I've decided to start tracking circuit splits I come across in Fifth Circuit opinions I cover on the blog. Here are TWENTY-THREE I've seen so far:

  1. The 2d, 3d, 5th, 9th, and 11th Circuits have deferred under Chevron to the BIA's interpretation of "crime of child abuse" in 8 U.S.C. § 1227(a)(2)(E)(i). Garcia v. Barr, No. 19-60097 (5th Cir. Aug. 4, 2020); Alvarez-Cerriteno v. Sessions, 899 F.3d 774, 781 (9th Cir. 2018) (deferring to the Board’s interpretation); MondragonGonzalez v. Att’y Gen., 884 F.3d 155, 159 (3d Cir. 2018) (same); Pierre v. U.S. Att’y Gen., 879 F.3d 1241, 1251 (11th Cir. 2018) (same); Florez v. Holder, 779 F.3d 207, 213-14 (2d Cir. 2015) (same). The 10th Circuit refused to defer to BIA on the same question. Ibarra v. Holder, 736 F.3d 903, 918 (10th Cir. 2013) (rejecting the BIA's interpretation).
  2. The circuits are split over what constitutes statutorily protected activity within the meaning of § 510 of ERISA. 29 U.S.C. § 1140 (“It shall be unlawful for any person to discharge, fine, suspend, expel, or discriminate against any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to this chapter or the Welfare and Pension Plans Disclosure Act.”). The Fifth, Seventh, and Ninth Circuits consider unsolicited, informal complaints to be protected activity, and the Second, Third, Fourth and Sixth Circuits have reached contrary conclusions. Compare Anderson v. Elec. Data Sys. Corp., 11 F.3d 1311, 1314 (5th Cir. 1994), George v. Junior Achievement of Cent. Ind., Inc., 694 F.3d 812, 816–17 (7th Cir. 2012), and Hashimoto v. Bank of Haw., 999 F.2d 408, 411 (9th Cir. 1993), with Nicolaou v. Horizon Media, Inc., 402 F.3d 325, 329 (2d Cir. 2005), Edwards v. A.H. Cornell & Son, Inc., 610 F.3d 217 (3d Cir. 2010), King v. Marriott Int’l, Inc., 337 F.3d 421, 426–28 (4th Cir. 2003), and Sexton v. Panel Processing, Inc., 754 F.3d 332–42 (6th Cir. 2014). In Sherrod v. United Way Worldwide, No. 19-10376 at 6-7 & n.1 (5th Cir. July 30, 2020) (per curiam) (Owen, Southwick, Oldham), the Fifth Circuit acknowledged the split and observed that "Anderson does not provide analysis on the topic and is not very clear."
  3. The Fifth and Tenth Circuits recently diverged over the lawfulness of a policy EPA announced in the so-called "Hunter-Order." See In the Matter of PacifiCorp Energy, Hunter Power Plant, Order on Petition No. VIII-2016-4, (Oct. 16, 2017). There EPA denied a petition to object to a permit issued under Title V of the Clean Air Act for a Utah power plant, explaining that it construes 40 C.F.R. § 70.2 to make the requirements of the operator’s underlying Title I permit the “applicable requirements” for purposes of Title V permitting “without further review.” Under that reading, a petition to object to a Title V permit is not a viable avenue for challenging the validity of the operator’s underlying Title I permits. In Environmental Integrity Project v. EPA, No. 18-60384 (5th Cir. May 29, 2020). the Fifth Circuit deferred to that view of the law under Skidmore. Less than two months later, the Tenth Circuit held that the Hunter Order violated the unambiguous text of the regulation. See Sierra Club v. EPA, No. 18-9507 (10th Cir. July 2, 2020).
  4. In In re Hidalgo Cty. Emergency Serv. Found.,  No. 20-40368 (5th Cir. June 22, 2020), the Fifth Circuit held that an injunction against the SBA related to the exclusion of bankruptcy debtors from receiving PPP funds made available under the CARES Act was improper because it ran afoul of Fifth Circuit precedent holding that all injunctive relief against the SBA is absolutely prohibited. Seven days later, the U.S. District Court for the District of Maryland disagreed with Fifth Circuit's absolute bar on injunctive relief against the SBA. Defy Ventures, Inc. v. U.S. Small Bus. Admin., No. CV CCB-20-1736, 2020 WL 3546873, at *6 (D. Md. June 29, 2020).
