Third Cir. Characterizes "Hybrid-Rights Theory" as Dicta in Split from Other Circuits

Per Combs v. Homer-Center School Dist., --- F.3d ----, 2008 WL 3863701 (3rd Cir. Aug 21, 2008):

Smith's hybrid-rights theory has divided our sister circuits. Some characterize the theory as dicta and others use different standards to decide whether a plaintiff has asserted a cognizable hybrid-rights claim. The United States Courts of Appeals for the Second and Sixth Circuits have concluded the hybrid-rights language in Smith is dicta. See Leebaert v. Harrington, 332 F.3d 134, 143 (2d Cir.2003) (citing Knight v. Connecticut Dep't of Pub. Health, 275 F.3d 156, 167 (2d Cir.2001)); Watchtower Bible & Tract Soc'y of New York, Inc. v. Stratton, 240 F.3d 553, 561-62 (6th Cir.2001), rev'd on other grounds, 536 U.S. 150, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002); Kissinger v. Bd. of Trs. of Ohio State Univ., Coll. of Veterinary Med., 5 F.3d 177, 180 (6th Cir.1993). Furthermore, the United States Court of Appeals for the Sixth Circuit views the hybrid-rights exception as "completely illogical," Kissinger, 5 F.3d at 180, and the United States Court of Appeals for the Second Circuit "can think of no good reason for the standard of review to vary simply with the number of constitutional rights that the plaintiff asserts have been violated," Leebaert, 332 F.3d at 144. Accordingly, when faced with a neutral law of general applicability, both appellate courts decline to allow the application of strict scrutiny to hybrid-rights claims and instead apply Smith's rational basis standard. See Leebaert, 332 F.3d at 144 (" '[A]t least until the Supreme Court holds that legal standards under the Free Exercise Clause vary depending on whether other constitutional rights are implicated, we will not use a stricter legal standard' to evaluate hybrid claims." (quoting Kissinger, 5 F.3d at 180)).

The United States Courts of Appeals for the First Circuit and District of Columbia have acknowledged that hybrid-rights claims may warrant heightened scrutiny, but have suggested that a plaintiff must meet a stringent standard: the free exercise claim must be conjoined with an independently viable companion right. See Henderson v. Kennedy, 253 F.3d 12, 19 (D.C.Cir.2001) (rejecting the "hybrid claim" argument that "the combination of two untenable claims equals a tenable one"); E.E. O.C. v. Catholic Univ. of Am., 83 F.3d 455, 467 (D.C.Cir.1996) (finding that the EEOC's violation of the Establishment Clause triggered the hybrid-rights exception); Gary S. v. Manchester Sch. Dist., 374 F.3d 15, 18-19 (1st Cir.2004) (citing Gary S. v. Manchester Sch. Dist., 241 F.Supp.2d 111, 121 (D.N.H.2003)) (affirming, for the same reasons, the district court's rejection of a hybrid-rights claim because the free exercise claim was not conjoined with an independently viable companion claim); Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525, 539 (1st Cir.1995) (rejecting a hybrid-rights claim because "[plaintiff's] free exercise challenge is ... not conjoined with an independently protected constitutional protection").^FN21

. . .

The United States Courts of Appeals for the Ninth and Tenth Circuits recognize hybrid rights and require a plaintiff to raise a "colorable claim that a companion right has been violated." San Jose Christian Coll. v. Morgan Hill, 360 F.3d 1024, 1032 (9th Cir.2004); see also Axson-Flynn, 356 F.3d at 1297.

. . .

Until the Supreme Court provides direction, we believe the hybrid-rights theory to be dicta.

Third Cir. Characterizes "Hybrid-Rights Theory" as Dicta in Split from Other Circuits

Per Combs v. Homer-Center School Dist., --- F.3d ----, 2008 WL 3863701 (3rd Cir. Aug 21, 2008):

Smith's hybrid-rights theory has divided our sister circuits. Some characterize the theory as dicta and others use different standards to decide whether a plaintiff has asserted a cognizable hybrid-rights claim. The United States Courts of Appeals for the Second and Sixth Circuits have concluded the hybrid-rights language in Smith is dicta. See Leebaert v. Harrington, 332 F.3d 134, 143 (2d Cir.2003) (citing Knight v. Connecticut Dep't of Pub. Health, 275 F.3d 156, 167 (2d Cir.2001)); Watchtower Bible & Tract Soc'y of New York, Inc. v. Stratton, 240 F.3d 553, 561-62 (6th Cir.2001), rev'd on other grounds, 536 U.S. 150, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002); Kissinger v. Bd. of Trs. of Ohio State Univ., Coll. of Veterinary Med., 5 F.3d 177, 180 (6th Cir.1993). Furthermore, the United States Court of Appeals for the Sixth Circuit views the hybrid-rights exception as "completely illogical," Kissinger, 5 F.3d at 180, and the United States Court of Appeals for the Second Circuit "can think of no good reason for the standard of review to vary simply with the number of constitutional rights that the plaintiff asserts have been violated," Leebaert, 332 F.3d at 144. Accordingly, when faced with a neutral law of general applicability, both appellate courts decline to allow the application of strict scrutiny to hybrid-rights claims and instead apply Smith's rational basis standard. See Leebaert, 332 F.3d at 144 (" '[A]t least until the Supreme Court holds that legal standards under the Free Exercise Clause vary depending on whether other constitutional rights are implicated, we will not use a stricter legal standard' to evaluate hybrid claims." (quoting Kissinger, 5 F.3d at 180)).

