognized in Liu v. SEC
- Does the holding create a new split or deepen an already existing split?
- Doesn’t really do either. The second circuit acknowledged that they had already created a split and reaffirmed their position on the matter.
- Any additional information that you think would make this case a good case for ELSSCAP to take on?:
- Unless other courts address this issue, not new enough to take on as a case.
October 22, 2023
Stanley v. City of Sanford, FL (filed 10/11/23- not yet published?) 11th Cir., No. 22-10002, 10/11/23
- Plaintiff former firefighter (who served about 17 years, including 2 years after receiving a Parkinson's disease diagnosis) took disability retirement in 2018. When the firefighter joined the Department, policy provided that employees retiring due to a qualifying disability were entitled to receive subsidized, long-term health insurance until age 65. The city changed that policy (unbeknownst to this plaintiff) during her employment, shortening the duration of such subsidized health insurance to two years after an employee's retirement. Plaintiff filed suit alleging the shortened policy discriminated against her as a disabled retiree in violation of (in relevant part) ADA's Title I. District court dismissed. This appellate court affirms that decision.
- whether, under ADA (Americans with Disabilities Act) Title I, former employees can sue for discrimination in post-employment distribution of fringe benefits earned during their employment.
- Whether Robinson v Shell Oil Co (SCOTUS, 1997), which had held the term "employees," as used in § 704(a) of Title VII does include former employees (therefore petitioner could sue Shell for its allegedly retaliatory postemployment actions), applies in the context of the ACA (Title I).
- No. Robinson does not implicate Title I, and Title I does not protect plaintiffs who neither held nor sought a job with the defendant at the time of the alleged discrimination.
- Yes. Title I's anti-discrimination statute is ambiguous and its definition of "employee" incorporates by reference the same definition of "employee" under Title VII (which Robinson held includes former employees).
- "A Title I plaintiff must 'hold or desire' an employment position with the defendant at the time of the defendant's allegedly wrongful act." Robinson holding is consistent with existing 11th Cir. precedent (Gonzales) on Title VII’s anti-retaliation protections.
- Does the holding create a new split or deepen an already existing split?:
- Any additional information that you think would make this case a good case for ELSSCAP to take on?:
- Link:
October 18, 2023
United States v. Montague, 2023 BL 370626, 2023 Us App Lexis 27642 (2d Cir. 2023).
- There was a disposition on May 9, 2023. They requested a rehearing en banc, and were denied. The dissent argues why the case should be reheard due to the presence of a circuit split.
- Does an indictment for a crime with predicate offenses as necessary elements require any factual detail regarding those predicate offenses?
- 3rd Circuit: “an indictment must include the facts and circumstances comprising at least three [offenses[, but… the CCE count itself need not identify with exacting specificity which three will ultimately prove the CCE charge.”
- 2nd Circuit: Citing a statute in an indictment cannot substitute a factual element except when charging a CCE
- Denied rehearing En Banc leaving the split.
- Does the holding create a new split or deepen an already existing split?:
- Any additional information that you think would make this case a good case for ELSSCAP to take on?:
- Since this is not the original case, I don’t it makes sense to take on, but the underlying case may be interesting and it may be fun to keep an eye on.
October 11, 2023
United States v. Pate, _F.4th_ (11th Cir. 2023)
- Pate, after filing liens on properties owned by people (including a former Commissioner of the IRS & a former Secretary of the Treasury) he “thought had wronged him,” was convicted for “violating 18 U.S.C. § 1521, which criminalizes the filing of retaliatory liens against the property of ‘an individual described in’ 18 U.S.C. § 1114, which, in turn, refers to ‘any officer or employee of the United States.’”
- Whether “official” as used in § 1114 applies to retired officials. Majority in this opinion denies a split with the 10th Cir. noting, of the 2 cases there that address this issue, one was not published, and the other (Martin) is distinguished:
- “Martin addressed threats made against a local policeman who had been deputized to participate in an FBI investigation at ‘the time the charged conduct occurred’—i.e., at the time he was threatened. 163 F.3d at 1215. To the extent that the panel there addressed the former-employee issue at all, it did so only in the ‘alternative[],’ only in connection with the policeman's ‘assist[ance]’ of federal officials (which, as we have explained, may present a different interpretive question, see supra note 3), and only by rote citation to Raymer. See id.” Pate, n.4.
- No. Relies on “plain meaning” of the text.
- Rejects 5th Circuit’s determination otherwise:
- “the Fifth Circuit [in 1989 decision Raymer, in which it addressed the Q of whether § 1114 applied to retired probation officers] relied heavily on what it took to be § 1114's ‘obvious purpose,’ but purposes, obvious or otherwise, provide no basis for skirting a statute's plain language.” Pate at 21.
- Say what side of the split these Circuits are on.
- Vacated Pate’s convictions under 18 U.S.C.S. § 1521 (pertaining to the liens filed against the former Commissioner of the IRS and the former Secretary of the U.S. Treasury) & remanded for resentencing.
- Does the holding create a new split or deepen an already existing split?: Further research required: did federal statute passed after 5th Circuit decision (at odds with 11th Cir. decision here) codify that 5th Cir ruling? May create a split with 5th Circuit. Majority here contends it does not create a split with 10th Circuit.
- Any additional information that you think would make this case a good case for ELSSCAP to take on?: Not really, but noting here in case things change:
- NY Sun journalist suggests this ruling “that a former official is not treated like a current one […] could be bad news for former president [Trump]” as the first two defendants go to trial in his GA racketeering case.
- (Emory ConLaw Prof. Volokh-founded) The Volokh Conspiracy blog describes case as:
- Textualism fight at the Eleventh Circuit, where the whole damn banc is divided on whether "any officer or employee of the United States" includes former officers and employees. Nine judges say no, which is good news for Timothy Pate, a/k/a Akenaten Ali, the self-described "heir to the kingdom of Morrocco," who was convicted of filing retaliatory liens against property owned by a former Commissioner of the IRS and a former Secretary of the Treasury after the IRS refused to refund him $2.7 million in taxes in 2015. (His Highness reported no wages or salary.)
September 28, 2023
United States v. Pérez-Greaux, No. 21-1699, 2023 BL 343302 (1st Cir. 2023).
