Monthly Archives: May 2017

Ask the Jury: The Sentencing Commission is Out of Touch with American Morality

Author: Alexander Spaulding, Associate Member, University of Cincinnati Law Review

At federal sentencing hearings across the country, the judge takes the time to explain how her hands are tied by an independent agency in Washington, DC, the United States Sentencing Commission.[1] The judge explains to the defendant and others in attendance that she is required by law to start her sentencing analysis with the Federal Sentencing Guidelines that accounts for all of two factors before dictating a recommended sentence.[2] Only then may the judge impose a sentence different (lesser in almost every case)[3]than what the guidelines recommend, and furthermore, she must elaborate upon why she has amended the sentence.[4] Regardless, any sentence is still subject to the constraints of the statutory mandatory minimums.[5] The goal of all the statutory constraints on federal sentences is to create uniformity in federal sentencing,[6] so that a hypothetical defendant in Texas is not incarcerated for decades for committing the same crime while one in California is slapped on the wrist. However, uniformity in sentencing has come at the price of reasonability. The Sentencing Commission’s recommended sentences are out of touch with the sentiments of many communities across the country, and the agency should use federal judges and juries, that deal with sentencing every day, as a resource to ensure that the sentences are not punishing people beyond what our society believes is reasonable or necessary. Continue reading


You Can’t Fire Me!

Author: Andrew Fernandez, Associate Member, University of Cincinnati Law Review

Modern life in American is often lived at a frantic pace and it is difficult for families to balance their work and family obligations. The Family & Medical Leave Act (FMLA) is designed to promote work-life balance in America.[1] It seeks to promote equal employment opportunities for men and women while balancing the interests of employers.[2] “The FMLA applies to all public agencies, pre-university schools, and companies with fifty or more employees.”[3] It requires covered employers to provide up to twelve weeks of unpaid job leave for a variety of reasons.[4] These reasons may include caring for an ill family member, the birth of a child, and individual health concerns.[5] Litigation surrounding this statute often questions whether an employer’s denial of leave to an employee violates the FMLA. In these cases, an important issue is when the statute of limitations begins running. The Seventh Circuit ruled that the statute of limitation begins to run when the violation of the FMLA occurs, not when the termination occurs.[6] The Sixth Circuit took the opposite approach, holding the statute of limitation begins at the employee’s termination.[7] While the policy of the Sixth Circuit decision is well intentioned, there is no support for the decision in the FMLA text. Congress should amend the statute to reflect the policy of Sixth Circuit in response to the circuit split.

Seventh Circuit Decision

The Seventh Circuit recently weighed in on the issue of when the FMLA statute of limitations starts to run. In Barrett, the plaintiff was employed by the Illinois Department of Corrections (“department”).[8] The employee was fired after twelve unauthorized absences in seven months.[9] The employee argued that three of the absences were protected under the FMLA because the absences were for family or medical care.[10] On each of the three occasions, the employee’s supervisor was notified of her absence but never received authorization to be absent.[11]On appeal, all three times the Employee Review Board rejected her request for leave.[12]

The court began by looking at the plain language of the statute, which states “an action may be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.”[13] The court reasoned, “when a[n] FMLA plaintiff alleges that his employer violated the Act by denying qualifying leave, the last event constituting the claim ordinarily will be the employer’s rejection of the employee’s request for leave.”[14] Using this language, the court held the statute of limitations began every time the Employee Review Board ruled against the plaintiff’s request for leave.[15] The plaintiff did not file her complaint until 2012, but her Employee Review Board hearings had occurred in 2004 and 2005. [16] Therefore, she was several years too late in bringing her claim against her employer.[17] The court rejected an argument from the plaintiff that her termination was the last event creating a FMLA violation. [18] The court reasoned the plaintiff’s argument that there can be more than last event under § 2617 (c) (1) was not supported by the statutory language.[19] Further, nothing in § 2617 (c) (1) supports an open-ended tolling rule holding the statute of limitations indefinitely.[20] The court acknowledged that forcing a plaintiff to file in litigation for every contested absence that may only result in minor discipline is not practical for many plaintiffs.[21] The court briefly mentioned the Secretary of Labor’s power to investigate FMLA complaints and suggested Congress may have considered these complaints be adjudicated by a federal agency as opposed to a federal court.[22]