  5. The D.C. Circuit has held that FOIA “does not authorize district courts to order publication of ... documents” that fall within Section 552(a)(1), and that relief for a violation of Section 552(a)(1) is limited to an order that the agency provide documents to the requesting party. Kennecott Utah Copper Corp. v. United States Dep't of the Interior, 88 F.3d 1191, 1202 (1996); see CREW v. DOJ, 846 F.3d 1235, 1243-44 (D.C. Cir. 2017) (adopting the same rule in the context of FOIA's “reading-room” provision, 5 U.S.C. 552(a)(2)).  The Ninth Circuit recently disagreed, holding that federal courts may order publication under 5 U.S.C. 552(a)(2). See Animal Legal Defense Fund v. USDA, 935 F.3d 858, 74-876 (9th Cir. 2019).
  6. The Circuits are currently divided over whether TPS-holders automatically fulfill §1255(a)'s requirement of having been "inspected and admitted or paroled into the United States." §1255(a) Compare Ramirez v. Brown, 852 F.3d 954, 958 (9th Cir. 2017) (yes), and Flores v. USCIS, 718 F.3d 548, 551, 554 (5th CIr. 2013 (yes), with Serrano v. U.S. Atty. Gen., 665 F.3d 1260, 1265 (11th Cir. 2011) (no).
  7. Although an ALJ is required by regulation to consider whether to use an older age category in a borderline situation, the regulations don't expressly require ALJs to explain in their written decisions why they didn't use an older age category. See 20 C.F.R. § 404.1563(b). Some courts have held an ALJ therefore need only cite the relevant regulation to show she considered the whether to use an older age category in a borderline situation. See Lockwood v. Comm'r of Social Security, 616 F.3d 1068, 1071 (9th Cir. 2010). Others have held more is required. E.g., Daniels v. Apfel, 154 F.3d 1129 (10th Cir.1998) (ALJ's was not supported by substantial evidence where ALJ failed to make factual findings regarding appropriate age category in borderline situation); Phillips v. Astrue, 671 F.3d 699, 706 (8th Cir. 2012) ("Simply noting Phillips's age ... her current age category[, and citing relevant regulations] fails to answer the precise question at hand—whether her borderline situation warranted moving her to the next category."); Kane v. Heckler, 776 F.2d 1130 (3d Cir. 1985) (same). In Schofield v. Saul, No. 18-11390 (5th Cir. Feb. 22, 2020), The Fifth Circuit joined those circuits that require more.
  8. In Washington Regional Medicorp v. Burwell, the D.C. Circuit joined the Third and Sixth Circuits in holding that the Tax Equity and Fiscal Responsibility Act of 1982 and its corresponding regulations supported the Secretary of the Department of Health and Human Service's calculation of Meidcare reimbursement payments to psychiatric hospitals. See See Wash. Reg'l Medicorp v. Burwell, 813 F.3d 357, 362 (D.C. Cir. 2015) (holding that the Secretary's interpretation squared with the plain meaning of the statute); Mich. Dep't of Cmty. Health v. Sec'y of U.S. Dep't of Health & Human Servs., 496 F. App'x 526, 533 (6th Cir. 2012) (holding that the plain language of the statute supported the Secretary's interpretation); Ancora Psychiatric Hosp. v. Sec'y of U.S. Dep't of Health & Human Servs., 417 F. App'x 171, 175 (3d Cir. 2011) (same). The Fifth Circuit has reached the opposite conclusion. See Hardy WilsonMem'l Hosp. v. Sebelius, 616 F.3d 449, 456, 460 (5th Cir.2010) (holding statute is ambiguous as to the proper calculation method, but refusing to defer to the agency's interpretation of its own implementing regulation because, in its view, the regulation and the Secretary's 2002 explanatory notice unambiguously supported the hospital's position).
