Outlaws. The Second Circuit affirmed the order of the district court granting summary judgment to the Connecticut Department of Corrections, dismissing the action brought against it by correctional officers who had been disciplined for being members of the Outlaws Motorcycle Club.

The decision in Piscottano v. Murphy can be found here.

No immunity. In Gilles v. Repicky, the Second Circuit reversed an order granting summary judgment based on qualified immunity grounds. The Court held that a police officer could not hold an individual after he no longer had reasonable grounds to believe that she had engaged in criminal activity, even if at the time of the stop, he had such grounds.

The decision can be found here.

More certified questions. The Second Circuit is putting the New York State Court of Appeals back to work by certifying some more questions. The questions submitted to the New York Court in Reddington v. Staten Island University Hospital are:

Does the institution of a time-barred claim pursuant to New York Labor Law 740 simultaneously with a claim pursuant to New York Labor Law 741 trigger section 740(7)'s waiver provision and thereby bar the section741 claim, even if the section 740 claim is subsequently withdrawn?

Does the definition of employee in New York Labor Law 741 encompass an individual who does not render medical treatment, and under what circumstances?

The decision can be found here.

Unsworn recantation. The Second Circuit in Haouari v. United States denied without prejudice a criminal convict's motion to file a second motion under 28 U.S.C. 2255 because the new evidence was not in the proper form. The evidence was an unsworn letter from the petitioner's co-conspirator, recanting his prior testimony. The Court held that the evidence would have to be provided in the form of a sworn affidavit.

The decision can be found here.

Unsubstantiated. The Second Circuit remanded a case to the district court for resentencing because it was unclear to what extent the district court had impermissibly based its sentencing enhancement on unsubstantiated charged conduct.

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

Terror. The government's search and detention of certain American citizens of the Islamic faith upon their return to the US from Canada where they were attending an Islamic convention that the government believed that terrorists would be attending was held not to violate the Administrative Procedure Act, the Religious Freedom Restoration Act or the First and the Fourth Amendments to the Constitution.

The decision in Tabaa v. Chertoff can be found here.

Punitive. The Second Circuit has affirmed an award of $1 billion in punitive damages.

The damage award was based on the district court's finding that the appellants "engaged in a coordingated campaign of lies and misrepresentation in order to swindle Motorola of more than $2 billion" and that, "threatened with exposure, [appellants] resorted not only to further lies and corporate manipulations, but even to obstruction of justice and, ultimately, misrepresentations to this court."

I think it was the misrepresentation to the court that really did it.

The decision in Motorola Credit Corp. v. Uzan can be found here.

Answered certified question. In a case involving an alleged molestation of a child by a pastor, the Second Circuit had certified a question to the Vermont Supreme Court. The question was whether under Vermont Law a church is subject to vicarious liability for tortious acts of its pastor under the Restatement (Second) of Agency sec. 219(2)(d) if the pastor was allegedly aided in accomplishing the tort by the existence of the agency relation with the church. The Vermont Supreme Court answered the question in the negative and the Second Circuit affirmed the District Court's grant of summary judgment.

The decision in Doe v. Newbury Bible Church can be found here.

Full Court Press. Interesting article in the New York Law Journal entitled "Addition of Livingston Gives Circuit a Full Bench." Check it out.

Dancing. Well, the Town of Henrietta has found out that you have to be careful when you attempt to close down a teen dance club. You should follow your own rules for taking away a special use permit and you should definitely not make statements that can be seen as racially discriminatory. The Second Circuit granted a partial summary judgment to the plaintiffs in this case, reinstating their substantive due process claims, while upholding the dismissal of the equal protection and conspiracy claims.

Cine SK8, Inc. v. Town of Henrietta was remanded to the district court so that the immunity defenses, which were not addressed by the Distict Court could be dealt with. The decision can be found here. (Thanks to Wait A Second!)

Withdrawn. The opinion in Salamon v. Our Lady of Victory Hospital, which had been posted on October 29, 2007, has been withdrawn without explanation. An amended decision will be posted. If you must know what this case is about (and, of course, if you read this blog, you probably must), go to Wait A Second! for a description of the case. Sorry, but that's the best I can do.

Thomas J. Meskill. Senior Circuit Judge Thomas J. Meskill has died at the age of 79. Before becoming a Circuit Judge, Judge Meskill was a congressman and the governor of Connecticut.

Certified question. The Second Circuit has certified some more questions to the New York State Court of Appeals. The questions are:

Whether an '"Executive" is an "employee" under Labor Law, Article 6, section 193 and entitled to the protections of that statute?

In the absence of a governing written agreement, when are commissions "earned" and therefore considered "wages" under sections 191 and 193 thereby rendering most subsequent deductions unlawful?

The decision in Pacter v. Bernard Hodes Group, Inc. can be found here.

Oops. The Second Circuit held that a student seeking relief under Title III of the Americans with Disabilities Act or under Title V based on a violation of Title III does not have to exhaust administrative remedies. The District Court got it wrong.

The decision in Mc Inerney v. Renssalear Polytechnic Institute can be found here

Retroactive transfer. The Second Circuit has held that a copyright action brought by a holder of a copyright cannot be defeated by a retroactive transfer by a co-owner of the copyright.

The decision in Davis v. Blige can be found here.

World Trade Center. Well, litigation relating to 9/11 goes on. In In re World Trade Center Disaster Site Litigation, the plaintiffs sought to vacate a stay of proceedings pending a decision on an interlocutory appeal relating the purported immunity from suit alleged by the defendants. The motion to vacate the stay was made after argument on the appeal. Without finally deciding the issues on appeal, the Court vacated the stay, holding that it was less likely that the defendants would prevail on appeal and that the public interest favors permitting pretrial proceedings to resume.

The decision can be found here.

Exhaustion. The Second Circuit held that a student had to exhaust his administrative remedies before going to Federal Court even though he was scheduled to graduate before his remedies could be exhausted. The plaintiff in Coleman v. Newburgh Enlarged City School District had the award of attorneys' fees revered because the District Court should have dismissed the action for failure to exhaust.

The Court left open the question as to whether the exhaustion requirement is jurisdictional (and non-waiveable) or merely mandatory (but waiveable). In this case, the School District has not waived the defense.

The decision can be found here.

Reasons. The Second Circuit has vacated a sentence in United States v. Hirliman because the judge for the second time had failed to provide his reasons for deviating from the Guidelines. The Second Circuit had previously remanded the case for resentencing, and ordered the judge to provide reasons for deviation, but he did not do so. The case is being reassigned to a new judge for resentencing.

The decision can be found here.

Guns. The Second Circuit heard arguments in City of New York v. Beretta USA Corp., a case involving whether New York City should be able to go to trial in its efforts to force gun manufacturers and distributors to put a lid on the illegal sale of firearms.