The United States Courts of Appeals for the First Circuit and District of Columbia have acknowledged that hybrid-rights claims may warrant heightened scrutiny, but have suggested that a plaintiff must meet a stringent standard: the free exercise claim must be conjoined with an independently viable companion right. See Henderson v. Kennedy, 253 F.3d 12, 19 (D.C.Cir.2001) (rejecting the "hybrid claim" argument that "the combination of two untenable claims equals a tenable one"); E.E. O.C. v. Catholic Univ. of Am., 83 F.3d 455, 467 (D.C.Cir.1996) (finding that the EEOC's violation of the Establishment Clause triggered the hybrid-rights exception); Gary S. v. Manchester Sch. Dist., 374 F.3d 15, 18-19 (1st Cir.2004) (citing Gary S. v. Manchester Sch. Dist., 241 F.Supp.2d 111, 121 (D.N.H.2003)) (affirming, for the same reasons, the district court's rejection of a hybrid-rights claim because the free exercise claim was not conjoined with an independently viable companion claim); Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525, 539 (1st Cir.1995) (rejecting a hybrid-rights claim because "[plaintiff's] free exercise challenge is ... not conjoined with an independently protected constitutional protection").^FN21

. . .

The United States Courts of Appeals for the Ninth and Tenth Circuits recognize hybrid rights and require a plaintiff to raise a "colorable claim that a companion right has been violated." San Jose Christian Coll. v. Morgan Hill, 360 F.3d 1024, 1032 (9th Cir.2004); see also Axson-Flynn, 356 F.3d at 1297.

. . .

Until the Supreme Court provides direction, we believe the hybrid-rights theory to be dicta.

S.D. Ohio Reports Circuit Split Re Whether Plan Administrators, as Opposed to the Plan Itself, May be Defendants in ERISA Action

Per Garringer v. Employer Ben. Services of Ohio, Inc., 2008 WL 3822311 (S.D. Ohio Aug 12, 2008):

Although the circuits are split on the issue of whether a plan is the only proper defendant in a suit to recover benefits under section 502(a)(1)(B), in the Sixth Circuit, plan administrators may be properly named as parties in an ERISA action. "[I]n the Sixth Circuit, the proper party defendant in an ERISA action concerning benefits is the party that is shown to control administration of the plan." Little v. UNUM Provident Corp., 196 F.Supp.2d 659, 672 (S.D.Ohio 2002), citing Daniel v. Eaton Corp., 839 F.2d 263, 266 (6th Cir., 1988); see also, Strickrath v. The Hartford Insurance Co., No. C-2-06-1080, 2008 WL 835686 at *6 (S.D.Oh. Mar.28, 2008).

Fifth Circuit Sides With Eleventh Circuit and Taxpayer in Lisle, Orders Tax Court to Adopt Special Trial Judge's Report

The Tax Prof Blog is reporting that on Monday the 5th Circuit sided with the 11th Circuit and the taxpayer in the long-running Ballard - Kanter - Lisle saga in Lisle v. Commissioner, No. 07-60862 (Consolidated with 07-60863 & 07-60864) (5th Cir. Aug. 25, 2008):

In this appeal, unlike the first, we have the benefit of the fact findings and conclusions of the Special Trial Judge that were rejected by the Tax Court and obscured in the first appeal. With the benefit of a complete record, our equivocal findings in the first appeal, and the findings of the Eleventh Circuit in the appeal of the related case affecting taxpayer Ballard, Ballard v. Comm’r, 522 F.3d 1229 (11th Cir. 2008) (Ballard III), we conclude that the Tax Court reviewing the report of the Special Trial Judge failed to give due regard to the factfindings of the trial judge and erred in issuing a judgment contrary to those findings. Accordingly, for the reasons set forth below, we vacate the Tax Court’s judgment as to the Lisles and remand with instructions to issue a final order adopting the Special Trial Judge’s report.

N.D. Ill. Analyzes Circuit Split as to Whether the EEOC may Issue Early Right-to-Sue Letters

Per Krause v. Turnberry Country Club, --- F.Supp.2d ----, 2008 WL 2819353 (N.D. Ill. Apr 17, 2008):

Courts have engaged in much discussion regarding the validity of 29 C.F.R. § 1601.28(a)(2). See King v. Dunn Mem'l Hosp., 120 F.Supp.2d 752, 755 (S.D.Ind.2000) (collecting cases). While the Seventh Circuit has yet to address the issue, other circuits are split as to whether the EEOC may issue early right-to-sue letters. The Ninth Circuit, Tenth Circuit, and Eleventh Circuit have upheld 29 C.F.R. § 1601.28(a)(2) against similar challenges. See Walker v.. United Parcel Serv., 240 F.3d 1268, 1277 (10th Cir.2001); Sims v. Trus Joist MacMillan, 22 F.3d 1059 (11th Cir.1994); Brown v. Puget Sound Elec. Apprenticeship & Training Trust, 732 F.2d 726 (9th Cir.1984). The District of Columbia Circuit adopted a contrary position, which Turnberry urges this Court to adopt. See Martini v. Fed. Nat'l Mortgage Ass'n, 178 F.3d 1336, 1340-48 (D.C.Cir.1999).

