Discriminatory. OK, this is not about the Second Circuit, but I couldn't let the recent memorandum opinion of the District Court of the District of Columbia go by without comment. In American Council of the Blind v. Paulson, the Court held that U.S. paper money is illegal and that the government must come up with a new permutaition of our bills to make them distinguishable to blind and visually-impaired people. It's true. The decision can be found here

I don't usually get comments on this blog (though the comment feature is active), but I figure someone has to have something to say about this. Will the government comply or will it appeal the decision? And is the decision right?

Princeton lawsuit. This is not about the Second Circuit, but since I got a nice e-mail about a blog about the lawsuit against Princeton for the misuse of a huge donation, I thought I'd link to it, so you could check it out.

When is filing? The Class Action Fairness of 2005 provides that a court of appeal must "complete all action on such appeal [from a district court's grant or denial of a motion to remand], including rendering judgment, not later than 60 days after the date on which such appeal was filed, unless an extension is granted under [28 U.S.C. 1453]." If judgment is not rendered within that period, then the appeal is deemed denied. In DiTolla v. Doral Dental IPA of New York, LLC, the defendant filed a petition for permission to appeal on May 119, 2006, but the petition itself was not granted unitl 66 days later on July 24, 2006. Defendant's brief was filed on August 17, 2006 and on September 21, 2006, the parties stipulated to a 60-day extension. But if the appeal was filed at the time of the appeal, then the 60-day period ended long before the stipulation was executed and the case should have been deemed denied.

The Court raised this issue sua sponte. It decided that the 60-day period begins on the day that the Court grants the petition to appeal is filed. This decision is consistent with the holdings of the Seventh Ninth and Eleventh Circuits on the same issue.

On the issue raised by the plaintiff on appeal, the Court ruled that the party seeking to remove a case to federal court has the burden of showing that the case meets the jurisdictional amount. This case, in which an accounting was sought, the defendant was unable to make that showing. The Court affirmed the decision of the District Court remanding the case to the state court.

The decision can be found here.

Collateral Estoppel. In a state court action, a default judgment was entered against two individuals, the Ottimos, and the companies they controlled. At the close of the inquest, the state court found that the individuals had committed fraud. Five years after the entry of judgment, the Ottimos filed for bankruptcy. The plaintiff in the state court action brought an adversary proceeding, contending that his judgment against the Ottimos was non-dischargeable because it was based on fraud. He moved for summary judgment, claiming that the issue could not be relitigated because of collateral estoppel.

The Bankrupty Court denied the motion, holding that collateral estoppel could not be applied in instances where the prior judgment was obtained by default. The plaintiff appealed to the District Court.

The District Court reversed, holding that the issue of fraud need not have been actually litigated. The Ottimos nned only to have been afforded the opportunity to litigate the issue. They had been afforded the opportunity. The Ottimos appealed.

The Second Circuit noted that under a bankruptcy court is bound by a liability determination in a default judgment unless an exception (judgmetn procured by collusion or fraud, lack of jurisdiction) exists. No such exception was applicable in this case.

The Court then determined that the issue in the two cases, i.e., the fraud, was identical, and that fraud had been proven to a higher burden in the state court than would be required to show nondischareability in a bankruptcy court. It held that collateral estoppel was applicable and affirmed the decision of the District Court.

The decision in Evan v. Ottimo can be found here.

It's back. Earlier in the year, I blogged on the case United States v. Parker here. Well, the case is back to the Second Circuit. The case had been remanded for a possible resentencing. The District Court, in light of the prior litigation, appointed a new counsel to conduct the resentencing proceedings. Parker, through his prior counsel, Mahoney, moved for reconsideration of that order. Ultimately, the Court decided not to resentence Parker and denied his motion for reconsideration. Parker appealed.

The Second Circuit held that the District Court had not abused its discretion in substituting a new attorney to represent Mahoney. Also Mahoney was not a member of the Second Circuit's CJA Panel, while the new attorney was. And the new attorney had represented Parker on the remand. Accordingly, the Court affirmed the decision of the District Court, appointing the new counsel. The new counsel would continue to represent Parker on the appeal.

