Circuit Splits

Staub v. Proctor Hospital [Infographic - OT2010]

The following infographic depicts one of the many conflicts of law resolved by the Supreme Court during its 2010 term. A number of insights into the Supreme Court's agenda-setting function can be gleaned from examining the circuit splits selected for review each term, which you can read more about here and here.

Commentary on Day 3's Debate Over the "'Heart' of Health Care Reform"

Yesterday the Supreme Court heard oral arguments for the third consecutive day concerning the constitutionality of the Affordable Care Act. The following articles offer thoughtful commentary on yesterday's debate:

• Kate Pickert, The "Heart" of Health Care Reform: Can the Law Stand Without a Mandate?, Time.com (Mar. 29, 20112).

• Jeff Zeleny, Parties Brace for Fallout in Court's Ruling on Health Care, N.Y. Times (Mar. 28, 2012).

• Janet Adamy, Jess Bravin & Wilde Mathews, Health Case Ripples Outward: Ruling Against Mandate Would Pressure Insurers, Loom Large in November Election, The Wall Street Journal (Mar. 28, 2012).

For more on yesterday's oral arguments, check out the following video courtesy of the Wall Street Journal:

 

Health Care Reform: Reactions to Day 2's Individual Mandate Debate

Yesterday the Supreme Court heard the much-anticipated oral arguments over the constitutionality of the Affordable Care Act's individual mandate. As any Supreme Court advocate worth his or her salt will tell you, a justice's demeanor during oral arguments is not always indicative of their disposition toward the case. Nevertheless, here is what the web is saying about day 2: 

• Jess Bravin, Justices Question Health Law, The Wall Street Journal (Mar. 27, 2012 10:22 PM ET).

• Adam Liptak, In Court, Sharp Questions on Health Care Law's Mandate, N.Y. Times (Mar. 27, 2012).

• Lyle Denniston, Argument recap: It is Kennedy's call, SCOTUSblog (Mar. 27, 2012 5:41 PM).

• Tom Goldstein, A Tale of Two Great Arguments, SCOTUSblog (Mar. 27, 2012 5:40 PM).

• Paul Barrett, Obamacare, Day 2: Regulation or Tyranny?, BloombergBusinessweek (Mar. 27, 2012).

• Mark Sherman & Jesse J. Holland, Day 2 of Supreme Court Health Care Battle, Huffington Post (posted: 03/27/2012 1:55 pm, updated: 03/27/2012 6:29 pm).

Here is an audio clip from yesterday's oral arguments courtesy of the Washington Post, in which Justice Kennedy "suggests to the solicitor general that the government needs to justify its position that it is within Congressional powers to require individuals to have health insurance."

You can read David Fahrenthold and N.C. Aizenman's full article on the Washington Post's website here: 

• David A. Fahrenthold & N.C. Aizenman, Court watchers on both sides speculate about health-care mandate, Washington Post (Mar. 27, 2012 7:57 PM).

140 Writing Tips From the "Brief of the Century"

As I mentioned on the Legal Skills Prof Blog (here), I recently finished reading writing guru Ross Guberman's new book entitled "Point Made: How to Write Like the Nation's Top Advocates." I highly recommend the book to any lawyer, professor, or law student who is interested in improving their writing, but is not willing to suffer through another stuffy treatise. It seems that Ross has kept quite busy since the release of his book last year. In anticipation of this week's oral arguments on the Affordable Care Act, Ross has put together a list of 140+ writing tips using the Solicitor General's brief to the Supreme Court (otherwise referred to as the "brief of the century") discussing the constitutionality of the Act. You can read his comments here: PDF.

On a related note, you can listen to an audio recording of yesterday's oral argument concerning the Anti-Injunction Act's applicability to the Health Care Reform Cases by clicking on the following YouTube video:

[*Hat tip to Ross Guberman for the link.]

The Problem with Plurality Decisions

Nobody likes a tie. Watching a sporting event end in a tie ranks up there with finger nails on a chalk board and waiting in line at the post office on my list of least favorite things. There’s no finality; no winner, no loser. Do you remember how the 2002 MLB All-Star game turned out? It was not good.*

Plurality opinions, which “result when five or more Justices agree on the result in a particular case but no single rationale or opinion garners five votes,” are a lot like ties. David R. Stras & James F. Spriggs II, Explaining Plurality Decisions, 99 Geo. L.J. 515, 515 (2011) (PDF). While Supreme Court watchers may not boo and throw bottles when the high court hands down a plurality decision, a number of judges and commentators detest the practice. Chief Justice Rehnquist, for example, once referred to plurality decisions as “genuine misfortunes.” Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 569 (1981) (Rehnquist, J., dissenting).

Plurality decisions are particularly problematic because they leave lower courts puzzled over their precedential value. This, in turn, leaves the lower courts guessing on the appropriate standard to apply in future cases.

