Forfeiture. Barbara Pacheco purchased certain real property that the government was trying to forfeit from a criminal defendant. Pacheco knew about this in that a notice of pendency was filed long before she bought it. However, because the criminal defendant's wife had an interest in the property, Pacheco's purchase may be valid as to her purchase of the wife's interest -- or, at least, the Second Circuit, on its appeal from a motion to dismiss, did not find otherwise. The decision in United States v. Serendensky can be found here.

Split. The Second and the Seventh Circuits are split over the degree to which a felony law on company disclosures shields them from shareholder suits. There is an article on this in today's New York Law Jouranal on this issue. This may not be available to non-subscribers. Sorry.

New en banc case. Here is the order of the Second Circuit relating to the new en banc case, Muntaqim v. Coombe. Oral argument will be heard on April 7, 2005. For anyone interested in the original opinion, see here.

Definition of "Wilful" Under the Family and Medical Leave Act of 1993. The Second Circuit, in accordance with a decision of the First Circuit, has held that the definition of "wilful" under the Fair Labor Standards Act should be used under the Family and Medical Leave Act of 1993 as well. The Supreme Court has held that an employer acts willfully under the Fair Labor Standards Act when he or she "knew or showed reckless disregard for the matter of whether it sondcut was prohibited by the [FLSA]." "If an employer acts reasonably in determining its legal obligation, its action cannot be deemed willful . . . . If an employer acts unreasonably, but not recklessly, in determinining its legal obligation, then . . . it should not be . . . considered [willful.]"
Under the context of the Family and Medical Leave Act, this issue is pertinent to the extent of a statute of limitation. The case in Carlton v. New York University School of Law can be found here.

Certified Question. The Second Circuit has certified the following questions to the Supreme Court of Connecticut:

What is the correct interpretation of "chronic" disabilities under the Connecticut Fair Employment Practices Act (the "Act")?

At what point, in relation to the act of discrimination complained of, must a disability qualify as "chronic" to support recovery under the Act?

If the Act applies only to disabilities that are "chronic" at the timie of the alleged act of discrimination, is evidence of the progression of an illness or injury after the alleged act of discrimination probative of whether that disability was in fact "chronic" when the alleged act of discrimination occurred?

The case involved a worker who was laid off and claimed that he was the victim of discrimination under the Act and the Americans with Disabilities Act.

The decision in Caruso v. Siemens Business Communication Systems, Inc. can be found here.

Deadbeat Mom. Joanne Venturella, divorced from James Ferretti, who was awarded custody of the couple's two children, was ordered to pay child support in the amount of $450 every two weeks. She refused to do so. To prevent her pay from being garnished, she left her job and moved to Florida, where she worked as a tutor at a private school.

But her day of reckoning came. She was indicted, under 19 U.S.C. 228, which provides that a person who owes over $10,000 in child support obligations with respect to children who reside in another state. The primary issue at trial was whether Venturella "resided" in Florida. She claimed that the definition of "residence" should be the same as "domicile," which would require a showing that she intended to permanently live in Florida with no intent of returning to New York. The Government claimed that "residence" should be defined as her principal, actual dwelling place, which, it contended, was Florida.

The District Court adopted the Government's position over Venturella's objection. She was found guilty and was sentenced to 15 months' imprisonment, followed by one year of supervised release and a special assessment of $100 and ordered restitution of $59,073.06.

Venturella appealed, and the Second Circuit affirmed. It held that to require an intent to remain as part of the definition of "resides" could lead to absurd results. It also noted that such a definition was at odds with the focus of the statute -- to offer federal criminal penalties against parents who willfully fail to honor their child support obligation and live in another state.

The Second Circuit rejected her position that the legislative history supported the position that residence within the meaning of the statute meant domicile. On the contrary, it held that the legislative history supported the Government's position.

The Court also rejected Venturella's arguments that the District Court's failure to hold the statute unconstitutionally vague and that the District Court's failure to instruct the jury on a dual residence defense were plain error. (Neither issue was raised before the District Court.) Finally, it dismissed the appeal as to her ineffectiveness of counsel claim in that its regular practice was not to hear such arguments on direct appeal.

The decision in United States v. Venturella can be found here.

No New Life to Barred Claims. The question in In re Enterprise Mortgage Acceptance Co., LLC Securities Litigation (really three unconsolidated appeals heard together) is whether section 804 of the Sarbanes-Oxley Act revived previously expired securities claims. The Second Circuit has held that previously time barred claims are not revived pursuant to that section.

In each of the cases, the plaintiffs had initiated actions for securites fradu prior to the passage of the Act. Then, after the Act was enacted, one plaintiff added additional claims and another added an additional defendant, trying to take advantage of the Act's extended statute of limitations.

The Court noted that normally statutes are not given retroactive effect. If the statute does not clearly provide that Congress intended it to be applied retroactively, then the statute will not be given retroactive effect if giving such retroactive effect would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.

The Court concluded that Congress did not clearly give the statute retroactive effect. Further, the Court held that reviving time-barred claims has an impermissible retroactive effect by stripping defendants of an affirmative defense.

The decision can be found here.

Statutory Interpretation Saves the Day! An 18-year old was about to be sent up the river for 10 years advertising to distribute or receive child pornography, but the Second Circuit, through a tour-de-force of statutory interpretation vacated the sentence and remanded to the District Court. You can read the decision in United States v. Pabon-Cruz here.

Rule changes. Several Second Circuit Local Rules have been amended. See here for details.

Pro bono. Here is the Second Circuit's Plan for the Appointment of Pro Bono Counsel.

New Rule is not Retroactive. The rule set out in Blakely v. Washington is not a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court. That finding was the death knell for Freddy Carmona's motion to file a second habeas corpus petition based on Blakely. The decision in Carmona v. United States can be found here.

For those of you who do not know what Blakely is about, where the heck have you been. Read the opinion, or better yet, read the blog.

Moist is Not Wet. The Second Circuit held that Georgia Pacific Corporation's product, "Quilted Northern Moist-Ones" pre-moistened towelettes did not infringe on Playtex Products, Inc.'s "Wet Ones" brand. The decision in Playtex Products, Inc. v. Georgia Pacific Corporation can be found here.

Senior Circuit Judge Ellsworth Van Graafeiland died. The Judge, who was 89 years old, died on Saturday. He was appointed to the bench in 1974. For more information, click here. (Thanks to Howard Bashman of How Appealing for the pointer.)

Voter Enrollment Scheme Enjoined. New York law provides that if a party does not get at least 50,000 votes for its gubernatorial candidate in the previous election, the party is removed from the voter registration forms and voters registered as members of such parties become non-enrolled voters. As a recognized party has certain benefits as a result of that status. For instance, a party may choose their statewide candidate in a closed primary electin, while an independent organization may not. A number of small political parties challenged the law and obtained a preliminary injunction. The Board of Elections appealed.

The Second Circuit affirmed the grant of the injunction. It upheld the District Court's finding that the law would damage the minor parties ability to identify, appeal to, inform, organize, mobilize and raise money from its supporters." It also held that the State's interest in upholding the statute did not outweigh the plaintiff's interests.

The decision in Green Party of New York State v. New York State Board of Elections can be found here.

Harmless Error? The Kings County DA obtained the conviction of Guy Zappulla with the use of a confession taken in violation of Zappulla's Miranda rights. The Appellate Division, Second Department affirmed his conviction, holding that the use of the tainted confession was harmless error. The District Court denied Zappulla's petition for a writ of habeas corpus. But the Second Circuit reversed and remanded, holding that the Appellate Division applied the harmless error review in an objectively unreasonable manner and that the admission of the confession required the Court to vacate the conviction.

The factors relevant to a harmless error determination as to improperly admitted evidence, based on Supreme Court precedent, are:

the overall strength of the prosecutor's case;

the prosecutor's conduct with respect ot the improperly admitted evidence;

the importance of the wrongfully admitted testimony; and

whether such evidence was cumulative of other properly admitted evidence.