- Does the government need to prove that a defendant, convicted of using a machine gun in connection with a drug offense under 18 U.S.C. § 924 (c)(1)(B)(ii), knew that the weapon was a machine gun or had the characteristics of a machine gun? Was the jury instructed erroneously regarding the defendant’s knowledge of the firearm possessing characteristics of a machine gun? Did the district court err in evidentiary proceedings such that the defendant did not get a fair trial?
- Did Congress intend to make a conviction for possession of a firearm under 18 U.S.C. § 924 (c)(1)(B)(ii) a strict liability crime?
- Congress did not intend to make 18 U.S.C. § 924 (c)(1)(B)(ii) a strict liability crime.
- The plain text of the statute is silent as to mens rea. However, the presumption in favor of scienter applies even when there is no explicit language about mens rea in the statute text.
- There is no legislative history or statutory structure to aid the court in its analysis, so they turn to the Supreme Court’s treatment of mens rea.
- The First Circuit bases its decision on the Supreme Court’s case law and the principles of proportionality that underlie the Supreme Court’s analysis of mens rea requirements.
- Case law establishes that there is a presumption for mens rea underlying federal criminal statutes. The court has drawn a line between applying mens rea to the elements of a crime and the sentencing. The Supreme Court’s prior decisions indicate that mens rea applies to the elements of an offense, not to sentencing factors.
- There is no indication from Congress that they meant to dispense with mens rea here, so the presumption in favor of scienter and the principle of proportionality are relevant.
- The Eleventh and D.C. Circuits decided based on their own precedent, to which the First Circuit is not bound.
- These circuits conclude that Congress intended the statute, 18 U.S.C. § 924 (c)(1)(B)(ii), to be a strict liability crime. As a result, the government does not have to prove that the defendant knew that the firearm had the characteristics of a machine gun or that it was a machine gun.
- The government needs to prove that the defendant knows that the firearm had the characteristics of a machine gun, as 18 U.S.C. § 924 (c)(1)(B)(ii) is subject to the mens rea presumption.
- Does the holding create a new split or deepen an already existing split?:
- This creates a new split.
- Any additional information that you think would make this case a good case for ELSSCAP to take on?:
- The Supreme Court addressed the statute, but not this issue, in Dean v. United States, 556 U.S. 568 , 129 S. Ct. 1849 , 173 L. Ed. 2d 785 (2009) and United States v. O’Brien, 560 U.S. 218, 222 130 S. Ct. 2169, 176 L. Ed. 2d 979 (2010).
- The First Circuit uses SCOTUS’s treatment of mens rea in its analysis of the issue here, in the absence of language in the statute’s plain text, legislative history, or statutory structure that aids them.
September 25, 2023
Ronnie v. Off. Depot, LLC, No. 20-14214, 2023 BL 335735 (11th Cir. 2023)
- Petitioner employee filed a complaint with the Department of Labor alleging his employer violated the Sarbanes-Oxley Act (SOX), 18 U.S.C.S. § 1514A(a)(1), which protects whistleblower employees of publicly traded companies from employer retaliation. The Administrative Review Board upheld an administrative law judge (ALJ) decision granting the employer's motion for summary judgment, which the employee appealed to the 11th Circuit. Under the APA (Administrative Procedure Act), the appellate court will only overturn an Administrative Review Board (ARB) decision if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. This court found ARB's decision did not meet such requirements because petitioner failed to allege facts sufficient to establish that a reasonable person with petitioner's training and experience would believe the employer's data error constituted a violation of the Act. Denied petition for review of motion for summary judgment.
- For an employee to establish she engaged in protected activity, as required under SOX, what evidence is necessary to show the reasonableness of that employee's belief that her employer's conduct constituted fraud?
- Apply a “totality of the circumstances” test, requiring the plaintiff to show that a reasonable person, with similar training and experience and under the same circumstances, would believe the employer's actions were misconduct constituting a violation of fraud laws under SOX.
- Do not require plaintiffs present evidence "sufficient to form an objectively reasonable belief of fraud." Ronnie v. Office Depot, LLC, 30 Fla. L. Weekly Fed. C 215 (U.S. 11th Cir. 2023).
- 11th Cir. sides with 2nd and 4th Circuits holding employees must meet a "totality of the circumstances" test in order to sustain a complaint against a publicly-traded company employer under SOX. The court lists "relevant" factors for consideration in this test: employer's "requisite scienter [in misconduct], whether employer's misstatement was material, whether the misstatement was relied upon, and whether it yielded economic loss." Ronnie v. Office Depot, LLC, 30 Fla. L. Weekly Fed. C 215 (U.S. 11th Cir. 2023).
- Does the holding create a new split or deepen an already existing split?:
- Any additional information that you think would make this case a good case for ELSSCAP to take on?:
- Link: https://www.bloomberglaw.com/document/X1RNNRMQ0000N?
Sept. 22, 2023
United States v. Kousisis, No. 19-3679, 2023 BL 333897 (3d Cir. 2023)
- Two business entities, Stamatios Kouisis and Alpha Painting & Construction co., were indicted on conspiracy to commit fraud, three counts of wire fraud. Federal regulations have allocated a number of funds to disadvantaged business enterprises (DBE) programs in order to raise participation for these entities in construction products. Both businesses, who did not meet DBE requirements, misrepresented a DBE pre-qualified business’ involvement in a project to obtain federal funding. The government benefits rule refers to a determination for how damages should be rewarded in fraudulent contractual issues. The case was brought to the circuit court of appeals to determine whether the rule, defined in the Federal Sentencing Guidelines, which typically included “grants, loans [and] entitlement payment programs,” also extends to DBE programs.
- Whether the government benefits rule extends to fraud in DBE (disadvantaged business enterprises) programs
- Fourth, Seventh, Eleventh
- The government benefits rule does apply to fraud in DBE programs.
- Third, Fifth, Sixth, Ninth
- The government benefits rule does not apply in this case, because the DBE programs differ from the ones laid out by the Federal Sentencing Guidelines.
- Sides with third, fifth, sixth, and ninth districts in holding that these DBE programs were different from the examples (grants, loans, etc.) provided in the federal sentencing guidelines. However, they uphold the district court’s jury instructions and convictions of conspiracy to commit fraud.