The decision can be found here.

Tooting my own horn. Just wanted to alert appellate practioners and others interested in what goes on in the appellate courts to a new project of mine. I have long been a member of the ABA and an active member of its Section of Litigation's Appellate Practice Committee. Well, to spice up the Committee's webiste, I have started a feature called "The Appellate Buzz" providing news about what's going on in appellate courts throughout the country. Obviously, I can't report on everything that goes on in every appellate court in the country, but I try to be diverse and interesting, and it is updated twice a week (not as good as a blog, but what can I do). Feel free to check in out.

Appealable? Here's an odd case raising an issue of appealablility.

An employee sued an insurer, who had refused to pay her disability benefits, and her employer.
The District Court dismissed the claims against the employer, holding that they were preempted by ERISA, and remanded the case against the insurer, holding that it had applied the wrong standard in categorizing the requirement of the employee's occupation. At the end of its order, the District court stated that the Clerk of the Court was directed to close the case.

The employee appealed the dismissal of her claims against her employer, and her employer moved to dismiss the appeal because the order was not final in lght of the remand.

The Second Circuit denied the motion, holding that there was no danger of piecemeal appeals in allowing the appeal to go forward.

The case is confusing in that the District Court did not make the requisite determination that there is no just reason for delay nor was there an express direction by the District Court for the entry of judgment (although there was a direction to close the case) as required by Rule 54(b) of the Federal Rules of Civil Procedure in order to make the order appealable. It appears that the Second Circuit, without saying so, made the requisite determination itself and deemed the direction to close the case as a direction to enter judgment. But is that valid? I am unaware of any Circuit Court that has evaded the requirements of Rule 54(b) in this manner (though I intend to look into the matter). If anyone else knows of any case law relating to this issue, please let me know.

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

Bankruptcy Trumps Divorce. The Second Circuit held when marital assets have been awarded to the wife in a state court matrimonial proceeding, those assets do become part of a husband's bankruptcy estate if a Chapter 7 petition is filed after the state court's decision had been rendered, but before the state court judgment is entered. The District Court had held that entry of the judgment was merely ministerial and that the assets could be taken by the wife, but the Second Circuit, in a per curiam decision, vacated and remanded the decision.

The decision in Musso v. Ostashko can be found here.

Election Law Provisions Upheld. The Second Circuit upheld certain provisions of the New York Election Law in Person v. New York State Board of Elections. Person had sought a preliminary injunction, seeking to enjoin the enforcement of certain provisions of the Election Law. The District Court denied the injunction, and Person appealed.

First, Person challenged a provision of the Election Law that limited payment of any compensation to individuals hired to circulate electoral petitions. The Second Circuit noted that the provision at issue has long been interpreted in New York "as not imposing an impermissible burden on vote gathering because if does 'not prohibit[] the procurement of signatures wither by volunteers or paid workers.'" Individuals can still be paid on a daily or weekly basis, but their payment cannot be contingent on the number of signatures they get.

Second, Person argued that a prohibition on per-signature payment violated Supreme Court precedent. The Second Circuit joined the Eighth and Ninth Circuit in holidng "that a state law prohibiting the payment of electoral petition signature gatherers on a per-signature basis does not per se violate the First or Fourteenth Amendments."

Finally, Person challenged the assignment of official status only to parties whose gubnatorial candidates had, in the last gubnatorial election, received 50,000 votes violates his First and Fourteenth Amendment rights because it conditions official status on a party's candidate for governor rather than some other candidate that the party might have preferred to nominate and support. The Second Circuit noted that there was no constitutional right to appear on a ballot and noted that courts have upheld an array of restrictions on ballot access. In consonance with the precedents, the Court held that the provision did not violate Person's rights.

Although the decision says nothing about it, it appears that Mr. Person was a candidate for the Green Party.

The decision can be found here.