S.D. Ohio Notes Split Re How a Beneficiary is Determined Under ERISA

Per Lynch v. Fortis Benefits Ins. Co., Slip Copy, 2007 WL 2331940 (S.D.Ohio Aug 13, 2007) (NO. 1:05CV599):

There is a split among the circuits with respect to the manner in which a beneficiary is determined. Some circuits, finding no explicit answer in the text of ERISA, immediately look to the federal common law for the controlling principles for designating beneficiaries. See, e.g., Guardian Life Ins. Co. of Am. v. Finch, 395 F.3d 238, 240-41 (5th Cir.2004); Hill v. AT & T Corp., 125 F.3d 646, 648 (8th Cir.1997); Estate of Altobelli v. Int'l Bus. Machs. Corp., 77 F.3d 78, 81-82 (4th Cir.1996); Fox Valley & Vicinity Constr. Workers Pension Fund v. Brown, 897 F.2d 275, 280-81 (7th Cir.1990) (en banc).

"The Sixth Circuit takes a different view and holds that ERISA itself supplies the rule of law." Metropolitan Life Ins. Co. v. Pressley, 82 F.3d 126, 130 (6th Cir.1996); see also McMillan v. Parrott, 913 F.2d 310, 311 (6th Cir.1990); Unicare Life & Health Ins. Co. v. Craig, 157 F. App'x 787, 791 (6th Cir.2005). The Sixth Circuit's rule is grounded in the ERISA provision that requires a plan administrator to administer the plan "in accordance with the documents and instruments governing the plan." 29 U.S.C. § 1104(a)(1)(D). See Craig, 157 F. App'x at 791.

"We have consistently held that Section 1104(a)(1)(D) of ERISA establishes 'a clear mandate that plan administrators follow plan documents to determine the designated beneficiary.' " Craig, 157 F. App'x at 791 (quoting Pressley, 82 F.3d at 130); see also Central States, Southeast & Southwest Areas Pension Fund v. Howell, 227 F.3d 672, 678 (6th Cir .2000) ("It is clear that the law of this Circuit requires the ERISA plan administrator to pay out plan proceeds in accordance with the ERISA plan documents."). "A participant is master of his own ERISA plan." McMillan, 913 F.2d at 312. Therefore, under the Sixth Circuit's bright-line rule, the Court must examine the plan documents to determine whether a beneficiary designation has been made in accordance with the plan documents. Howell, 227 F.3d at 678.

2nd Circuit Notes Split Re Whether a Motion to Reopen Suffices to Satisfy Due Process in BIA Hearing

Per Burger v. Gonzales, --- F.3d ----, 2007 WL 2331944 (2nd Cir. Aug 17, 2007) (NO. 03-40395-AG L, 05-1058-AG CON):
The Government does not dispute that the noticed facts were dispositive of Burger's claim, and it concedes that the BIA failed to warn Burger that it would take notice. Rather, the Government contends that Burger's motion to reopen gave her a full and fair opportunity to present her claim and thus cured the lack of advance notice. The circuits are divided.

The Fifth, Seventh, and D.C. Circuits have held that a motion to reopen suffices to satisfy due process in this context. See Gutierrez-Rogue v. INS, 954 F.2d 769, 773 (D.C.Cir.1992) ("The availability of the petition to reopen secures [petitioner's] due process right to a meaningful hearing."); Rivera-Cruz v. INS, 948 F.2d 962, 968 (5th Cir.1991) (same); Kaczmarczyk v. INS, 933 F.2d 588, 597 (7th Cir.1991) (same).

The Ninth and Tenth Circuits, however, have held that due process requires that the BIA provide applicants with notice and an opportunity to be heard before the BIA determines on the basis of administratively noticed facts that a petitioner lacks a wellfounded fear of persecution. See Getachew v. INS, 25 F.3d 841, 846 (9th Cir.1994) (advance notice and opportunity to respond required when BIA determines, on the basis of administrative notice, whether an "election has vitiated any previously well-founded fear of persecution"); de la Llana-Castellon v. INS, 16 F.3d 1093, 1100 (10th Cir.1994) (availability of motion to reopen did not satisfy due process where BIA reversed IJ's finding that petitioners had a well-founded fear of persecution based solely on administratively noticed facts).