Based on these factors, the Second Circuit held that the admission of the confession was not harmless error.

The decision in Zappulla v. People can be found here.

Outside the record. The Second Circuit affirmed the decision of the District Court in which the Court, after a three-day bench trial, determined that the plaintiff was entitled to disablity benefits. The defendant insurance company had argued that the District Court had erred in considering material outside the administrative record in reaching its decision. The administrator in this case was the very insurance company that had denied the claim.

The Second Circuit held that such a conflict, in and of itself, did not per se constitute good cause to consider evidence outside of the administrative record. Such a rule would allow a plaintiff to add evidence to the record in almost every case because the administrator of the benefits plan is always linked to the insurer. However, in this case, there were no written procedures for claims review, and the Court held that the lack of such procedures exacerbated the conflict, rendering it proper for the District Court to have considered the new evidence.

The Court then looked to the evidence and held that it was sufficient to justify the District Court's finding. The Court also upheld the District Court's award of attorneys' fees.

The decision in Locher v. Unum Life Insurance Co. can be found here.

Update on Second Circuit News. It's not much of an update, but I called the Second Circuit library and asked what the problem was with the Second Circuit News blog. I was told that it had been taken down. The person I spoke to wasn't sure if it was going to be coming back up. He just said that there were some "issues" with it. If I hear anything further, I will let you know. And if any of you find out anything, let me know -- shausler at gmail.com.

Second Circuit New -- AWOL. With some trepidation, I note that Second Circuit News has not been accessible for the past few days. It would be a shame if this valuable cite were to disappear into the blogosphere. I will keep my readers posted if I hear anything (and I would appreciate it, if you know anything about the blog's disappearance, please keep me informed -- shausler at gmail.com)

The Railroad is Sovereign. The plaintiffs in Abrams v. Societe Nationale des Chemins de Fer Francais were Holocaust survivors, who brought an action against the railroad company that transported tens of thousands of French civilians to Nazi death camps. The District Court dismissed the case for lack of subject matter jurisdiction because the railroad had been nationalized and was an instrumentality of the French government and, hence, protected from suit by the Foreign Sovereign Immunity Act.

The Second Circuit had vacated the order and remanded for further proceedings on the issue of what the State Department's position during World War II on the significance of the corporate form in foreign sovereign immunity determinations and whether the State Department would have recognized imunity in a case like this.

The defendants sought review from the Supreme Court, which granted certiorai, vacated the Second Circuit decision and remanded for further consideration in light of the Court's decision in Republic of Austria v. Altmann.

Upon remand, the Court affirmed the decision of the District Court. The Court held that Altman held that the Foreign Sovereign Immunity Act could be applied retroactively and that the State Department's views were irrelevant. Hence, the District Court lacked jurisdiction to hear the case and had correctly dismissed it.

The decision can be found here.

I've always wondered why cases like this were not barred by the statute of limitations. Anyone who can enlighten me is invited to e-mail me with the information -- shausler at gmail.com.

Legal Malpractice and the Arbitrator's Affidavit. Mason, Ketterman & Cawood had an interesting idea. When sued for malpractice relating to its representation of a woman in a Dalkon Shield-related arbitration, it got the arbitrator to provide an affidavit to the effect that none of their alleged mistakes would have changed the decision. The District Court granted summary judgment to the firm on the ground that, even if the firm had been negligent in its representation, the negligence was not the proximate cause of the injury, the loss before the arbitrator.

The Second Circuit held that the arbitrator's affidavit was inadmissible and its use in the summary judgment motion was prejudicial to the plaintiff. It is well settled law that testimony revealing the deliberative thought processes of judges, juries or arbitrators is inadmissible. Admission of the affidavit put the plaintiff in an impossible spot: she could not rebut the thought processes of the arbitrator. Hence, the Court vacated the decision to the extent it granted summary judgment on the issue of liability.

The Court did affirm the decision to the extent that it ruled in favor of the law firm on its counterclaim for the costs and expenses of the arbitration.

The decision in Rubens v. Mason can be found here.

Another new blog. Say hello to Appellate Law and Practice, a blog which deals with, well, appellate law and practice. (Bet you didn't see that coming.)

Back to the Second Circuit. The case, Muntaqim v. Coombe, may be heading back to the Second Circuit. The Court had denied rehearing en banc in October. However, nine judges said they would reconsider if the Supreme Court denied certiorari, which the Court has done. The case involved the issue of whether a provision of New York Election Law, which disenfranchises persons currently in prison or on parole can be challenged under the Voting Rights Act. The order denying rehearing, along with concurrences and dissents can be found here. The original panel decision, which affirmed the dismissal of the action, can be found here. Thanks to SCOTUS for alerting us to this.

Immigration Appeals Surge in the Second Circuit. Now this is interesting. Immigration appeals constitute 44% of the Second Circuit's docket. (That doesn't leave much space for all those boring sentencing appeals.) In order to keep pace with these appeals, the Court is taking a number of steps, such as asking its judges to sit more often, hiring a part-time staff attorney and bringing on a dozen volunteer attorneys to help its regular staff attorneys vet and schedule cases. The Court is planning on fielding three panels of judges in a single week three times next year. For more information, read the New York Law Journal article on this subject by clicking here. I think you need a subscription to read it. (Sorry.)

Sex Offender Registration. The Second Circuit, in United States v. Rosario, decided the issue of whether a condition of supervised release requiring registration as a sex offender violates the Tenth Amendment. The sentence that Rosario was serving was not related to a sexual offense, but he had previously been convicted of rape of a seven-year-old girl. The Court held that because Rosario was already required to register under state law, conditioning his release on registration was not an undue intrusion into a state's regulatory scheme.

A second issue addressed by the Court was whether modifications to the oral pronouncement of sentence in a subsequent written judgment are valid. The general rule, the Court acknowledged, is that they are not. The basis for this rule is that a criminal defendant is entitled to be present at all critical stages of his trial, including sentencing. However, as to modifications of the terms of supervised release omitted from the oral pronouncement, the Court has permitted the inclusion of mandatory or standard conditions of supervised release contained in subsections 5D1.3(a), (c) of the Sentencing Guideline, conditions recommended by subsection 5D1.3(d) of the Guidelines and basic administrative requirements that are necessary to supervised release. Here, the Government agreed that a provision requiring Family Court approval before Rosario could see his son, which was not imposed in the oral pronouncement, should be removed, and the Court remanded the case to delete that provision.

The Court did note, in dicta, that in some circumstances, it would afford the sentencing judge an opportunity to reimpose the provisions of the written sentence in the defendant's presence.

The decision can be found here.

This case was decided on October 8, 2004. I am trying to catch up on some cases that I had pulled for inclusion in this blog, but had not had the opportunity to write about. Sorry for the delay.

Underneath Their Robes post. Check out the Halloween post of Underneath Their Robes, which reveals certain secrets of some Second Circuit Judges, among others.

Appellate Advocacy Seminar. DRI is running an appellate advocacy seminar at the Westin New York in New York, New York on November 11-12, 2004. It looks like a great program. Howard Bashman of How Appealing will be there (and, I hope, so will I). For more information, click here.

Minors and sentencing. The Second Circuit, in United States v. Lewis, decided an issue of first impression with respect to whether the use of a minor in a crime can be used to enhance a sentence, under section 3B1.4 of the Sentencing Guidelines, of a leader of a conspiracy who was not directly involved with recruiting a minor, and did not have actual knowledge that such individual was a minor, but who nonetheless had general authority over the activities in furtherance of the conspiracy. The Court held (in accord with other circuits that had decided the issue) that 3B1.4 does not require scienter in order to apply the enhancement. The Court determined that the use of a minor by one of the defendant's co-conspirators was a reasonably foreseeable act in furtherance of the conspiracy.

