Category Archives: Circuit Splits

Is geographic location relevant when “caring for” a family member under the Family Medical Leave Act?

Author: Stephanie Scott, Associate Member, University of Cincinnati Law Review

The Family Medical Leave Act (FMLA) allows employees to take up to twelve weeks of unpaid leave to care for a family member with a serious health condition.[1]  However, courts have struggled to interpret what “caring for” a family member must consist of under the FMLA. Particularly, limitations on the geographic locations Continue reading

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Green v. Brennan: Choosing the Appropriate Standard for Limitation Periods

Author: Chris Gant, Contributing Member, University of Cincinnati Law Review

 You have probably heard the old saying that “timing is everything.” This statement is true in many aspects of life. For example, a well-timed joke can be the difference between laughter and awkward silence. In law, the time at which a cause of action begins to accrue can be vital to a plaintiff’s case. If a plaintiff’s timing is off, the claim may never reach adjudication on the merits. In an upcoming decision, Green v. Brennan, the Supreme Court will resolve a federal circuit split Continue reading

Migratory Bird Act: What Does Taking Mean?

Author: Maxel Moreland, Associate Member, University of Cincinnati Law Review

The Migratory Bird Treaty Act (MBTA) makes it unlawful to “take” protected migratory birds.[1] However, using two methods of statutory interpretation, a circuit split has developed over different definitions of “take” under the MBTA. The first, narrower interpretation from the Fifth Circuit must involve the intentional killings of migratory birds.[2] The Fifth Circuit’s analysis is the most recent interpretation of the MBTA and is the more persuasive analysis to define “take.” Continue reading

Substantial Burden: Religious Accommodations Under the ACA

Author: Brooke Logsdon, Associate Member, University of Cincinnati Law Review         

In Burwell v. Hobby Lobby, the Supreme Court required the government to provide objecting employers with accommodations when their religious beliefs conflict with requirements of the Affordable Care Act.[1] Following the Supreme Court’s decision in Hobby Lobby a number of circuits have held that the government accommodation for non-profit, religious organizations does not substantially burden the non-profits’ religious beliefs. Continue reading

Conspiracy and the Scope of the Hobbs Act

Author: Chris Gant, Contributing Member, University of Cincinnati Law Review

“You see that right there? Special Investigations Unit. Special. Get it? Ten grand. First of each month. Deliver it right here.”[1] This excerpt from the film American Gangster is an example of how a corrupt law enforcement officer might extort a criminal like Frank Lucas into paying bribes. Congress enacted the Hobbs Act in 1946 to prohibit public officials from obtaining property from others by extortion.[2] Continue reading

Governmental Invasion of Privacy: Warrantless Cellphone Tracking

Author: Maxel Moreland, Associate Member, University of Cincinnati Law Review

Cell phone use is now an essential part of daily life. Individuals use cell phones for entertainment, business, and as their main source of communication. The Stored Communications Act (“SCA”) allows a court to issue an order compelling third-parties to disclose stored electronic records to the government so long as the government reasonably believes that the records are relevant to a criminal investigation.[1] However, the standard for securing a traditional warrant—probable cause—is markedly higher than the SCA’s reasonable belief standard. Continue reading

A Real Life Monty Brewster: Can You Spend $30 Million To Escape From the IRS?

Author: Dan Stroh, Associate Member, University of Cincinnati Law Review

A current circuit split poses an imperative question: Can a hypothetical multi-millionaire, like Monty Brewster, spend his millions frivolously without fear of a tax penalty following him through bankruptcy?[1] The United States Bankruptcy Code generally allows debtors to discharge all debts arising prior to filing of bankruptcy.[2] One exception to this general rule prohibits a debtor from discharging any tax debt “with respect to which the debtor made a fraudulent return or willfully attempted in any manner to evade or defeat such tax.”[3] However, the Ninth and Tenth Circuits disagree on the debtor’s degree of culpability required to deny a discharge of indebtedness under this exception.[4] Continue reading

Defining “Public Disclosure” Under The False Claims Act: How Loud Must The Whistle Be Blown?

