Commercial Litigation and Arbitration

Courts of Appeal Are Loath to Create a Circuit Split — Policy Reasons behind Avoidance

Two Cases:

1. United States v. Games-Perez, 2012 U.S. App. LEXIS 19874 (10th Cir. Sept. 17, 2012):

[T]he circuits have historically been loath to create a split where none exists. See, e.g., Throneberry v. McGehee Desha Cnty. Hosp., 403 F.3d 972, 979 (8th Cir. 2005) ("[T]he Tenth Circuit's decision . . . is the only decision from a circuit court clearly addressing whether the FMLA mandates strict liability for any interference with an employee's FMLA rights. By adopting the Tenth Circuit's holding . . . , our decision today avoids a circuit split."); United States v. Alexander, 287 F.3d 811, 820 (9th Cir. 2002) ("Absent a strong reason to do so, we will not create a direct conflict with other circuits." (quotation and alteration omitted)); see also The Wilderness Soc'y v. Kane Cnty., 632 F.3d 1162, 1187 (10th Cir. 2011) (en banc) (Lucero, J., dissenting) (criticizing majority for creating circuit split); Wilson v. Workman, 577 F.3d 1284, 1317 (10th Cir. 2009) (en banc) (Gorsuch, J., dissenting) (same). As noted in the panel majority opinion, every circuit court to address this issue has reached a result consistent with Capps. Games-Perez, 667 F.3d at 1141. The avoidance of unnecessary circuit splits furthers the legitimacy of the judiciary and reduces friction flowing from the application of different rules to similarly situated individuals based solely on their geographic location.

2. Little v. Shell Exploration & Prod. Co., 690 F.3d 282 (5th Cir. 2012):

Though we apply our own judgment to every case, we customarily are "chary to create a circuit split." Alfaro v. Comm'r, 349 F.3d 225, 229 (5th Cir. 2003).

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