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.