Circuit Splits

There’s a split over who has the burden to establish whether a contractual jury waiver was knowing and voluntary. See here at p.27.

There’s a split over whether the statute of limitations in section 7703(b)(2) is jurisdictional (i.e., does it deprive courts of jurisdiction to review MSPB decisions). See here at p.12.

Courts disagree about whether a criminal defendant’s identity can be suppressed under the Fourth Amendment’s exclusion remedy. See here at p.14.

There’s a split over whether federal or state law should be applied to determine the validity of a forum-selection clause. See here at p.4-5.

There’s a split over whether an ALJ must examine conflicts between the Dictionary of Occupational Titles and a vocational expert’s testimony, even if no party identifies a conflict during administrative hearings. See here at p.15 n.8.

And there’s an intra-circuit split among district courts in the Fifth Circuit, over whether pro se litigants can be subject to sanctions under section 1927. (The majority says no.) See here at p.4.

RLA Update

The Supreme Court has not decided a case involving the Railway Labor Act since 2009. Over the past two years (2016 & 2017), the federal courts of appeals have decided 22 cases involving the RLA. Here are some highlights:

  • In Herrera v. Command Security Corp., 837 F.3d 979 (9th Cir. 2016), a union sued an employer, alleging RLA violations. The Ninth Circuit found the employer unlawfully coerced and interfered with its workers’ rights; the union’s claim was “major” dispute; and employer’s refusal to mediate violated the RLA.
  • In Brotherhood of Locomotive Engineers and Trainmen v. Union Pac. RR Co., 879 F.3d 754 (7th Cir. 2017), and Brotherhood of Maintenance of Way Employees Division/IBT v. BNSF Railway, Inc., 834 F.3d 1071 (9th Cir. 2016), the circuit courts discuss the “major” vs. “minor” distinction in RLA cases (both finding the dispute at issue was minor).
  • In Pruter v. Local 210’s Pension Trust Fund, 858 F.3d 753 (2d Cir. 2017), former employees brought ERISA claims and state-law claims (for fraud and breach of contract related to collective bargaining agreement) against their union and pension plan. The Second Circuit held state-law claims were preempted by the RLA; ERISA’s 3-year SOL (not NLRA’s 6-mo SOL) applied to RLA claims; no evidence plan was arbitrary and capricious under ERISA.
  • In Alaska Airlines Inc. v. Schurke, 846 F.3d 1081 (9th Cir. 2017), the Ninth Circuit held that the RLA preempted the state labor department’s enforcement actions. But en-banc review was granted in June 2017 (no en-banc decision yet). This could be a big preemption/state-vs-federal decision. Maybe the next RLA case to get to SCOTUS?
  • Airline Serv. Providers Assoc. v. Los Angeles World Airports, 873 F.3d 1074 (9th Cir. 2017);
  • Cases involving attempts to appeal RLA arbitration awards: Sullivan v. Endeavor Air Inc., 856 F.3d 533 (8th Cir. 2017); Nat’l Railroad Passenger Corp. v. Fraternal Order of Police, Lodge 189 Labor Comm., 855 F.3d 335 (D.C. Cir. 2017) (cert. pet. filed; maybe the next RLA case to get to SCOTUS?); Douglas Walter Green v. Frost Brown Todd LLC, 2017 WL 6210784 (6th Cir. 2017); Spirit Airlines Inc. v. Assoc. of Flight Attendants-CWA, AFL-CIO, 644 F. App’x 684 (6th Cir.  2016).
  • And finally, here’s my favorite (read: least favorite) kind of decision from the Fifth Circuit, a per curiam affirmance with no opinion (i.e., “having reviewed the record, briefs, and argument, we affirm”): Serna v. Transport Workers Union of Amer.  AFL-CIO, 654 F. App’x 665 (5th Cir. 2016).

Circuit Splits

There’s a split over whether federal courts exercising bankruptcy jurisdiction should apply federal choice-of-law principles or the choice-of-law principles of the forum state. See here at 5-6.

Circuits disagree over whether the Prison Litigation Reform Act’s fee cap and hourly-rate cap apply when the claim does not involve “prison conditions.” See here at 22-23.

There’s disagreement over whether a First Amendment free-exercise claim proceeds under a different framework than claims brought under RLUIPA or RFRA. See here at 15 & n.7.

There’s a split over whether multiemployer ERISA plans are “conflicted” under Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). See here at 4-5.

Courts disagree about whether pro-hac-appearance fees are recoverable as costs. See here at 2.

Courts disagree about whether a criminal defendant’s previous term is “undischarged” if he is on parole—and also about whether courts may apply § 5G1.3(b) after accepting a conditional plea agreement. See here at 13.

And there’s a split over the interaction between Title II of the ADA and § 504 of the RA, and the types of injuries cognizable under § 504. See here at 30-34.

Two Recent Articles

I’ve really slacked on blog posts lately. But I do have two articles that were published recently. In November, I wrote an article on “Current Class-Action Issues.” And today my article on “Cleaning Up Quotations in Legal Writing” appeared in the ABA’s Appellate Practice newsletter. Hope they’re helpful!

ABA Journal’s Web 100

A big congrats to all the honorees for this year’s Web 100! The ABA Journal has changed things up a bit. This used to be an honor reserved for the top 100 legal blogs (i.e., “blawgs”), but this year they decided to start honoring other forms of digital media. So the list now includes 50 blawgs, 25 law-related podcasts, and 25 law-related Twitter feeds.