Sixth Circuit Decision

In Butler, the employee worked for Owens-Brockway, a plastics products company, and was terminated for accumulating twelve points in a year and half under the company absentee policy.[23] Under this company policy, a worker who accumulated twelve points in a year could be terminated.[24] The employee was warned that she was placed on sixth month probation after her twelfth point accumulated.[25] That same day, she called in sick and was terminated.[26] The employee alleged that three of those absences were protected by the FMLA resulting in a violation of the statute.[27] The employer argued the statute of limitations should be based on the absences in the plaintiff’s employment record since termination occurs as a result of the absences accumulating. [28] The court ruled against the employer, and held that the “Plaintiff’s termination was the first material adverse action in this case, because it was the first action serious enough to warrant plaintiff’s resort to the legal system”.[29] If the alternative were true, then plaintiff would be forced to file suit after every contested absence in the record.[30] This interpretation would flood the legal system with litigation.[31]


The Sixth Circuit opinion policy rationale is intuitive. Interpreting the statute of limitations to run after one employee absence will flood the courts with premature claims.  However, the Seventh Circuit decision may actually decrease the amount of future claims. The plaintiff in the Seventh Circuit decision noted the impracticality of contesting every possible FMLA violation. [32] Potential plaintiffs are almost certainly short of money and time to devote to a lawsuit. Requiring plaintiffs to contest every one of their disputed absences in order to receive relief from the FMLA would discourage plaintiffs from seeking the protection of FMLA. In turn, this interpretation could embolden employers to violate the statute, confident that few people would be willing to litigate multiple challenges to contested absences. In contrast, a statute that allows employees to sue after their termination is a fair compromise because it is a significant event worth the effort of litigation. This puts the employee in the best position to sue for FMLA violations.

The Seventh Circuit position that FMLA violations were meant to be investigated by federal agencies as opposed to litigation is not a compelling position.[33] It is the most logical interpretation looking at the plain language of the statue.[34] Yet, it does not make sense that Congress would create a civil right of action not intending it to be used along the Secretary of Labor’s power to investigate violations. It seems unlikely Congress would create a toothless civil action if it wanted FMLA violations to be exclusively investigated and resolved by a federal agency. This interpretation promotes the application of the Sixth Circuit’s holding, however, just because the Sixth Circuits reasoning makes the most sense does not make it legally valid.

While the policy of the Sixth Circuit makes sense, unfortunately this ruling is not grounded in law. The Sixth Circuit does not use the text of the FMLA statute at all in making its determination. The court reached its decision because it reasoned an employee’s termination is the first action serious enough to warrant a lawsuit by the plaintiff. The Court decided this would lead to the federal courts being flooded with FMLA litigation because plaintiffs would be forced to bring lawsuits whenever a negative mark is assessed on an employee’s absence record. The court simply reaches an interpretation it feels makes the most sense for the statute. By not analyzing the statute, the court substitutes its own judgement in interpreting the statute instead of attempting to determine what the legislature intended. Undoubtedly, judges will have to make tough decisions when interpreting statutes. These decisions should be made by attempting to make some sort of statutory interpretation however. Otherwise, judges simply pontificate their views from the bench. For example, the Seventh Circuit notes in a footnote how unhelpful it found the Sixth Circuit decision because its reasoning was not based upon a reading of the statute. [35]

Congress should amend the FMLA statute in order to reflect the policy of the Sixth Circuit decision. “Except as provided in paragraph (2), an action may be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.” The statute’s language does not allow for more than one last event.[36] The statute requires a plaintiff to file suit after a particular event.[37] The statute does not give the plaintiff an option to sue after an absence in the record but then give them another opportunity to do so when the plaintiff is fired.[38] Nor does the statute support an interpretation of an indefinite statute of limitations.[39] Therefore, the Supreme Court’s best option would be to resolve the split in the direction of the Seventh Circuit. Congress has the power to amend the law to resolve this circuit split and improve the law for future plaintiffs. No longer will plaintiffs be penalized for their lack of resources or inability to devote time to a lawsuit regarding a disputed disciplinary record.


In conclusion, the Seventh Circuit decision reached the appropriate decision based on a proper understanding standing of the law and the statutory text. The Sixth Circuit decision, while inserting its own rationale as opposed to attempting to determine what the statute actually meant, has the appropriate policy considerations in place. Congress should amend the FMLA to allow plaintiffs to bring their FMLA claims after termination of employment as opposed to when the FMLA violation took place. This amendment will improve access to future plaintiffs while also ensuring employers are able to better judge the risk of litigation.

[1] See 29 USCA § 2601.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Barrett v. Illinois Dept. of Corrections, 803 F.3d 893, 897 (7th Cir. 2015).

[7] Butler v. Owens-Brockway Plastics Products, 199 F.3d 314, (6th Cir. 1999).


[8] Barrett, 803 F.3d at 897.

[9] Id.

[10] Id.

[11] See Barrett, 803 F.3d at 896

[12] See id.

[13] 29 U.S.C § 2617 (c) (1).

[14] Id. at 897.

[15] Id.

[16] Id.

[17] Id.