The Court also addressed the issue of whether the mother of one of the defendants had the authority to consent to a search of his bedroom where the defendant himself was present at the scene of the search, handcuffed in a police car outside his apartment building. The Court held that since the mother had permission to access the defendant's room, her consent was sufficient to warrant the search of that room.

The decision can be found here.

Chief Justice Not at Work. Chief Justice Rehnquist was not able to make it to work today. That's not surprising in light of his recent surgery for thyroid cancer. For more information, click here.

Motion for dismissal treated as one for summary affirmance. In United States v. Monsalve, the defendant agreed to plead guilty to one count of conspiracy with intent to distribute greater than one kilogram of heroin. However, at sentencing, her counsel objected to her sentence on the ground that because the defendant had not orally admitted to a drug type or quantity, her sentence should not be based on greater than one kilogram of heroin. She appealed on that ground.

The Government moved to dismiss the appeal based on the defendant's waiver of appeal in the plea agreement. The Court agreed that the defendant had waived her appellate rights, but that certain statutory rights could not be waived. The Court held that the defendant's only contention on appeal -- that her sentence violated her Sixth Amendment under Blakely v. Washington because the District Court imposed the mandatory minimum sentence based on a drug type and quantity that she had not verbally admitted during her plea colloquy -- was frivolous and treated the Government's motion as one for summary affirmance, and affirmed the sentence imposed by the District Court.

The decision can be found here.

Apologies. Posting has been a little slow of late. Unfortunately, even faithful bloggers have spurts of heavy work activity, which keep them from their blogging duties. I can't promise that it won't happen again, but I will do my best to keep the posts coming at a steady pace.

Bad news. Chief Justice William H. Rehnquist has been hospitalized for thyroid cancer. He's being released from the hospital later this week, and he expects to be back on the bench next week. Although I respectfully disagree with him on many (most) issues, my prayers are with him for a full recovery.

Close, but no cigar. The Second Circuit agreed with the District Court that counsel for Cox, a criminal defendant in a murder case, was ineffective in failing to object to a patently unconstitutional jury instruction on intent, where intent was the primary issue in the case, and that counsel's ineffectiveness prejudiced Cox. It also agreed that the state courts' denial of Cox's appeal "involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court." However, it vacated the decision of the District Court, granting Cox a writ of habeas corpus because the District Court had not affored Cox's counsel an opportunity to explain his deficient performance, as required by the case law. While the Court doubted that Cox's counsel could "offer an explanation to defeat the conclusion that his performance was a result of ignorance, inattention or ineptitude," it nevertheless remanded the case to the District Court for further proceedings.

The decision in Cox v. Donnelly can be found here.

Quattrone free pending appeal. Former star banker Frank Quattrone won a court ruling on Tuesday that will allow him to stay out of prison until a decision is reached on the appeal of his obstruction of justice conviction.

In allowing Quattrone to remain free on bail, the U.S. Second Circuit Court of Appeals overturned a lower court ruling that would have forced the one-time investment banker to report to prison next week to begin serving an 18-month jail sentence.

For more information, click here.

Joint Post III. Yet another special eduction case has come down from the Second Circuit. In AA v. Fred Philips, the Court held that the plaintiff bore the burden of proving that the defendants -- the New York State Education Department, the Commissioner of Education and the Governor -- that they had failed in their obligation to bring the Central Islip Union Free School District into compliance with the Individuals with Disabilities Education Act on issues specifically identified as deficient in a report issued by the Education Department and failed to comply with their monitoring and enforcement obligations with respect to district IDEA violations that were not noted in the report.

The Second Circuit held that the plaintiffs had not met their burden and affirmed the dismissal of the District Court.

The decision can be found here. This post can also be found on Second Opinion's sister blog -- The FAPE Page, which deals with special education law issues.

WorldCom again! In this post, I promised an update as to why the Second Circuit, in a summary order, vacated an injunction of the District Court enjoining an Alabama state court from trying a case related to the WorldCom securities litigation. In the summary order, the Court stated that a full opinion would follow, and, on October 18, 2004, the decision in Retirement Systems of Alabama v. J.P. Morgan Chase & Co. came down.

The Court's decision was based on a violation of the Anti-Injunction Act, which bars a federal court from enjoining a proceeding in state court unless that action is "expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." The Supreme Court has held that any doubts as to the power of a federal court to issue an injunction against an action pending in state court should be resolved in favor of letting the state court action proceed.

The Court noted that it was clear under Supreme Court precedent that a federal court in which an in rem action is pending may enjoin a state court proceeding involving the same res because such a proceeding would necessarily impair and may defeat the federal court's jurisdiction. A federal court's jurisdiction in an in personam action, however, would not be so impaired. The Second Circuit had held in an earlier case that a federal court in an in personam case may enjoin a parallel state court action if the state court action would interfere with a pending settlement of a federal case.

Although the appellees argued that the parties were in settlement discussions, they could not represent that a settlement was imminent. Nor had they shown that the District Court's injunction was necessary to protect the prospective settlement. And while the state court action was likely to delay the trial of the federal action, the Second Circuit held that the District Court had no interest in being the first court to go to trial or reach a judgment. Hence, the injunction was not necessary in aid of the District Court's jurisdiction and violated that Anti-Injunction Act.

The decision in the case can be found here.

Judge Feinberg gets Devitt Award. Second Circuit Senior Judge and former Chief Judge Wilfred Feinberg has been selected as the 2003 recipient of the Edward J. Devitt Distinguished Service to Justice Award. Judge Feinberg will receive the award on Oct. 22, 2004, at the Daniel Patrick Moynihan U.S. Courthouse in New York City. (Thanks to Second Circuit News for the information.)

ADA case. See this article on a recent Second Circuit case dealing with the issue of whether personality problems (i.e., the ability to get along with others) is a disability under the Americans with Disability Act.

New blog. Not that it has anything to do with the Second Circuit, but anyone interested in complementary and alternative medicine law should check out Michael H. Cohen's blog on that subject.

Self-incrimination and the right to counsel. A defendant who wants a court-appointed lawyer but claims that forced public disclosure of his finances will violate the privilege against self-incrimination must face an open hearing with the government present, according to a decision by District Judge Sweet.

This will certainly be heading to the Second Circuit and maybe to the Supreme Court. I do not have the full decision yet -- I've only read this article -- but will post again on this fascinating (to me, at least) topic at a later date after I've read the decision. (I'm not sure, but you might need a subscription to the New York Law Journal on-line to access the article.)

Joint Post II. Another Second Circuit special education case about which I am posting here and on The FAPE Page, Second Opinions's sister blog. (I am the father of both.) In J.S. v. Attica Central Schools, six students who attend school in the Attica Central School District brought an action against the school district, claiming that they had been denied a free appropriate public education and stating claims under the Individuals with Disabilities Education Act, section 504 of the Rehabilitation Act, section 1983 and New York State education law. The school district moved to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. The District Court denied the motion but certified the issue of subject matter jurisdiction for interlocutory appeal. The Second Circuit agreed to hear this appeal.

The jurisdictional issue was whether exhaustion of administrative remedies was required before a Federal District Court could hear the case. The District Court had held that the school district's alleged systemic violations of IDEA could not be remedied through administrative proceedings and that exhaustion would be futile.

The Second Circuit affirmed, holding that systemic violations of IDEA, as opposed to "textbook" cases presenting issues involving individual children, could not be remedied by administrative action and that the exhaustion requirement would be futile.

The systemic problems at issue included: (1) the school district's total failure to prepare and implement Individualized Education Programs, (2) the school district's failure to notify parents of meetings as required by law, (3) the school district's failure to provide parents with legally required progress reports, (4) the school district's failure to provide appropriate training to school staff, (5) the school district's failure to perform timely evaluations and reevaluations of disabled chilren, (6) the school district's failure to provide parents with required procedural safeguards regarding identification, evaluation and accommodation of otherwise disabled children and (7) the school district's failure to perform legally required responsibilities in a timely manner, including providing and implementing transition plans, transitional support services and declassification services for children with disabilities.

