Circuit Splits

Circuit Split Roundup

For the latest coverage of noteworthy issues dividing the federal courts, check out the following links:

• A. Benjamin Spencer, First Circuit Weighs In on Circuit Split re Jurisdiction over Defense Base Act Claims, Split Circuits (Nov. 27, 2012).

• Alison Frankel, Circuit split! 5th Circuit says AG suits are mass actions under CAFA, Thomson Reuters News & Insight (Nov. 26, 2012).

• Rudolph J. Di Massa Jr. & Aaron J. Margolis, Supreme Court to Address Circuit Split Over 'Defalcation' Meaning, jdsupra.com (Nov. 26, 2012).

• Adam S. Lurie, Brian T. McGovern, & Bret A. Campbell, First Circuit Set to Weigh in on Significant Circuit Split Involving False Claims Act First to File Rule, Cadwalader Clients & Friends Memo (Nov. 22, 2012).

1st Circuit Joins Deep Split Over Initial Judicial Review of Defense Base Act Awards

Last week in Truczinskas v. Director, Office of Workers’ Compensation Programs, the First Circuit pointed out that “the circuit courts are now almost evenly split on whether initial judicial review of [Defense Base Act] awards should be in the district or the circuit court.”

 The court summarized the split as follows:

Four circuits endorse review by the district court, ITT BaseServs. v. Hickson, 155 F.3d 1272, 1275 (11th Cir. 1998); Lee v. Boeing Co., 123 F.3d 801, 805 (4th Cir. 1997); AIFA/CIGNAWorldwide, 930 F.2d at 1116; Home Indem. Co. v. Stillwell, 597 F.2d 87, 89 (6th Cir.), cert. denied, 444 U.S. 869, 100 S. Ct. 145, 62 L. Ed. 2d 94 (1979), and three by the court of appeals, Serv. Emps. Int'l, Inc. v. Dir., Office of Workers' Comp. Programs, 595 F.3d 447, 452-55 (2d Cir. 2010); Pearce v. Dir., Office of Workers' Comp. Programs (Pearce II), 647 F.2d 716, 720 (7th Cir. 1981); Pearce v. Dir., Office of Workers' Comp. Programs (Pearce I), 603 F.2d 763, 766-71 (9th Cir. 1979).

The First Circuit, like the Supreme Court, has remained noncommittal on the issue:

This circuit, e.g., Air America, Inc. v. Director, Office of Workers' Compensation Programs, 597 F.2d 773, 775 (1st Cir. 1979), and the Supreme Court, Director, Office of Workers' Compensation Programs v. Rasmussen, 440 U.S. 29, 35, 99 S. Ct. 903, 59 L. Ed. 2d 122 (1979), have both assumed jurisdiction over appeals of DBA compensation awards after 1972 that never passed through the district court. But in neither these or other like instances did either court pass from assumption to express consideration of jurisdiction, so strictly speaking we are not bound to find jurisdiction in this case. Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1448, 179 L. Ed. 2d 523 (2011).

Until now...

Nevertheless, the Defense Base Act can be legitimately read to confer such jurisdiction upon us, and this reading accords with the overall congressional policy reflected in the 1972 Longshore Act amendments. Congress likely gave no thought at all to the wrinkle that concerns us; but, where statutory language permits a given reading and Congress' policy will be fostered by it,⁵ we think that reading should prevail--even if, as here, that statutory language would also permit a contrary reading at odds with Congress' statutory policy.

You can read the full opinion here: Truczinskas v. Director, Office of Workers’ Compensation Programs, No. 11-2503 (1st Cir. Nov. 20, 2012).