  9. The circuits are divided over whether the U.S. Railroad Retirement Board’s denial of a request to reopen a prior initial benefits determination is a “final decision” subject to judicial review under 45 U.S.C. 231g and 355(f). The Third, Fourth, Fifth, Seventh, and Tenth Circuits have all concluded that the denial of a request for reopening is not a “final decision” subject to judicial review under 45 U.S.C. 355(f). See Cunningham v. Railroad Ret. Bd., 392 F.3d 567, 571-574 & n.5 (3d Cir. 2004); Harris v. United States R.R. Ret. Bd., 198 F.3d 139, 142 (4th Cir. 1999); Roberts v. United States R.R. Ret. Bd., 346 F.3d 139, 141 (5th Cir. 2003); Steebe v. United States R.R. Ret. Bd., 708 F.2d 250, 254-255 (7th Cir.), cert. denied, 464 U.S. 997 (1983); Abbruzzese v. Railroad Ret. Bd., 63 F.3d 972, 974 (10th Cir. 1995). The D.C., Second, and Eighth Circuits have concluded that the denial of a request for reopening is a “final decision” subject to judicial review. Stovic v. Railroad Ret. Bd., 826 F.3d 500, 505-506 (D.C. Cir.) (Kavanaugh, J.), cert. denied, 137 S. Ct. 399 (2016); Szostak v. Railroad Ret. Bd., 370 F.2d 253, 254- 255 (2d Cir. 1966); Sones v. United States R.R. Ret. Bd., 933 F.2d 636, 638 (8th Cir. 1991). The Supreme Court granted review in Salinas v. U.S. Railroad Retirement Board, 765 F. App’x 79 (5th Cir. Apr. 17, 2019) to resolve the split.
  10. The First and Sixth Circuits prohibit counterclaims in  in rem civil forfeiture proceedings. Zappone v. United States, 870 F.3d 551, 561 (6th Cir. 2017); United States v. One Lot of U.S. Currency ($68,000), 927 F.2d 30 (1st Cir. 1991). The Fifth Circuit recently rejected that view. See United States v. $4,480,466.16, No. 18-10801 (5th Cir. Nov. 5, 2019).
  11. The Second, Fifth, Sixth, Ninth, Eleventh, and D.C. Circuits do not defer under Chevron to agency interpretations in derogation of the common law. Arangure v. Whitaker, 911 F.3d 333, 342 (6th Cir. 2018) (concluding that the “common-law presumption canon qualifies as a ‘traditional tool’ of statutory interpretation” and refusing to defer to agency interpretation in derogation of common law);  Jaen v. Sessions, 899 F.3d 182 (2d Cir. 2018) (8 U.S.C. § 1401 incorporates the common law presumption of legitimacy); Chamber of Commerce v. U.S. Dep’t of Labor, 885 F.3d 360, 369–70 (5th Cir. 2018) (“absent other indication, Congress intends to incorporate the well-settled meaning of the common-law terms it uses”); United States v. Garcia-Santana, 774 F.3d 528 (9th Cir. 2014) (courts use common law at Chevron Step One); Lagandoan v. Ashcroft, 383 F.3d 983 (9th Cir. 2004) (Congress can override the common-law presumption with express language; without express language, Congress is presumed to legislate against the background of the common law); Garcia-Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276, 1292 (11th Cir. 2016) (“Chevron step one” “analysis ends” “[b]ecause Congress indicated by its silence that … the common law governed”); FedEx Home Delivery v. NLRB, 849 F.3d 1123, 1128 (D.C. Cir. 2017) (whether a “worker” is an “employee” or “independent contractor” is a question “of pure common-law agency principles involving no special agency expertise that a court does not possess”; “this particular question under the [NLRA] is not one to which we grant the Board Chevron deference or to which the Brand X framework applies”). In Baldwin v. United States, Nos. 17-55115 and 17-55354 (9th Cir. Apr. 16, 2019), the Ninth Circuit split from these circuits and upheld an IRS interpretation of a statute in derogation of the common law.