The New York Law Journal's coverage of this oral argument can be found here.

Crawford. The Second Circuit upheld a grant of a petition for habeas corpus, holding that Gregg Becker's Sixth Amendment right of confrontation had been violated by the admission of 11 guilty plea allocutions at his trial. The Supreme Court in Crawford v. Washington had held that out of court testimonial statements cannt be admitted against a defendant unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine him.

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

Solomon Amendment. The Second Circuit has held that the Solomon Amendment, which withholds certain federal funding to universities of which any part does not allow military recruiters, does not violate the First Amendment rights of the faculty of a university.

The decision in Burt v. Gates can be found here.

Fraternal. A fraternity tried to prevent the College of Staten Island from inforcing its policy of not recognizing student groups that discriminate on the basis of sex. The district court had granted a preliminary injunction, but the Second Circuit held that the balance of interests favored the College and reversed.

The decision in Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University of New York can be found here.

Oral argument. Looks like the Second Circuit is putting some limits on oral argument, at least temporarily. Time will tell if this interim rule becomes permanent.

Appeal Dismissed. The Second Circuit dismissed an appeal where the appellant filed the appeal within 30 days of a corrected judgment, but not within 30 days of the original judgment. Because the corrected judgment did not alter the substantive rights of the parties affected by the first judgment, the time of appeal runs from the time of the first judgment. In this case, a law clerk had purportedly told the appellants' attorneys that an appeal would lie from the second judgment, which the appellate argued required the "exceptional circumstances" doctrine to apply. The Court, however, noted that the "exceptional circumstances" doctrine had been abrogated by the Suprme Court and that parties should not be seeking legal advice from judges or judicial staff.

The decision in In re American Safety Indemnity Co. (American Safety Indemnity Co. v. Official Committee of Unsecured Creditors) can be found here.

Exclusionary Rule. The Second Circuit has held that the exlusionary rule doe not apply to 18 U.S.C. 3109, a statute that empowers federal officers to break into a house to execute a search warrant after being refused admission.

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

Another New Blog. I have to add my usual caveat. This is not a new blog. It is a blog that I have just discovered, and which I think my readers might like. Take a look at Wayne Schiess's legal-writing blog. And thanks to Law Dawg Blawg for tipping me off to its existence. Law Dawg Blawg is another fine blog you should check out if you haven't already done so. It's been on my blog roll for ages.

No expert. Derrick Bell's attorney failed to retain a medical expert regarding the reliability of the complaining witness's identification -- the only evidence tying him to the crime. The Second Circuit held that such a failure constituted constitutionally deficient representation, warranting the grant of a writ of habeas corpus.

The decision in Bell v. Miller can be found here.

So Close. The Second Circuit had granted Rodriguez's petition for habeas corpus on the ground that his Sixth Amendment rights had been violated by the state court having excluded his family from his criminal trial. Then, the Supreme Court had to get in the act and vacate and remand the case with instructions to reconsider it in light of the Supreme Court's decision in Carey v. Musladin. So what's the Second Circuit to do? It has now affirmed the district court's decision denying the petition.

The decision in Rodriguez v. Miller can be found here.

Resigning arbitrator. The Second Circuit held that the resignation of an arbitrator did not prevent the remaining arbitrators from acting. To have held otherwise would allow one party to keep any action or any futher action from happening. This is so even when the arbitration agreement set out who the arbitrators would be.

The case in Zeiler v. Deitsch involved a "zabla" arbitration panel where each party picks on arbitrator and those arbitrators pick a third arbitrator who will serve as presiding arbitrator of the panel. The Court held that, in the event of a resignation, the party whose arbitrator resigns would have the power to appoint a replacement. In this case, Zeiler never attempted to do so, so the Court held that the remaining arbitrators could act.

The decision in this case can be found here.

No Notice. The Second Circuit has held that a district court need not give a criminal defendant advance notice before imposing a sentence in excess of the recommendations set out in the Sentencing Guidelines.

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

Rare bird. The Second Circuit has affirmed the conviction of Thomas Cullen, an internationally known professional falconer for violation of the the Wild Bird Conservation Act of 1992 Cullen was convicted of illegally importing some Black Sparrowhawks, a very rare bird indeed. Cullen tried to escape imprisonment by asserting a number of technical defenses, but to no avail.

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

New blog. There's a new blog in town, covering the Second Circuit's civil rights decisions. It's called Wait a Second!, and you should check it out. Of course, I will continue to cover civil rights decisions coming from the Second Circuit, where appropriate.

Law Review. This is a bit off-topic, but my adopted law student blogger, Butterflyfish, has made Law Review at her unnamed law school. Congratulations to her. If you have not been reading her blog up to now, you should definitely check it out.

Rebutting the Prima Facie Showing. The Second Circuit has held that an employer sued for failing to promote an employee in retaliation for his exercise of his First Amendment rights may not be awarded summary judgment because a jury could have ruled in his favor on the issue of whether he rebutted the plaintiff's prima facie showing of a retaliatory action, but can only be awarded summary judgment if he rebuts the prima facie showing by making a showing that no reasonable jury, drawing all references in the plaintiff's favor, could have ruled for the plaintiff. It reversed the decision of the District Court, granting summary judgment to the defendant on that issue.

The decision in Dillon v. Morano can be found here.

Human Shield. Judith Karpova went to Iraq to act as a human shield and protect the civilian infrastructure. In doing so, she violated several executive orders and regulations of the Treasury Department and was fined $6.700. Ms. Karpova brought an action, claiming that the government had violated her First and Fifth Amendment rights. The District Court granted summary judgment to the government, dismissing the claims. Karpova appealed.

The Second Circuit affirmed, holding that the government had provided Ms. Karpova all the constitutional protections to which she was entitled and that the penalty imposed her was proper under the pertinent orders and regulations.

The decision in Karpova v. Snow can be found here.

Unearned Fees. The Second Circuit has held that the Real Estate Settlement Procedures Act of 1974 is violoated by the collection of an unearned, unidvidued post-closing fee.

The decision in Cohen v. JPMorgan Chase & Co. can be found here.

Exhausted. The Second Circuit remanded a habeas corpus case to the District Court to consider whether threats made against the convict plaintiff by prison employees made the administrative grievance procedures unavailable to him or whether they estop the Bureau of Prisons from asserting the defense of failure to exhaust administrative remedies.

The decision in Marcias v. Zenk can be found here.

Certified Question. The Second Circuit has certified a question to the New York State Court of Appeals in Rivkin v. Century 21 Teran Realty. The certified question is:

Did any of the real estate brokers breach a fiduciary duty to the plaintiff, a potential buyer, by failing to disclose, in any form, the brokers' representation of a competing buyer for the property that the plaintiff sought to buy.