Today’s circuit split illustrates this point. Earlier this month a federal court in Louisiana noted an ongoing split in authority over every 1L’s favorite chapter in civil procedure—"minimum contacts." Graham v. Hamilton, Civil Action No. 3:11-609 (W.D. La. Mar. 15, 2012). Here’s what the court had to say:

In Asahi Metal Industry Co. v. Superior Court of California, a fractured Court addressed minimum contacts. There, Justice O'Conner, writing for four justices, determined that foreseeability that a defendant's product would end up in a forum state, without more, was insufficient to find minimum contacts. Id. at 112-13 (plurality opinion). Justice Brennan, also writing for four Justices, determined that such foreseeability would be sufficient. Id. at 116-17 (Brennan, J., concurring). The Asahi decision has resulted in a split among the circuits. As the Fifth Circuit has noted, "Some circuits follow Justice O'Connor's analysis while other circuits follow Justice Brennan's analysis." Choice Healthcare, Inc. v. Kaiser Found. Health Plan, 615 F.3d 364, 373 (5th Cir. 2010) (citations omitted). The Fifth Circuit, however, has adopted Justice Brennan's analysis. Id. In the Fifth Circuit, a defendant has minimum contacts with the forum state when a defendant "knowingly benefits from the availability of a particular state's market for its products . . . ." Luv N' Care, 438 F.3d 465, 470 (5th Cir. 2006) (citing Oswalt v. Scripto, Inc., 616 F.2d 191, 199-200 (5th Cir. 1980)); see also Jackson v. Tanfoglio Giuseppe S.R.L., 615 F.3d 579, 584 (5th Cir. 2010) ("Under this 'relatively expansive' theory, only 'mere foreseeability' that a defendant might be haled into court because it purposely availed itself of the benefits of the forum state is required. A defendant need not have 'purposely direct[ed]' its activities to the forum." (citations omitted)).

In J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780, 180 L. Ed. 2d 765 (2011), the Supreme Court again evaluated the requirements for minimum contacts. McIntyre considered a challenge to a decision of the New Jersey Supreme Court that found personal jurisdiction over a British manufacturer which sold its products in the United States through an intermediary. Id. at 2786. The plaintiffs could only demonstrate that one of the products reached the forum state, and, in the view of the Court, they did not adduce any additional evidence indicating the manufacturer should have reasonably anticipated being haled into court in New Jersey. Id. at 2792. The plurality opinion in McIntyre would have required that a defendant target a forum state before a court could find minimum contacts, which would overrule the Fifth Circuit's specific jurisdiction precedent. Id. at 2788 (plurality opinion). This opinion, however, did not command a majority of the justices and is not binding on this Court. See Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977) ("When a fragmented Court decides a case . . ., 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .' (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976))). Justice Breyer's concurrence, which is binding, ruled that the New Jersey court did not have specific jurisdiction over the foreign manufacturer under existing precedent and declined to adopt a new rule. Id. at 2792-93; see also Ainsworth v. Cargotec USA, Inc., No. 2:10-CV-236, 2011 U.S. Dist. LEXIS 109255, at *19 (S.D. Miss. 2011) ("As Justice Breyer declined to choose between the Asahi plurality opinions, McIntyre is rather limited in its applicability. It does not provide the Court with grounds to depart from the Fifth Circuit precedents." (citations omitted)).²

² Some district courts in the Fifth Circuit have concluded that McIntyre overrules the Fifth Circuit's prior minimum contacts precedent. See, e.g., Keranos, LLC v. Analog Devices, Inc., No. 2:10-CV-2072011, 2011 Dist. LEXIS 102618, at *30 (E.D. Tex. 2011) (indicating that after McIntyre defendants must follow "'a course of conduct directed at the society or economy existing within the jurisdiction of a given sovereign'" before a court finds minimum contacts (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958))). Other district courts, however, have concluded that pre-McIntyre Fifth Circuit precedent continues to apply. See, e.g., Ainsworth, 2011 Dist. LEXIS 109255, at *11 (" . . . McIntyre has little to no precedential value."). The Fifth Circuit has not addressed this issue.

Id. 

 In an excellent law review on this issue, law professor Angela Laughlin presents the following table outlining the positions taken by other courts:

Angela M. Laughlin, This Ain’t the Texas Two Step Folks: Disharmony, Confusion, and the Unfair Nature of Personal Jurisdiction Analysis in the Fifth Circuit, 37 Cap. U.L. Rev. 681, 727-28 Appendix A (2009) (PDF).

*All-Star Game Called when teams run out of pitchers, SportsIllustrated.CNN.com (July 09, 2002 11:13 PM) (last updated July 10, 2002 9:57 PM). And for those of you who are more visually inclined, here is a video of the crowd's reaction to commissioner Selig's decision to end the game in a 7-7 tie after both teams ran out of players after the eleventh inning:

Circuit Split Roundup

For the latest on circuit splits in the news, follow the links below:

• Kevin Walsh, Anomalous but not absurd: Fourth Circuit splits from Third and Ninth on interpretation of FTCA’s “law enforcement proviso”, Walsh Law Blog (Mar. 16, 2012) (click here).

• Amy Cadle Hocevar, Circuit Split in Imposing Individual Liability Under FMLA Against Supervisors at Public Agencies, Sixth Circuit Appellate Blog (Mar. 12, 2012) (click here).