10th Circuit Mentions Split Noted in Bench Trial Re Awarding of Attorneys Fees in Suits for Personal Financial Gain Under Clean Air Act

Per Pound v. Airosol Company, Inc., --- F.3d ----, 2007 WL 2358674 (10th Cir.(Kan.) Aug 20, 2007) (NO. 06-3299):

On December 18, 2002, Pro Products brought suit against Airosol under the citizen suit provision of the CAA, 42 U.S.C. § 7604(a)(1) . Pro Products sued Airosol, alleging, in pertinent part, that Airosol was in violation of § 7671i(d)(1)(A) of the CAA. On March 10, 2004, the district court granted Pro Products' motion for partial summary judgment finding, as a matter of law, that Airosol's manufacture, sale, and distribution of Black Knight violated § 7671i(d)(1)(A) of the CAA. Following a bench trial, the district court entered an order on July 18, 2006, declining to penalize Airosol for its CAA violations. The court cited other factors, but relied heavily on its conclusion that Pro Products' suit was brought to remove a competitor from the market and not out of a concern for the environment. The court also denied Pro Products' renewed request for attorney fees and costs noting a circuit split, and no guidance from this court, on whether an award of attorney fees is appropriate "when the prevailing party brought the suit for personal financial gain rather than to further the purpose of the Clean Air Act." Appx. at 545. Pro Products now challenges the district court's decision not to penalize Airosol for violating the Act, and also the district court's denial of its request for attorney fees and costs.

1st Circuit Creates Split Re Application of RICO Statute to Defendants Involved In Noneconomic Criminal Enterprises

Per U.S. v. Nascimento, 491 F.3d 25 (1st Cir.(Mass.) Jul 02, 2007) (NO. 06-1152, 06-1153, 06-1154):

The pivotal issue in this case concerns the application of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962, to a street gang engaged in violent, but noneconomic, criminal activity. That issue possesses constitutional implications weighty enough to have led one of our sister circuits to fashion a special, more rigorous, version of RICO's statutory "affecting commerce" requirement for use in connection with defendants involved with enterprises that are engaged exclusively in noneconomic criminal activity. See Waucaush v. United States, 380 F.3d 251, 256 (6th Cir.2004). Although we are reluctant to create a circuit split, we conclude, after grappling with this difficult question, that the normal requirements of the RICO statute apply to defendants involved with enterprises that are engaged only in noneconomic criminal activity. Based on that conclusion and on our resolution of a golconda of other issues ably raised by highly competent counsel, we affirm the appellants' convictions.

5th Circuit Notes Split Re Whether an ERISA Claimant Needs to Establish Reliance and/or Prejudice Based Conflicting Terms of an SPD

Per Washington v. Murphy Oil USA, Inc., 497 F.3d 453 (5th Cir.(La.) Aug 16, 2007) (NO. 05-31063):

FN1. We certainly do not write on a clean slate. Indeed, there appears to be a five-way circuit split regarding whether an ERISA claimant needs to establish reliance and/or prejudice based on the conflicting terms of an SPD [summary plan description]. The Third and Sixth Circuits do not require a showing of reliance. See Burstein v. Ret. Account Plan for Employees of Allegheny Health Edu. and Research Found., 334 F.3d 365, 380-82 (3d Cir.2003); Edwards v. State Farm Mut. Auto. Ins. Co., 851 F.2d 134, 137 (6th Cir.1988). The Second Circuit also does not require a showing of reliance, but does require a showing of a likelihood of prejudice, which an employer may then rebut through evidence that the deficient SPD was in effect a harmless error. See Burke v. Kodak Ret. Income Plan, 336 F.3d 103, 111-14 (2d Cir.2003). The Seventh and Eleventh Circuits require a showing of reliance. See Health Cost Controls of Illinois, Inc. v. Washington, 187 F.3d 703, 711 (7th Cir.1999); Branch v. G. Bernd Co., 955 F.2d 1574, 1579 (11th Cir.1992). The First, Fourth, and Tenth Circuits require a showing of reliance or prejudice, though it appears that the terms "reliance" and "prejudice" are sometimes treated synonymously. See Govoni v. Bricklayers, Masons & Plasterers International Union, Local No. 5 Pension Fund, 732 F.2d 250, 252 (1st Cir.1984); Aiken v. Policy Management Sys. Corp., 13 F.3d 138, 141 (4th Cir.1993); Chiles v. Ceridian Corp., 95 F.3d 1505, 1519 (10th Cir.1996). Finally, the Eighth Circuit requires a showing of reliance or prejudice, but only if the SPD is "faulty." See Palmisano v. Allina Health Sys., 190 F.3d 881, 887-88 (8th Cir.1999); Marolt v. Alliant Techsystems, 146 F.3d 617, 621-22 (1998).