The decision can be found here.

Ineffective. The Second Circuit has held, in United States v. Morgan, that it generally will not decide ineffective assistance of counsel claims on direct appeal. Such claims should be raised in a habeas corpus petition. The decision can be found here.

Joint Post. This is my first joint post with Second Opinions's sister blog, The FAPE Page. That blog covers special education law, so this post is about a special education case that came down from the Second Circuit.

The question presented in Mackey v. Board of Education for the Arlington Central School District was whether the parents of a learning disabled child are entitled to equitable relief under the Individuals with Disabilities Education Act, reimbursing them for private school tuition, when the denial of reimbursement results solely from the untimely issuance of a state administrative decision. The parents, disagreeing with the IEP developed by the school district, placed their child in a private school for the 2000-01 school year, while a decision was pending with respect to reimbursement at the same private school for the prior school year.

Ultimately the state review officer held that the private school had become the student's pendency placement for the 2000-01 school year based on the finding that the parents were entitled to reimbursement for that school for the prior year.

The District Court, however, held that because the decision which found that the parents were entitled to reimbursement for the 1999-2000 school year was rendered after the 2000-01 school year, the parents could not be reimbursed for the tuition for that year.

The Second Circuit disagreed, holding that penalizing the parents because the state review officer was derelict was unfair. It remanded the case to the District Court for a finding as to when the student's pendency placement at the private school took place.

The decision can be found here.

Quattrone Should Go to Prison Now. At least that's what the United States government thinks. The government urged the Second Circuit to reject a request from former star investment banker Frank Quattrone that he be allowed to stay out of prison while he appeals his obstruction of justice conviction. Quattrone, convicted of hindering a federal probe into stock allocation, is scheduled to begin serving an 18-month sentence late this month. Last month he asked the appeals court to allow him to remain free pending appeal. But federal prosecutors, in a filing with the Court, said that Quattrone's request amounted to "little more than a series of complaints" that his trial judge treated him unfairly. For more information, click here.

Acceptable access. The Court, in Bourdon v. Loughren, held that a prisoner's right to access to the courts is satisfied by appointment of counsel and such right was not violated by the government's denial of materials that the prisoner requested from the jail's law library. The Court further held that the access to courts through appointed counsel is not measured by reference to the Sixth Circuit's guarantee of effective assistance of counsel. In order to bring such a claim, asserting denial of access to the courts by appointed counsel, a prisoner must show that the provision of counsel did not furnish him with the capability of bringing his challenges before the courts, not that he was denied effective representation in the court. The Court found that Bourdon's rights had not been violated under the facts of the case.

Judge Oakes concurred, agreeing that Bourdon's rights had not been violated, but disagreed with the majority's holding that a state's affrimative obligation to provide access to the courts can be measured without reference to the Sixth Amendment's guarantee of effective assistance of counsel.

The majority decision can be found here. Judge Oakes's concurrence can be found here.

Novel Question. The Second Circuit affirmed the conviction of Michael Griffith in a summary order, but it issued a full decision to explain a novel question implicated in the appeal: whether, under 18 U.S.C. 3153, information obtained from a defendant during a pretrial-services interview can be used against the defendant for impeachment purposes. The Court held that it could.

No (Re)argument here. At the request of a judge, the court, sua sponte, conducted a poll as to whether to rehear Muntaqim v. Coombe en banc. The case involved the issue of whether a provision of New York Election Law, which disenfranchises persons currently in prison or on parole can be challenged under the Voting Rights Act. The Court declined to rehear the case. The order with concurrences and dissents can be found here. The original panel decision, which affirmed the dismissal of the action, can be found here.

More on Martha Graham. For those of you who can't get enough of the Martha Graham case, you can read this article in today's New York Times.

RLUIPA Appeal. A Jewish day school in Westchester brought an action against the village in which it was located, attempting to force the village to grant its application for modification of its special permit to allow consturction of an additional school building, along with renovations and improvements to the existing facilities. The village had denied the application for a number of reasons, including (1) the potential for increased intensity of use due to increased enrollment at the school, (2) traffic concerns relating to increased volume and the effect on nearby intersections and (3) insufficient provision for parking. The district court granted summary judgment to the school, holding that it was entitled to an immediate and unconditional approval of its application under the Religious Land Use and Institutionalized Persons Act of 2000.

RLUIPA prohibts a governmental entitiy from apply a land use regulation "in a manner that imposes a substantial burden on the religious exercise of a person . . . or institution, unless the government demonstrates that imposition of the burden . . . is in furtherance of a compelling governmental interest; and . . . [the burden imposed] is the least restrictive means of furthering that compelling governmental interest." The use, building, or conversion of real property for the purpose of religious exercise is considered religious exercise under the Act.

The district court had based its decision on the finding that the village's act was a complete denial of the application. The Second Circuit disagreed, stated that it did not see how the resolution "supports, much less compels, the conclusion that the [village's] ruling was a 'complete' rejection -- one which foreclosed consideration of a modified plan." While the Second Circuit noted that the District Court's "assessment of the complete definitve nature of the [village's] ruling may well be correct," it held that "upon a grant of summary judgment, it makes no difference what the court believes the facts to ve. The judgment may not properly be granted (or upheld on appeal) unless the record compels each finding of a fact necessary to the judgment." The Court held that the district court had given no explanation why it believed the record, viewed in the light most favorable to the village, compelled the conclusion that the rejection of the school's plan was a "complete" rejection.

The Court also stated -- I hesitate to say held because this appears to be a dictum -- that it did not believe that "any program of a religious school to improve its facilities in a manner that would improve the students' overall educational experience would be protected by RLUIPA from the implementation of a land use regulation." If such were the case, then a religious school would be entitled to benefits not available to a secular school, implicating First Amendment concerns. While the Court did not definitively rule on that issue, it commended such considerations to the District Court's attention on remand.

Finally, the Court disagreed with the District Court that traffic concerns can never constitute a compelling governmental interest and found that the District Court had improperly made factual findings in rejecting the village's expert reports submitted on the summary judgment motion.

The case was remanded for further proceedings. The decision in Westchester Day School v. Village of Mamaroneck can be found here. The case was decided on September 27, 2004.

The HMOs win again. On remand from the Supreme Court, the Second Circuit vacated its decision in Cicio v. John Does 1-8, and affirmed the decision of the District Court, dismissing the complaint. The Court held that under Aetna Health Inc. v. Davila, a Supreme Court case decided last term, the plaintiff's malpractice claim against her HMO was preempted by ERISA. The decision in this case can be found here.

Quattrone Doesn't Want to Go to Prison. Imagine that. Frank P. Quattrone, the former Credit Suisse First Boston banker, asked a federal appeals court to reverse a judge's order requiring him to surrender to prison by Oct. 28 to begin serving an 18-month sentence for obstructing justice.

Mr. Quattrone filed court papers yesterday asking the United States Court of Appeals for the Second Circuit in Manhattan to allow him to remain free pending the appeal of his conviction. At his sentencing on Sept. 8, Judge Richard Owen of United States District Court rejected an agreement reached by defense lawyers and prosecutors that would have temporarily kept Mr. Quattrone out of prison.

For more information, click here.

Second Circuit puts Cayuga land claim on hold. The Supreme Court's decision to hear the city of Sherrill's tax dispute case against the Oneida Indian Nation of New York is triggering a ripple effect on the Cayuga Indian land claim appeal. The Second Circuit Court of Appeals has notified lawyers in the land claim case that it will not render a ruling until the Supreme Court decides the Sherrill dispute. The top court has said it will hear the case next year. For more information, click here.