• Stephen Sather, Circuits Split Over Impact of Stern on Counterclaims, Bankruptcy Law Community (Mar. 12, 2012) (click here).

4 Reasons Why the FMLA is Ready for the Supreme Court's Review

Are public employees subject to individual liability under the FMLA? I've been following the circuit split over this question since the beginning of the year as it continues to percolate through the lower courts. Back in January (here), we looked at a provision in the FMLA that has led some courts to answer the question presented above in the affirmative, while other courts have answered the question in the negative.

Last Friday the Eastern District of Virginia joined the split over this issue in holding that "public employees may be sued in their individual capacities for alleged violations of the FMLA." Ainsworth v. Loudon Cnty. Sch. Bd., No. 1:11-cv-1228 (JCC/JFA) (E.D. Va. Mar. 16, 2012). The court's opinion in Ainsworth provides a nice summary of the growing body of conflicting authority over this issue:

The Individual Defendants first argue that the FMLA does not permit liability against public employees in their individual capacities. There is a split of authority as to whether public employees qualify as "employer[s]" and hence may be held individually liable under the FMLA. The Fifth and Eighth Circuits have concluded, based on the statutory text, that public employees may be sued in their individual capacities under the FMLA if they act directly or indirectly in the interest of their employer — for example, by exercising hiring and firing authority. See Modica v. Taylor, 465 F.3d 174, 184-87 (5th Cir. 2006); Darby v. Bratch, 287 F.3d 673, 681 (8th Cir. 2002). The Sixth and the Eleventh Circuits have reached the opposite conclusion. See Mitchell v. Chapman, 343 F.3d 811, 825-33 (6th Cir. 2003); Wascura v. Carver, 169 F.3d 683, 685-87 (11th Cir. 1999). The Fourth Circuit has yet to rule on this issue, see Jones v. Sternheimer, 387 F. App'x 366, 369 (4th Cir. 2010) (recognizing that the issue is an open question, and expressing no opinion on the viability of [plaintiff's] claim), while district courts within the Fourth Circuit are split). See Weth v. O'Leary, 796 F. Supp. 2d 766, 776-77 (E.D. Va. 2011), Sheaffer v. Cnty. of Chatham, 337 F. Supp. 2d 709, 727-29 (M.D.N.C. 2004), Cantley v. Simmons, 179 F. Supp. 2d 654, 657-58 (S.D. W.Va. 2002) and Knussman v. State of Maryland, 935 F. Supp. 659, 664 (D. Md. 1996) (public employees can be individually liable under the FMLA) with Sadowski v. U.S. Postal Serv., 643 F. Supp. 2d 749, 757 (D. Md. 2009), Miller v. Cnty. of Rockingham, No. 5:06cv00053, 2007 WL 990135, at *4 (W.D. Va. Mar. 30, 2007) and Keene v. Rinaldi, 127 F. Supp. 2d 770, 777-78 (M.D.N.C. 2000) (public employees cannot be held individually liable under the FMLA). The majority view appears to be that public employees may be individually liable under the FMLA. See Weth, 796 F. Supp. 2d at 776 (citations omitted).

This issue is particularly ripe for review by the Supreme Court for several reasons:

• First, the conflict of law is both deep (dividing both district and appellate courts) and wide (the Fifth and Eighth Circuits are evenly divided with the Sixth and Eleventh Circuits; while the Fourth Circuit has acknowledged the split, but has declined to take a position). 

• Second, the issue has been sufficiently vetted at the district-court level (otherwise known as "percolation"), as evidenced by the volume and variety of district-court decisions addressing the issue. 

• Third, the fact that the issue continues to resurface more than a decade after the Eleventh Circuit's early decision on the matter suggests that it has had enough time to "mature" (i.e., if the Supreme Court decides to decide this issue, it will have more than ten years of briefing and analysis by the lower courts on the issue at its disposal).

• Fourth and finally, the issue affects public employers. This factor greatly enhances the issue's certworthinesss because cert. petitions filed in the Supreme Court by public employers are more likely to raise important constitutional questions, the resolution of which will likely impact a greater number of people than a petition filed by an individual.

Rest assured that CircuitSplits.com will be watching this one closely as it makes its way to the Supreme Court.

Ortiz v. Jordan [Infographic - OT 2010]

The following infographic depicts one of the many conflicts of law resolved by the Supreme Court during its 2010 term. A number of insights into the Supreme Court's agenda-setting function can be gleaned from examining the circuit splits selected for review each term, which you can read more about here and here.

Recovering the Cost of E-Discovery

Under Federal Rule of Civil Procedure 54(d)(1), the “prevailing party” in a lawsuit may recover the costs (other than attorneys’ fees) associated with litigation “unless a federal statute, [the Federal Rules of Civil Procedure], or a court order provides otherwise.” According to a study published in the Insurance Journal back in 2005 (here), the average U.S. company at any given time “balances a docket of 37 U.S. lawsuits.” Many of the lawsuits brought by and against companies require parties to exchange mountains of documents, consume gallons of toner, and produce enough copies to wipe out a small rainforest.