- Does the holding create a new split or deepen an already existing split?:
- Deepens an already existing split
September 20, 2023
United States v. Hunt No. 21-3020, 2023 BL 330205, 2023 Us App Lexis 24871, 2023 WL 6133211 (2d Cir. 2023)
- Defendant threatened prominent elected officials in several posts on various social media platforms. In one of those posts, a video published on the website BitChute, Hunt urged viewers to "slaughter" members of the U.S. Congress and stated that he would go to the Capitol himself to "take out these Senators and then replace them with actual patriots." Based on this video, a jury convicted Hunt of one count of threatening to assault and murder members of Congress in violation of 18 U.S.C. § 115(a)(1)(B) . He appeals arguing insufficient evidence, error in jury instructions, covid courtroom procedures violated his 6th amendment rights, and misapplication of the perjury enhancement.
- Does the constitutional fact doctrine, which requires courts to independently examine the facts when they decide constitutional claims, apply to true threat determinations in free speech cases?
- The Second Circuit joins the Tenth Circuit, saying no.
- The Fourth and Ninth circuits say yes.
- The Sixth, Seventh, and Eighth circuits have deferred to juries in the true threat context without explicitly discussing the doctrine.
- “We therefore conclude that the true threat determination involves no legal principles warranting independent review of the jury's conclusion. This holding aligns with our well-established view that "whether words used are a true threat" is "a question of fact" for the jury to which we defer.” Affirmed the district court judgment.
- Does this holding create a new split or deepen an already existing split?
- Deepen an already existing split.
- Any Additional information that you think would make this case a good case for ELSCAAP to take on?
- I actually think the facts of this case are very interesting, and would love for ELSCAAP to look at this. I think it brings up interesting implications of constitutional issues and the implications peoples first amendment rights and their online conduct.
September 14, 2023
Austin v. Glynn County, 80 F.4th 1342 (11th Cir. 2023).
- Plaintiff detention officers brought suit against Defendant sheriff and county, alleging defendants had violated the Fair Labor Standards Act by wrongly counting the plaintiffs' overtime pay. This court affirmed that, per binding 11th Cir. precedent, the sheriff could not be sued as an individual because was not an "employer" as defined by FLSA. The court further denied Plaintiff's leave to file an amended complaint adding the sheriff as a defendant in his official capacity, since in that role, he would be entitled to immunity under the Eleventh Amendment. The court noted that the officers had not argued on appeal that the county should be considered the officers' employer, and thus the appellants had forfeited that issue.
- Can state officials be considered, in their individual capacities, as "employers" subject to FLSA in suits by state employees?
- No. "[P]ublic officials, in their individual capacities, are not their subordinates' 'employers' under the FLSA." Austin v. Glynn Cty., 80 F.4th 1342 (11th Cir. 2023) (citing Welch v. Laney, 57 F.3d 1004, 1011 (11th Cir. 1995)).
- Defendant sheriff's decision-making regarding employee compensation was an action taken "as an arm of the state," and thus protected under the Eleventh Amendment from employee detention officers' suit. Affirmed district court's dismissal of officers' FLSA action.
- Does the holding create a new split or deepen an already existing split?:
- Deepens existing split, although the court noted it was "impotent" to disagree with the 11th Cir. precedent binding it, "regardless of whether we agree with it." Austin v. Glynn Cty., 80 F.4th 1342 (11th Cir. 2023) (internal quotations omitted).
- Any additional information that you think would make this case a good case for ELSSCAP to take on?:
- Link: https://www.bloomberglaw.com/document/X1VB52390000N?
Sept. 11, 2023
United States v. Curry, No. 21-4457, 2023 WL 5842300 (4th Cir. 2023)
- The Mandatory Victims Restitution Act requires district courts to order defendants to make restitution to victims of certain offenses. The act allows the court to hold restitution open for 90 days after sentencing, but the Supreme Court and other courts have held that a district court may order restitution beyond the 90 days. In this case the court ordered restitution 118 days after sentencing and the defendant appealed saying that the district court lacked the authority to amend the judgment.
- The Supreme Court in Dolan v. United States stated that courts could order restitution even after the 90 days because the purpose was to ensure that victims recieve full restitution. However, after that an amendment to the act stated that a sentence that imposes an order of restitution is a final judgment. Whether, under §3664(o), does Dolan still apply, allowing a district court to amend a restitution order after the 90 day deadline.
- §3664(o) provides an exhaustive list, and the restitution amount cannot be amended after the 90 days.
- §3664(o) is not exhaustive. A district court can amend a restitution order.
- District court scheduled restitution to be entered by November 9, 2021 (90 days after sentencing). Though the Supreme Court has held that a court has the power to extend past the 90 days. District court did not enter the final restitution verdict until December 8, 2021. Curry has moved to vacate the judgment. 4th Circuit affirmed.
- Does the holding create a new split or deepen an already existing split?:
September 7, 2023
United States v. Talley, No. 22-13921, 2023 BL 314544 (11th Cir. 2023)
- Circuit: 11th
- Broad case issue:
- Defendant Talley began a three-year term of supervised release in May 2018 upon completion of a custodial sentence. At the defendant's last contact with his probation officer, in September 2020, he "presented verification that he had suffered a heart attack." In November, the defendant's employer confirmed to that officer that Talley was on long-term disability. Based on this and another alleged condition violation, the probation office filed a petition alleging Talley had violated two conditions of release and requesting an arrest warrant. The district court issued a warrant for his arrest in January 2021, but the defendant was not detained until May 2022, when he was arrested for a separate offense in state court. Here, the district court alleged Talley violated two conditions of his supervised release during the supervised release terms by failing to follow his probation officer's instructions to contact him for supervision. The Circuit court agreed that the district court had jurisdiction to revoke Talley's supervised release on those grounds. However, this court rejected the district court's assertion that because of the "fugitive tolling" doctrine, it also had jurisdiction to revoke Talley's supervised release based on his commission of the 2022 crime (several months after the scheduled expiration of his original supervised release term).
- Does the fugitive tolling doctrine apply to terms of supervised release?
- No. "[T]here can be no tolling of the period of supervised release on the basis of fugitive status." United States v. Talley, 30 Fla. L. Weekly Fed. C 163 (U.S. 11th Cir. 2023).
- Yes. "Absconding from supervision equitably tolls the offender's supervised release period during his truancy." United States v. Talley, 30 Fla. L. Weekly Fed. C 163 (U.S. 11th Cir. 2023).
