Aggravated Felony. The Second Circuit held that a state law drug conviction for a small quanity of marijuana was not an aggravated felony, warranting deportation. To make such a determination, the court looked to whether the offense was equivalent to felony drug traficking under the federal Controlled Substance Act ("CSA"). The CSA has an exception for the distribution of small amounts of mariuana without remuneration, treating it as a misdemeanor. The Court held that the petitioner in this case had not committed an aggravated felony because the crime fell within the CSA exception.

The decision in Martinez v. Mukasey can be found here.

No New Hearing. In a habeas proceeding, the district rejected the credibility determinations of the magistrate judge without holding a separate evidentiary hearing. Not a good idea. The Second Circuit vacated the ruling (granting the habeas relief) and remanded it to the district court for further proceedings.

The decision in Carrion v. Smith can be found here.

Discovery in an Arbitration. The Second Circuit held that section 7 of the Federal Arbitration Act does not authorize an arbitrator to compel pre-hearing document discovery from non-parties to the arbitration.

The decision in Life Receivables Trust v. Syndicate 102 at Lloyd's of London can be found here.

Caught in the legal recession? Well, I try not to go off topic, but when the ABA asks for help, who am I to withhold it?

The ABA Journal is surveying lawyers about the job market and the current state of the economy. Here is the link: http://www.surveymonkey.com/s.aspx?sm=9Dhw2g7bX_2bxfq4mW8eB1Cg_3d_3d

Survey results will be published in the January ABA Journal. Answers will be kept confidential and used only in combination with all other responses received.

Well you've been informed.

Diversity. The Second Circuit has held that CPLR 901(b), which prohibits a lawsuit seeking a statutory penalty from being brought as a class action, can be applied in a federal court sitting in diversity.

The decision in Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co. can be found here.

Swastica tatoos. The Second Circuit held that it was a violation of the Confrontation Clause for a District Court to prevent a minority-group defendant from cross-examining a government witness about his swastica tatoos.

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

Purchase Money Obligation. The Second Circuit has asked the New York Court of Appeals to construe the term "purchase money obligation" as it is used in UCC 9-103(a)(2). The Court needs the answer to this certified question so that it can determine what status in bankruptcy should be accorded to the "negative equity" that someone who trades in an old car rolls over into a new car-financing contract.

The decision in In re Faith Ann Peaslee can be found here.

Erasing a Sanction. The Second Circuit has held that parties cannot condition the settlement of an action on the District Court's vacatur of an award of sanctions against a party's attorneys. The decision in ATSI Communications, Inc. v. Shaar Fund, Ltd. can be found here

Executives. In answer to a certified question, the New York State Court of Appeals has held that an executive is an employee under the New York Labor Law, article 5, except where expressly excluded. The Court of Appeals further held that section 193 of the Labor Law did not prevent the parties from entering into a contract where a commission was not "earned" until after certain deductions were made from her percentage of gross billings.

The answers provided by the Court of Appeals worked to the detriment of an executive who, upon leaving her company, sued it for making certain purportedly unlawful dcductions.

The decision in Pachter v. Bernard Hodes Group can be found here.

KPMG Employees Off the Hook. The Second Circuit has upheld the dismissal of the indictments of eleven partners and employees of accounting firm KPMG, LLP because the government had caused KPMG to put conditions on the advancement of legal fees to the defendants. This violated the defendants’ Sixth Amendment right to counsel.

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

Tolling the staute. The Second Circuit held that a application, pursuant to 18 U.S.C. 3292, to suspend the running of a statute of limitations pending a request for foreign evidence must be made before the statute of limitations expires.

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

Certified question. In an action brought under the Individuals with Disabilities Education Act, a father brought an action seeking relief on behalf of him and his disabled son. Because he was the non-custodial parent, the distirict court held that he did not have standing to bring the action. The Second Circuit held that standing turned on an unsettled issue of New York state law and certified the question for decision by the New York State Court of Appeals. The certified question is:

Whether, under New York law, the biological and non-custodial parent of a child retains the right to participate in decision pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the right to control such decisions?

The Second Circuit noted that two departments of the Appellate Division, New York's intermediate appellate court, have held that non-custodial parent does not retain such a right, but it "was reluctant to take that final step [considering the Appellate Division decisions as determinative] in the absence of a Court of Appeals pronouncement because the ruling has broad implications affecting the custodial relationships in New York -- a matter of paramount concern."

