Eighth Circuit Notes Intra-Circuit Split Re Appropriateness of Plain-Error Review in the Habeas Context

Per Chang v. Minnesota, --- F.3d ----, 2008 WL 850210 (8th Cir. Apr. 01, 2008):

There appears to be a decisional split within our Circuit regarding the appropriateness of plain-error review in the habeas context. In James v. Bowersox, Chief Judge Loken wrote that “we may not simply conduct our own plain error review de novo,” but must apply AEDPA (and, according to the Supreme Court in Fry, Brecht ). 187 F.3d 866, 869 (8th Cir.1999). This rule is in line with the Supreme Court's ruling in Frady. In that case, the Court held that “the ‘plain error’ standard is out of place when a prisoner launches a collateral attack against a criminal conviction.” United States v. Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (ruling in the context of a § 2255 proceeding); see also id., at 181 (Brennan, J., dissenting) (noting that the “Court's assumption that [plain-error review] is inapplicable to proceedings under § 2255 is built upon dictum in Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977), which suggests that the plain-error Rule is inapplicable in a habeas corpus action under 28 U.S.C. § 2254”). In contrast, courts such as the Richardson court have reviewed for plain error when the state court did so. 188 F.3d at 979. When there is an intra-circuit split, we are free to choose which line of cases to follow, and we choose to follow James and Frady. Kostelec v. State Farm Fire & Cas. Co., 64 F.3d 1220, 1228 n. 8 (8th Cir.1995).

D. Md. Notes Split Re Whether Incidents that Occur Outside of the Office Contribute to a Hostile Work Environment

Per Reed v. Airtran Airways, 531 F.Supp.2d 660 (D. Md. Jan. 22, 2008):

The circuits are split on whether incidents that occur outside of the office contribute to a hostile work environment. See e.g., Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 510-11 (5th Cir.2003) (concluding that “a harassment claim, to be cognizable, must affect a person's working environment” and excluding supervisors' comments over the phone and in writing during a period when plaintiff was not working); cf. Crowley v. L.L. Bean, Inc., 303 F.3d 387, 409 (1st Cir.2002) (permitting non-workplace conduct as evidence that the behavior was motivated by animus toward the protected class-in that case, women).

D. Hawai'i Notes Split Re Whether Courts Have Jurisdiction to Enforce Private Employer Settlement Agreements Prior to EEOC Involvement

Per Munoz v. England, Slip Copy, 2008 WL 723596 (D. Hawai‘i Mar. 18, 2008):

The court recognizes the circuit split regarding whether courts have jurisdiction to enforce private employer (as opposed to federal agency) settlement agreements reached prior to EEOC involvement, i.e., “predetermination settlement agreements.” See Lindstrom v. United States, 510 F.3d 1191, 1195 n. 5 (10th Cir.2007) (collecting cases); Kraft v. Johanns, 2007 WL 2212890, at * 13 (D.N.D. Jul.31, 2007) (same). The Ninth Circuit has determined that in the private sector, “[g]enuine investigation, reasonable cause determination and conciliation are jurisdictional conditions precedent to suit....” E.E.O.C. v. Pierce Packing Co., 669 F.2d 605, 608 (9th Cir.1982); see also Cook v. City of Pomona, 884 F.Supp. 1457, 1462-63 (C.D.Cal.1995) (applying Pierce Packing Co. to find that an action seeking enforcement of a settlement agreement between two private parties was not brought under Title VII, but was rather “merely an action to enforce a private settlement agreement” governed by state law).

N.D. Cal. Notes Split Re Eighth Amendment Recognition of De Minimis Uses of Force against Prisoners

Per Sweets v. Contra Costa County Bd. of Supervisors, Slip Copy, 2008 WL 728551 (N.D. Cal. Mar. 17, 2008:

Every malevolent touch by a prison guard does not give rise to a federal cause of action. The Eighth Amendment's prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition de minimis uses of physical force. Hudson, 503 U.S. at 9-10. The circuits are split regarding whether a prisoner must prove that he suffered more than a de minimis injury in order to prevail on an excessive force claim. Compare Brooks v. Kyler, 204 F.3d 102, 108 (3d Cir.2000) (holding that “absence of objective proof of non- de minimis injury does not alone warrant dismissal.”) and Moore v. Holbrook, 2 F.3d 697, 700 (6th Cir.1993) (“No actual injury needs to be proven to state a viable Eighth Amendment claim.”) with Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir.1999) (holding that “a prisoner must have suffered from the excessive force a more than de minimis injury”) and Norman v. Taylor, 25 F.3d 1259, 1263 (4th Cir.1994) ( en banc ) (absent most extraordinary circumstances plaintiff cannot prevail if his inury is de minimis ), cert denied, 513 U.S. 1114 (1995). The Ninth Circuit has not addressed directly this issue. However, it has suggested that a prisoner need not demonstrate more than de minimis injury to state an Eighth Amendment claim. See Oliver v.. Keller, 289 F.3d 623, 628 (9th Cir2002) (clarifying that adoption of the physical injury standard under 42 U.S.C. § 1997e(e) does not require that “the injury must be more than de minimis” ).