Seventh Circuit Reviews Split Re Interpretation of 8 C.F.R. § 208.13 Corroboration Rule as it Applies to Credible Testimony

Per Rapheal v. Mukasey, 533 F.3d 521 (7th Cir. Jul 02, 2008):

We explained in Gontcharova that the Board's interpretation of § 208.13(a) is not the only one possible, and then explained the then-existent circuit split: The Second and Third Circuits endorsed the Board's interpretation of the regulation, while the Ninth Circuit interpreted the regulation as meaning that it "does not require corroborative evidence ... from applicants for asylum and withholding of deportation who have testified credibly." Gontcharova, 384 F.3d at 876 (quoting Ladha v. INS, 215 F.3d 889, 899 (9th Cir.2000)). We then noted in Gontcharova that "[w]e have expressed skepticism about the use of the corroboration rule to discount otherwise credible testimony." Id. at 877. However, rather than rejecting the Board's corroboration rule out of hand, we held that "[i]n order that we may review its application, ... an IJ must explain his use of it," and set forth the three-step inquiry noted above. Id. at 877.

D.C. Circuit Recognizes Split Re Application of Updated "Advisory" Sentencing Guidelines as Ex Post Facto Violation

Per U.S. v. Andrews, 532 F.3d 900 (D.C. Cir. Jul 15, 2008):

[I]n its 2005 opinion in United States v. Booker, the Supreme Court held that the Sentencing Guidelines must now be regarded as advisory rather than mandatory. 543 U.S. at 245, 125 S.Ct. 738. This circuit has not yet determined whether, after Booker, application of a later (than the date-of-offense) Guidelines Manual that yields a higher sentence continues to raise an ex post facto problem. Nor has the Supreme Court. The Seventh Circuit has concluded that use of a later Manual no longer presents such a problem, holding that "the ex post facto clause should apply only to laws and regulations that bind rather than advise." United States v. Demaree, 459 F.3d 791, 795 (7th Cir.2006). Some other courts have indicated their agreement. See United States v. Mathis, 239 Fed.Appx. 513, 517 n. 2 (11th Cir.2007); United States v. Barton, 455 F.3d 649, 655 n. 4 (6th Cir.2006); see also United States v. Rodarte-Vasquez, 488 F.3d 316, 325 (5th Cir.2007) (Jones, C.J., concurring). The Eighth Circuit, however, disagrees. See United States v. Carter, 490 F.3d 641, 643 (8th Cir.2007). And several other circuits also appear to regard the ex post facto analysis as unchanged, continuing to apply Guidelines § 1B1.11(b)(1) in the same way they did before Booker. See United States v. Gilman, 478 F.3d 440, 449 (1st Cir.2007); United States v. Wood, 486 F.3d 781, 791 (3d Cir.2007); United States v. Austin, 479 F.3d 363, 367 (5th Cir.2007); United States v. Stevens, 462 F.3d 1169, 1170 (9th Cir.2006).

We do not need to decide which side of that circuit split we would join in order to resolve this case. “Even assuming the district court erred, ... absent an opinion by this circuit or the Supreme Court on the issue in dispute, there is no plain error unless [the] district court failed to follow [an] ‘absolutely clear’ legal norm....” United States v. Vizcaino, 202 F.3d 345, 348 (D.C.Cir.2000) (quoting United States v. Merlos, 8 F.3d 48, 51 (D.C.Cir.1993)). And there is no such absolutely clear norm here.

Third Circuit Notes Recent Split Re Congress's Authority to Regulate Intrastate Activities

Per U.S. v. Stevens, 533 F.3d 218 n.22 (3rd Cir. Jul 18, 2008):

[T]he question of whether Congress exceeds its constitutional authority when regulating intrastate activities was one that had, until just recently, divided the circuits. Compare, e.g., United States v. Rodia, 194 F.3d 465, 474-82 (3d Cir.1999) (upholding statute prohibiting intrastate possession of child pornography made with materials that had traveled in interstate commerce) with United States v. Smith, 402 F.3d 1303, 1315-16 (11 th Cir.2005) (finding the same statute unconstitutional), cert. granted and vacated, 545 U.S. 1125, 125 S.Ct. 2938, 162 L.Ed.2d 863 (2005), and rev'd on remand, 459 F.3d 1276, 1284-85 (11th Cir.2006) (upholding statute as proper exercise of Commerce Clause power in light of Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005)).