Indian Dispute II. A couple of days ago, I posted about Seneca Nation of Indians v. State of New York. There was a companion case that I did not mention because, frankly, I didn't have the time. Now I do. The companion case involved an attempt by the Seneca Nation to invalidate an easement granted to New York State and the New York Thruway Authority on the ground that the conveyance violated the Indian Trade and Intercourse Act. The Court held that the case had been properly dismissed on the ground of sovereign immunity. The decision in the case can be found here.

Not appealable. The Second Circuit, in Cruz v. Ridge, has held that an order of a district court transferring a case to the Second Circuit was not appealable because the plaintiff can challenge jurisdiction before the Second Circuit. The case involves an attempt by an illegal alien to challenge an immigration order by bring a habeas corpus action. The government moved to transfer to the Second Circuit because the courts of appeal have sole jurisdiction over appeals of immigration orders, which motion was granted by the district court. Cruz sought to appeal from that order. The decision in the case can be found here.

Yippee! I'm not a flappy fish anymore. I'm a crawly amphibian.

Punitives for Tobacco Companies. According to today's New York Times, the Second Circuit is poised to decide a case which will determine once and for all if tobacco companies should be assessed punitive damages for concealing the health hazards of smoking. The Court heard argument back in November, so I'm wondering if the Times knows something that I don't know about the timing of the release of this impending decision, or if it was just a slow day. The article can be found here. Thanks to Second Circuit News for the pointer.

Mea Culpa. I've just become aware that some of the links on this site have not been working. I am rectifying the situation. Please, if you find any problems with my site, contact me. I want it to be helpful to all of my readers and visitors.

Indian Dispute. The Second Circuit held that the State of New York legally owned the Niagra River islands. The Seneca Nation claimed that the acquisition of the islands by New York in 1815 from the Seneca Nation of Indians for $1,000 and an annuity of $500 per year was illegal under the Non-Intercouse Act. The Court, however, held that New York had acquired title to the islands prior to the 1815 transaction. It agreed with the District Court's view that Senecas' aboriginal title had been extinguised either pursuant to the 1764 Treaties of Peace between Great Brittain, which transferred title from the Senecas to Great Brittain and the Senecas or by the 1784 Treaty of Fort Stanwix, which extinguished the Seneca's title and passed it to New York. Hence, the 1815 transaction was irrelevant. The decision in Seneca Nation of Indians v. State of New York can be found here.

New trial. A federal judge dealt a stinging setback to the city and the police yesterday by overturning a jury verdict that had cleared the city of liability in the 1999 police shooting of an emotionally disturbed man who was clutching a hammer. This case arose out of events that occurred in my neighborhood of Brooklyn. I've never been quite clear on how I come out -- with the family of Gidone Busch or with the officers of the 66th Precinct (which is right across the street from my apartment). Anyway, for more info, click here.

Strip Search. No, that's not a sleazy come-on. That's what N.G. v. State of Connecticut was about -- repeated strip searches of young women in a juvenile detention facility. The women contended that the searches violated their Fourth Amendment rights in that there was no reasonable cause to believe they were hiding contraband. The District Court had dismissed the case, but the Second Circuit reversed, finding that while the initial search, when the women first came to the facility was appropriate, the subsequent searches while the women were in custody violated the Fourth Amendemnet in the absence of reasonable suspicion that contraband was possessed. The Court vacated the judgment of the District Court and remanded the case to determine what relief, if any, should be awarded.

The decision in this case can be found here.

We Got the Power! The Second Circuit, in United States v. Ekanem, decided a question of first impression in the Circuit -- whether the government can be a victim under the Mandatory Victim's Restitution Act of 1996 ("MVRA"), which provides the Court with the power to order restitution to the victims of certain offenses, including offenses against property. In this case, the defendant had embezzled funds provided to a not-for-profit corporation by the United States. Ekanem argued that the statute was not applicable when the "victim" was the government. The basis for this position is that the statute defined victim as " a person directly and proximately harmed as a result of the commision of an offense for which restitution may be ordered." Under the Dictionary Act, the government is excluded from the term "person." However, the Second Circuit noted that the Dictionary Act's definition does not apply if the context of a particular statute indicates otherwise. The language of the MVRA indicated that the government could be a victim thereunder. The Court also noted that the term "victim" in the Victim and Witness Protection Act included the government. Finally, the Court held that inclusion of the government within the term "victim" is consistent with the intent and purpose of the MVRA. Hence, the Second Circuit held that courts have the power to order restitution to the government under the MVRA. The decision can be found here.

Waiting. While I'm waiting for the Second Circuit to do something (anything!), I thought my readers might be interested in this article on Judge Posner's stint as a guest blogger on the Lessig Blog.

Another Landmark for Second Opinions. Yesterday, we hit the 1,000 mark for visits. I'm breaking out the champagne.

SEC: Investors need more time to sue. The Securities and Exchange Commission, in an amicus brief filed last Tuesday, is urging the Second Circuit to give some investors more time to sue companies for fraud. The case in which the brief was filed is AIG Asian Infrastructure Fund LP vs. Chase Manhattan Asia Ltd. and J.P. Morgan Partners. For more info, click here.

No Get Out of Jail Free Card. William McMahon was on trial for kidnaping in the second degree, unlawful imprisonment in the first degree, attempted rape in the first degree and assault in the second degree. His brother-in-law had already been tried for participating in the same crimes. The judge at the first trial was to try McMahon's case as well. During plea negotiations, he told the defendant that the prosecutor's offer was very fair in light of the evidence he had heard at the first trial.

The defense counsel asked the judge to recuse himself. The judge refused. The judge offered to transfer the case if the defendant would waive his right to a jury trial. McMahon agreed, and the case was tried before a second judge, who convicted him.

On appeal, he argued, among other things, that his waiver of his right to a jury trial had been coerced. The Appellate Division affirmed his conviction, although it dismissed one of the charges. The New York State Court of Appeals declined to hear the case.

McMahon brought a habeas proceeding in federal court, arguing that the first judge had been biased (evidently arguing that the judge's refusal to recuse himself was error) and that he had been coerced to waive his right to a jury trial. The District Court held that the first judge was not required to recuse himself, but granted the petition because the offere to transfer the case to another judge on the condition that McMahon agree to a bench trial was coercive.

The Second Circuit agreed that the judge did not err in refusing to recuse himself, but held that the waiver of the right to a jury trial was not coerced. The Court noted that state court judges, unlike federal court judges, are permitted to participate in plea negotiations and may discuss the sentencing repercussions of a defendant's choice to go to trial rather than plead guilty. The fact that the judge had some opinion on the case based on evidence he heard in the prior case was not sufficient basis for a bias motion. Hence, McMahon had no right to have a trial that was not presided over by the first judge.

The Court noted that a criminal defendant may bargain away his or her right to a jury trial in exchange for other benefits that would not otherwise be available to him. McMahon did not want to be tried before the first judge. He made a reasoned decision to waive his right so that he could be tried before a different judge. The Court held that there was no coersion.

The decision in McMahon v. Hodges can be found here.

Roadblock. The investigation of John G. Rowland, the former governor of Connecticut, hit a roadblock this week when the Second Circuit Court of Appeals ruled that a state-appointed lawyer could not be compelled to appear before the grand jury that is investigating Mr. Rowland and people who were connected to his administration for corruption. See the article from today's New York Times here. No written decision is available. Thanks to Second Circuit News for the link.

We don't want no stinkin' pesos. A bondholder sued Argentina for payment on defaulted bonds. The acceleration clause provided that the bondholder could elect to be paid in American dollars at the ratio of one dollar to one Argentine peso regardless of the changes in foreign exchange rates. The bondholder, not surprisingly, elected to be paid in dollars, and the District Court held that it was entitled to do so. On appeal, the Second Circuit affirmed, rejecting the strained reading of the contract advanced by Argentina to avoid paying in dollars. The decision in EM Ltd. v. Republic of Argentina can be found at the Second Circuit website. It was decided on August 31, 2004.