11th Circuit Notes Split Re Whether an Intervenor Must Demonstrate Standing in Addition to Requirements of Rule 24(a)

Per Dillard v. Chilton County Com'n, --- F.3d ----, 2007 WL 2350246 (11th Cir.(Ala.) Aug 20, 2007) (NO. 06-14950):

So long as an original party on the intervenor's side remains party to the action and maintains an adversarial litigating position vis-a-vis the opposing parties, at least in this circuit an intervenor need not make an independent showing that he or she meets the standing condition of Article III. Chiles, 865 F.2d at 1213; see also Diamond, 476 U.S. at 68-69, 106 S.Ct. 1697 (leaving undecided the question whether every intervenor must demonstrate standing in addition to the requirements of Fed.R.Civ.P. 24(a)). FN10

FN10. Other circuit courts have split in answering the question that the Supreme Court left open in Diamond. The Second, Fifth, Sixth, Ninth, and Tenth Circuits have joined this circuit's general rule that proposed intervenors need not demonstrate standing to intervene in an ongoing controversy. See San Juan County v. United States, 420 F.3d 1197, 1204-05 (10th Cir.2005) (permitting intervention without an independent showing of standing); United States v. Tennessee, 260 F.3d 587, 595 (6th Cir.2001) (same); Ruiz v. Estelle, 161 F.3d 814, 829-30 (5th Cir.1998) (same); Yniguez v. Arizona, 939 F.2d 727, 731 (9th Cir.1991) (same); U.S. Postal Serv. v. Brennan, 579 F.2d 188, 190 (2d Cir.1978) (same). The Seventh, Eighth, and D.C. Circuits, on the other hand, require a demonstration of intervenor standing in all cases. See Jones v. Prince George's County, 348 F.3d 1014, 1017 (D.C.Cir.2003) (requiring intervenors demonstrate standing in addition to Rule 24 requirements); South Dakota v. Ubbelohde, 330 F.3d 1014, 1023 (8th Cir.2003) (same); Solid Waste Agency v. U.S. Army Corps of Eng'rs, 101 F.3d 503, 507 (7th Cir.1996) (same).

D. Vermont Notes Split Re Whether BOP Officials are Law Enforcement Officials Under Federal Tort Claims Act

Per Carter v. U.S., Slip Copy, 2007 WL 2439500 (D.Vt . Aug 23, 2007) (NO. 106-CV-225):

The second question is whether BOP officials are law enforcement officers under § 2680(c). While some circuits have held that § 2860(c) extends to all detentions by law enforcement officers, see Chapa, 339 F.3d at 390; Bramwell v. Bureau of Prisons, 348 F.3d 804, 807 (9th Cir.2003); Hatten v. White, 275 F.3d 1208, 1210 (10th Cir.2002); Schlaebitz v. Dep' of Justice, 924 F.2d 193, 195 (11th Cir.1991); Ysasi v. Rivkind, 856 F.2d 1520, 1525 (Fed.Cir.1988), others have limited the exception to the tax and customs contexts, see Kurinsky v. United States, 33 F.3d 594, 598 (6th Cir.1994), cert. denied, 514 U.S. 1082 (1995) ; Bazuaye v. United States, 83 F.3d 482, 486 (D.C.Cir.1996). In a recently-filed notice of supplemental authority, the government has notified the Court that the United States Supreme Court will be addressing this circuit split in the near future.