- This circuit joined the 1st circuit in holding that the fugitive tolling doctrine should not apply to supervised release periods. Therefore, the district court did not have authority to revoke Talley's supervised release on the basis of a conviction that occurred after Talley's supervised release term had expired as scheduled. This court vacated the district court's decision and remanded for resentencing. Because the district court had nonetheless maintained jurisdiction to revoke defendant's supervision based on an earlier violation, this court remanded for the district court to decide whether to revoke defendant's supervision based solely on that violation.
- Does the holding create a new split or deepen an already existing split?:
- Any additional information that you think would make this case a good case for ELSSCAP to take on?:
- Link: https://www.bloomberglaw.com/document/XHSG5FP0000N?
September 5, 2023
United States v. Diggs, No. 22-1502, 81 F.4th 755 (7th Cir. 2023)
- Defendant committed an armed robbery of a jewelry store. The District Court allowed the defendant’s spouse to testify against him because they found her to be involved in the crime. The court concluded that due to the joint participant exception, spousal testimonial privilege did not apply. The Seventh Circuit Court of Appeals held that permitting the defendant’s spouse to testify was subject to the harmless error standard. As a result, the Seventh Circuit did not address the joint participant exception. In a concurrence, however, the joint participant exception was discussed in light of the circuit split stemming from a Supreme Court decision.
- whether a spouse who participates in the defendant-spouse’s crime can invoke the spousal testimonial privilege and decline to testify?
- No. The joint participant exception limits the application of spousal testimonial privilege to cases in which the spouse is neither a victim nor a participant, rather the spouse merely observes evidence of the defendant-spouse’s crime.
- First, Second, Third, and Ninth:
- Yes. Rely on the Supreme Court case of United States v. Trammel (1980). A spouse may choose to testify or can refuse to testify. This decision is made only by the spouse and the spouse cannot be compelled nor prohibited from testifying. These circuits reject the joint participant exception.
- Remains with Seventh Circuit precedent. The concurrence opinion proposes that the Seventh Circuit should reexamine its position when the proper case arises. There are two justifications the Seventh Circuit provides for the joint participant exception. First, the court was concerned that a defendant-spouse would get their spouse involved in the crime and then be permitted to prevent their spouse from testifying. Second, the court believed that a marriage between joint participants of a crime would be likely unable to rehabilitate the defendant-spouse. The concurrence opinion recognizes that the Supreme Court’s decision in Trammel addresses these concerns through only vesting the spousal testimonial privilege in the testifying spouse. Additionally the concurrence opinion recognizes that the notion of rehabilitation was never justification for spousal testimonial privilege in the first place. Overall, the concurrence opinion suggests the Seventh Circuit should revisit the issue and potentially join the other side of the split when appropriate.
- Does the holding create a new split or deepen an already existing split?:
- Questions the validity of an already existing split; however, this split was created back in 1983.
- Any additional information that you think would make this case a good case for ELSSCAP to take on?:
- The concurrence opinion suggests the Seventh Circuit is willing to reconsider the split when the right case arises, so I do not think this is a case ELSSCAP should consider.
August 29, 2023
United States v. Jones, 81 F.4th 591 (6th Cir. 2023).
- Jones argues that the court erred in enhancing his base level offense for a “controlled substance offense” by using his pror drug conviction under Michigan State Law and the court erred in applying an enhancement for reckless endangerment during flight
- Should the court consider state-law controlled substance offense definitions when sentencing a controlled substance offense
- 3rd, 4th, 7th, 8th, 10th:
- May consider state-law controlled substance offenses under § 2K2.1 (a)(4)(A)
- Defined controlled substances according to the Controlled Substances Act, refusing to look at state-law in that detirmination
- the district court did not err in ehancing Jone’s sentence by looking to his state-law controlled substances conviction
- Does the holding create a new split or deepen an already existing split?:
- Deepens an already existing split
August 22nd, 2023
Pizza Hut L.L.C. v. Pandya, 79 F.4th 535 (5th Cir. 2023)
- The Supreme Court recognizes a party may expressly or implicitly waive their right to a jury trial. The parties entered into a contract, with provision stating “explicitly waive their respective rights to a jury trial in any litigation between or among them and hereby stipulate that any such trial shall occur without a jury”. The defendant in the current case demanded a jury, and the court placed the burden on the defendant to justify dismissing the provision agreed upon in the contract.
- Who has the burden of showing that a contractual jury trial waiver was knowing and voluntary?
- Fifth Circuit joins the Sixth in saying that the burden is on the party resisting the waiver, and that waivers are assumed enforceable until another party proves otherwise.
- Second and Fourth Circuits
- Placed the burden on the party seeking to enforce the contractual jury waiver to show that it was knowing and voluntary
- The court held the waiver is enforceable until the party seeking to render the waiver unenforceable proves justification. In the present case, the defendant failed to show the jury waiver was unknowing and involuntary, thus the waiver was affirmed.
- Does the holding create a new split or deepen an already existing split?
- Deepens an already existing split
- Any additional information that you think would make this case a good case for ELSSCAP to take on?:
- Personally, I think that this deals with some pretty interesting issues, especially because it does implicate the 7th Amendment; however, the court focuses on the fact that the seventh amendment jury right is not compulsory. I think that it does implicate some interesting connections between restricting other amendments.
August 8th, 2023
Citation: Optimal Wireless LLC v. IRS, 77 F.4th 1069 (D.C. Cir. 2023)
- There is a dispute among the circuits regarding whether the exaction of an employer who violates the Affordable Care Act is considered a tax subject to the Anti-injunction Act. An employer who fails to give full-time employees affordable access to health coverage, and is thus subject to this exaction.
- Are the fees the Affordable Care Act imposes on large employers that fail to give full-time employees affordable access to a threshold level of health coverage a tax subject to the Anti-Injunction Act, which generally blocks lawsuits aimed at restraining tax collection or assessment?
- D.C. Circuit and the Fifth Circuit
- These circuits affirm that these are indeed taxes and fall under the Anti-Injunction Act.
- The Fourth Circuit and Seventh Circuit
- These are not recognized as taxes that fall under the Anti-Injunction act.
- The court held with the Fifth Circuits that these are taxes for purposes of the Anti-Injunctions Act, thus blocking these suits under the Act which prevents any suit with the purpose of assessing or collecting any tax. Because of this, the dismissal for lack of jurisdiction is affirmed.