Sixth Circuit Weighs in on Split Re Whether 1991 Amendment to Sec. 1981 Created Action against State Actors

Per Arendale v. City of Memphis, --- F.3d ----, 2008 WL 731226 (6th Cir. Mar. 20, 2008):

While § 1981 does not expressly afford a cause of action to private parties, the Supreme Court held in Runyon v. McCrary, 427 U.S. 160 (1976), that private defendants may be held liable under its provisions. Id. at 174-175. Plaintiff claims that § 1981 also contains an implicit cause of action against municipalities that engage in racial discrimination in employment. In Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989), however, the Supreme Court held that § 1981's implicit cause of action does not extend to suits brought against state actors. Id. at 732. While Plaintiff argues that a 1991 amendment to § 1981 overruled Jett, Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071, 1071-72 (1991), we disagree.

. . .

The circuits are split on whether subsection (c) creates a private cause of action against state actors, thus overruling the Supreme Court's decision in Jett. Compare id. with Bolden v. City of Topeka, 441 F.3d 1129, 1137 (10th Cir.2006) (“[S]ubsection (c) ... hardly confronts the holding in Jett.”); Butts v. County of Volusia, 222 F.3d 891, 894 (11th Cir.2000) ( “[Section] 1981 makes clear that the section creates a right that private or state actors may violate but does not itself create a remedy for that violation.”); Dennis v. County of Fairfax, 55 F.3d 151, 156 n. 1 (4th Cir.1995) (“[S]ubsection (c) did not purport to overrule Jett's holding with respect to municipal liability....”). In order to determine which side of this split the Sixth Circuit will join, this Court must determine whether subsection (c) “displays an intent to create not just a private right but also a private remedy.” Sandoval, 532 U.S. at 286. Such an inquiry reveals that § 1981(c) does not provide Plaintiff with the cause of action he seeks.

. . .

[W]e conclude that § 1981(c) was directed at preserving the Supreme Court's decision in Runyon, not, as Plaintiff argues, at overruling Jett.

D. Mass Notes Split Re Whether Title II of ADA Extends to the Employment Context

Per Brown v. Massachusetts Office on Disability, Slip Copy, 2008 WL 687412 D. Mass. Mar. 07, 2008):

Plaintiff next claims pursuant to Title II of the ADA, which provides in relevant part, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Although plaintiff invokes Title II of the ADA, the Complaint cites to sections of Title I of that act to claim protection from employment discrimination. There is a split among the circuits whether the protections of Title II extend to the employment context. See Currie v. Group Ins. Comm'n, 290 F.3d 1, 6-7 (1st Cir.2002) (declining to decide the issue); Carmona-Rivera v. Puerto Rico, 464 F.3d 14, 17 (1st Cir.2006) (same).

9th Circuit Notes Split Re Whether Illegally Seized Property Must Be Suppressed when It Is the Object of a Forfeiture

Per U.S. v. $493,850.00 in U.S. Currency, --- F.3d ----, 2008 WL 659574 (9th Cir. Mar. 13, 2008):

We note that circuit courts are split on the issue whether and to what extent illegally seized property must be suppressed when it is the object of a forfeiture action. David B. Smith, Prosecution and Def. of Forfeiture Cases § 10.05[8] (2007) (noting that this issue may be dispositive when illegally seized res is currency); see also United States v. $557,933.89 in U.S. Currency, 287 F.3d 66, 80 (2d Cir.2002) (undecided); United States v. $36,634 in U.S. Currency, 103 F.3d 1048, 1052 n. 3 (1st Cir.1997), superseded on other grounds as stated in United States v. Lopez-Burgos, 435 F.3d 1, 2 (1st Cir.2006) (limited admissibility); United States v. $12,390 in U.S. Currency, 956 F.2d 801, 806 (8th Cir.1992) (admissible); United States v. $639,585 in U.S. Currency, 955 F.2d 712, 715 n. 5 (D.C.Cir.1992) (limited admissibility).