Needless to say, a company's victory in the courtroom will not be celebrated in the boardroom if the cost of litigation exceeds the total recovery or liability avoided. To reduce the cost of litigation and in some cases expedite the process, commercial litigants have turned to "e-discovery," which generally involves the exchange and review of information by litigants electronically over the course of litigation. For an excellent 10-minute overview of e-discovery, check out the following video:

As George Linge and David Cohen note in their recent white paper on the subject, “a growing number of court decisions indicate that a prevailing party may recover some e-discovery costs.” The two attorneys explain that, “[w]here a party requests the production of documents in an electronic format, some courts have found costs related to the technical aspects of making such a production (as distinct from the legal aspects associated with reviewing documents) to be ‘necessary’ and, therefore, taxable, rather than merely for the convenience of counsel.” See, e.g., In re Ricoh Company, Ltd. Patent Litigation, 2011 WL 5928689, *3 (Fed. Cir. 2011) (costs related to vendor’s  “electronic document database” taxable, but subject to parties’ cost-sharing agreement); In re Aspartame Antitrust Litig., No. 2:06-CV- 1732-LDD, 2011 WL 4793239, at *3 (E.D. Pa. Oct. 5, 2011) ("We . . . award costs for the creation of a litigation database, storage of data, imaging hard drives, keyword searches, deduplication, data extraction and processing."). But see Race Tires America, Inc. v. Hoosier Racing Tire Corp., 2011 WL 1748620, at *8-9 (W.D. Pa. 2011), vacated by No. 11-2316 (3d Cir. Mar. 16, 2012) (limiting the prevailing party's recovery of e-discovery costs to "only the scanning of hard copy documents, the conversion of native files to TIFF, and the transfer of VHS tapes to DVD"); Rawal v. United Air Lines, Inc., No. 07 C 5561, 2012 WL 581146, at *2-4 (N.D. Ill. Feb. 22, 2012) (refusing to award electronic processing costs as taxable).

Other courts have altogether refused to allow the prevailing party to recover costs associated with e-discovery. Linge and Cohen canvass the conflicting authority on this issue as follows:

Despite its logic, the principle embodied in In re Ricoh . . . and Aspartame remains subject to conflicting case law. Some courts have found that scanning documents for use in electronic format is only for the convenience of counsel, and thus not “necessary.” See Roehrs v. Conesys, Inc., 2008 WL 755187, at *3 (N.D. Tex. Mar. 21,  2008). But see BDT Products, Inc. v. Lexmark International, Inc., 405 F.3d 415 (6th Cir. 2005) (finding electronic scanning and imaging to be necessary and therefore recompensable); Brown v. McGraw-Hill Cos., Inc., 526 F. Supp. 2d 950 (N.D. Iowa 2007) (same). And some courts have declined to assess costs related to e-discovery vendors because they are hired to “search for and retrieve discoverable … documents,” tasks which would be done by paralegals and attorneys in a non-electronic case. Klayman v. Freedom’s Watch, Inc., 2008 WL 5111293, *2  (S.D. Fla. 2008). See also Kellogg Brown & Root International, Inc. v. Altanmia Commercial Marketing Co., W.L.L.,  2009 WL 1457632 (S.D. Tex. 2009). But see CBT Flint Partners, LLC v. Return Path, Inc., 676 F. Supp. 2d 1376,1381 (N.D. Ga. 2009) (calling e-vendor services “the 21st Century equivalent of making copies” and “not the type of  services that attorneys or paralegals are trained for or are capable of providing”); Parrish v. Mannatt, Phelps, &  Phillips, LLP, 2011 WL 1362112 (N.D. Cal. 2011); Cargill Inc. v. Progressive Dairy Solutions, Inc., 2008 WL 5135826 (E.D. Cal. 2008).

The two attorneys advise that “[d]ocumenting e-discovery costs is a critical component of any cost recovery effort and must not be overlooked as  courts are unlikely to award undocumented costs." See Francisco v. Verizon South, Inc., 272 F.R.D. 436 (E.D. Va.  2011) (denying certain costs for lack of documented support); Tibble v. Edison Int’l, 2011 WL 3759927 (C.D. Calif.  2011) (supporting documents include invoices, competitive bidding papers, and evidence of market rates)."

ᔥRecovery of E-Discovery Costs: A Vital Consideration from Beginning to End, JDSupra (Mar. 13, 2012).

↬Hat tip to Lee Beck over at http://www.fedregsadvisor.com/.

Racial Gerrymandering, Vote Dilution, and the Fifteenth Amendment

Earlier this year in the Texas Redistricting Case, the Supreme Court rejected an election map drawn up by a district court that favored Democratic candidates. Today's post features a circuit split over the related issue of gerrymandering. The term "gerrymandering" generally refers to a political maneuver whereby the party in power redraws their state's electoral districts in a way that benefits their party or disadvantages their political adversaries. One form of gerrymandering involves the drawing of electoral districts so as to dilute a particular racial group's voting power.