[18] Barrett, 803 F.3d at 899.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Butler, 199 F.3d at 315.

[24] Id.

[25] Id.

[26] Id. at 316.

[27] Butler, 199 F.3d at 316.

[28] Id. at 317.

[29] Id.

[30] Id.

[31] Id.

[32] Barrett, 803 F.3d at 899.

[33] Id.

[34] Barrett, 803 F.3d at 897.

[35] To be fair, the 7th Circuit Court also criticizes the 8th Circuit for a “thinly reasoned” opinion even though the 7th Circuit reached the same conclusion as the eighth. Barrett, 803 F.3d at 896 n.1.

[36] Barrett, 803 F.3d at 897.

[37] See id. at 899

[38] See id.

[39] See id.  at 897.

Brown v. Battle Creek Police Department: Highlighting the Controversial Intersection of Man’s Best Friend, Qualified Immunity, and the Fourth Amendment

Author: Petra Ingerson Bergman, Associate Member, University of Cincinnati Law Review

On December 22, 2016, the Sixth Circuit Court of Appeals held that a police officer’s killing of two dogs was reasonable, denying the Plaintiff’s Fourth Amendment unreasonable seizure claim.[1] The public outrage was swift and severe; many reported on the topic stating something akin to “police can kill your dog for merely barking.”[2] Although the headlines do not quite capture the facts in Brown v. Battle Creek Police Department, they do highlight the problem facing police departments and courts in a nation where thirty-six percent of households have pet dogs.[3] In one instance where the public perceived the killing of a dog as unreasonable, the “self-described activist” group Anonymous[4] retaliated against the police department responsible for killing the dog.[5]

Primarily fueling the public outrage is the assertion by police departments and later the determination by courts that the killings are reasonable.[6] Indeed, the legal analysis of a police officer killing a dog centers on the reasonableness of the officer’s actions under the circumstances. This analysis flows from a Fourth Amendment claim of unreasonable seizure, as well as the officer’s primary defense of qualified immunity.[7] Although it is often reasonable for an officer to kill a dog under the circumstances, in the case of Brown v. Battle Creek Police Department,[8] the Court unfairly ignores critical facts showing that the killing of at least one of the dogs unreasonable. Continue reading


Ryan Kenny, Associate Member, University of Cincinnati Law Review

 On June 24, 2016, House Speaker Paul Ryan (R-WIS) and Kevin Brady (R-TX), Chairman of the Ways and Means Committee, released a Blueprint outlining their proposed tax reform. The Blueprint is titled A Better Way: Our Vision for a Confident America (Blueprint).[1] The Blueprint details proposed reforms to the tax system, for individual taxation, pass-through entity taxation (such as partnerships and LLCs), and corporate taxation.[2] The individual and pass-through entity tax reform proposal consist primarily of reductions in the top marginal tax rates, and the reduction of the current seven-tax-bracket system for individual taxation, into a three-tax-bracket system.[3] Pass-through entities would have a top marginal rate of 25%.[4] Furthermore, the capital gains tax rate will match ordinary income rates, rather than the current special rates in the Internal Revenue Code (Code) §1(h).[5] However, the changes to corporate taxation are the most seismic. Not only are the top marginal rates reduced for corporations, but the underlying theories on U.S. jurisdiction to tax corporate incomes is set to change dramatically under the proposed reform. It is important to understand how corporations are currently taxed in the United States under federal income tax law. Then, the changes proposed in the Blueprint will be explained to show the changes. Any possible economic repercussions are beyond the scope of this analysis. This analysis will only cover corporations that are incorporated under state law in the United States, not foreign resident and nonresident corporations. Continue reading

Who Gets to Fill in the Blanks?

Meg Franklin, Associate Member, University of Cincinnati Law Review


In a recent case, Or. Rest. & Lodging Ass’n v. Perez, the Ninth Circuit considered whether precedent foreclosed the Department of Labor’s (DOL) ability to promulgate a formal rule.[1]  On appeal, the Ninth Circuit found that the DOL was within its authority to promulgate its regulation.[2]  The dissent disagreed and insisted that the Ninth Circuit precedent overrides the DOL regulation.[3]  Its analysis considered whether the statute was clear and unambiguous and an agency’s scope of power to promulgate rules under an ambiguous statute.[4]

In Perez, the majority and minority were divided over whether the judiciary or an agency should fill in blanks left by Congress.[5]  Yet, a third option has arisen in the form of a House of Representatives bill.[6]  Under the Regulations from the Executive in Need of Scrutiny Act of 2017 (REINS), all significant blanks found in statutes would be filled in by Congress.[7]  In other words, REINS would cancel any major regulations that do not receive explicit approval from Congress.[8]  Continue reading