Graham again. Intellectual property lawyer C. E. Petit has more to say about the Martha Graham case here.

Update. Back in June, the Second Circuit certified certain question in Capitol Records, Inc. v. Naxos of America, Inc. (See my post on that here.) Today, the New York State Court of Appeals accepted the questions. (They don't have to.) Thanks to Matt Lerner of New York Civil Law for the heads up.

POST 100! Not this one. This is 101. Nice to reach this milestone. The next milestone should be 100 hits in a day. I think it'll be a while before that happens.

Views on Martha. No, not Stewart, Martha Graham. As those of you who read this blog regularly (all 10 of you), the Second Circuit recently decided the case of Martha Graham School and Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc. I blogged about here. Well, intellectual property attorney C.E. Petit has some things to say about it as well.

WorldCom again! I normally do not report on summary opinions (life's only so long), but on August 25th, 1004, the Second Circuit vacated an injunction, barring an Alabama state court from proceeding with an investor suit against the underwriters and accountants for WorldCom Inc. The summary opinion, which is very uninformative (I found out what the injunction was about from reading the New York Law Journal), can be found here. A full decison will follow, at which time, I will report more fully.

Interesting article. Readers of this blog might be interested in "As Worldcom Turns, Cases Pile Up," an article appearing in the September issue of the ABA Jouranl. A copy on line can be found here. As regular readers of this blog know, the Worldcom case has been addressed here on a few occasions.

Article III Groupie of the Underneath Their Robes blog has advised me of a post spotlighting Guido Calabresi of the Second Circuit. It's pretty hilarious, as is much of the stuff on A3G's blog.
You may recall my post on Judge Katzmann's second-place finish in A3G's Super Hotties of the Federal Judiciary contest.

Blakely procedures. Chief Judge Walker has announced a set of procedural and administrative measures that the Second Circuit is adopting pending the decision of the Supreme Court in United States v. Booker and United States v. Fanfan, the cases that deal with the issue of whether the Blakely case invalidates the United States Sentencing Guidelines. The measures can be found here.

IRS Hell. Talk about bad record keeping. The Second Circuit found the records of the IRS so confusing that it remanded a case to the Tax Court for a determination of the following issues:

1. whether the tax payer's 1993 tax refund was sent to him by the IRS in 1994. (The taxpayer had requested that the refund be applied to his tax indebtedness. The IRS did not do so.)

2. if not, whether the tax payer received timely notice from the IRS that his refund had not been applied to his 1987 and 1989 tax deficiencies.

3. if not, whether his current tax liability should be consequently adjusted by, inter alia, an abatement of interest.

4. in any case, whether the current interest abatement that the tax payer had already received was correct in light of the IRS's failure to give the taxpayer appropriate withholding credits for 1987 and 1989 and the taxpayer's payment on June 21, 1994 of $6,681.22.

The Court cautioned the taxpayer, who had represented himself pro se, that the Tax Court would deal with these issues and no other issues that had already been adjudicated.

The decision in Wright v. CIR can be found here.

Dancing for Joy. That's what the Martha Graham Center of Contemporary Dance, Inc. and the Martha Graham School of Contemporary Dance, Inc. must be doing. The Second Circuit, in substantial part, upheld the finding of Judge Miriam Goldman Cederbaum that the bulk of Martha Graham's dances were either work for hire or assigned to the Center and, therefore, belonged to them, rather than to Graham's heir, Ronald Protas. The Court, however, did remand for a finding as to whether certain dances created from 1956 through 1964 that were unpublished were assigned to the Center or passed under Graham's will to Protas. The Court reversed the District Court as to one dance, the renewal term of which, the Court held, passed to Protas.

The decision in Martha Graham School and Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc. can be found here.

Banned. In D'Alessio v. Securities and Exchange Commission, the Second Circuit upheld the ban of a broker from the NYSE floor for making illegal trades. The petitioner claimed that the NYSE was biased against him because he had brought suit against it. The Second Circuit rejected that argument and noted that if it upheld such an argument, it would serve as an incentive for other brokers facing a similar sanction to sue the NYSE, so as to prevent any action by the NYSE against them. At any rate, the petitioner had not shown that interests of the hearing officer were adverse to him so as to render the NYSE's decision tainted by conflict of interest. The Court also rejected the petitioner's assertion that the SEC could not be impartial in reviewing the NYSE's decision and that the penalty was too severe.

The decision can be found here. An article from the New York Law Journal regarding the case can be found here.

The Short and Long of It. The short of it is that the Second Circuit has upheld Vermont's campaign reform law, which contains spending limits. The long of it is that the opinion is 150 pages long. The decision in Landell v. Sorrell can be found here. The dissent can be found here.

New blog. For those of you interested in special education law, I have started a new blog called The FAPE Page. (FAPE, for those of you not in the know, is an acronym for free appropriate public education to which all children are entitled under the Individuals with Disabilities Education Act.) Feel free to drop by.

Trademark case. At the end of the day, it doesn't appear to me that the the plaintiffs-appellants in Societe des Hotels Meridien v. LaSalle Hotel Operating Partnership, L.P., will end up with much in this litigation, but, hey, a win is a win. Meridien managed certain hotels owned by LaSalle pursuant to certain lease. The leases provided that if there was change of ownership of Meridien, LaSalle could buy out Meridien's leasehold interest in the properties at fair market value. There was such a change of ownership, and LaSalle tried to exercise its option. However, Meridien refused to cooperate, so LaSalle terminated the leases based on the default. Meridien then entered into an agreement with Starwood Hotels & Resorts Worldwide, Inc. to manage the hotels.

Of course, Meridien sued. In fact, there were multiple lawsuits in various jurisdictions between Meridien and LaSalle. While this was going on, Starwood sent out a directory, which included the LaSalle hotels as hotels managed by Starwood even though Meridien was still in possession and managing the hotels. This brochure was the basis for this lawsuit.

LaSalle brought claims against Starwood under the Lanham act for false advertising and reverse palming off. The district court dismissed the claims. It held that the false advertising claim could not stand because nothing in the directory disparaged the quality of Meridien's product. It dismissed the reverse palming off claim because it held that the directories would create only a small likelihood of confusion, which, in any event, would benefit Meridien because Meridien would benefit from any sales generated by the directory.

The Second Circuit reversed. It held that Starwood, in publishing the directory, had drawn a direct comparison between its product and that of Meridien. In doing so, it used Meridien's product to sell its own product. Hence, Meridien had standing to bring a false advertising claim. The Court also noted that a false advertising claim can be based not only on false disparagement of a competitor, but on a misrepresentation of the quality of the advertiser's own goods. Hence, the complaint has stated a proper claim for false advertising under the Lanham Act.

With regard to the reverse palming off claim, while the Court noted that Starwood, at a later juncture in the litigation midhg prove that consumer confusion was unlikely, the fact that Starwood did not indicate in the directory that Meridien was managing the hotels was the hallmark of a reverse palming off claim. Because Meridien alleged that Starwood's directory falsely designated the services being provided at the hotels as being provided by Starwood, the complaint stated a proper claim.

It should be noted that Meridien lost its litigation with LaSalle relating to its leasehold rights to the property, so it is unclear how much it was damaged. I suspect a quick settlement will ensue, and nothing more will be heard of this case.

The decision can be found here.

Flippery Fish. Well, in the TTLB Ecosystem, this blog is a flippery fish. While it's nice to be recognized at all, I think we can do better.

Futile. In Scalisi v. Fund Asset Management, L.P., the Second Circuit discussed the proper standard for determining whether a demand on a board to bring an action would be futile in the context of a shareholder's derivative action. Since the corporation at issue was Maryland, the Court applied Maryland law, and held that a demand is to be considered futile only when (1) a demand, or a delay in awaiting a response to a demand, would cause irreparable harm to the corporation, or (2) a majority of the directors are so personally and directly conflicted or committed to the decision in dispute that they cannot reasonably be expected to respond to a demand in good faith and within the ambit of the business judgment rule.

