SCOTUS Resolves Split Re Meaning of Armed Career Criminal Act Exception

Per Logan v. U.S., --- S.Ct. ----, 2007 WL 4232786 (Dec. 04, 2007):

We granted certiorari, 549 U.S. ----, 127 S.Ct. 1251, 167 L.Ed.2d 72 (2007), to resolve a split among the Circuits as to whether § 921(a)(20)'s [of the Armed Career Criminal Act (ACCA)] exception for “civil rights restored” should be interpreted to include civil rights retained at all times. Compare 453 F.3d, at 809 (case below) (“civil rights restored” does not include civil rights never revoked), and McGrath v. United States, 60 F.3d 1005 (C.A.2 1995) (same), with United States v. Indelicato, 97 F.3d 627, 631 (C.A.1 1996) (“civil rights restored” includes civil rights never lost).

. . .

Congress framed § 921(a)(20) to serve two purposes. See Tr. of Oral Arg. 28-29. It sought to qualify as ACCA predicate offenses violent crimes that a State classifies as misdemeanors yet punishes by a substantial term of imprisonment, i.e., more than two years. See § 921(a)(20)(B). Congress also sought to defer to a State's dispensation relieving an offender from disabling effects of a conviction. Had Congress included a retention-of-rights exemption, however, the very misdemeanors it meant to cover would escape ACCA's reach. Logan complains of an anomalous result. Yet the solution he proposes would also produce anomalies. Having no warrant to stray from § 921(a)(20)'s text, we hold that the words “civil rights restored” do not cover the case of an offender who lost no civil rights.

Fifth Circuit Discusses Split Re Is Whether 7 U.S.C. § 6912(e) Requires the Exhaustion of Administrative Remedies as a Prerequisite to Federal SMJ

Per Dawson Farms, LLC v. Farm Service Agency, 504 F.3d 592, (5th Cir. Oct. 16, 2007)

The Eighth and Ninth Circuits have held that the 7 U.S.C. § 6912(e) exhaustion requirement is jurisprudential rather than jurisdictional in its effect. The Second Circuit's contrary view is that § 6912(e) is a prerequisite to a district court's subject matter jurisdiction in a person's suit against the Secretary, the USDA, or any of its agencies, officers or employees.

. . .

[W]e now join the Eighth and Ninth Circuits in holding that § 6912(e) analogously codifies the jurisprudential doctrine of exhaustion and is not jurisdictional.

Federal Circuit Creates Split Re Reviewability of Remand Orders Based on Rejection of Supplemental Jurisdiction

Per U.S. Law Week Volume 76 Number 20, Tuesday, November 27, 2007:

An order remanding a removed case in which the district court declined to exercise supplemental jurisdiction over state claims is not reviewable in federal appeals court, the U.S. Court of Appeals for the Federal Circuit held Nov. 13 (HIF Bio Inc. v. Yung Shin Pharmaceuticals Industrial Co., Fed. Cir., No. 2006-1522, 11/13/07).

Opening up a circuit split, Judge Arthur J. Gajarsa said that recent U.S. Supreme Court pronouncements on remands undercut other circuits' view that remands based on supplemental jurisdiction are distinguishable from those based on lack of subject matter jurisdiction and therefore fall outside the jurisdictional bar of 28 U.S.C. § 1447(d).

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Seventh Circuit Notes Split Re Whether there is a Due Process Right of an Adult Child to Associate with Parent

Per Struck v. Cook County Public Guardian, --- F.3d ----, 2007 WL 4145845 (7th Cir. Nov. 26, 2007):

The plaintiff appeals from the dismissal of his suit, which the district court held was outside its jurisdiction. The complaint alleged that an Illinois state court had appointed a guardian for the plaintiff's mother because she was incompetent to manage her own affairs, and that the plaintiff had asked the court to revoke the guardianship because the guardian was abusing his mother, refusing to let him visit her, and denying him access to her records, mail, and assets. Turned down by the state court, he brought this suit in federal district court against the Cook County Public Guardian, the public official who had designated the guardian of the plaintiff's mother. The suit charges violations of both the plaintiff's and his mother's federal constitutional rights.

. . .