The decision can be found here.

Still Removable. The Second Circuit has held that an immigrant who has been convicted of a crime of moral turpitude, which renders him removable under immigration law, may not evade removal from the United States by having the criminal court in which he was convicted amend the judgment to provide that he was convicted of a crime that would not render him removable.

The decision in Saleh v. Gonzalez can be found here.

Interesting article. Appellate advocates might want to check out the article "A View From the Cheap Seats: The Ten Top Tips for Appellate Lawyers From Law Clerks." It's from the Appellate Advocate, a publication of the Texas State Bar Appellate Section, but it's relevant to those located in the Second Circuit as well.

No Jurisdiction. The Second Circuit has held that it did not have appellate jurisdiction to hear an appeal from an order remanding a case to state court after the District Court had joined a party whose presence destroyed subject-matter jurisdiction. The Court also held that the collateral order doctrine did not allow the Court to review the District Court's joinder order.

The decision in Price v. J&H Marsh & McLennon, Inc. can be found here.

New Rule. A new rule on Disposition by Summary Orders has been enacted by the Second Circuit. The text of the rule can be found here.

Probate Exception. The Second Circuit has reinterpreted the probate exception, which provided that federal courts should not, in general, decide cases dealing with probate issues. The Court has held that a federal court should decline subject-matter jurisdiction only if a plaintiff seeks (1) to acheive to administer an estate, probate a will, or do any other purely probate matter or (2) to reach a res in the custody of a state court in federal court

The decision in Lefkowitz v. Bank of New York can be found here.

It's Back! The Legal Research and Writing Blog, which has been inactive since March, is back in service with new posts. Praise the Lord!

Danger. The Second Circuit upheld the District Court's decision dismissing the action of a Transit worker who was fired for making remarks that indicated that he might be violent. The Court assumed that the remarks of the worker were of public interest, but, applying a balancing test, found that the Transit Authority's interest in keeping violent individuals off its work force outweighed the worker's First Amendment rights.

The decision in Blackman v. New York City Transit Authority can be found here.

Abuse of Discretion. The Second Circuit has held that the Board of Immigration exceeded its discretion in denying a motion to reopen a hearing where the motion was based solely on facts of which the Board had taken judicial notice. The petitioner had wanted to rebut the inferences that the Board had made based on the noticed facts.

The Court's decision in Chhetry v. U.S. Department of Justice can be found here.

Remanded. The Second Circuit had certified the question of whether New York law extended the tort of conversion to electronic data. The New York State Court of Appeals accepted the question and answered that conversion under New York law did extend to electronic data. In light of this decision, the Second Circuit, in Thyroff v. Nationwide Mutual Insurance Co., has vacated the District Court's dismissal of the plaintiff's conversion claim and remanded the case to that court for further proceedings.

Bootlegging. The Second Circuit held that Congress had the power to promulgate the statute banning bootlegging of unauthorized recordings of performances. The Court held that such legislation was valid under Congress's power arising from the Commerce Clause.

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

"Lawfully admitted." The Second Circuit has held that a lawfully admitted permanent resident, who obtained that status by fraud or mistake has not been "lawfully admitted for permanent residence" for purposes of section 212 of the Immigration and Nationality Act, which allows for a waiver of inadmissiblity.

The decision in De la Rosa v. United States Department of Homeland Security can be found here.

Benefits. The Second Circuit has decided a case raising the issue of whether the entire amount of a state law settlement covering both disability and death benefits may be credited against an award of death benefits under the Longshore and Habor Workers' Compensation Act. The Court held that it may not and that only the portion of the settlement funds directed toward state law death benefit cliams may be credited. The case was remanded to the Benefits Review Board for fact-finding regarding the allocation of the petitioner's prior state settlement between death benefits and disability benefits, noting that the burden of proof would be on the party asserting the credit.

The decision in Barscz v. Director, Office of Werkers' Compensation Programs can be found here.

Two Step Confession. The Second Circuit has ruled that a inculpatory statement made after the criminal defendant was Mirandized was admissible even thought the authorities had obtained a earlier inculpatory defendant from the defendant before he had been Mirandized. The Court held that a deliberate two-step strategy had not been used by the government; such a strategy would have warranted suppression under Supreme Court precedent.

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

Default. The Second Circuit vacated a default judgment on a counterclaim where (1) it found the showing that the plaintiff had failed to produce documents was willful and (2) the court had not considered lesser sanctions before granting the default judgment.

The decision in Shcherbakovskiy v. Da Capo Al Fine, Ltd. can be found here.

Certified question. The Second Circuit has certified a question to the New York State Court of Appeals relating to long-arm jurisdiction under New York law. The certified question was:

Does CPLR 302(a)(1) confer jurisdiction over the defendant, a Saudi businessman who was named as a supporter of terrorism in a New York author's book.

The decision in Ehrenfeld v. Mahfouz can be found here.

Warrantless Search. The Second Circuit has held that a search where the police lured two individuals away from their car so that they could conduct a warrantless search was constitutional. The court held that the search fell within the automobile exception.

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

It's nice to be noticed. The Adjunct Law Prof. Blog made mention of Second Opinions, which, of course, gives me a little visability. And so I'd like to return the favor. Go visit that blog right now. Oh, and by the way, the post in which this blog is mentioned is right on

Repugnant. The Second Circuit decided that it couldn't decide whether allowing a party to enforce two foreign judments was repugant to the public policy of New York, and remanded the case to the District Court.

The decision in Sarl Lewis Feraud International v. Viewfinder, Inc. can be found here.

Interesting Program. How Appealing referred its readers to this article on a program to help appellate attorneys hone their skills and prepare for oral argument. Somebody should do something like this in New York. (Maybe I will.) Thanks to Howard Bashman of How Appealing for cluing me in to this program.

In today's Law Journal. Extraordinary Measures Reduce Circuit's Immigration Case Backlog. And not a moment too soon. I was getting tired of reading those immigration cases.

Leave the Hearing Officer Alone. The Second Circuit has held that a district court should not overturn the decision of a hearing officer if the decision is reasoned and supported by the record. The decision in Gagliardo v. Arlington Central School District can be found here.

Talking with Counsel. The Second Circuit held that an order by the District Court, later rescinded, which prohibited a criminal defendant from speaking with his counsel after the first day of his cross-examination, did not violate the defendant's criminal rights under the circumstances of the case. In addition to rescinding the order, the Court had adjourned the case the next morning to allow the attorney to speak with his client. The attorney, however, took the position that the remedy was insufficient to cure the constitutional violation of not allowing him to speak with his client immediately after the day's testimony. The Second Circuit disagreed.