Enter Backus v. South Carolina, which, last week, identified a circuit conflict over the question of whether the Fifteenth Amendment's guarantee that "[t]he right of citizens of the United States to vote shall not be denied or abridged . . . on account of race" supports a claim for vote dilution. Case No.: 3:11-cv-03120-HFF-MBS-PMD (Dist. S.C. Mar. 9, 2012). Here's what the court had to say:

Plaintiffs assert a vote dilution claim and a racial gerrymandering claim under the Fifteenth Amendment. It is unclear whether vote dilution claims are cognizable under the Fifteenth Amendment. In recent decisions, the Supreme Court has emphasized that it has never recognized such a claim. See, e.g., Reno II, 528 U.S. at 334 n.3 (majority opinion) ("[W]e have never held that vote dilution violates the Fifteenth Amendment."); Voinovich v. Quilter, 507 U.S. 146, 159, 113 S. Ct. 1149, 122 L. Ed. 2d 500 (1993) ("This Court has not decided whether the Fifteenth Amendment applies to vote-dilution claims; in fact, we never have held any legislative apportionment inconsistent with the Fifteenth Amendment."). In light of these decisions, circuits are split on whether vote-dilution claims are cognizable under the Fifteenth Amendment. Compare Prejean v. Foster, 227 F.3d 504, 519 (5th Cir. 2000) ("Indeed, the Supreme Court has rejected application of the Fifteenth Amendment to vote dilution causes of action."), with Page v. Bartels, 248 F.3d 175, 193 n.12 (3d Cir. 2001) ("We simply cannot conclude that the Court's silence and reservation of these issues clearly foreclose[] Plaintiffs' Fifteenth Amendment claim . . . .").

Even if vote-dilution claims exist under the Fifteenth Amendment, the Fourth Circuit has recognized that they are essentially congruent with vote-dilution claims under the Fourteenth Amendment. Washington, 664 F.2d at 919. Both require proof of discriminatory purpose and discriminatory, or dilutive, effect. Id. For the same reasons that Plaintiffs have failed to prove a Fourteenth Amendment vote-dilution claim, they have failed to prove a Fifteenth Amendment vote-dilution claim.

(alterations and ellipsis in original). The following image reflects the proposed Congressional map as passed by the South Carolina House of Representatives on June 15, 2011:

 

[*Image courtesy of the South Carolina Legislature: http://www.scstatehouse.gov.]

[**For more on the battle over redistricting in South Carolina, check out Ballotpedia's wiki page here.]

4 Reasons Why the Supreme Court Reviews Circuit Splits

Back in December I wrote a series of posts about the importat role that circuit splits play in shaping the Supreme Court's agenda. (See here, here, and here.) Today I thought that I would revisit the topic by examining four reasons why the existence of a conflict of law between the circuits significantly enhances the certworthiness of an issue pending before the Supreme Court. So without further ado, here are four reasons why the Supreme Court places a special emphasis on resolving circuit splits:

1.    The Constitution favors uniformity.

As the "one supreme Court," the nine Justices are instructed by the Constitution to ensure that federal laws are uniformly applied as "the supreme Law of the Land."

2.    The Court's commitment to Congress to ensure the uniformity of federal law.

In their article, "The Philosophy of Certiorari," law professors Richard and Margaret Cordray explain that "some  view  the  Judges'  Bill  of  1925, which  gave  the Justices the authority to exercise control over most  of their plenary  docket, as designed  to  help  achieve  uniformity;  indeed,  some  believe  that  the legislation  was based  on  an explicit  commitment  that the Justices made to Congress to protect  the uniformity of federal law in return for Congress' ceding the Court so much control over case selection."

3.    The Supreme Court's desire to discourage forum shopping.

From a pragmatic standpoint, circuit splits incentivize forum shopping; that is, situations where litigants or potential litigants attempt "to have [their] case heard in the forum where it has the greatest chance of success." Lynn M. LoPucki & William C. Whitford, Venue Choice and Forum Shopping in the Bankruptcy Reorganization of Large, Publicly Held Companies, 1991 WIS. L. REV. 11, 14 (1991). To illustrate this point, imagine that the Eighth Circuit just issued a decision in which its construction of a provision in the Tax Code closes a lucrative tax loophole formerly available to corporations. Now assume that corporations located in the Fifth Circuit are still able to take advantage of this loophole based on the Fifth Circuit's corporate-friendly reading of the provision at issue. This scenario would produce a strong incentive for a corporation headquartered in, let's say, Bentonville, Arkansas, to close its doors and move to a city within the Fifth Circuit to take advantage of the corporate-friendly interpretation of the Tax Code.

4.    The Supreme Court's desire to ensure fairness.

On the other hand, if the corporation in our hypothetical above decides to keep its headquarters and operations hub in Bentonville Arkansas, the circuit conflict would place the company at a serious competitive disadvantage simply because of its geographic location. Meanwhile, by virtue of the Fifth Circuit's corporate-friendly interpretation of the tax law at issue, competitors would continue to enjoy the tax savings created by our hypothetical loophole. To avoid this problem in analogous cases, the Supreme Court may feel obligated to step in and direct the lower courts to apply the law in a uniform manner, restoring fairness and legitimacy to the law.

↬ Margaret Meriwether Cordray & Richard Cordray, The Philosophy of Certiorari: Jurisprudential Considerations in Supreme Court Case Selection: 82 Wash. U. L. Q. 389, 436-37 (2004).