The decision in Fuentes v. New York City Department of Education can be found here.

Absentee Ballot. The Second Circuit reversed the District Court's decision dismissing a complaint claiming that the New York State Board of Elections violated the plaintiffs' Fifth Amendment rights by failing to provide for absentee ballots in elections for polical party county committees, while providing them for all other kinds of elections. The Court remanded the case to the District Court with instructions to enter judment in favor of the plaintiffs.

The decision in Price v. New York State Board of Elections can be found here.

Steinbeck. The Second Circuit has reversed a ruling that awarded John Steinbeck's son and granddaughter publishing rights to 10 of the author's early works, including 'The Grapes of Wrath.

The decision in Penguin Group (USA) Inc. v. Steinbeck can be found here.

DISCLOSURE: My firm represents Nancy Steinbeck in this action, although she was not a party to the appeal.

9/11. The Second Circuit has ruled that Saudi Arabia and four of its princes cannot be held liable in the Sept. 11 attacks. The Court held that the Saudi defendants are protected by sovereign immunity. It also agreed with a lower court that a Saudi banker and a charitable organization cannot be held liable.

The decision in In re Terrorist Attacks of September 11, 2001 can be found here.

Modest success. The Second Circuit has held that the district court was proper in reducing a request for attorneys' fees in a case brought under the Fair Labor Standanrds Act from $340,375 to $49,889 in light of the limited successs acheived by the attorney.

The decision in Barfield v. New York City Health and Hospitals Corp. can be found here.

Another certified question. The Second Circuit has asked the Court of Appeals for its view on another question. The certified question is:

Does New York General Obligations Law 15-301(1) abrogate, in the case of a contract where the second of two irreconcilable provisions requres that any modifications to the agreement be made in writing, the common law rule where two contractual provisions are irreconcilable, the one appearing first in the contract is to be given effect rather than the one appearing subsequent?

The decision in Israel v. Chabra can be found here.

Waiving Doctor-Patient Privilege. The Second Circuit granted a writ of mandamus and reversed an order that required a prisoner's psychiatric records to be disclosed in a case where the prisoner brought a 1983 action alleging that correctional officers used excessive force on him. The prisoner was not seeking damages for mental or unusual emotional injury.

The decision in In re Sims can be found here.

Evidence after summations. The Second Circuit, in United States v. Crawford, held that the district court had abused its discretion in reopening the record after summations to allow the posecution to put in additional evidence.

The decision in this case can be found here.

Cash-based defined benefit plans. The Second Circuits, joining the other circuits that have considered the issue, has held that cash-based defined benefit plans do not inherently result in age-based reduction in the rate of benefit accrual and do not violate ERISA. The Court noted that there had been some confusion among the district courts of the Second Circuit as to law on this issue.

The decision in Hirt v. The Equitable Retirement Plan for Employees, Managers and Agents can be found here.

Attempted Deceit -- Certified Questions. The Second Circuit, in Amalfitano v. Rosenberg has certified the following questions to the New York State Court of Appeals:

Can a successful lawsuit for treble damages brought under N.Y. Judiciary Law 487 be based on an attempted but unsuccessful deceit upon a court by the defendant?

In the course of such a lawsuit, may the costs of defending litigation instituted by a complaint containing a material misrepresentation of fact be treated as the proximate result of the misrepresentation if the court upon which the deceit was attempted at no time acted on the belief that the misrepresentation was true?

The decision can be found here.

Prerequisite. The Second Circuit has held that it is not a prerequisite to liability under the Americans with Disabilities Act to request an accommodation when the employer is aware of its employee's disability or the disability is apparent. The decision in Brady v. Walmart Stores, Inc. can be found here.

Can there by corporate scienter without scienter of a corporate agent? The Second Circuit says yes, at least at the pleading stage. The Court, in Teansters Local 445 Freight Division Pension Fund v. Dynex Capital Inc. found that the requisite strong inference of scienter of the corporate defendant had not been made, and vacated the District Court's order denying the motion to dismiss and remanding the case to the District Court.

The decision in that case can be found here.