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

Update: Andrews will be seeking rehearing en banc, and, if that fails, review by the Supreme Court. Personally, I would not bet the farm on obtaining cert. or even a rehearing by the Second Circuit, but time will tell.

What's a picture worth? The plaintiff in Grace v. Corbis-Sygma, a photographer sued his agents and bailees for losing a large number of his pictures. After winning a six-figure amount after a bench trial, the plaintiff appealed, claiming that the award was not high enough. On appeal, the Second Circuit vacated the award and remanded the case to the District Court for a new assessment of damgages.

The decision can be found here.

Recusal. The Second Circuit overturned the conviction of two men conicted of a series of financial crimes based on the refusal of the district judge to recuse himself. The Court made clear that it was dealing only with the appearance of impartiality and noted that there was nothing suggesting that the district judge had acted improperly.

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

No protest. The Second Circuit denied a motion to stay an order, denying a request for a preliminary injunction, requiring West Point to allow a demonstration on its grounds during graduation, where Vice President Cheney is to speak.

The decision in Sussman v. Crawford can be found here.

Converting a Kidney. I previously blogged on Colavito v. New York Organ Donor Network here. The Second Circuit had certified a question as to whether the intended recipient of an organ donation could bring a private cause of action for common law conversion or under the New York Public Health Law if he does not receive the organ.

The Court of Appeals held that the intended recipient of a donated organ might have a common law right to it under New Yok law, no such right exists for the specivied donee of an incompatible kidney. Also, under the Public Health Law, a party would only have a cause of action if he could benefit from the kidney. The kidney at issue was not compatible with Colavito. The decision of the New York State Court of Appeals can be found here. The Second Circuit granted summary judgment to the defendant

The Second Circuit's decision can be found here.

Procedural Hurdle. A convicted burglar sought habeas relief, challenging identity evidence that was admitted against him at trial. The petition had been denied by the District Court on the merits, but the Second Circuit, in affirming the decision of the District Court, did not reach the merits, holding that review was barred by independent and adequate state law grounds. The criminal defendant had not raised the issue at trial, barring him from raising it on appeal or in a habeas proceeding.

Judge Straub dissented, arguing that the criminal defendant had adequately raised the issue at trial and that the trial court had rendered a decision on the issue. Having set aside the procedural bar, Judge Straub found that the New York Appellate Division had unreasonably applied clearly established Supreme Court law relating to the issue. He would have granted the relief sought.

The decision in Garvey v. Duncan can be found here.

Feldman's to the right of me, Feldmans to the left of me. This is a non-substantive post. I just thought it amusing that both the criminal defendant and the United States were represented by Steven Feldman. Not the same Steven Feldman, of course, but still . . .

It's a sentencing case, and I'll give you the link to United States v. Ubiera, so that you can find out more.

Federal Jurisdiction. An interesting question of federal jurisdiction arose in a recent Second Circuit case. A student's IEP (individualized education program) provided that the student was entitled to a 1:1 paraprofessional, but only at the public school. The student attended a parochial school, and the parents asked for a due process hearing, seeking to have the services of the paraprofessional be provided to him at his private school. The hearing officer ruled in favor of the parents. The school district appealed to the New York Education Department's State Review Officer, who agreed with the hearing officer, except held that there was no obligation to provide the paraprofessional under IDEA (the Individuals with Disabilities Education Act). He did, however, find such an obligation under the New York State Education Law. The school district filed an action in the federal court, challenging the determination of the State Review Officer. The District Court upheld the decision of State Review Officer.

On appeal, the Second Circuit held that because there was no right to the relief under federal law, the Court lacked jurisdiction. Even if IDEA incorporates certain state standards relevant to this case (an issue not decided), this does not provide an independent federal question that would sustain a federal court's jurisdiction. Nor does the provision of IDEA that allows an aggrieved party from an administrative decision in a special education action to bring an action in federal court, allow such a party to bring an action where there was no federal question. To hold that the court had jurisdiction in such a circumstance would allow jurisdiction insonsistent with Article III. The Court decided that the case should be brought in state court and dismissed the action.

The decision in Bay Shore Union Free School District v. Kain can be found here.

Answer to Certified Question. In Highland Capital Management L.P. v. Schneider, the Second Circuit had certified the question of whether certain promissory notes issued by McNaughton Apparel Group Inc. to the Schneiders fall within the definition of a "security" as contemplated by UCC 8-102(15) to the New York Court of Appeals. The New York Court of Appeals held the promissory notes were securities under the UCC. In light of this ruling, the Court remanded the case to the District Court, which had held that the notes were not securities, for reconsideration of certain claims. In addition, the Court reversed the dismissal of one claim on which the District Court had held that the Statute of Frauds limited the damages, rendering the claim below the jurisdictional requirement of the Court. In light of the fact that the notes were securities, the Statute of Frauds limitation did not apply and the count was reinstated.

The decision in this case can be found here.

Lodestar. In determining attorneys' fee awards under the Voting Rights Act, while "the court should generally use the prevailing hourly rate in the district where it sits to calculate what has been called the 'lodestone' -- what we think is more aptly termed the 'presumptively reasonable fee' -- the district court may adjust this base hourly rate to account for a plaintiff's reasonable decision to retain out-of-district counsel, just as it may adjust the base hourly rate to account for other case-specific variables." The district court, in deciding a lodestar rate, should decide what a reasonable paying client would be willing to pay. In making that finding, the Court should consider the complexity and difficulty of the case, the available expertise and capacity of the client's other counsel (if any), the resources required to prosecute the case effectively (taking account of the resources being marshaled on the other side but not endorsing scorched earth tactics), the timeing demands of the case, whether the attorney had an interest (independent of that of his client) in acheiving the ends of the litigation or initiated the representative himself, whether the attorney was initially acting pro bono (such that a client might be aware that the attonrey expected low or non-existent remuneration), and other returns (such as reputation, etc.) the attorney expected from the representation.

The decision in Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany can be found here.

Fifty Dollars Based on certain contractual limitations of liability, the district court held that the most that the plaintiff could recover against the two defendants was $50 against each. The Court suggested that each defendant tender $50 to the plaintiff, without conceding liability. When they did, the Court entered judgment in favor of the plaintiff in the amount of $5 from each defendant, and dismissed the action as moot and for lack of subject matter jurisdiction.

While the Second Circuit, on appeal, held that the District Court had been correct in determining the extent of liability, it held that the District Court was wrong in dismissing the action as moot and for lack of subject matter jurisdiction. Had the defendants paid the plaintiff the entire amount of its claim, then the case would be moot, but in that it only paid the amount that the District Court held was owed, the case was not moot. At any rate, since the judgment entered was final, the plaintiff could appeal.