  12. Five circuits have held that 12 U.S.C. § 4617(f) bars courts from granting relief in statutory challenges to the Federal Housing Finance Administration's agreement to the so-called "Net Worth Sweep" at issue in Collins v. Mnuchin, 938 F.3d 553 (5th Cir. 2019) (en banc), a case I discuss here. See Jacobs v. FHFA, 908 F.3d 884 (3d Cir. 2018); Saxton v. FHFA, 901 F.3d 954 (8th Cir. 2018); Roberts v. FHFA, 889 F.3d 397 (7th Cir. 2018); Robinson v. FHFA, 876 F.3d 220 (6th Cir. 2017); Perry Capital LLC v. Mnuchin, 864 F.3d 591 (D.C. Cir. 2017). In Collins v. Mnuchin, 938 F.3d 553 (5th Cir. September 6, 2019) (en banc), the en banc Fifth Circuit disagreed.
  13. A circuit split exists regarding whether OSHRC may use Federal Rule of Civil Procedure 60(b) to grant relief following an untimely notice of contest. Compare Chao v. Russell P. Le Frois Builder, Inc., 291 F.3d 219, 228-29 (2d Cir. 2002) with J.I. Hass Co., Inc. v. OSHRC, 648 F.2d 190, 194 (3d Cir. 1981). The Fifth Circuit hasn't addressed the issue. In Coleman Hammons Construction Co. v. OSHRC, No. 18-60559 (5th Cir. Nov. 6, 2019), which I discuss here, however, the Court acknowledged the split and "assume[d] arguendo that Rule 60(b) applies because the parties do not contest its applicability."
  14. The Fifth, Sixth, Ninth, D.C. Circuits agree that the IRS is bound by its own published Revenue Rulings. See Estate of McLendon v. Commissioner, 135 F.3d 1017 (5th Cir. 1998); The Limited, Inc. v. Commissioner, 286 F.3d 324 (6th Cir. 2002); Estate of Rapp v. Commissioner, 140 F.3d 1211 (9th Cir. 1998);  Stichting Pensioenfonds Voor de Gezondheid, Geestelijke en Maatschappelijke Belangen v. United States, 129 F.3d 195, 198 (D.C. Cir. 1997). The Third Circuit recently disagreed. SIH Partners LLLP, Explorer Partner Corporation, Tax Matters Partner v. Comm’r, 923 F.3d 296 (3d Cir. 2019).
  15. In Pereira v. Sessions, 138 S. Ct. 2105, 2113-14 (2018), the Supreme Court held that “[a] putative notice to appear that fails to designate the specific time or place . . . is not a ‘notice to appear under [8 U.S.C. §] 1229(a).'" The Second, Third, Fourth, Fifth, Sixth, and Ninth Circuits have all refused to extend Pereira beyond the stop-time rule context. See Pierre-Paul v. Barr, No. 18-60275 (5th Cir. July 18, 2019); Nkomo v. Attorney Gen., No. 18-3109, 2019 WL 3048577, at *2-3 (3d Cir. July 12, 2019); Ali v. Barr, 924 F.3d 983, 986 (8th Cir. 2019); Banegas Gomez v. Barr, 922 F.3d 101, 11-12 (2d Cir. 2019); Soriano-Mendosa v. Barr, 768 F. App’x 796, 801-02 (10th Cir. 2019); Santos-Santos v. Barr, 917 F.3d 486, 490-91 (6th Cir. 2019); Karingithi v. Whitaker, 913 F.3d 1158, 1161-62 (9th Cir. 2019); Leonard v. Whitaker, 746 F. App’x 269, 269-70 (4th Cir. 2018) (citing Mauricio-Benitez, 908 F.3d at 148 n.1). Creating some tension with those holdings, the Seventh Circuit has partially accepted the Pereira-based argument that a notice to appear that does not contain the time or place is defective. See Ortiz-Santiago v. Barr, 924 F.3d 956, 966 (7th Cir. 2019). Ultimately, however, the Seventh Circuit concluded that the immigration court’s jurisdiction was not affected because 8 C.F.R. § 1003.14 is a claim-processing rule. Id.