The plaintiff asserted that a director is independent only if he is not an "interested person" under the Investment Company Act. It claimed that since the directors were not independent under the ICA, demand on the board would have been futile. The Second Circuit noted that that view had no basis under Maryland law. As the plaintiff had not met the standard set out above, the Second Circuit affirmed the dismissal of the action by the District Court.

The decision can be found here.

No bail. The Second Circuit has declined to set bail for Rafil Dhafir, who has been indicted for sending money to terrorist groups in Iran. A prior post on this case can be found here. For more information on the Court's decision, see Newsday's article here.

Just the law, ma'am. Back in 1998, the Second Circuit, in Halligan v. Piper Jaffray, Inc., held that an arbitration award could be vacated if the arbitrator demonstrated manifest disregard of the law and the facts. However, in Wallace v. Buttar, the Court has reversed course and held that manifest disregard of the facts is not a basis for vacating an arbitration award. The Court stated: "To the extent that a federal court may look upon the evidentiary record of an arbitration proceeding at all, it may do so only for the purpose of discerning whether a colorable basis exists for the panel's award so as to assure that the award cannot be said to be the result of the panel's manifest disregard of the law."

The decision can be found here.

Meritless, but not frivolous. Metropolitan Life Insurance Company converted from an old-fashioned mutual insurance company to a modern stock insurance company in 2000. The conversion affected policyholders' interest in the company, converting them to cash, policy credits or stock in the new company, MetLife, Inc. The conversion was done in compliance with the pertinent law and was approved by the New York superintendent of Insurance after a hearing. Ninety-three percent of the voting policyholders supported the conversion.

Nevertheless, there were some disgruntled policyholders who sued, claiming that the conversion violated their constitutional rights under the Takings Clause, the Due Process Clause, the Commerce Clause and the Contracts Clause. The complaint, which sought relief under section 1983, claimed that MetLife acted under color of state law by receiving the sanction of the superintendent of Insurance and by reorganizing pursuant to New York Insurance Law 7312.

MetLife moved to dismiss. The District Court granted the motion, and the plaintiffs filed a notice of appeal.

MetLife, as the prevailing party, moved for attorneys' fees, pursuant to 42 U.S.C. 1988(b). Its motion was made seven days beyond the 14-day deadline set by Rule 54(d)(2)(B) of the Federal Rules of Civil Procedure. The Court denied the motion without prejudice to renewing it after the disposition of the appeal. While noting that the motion was untimely, the Court directed that any renewed motion should be filed no later than 14 days after the entry of the Second Circuit's mandate on the District Court's docket.

The Second Circuit affirmed and issued its mandate. MetLife made its renewed motion within 14 days of the entry of the mandate on the docket, seeking only attorneys' fees incurred in the District Court.

The plaintiffs argued that the Court did not have jurisdiction over the initial application because a notice of appeal had already been filed, the initial motion was untimely and the action was not frivolous and did not warrant an award of attorneys' fees.

The District Court, however, rejected the plaintiff's arguments and granted the motion. MetLife was awarded $30,000 in attorneys' fees. The plaintiffs appealed this award.

The Second Circuit agreed with the District Court with respect to that Court's power to entertain the motion, however, it agreed that a showing of excusable neglect was required to extend the deadline. It did not remand for a factual finding on this issue because it reversed the award on another ground.

The other ground was that the Second Circuit found that the plaintiffs' claims were not frivolous. The Court noted that there was case law that tended to support the plaintiffs' state action theory, albeit weak authority. In sum, the Court stated: "Hindsight proves that plaintiffs' allegation of state action was very weak, but it was not completely without foundation. Accordingly, the district court abused its discretion by awarding attorneys' fees to MetLife."

The decision can be found here.

Whether you want it or not. The Second Circuit, in United States v. Johnson, has held that, under the Mandatory Victims Restitution Act of 1996, restitution must be paid whether the victim wants it or not. The decision can be found here.

Notice in Spanish. Counsel in United States v. Leyba wanted to withdraw as appellate counsel because he felt there was no non-frivolous basis for appeal. Before the Court ruled on counsel's motion, it ordered the counsel to ensure that defendant, who speaks Spanish, but not English, received adequate notice in Spanish of the substance of the Anders brief, his right to proceed pro se or seek appointment of new counsel and the likely consequence of of failure to respond to the Anders motion. The decision can be found here.

Reserved Decision on Accused Terrorist Supporter. Yesterday, Judges Barrington Parker, Jr. and Dennis Jacobs heard argument on whether bail could be posted so that oncologistRafil Dhafir could be released from jail pending his trial on charges of sending money to terrorist groups in Iran. An article from the Syracuse Post-Standard on the argument can be found here.

Released time. I had thought the issue of whether "released time" policy under which a school district could allow students to leave school to participate in religious instruction violated the Establishment Clause had been resolved in 1952 when the Supreme Court decided Zorach v. Clauson. However, the plaintiffs in Pierce v. Sullivan West Central School District made an "as applied" challenge to the policy. They were no more successful that the plaintiff in Zorach. Although a New York regulation allowed school districts to allow students to leave for religious instruction, this regulation provided that "released time" could only be at the end of the morning or afternoon session for no more than an hour per week. The school district in Pierce, however, allowed the "released time" to take place in the middle of the morning session. During that period, the remaining students had no organized activities. They awaited the return of the students taking religious instruction.

The plaintiffs complained that the way the program was implement violated their Establishment Clause rights because it humiliated them, left non-participants in the program with nothing to do, conveyed a message of endoresement of religion, violated the regulation by allowing students to leave in the middle of the morning session and enabled the students receiving religious instruction to bring religious literature into the classrooms. The school district, while admitting that the policy did not comply with the regulation, argued that it did not violate the Establishment Clause. The District Court granted summary judgment to the school district.

The Second Circuit affirmed. It found that Zorach controlled the case. The Establishment Clause was not violated because no religious instruction took place in the school itself, no expenditure of public funds supported the program and the public school did not promote the instruction beyond collecting permission slips from the parents.

The decision can be found here.

Autoerotic Asphyxiation. Wow! Can you say that three times?

This case involved the issue of whether the survivor of a person who died while engaged in the practice of autoerotic asphyxiation, was entitled to life insurance benefits where there was an exclusion for intentionally self-inflicted injuries. As this is a family blog, for those of you not familiar with the practice, click here for an explanation. The district court granted summary judgment to the insurance company, holding that the practice constituted an intentional self-inflicted injury.

On August 12, 2003, the Second Circuit, by a 2 to 1 majority, voted to affirm. A judge of the Court requested a poll to have the appeal reheard en banc. While the poll was pending, one of the judges on the panel changed his mind, and a new opinion in Critchlow v. First Unum Life Insurance Co., which can be found here, was issued. The dissent can be found here. Henceforth in the Second Circuit, autoerotic asphyxiation is not an intentional self-inflicted injury for insurance purposes.

It's great to be back.

Emergency! Save this blog! Oh, don't worry. I'm not really going anywhere, but the number of hits this site is getting is amazingly low. It's down to an average of 11 per day. I know that weekends bring the average down, but really! Don't people care about the Second Circuit? Well, it's up to you my loyal readers (all 11 of you), to reverse this trend. Tell your friends about this blog. If you have a blog of your own, link to this blog. Visit more often. And if you know of any way to increase the visibility of this blog, don't keep it to yourself. Tell me.

Gone Fishin'! Well, not exactly fishing, but I will be in attendance at the American Bar Association Annual Meeting from August 5 through 10 and, in that I am not one of those laptop carrying, Wi-Fo using bloggers, I, most likely, will not be blogging (although anything is possible). I'll try to do another post or two on any cases that come out today, but if I don't, see you next week.

If any of you are going to be at the ABA Meeting and would like to meet me, I'll be staying at the Courtyard Marriott Hotel -- Downtown. Give a call.

