Change in the Law. Congress passed a statute (18 U.S.C. 2709) that allows the FBI to issue National Security Letters, i.e., administrative subpoenas, to internet service providers (ISPs) that allows the FBI to gain access to subscriber information or electronic communication transaction records held by the ISP when that information is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities. Two ISPs challenged the statute. The district courts ruled on the constitutionality of the statute, but, in the interim, Congress amended the statute, changing some of the relevant provisions.

With regard to the first ISP, the Second Circuit held that because the statute had been changed to provide for pre-enforcement judicial review, the ISP's Fourth Amendment claim no longer existed. That portion of the appeal was declared moot and the part of the district court's decision on that issue was vacated.

With regard to the First Amendment clains raised by the ISP, the statute originally did not allow the ISP to seek counsel in that it required the ISP not to disclose the existence of the subpoena to anyone. The statute was amended to allow talking to an attorney with respect to the request. The ISP, however, maintained that the amended statute still violated its First Amendment rights. The Second Circuit held that it should not decide the issue. It vacated the portion of the district court's decision relating to that issue and remanded the case to the district court for furhter proceedings, including possible new pleadings.

With respect to the second ISP, which dealt with the portion of the statute forbidding the ISP from revealing that it is a recipient of such a subpoena, the district court had granted an injunction. The government has now conceded that the ISP can reveal its identity renders the appeal moot. The Court did not vacate the decision because it was presumptively correct and the valuable to the legal community as a whole.

The decision in Doe v. Gonzales can be found here.

Going Up. I'm going out on a limb here and predicting that a new Second Circuit case will go up to the Supreme Court. Riegel v. Medtronic, Inc. raises, among other things, the question of whether section 360k(a) of the 1976 Medical Device Amendments to the Food, Drug, and Cosmetic Act preempts coomon law tort claims regarding medical devices that have entered the market pursuant to the Food and Drug Administration's rigorous premarket approval process. There is a split in the Circuits, with the Second Circuit joining the Third, Fifth, Seventh and Eigth Circuits holding that the federal statute does preempt common law tort claims. The Eleventh Circuit holds that it does not. With a 5-1 split, I might not be so confident of certiorari being granted, but there is also a split among the state courts that have dealt with that question with Texas and Pennsylvania coming out in favor of preemption and Illinois, New York, Washington and Oregon coming out against. Cases in California have come out on both sides of the question.

The decision can be found here.

Fair Use. The Second Circuit held that the use of seven images in a 480-page book on the story of the Grateful Dead constituted fair use (under the circumstances). The decision in Bill Graham Archives v. Dorling-Kindersley Limited can be found here.

Unreviewable discretion. The Second Circuit refused to review an immigration judge's discretionary refusal to find that the petitioner had shown "unusual or outstanding equities" sufficient to overcome the extremely adverse circumstances -- repeated convictions of crimes -- to justify granting him a waiver of removal under the Immigration and Nationality Act. The Court held that it had no jurisdiction to review the immigration judge's finding, under 8 U.S.C. 1252(a)(2)(B)(ii). The petitioner had also failed to raise any colorable constitutional claims or questions of law sufficient to invoke the Court's jurisdiction, under 8 U.S.C. 1252(a)(2)(D).

The decision in Avendano-Espejo v. Department of Homeland Security can be found here.

Third Circuit Blog. Those federal public defenders are spreading. First, the Second Circuit Blog, and now the Third Circuit Blog. As far as I can tell, it deals solely with criminal matters, which is not surprising in that it's run by public defenders. And it's not a new blog. It's been around since January 2005. Hey, I annoumce them as I find one.

BREAKING NEWS: OK, it's not really news, but it looks like each circuit has one. (The Fifth Circuit Blog site is still under construction.) So if you practice criminal law in federal courts, there's a blog for you.