  16. The Board of Immigration Appeals has concluded that an immigration court can cure a notice to appear that is defective under 8 U.S.C. § 1229(a) by subsequently mailing to the alien a notice of hearing containing the time and date of the initial hearing. See Matter of Bermudez-Cota, 27 I. & N. Dec. 441, 445-46 (BIA 2018). The BIA also observed that the relevant regulation, 8 C.F.R. § 1003.14, “does not specify what information must be contained in a ‘charging document’ at the time it is filed with an Immigration Court” and does not “mandate that the document specify the time and date of the initial hearing.” Id. at 445. The Second, Fifth, Sixth, and Eleventh Circuits have  held that “[t]he BIA’s interpretation does not conflict with the [Immigration and Nationality Act] and is consistent with the regulations.” See Pierre-Paul v. Barr, No. 18-60275 (5th Cir. July 18, 2019); Banegas Gomez v. Barr, 922 F.3d 101, 112 (2d Cir. 2019); Molina-Guillen v. Attorney Gen., 758 F. App’x 893, 898-99 (11th Cir. 2019); Karingithi v. Whitaker, 913 F.3d 1158, 1161-62 (9th Cir. 2019); Hernandez-Perez v. Whitaker, 911 F.3d 305, 314-15 (6th Cir. 2018).  The Seventh Circuit disagrees. See Ortiz-Santiago v. Barr, 924 F.3d 956, 966 (7th Cir. 2019). The Ninth Circuit appears to side with the Seventh, though its precedent on this issue is not crystal clear. Compare Karingithi v. Whitaker, 913 F.3d 1158, 1161-62 (9th Cir. 2019) (approving the BIA's interpretation) and Lopez v. Barr, 925 F.3d 396, 405 (9th Cir. 2019) (defective notice to appear cannot be cured). Lopez attempted to reconcile its holding with Karingithi by emphasizing that Karingithi focused on the IJ's jurisdiction over the removal proceedings at issue.
  17. HUD promulgated regulations establishing a burden-shifting framework for FHA disparate-impact claims. See 24 C.F.R. § 100.500(c). Some circuits have held that the Supreme Court adopted HUD's framework in Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2523 (2015). See See Mhany Mgmt., Inc. v. Cty. of Nassau, 819 F.3d 581, 618 (2d Cir. 2016) (“The Supreme Court implicitly adopted HUD’s approach....”)). Others insist that the Court modified the HUD standard or even rejected it alogether. See Inclusive Cmty. Project, Inc. v. Lincoln Property Co., 920 F.3d 890 (5th Cir. 2019) ("We read the Supreme Court’s opinion in ICP to undoubtedly announce a more demanding test than that set forth in the HUD regulation."); Reyes v. Waples Mobile Home Park Ltd. P'ship, 903 F.3d 415, 424 n.4 (4th Cir. 2018) (concluding “[w]ithout deciding whether there are meaningful differences between the frameworks, ... [that] the standard announced in [ICP], rather than the HUD regulation[,] controls our inquiry.”).
  18. The Fifth and Fourth Circuits review agency interpretations of contractual agreements de novo. See, e.g., Texas Tech Physicians Associates v. HHS, 917 F.3d 837, 844 (5th Cir. 2019) (citing cases); Burgin v. Office of Pers. Mgmt., 120 F.3d 494, 497-98 (4th Cir. 1997). Several other circuits apply the Chevron framework to (at least some) agency interpretations of contracts. See Bos. Edison, Co. v. FERC, 233 F.3d 60, 66 (1st Cir. 2000) (“FERC is entitled to some deference in construing contracts where the sales are subject to FERC regulation.”); Amoco Prod. Co. v. FERC, 765 F.2d 686, 690 (7th Cir. 1985); City of Kaukauna v. FERC, 214 F.3d 888, 894-95 (7th Cir. 2000); Wash. Urban League v. FERC, 886 F.2d 1381, 1386 (3d Cir. 1989) (“We generally defer to an agency's interpretation of agreements within the scope of the agency’s expertise, and the case for deference is particularly strong when the agency has interpreted regulatory terms regarding which it must often apply its expertise.” (citation omitted)); Muratore v. U.S. Office of Pers. Mgmt., 222 F.3d 918, 923 (11th Cir. 2000) (extending Chevron to an Office of Personnel Management’s interpretation of a federal employee's health insurance contract; factors included delegation, expertise, and uniformity); Braintree Elec. Light Dep’t v. FERC, 667 F.3d 1284, 1288 (D.C. Cir. 2012) (applying Chevron deference to FERC interpretation of settlement agreement involving electric reliability).
