Wednesday, March 31, 2004

The Second Circuit has upheld the streamlined review procedures of the Board of Immigration Appeals in Zhang v. United States Department of Justice. Zhang sought political asylum, claiming that he had left China to escape prosecution for violating China's oppressive birth control policies. After a hearing, the Immigration Judge denied Zhang's application because he did not find Zhang to be credible. Zhang appealed to the BIA, which using the new streamlined review procedures, affirmed the Immigration Judge without an opinion. Zhang appealed to the Second Circuit, arguing that the BIA, by having a single Board member summarily affirm the decision of the Immigration Judge, abused its discretion and denied him due process. The Second Circuit noted that similar arguments had been made before the First, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits and had been rejected in each of them. The Court noted that appellate review of agency decisions is a statutory, not Constitutional, right. Because nothing in the immigration laws requires review by a three-member panel, the BIA was free to set up its own procedures. Also, a petitioner could still go to the Court of Appeals to further argue his or her case. Although the summary affirmance of the BIA would not meet the standards of a reasoned decision, the decision of the Immigration Judge would provide such a decision. In sum, Zhang got all the process he was entitled to -- a hearing, a reasoned decision, review by the BIA and the right of relief from the Courts. The decision was rendered on March 24, 2004 and can be found on the Second Circuit website.

Thursday, March 25, 2004

Do you know how hard it is to get an appellate court to grant rehearing? Well, take it from someone who's done that, it ain't easy. Well, the United States government got rehearing, and they still managed to lose. (I've done that, too, but that's a story for another day.) In United States v. Lauersen, the defendant, convicted of health care fraud, was sentenced to 87 months, the minimum of the applicable sentencing range. On the original appeal, the Second Circuit agreed with the government that the District Court had erred in ont increasing the adjusted offense level by an additional 4 levels because the offense derived more that $1,000,000 in gross receipts from the offense. This enhancement would increase the minimum sentence by four years. The Second Circuit ruled that the additional enhancement created a new circumstance that might justify a downward departure. The new enhancement overlapped with another 13 level enhancer (amount of loss) and, hence presented a circumstance that is present to a degree not adequately considered by the Sentencing Commission. It, therefore, permitted the District Court to exercise its discretion to mitigate the effect of the enhancement by making a downward departure. The Government moved for rehearing on the issue of the possible downward departure. Since the issue was not briefed, the Court granted rehearing and held to its original ruling. The Court held that "when the addition of substantially overlapping enhancements results in a significant increase in the sentencing range minimum . . . , a departure may be considered." Its not such a bad loss for the government. The good doctor will be out of circulation for more than seven years. Not a bad day's work. The decision can be found at the Second Circuit site.

Wednesday, March 24, 2004

Since the Second Circuit has been issuing nothing but summary opinions for the past few days and I haven't found anything of real interest going back the past few weeks, I'm going off topic a bit, and talk about legal blogs (I've never warmed up to the term "blawg" for some reason) that I like. I'm not one of those lawyers who checks 50 blogs a day. I'm much more selective than that.
Of course, the legal blog god is Howard Bashman. I can't understand how Howard makes a living, considering the time he puts into his blog, How Appealing, which purports to involve appellate law, but basically tells you everything you want to know about what's going on in the legal world. Practically the first thing I do every morning is check out his blog, and there's always something of interest.
I also check out C.E. Petit's Scrivener's Error blog. It covers publishing law, but often goes afield to other areas. I'm not actively involved in that area of law, but Charlie is a friend of mine and I find his insights fascinating, even if I don't always agree with him.
The blogosphere is lousy with law student bloggers. I find most of them pretentious and unworthy of my time, but Heidi Bond's Letters of Marque blog is worth reading for its sheer wackiness.

Monday, March 22, 2004

On March 3, 2004, the Second Circuit, in Fickling v. Flower, Medalie & Markowitz, Esqs. (In re Fickling), held that attorneys' fees earned prior to the conversion of a debtor's bankruptcy case from a Chapter 11 to a Chapter 7 are dischargeable. The appellant in this case was a law firm that had represented the debtor in the Chapter 11 phase of the bankruptcy, but which withdrew prior to the conversion of the case to a Chapter 7. The Bankruptcy Court discharged the debtor from paying the attorneys' fees, and the District Court affirmed. Although the statutory language classified debts arising before the conversion as pre-petition debts, which are dischargeable, the law firm argued that (1) its fees were an administrative expense, and,hence not dischargeable, and (2) to treat the debt as dischargeable would ignore the implications of 11 U.S.C. 329, which gives the bankruptcy court the power to reveiw claims for attorneys fees. As to the first argument, the Second Circuit held that the statute gives an administrative claim a priority in payment, but has no effect on discharge. Absent a statutory exception, such claims may be discharged. As to the second argument, the Second Circuit noted that section 329 applied to post-petition attorney fee claims, which were not dischargeable. Hence, the statute was not superfluous. It just did not apply to this case. The law firm also sought to be paid on the basis of fraud by the debtor. It claims that it had not filed interim fee applications based on false assurances by the debtor that it would be paid out of the proceeds of a condemnation proceeding. The Court rejected this request because the law firm had not sought revocation of the discharge within a year, as required by the statute. (I'm having trouble getting a direct link to the case. You can find it at the Second Circuit site.)

Sunday, March 21, 2004

The Second Circuit has determined, in a 26-page opinion, that the Government of Russia is a political organ of the Russian Federation. That issue was crucial to a resolution of a foreign lender's attempt to enforce a Swedish arbitration award against the Russian Federation. The Federation, among other things, claimed that it was not a party to the arbitration, and, accordingly, the lender could not enforce the award against it. The decision in Compagnie Noga D'Importation et D'Exportation S.A. v. The Russian Federation can be found here. Judge Dennis Jacobs concurred in the case, agreeing with certain parts of the majority decision, and setting out his own reasoning on those points where he differed with the majority. His concurrence can be found here. The lender's collection troubles are not yet over. The Court remanded the case to the district court to determine (1) whether the lender's assignments of its arbitral proceeds to certain of its creditors deprived it of standing to seek confirmation of the arbitral award and (2) whether the creditors to whom the lender assigned the arbirtation proceeds must be joined as necessary parties. Stay tuned for further developments.

Friday, March 19, 2004

Before we get to the Court, a little bit more about me. (It's always about me.) I work for the law firm of Cox Padmore Skolnik & Shakarchy LLP. As far as litigation is concerned, we have a general commercial practice though we dabble in other areas, and I am getting involved in special education law. I just got back from what I call special ed boot camp (but others call the COPAA conference) where I learned a great deal about an area of law of which I previously had little knowledge. I joined COPAA's amicus brief committee, so I hope to be merging my interest in appellate advocacy with this new practice area.

Thursday, March 18, 2004

You don't know me. This is my first post and my first blog. My name is Sandy Hausler, and I am a New York attorney. Don't hold that against me. Although I would like to say that I practice solely in the appellate courts, that is not true. I practice in every court in New York State, from top to bottom, but my one true love is appellate advocacy. My book shelf is full of books on appellate practice, including Stern, Gressman, Shapiro & Geller, Supreme Court Practice (8th edition), Garner, The Winning Brief and oddities like Weiner, Briefing and Arguing Federal Appeals (it took me years to find a copy of that -- it has just come back into print). Since, I am an appellate geek, I decided to do a blog about my home Circuit, the Second Circuit. I may occasionally talk about other local appellate courts, especially if I am involved in the case, or even other circuits and the Supreme Court, but ordinarily I will be telling you about what's happening in the Second Circuit. I hope you enjoy it. Come back soon and tell all your friends about this blog.