Author: Collin L. Ryan, Associate Member, University of Cincinnati Law Review

The term “whistleblower,” in general, refers to someone who informs on another’s illegal activities. The False Claims Act (FCA), for example, is one of several federal statutes that encourage individuals to disclose to the government their knowledge of another’s illegal activities, i.e., to blow the proverbial whistle.[1] Under the FCA, private individuals can receive large sums of money for blowing the whistle on fraud committed against the government. But once a whistle is blown, the FCA’s “public disclosure bar” prevents subsequent whistleblowers from obtaining rewards for the previously-disclosed fraud.[2] The issue, therefore, is in what manner must the whistle be blown in order for the FCA’s public disclosure bar to go into effect. For a majority of circuit courts that have addressed the issue, the public disclosure bar is not triggered unless the whistle is blown loud enough for the general public to hear it.[3] The Seventh Circuit, however, holds the whistle needs to be blown only loud enough for it to reach the ears of “a competent government official,” regardless of whether the public hears it.[4] Because the Seventh Circuit’s interpretation aligns more with the purpose of the FCA’s whistleblowing provision, it is more persuasive and should be followed by other courts.

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Three Strikes and (Maybe) You’re Out: Coleman v. Tollefson

Author: Chris Gant, Associate Member, University of Cincinnati Law Review

The adage borrowed from baseball, “three strikes and you’re out,” is used in law in different contexts. Many states have enacted “three-strikes” laws to punish repeat offenders: under these laws, a criminal receives a much longer sentence on his third conviction.[1] Another example is found in the Prison Litigation Reform Act (PLRA), under which inmates are prohibited from receiving in forma pauperis[2] status if they have brought three or more civil claims seeking in forma pauperis status that were dismissed.[3] Thus, in the baseball context, a PLRA dismissal is considered a “strike,” and the denial of pauper status is the “out.” However, the analogy is problematic in the legal context. Unlike in baseball, where the umpire’s decision to call a strike is unreviewable, a party in court can appeal the lower court’s decision. This hiccup in the baseball analogy is the question that was argued on February 24, 2015 in front of the Supreme Court in the case of Coleman-Bey v. Tollefson. The question was whether, under the “three strikes” provision of the PLRA, a district court’s dismissal of a lawsuit counts as a “strike” while it is still pending on appeal or before the time for seeking appellate review has passed.

In this case, the Sixth Circuit Court of Appeals issued a ruling contrary to the majority of its sister circuits. The Sixth Circuit held that a dismissal of a PLRA civil suit, while on appeal, counts as a third strike under the PLRA, and therefore precluded Coleman-Bey from receiving pauper status on his fourth PLRA claim during the pendency of the appeal of the third claim. The Sixth Circuit’s holding should be rejected by the Supreme Court because dismissals should only count as strikes under the PLRA when the plaintiff has exhausted or waived his appellate rights. This is the better, nondiscriminatory ruling, especially in light of the relatively small burden that pauper status places on the courts and Congress’s intent with the PLRA to penalize frivolous litigation, not freeze out meritorious claims.

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Warrantless Searches for Probationers: The Reasonableness of SCOTUS’s Balancing Test

Author: Collin L. Ryan, Associate Member, University of Cincinnati Law Review

When convicted felons are released on probation, may officers conduct a warrantless search of their homes without violating any constitutional rights protected under the Fourth Amendment? The Supreme Court, by conducting a balancing test, holds that officers may do so when they have a “reasonable suspicion” that probationers are violating their probation conditions; a standard of protection lower than the “probable cause” standard that protects fully free citizens from warrantless searches.[1] The specific fact-pattern before the Court that prompted this rule, however, involved a probation condition that explicitly stated a probationer will be subject to warrantless searches.[2]

But when the probationary condition is less explicit and merely subjects the probationer to unannounced home visits at any time, does the Court’s balancing test still apply, or does the legal analysis change? A current circuit split exists regarding that precise issue—the Fourth Circuit finds such warrantless searches based on a “reasonable suspicion” categorically unlawful, while the Eleventh Circuit permits them when they satisfy the Court’s balancing test.[3] Although the courts’ different interpretations are sensible, as a public policy matter, the Eleventh Circuit’s interpretation should be adopted because it better promotes the rehabilitative and societal-protective purposes of releasing individuals on probation.

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