We have discretion? Evidently not all district judges are aware that they have discretion to depart from the sentencing guidelines range. Because of this, a crack coclaine defendant will get a chance for a lower sentence. It was unclear whether his judge was one of those clueless judges.

The deciison in United States v. Jones can be found here.

Fraudulent conveyance. The Second Circuit has held that a federal securities receiver may not employ New York Debtor and Creditor Law section 276 to set aside a fraudulent conveyance where he represents only the transferor.

In addition, the Court held that a third party who claims a right to certain property held by the receiver is entitled to a jury trial under the Seventh Amendment.

The decision in Eberhard v. Marcu can be found here.

Recusing for Mukasey. The Justice Department does not have to recuse itself from representing the Untied States in an appeal from former-District Judge Michael Mukasey. The Court noted that if Mukasey is not participating in the appeal that is sufficient.

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

Those creative lawyers!

Chutzpah. In United States v. Habbas, we have two gentlemen who conspire to frame a man for a crime that could put him behind bars for life. They were caught and entered into plea agreements. One of these "gentlemen" argued that the government had breached the plea agreement by arguimg for a higher sentence than the non-binding estimate it made in the plea agreement. The agreement specifically stated that it was non-binding and stated that the government might seek a higher sentence (which it did). The Second Circuit affirmed the sentence, noting, among other things. that the defendant had suffered no prejudice from the dovernment's action, stating that "[t]he [district] court understandably found that the heinous cynicism and cruelty of defendant's crime called for a sentence of nothing less than eight years, whihc was far in excess of the range resulting from the four-level addition." The Court would have done what it did regardless of the government's position. The crime was seen as so despicable that it warranted the severe sentence.

The decision in this case can be found here.

Student's First Amendment rights. The Second Circuit upheld a denial of an injunction to void the election of a Seniro Class Secretary and ordering the school to have a new election in which the plaintiff's daughter would be allowed to participate. The daughter had been disqualifed from the election because she posted a vulfar and misleading message about the supposed cancellation of an upcoming school event on an independently-operated, publicly accessible blog. The District Court held that the plaintiff was unlikely to prevail on the merits. The Second Circuit affirmed, stating that the student's blog post created a foreseeable risk of substantial disruption at the the school. The Court held that the, under the circumstances of the case, warratned the disciplinary action imposed and the fact that the student's statement on the blog did not take place on school grounds was irrelevant because the statement was likely to create a disruption. All this about a school concert.

Much ado about nothing.

The decision in Doninger v. Niehoff can be found here.

Civil First. The Second Circuit has held that a tax evader is not entitled to argue his tax position in a civil proceeding before being prosecuted for tax evasion. Not really a shocking holding. Many white collar crimes have a civil claim that can also be brought by the government. To allow a defendant an opportunity to try his or her case civilly first would allow the defendant to get to see the government's evidence and witnesses while the stakes are lower.

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

Remand. The Second Circuit has held that it has the authority to remand an issue of nationality to the Board of Immigration Appeals if the issue had been presented but not decided by the Board. The Government had taken the position that 8 U.S.C. 1252(b)(5), which provides that the Court of Appeals is to decide issues relating to nationality without saying anything about remand, precludes the Court from sending a nationality case back to the BIA. The Court disagreed.

The decision in Poole v. Mukasey can be found here.

Solicitor General. Paul Clement has resigned as Solicitor General of the United States. It is likely that principal deputy Solicitor General Gregory Garre will close out the Bush administration as acting Solicitor General.

No Jurisdiction. The Second Circuit, based on its prior precedent, found that it did not have jurisdiction to review a claim that an immigration judge erred in its application of law in determining whether an alien's removal would result in "exceptional and extremely unusual hardship." The Court stated that it agreed with the petitioner's legal position, but lacked jurisdction under its prior precedents.

The decision in Mendez v. Mukasey can be found here.

Payment. A lawyer failed to take the required actions to proceed with an appeal from a decision of the Board of Immigration Appeals because his client had not paid the agreed upon fee. When the fee was paid, a year after the appeal had been dismissed, the attorney sought to reinstate the appeal and recall the mandate.

Judge Newman, while appalled that an attorney would think that he had no ethical obligation to proceed with an appeal after accepting some money and entering into a retainer agreement, granted the motion, stating that "it seems unfair to penalize the client because of his lawyer's conduct." A copy of the file was transmitted to the Grievance Committee of the Circuit for such action as it sees appropriate.