- Does the holding create a new split or deepen an already existing split?:
- Deepens an existing split
- Any additional information that you think would make this case a good case for ELSSCAP to take on?:
- I definitely think that this is an interesting issue. Taxes aren’t my thing personally, but I think this has some definitely interesting implications.
August 2nd, 2023
Citation: Prater v. Dep't of Corr., 76 F.4th 184 (3d Cir. 2023)
- Three parties appeal to challenge the judgment given by a magistrate judgment for their cases under the Civil action for Deprivation of rights statute. For one party the judge involuntarily dismissed the case for failure to prosecute, while entering summary judgment for the other two. In the case dismissed, all the parties did not expressly or implicitly consent to jurisdiction. The board case issue is whether the magistrate judges acted within the scope of their statutorily granted jurisdiction under 28 U.S.C. § 636.
- Split Issue: Do magistrate judges have jurisdiction to deny in forma pauperis petitions?
- Split:
- Based on the statute, federal rules and caselaw, conclude that magistrate judges maintain jurisdiction to decide IFP motions.
- The Fourth Circuit, Fifth Sixth, Ninth, Tenth
- Reason that magistrate judges may not deny IFP motions because doing so “is the functional equivalent of an involuntary dismissal which is an express carveout in 636(b)(1)(A)
- The magistrate judges' jurisdiction to enter final orders in each of these three cases turns on the parties' consent. We will dismiss Prater's appeal for lack of jurisdiction because all parties did not consent and, therefore, the magistrate judge lacked the power to involuntarily dismiss the case. When a magistrate judge lacks jurisdiction, so do we. By contrast, the magistrate judges were empowered to enter summary judgment in Isaac's and Aaron's cases because all parties either expressly or impliedly consented. Therefore, we have jurisdiction and will affirm summary judgment based on the plaintiffs' failure to exhaust administrative remedies.
- Does the holding create a new split or deepen an already existing split?
- This may have created a new split
- Any additional information that you think would make this case a good case for ELSSCAP to take on?:
- Honestly, this doesn’t really spark my interest, but someone else may love to take on a case like this.
August 1, 2023
A.C. v. Metro. Sch. Dist. of Martinsville, 75 F.4th 760 (7th Cir. 2023)
- Circuit: 7th
- Broad case issue: This court upheld an injunction barring two schools from mandating that transgender boy plaintiffs (two high schoolers and one middle schooler) use girls or unisex restrooms.
- Split Issue: Does denying a transgender student gender-affirming bathroom access violate Title IX of the 1972 Education Amendments and the Equal Protection Clause?
- Split:
- Yes. Denying such care may violate both Title IX & Equal Protection Clause.
- No violation found "based on substantially similar facts." A.C. v. Metro. Sch. Dist. of Martinsville, 75 F.4th 760, 771 (7th Cir. 2023) (comparing Grimm v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020) against Adams ex rel. Kasper v. School Board of St. Johns County, 57 F.4th 791 (11th Cir. 2022) (en banc)).
- Affirmed district court decision to grant preliminary injunctions sought by plaintiff transgender boys in actions against their school district alleging sex discrimination in violation of Title IX and the 14th Amendment's Equal Protection Clause. The Seventh Circuit stuck with the Fourth Circuit side of the split, noting "it makes little sense for us to jump from one side of the circuit split to the other, particularly in light of the intervening guidance in Bostock." A.C. v. Metro. Sch. Dist. of Martinsville, 75 F.4th 760, 771 (7th Cir. 2023).
- Does the holding create a new split or deepen an already existing split?:
- Any additional information that you think would make this case a good case for ELSSCAP to take on?:
- Ties to Koe v. Noggle (N.D. Ga. Aug. 20, 2023), which granted, on Equal Protection grounds, Plaintiffs' motion for preliminary injunction,thus enjoining Defendant state officials from enforcing Georgia SB 140's prohibition on hormone replacement therapy as medical treatment for gender dysphoria in minors (incongruent with 11th Cir. Equal Protection ruling referenced by this case).
Jul. 28, 2023
Washington v. AG of Ala. (11th Cir. 2023)
- In interpreting 28 U.S.C. § 2254 (Antiterrorism and Effective Death Penalty Act of 1996, or "AEDPA"), which, in relevant part, restricts federal courts' jurisdiction to grant a state-court convicted petitioner's writ of habeas corpus, how should a federal court assess (1) whether the state court's determination of facts was "unreasonable," and (2) whether the state's incorrect factual determination forms the basis of that state court's decision?
Context: Federal court assessing a state court's determination of the prejudice prong of a habeas petitioner's Ineffective Assistance of Counsel claim in a capital case.
- Does the defendant have to support his own assertion that he would have accepted a plea offer with additional objective evidence to meet the second element of the Strickland test?
- A defendant does not have to offer objective evidence to meet the second element. In this case, "A defendant has a right to maintain his innocence without entirely jeopardizing his ability to later claim that he would have accepted a subsequent, uncommunicated plea offer." Washington v. AG of Ala., 75 F.4th 1164, 1173 (11th Cir. 2023). Thus, defendants claiming innocence does not prove that they would not have accepted a guilty plea, and petitioners’ claims of innocence do not prevent them from showing prejudice.
- Defendant must offer objective evidence to prove that he would have accepted the state’s plea offer but for counsel's actions.
- In finding that habeas petitioner failed to meet the Strickland test's prejudice prong, a state court must not base its determination solely on petitioner's assertion that he would have accepted a plea offer while maintaining his innocence. (Vacated district court's order denying the habeas petition & remanded to district court for evidentiary hearing to consider petitioner's Strickland claim de novo.)
- Does the holding create a new split or deepen an already existing split?
- Joins a preexisting split:
- 11th Circuit "formally adopt[s]" the 6th Circuit's reasoning that a defendant's claim of innocence at trial does not preclude a later showing of prejudice in support of an ineffective assistance of counsel claim on the basis of trial counsel's failure to communicate a plea offer for habeas petitions brought under 28 U.S.C. § 2254, having already "found the Sixth Circuit's reasoning persuasive" regarding § 2255.
- Any additional information that you think would make this case a good case for ELSSCAP to take on?
- Definitely think that this is an interesting issue.
July 19, 2023
Juniper v. Davis, 74 F.4th 196 (4th Cir. 2023).
