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.