  19. In In re Benjamin, 924 F.3d 180 (5th Cir. May 10, 2019) (Clement, Graves, Oldham), the Court interpreted 42 U.S.C. § 405(h) to strip federal jurisdiction under only the statutory provisions it lists–28 U.S.C. §§ 1331 and 1346—and not under unlisted ones, such as bankruptcy jurisdiction under 28 U.S.C. § 1334. In so holding, the Fifth Circuit joined the Ninth Circuit on the less-popular side of a growing circuit split regarding the scope of § 405(h). The Third, Seventh, Eighth, and Eleventh Circuits have held that the provision bars review of not only of claims brought under §§ 1331 and 1346 but also § 1334 (and others). The Supreme Court recently denied certiorari in a case from the 11th Circuit raising this issue.
  20. The Fifth Circuit's holding in Louisiana Real Estate Appraisers Board v. FTC, 917 F.3d 389 (5th Cir. Feb. 28, 2019) (King, Higginson, Costa) (per curiam), that while the collateral-order doctrine might permit immediate review of certain administrative decisions, it doesn’t apply to an FTC order denying state-action immunity to a state agency alleged to have violated federal antitrust laws expressly rejects the First Circuit’s holding that the doctrine is “generally applicable” to administrative decisions.
  21. In W.M.V.C. v. Barr, No. 17-60753 (5th Cir. June 7, 2019) (Smith, Willett) (King, dissenting), the Fifth Circuit held that for purposes of determining whether the government's position was "substantially justified" under the Equal Access to Justice Act, the Court must evaluate the government's position under the totality of the circumstances. In so holding, the majority claimed to be "join[ing] the vast majority of our sister circuits," and added that only the D.C. Circuit had rejected its view. The dissent saw the state of the law differently, insisting that “the majority stands alone with the Seventh Circuit," in taking a position that "the Sixth, Tenth, and D.C. Circuits" have rejected.
  22. In Shah v. Azar, 920 F.3d 987 (5th Cir. Apr. 12, 2019) (Higginbotham, Dennis, Costa), the Fifth Circuit joined four other circuits in holding that physicians do not have a protected property interest in continued participation in Medicare. See Parrino v. Price, 869 F.3d 392, 397-98 (6th Cir.  2017); Erickson v. U.S. ex rel. Dep't of Health & Human Servs., 67 F.3d 858, 862 (9th Cir. 1995); Koerpel v. Heckler, 797 F.2d 858, 863–65 (10th Cir. 1986); Cervoni v. Sec'y of Health, Ed. & Welfare, 581 F.2d 1010, 1018–19 (1st Cir. 1978). The Fourth Circuit has held otherwise. Ram v. Heckler, 792 F.2d 444, 447 (4th Cir. 1986).
  23. In Melendez v. McAleenan, No. 18-20341 (5th Cir. June 27, 2019) (Barksdale, Southwick, Haynes), the Court held that that an alien is deemed to have “maintain[ed] lawful status” under 8 U.S.C. § 1254a(f)(4) only during the “period in which [he] is granted temporary protected status.” The Court acknowledged that its interpretation of the statute contradicted that of the U.S. District Court for the Eastern District of Pennsylvania in Medina v. Beers, 65 F. Supp. 3d 419 (E.D. Pa. 2014).
Circuit-Split Roundup UPDATED Aug. 7, 2020
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