- Juniper brought a claim that the prosecutor withheld information and presented knowingly false testimony at trial.
- When should a court review evidence under the Brady standard and when should the court review under the Napue standard?
- Under Brady a petitioner must “show that the undisclosed evidence was 1)favorable to him either because it was exculpatory, or because it is impeaching 2) material to the defense and 3) suppressed” but evidence is material if there is a reasonable probability that, had the evidence been dislocated the result of the proceeding would have been different.
- Under Napue, materiality is easier for the petitioner to satisfy “if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury”
- The Circuits have developed different analysis systems when both Brady and Napue claims are brought - When a defendant brings a claim under both Napue and Brady, what test applies to evaluate the evidence?
- 4th: Combines the approaches of the second and ninth circuit. Courts must 1) evaluate, pursuant to the Napue standard, the cumulative materiality of the Napue evidence and any Brady evidence tending to show the falsity of the testimony at issue in the Napue claims and 2) evaluate, pursuant to the brady standard, the cumulative materiality of all the napue and brady evidence (don’t have to be in that order)
- 9th: Two step process: consider all of the Napue violations under the Napue standard. If they are “not material standing” then consider all of the Napue and Brady violations under Brady.
- 2nd: When Brady can cast doubt on Napue material, the Napue standard should apply.
- The defendant was not able to satisfy the Brady standard because there is not a reasonable probability that, had the evidence been disclosed to the defense the results would have been different. However, the case ends with a significant critique of the tactics used by the prosecutors in this case.
- Does the holding create a new split or deepen an already existing split?:
- Both. Creates a new framework for evaluation that did not previously exist. Creates a third split between the 2nd and 9th circuits.
- Any additional information that you think would make this case a good case for ELSSCAP to take on?:
- I think that this line of cases is incredibly interesting. The Brady, Napue, Giglio standards have been critiqued for their issues, but the courts have failed to resolve the splits that have resulted out of these cases. I would love to see the supreme court address some of them, but I don't know how likely they will be to do so.
June 23, 2023
United States v. Maloid, 71 F.4th 795 (10th Cir. 2023)
- In November 2020, defendant pleaded guilty of being a felon in possession of a firearm, but years earlier he had pleaded guilty to conspiring to commit felony menacing with a firearm. According to the commentary in the U.S. Sentencing Guidelines Manual, conspiracy to commit violent crimes count as violent crimes which increases a defendant’s advisory guideline range. The district court sentenced defendant to 51 months of imprisonment by counting defendant’s prior conspiracy conviction (conspiring to commit felony menacing with firearm) as a violent crime.
- What level of deference should courts give the commentary to the US Sentencing Guidelines?
- First, Second, Seventh, Eighth, Tenth, and D.C.
- Commentary is authoritative unless it runs afoul of the Constitution or federal statute or is plainly erroneous.
- Third, Sixth, Ninth, and Eleventh:
- The District Court did not err in deferring to the US Sentencing Guidelines’ commentary. Holds that this commentary governs unless it runs contradictory to the Constitution, federal statute, or is plainly erroneous. Sides with the First, Second, Seventh, and D.C. circuits.
- Does the holding create a new split or deepen an already existing split?:
- Deepens an already existing split
- Any additional information that you think would make this case a good case for ELSSCAP to take on?
- This split occurred because of a supreme court decision in 2019. I think that it is definitely an interesting split, and may be a fun case to take on from an intellectual standpoint in evaluating the implications of these decisions.
April 17th
Cal. Rest. Ass'n v. City of Berkeley, 65 F.4th 1045 (9th. Cir. 2023)
- Whether the The Energy Policy and Conservation Act ("EPCA") preempts the city of Berkley’s building code to prohibit piping of natural gas into buildings.
- presumption against preemption application on express-preemption provisions
- Circuits NOT applying presumption to express-preemption provisions:
- Circuits applying presumption to express-preemption provisions:
- The EPCA does preempt the City of Berkeley from prohibiting natural gas piping into buildings and reversed the lower court’s decision. The court did not apply the presumption against preemption doctrine. However, in a concurrence by judge O'SCANNLAIN, the court notes that while they were reading the EPCA’s preemption language narrowly, they are not sure whether that was the right move and they ask the supreme court to clarify their decision.
- Does the holding create a new split or deepen an already existing split?:
- It deepens the split between circuits on the presumption against preemption doctrine.
- Any additional information that you think would make this case a good case for ELSSCAP to take on?:
- The concurrence was a couple pages, I think if the city of Berkeley petitions for cert and it’s granted it might be a good case. Especially because of the political nature of the ordinance (banning gas stoves ordinance).
District Court Cases (Newest First)
United States v. Martinez, No. 2:22-cr-00086-JAW, 2023 BL 469949 (D. Me. Dec. 28, 2023).
- Circuit: 1st
- Broad case issue: Martinez brought a motion to suppress evidence, arguing the sheriff’s deputy turned a Terry frisk into an illegal violation of the Fourth Amendment; the defendant was a passenger in a car that was subject to a traffic stop. Accordingly, the issue is whether the traffic stop violated the Fourth Amendment, and whether the evidence gained from the stop was the fruit of a Fourth Amendment violation.
- Split Issue: At what point does a police officer deviate from a traffic stop into an illegal violation of the Fourth Amendment? How should lower courts reconcile the Supreme Court’s opinion in Rodriguez, which simultaneously indicates that any actions beyond those of a traffic stop are unconstitutional and that there should be a more forgiving approach towards actions that aren’t related to a traffic stop?
- Split:
- Put the Circuit numbers on one side of the split here: 2nd
- Say what side of the split these Circuits are on: any diversion from the duties of a traffic stop is unlawful and violates the Fourth Amendment.
- Put the Circuit numbers on the other side of the split here: 7th
- Say what side of the split these Circuits are on: apply a reasonableness standard that is more lenient and fact-specific to gauge whether the police officer violated the Fourth Amendment.
- Holding: the parties did not adequately brief this split in the filings, so the Court doesn’t offer an opinion. It does note that Martinez is free to raise the issue.
- Does the holding create a new split or deepen an already existing split?: It acknowledges a current split.
- Any additional information that you think would make this case a good case for ELSSCAP to take on?:
- This case is from the District of Maine. If it is appealed and the First Circuit issues an opinion that touches on the split issue, it would deepen an existing split.
