Yesterday, the Eighth Circuit decided Ruppert v. Principal Life Insurance Company and deepened circuit splits on two separate issues. First, the panel held that if a plaintiff voluntarily dismisses his remaining claim after receiving an unfavorable interlocutory ruling, there is no final appealable order unless the dismissal is with prejudice.  That ruling reinforces Eighth Circuit precedent and strengthens a long-lasting circuit split that most, if not all, federal courts of appeals have addressed.

Second, the court ruled that if a district court denies class certification and the putative class plaintiff voluntarily settles his underlying claim, then the plaintiff does not have standing to appeal the class-certification order.  In so ruling, the Eighth Circuit sided with the Fourth Circuit and split with the D.C. Circuit.  Moot-court boards take note: two issues; two circuit splits.  Sounds like the Eighth Circuit has written next year’s competition.

The case arises out of a  putative class action against Iowa-based Principal Life Insurance Company.  The plaintiff, Joseph Ruppert, alleged that Principal violated ERISA by receiving revenue-sharing payments from mutual funds and failing to disclose those payments to its customers.  A federal district court in Iowa denied class certification, and the Eighth Circuit rejected Ruppert’s request for interlocutory appeal.

Hoping to create a final, appealable order, Ruppert settled and dismissed his underlying claims against Principal, but with two caveats: Ruppert reserved the right to appeal the denial of class certification, and if the Eighth Circuit reversed, then Ruppert reserved the right to refile his claims on remand.  Likely realizing the jurisdictional hurdles that agreement would create, Ruppert and Principal agreed that Principal would not challenge the Eighth Circuit’s jurisdiction to hear Ruppert’s class-certification appeal.

Of course, that could not and did not stop the Eighth Circuit from deciding the jurisdictional issues itself.  And a three-judge panel, Judge Colloton writing, decided them both against Ruppert.

To begin, there was no final judgment because Ruppert dismissed his claims without prejudice.  Under the settlement agreement, the claims would, in Judge Colloton’s words, “spring back to life” if the Eighth Circuit reversed the denial of class certification.  The panel acknowledged the circuit split on the issue, citing several cases that cite several more.  But the panel reinforced the Eighth Circuit rule: “[U]nless the appellant’s claims are unequivocally dismissed with prejudice, there is no final appealable decision.”

But the Eighth Circuit went on, noting that even if it were “wrong about finality,” Ruppert settled his claims against Principal, so he doesn’t have Article III standing to appeal the class-certification ruling.  Under U.S. Supreme Court precedent, a class plaintiff may appeal the denial of class certification even if his individual claims are involuntarily dismissed because the plaintiff maintains an interest in collecting attorney fees and spreading the cost of the litigation throughout the class.  But the Supreme Court has left open the question whether a class-certification appeal becomes moot if the plaintiff settles his underlying claims.

The answer, according to the Eighth Circuit, is yes.  Splitting with the D.C. Circuit, but joining the Fourth Circuit, the court ruled that when a putative class plaintiff settles his claims, he lacks standing  to appeal an adverse class-certification order even if he retained the right to seek attorney fees. Under that scenario, the plaintiff does not maintain “a sufficient personal stake to maintain a case or controversy.”

Expect a cert. petition on both issues–though the presence of both issues might make this case a poor vehicle to address either one.

Last week in United States v. Daily, a majority of a three-judge panel ruled that a district court can resentence a criminal defendant sua sponte even though the statute of limitations has passed for post-conviction relief.

Carlous Daily was convicted of armed robbery, among other crimes, and sentenced to 444 months in prison.  The Eighth Circuit affirmed the conviction, and Daily filed for post-conviction relief under 28 U.S.C. § 2255 within the one-year limitations period.  Later, and after the limitations period expired, Daily  moved to amend his § 2255 motion to challenge the calculation of his guidelines sentencing range.  Seeing that the amendment was untimely, the district court rejected it.  That wasn’t the end of case, though: On further investigation, the court noticed a different sentencing error and sua sponte reduced Daily’s sentence to 420 months.

The government appealed, arguing that the court had no authority to grant relief  outside of the statute of limitations.  A majority of the Eighth Circuit agreed with the district court, reasoning that it may be “desirable” to put a “time limit on when a district court can notice an error in a habeas,” but ultimately concluding “that is a matter for an appropriate rule-making authority, not this court.”

Judge Colloton dissented:

Assuming the majority opinion stands (the government has already asked for an extension to file a petition for rehearing en banc), judges in the Eighth Circuit will now have discretion to waive the statute of limitations, so long as the defendant has made at least one timely § 2255 argument.  If the defendant raises additional issues after the limitations period expires, the district court must reject the amendment but can still take up the argument sua sponte.   Of course, some judges will be more willing to exercise that discretion than others.