The decision in ABN Amro Verzekeringen BV v. Geologistics Americas, Inc. can be found here.

Direct Appeal. In general, when a party wants to appeal from a decision of a bankruptcy court, the appeal is made to the district court in the first instance. One can, however, appeal directly to the Court of Appeals if you meet the criteria of 28 U.S.C. 158(d)(2)(A). That provision allows a direct appeal if the bankruptcy court certifies that either "(i) the judgment, order, or decree involves a question of law as to which there is no controlling decision . . . or involves a matter of public importance; (ii) the judgment, order, or decree involves a question of law requiring resolution of conflicting decisions; or (ii) an immediate appeal from the judgment, order, or decree may materially advance the progress of the case." In such cases, the Court of Appeals has discretion to hear the appeal.

In Webber v. United States Trustee, a creditor sought to take a direct appeal to the Second Circuit to address the issue of whether the increase in the homestead exemption should be applied retroactively. The Second Circuit declined to hear the appeal, stating that there was not a conflict in the decisions and there was no reason to believe that resolution of the issue would result in a more rapid resolution of the case.

The decision can be found here.

Not shocked. The Second Circuit has held that workers who performed search, rescue and cleanup services at the World Trade Center after the terrorist attacks cannot sue government officials who issued reassuring and knowingly false statements about the air quality in lower Manhattan. In affirming the dismissal of the action, the Second Circuit held that the defendants actions did not shock its conscience even if the defendants acted with deliberate indiference. "When agency officials decide how to reconcile competing governmental obligations in the face of a disaster, only an intent to cause harm arbitrarily can shock the conscience in a way that justifies constitutional liability." Too bad for the poor workers, I guess. (For the record, the panel was Chief Judge Jacobs and Judges Sack and Raggi.

The decision in Lombardi v. Whitman can be found here.

Inherent authority. The Second Circuit has held that it has the inherent authority to admit to bail movants, who are seeking bail pending the court's consideration of their petition for review of a BIA order.

The decision in Elkimya v. Department of Homeland Security can be found here. Unfortunately for Elkimya, although the court held it had the inherent authority, it chose not to exercise its authority in his favor.

Another certified question. The Second Circuit has certified another question to the New York State Court of Appeals:

Is an open space restriction imposed by a subdivision plat under New York Town Law 276 enforceable against a subsequent purchaser, and under what circumstances?

The Second Circuit has stated that it has many times greatly benefitted from the guidance of the New York State Court of Appeals. Sure it's dictum, but it's nice to know.

The decision in O'Mara v. Town of Wappinger can be found here.

Trolls. There's a big fight between a Danish company and an American company over who has the rights to manufacture those cute/ugly little troll dolls. So far the Danes are winning.

A Dane by the name of Thomas Dam created the dolls and obtained a copyright in Denmark. He also got a copyright in America, which was invalidated because certain dolls of this type had been sold in America prior to Dam's copyright, and the design fell into the public domain.

After Dam died, his heirs granted the exclusive right to make the dools to Trolls Co., a Danish company.

Congress enacted 104A of the Copyright Act, which put America into compliance with the Berne Convention, having the effect, among other things, of restoring Dam's copyright. Trolls Co. applied for and was granted a registration certificate in 2000.

Uneeda Doll Co. had been manufacturing trolls under a license from Dam's company since the 1960s. Uneeda had told Trolls Co. that it had no intention of manufacturing trolls. However, Trolls Co. found out that Uneeda was about to do so just at the time that Trolls Co. was about to relaunch the dolls. Trolls Co. told Uneeda that its dolls were infringing Trolls Co.'s copyright.

Trolls Co. sued and obtained an injunction. The Second Circuit has affirmed. The decision in Trolls Co. v. Uneeda Doll Co. can be found here.

Great news. I just got back to the office after Passover and find the terrific news that Catherine O'Hagan Wolfe, formerly clerk of court for the New York Appellate Division, First Department, has been named the new clerk of court for the Second Circuit. As anyone who practices appellate law in New York knows, Ms. Wolfe is a great choice. My only question is what is going to happen to the First Department?

First issue on the plate -- on-line filing. It's coming.

Covered Security. The Securities Litigation Uniform Standards Act precludes the maintenance -- in state or federal court -- of class actions alleging state law violations but premised on deception "in connection with the purchase or sale of a covered security." A covered security is a security listed on one of the national securities exchanges or issued by investment companies registered by the SEC. The question that came before the Second Circuit is whether a document that was not a covered security became a covered security because it was attached to a document that was a covered security. The district court held that it became a covered security. On appeal, the Second Circuit held that it did not and vacated the District Court's order with orders to remand the case to the New York County Supreme Court.

The decision in Ring v. AXA Investment, Inc. can be found here.

DNA and the Fourth. The Second Circuit has held that requiring felons convicted of nonviolent crimes and sentenced to probation to supply a sample of their DNA for analysis and storage in a federal database does not violate the Fourth Amendment.

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

Another answer. The New York Court of Appeals has answered another question certified to it by the Second Circuit. The question was whether statements made by an employer on an NASD employee termination notice are subject to an absolute or qualifed privilege in a defamation action. The Court determined that such statements are subject to an absolute privilege.

The Court of Appeals' decision in Rosenberg v. Metlife, Inc. can be found here.

National Origin. The Second Circuit held that a District Court's consideration of a criminal defendant's national origin in sentencing renders the sentence invalid.

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

Fees. How can I not report on a case about attorneys' fees. Binder & Binder were paid attorneys' fees when it prevailed on behalf of an individual who had been owed benefits by the Social Security Administration. The client objected to the payments by the Social Security Administration (and why would she do that, I wonder) because she claimed her debt to the firm had been discharged in bankruptcy. The SSA demanded that the fees be returned. Binder & Binder commenced a declaratory judgment action, seeking a judgment stating that they were entitled to the fees.

The SSA moved for summary judgment and prevailed. Binder & Binder appealed. The Second Circuit remanded the case to the District Court for a determination of whether the Court had subject matter jurisdiction. The District Court found that it lacked jurisdiction because Binder & Binder's claim did not arise from the Social Security Act. The Second Circuit held that there was jurisdiction, that the SSA lacked the authority to demand back the payment made to Binder & Binder and vacated the judgment of the District Court and remanded.

The decision in Binder & Binder v. Barnhart can be found here.

Ordinary income. The Second Circuit, in Prebola v. CIR, has held that a lump-sum payment received in exchange for the right to receive future annual lottery payments is ordinary income and not a capital gain.

The decision can be found here.

Answer to a Certified Question. The New York State Court of Appeals has answered the Second Circuit's certified question and extended the tort of conversion to electronic records.