Circuit Split Roundup

For the latest on circuit splits in the news, follow the links below:

• Amy Cadle Hocevar, Circuit Split in Imposing Individual Liability Under the FMLA Against Supervisors at Public Agencies, Sixth Circuit Appellate Blog (Mar. 12, 2012) (click here).

• Hon. Dorothy A. Harbeck, Amelia Wilson, & Hon. Amiena A. Khan, Vanashing Visibility: How Particular Social Group Requirements Have Changed in the Third Circuit's Asylum Cases, Federal Lawyer (Mar. 2012) (PDF). [Editor's Note: For Circuitsplits.com's coverage of this conflict, click here.]

• Eighth Circuit Judge Signals Disagreement with "Social Visibility" and "Particularity" Requirements in Social Asylum Claims, ScottKuhagen.com (Mar. 9, 2012) (click here).

• D. Colo. Notes Split Re Whether FRCP 9(b) Applies to Negligent Misrepresentation Claims, Split Circuits Blog (Mar. 13, 2012) (click here).

• Ruthann Robson, The constitutionality of the anti-prostitution pledge: compelled speech or government funding?, Constitutional Law Prof Blog (Feb. 29, 2012) (click here).

A Bad Deal: Can a Court Force Trial After Accepting a Defendant's Guilty Plea?

Given the slew of bad lawyer shows that have aired over the past few years, I was initially skeptical about NBC's new show, The Firm, which picks up where John Grisham's novel by the same name left off. I was pleasantly surprised after watching the first episode, however, and have been thoroughly entertained ever since. One particularly captivating episode is loosely based on the "prisoner's dilemma," which you may recall from your first year of law school. This episode provides a glimpse (albeit, a dramatic glimpse) into the dymanics of plea bargaining. You can catch the full episode below.

In a way, plea bargains resemble contracts. After haggling over the value of their case, a prosecutor agrees to pursue a more lenient sentence in exchange for the defendant’s plea of guilt. The parties then present their plea bargain to a judge, who retains final authority over sentencing matters. Most of the time, the judge will simply accept the plea bargain, enter the proposed sentence, and move on to the next case on his or her docket. But not always.

Sometimes the district court will accept a plea agreement, only to later vacate it and force the defendant to stand trial. Last week a district court identified a wide, well-established circuit split over whether this practice violates the Double Jeopardy Clause’s mandate that “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” The case, Cabrera v. Acevedo, makes the following observation:

The Supreme Court has not decided the issue of whether double jeopardy is violated when a trial court vacates a guilty plea and forces the defendant to stand trial. While it is clear that, for purposes of the Fourteenth Amendment, a criminal defendant “does not have an absolute right under the Constitution to have his guilty plea accepted by the court,” North Carolina v. Alford, 400 U.S. 25, 38 n.11 (1970), once the plea is accepted, it is unresolved whether double jeopardy prevents a court from sua sponte vacating the plea and proceeding to trial. The federal circuits are split on this question. See U.S. v. Santiago Soto, 825 F.2d 616 (1st Cir. 1987); Gilmore v. Zimmerman, 793 F.2d 564 (3rd Cir. 1986) (trial judge's sua sponte decision to vacate the defendant’s guilty plea to manslaughter and force him to stand trial for homicide charge did not violate double jeopardy.); United States v. Whitley, 759 F.2d 327, 332 (4th Cir. 1985) (“After a guilty plea has been set aside, neither retrial nor an increased sentence infringes the rights protected by the double jeopardy clause.”); United States v. Kim, 884 F.2d 189 (5th Cir. 1989); but see Morris v. Reynolds, 264 F.3d 38 (2d Cir. 2001) (“Given that a guilty plea is a conviction, and that the Double Jeopardy Clause protects against a second prosecution for the same offense after conviction, the Clause prohibits a second prosecution for the same offense following a guilty plea.” (internal quotations and citations omitted)); U.S. v. Patterson, 381 F.3d 859, 865 (9th Cir. 2004) (“although the district court is free to reject the plea agreement after accepting a guilty plea, it is not free to vacate the plea either on the government’s motion or sua sponte). Without a clear holding from the United States Supreme Court resolving the issue in Petitioner’s favor, he cannot satisfy the stringent requirements of 28 U.S.C. § 2254(d)(2). See Carey v. Musladin, 549 U.S. 70, 76 (2006).

No. 11-C-1390 (N.D. Ill. Mar. 6, 2012) (parallel citations omitted).

 *UPDATE: Apparently the video does not work with certain browsers. If you cannot view the video, you can watch it on NBC's website here.

Circuits Divided Over Exhaustion-of-Remedies Requirement Under Title VII

About a month ago the Eastern District of California identified a split among the circuit courts regarding the proper standard for reviewing whether the EEOC has attempted to "conciliate" in good faith. (See here.) Earlier this week a district judge in the Southern District of Texas flagged yet another circuit conflict involving Title VII's conciliation requirement. See generally 42 U.S.C. § 2000e-5(b) (requiring the EEOC to make a good-faith effort to eliminate unlawful employment discrimination administratively through informal methods such as "conciliation" before initiating a civil action).

