Splits Noted in the Circuits - 2/20-2/22

The decisions linked below noted circuit splits on several issues. None of the disagreements were dispositive to the cases, and the courts at issue left the question open. As will be the custom of this blog, citations will not be in the formal bluebook style. Rather, a hyperlink to the slip opinions (.pdf) will be provided and the pincite (if any) will be to that document. A Westlaw citation will be provided for ease of access for the reader.

• Judicial Estoppel -- Bradford v. Wiggins, 2008 WL 444976, *7 n.2 (10th Cir. Feb. 20, 2008).

The Tenth Circuit applies an abuse of discretion standard when reviewing a judicial estoppel decision. It notes that the CA 1,3,4,5,8,9,11, and Fed apply the same standard, while the Sixth applies a de novo standard (Eubanks v. CBSK Fin. Group, Inc., 385 F.3d 894, 897 (6th Cir.2004)).

• Is the Government Contractor Defense an Immunity Defense? -- Isaacson v. Dow Chem. Co., 2008 WL 466111, *17 (2d Cir. Feb. 22, 2008)

In one of the trio of Agent Orange decisions handed down by the Second Circuit on the same day (for an overview of all, see Decision of the Day), Judge Hall notes the split of authority on the question of whether the government contractor defense, first recognized by Justice Scalia's opinion in Boyle, derives from governmental immunity. He cites conflicting Second Circuit authorities, a Fifth Circuit case finding in the affirmative, and a Ninth Circuit case finding in the negative. Nonetheless, the panel does not offer its own conclusion, as it is unnecessary to the issue of whether it is a federal defense.

• Questioning in Handcuffs - Custodial Interrogation? -- United States v. Harris, 2008 WL 465289, *6 (D.C. Cir. Feb. 22, 2008)

The D.C. Circuit notes a split on whether the placement of handcuffs on a suspect renders any questioning a custodial interrogation for the purposes of Miranda. Dale Harris was placed in handcuffs and taken to the hallway outside her apartment during the execution of a search warrant. After citing conflicting authorities from the Second and Ninth Circuits, the Court assumes a Miranda violation, if any, was harmless.