Where are the women? This post is not about the Second Circuit. It's about Supreme Court clerks. For the first time since 1994, the number of women clerking for Supreme Court Justices is in the single digits. What gives?

Attorney's Lien. Cassie Sutton retained Leeds Morelli & Brown ("LMB") to represent her in a discrimination action against her former employer. Her retainer agreement with LMB provided that she would pay a $5,000 retainer upon signing the agreement and two additional payment of $2,500. LMB would be entitled to 40% of any settlement, less all retainer payments, or 40% of a damage award after trail, without deduction for retainer payments. Sutton paid $5,000 plus one $2,500 payment. LMD filed a Title VII action against her employer. The parties reached a settlement where Sutton would be paid $15,000, but the agreement was not executed. Sutton told LMB that she would not sign because she was uncomfortable with having LMB represent her.

LMB wrote to the Chief Magistrate Judge, informing her that it wished to be removed as counsel after Sutton raised questions with the firm regarding a news story implicating it in possible unfair settlements in other cases. The Magistrate Judge relieved the firm as counsel. LMB than applied to the Magistrate Judge for a charging lien in the amount of $37,879.18 (less the $7,500 retainer payments) on Sutton's file. It also asked for an immediate payment of $544.54 in expenses. Sutton opposed the application and sought return of the payments that she had made.

The Magistrate Judge denied Sutton's request for return of the payments, granted LMB's request for its expenses and granted an attorney's lein in the amount of $10,490.50. Sutton sent a letter to Judge Gerson objecting to the Magistrate Judge's order. Judge Gerson treated the letter as an appeal from the order, and affirmed the order. While these proceedings were ongoing, Sutton filed a notice of appeal.

The Second Circuit found that it had appellate jurisdiction. The notice appeal was either a timely notice of appeal from the Magistrate Judge's judgment or was a premature notice of appeal from Judge Gerson's judgment, confirming the Magistrate Judge's judgment.

The Court noted that had Sutton accepted the settlement, LMB would have been provided to no additional payments (other than expenses) because 40% of $15,000 is less than the $7,500 it had already been paid. Hence, the Court held that LMB was entitled to its expenses, that Sutton was not entitled to a return of the funds she had already paid and vacated the charging lien.

The decision is Sutton v. New York City Transit Authority can be found here.

Appropriate Delegation. The International Emergency Economic Powers Act authorizes the President to regulate financial transactions with foreign countries or nationals in a time of security crisis and prescribes criminal penalties for violations of the president's regulations. Osmah Al Wahaidy pleaded guilty to transferring money to Iraq on three occasions in 1999 and 2000 in violation of the regulations enacted pursuant to the Act, but reserved his right to challenge the constitutionality of the Act. He moved to dismiss the indictment, which motion was motion was denied, and he appealed from the order denying the motion, claiming that the Act improperly elegated Congress's authority to define criminal offenses to the executive branch.

The Second Circut held that the delegation was not improper. The Court noted that only twice had a delegation of power been found unconstitutional, even in cases involving criminal offenses.

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

Discriminatory Transfer. An employee of the Westchester County Department of Social Services filed complaints against the County and DSS to the EEOC and the New York State Division of Human Rights, claiming that they had discriminated against him on the grounds of his age, race, gender and religion. He was transferred out of his job to another position. Although the transfer did not affect his job title, job grade, salary, benefits or hours of work, he had been stipped of his prior responsibilities, which were replaced by menial tasks. The employee brought a retailiation claim. The district court granted the County's motion for summary judgment, holding that the employee had not shown sufficient evidence that he had suffered an adverse employment action.

The Second Circuit reversed, holding that there was genuine triable issue of fact as to whether the employee's reassignment dould well have dissuaded a reasonable employee in his position from complaining of unlawful discrimination. The case was remanded to the district court for further proceedings.

The decision in Kessler v. Westchester County Department of Social Services can be found here.

250th Column. Those Second Circuit groupies are certainly familiar with the regular column of my former colleagues and friends, Martin Flumenbaum and Brad Karp (both partners at Paul Weiss Rifking Wharton & Garrison LLP) on the Second Circuit. Today's New York Law Journal, features their 250th column, which deals with the evolution of the Second Circuit over the past two decades. Congratulations, guys. Keep on writing them!