In his opinion, the district judge noted that "circuit courts have split over whether administrative remedies must be exhausted before a party may enforce a conciliation agreement," adding, "the Fifth Circuit has not addressed the issue." Pasley v. Centerpoint Energy Houston Elec., Civil Action Nos. H-11-2341 & H-11-4376 (S.D. Tex. Mar. 6, 2012) (mem. op.). The plaintiff in this case was concerned that his failure to obtain a right-to-sue letter from the EEOC to pursue his claims related to the conciliation agreement would result in dismissal in district court for failure to exhaust administrative remedies. Id. at n.3. The following circuits disagree over whether this scenario deprives a federal district court of subject-matter jurisdiction:

Compare Cisneros v. ABC Rail Corp., 217 F.3d 1299, 1305–06 (10th Cir. 2000); Eatmon [v. Bristol Steel & Iron Works, Inc., 769 F.2d 1503, 1508, 1510 n.8 (11th Cir. 1985);] with Blank v. Donovan, 780 F.2d 808, 809–10 (9th Cir. 1986); Parsons v. Yellow Freight Sys., Inc., 741 F.2d 871, 874 (6th Cir. 1984). The Court need not resolve this dispute at this time, however, as Plaintiff does not appear to argue that his failure to exhaust administrative remedies deprives the Court of subject matter jurisdiction such that it should remand the case to state court.  

Pasley v. Centerpoint Energy Houston Elec., Civil Action Nos. H-11-2341 & H-11-4376 (S.D. Tex. Mar. 6, 2012) (mem. op.).

[*Image courtesy of Aidan Jones on Flickr.]

Skinner v. Switzer [Infographic - OT 2010]

The following infographic depicts one of the many conflicts of law resolved by the Supreme Court during its 2010 term. For more information about what these infographics can teach us, click here or here.

20 Circuit-Specific Blogs to Follow

Over the past month or so, I've received several e-mails from readers who wanted to know which blogs I read to stay on top of the latest developments around federal courts of appeals. So, I thought I'd put together the following list of circuit-specific blogs. (At some point in the near future I will post a list of blogs that cover appellate law in general.)

1st Circuit

• Maine Appeals Blog: "Covers developments in Maine appellate law in the Maine state courts and the Boston-based 1st U.S. Circuit Court of Appeals."
• FindLaw's U.S. First Circuit Blog

2nd Circuit

• Second Circuit Blog: "Case summaries and commentary by attorneys from the federal defenders office in New York City."

3rd Circuit

• Appellate Law NJ Blog: "Focusing on New Jersey appeals, appellate law, and appellate practice, particularly regarding decisions and other actions of the Supreme Court of New Jersey, the Superior Court of New Jersey, Appellate Division, and the Third Circuit Court of Appeals."
• Third Circuit Blog: Case summaries and commentary on the Third Circuit Court of Appeals.

4th Circuit

• Fourth Circuit Blog: "Case summaries and analysis from Federal Defender Offices located in the Fourth Circuit (WV, VA, MD, NC, SC)." 

5th Circuit

• Fifth Circuit Blog: "Case summaries and commentary by federal defenders of the Fifth Circuit."
• FindLaw's U.S. Fifth Circuit Blog

6th Circuit

• Sixth Circuit Appellate Blog: "The Sixth Circuit Appellate Blog fosters discussion on news about and opinions issued by the United States Court of Appeals for the Sixth Circuit with an emphasis on cases pertaining to business interests. It also includes an En Banc Watch and features guest bloggers on occasion, as well as interviews with Sixth Circuit judges."
• Sixth Circuit Blog: "Case summaries and comentary by federal defenders of the Sixth Circuit."

7th Circuit

• Indiana Law Update: "Posts contain descriptions and analysis of decisions from Indiana state and federal courts and highlight key takeaways for practicing attorneys."

8th Circuit

• On Brief: "Devoted to appellate litigation, with a focus on the Iowa Supreme Court, the Iowa Court of Appeals, and the United States Court of Appeals for the Eighth Circuit."

9th Circuit

• California Appellate Report: "Thoughts on recent Ninth Circuit and California appellate cases from Prfofessor Shaun Martin at the University of San Diego School of Law."
• Ninth Circuit Blog: "Case summaries and commentary by federal defenders of the Ninth Circuit."

10th Circuit

• Tenth Circuit Blog: "Case summaries and commentary by federal defenders of the Tenth Circuit."

11th Circuit

• Defense Newsletter Blog: "Breaking news supplementing the defense newsletter covering 11th Circuit and U.S. Supreme Court Cases."
• Florida Criminal Appeals Attorney Law by Donna Eng: "Analysis and discussion of criminal defense, appeals and post conviction relief in Florida and the Eleventh Circuit."
• The Florida Legal Blog: "A blog focusing on decisions from the Florida appellate courts and 11th U.S. Circuit Court of Appeals."

D.C. Circuit

• The D.C. Law Report: "The D.C. Law Report is a free, online publication (a blog) about civil litigation in the District of Columbia Courts which include the Superior Court of the District of Columbia and the District of Columbia Court of Appeals. It is intended only for legal professionals in the District of Columbia (United States of America)."