[T]he plaintiff does have a claim on his own behalf-that the guardian is preventing him from seeing his mother and by doing so is depriving him of liberty protected by the due process clause of the Fourteenth Amendment, liberty that he argues includes the right of an adult child to associate with his parent. Whether the argument has merit has split the circuits, as explained in Robertson v. Hecksel, 420 F.3d 1254, 1258-60 (11th Cir.2005), but remains an open question in this circuit. Jones v. Brennan, 465 F.3d 304, 308 (7th Cir.2006); Russ v. Watts, 414 F.3d 783, 790 (7th Cir.2005). We need not try to answer it in this case. For the preliminary question is whether the suit is barred by the doctrine that excepts from federal jurisdiction certain probate and domestic-relations cases, such as will contests, custody battles, and suits for divorce; and we think it is barred.

Fourth Circuit Notes Split within the Ninth Circuit Re whether the FLSA Preempts Duplicative State Law Claims

Per Anderson v. Sara Lee Corp., --- F.3d ----, 2007 WL 4098229 (4th Cir. Nov. 19, 2007):

The Ninth Circuit has suggested, without deciding, that “[c]laims that are directly covered by the FLSA (such as overtime and retaliation disputes) must be brought under the FLSA.” Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1154 (9th Cir.2000). In the wake of Williamson, district courts in the Ninth Circuit have split over whether the FLSA preempts duplicative state law claims. Compare Takacs v. A.G. Edwards & Sons, Inc., 444 F.Supp.2d 1100, 1116-18 (S.D.Cal.2006) (concluding that state claim was not preempted by FLSA), and Bahramipour v. Citigroup Global Mkts., Inc., No. C 04-4440, 2006 WL 449132, at *4-7 (N.D.Cal. Feb. 22, 2006) (same), with Flores v. Albertson's Inc., No. CV 01-00515, 2003 WL 24216269, at *5-6 (C.D.Cal. Dec. 9, 2003) (deeming state claims to be preempted by FLSA).

4th Circuit Notes Split Re Effect of Statutory Provisions Authorizing Recidivism-Based Sentencing Enhancements

Per UNITED STATES v. WILLIAMS, --- F.3d ----, 2007 WL 3379689 (4th Cir. Nov. 15, 2007):

In Baseem Shakir Williams, we did not consider the effect of statutory provisions authorizing sentencing enhancements based solely on recidivism in determining the maximum sentence prescribed by law for a predicate offense. Our sister circuits have split on the question. Compare United States v. Henton, 374 F.3d 467, 469 (7th Cir.2004) (distinguish-ing Baseem Shakir Williams, and holding that a violation of an Illinois statute that provided “that possession of less than a gram of cocaine with the intent to deliver is a Class 2 felony” carrying a statutory maximum of seven years but also permitting “any person convicted of a second or subsequent offense ... [to] be sentenced to imprisonment for a term up to twice the maximum term otherwise authorized” qualified as a “serious drug offense” if the offender was eligible for the enhancement (internal quotation marks omitted)), with United States v. Rodriquez, 464 F.3d 1072, 1080 (9th Cir.2006) (“For federal sentencing enhancement pur-poses, when we consider the prison term imposed for a prior offense, we must consider the sentence available for the crime itself, without considering separate recidivist sentencing enhancements.” (internal quotation marks omitted)).

Sixth Circuit Notes Split Re Interpretation of Tax Reform Act of 1986

Per Estate of Gerson v. C.I.R.,--- F.3d ----, 2007 WL 3307024 (6th Cir. Nov. 09, 2007):

The Code defines “generation-skipping transfer” to include “(1) a taxable distribution, (2) a taxable termination, and (3) a direct skip.” I.R.C. § 2611(a). In this case the facts evidence a direct skip, “a transfer subject to a tax imposed by chapter 11 or 12 of an interest in property to a skip person.” Id. § 2612(c)(1). The Estate thus meets the criteria under the provision's first clause.

The next step in the analysis, then, is to decide whether the “transfer is not made out of corpus added to the trust after September 25, 1985.” Tax Reform Act of 1986 § 1433(b)(2)(A).

The parties' dispute on this second clause brings to this court a question that divides three of our sister circuits and the Tax Court below. Compare Bachler v. United States, 281 F.3d 1078 (9th Cir.2002), and Simpson v. United States, 183 F.3d 812 (8th Cir.1999) (grandfathering transfer), with E. Norman Peterson Marital Trust v. Comm'r, 78 F.3d 795 (2d Cir.1996) (finding grandfather clause inapplicable). See also Gerson, 127 T.C. at 152.