Personally, I think it would’ve been cool for the #AppellateTwitter community to have received collective recognition under the hashtag. Maybe next year. For now, there are a bunch of #AppellateTwitter regulars on the list, including Chief Judge Stephen Dillard (@JudgeDillard); SCOTUS reporter Chris Geidner (@chrisgeidner); legal-writing guru Ross Guberman (@legalwritingpro); law profs Rachel Gurvich (@RachelGurvich) and Elizabeth Joh (@elizabeth_joh); and yours truly (@5thCircAppeals). Go follow!

And you should definitely check out the top-25 podcasts, too!

Circuit Splits

CCsplits6There’s a split over the common-law right of access to pre-indictment warrant materials. See here at p.19.

There’s a split over whether the award of costs under FRCP 41(d) includes the award of attorneys’ fees. See here at p.4.

There’s a split over enhancing sentences for “otherwise extensive” criminal activity. See here at p.20-22.

There’s a post-Johnson split over whether the U.S. Parole Commission can reimpose special parole on a defendant. See here at p.5-6.

The courts disagree about whether claims arising under the ADA or the RA survive the death of a party. See here at p.2.

There’s a split over whether the ex parte questioning of a treating physician by an adverse party is permitted and, if so, how such interviews should be conducted. See here at p.3.

There’s a split over whether, under CFR § 778.114, the employer or the employee bears the burden of proving they did or didn’t agree to a fixed weekly wage for fluctuating hours. See here at p.7 n.22.

And the circuits “appear to be divided” over whether the Fourth Amendment protects against the subsequent theft of lawfully seized items. See here at p.11.

A (very) quick look at standing in data-breach cases

I got curious and pulled up a bunch of cases to look at when plaintiffs have Article III standing to sue based on a data breach that has exposed personal information. Note: this was not an exhaustive search, and this is not an extensive analysis. But here’s what I found.

Continue reading

Circuit Splits

path-18197_960_720There’s a split over whether IDEA fee shifting should have a long or short statute of limitations. See here at 5 n.2.

There’s a split over whether reckless offenses are predicate offenses under 18 U.S.C. § 924(e). See here at 14 n.10.

Apparently, circuits disagree about how to interpret “directly and independently of all other causes.” See here at 2.

There’s a split over “a narrow exception to Rooker-Feldman.” See here at p.5.

There’s a split over the immediate appealability of Parker immunity claims. See here at p.17 n.6.

Circuits disagree about whether a party that fails to challenge a special verdict in the district court can raise the issue on appeal. See here at p.17 n.3.

And there’s a split over what “new evidence” means under Schlup. See here at p.3 n.1.

ICYMI: Twitter Threads

Decided to post links to some of my Twitter threads, because most of these threads could (and maybe should) have been blog posts.

[listed in reverse chronological order]

On the Gorsuch nomination & whether the Democrats should filibuster: 3/20/17

Explaining the legal/policy issue of selling insurance “across state lines”: 3/7/17

A primer on class actions and why we have them: 2/16/17

On the case challenging the scope of Obergefell at SCOTX: 2/13/17

On federalism: 1/30/17

On work-life “balance”: 1/11/17

On appeals, standards of review, and reversal rates: 12/20/16

Some post-election thoughts about the Electoral College: 11/21/16

On judicial vacancies left unfilled: 11/18/16

On court-packing, reverse-court-packing, and constitutional norms: 10/26/16

The thread that launched the #AppellateTwitter coffee mugs: 10/22/16

On Flannery O’Connor & wanting to be an appellate lawyer: 9/14/16

Remembering where I was on 9/11: 9/11/16

On alternative-fee arrangements for appellate work: 9/6/16

On doing pro bono to get appellate experience: 8/23/16

The now-(in)famous thread on the social function of humor: 8/9/16

On RBG expressing political opinions: 7/13/16

On whether current SCOTUS can be called a “liberal” court: 6/28/16

And last but not least, the Twitter version of my life story: 10/23/16

Circuit Splits

There’s a split over whether plaintiffs must prove the absence of probable cause when bringing a First Amendment retaliatory-arrest claim. See here at p.19. (Incidentally, this case is a good example of how messed up the law is, on qualified immunity. The question in this case is whether a person has a right against retaliatory arrest even when there is probable cause for the arrest. But the court grants immunity, saying it doesn’t need to determine whether the right exists because the Supreme Court has previously recognized that the right has not been clearly established. In this way, under our current qualified-immunity jurisprudence, when a right isn’t clearly established the courts can just continue to grant immunity on that basis, without ever deciding whether the right exists. Happens all the time. I’ve written more here.)

There’s a split over whether a mandatory supervised-release term may be modified or terminated under section 3583(e). See here at p.4.

There’s a split over whether participants or beneficiaries of an ERISA plan must exhaust internal plan remedies before suing plan fiduciaries on the basis of alleged violations of statutory duties. See here at p.14.

There’s a split over whether the denial of a “Hail Mary” chance at trial constitutes prejudice (in the context of possibly rejecting a plea agreement). See here at p.9 & n.3.

There’s a split over whether burglary requires intent-at-entry or just “the development of intent at any point.” See here at p.5.

Courts are divided over whether the joint-employer or single-integrated-enterprise theory of liability under the FLSA also applies to the personal-jurisdiction inquiry. See here at pp.5-6.

There’s disagreement over the interaction between sections 2680(a) and 2680(h) in the context of determining sovereign immunity. See here at p.15 n.5.

And there’s a split over whether the failure to object to the reasonableness of a sentence upon its imposition requires plain-error review. See here at p.6 n.10.