Federal Circuit

• 717 Madison Place: "Focuses on oral arguments of patent appeals at the U.S. Court of Appeals for the Federal Circuit, as well as other patent-related topics. The judges often express their thoughts candidly during oral argument and the blog gives practitioners a unique insight into the thoughts of the various judges."

To ensure that each blog listed above is still "active," I omitted blogs that have not published new content since the beginning of the new year. If I've left a circuit-specific blog off of today's list, please feel free to leave a comment with a link below.

[*Hat tip to the ABA Journal's "BlawgWhisperer," the "keeper of the Blawg Directory."]

Circuits Divided Over the Types of "Social Groups" Eligible for Asylum

The Immigration and Nationality Act (INA) offers asylum to qualifying foreign refugees who have fled to the U.S. to escape persecution in their home country. To qualify, however, the refugee must be a member of a narrow class. Refugees who belong to a “particular social group” who have a well-founded fear of persecution in their home country comprise one such class. See 8 U.S.C. § 1101(a)(42)(A).

But what exactly qualifies as a “particular social group”? This question is the focus of today’s circuit split. Last Thursday Judge Bye of the Eighth Circuit called attention to a wide circuit split over this issue. The decision, Gaitan v. Holder, reaffirmed a prior decision by the Eighth Circuit in which the court emphasized the importance of "social visibility" and "particularity" as critical components of a “social group” whose members may avoid deportation by qualifying for asylum. No. 10-1724 (8th Cir. Mar. 1, 2012). For example, the Board of Immigration Appeals (BIA) relied on these two elements in refusing to recognize a “‘group of ‘affluent Guatemalans’ targeted for ransom” as a protected social group because the group's members were not perceived as distinct, nor were they visible as a group. Id. (citing Matter of A-M-E & J-G-U-, 24 I. & N. Dec. 69 (B.I.A. 2007) (finding that the general societal perception of wealthy people did not satisfy the “visibility” prong and that the group failed the “particularity” prong because they were “too amorphous”)).

In Gaitan, the Eighth Circuit similarly found that young adult males who flee to the U.S. to avoid gang violence in El Salvador fail to qualify as a “particular social group” whose members may obtain asylum in the U.S. In concurring with his colleagues, Judge Bye expressed concern that “[i]n essence, the decisions elevated the requirements of ‘social visibility’ and ‘particularity’ from merely some of the many factors in the holistic analysis of the issue to absolute prerequisites to establishing membership in a particular social group.” Gaitan, No. 10-1724 (Bye, J., concurring).

“This new approach to defining ‘particular social group,’” Judge Bye lamented, has “split the circuits as to the validity and permissible extent of the BIA's reliance on ‘social visibility’ and ‘particularity.’” So where do the other circuits stand on the matter? Judge Bye offered the following summary:

Compare Valdiviezo-Galdamez v. Holder, 663 F.3d 582, 603-09 (3d Cir. 2011) (concluding the BIA's "social visibility" and "particularity" requirements are inconsistent with prior BIA decisions and rejecting the government's attempt to graft these additional requirements onto petitioner's social group claims); Gatimi v. Holder, 578 F.3d 611, 615-16 (7th Cir. 2009) (criticizing the BIA's decisions in S-E-G- and E-A-G- for being "inconsistent" with the BIA's precedents in Acosta and Kasinga and for failing to explain the reasons for adopting the "social visibility" criterion); Benitez Ramos v. Holder, 589 F.3d 426, 430-31 (7th Cir. 2009) (denouncing the BIA's insistence on "social visibility," sometimes in its literal form, and charging the BIA might not understand the difference between visibility in a social sense and the external criterion sense); Urbina-Mejia v. Holder, 597 F.3d 360, 365-67 (6th Cir. 2010) (noting being a former gang member is an immutable characteristic and defining former members of the 18th Street gang as a "particular social group" based on their inability to change their past and the ability of their persecutors to recognize them as former gang members), with Lizama v. Holder, 629 F.3d 440, 447 (4th Cir. 2011) (upholding the BIA's definition of a particular social group as requiring that "(1) its members share common immutable characteristics, (2) these common characteristics give members 'social visibility, and (3) the group is defined with "sufficient particularity to delimit its membership"); Ramos-Lopez v. Holder, 563 F.3d 855, 862 (9th Cir. 2009) (upholding the BIA's adoption of the "social visibility" requirement); Scatambuli v. Holder, 558 F.3d 53, 60 (1st Cir. 2009) (rejecting petitioners' claims the BIA is precluded from considering the visibility of a group); and Fuentes-Hernandez v. Holder, 411 F. App'x 438, 438-39 (2d Cir. 2011) (stating individuals who resisted gang recruitment in El Salvador do not constitute a "particular social group" because their proposed group lacked "social visibility" and "particularity" and because the alleged persecution "did not bear the requisite nexus to a protected ground").

Id.

Kasten v. Saint-Gobain Performance Plastics [Infographic - OT2010]

The following infographic depicts one of the many conflicts of law resolved by the Supreme Court during its 2010 term. For more information about what these infographics can teach us, click here or here.