Last year, the en banc Eighth Circuit decided that when two panels answer the same question differently, the earlier decision controls.   But what happens when the cases are decided on the same day?

We’ll soon find out.  Today, two Eighth Circuit panels issued dueling opinions on the same issue.

In United States v. Bruguier and United States v. Rouillard, the defendants were convicted of “knowingly . . . engaging in a sexual act with another person if that other person is–(A) incapable of apprising the nature of the conduct; or (B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act.”   The issue is whether the “knowingly” requirement extends to both (A) and (B)—in other words, must the defendant have known that the person was mentally or physically incapacitated?

The Bruguier panel, Judge Diana Murphy writing, said no: “[T]he ‘most natural grammatical reading’ of the statute suggests that ‘knowingly’ only modifies the surrounding verb, which in this case is the phrase ‘engages in a sexual act.’”

The Rouillard panel, Judge Shepherd writing, said yes: “Knowingly ‘engag[ing] in a sexual act with another person’ is not inherently criminal under federal law, barring some other attendant circumstance”—“we believe the statute is properly read as requiring defendant’s knowledge that the other person was incapacitated.”

Judge Shepherd and his colleagues relied primarily on the Supreme Court’s decisions in United States v. X-Citement Video, Inc. and Flores-Figueroa v. United States (which came out of the Eighth Circuit) for the proposition that a mens rea requirement presumptively applies to each element of a criminal statute.  Judge Murphy believed that the presumption was rebutted here:

[T]he Court noted in X-Citement Video that the common law mens rea presumption “expressly excepted ‘sex offenses, such as rape, in which the victim’s actual age was determinative despite defendant’s reasonable belief that the girl had reached age of consent.’” 513 U.S. at 72 n.2 (citing Morissette v. United States, 342 U.S. 246, 251 n.8 (1952)).  That makes sense because in such a context the “perpetrator confronts the underage victim personally and may reasonably be required to ascertain that victim’s age.”  Id. Similarly, where an individual has sex with someone physically incapable of consent as here, he “confronts the  . . . victim personally” and it is reasonable to require him to ensure that consent has been given.”

The two panels also saw the legislative history differently.  The Rouillard panel saw “a lack of direction from Congress,” and thought it significant that “no mention” was made in the House Judiciary Report “of any intent to make section 2242(2) a strict liability crime.”  But the Bruguier panel thought that the legislative history supported its reading of the statute:

In drafting § 2242(2), Congress elected not to make lack of consent an element of the offense or to require the prosecution to introduce any evidence regarding whether the victim consented. H.Rep. No. 99-594, at 16 (1986). Congress reasonably decided that the best way to prevent sexual assault on persons who are mentally or physically unable to resist was to put the obligation on the instigator of the sexual act to confirm the other’s ability to consent. This was a practical resolution given the type of acts and circumstances which § 2242(2) is regulating. Sexual encounters where one partner is even arguably unable to consent to the activity represent conduct that a “reasonable person should know is subject to stringent public regulation.” United States v. Collins, 949 F.2d1029, 1031 (8th Cir. 1991).

I see an en banc argument in the Eighth Circuit’s future.

Yesterday, Iowa Senator Tom Harkin forwarded two names to President Obama to fill a vacancy being left by Eighth Circuit Judge Michael Melloy, who will take senior status on January 30.  Making the cut: Jane Kelly, a federal public defender from Cedar Rapids, and Mary Tabor, a judge on the Iowa Court of Appeals.  While those recommendations do not restrain the President’s nomination power (he can choose whomever he wants), presidents do not generally stray outside a home-state senator’s recommendations.

Kelly, a law school classmate of President Obama, graduated from Harvard Law School in 1991.  She then clerked successively for South Dakota Federal Judge Donald Porter and Eighth Circuit Judge David Hansen.  From 1993-1994, she taught at the University of Illinois College of law, and since 1994 she’s worked as an assistant federal public defender in Cedar Rapids.

Judge Tabor graduated from the University of Iowa College of Law in 1991, and began her career at the Federal Election Commission in Washington, D.C.   She joined the Iowa Attorney General’s office in 1993, where she practiced until her appointment by Governor Chet Culver to the Court of Appeals in 2010.

Judge Tabor was also on Harkin’s short list for the recent vacancy on the United States District Court for the Southern District of Iowa.  President Obama ultimately appointed Stephanie Rose, who was sworn in this week.  At the age of 39, Judge Rose is the youngest federal judge in the United States.

Today,  the the Administrative Office of the U.S. Courts announced that Chief Justice John Roberts has named Iowa-based Eighth Circuit Judge Steven Colloton as the chair of the Advisory Committee on Appellate Rules.  Judge Colloton, who succeeds Sixth Circuit Judge Jeffrey Sutton, will serve a three-year appointment that is subject to renewal.