- Link: https://www.bloomberglaw.com/product/blaw/document/X1FC9H0S0000N?criteria_id=5997670c6b200c939d792ff88a50f32e&searchGuid=d09b35a3-04f3-4464-9e5e-f0e3906c0c77&search32=GrQDE7teKxhTzyZMEhJWPA==MF9oZgkYPJKW819-zSJKaZdE_0BSh_meOFe0M0mClMB01TGoxgyD_4OpC5jL6pv4L2VNiasKbCDZASZ-ApZ6Rg==
November 2, 2023
United States v. Prince, No. 22 CR 240, 2023 BL 395801 (Illinois Northern District Court, 2023)
- Circuit: Seventh
- Broad case issue: Defendant had previously been convicted of a felony. In the present case, the defendant robbed three individuals at gunpoint. Defendant was charged “with unlawfully possessing a firearm after having previously been convicted of a felony” in violation of §922(g)(1) and §924(e). The defendant moved to dismiss this count on the ground that the statute violates the Second Amendment.
- Split Issue: whether the felon-dispossession statute (§922(g)(1)) is constitutional?
- Split:
- Upheld the constitutionality of the statute in a case in which the defendant was “convicted of state law felonies for selling controlled substances.” The court reasoned that the historical background “supported legislative authority ‘to prohibit possession of firearms by persons who have demonstrated disrespect for legal norms of society.’”
- Held the statute as unconstitutional in a case in which the defendant was previously convicted of a felony for making a false statement on a food stamp. The court reasoned that the historical background was unsupportive.
- Holding: The court held that the government failed to meet its burden in demonstrating a sufficient historical basis in support of §922(g)(1). The court, however, found that disqualifications are applied across-the-board. The court held that there is no need for individualized assessment nor a need to distinguish between violent and non-violent felons in regard to §922(g)(1). Nevertheless, the court granted the defendant’s motion to dismiss because the government did not uphold its burden as required under Bruen, and therefore the court, in this case, was unable to find §922(g)(1) constitutional.
- Does the holding create a new split or deepen an already existing split?:
- Deepens an already existing split because this court, as well as the other district courts within the Seventh Circuit, have debated the constitutionality of §922(g)(1). This is the second recent case coming from the 7th Circuit that discusses this split and the constitutionality of §922(g)(1).
- Any additional information that you think would make this case a good case for ELSSCAP to take on?:
- I think this would be an interesting case for ELSSCAP to monitor given the recent Supreme Court Preview Panel discussions pertaining to regulations of the Second Amendment. Additionally, the Supreme Court has yet to decide the constitutionality of the felon-dispossession statute, so this would be a good issue for ELSSCAP to monitor in the meantime. Furthermore, this is now the second case coming from the 7th Circuit that recently discusses this split and the constitutionality of §922(g)(1).
October 17, 2023
PAUL ALEXANDER Petitioner, v. UNITED STATES OF AMERICA, Respondent., No. CR RDB-19-0020, 2023 WL 6845424 (D. Md. Oct. 17, 2023) (Unpublished)
- Does a felon count as a “people” described in the 2nd Amendment?
- Is §966(g) constitutional after Bruen
- 5, 8, 10: §966(g) is constitutional
- 3: §966(g) is unconstitutional.
- The 4th circuit seems to believe that a felony record automatically excludes someone from possession of a firearm under §966(g) and is thus constitutional in its application. The 4th circuit has yet to officially join a split however.
- Petitioner’s claim is not effective. It does not demonstrate the necessary “actual prejudice” that he has suffered.
- Does the holding create a new split or deepen an already existing split?:
- Deepens an already existing split
September 28, 2023
Crow v. United States, 2023 U.S. Dist. LEXIS 175731
- Unlawful disclosure of taxpayer return information.
- Whether disclosing taxpayer returns lawfully in court proceedings renders U.S.C § 6103(a)'s directive to keep return information confidential moot.
- No, regardless of previous disclosure of information, § 6103(a)’s protection remains intact.
- The U.S failed to show that the disclosure of taxpayer returns were unlawful and thus their motion to dismiss for failure to state a claim was denied.
- Does the holding create a new split or deepen an already existing split?: Deepens a previous split between circuits.
- Link:
October 5, 2023
Pearson v. Deutsche Bank, AG (Decided *10/05/23) *Pre-dates other cases included earlier in tracker.
- District (in 11th Cir.).
- Broad case issue:
- Split Issue: Whether under 28 USC § 1920, a judge can tax pro hac vice as litigation costs recoverable by the prevailing party in a legal proceeding.
- Split:
- pro hac vice fees are not a recoverable cost under Section 1920(1) on grounds such fees are not expressly included in the statutory language.
- 11th Cir. has not squarely addressed this issue.
- Not an abuse of district court's discretion to award pro hac vice fees.
- "The Court declines to [tax as costs pro hac vice fees] because, absent further guidance from the Eleventh Circuit or the Supreme Court, it discerns no reason to depart from its previous construction of Section 1920(1) to preclude pro hac vice fees"
- Does the holding create a new split or deepen an already existing split?:
- Points out potential for split (if 11th Cir. addresses this issue)
September 6, 2023
United States v. Gates, No. 1:22-CR-00397-1, 2023 WL 5748362 (Illinois Northern District Court, 2023)
- District Court case in the seventh circuit
- Defendant had previously been convicted of a felony. In the present case, the defendant was found with a loaded semi-automatic handgun. Defendant was charged “with unlawfully possessing a firearm after having previously been convicted of a felony” in violation of §922(g)(1). The defendant moved to dismiss this count on the ground that the statute violates the Second Amendment.
- Split Issue: whether the felon-dispossession statute (§922(g)(1)) is constitutional?
- Split:
- Upheld the constitutionality of the statute in a case in which the defendant was “convicted of state law felonies for selling controlled substances.” The court reasoned that the historical background “supported legislative authority ‘to prohibit possession of firearms by persons who have demonstrated disrespect for legal norms of society.’”
- Held the statute as unconstitutional in a case in which the defendant was previously convicted of a felony for making a false statement on a food stamp. The court reasoned that the historical background was unsupportive.