Rook(er)ed! Stephen T. Mitchell is a criminal attorney who ahd been part of the panel of attorneys certified to serve as compensated, court-appointed counsel for indigent criminal defendants. The committee that certifies such counsel denied his recertification and terminated his appointment to the panel. Mitchell sued, claiming that the committee discriminated against him on the basis of his race and in retaliation of his complaints of racial discrimination.

The District Court dismissed the case. It held that the committee was an adjunct of the Court and was entitled to absolute immunity from damages. It also held that Mitchell was not entitled to injunctive relief because injunctive relief in a section 1983 action against a judicial officer for an act taken in that officer's judicial capacity unless a declaratory decree was violated or declaratory relief was unavailable. Finally, the Court dismised the claim for declaratory relief under the Rooker-Feldman doctrine. That doctrine prohibits federal courts from reviewing decisions of state courts. The Court noted that, in this case, there was no decision made by any court, but reasoned that the decision of a body acting as an arm of the state judiciary was the functional equivalent of a judgment of a state court, which could not be reviewed by a federal court.

The Second Circuit held that the Rooker-Feldman doctrine did not apply. Federal courts were not precluded from reviewing "executive action, including determinations made by a state administrative agency." The committee was acting as an administrative body and was not conducting judicial proceedings. The Court also held that the committee's "decision was, in its effect, legislative rather than judicial," and, thus, not protected by the doctrine.

The Second Circuit also held that the defendants were not entitled to absolute immunity because their acts were not judicial or integrally related to a judicial proceeding.

The decision in Mitchell v. Fishbein can be found here.

Court refuses to vacate arbitration award. Surprise! Tatung Co. lost an arbitration to Lucent Technologies Inc. to the tune of $12,551,613 plus interest. It decided its next step was to attack the arbitrators. First, it complained that it did not receive a disclosure form that revealed that one of the arbitrators had been a litigation consultant to Lucent in an unrelated case. Second, it argued that it had not been revealed that two of the arbitrators had owned an airplane together from 1974 to 1990. The district court confirmed the award, stating that Tatung's argument was "a classic example of a losing party seizing upon a pretext for invalidating the [arbitration award]." The District Court found that vacatur of the award would serve no public purpose in a case where the disclosure was made to the AAA, but not forwarded to the parties. Finally, the Court found that the disclosures were not such as would suggest partiality or warrant vacating the award.

The Second Circuit agreed. While the Court agreed that where an arbitrator hid a conflict, such action might suggest evident partiality so as to warrant vacatur. But that rule must be applied on a case by case basis. Where the arbitrator made the disclosure, even though the AAA did not follow through, no presumption of bias can be made. And requiring vacatur whenever a disclosure was accidently not made would run counter to the policy of encouraging and supporting arbitration. The Court also noted that Tatung knew of the policy of providing disclosures, yet it never asked about the missing disclosure until after it lost.

The Court further agreed with the District Court that the joint ownership of an airplane by two of the arbitrators, which ended over a decade ago, was too insubstantial to warrant vacatur of the award.

Finally, the Court agreed with the District Court that the fact that an arbitrator served as a litigation consultant for Lucent in an unrelated case did not warrant vacatur. The arbitrator's relationship had materially ended before Lucent appointed him an arbitrator.

Tatung had asked the Second Circuit for leave to take discovery regarding the conflict if it did not vacate the award. Becasue Tatung had not sought that relief from the District Court, the Second Circuit declined to do so.

The decision in Lucent Technologies Inc. v. Tatung Co. can be found here.

Oops. Virginia Gambale and Deutsche Bank AG settled a sexual harassment lawsuit and filed a stipulation dismissing the case. The settlement agreement provided that the terms thereof would be kept confidential. The District Court, however, disclosed certain provisions of the agreement in a sua sponte order which unsealed certain documents relating to the action. The Bank appealed from the order, claiming that once the action was dismissed, the Court no longer had jurisdiction, and, even if the Court had jurisdiction, the order was otherwise improper. The Second Circuit, however, disagreed and upheld the order. The Court, however, remanded the case to the District Court with an instruction to maintain under seal the transcript of a conference in whcih the parties revealed to the Court the confidential amount that the Bank was paying Gambale, unless all confidential information and direct and indirect references to confidential information are redacted from the transcript.

The Second Circuit held that while the filing of a stipulation dismissing the case divests a Court of all jurisdiction over the case, it does not follow that the filing of such a stipulation divests the Court of the authority to either dispose of material in its files as it thinks appropriate or to modify or vacate its own protective orders with respect to such documents. The Second Circuit stated: "The records and files are not in limbo. So long as they remain under aegis of the court, tehy are superintended by the judges who have dominion over the court." Given the public's common law right to access to judicial documents, a district court that decides that such access is appropriate in a case "acts within its jurisdiction when it modifies or vacates a protective order to allow that access, irrespective of whether it does so before or after a stipulation of dismissal has been filed."

The Second Circuit, however, noted that the amount paid by the Bank to Gambale to settle the lawsuit "stands on starkly different footing." The amount is set out in the settlement documents that are not part of the court record. Hence, there is no presumption of access with respect to this information. While not precluding the possibility that some case could require such disclosure, the Court held that this was not such a case. Indeed, the Court noted that an agreement to keep the terms of a settlement confidential could facilitate settlement, a salutory result. Although the amount of the settlement was disclosed on the record at a conference, the Court found that the Bank's interest in confidentiality outweighed the public interest in disclosure.

The Second Circuit held that it was a serious abuse of discretion for the District Court to have revealed the settlement amount in its unsealing order. That order is available on Westlaw and Lexis, and the Court noted that it was unable to put the genie back in the bottle.

The decision in Gambale v. Deutsche Bank AG can be found here.

Unusual Circumstances. In a prior post, I reported on the case of Hemstreet v. Greiner, in which the Second Circuit affirmed the District Court's grant of a writ of habeas corpus because of ineffective assistance of trial and appellate counsel. The Second Circuit has sua sponte vacated that opinion and remanded to the District Court for reconsideration. Since the decision came down, the witness who had claimed to have been intimidated by detectives, which alleged intimidation was the predicate for the relief granted, has recanted. Given the highly unusual circumstances, the Court reconsidered its prior decision and vacated and remanded to the District Court. The new decision can be found at the Second Circuit website. It was decided on August 2, 2004.

Ineffective Assistance. Isaac Jacob Sharvit was found guilty of engaging in a conspiracy to dstribute and possessing with intent to distribute pills containing ecstasy. He moved for a new trial on the ground of ineffective assistance of counsel, which was denied, based primarily on the affidavit of his trial counsel, who rebutted all of Sharvit's contentions. He appealed.

During the pendency of his appeal, Sharvit's trial counsel was indicted for conspiracy to defraud the United States by submitting fraudulent appplications for appointment of counsel under the Criminal Justice Act. The indictment also stated that she had made false statements to the United States District Court and to criminal investigators and that she attempted to dissuase another person from making certain communications to law enforcement personnel. According to a New York Times article, there were allegations that the attorney abused prescription drugs and laundered money on behalf of a client. Sharvit brought these facts to the attention of the Second Circuit in his reply brief. The Government did not deny any of the allegations.

The Second Circuit remanded the case to the District Court for further fact finding, although the Court noted that the usual procedure for bringing an ineffective assistance claim is on habeas review. The case, which was decided on July 30, 2004, can be found here.

Inducement of Agent to Travel Between States for a Fraudulent Purpose. In United States v. Thomas, the Second Circuit held that a conviction for inducing someone to travel between states for a fraudulent purpose, a violation of 18 U.S.C. 2314, can stand even if the person induced was an agent of the person cheated, and not the actual person. In so holding, the Court agreed with the Seventh and Ninth Circuits. The decision can be found here. An article on the case from the New York Law Journal can be found here.