The decision in Thyroff v. Nationwide Mutual Ins. Co. can be found here.

And thanks to Nicole Black of Sui Generis for pointing this out to me.

Not a Lawyer. The sole member of a limited liablity company attempted to represent the company by moving to reinstate an appeal. The Second Circuit denied the motion without prejudice to the motion being brought by an attorney.

The decision in Lattanzio v. COMTA can be found here.

Fugitive Disentitlement Doctrine. The Second Circuit, in Gao v. Gonzalez, has held that the fugitive disentitlement doctrine warrants dismissing an illegal alien's appeal of an order of deportation when he has failed to surrender to the immigration authorities.

The decision can be found here.

Unpublished decisions. Here's a handy chart that shows how the various circuit courts deal with unpublished opinions. (Thanks to the Legal Writing Prof Blog for pointing it out.)

Walker cleared. Senior Circuit Judge John M. Walker Jr. has been cleared of criminal wrongdoing in an accident that killed a New Haven plice officer on a rainy night last October.

Cool opening. In McKithen v. Brown, Judge Calabresi opens his decision as follows:

"Eighty-four years ago, Judge Learned Hand observed that '[o]ur procedure has been always haunted by the ghost of the innocent man convicted,' but posited, optimistically, that '[i]t is an unreal dream.' United States v. Garrison, 291 F. 646, 649 (S.D.N.Y. 1923). Today, with the advance of forensic DNA technology, our desire to join Learned Hand's optimism has given way to the reality of wrongful convictions -- a reality which challenges us to reaffirm our commitment to the principle that the innocent should be freed."

The case involves an attempt by a prisoner to a post-conviction constitutional right to access to DNA testing, which, he asserts, might exonerate him. The District Court dismissed the action, citing the Rooker-Feldman doctrine, but the Second Circuit reversed.

The decision can be found here.

Settlement plan and priority schemes. The Second Circuit has held that the issue of whether a pre-plan settlement in a Chapter 11 bankruptcy meets the requirements of the Bankruptcy Code's priority scheme is the essential factor that a court must consider in deciding whether the settlement can be approved.

The Court's decision in In re Iridium Operating, LLC can be found here.

Batson claim. The Second Circuit rejected a Batson challenge of a criminal defendant because there the record did not disclose sufficent evidence support his claim that the prosecutors were using their peremptory challenges to keep minorities off the jury. Since the criminal defendant bore the burden of proof, the Court rejected his appeal of an order denying his habeas petition. Judge Pooler dissented from the ruling.

The decision in Sorto v. Herbert can be found here.

Final Judgment. The Second Circuit has held that a bankruptcy court's allowance of an uncontested proof of claim constitutes a final judgment on the merits giving rise to res judicata.

The decision in EDP Medical Computer Systems, Inc. v. United States can be found here.

National origin. The Second Circuit reversed a sentence on the ground that it had been impermissibly based on the defendant's national origin.

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

Change in Law. The Second Circuit addressed the novel question of whether a court-ordered stipulation between private and governmental parties that is equivalent to a consent decree that recites provisions of state statutes in force at the time that the stipulation was executed bind the government to continue to enforce those statutes even though there have been changes in the law. The case at issue, Doe v. Pataki, involved sex offenders seeking to be excluded from certain new provisions of law relating to sex offenders. A split panel of the Second Circuit held that the stipulation did not prevent enforcement of the new statutory provisions.

The decision can be found here.

Taxes. You can't get out of paying taxes based on a genuinely held religious objection to military spending. The Second Circuit said so in Jenkins v. CIR, which can be found here.

Breyer. Justice Breyer will be appearing on the NPR news quiz show "Wait, Wait, Don't Tell Me." The episode with his appearance will air over the weekend of March 24. I love this show and can't wait to hear it. But if they really want a great guest, they should call Judge Alex Kozinski. That would be a riot.

Reporting Pregnancies. A local school policy In Port Washington requires staff members to report student pregnancies to school administration and the student’s parents. The Teachers’ Union and a school social worker sued to prevent enforcement of the policy. The District Court dismissed the case, and the Second Circuit affirmed, holdng that the plaintiffs lacked standing to bring the action.

The Court held that the plaintiffs had suffered no injury in fact. The Court did not believe that the social workers, who would report the pregnancy, would risk serious civil liability or place their licneses in jeopardy. There was no showing that they would have to disclose confidential communications to parents, the principal or the superintendent or that the students will bring suit against the plaintiffs for any such disclosure. The possibility that there might be civil liability was not sufficient enough to provide the requisite injury in fact.

While the plaintiffs also asserted that they would be subject to discipline if they failed to follow the policy, the facts were otherwise. The policy is not mandatory, and the evidence at the injunction hearing indicated that they would not be subject to disciplinary action if the policy were not followed.

The decision in Port Washington Teachers Ass'n v. Board of Education can be found here. And kudos to Decision of the Day for beating me to the punch on blogging on this case.

Deportation as Punishment. The Second Circuit has held that the likelihood of deportation after incarceration may not be considered as a factor for lessening a criminal sentence. The decision in United States v. Wills can be found here.

Fifteen minutes. The Second Circuit has held that a petitioner's arrival at a removal proceeding fifteen minutes late did not consitute a failure to appear within the meaning of 8 U.S.C. 1229a(b)(5). It vacated an in absentia order of removal.

The decision in Abu Hasirah v. Department of Homeland Security can be found here.

Arbitration by Equitable Estoppel. In a class action antitrust case against certain credit card companies that had allegedly conspired to fix prices of foreign currencies, the Court had ordered the case to arbitration because of arbitration provisions in the customer agreements. The Court also held that the parties must arbitrate the case against companies with which the plaintiffs did not have an agreement under the doctrine of equitable estoppel.

Certain parties filed an action against American Express, advancing the same claims raised in the other case. Amex sought to dismiss the case and compel arbitration, but the district court denied the motion. Amex appealed and the plaintffs sought to dismiss the appeal, asserting that the Second Circuit lacked jurisdiction because the provision of the Federal Arbitration Act which allows interlocutory appeals of denials of motions to compel arbitration only apply when the arbitration is required by a written agreement, not when the requirement is based on the doctrine of equitable estoppel.

The Second Circuit denied the motion, holding that all of the plaintiffs had signed customer agreements with arbitration clauses (although not with Amex) and arbitration had been provided in the other case because the claims being asserted against the parties with whom there was no arbitration agreement were subject to arbitration because the claim against them were inextricably intertwined with the claims advanced against the defendant with whom the plaintiffs did agree to arbitrate. The Court noted that the arbitration clauses that the plaintiffs had signed controlled the scope of the arbitration and that the arbitration, therefore, was based on a written agreement. Accordingly, the Second Circuit held that it did have appellate jurisdiction.