Congratulations. I would be remiss in not acknowledging the recent gradulation of cyber-friend (we've never actually met or spoken in real life) Heidi Bond of Letters of Marque from the University of Michigan School of Law, where she was an editor of the law review and a winner of the coveted Bates award (I'm not exactly sure what it is, but I'm sure it is coveted) and will be going on to clerk for Judge Alex Kozinski. Best of luck. I'm sure we will be hearing great things from her in the near future.

Another new blog. Well, it's not so new -- it apparently has been running since November 4, 2005 -- but it's new to me. Meet Legal Writing Prof Blog. It's about -- surprise -- legal writing and it is run by Nancy Soompaa of Texas Tech University School of Law and Sue Liemer of Southern Illinois University School of Law. Welcome (belatedly) to the blogosphere and congratulations on scoring another link.

Limitation of Liability. What luck. A provision in an Express Cargo Bill limiting liability to $500per package has saved The Burlington Northern and Santa Fe Railray Compnay from being socked with major damages when its change from Long Beach, California to Chicago, Illinois derailed. The actual loss for the destruction of two engines was $234,585.88. Because there were two engines involved, the defendants had to pay $1,000. The lawyer who wrote that contract deserves a bonus.

The decision in American Home Assurance Co. v. Hapag Lloyd Container Line GmbH can be found here.

Inflexible. The Second Circuit, in a case of first impression in the circuit, held that the requirement that an application to permit an appeal an order certifying a class in a class action be made within 10 days is either jurisdictional or is a claim-processing rule that is inflexible. In that the plaintiff objected to the late filing of the application, the Court denied it.

The decision in Coco v. Incorporated Village of Belle Terre, New York can be found here.

I've Made It! This blog has finally been listed on the blogroll of How Appealing. When I first started this blog, I asked Howard Bashman to list me on the blogroll. He promised that he would do so, but it never happened. Being unagressive in asking for favors, I never raised the issue towith him again until last week, when I had occasion to e-mail him regarding an outdated link on the How Appealing blogroll. I mentioned that this blog was not listed, and he immediately rectified the matter. Let's see if that leads to greater numbers of hits.

Missing info. Those in the know realize that my post of yesterday on the Muntaqim case was incomplete. I was accurate as far as it went, but there was a companion case, Hayden v. Pataki that was arued together with Muntaqim was also decided. Unfortunately, the link on the Second Circuit website only gives me an error message. The link from Findlaw does the same thing, so I haven't read this decision. The New York Law Journal says that the en banc court decided 8-5 that Congress did not intend to allow challenges to the felon disenfranchisement law under the Voting Rights Act.

The ABA Law Students Divison just recently held a moot court competition on this very issue, and I, as a judge in the preliminary rounds, heard extremely good arguments on both sides of this issue. I would not be surprised if Hayden makes its way to the Supreme Court.

Once I do get a copy of the decision, I will post a more complete report.


EDIT: The decisions in Hayden v. Pataki can be found here. It's a lengthy document, but when I get to read it in its entirety, I expect to have some things to say (or maybe not).

Muntaqim en banc. In an unusual procedural posture, the Second Circuit agreed to hear Muntaqim v. Coombe en banc after the Supreme Court had denied certiorari. The case involved whether the New York felon disenfranchisement law violated the Voting Rights Act. The Second Circuit held that because Muntaqim was not a New York citizen, he did not have standing to raise the claim. The Court held that it had no jurisdiction and vacated all prior rulings. The decision in the case can be found here.

Rascist Cops. I'm sure you all remember that famous Labor Day parade in New York, where a bunch of apparently brainless cops and firemen participated on a float that featured mocking stereotypes of black Americans. They were fired, and they sued, claiming that their First Amendment rights were violated. The government moved to dismiss, but the District Court denied their motion. The Second Circuit reversed, noting that while the government was not as free as a private individual or company to fire employees, it retained hte freedome to dismiss employees who do not meet the reasonable requirements of their job. The decision in Locurto v. Guiliani can be found here.

Oh, by the way, these events all happened in 1998. Talk about the slow pace of litigation!