Credibility Findings Arbitrary. While an appellate court rarely overturns credibility findings in Zhu v. Gonzalez it did so. The Immigration Judge found an alien seeking asylum was not credible because her testimony was contradicted by a statement made by her husband, which itself was contradicted by another, neither of which were subject to cross-examination. The Board of Immigration Appeals affirmed the Immigration Judge's opinion. The Court, in vacating and remanding, the decision, sould not understand "from the record, why the [immigration judge] would conlcude that, on the one hand, [the husband, who had come to the United States earlier] had 'no reason to lie or make up a claim' and that his asylum application was therefore reliable but that, on the other hand, [the wife, the petitioner in this case] was fabricating her version."

The decision can be found here.

Another certification. Lot's of certifications these days. In Thyroff v. National Mutual Insurance Co., the Court certified the following question to the New York Court of Appeals:

Is a claim of conversion cognizable for electronic data?

The decision in that case can be found here.

It's Pigott! While it's not strictly Second Circuit news, Eugene F. Pigott, Jr. of the Supreme Court of the State of New York, Appellate Division, Fourth Department has been named to replace Judge George Bundy Smith on the New York State Court of Appeals. Justice Pigott had been a frontrunner for the last seat, but lost out to Robert S. Smith. (So at least there's one Smith still on the Court.) I assume confirmation hearings will be held soon.

Disparate Impact. A group of black and Latino teachers brought an action against the New York City Department of Education and the New York State Education Department, claiming that the defendants have discriminated against them by using two standardized certification tests, which they claim had a disparate impact on the employment prospects of blacks and Latinos. Although, after trial, the District Court found that the tests did have a disparate impact, the defendant avoided liability because the tests were "job-related."

The Second Circuit vacated the District Court's decision and remanded for further proceedings. The Court also dismsised the action as to the New York State Education Department. The Court informed the District Court that it must use the law set out in its opinion to decide if the tests involved had been properly validated (an issue upon which the case hinged).

The decision in Gulino v. New York State Education Department can be found here.

Not reinstated. A lawyer, who had been disbarred by the bar of the State of New York, was disbarred from the District Court of the Eastern District of New York by default order of reciprocal disbarment in 1997. In 2005, he thought reinstatement to the Eastern District bar, which was denied without prejudice for him to renew the application if and when he is reinstated into the New York bar. The lawyer appealed, holding that the requirement that he be reinstated was arbitrary. The Second Circuit reversed, holding that a district court may reasonably require an attorney seeking reinstatement to meet the requirements for original admission to that bar and that the Eastern District's failure to reinstate him was not arbitrary. The decision in In re Kandekore can be found here.

Speaking of certifications. In that one of today's posts concerns two recent cases where the Second Circuit certified questions to the New York Court of appeals, I thought it might be of interest that one litigant (not in the Second Circuit) has asked the Supreme Court to grant cert on the question of whether there should be a presumption in favor of cerification.

Chapter 13 Plan and Res Judicata. The Second Circuit has held that a Chapter 13 bankruptcy confirmation order is res judicata with respect to the debtor's and the Trustee's post-confirmation attempt to avoid a confirmed, recorded lien on the debtor's property where the lien was claimed by the debtor at the outset of the bankruptcy proceedings and included in the plan. The decision in Celli v. First National Bank of Northern New York (In re Celli) can be found here.

Not extraterritorial. In Ofori-Tenkorang v. American International Group, Inc., the Second Circuit held that 42 U.S.C. 1981 does not prohibit discriminatory conduct occurring while a plaintiff is outside the jurisdiction of the United States. The decision in that case can be found here.

More certfied questions. In two decisions issued on August 15, 2006, the Second Circuit certified questions to the New York Court of Appeals.

In White Plains Coat & Apron Co. v. Cintas Corp., the Court certified the following question:

Does a generalized economic interest in soliciting business for profit constitute a defense to a claim of tortious interference with an existing contract for an alleged tortfeasor with no previous economic relatinship with the breaching party?

The decision in that case can be found here.

In Highland Capital Management LP v. Schneider, the Court certified the following question:

Based on this record, do the eignt promissary notes issued by McNaughton Apparel Group, Inc., to the Schneiders fall within the definition of a "security" as contemplated by Section 8-102(15) of the New York Uniform Commercial Code?

The decision in that case can be found here.

Random. In MacWabe v. Kelly, the Second Circuit held that random, suspiciousless searches at the NYC subway are constitutional. The decision can be found here.

On vacation. Sorry for the lack of posts in recent days. I'm off to the ABA Annual Meeting in Hawaii and was frantically catching up on work beforehand. We all can't be Howard Bashman. I'll try to post in the next few days, if I can, but I will be back in New York on August 10 at which time regular posts will resume.