The decision in Roth v. American Express Company can be found here.

Ferries in East Hampton. East Hampton has a law that requires all ferry operators to obtain a special permit before using a ferry terminal within the Town and which restricts the types of ferries that may use local terminals. A ferry service challenged the law, claiming that it was unconstitutional in that it violated the Dormant Commerce Clause and the Equal Protection Clause, as well as the New York State Equal Protection Clause. It further asserted that the law constitutes an improper and abusive exercise of the Town's police power under the laws and Constitution of New York. The ferry service sought to enjoin enforcement of the law.

The Town moved for summary judgment, and the ferry service cross-moved for summary judgment on all claims except for the police power claim. The District Court granted the Town's motion and denied the ferry service's cross-motion.

The Second Circuit vacated the District Court's judment insofar as it determined that the law did not violate the dormant Commerce Clause and otherwise affirmed the judgment. The case was remanded to the District Court for further proceedings.

The Court found that there was a question of material fact as to whether the law imposes a disparate impact on interstate travelers. It further held that a reasonable factfinder could conclude that the law does not actually produce any of its intended benefits so as to justify the potential burden on interstate commerce. Because the ferry issue did not focus on this issue before the District Court, the Second Circuit did not decide the issue, but remanded the case to the District Court so that it could have the first crack at the issue.

The decision in Town of Southold v. Town of East Hampton can be found here.

Heidi Bond. My student blog adoptee Heidi Bond, who went on to clerk for Judge Alex Kozinski of the Ninth Circuit, continues to make me proud. She has been chosen to clerk for retired Justice Sandra Day O'Connor. Congratulations, Heidi.

Advice from the Chief. When the Chief Justice speaks, we lowly appellate practitioners should listen. Click here.

Interesting blog. This is a more general, but practical blog that should be of help to legal writers (like appellate practitioners). Check out Grammar Girl. I just found it referred to on a legal writing blog, and I think it's great.

Pension "discrimation." I'm blogging on a Third Circuit case, which deals with an issue that even the Third Circuit acknowledges will be addressed by the Second Circuit soon. The case, Register v. PNC Financial Services, deals with a claim that PNC's cash balance plan, a form of defined benefit claim, violates the anti-discriminatory provision of ERISA. The plaintiffs assert that the plan is discriminatory because benefits accrue at a slower rate as the worker gets older. The Third Circuit notes that this is because benefits accrued at an earlier age have a longer time to accrue interest between the time that they are earned and retirement than those accrued later. For example, if a worker worked for PNC between ages 25 and 45, the output of his benefit plan would be greater than that of a worker who worked between ages 45 and 65, with retirement age at 65.

Lots of companies now have cash balance plan for their employees' retirements, so this is an issue of great importance. If such plans are found to violate the anti-discrimination provision of ERISA, all such plans would be invalid.

The Seventh Circuit has previously rejected a claim similar to that of the plaintiffs, and their is a split among the district courts, with the majority of the district courts from the Second Circuit taking a view opposite to that of the Seventh Circuit. (One Southern District of New York case, however, is in accord with the Seventh Circuit.)

The Third Circuit agreed with the Seventh Circuit in what I consider to be a well-reasoned opinion. You can read the decision here. In footnote 10 of the opinion, the Courts states: "It seems to us to be inevitable that the Court of Appeals for the Second Circuit ultimately will decide the discrimination issue for that circuit." And indeed, the district court cases decided in the Second Circuit were all decided in 2006. So when the Second Circuit does come down with a decision in one of them, I will let you know.

Comments. This blog template does not make it clear (Thanks, Blogger), but you can post comments on this blog. And since I don't get any comments, I assume the reason is that you did not know that (apart from natural apathy). If you want to post a comment, click on the # at the bottom of the post and then all will be made clear. Hope to hear from you (anyone?).

No brief? This is not a Second Circuit case, but I think it should be of interest to appellate practitioners. Legacy Bank, a party in Lee v. Legacy Bank, decided that it was not worth the money to submit a responsive brief on appeal. It told the Court that the transcript in the case was sufficient to warrant affirmance of the decision appealed from by its adversary.

The Court disagreed. Read the decision of the Wisconsin Court of Appeals, which can be found here. And thanks to the Legal Writing Prof Blog for cluing me in to this case.

No More Graffiti. The New York Administrative Code, as of 2005, prohibits the sale of aerosol spray paint containers and broad tipped indelible markers to persons under 21 years of age. This provision was enacted to curtail the problem of graffiti vandalism. Some young artists brought an action to enjoin the enforcement of the statue, claiming that it violates their First Amendment rights to freedom of expression and violates the Fourteenth Amendment's equal protection provision.

The District Court granted the motion for a preliminary injunction to the extent that the City could not enforce the ban against individuals over the age of 18. The City appealed, claiming that the Court erred in finding that the plaintiffs were likely to succeed on the merits and that the plaintiffs would be irreparably harmed. On appeal, the Second Circuit affirmed.

While the Court was skeptical of any equal protection violation, it found that the District Court had not abused its discretion in issuing the injunction on First Amendment grounds.

The decision can be found here.

First Amendment violation. The Village of Cold Spring has a Historic District and the Village has a section of the Village Code that requires prior Village approval for physical alterations to buildings in that District. The Village sought to enforce this provision against a resident of the District, who had placed certain signs on his property, which the Village deemed to violate the Code. The resident sought an injunction, enjoining enforcement of that provision (and other provisions). The District Court held that the section was content-neutral and left open to the resident ample alternative channels of communication and therefore did not violate the First or the Fourteenth Amendments.

On appeal, the Second Circuit reversed, finding the section to be an unlawful prior restraint, which acted to freeze the speech of the residents of the Historical District who wish to use signs to convey messages, at least for the time it takes them to obtain a Certificate of Appropriateness.

The decision in Lusk v. Village of Cold Spring can be found here.

Triggered by notice. The District Court had dismissed a bankruptcy appeal, holding that the fifteen-day time limit for filing the brief began to run upon the docketing of the appeal. The Second Circuit held that the time limit began to run when the appeal is docketed and notice that the appeal has been docketed is sent to the parties.

The decision in Glatzer v. Enron Corp. (In re Enron Corp.) can be found here.

Dead Blog. The blog of my fellow Cardozo alum, Chris Rush Cohen, appears to be dead. He has not posted since last September. He's off my blogroll. If things change, I will let you know.

Reasonable? In United States v. Trupin, the Second Circuit considers the bounds of reasonableness after United States v. Booker. In Trupin, a tax evasion case, the District Court (Judge McKenna) imposed a seven-month sentence, an 80% reduction from the botton of the applicable Sentencing Guidelines range. Trupin had engaged in a multi-year, multi-million dollar tax evasion scheme. The issue before the Second Circuit was whether this was reasonable.