- Holding: The court first looked at the plain text of the Second Amendment and determined that it covered all persons, including those who have been convicted of a felony. The court then looked to determine whether the “felon dispossession statute is part of this country's historical tradition of firearm regulation.” The court held that the government showed a sufficient historical basis in support of §922(g)(1). As a result, the court denied the defendant’s motion to dismiss and the court upheld the constitutionality of §922(g)(1).
- Does the holding create a new split or deepen an already existing split?:
- Deepens an already existing split because this court, as well as the other district courts within the Seventh Circuit, have decided to uphold the constitutionality of §922(g)(1).
- Any additional information that you think would make this case a good case for ELSSCAP to take on?:
- I think this would be an interesting case for ELSSCAP to monitor given the recent Supreme Court Preview Panel discussions pertaining to regulations of the Second Amendment. Additionally, the Supreme Court has yet to decide the constitutionality of the felon-dispossession statute, so I think this would be a good issue for ELSSCAP to monitor in the meantime.
Koe v. Noggle (N.D. Ga. Aug. 20, 2023)
- Circuit: 11th
- Broad case issue: Scope of injunctive relief appropriate for preliminary injunction of allegedly federally-unconstitutional state statute.
- Law at issue: Georgia senate bill SB 140, signed into law by Governor Kemp on March 21, 2023, which bans use of hormone replacement therapies and any surgical procedure performed for the purpose of altering sexual characteristics in the treatment of gender dysphoria in minors.
- Split Issue: Appropriate scope of injunctive relief and whether statutes banning gender-affirming care are subject to heightened scrutiny.
- Split:
- Statewide injunction appropriate when necessary to ensure
- Intermediate scrutiny applies in circuit courts reviewing gender-affirming care statutes. Outright bans on gender-affirming care are not justified by
- Statewide injunction overbroad. "A court order that goes beyond the injuries of a particular plaintiff to enjoin government action against nonparties exceeds the norms of judicial power." L.W. v. Skrmetti, 73 F.4th 408, 415 (6th Cir. 2023)
- Rational basis review is appropriate in circuit courts reviewing gender-affirming care statutes.
- Holding: Plaintiffs are substantially likely to prevail on the merits of their claim that SB 140's ban on hormone replacement therapy violates the 14th Amendment's Equal Protection clause. Therefore, a statewide "facial injunction is necessary" to provide the complete relief: "a statewide injunctive relief "is appropriate where its scope is principally measured by "the extent of the violation established, and by that which is "necessary to protect the interests of the parties." Koe v. Noggle, No. 1:23-CV-2904-SEG, 2023 U.S. Dist. LEXIS 147770, at *80 (N.D. Ga. Aug. 20, 2023) (internal quotations and citations omitted).
- Granting Plaintiffs' motion for preliminary injunction, enjoining Defendant state officials from enforcing SB 140's prohibition on hormone replacement therapy as medical treatment for gender dysphoria in minors.
Old Splits to Watch
September 18, 2023
United States v. Carpenter, No. 22-1198, 2023 BL 326377, 2023 Us App Lexis 24640 (6th Cir. Sept. 18, 2023)
- Split issue: Section 403(b) of the First Step Act provides: "This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment[*2] ." (Emphasis added). The interpretive question is whether that last, restrictive phrase requires the absence of a particular historical fact—namely the imposition of a sentence—or the absence of a sentence with ongoing legal effect.
- Under Jackson, whether the Act applies turns on a historical inquiry: was any sentence (even an illegal or unconstitutional one) imposed on the defendant [*5] on or before December 21, 2018? 995 F.3d at 524-25 . If so, the defendant is to be resentenced under the old version of the statute, without the benefit of the Act's sentencing reforms.
- 3rd Circuit, 9th Cir., 4th Cir., 7th Cir. 2020
- All our sister circuits that have considered the meaning of "a sentence" in the Act have disagreed with Jackson—that term does not encompass a vacated sentence.
- This case followed the circuits precedent, but I think this split is interesting to watch because as the dissent says “Because our circuit has split from every other to reach this issue, defendants in Kentucky, Michigan, Ohio, and Tennessee will often have to serve decades longer sentences than those in most of the other states. Carpenter proves this point. His sentence is eighty years longer than it would be if he had been resentenced in the seventeen states that comprise the Third, Fourth, and Ninth Circuits. See Dissent at 7. The resulting sentencing disparity, along with the other reasons I have outlined, should give us pause enough to consider the decision as a full court.”
Intra Circuit Splits that may be interesting
Aug. 28, 2023
United States v. Curtin, 78 F.4th 1299 (11th Cir. 2023)
- Whether a court's consideration of an improper factor in a criminal sentencing determination renders such sentence substantively unreasonable or constitutes mere procedural error, and which standard appellate courts should apply in reviewing the issue.
- "intra-circuit" split regarding inconsistent "improper-factor" sentencing jurisprudence and whether when the court considers an impermissible factor it would render the defendant’s sentence substantively unreasonable.
- Judge Newsom (concurring):
- Proposes recategorization of claims that a district court considered an impermissible factor in sentencing from substantive reasonableness challenges to procedural error in order to resolve sentencing precedent he describes as "hopelessly conflicted- not only with respect to the categorization of particular sentencing-related challenges as 'substantive' or 'procedural,' but also with respect to the rules that govern the preservation of those challenges for appeal and, as a result, the standards by which we review alleged sentencing errors." United States v. Curtin, 78 F.4th 1299, 1314 (11th Cir. 2023) (J. Newsom, concurring)
- "We review a criminal sentence's substantive reasonableness under an abuse-of-discretion standard, even when, as here, it is above the Guidelines range. A district court commits substantive error, and abuses its discretion, 'when it (1) fails to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) commits a clear error of judgment in considering the proper factors.' United States v. Curtin, 78 F.4th 1299, 1311 (11th Cir. 2023) (quoting United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (internal citations omitted).
- Because any error made by the district court here was "harmless," the majority declined to decide whether the sentencing judge had considered an impermissible factor.
- Does the holding create a new split or deepen an already existing split?:
- Raises the subject of a split in intra-circuit jurisprudence on an issue the majority declines to decide. Hope is bookmarking to track future developments.
- Any additional information that you think would make this case a good case for ELSSCAP to take on?:
- This is not necessarily a circuit split, but rather an issue of precedent and legal issues in the 11th circuit. While it would be interesting to track, it would be inappropriate for ELSSCAP to take on as a case.