The Court found that the sentence was not reasonable. It held that the District Court had failed to properly weigh all of the sentencing factors enumerated in 18 U.S.C. 3553(a) and that the record id not adequately support those factors on which the district court did rely. The case was remanded to the District Court for resentencing.

The decision can be found here.

Who is Nicholas Defonte? On March 16, 2006, I did this post on United States v. Defonte. Like most bloggers, I check the sitemeter on my blog to see how the traffic comes to my blog. Over the past year, a number of people have come to Second Opinions by searching for Nicholas Defonte. Lately, it has been a deluge of such searches? Does anyone know why? If so, please e-mail me.

Military Takeover of New York. Very interesting case from the Second Circuit -- Zieper v. Metzinger. The plaintiff had put a website up containing a short film of a military takeover that was to take place on New Year's Eve 1999. Of course, the film was pictional, but it did not say so on the website. Government officials became aware of the website and were concerned that it could incite a riot.

Government agents (FBI and the U.S. Attorney's Office) attempted to get Zieper to take down the website, but he refused to do so. The FBI and the assistant U.S. attorney spoke with the individual who had put the website up for Mr. Zieper and either persuaded or coerced (depending on whose side you are on) her to remove the site. Zieper sued the Attorney General (Reno), the U.S. Attorney (White), the director of the FBI (Freeh), the FBI agent and the assistant U.S. attorney. That latter two were also sued in their individual capacities.

The defendants moved for summary judgment after discovery. The District Court granted the motion, finding that no reasonable jury could find that the FBI agent's contact with Zieper ammounted to threats or coercion in violation of the First Amendment, but that there was a triable issue of fact on the issue of coercion as to the conversation with Zieper's webmaster. Nevertheless, the Court held that the claims were barred by the doctrine of qualitifede immunity because reasonable officers could have disagreed about the legality of the defendants' officers.

Zieper appealed, and the Second Circuit affirmed. While disagreeing that a reasonable jury could not have found that the FBI agent's conversations with Zieper and his attorneys gave rise to a First Amendment violation, it held that the claims were barred by the doctrine of qualified immunity.

At the time of the defendants' actions, it was well-established that they could exhort private entities to remove speech so long as they did not engage in any threat, coercion or intimidation when doing so. The Second Circuit acknowledged that the defendants walked a difficut line in seeking to exort Zieper to remove the video. The Court held, however, that the Court' s prior precedents did not make clear on what side of the line their actions fell. Accordingly, they were entitled to qualified immunity. The Court note that in finding that their actions could give rise to a First Amendment violation, future government agents would be on notice that such actions might expose them to liability and that they would no longer be entitled to qualified immunity for such actions.

The decision can be found here.

Oh, and thanks to Decision of the Day for alerting me to this case. Rob Loblaw, the pseudonomous author of that blog, is my new hero (right up there with Howard Bashman of How Appealing and David Lat of Above the Law.

Another certified question. The Second Circuit has certified another question to the New York State Court of Appeals. The question is:

Does CPLR 205(a) allow a corporation to refile an action within six months when a previously, timely-filed action has mistakenly been commenced in the name of a different, related corporate entity and has been dismissed for naming the wrong plaintiff.

The decision in Reliance Insurance Co. v. Polyvision Corp. can be found here.

New blog. Another blog I'm loving is Decision of the Day. Check it out.

Oops. A major New York law firm (to remain nameless) filed a notice of cross-appeal one day beyond the applicable time limit set by Rule 4(a)(3) of the Federal Rules of Appellate Procedure. The firm also appealed (timely) from an order denying its mothon to extend the time within which to file a notice of cross-appeal on the ground of excusable neglect.

The Second Circuit held that whether or not the time limit for a cross-appeal is jurisdictional or not, the Court was required to enforce the time limit when it is properly invoked by an adverse party. It also held that the District Court had properly acted within its discretion in denying the motion for an extension of time.

The decision in The Asbestos Personal Injury Plaintiffs v. Travelers Indemnity Co. (In re Johns Manville Corp.) can be found here. Thanks to Decision of the Day for alerting me to the case (Rob Loblaw is fast!)

Certified question answered. In Morris v. Schroder Capital Management International, the plaintiff has sued his former employemtn for breach of contract for failure to pay him certain deferred compensation benefits. The District Court dismissed teh complaint for failure to state a claim, holding the Morris had forfeited his rights to certain benefits under various deferred compensation plan, including a covenant not to compete. It further held that because Morris had failed to state a claim of constructive discharge, the covenant not to compete was valid pursuant to New York's employee choice doctrine, which permits enforcement of restrictive covenants whithout regard to the covenant's reasonableness. Morris appealed.

The Second Circuit certified to the New York State Court of Appeals the question of whether the constructive discharge is the approrpriate legal standard to apply when determining whether an employee voluntarily or involuntarily left his employment for purposes of the employee choice doctrine. The New York State Court of Appeals answered the question in the affirmative.

According, the Second Circuit affirmed the decision of the District Court. The decision can be found here.

Death threats. Criminal defendant asserted that his defense counsel had changed his defense strategy after receiving a death threat from John Gotti. Not good enough for habeas corpus, said the District Court. And the Second Circuit agrees.

See the decision in LoCascio v. United States here.

New blog. It's not really new, but I am now placing Above the Law on my blogroll. It is run by David Lat, author of Underneath Their Robes, the hilarious blog on the federal judiciary, which seems to be dead. I am taking UTR off the blogroll, but I'm sure you will enjoy ATL just as much.

Renominated. President Bush has renominated Columbia Law School vice dean Debra Ann Livingston for a seat on the Second Circuit.

No Jurisdiction over Late Notice. If the United States government intends to execute a criminal defendant, it must provide notice of that intent " a reasonable time before the trial or before acceptance by the court if a a plea of guilty." 18 U.S.C. 3593(a). In United States v. Robinson, the issue arose as to whether a determination of whether section 3593(a) has been violated is immediately appealable.

The Second Circuit held that the final judgment rule prevented it from hearing an appeal of such an order. This was so even though the result could potentially that the defendants could go through a lengthy death penalty trial and then have the death penalty demand stricken.

The decision can be found here.

Mazel Tov. Congratulations to Senior Circuit Judge Jon Newman on his marriage to author Ann Leventhal.

Revised Lawyer Ad Rules. The proposed lawyer ad rules, which arguably would have had a severe impact on New York bloggers, have been modified and they now appear to have no such effect. As a New York attorney, blogging in New York, I was a bit worried about this.