The decision in Bennett v. Mukasey can be found here.

Right of Action. Under the Vienna Convention on Consular Relations, an alien is entitled to be informed of his right to contact his consulate in the event of arrest. The plaintiff in Mora v. People of New York was not so informed and sued under the Alien Tort Statute. The case was dismissed because the court believed that the Convention did not convey an individual right that could be enforced in domestic courts. On appeal, the plaintiff asserted that the right could be enforced not only under the Alien Tort Act, but also under section 1983 and through an implied right of action arising from the Convention itself.

The Second Circuit held that no such right of action existed. The decision can be found here.

Kelo redux. In an attempt to stop proposed development of downtown Brooklyn through, in part, the use of eminent domain, the plaintiffs in Goldstein v Pataki claimed that the use of that power, which they claimed, was not for a public purpose and hence violated the Public Use clause of the Fifth Amendment.

The District Court dismissed the action, and the Second Circuit, based on the Supreme Court's decision in Kelo v. City of New London, affirmed.

The decision can be found here.

Light cigarettes. The Second Circuit has reversed an order granting certification of a class consisting of individuals who were deceived into believing that "light" cigarettes were healthier than ordinary cigarettes. The Court found that individual issues outweighed issues susceptible to common proof.

The decision in McLaughlin v. American Tobacco Co. can be found here.

Inter-racial marriage. The Second Circuit has held that a white person married to a black person may sue under Title VII if his employer takes action against him because of his inter-racial marriage. The decision in Holcomb v. Iona College can be found here.

Congratulations. As regular readers of this blog (if there is such a thing) know, I have the practice of "adopting" a law school blogger. My current adoptee is "Butterflyfish," who blogs on life and law school. She has just been made an editor on the law review of her unnamed law school. Because she wants to be anonymous, I am not at liberty to even reveal the precise position, but, suffice it to say, it is a responsible one. Congratulations.

Absolute immunity. The Second Circuit has held that testifying witness in police disciplinary hearings have absolute immunity.

The decision in Rolon v. Henneman can be found here.

What is a person? Chemical companies were held to persons under 28 U.S.C. 1442(a)(1), allowing them to remove a case to federal action. The chemical companies were found to have acted under a federal officer performing acts under color of federal office with respect to Agent Orange.

The Second Circuit reversed the decision of the District Court finding no federal jurisdiction. The decision in Isaacson v. Dow Chemical Co. can be found here.

Certified question. The Second Circuit has certified an interesting question to the New York State Court of Appeals. (Well, they're all interesting to me, but that 's because I'm a Second Circuit geek.) The question is whether, when an injured person brings an action against an insured by serving the party throught the Secretary of State, this service suffices to trigger the insured's obligation to notify his insured under the terms of the policy. This issue has led to divergent opinions in the district courts.

The decision in Briggs Avenue LLC v. Insurance Corporation of Hanover can be found here.

Terror Publicity. The owner of an ice cream parlor in Park Slope, Brooklyn, who had been convicted of illegally funneling money from the business to Yemen in violation of U.S. law. There had been some publicity about his terror connections, and he was convicted. On appeal, he raised the issue of the pretrial publicity. A divided Second Circuit held that he had waived the defense because, although he had raised the issue, he had not asked that the jurors be polled to see if they had seen the publicity. Without such a poll, there was no evidence that the jury had been affected by the publicity. Judge Sack dissented, in part because of the publicity issue, which he thought violated the Due Process Clause of the Constitution.

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

Suspension. The Second Circuit, in Ruis-Martinez v. Mukasey, has held that the REAL ID Act does not violate the Suspension Clause of the Constitution. The respondents had argued that relief under the Act, with its 30-day limitations period, was not an adquate substitute for relief under a writ of habeas corpus.

The decision can be found here.

Objection. The Second Circuit has held that the objection of the Department of Homeland Security to a petition to reopen a removal proceeding, having nothing to do with the merits, is an insufficient basis to deny the petition.

The decision in Melnitsenko v. Mukasey can be found here.

Doctor an Employee. While the Court asserted that the issue is fact specific, it held that issues of fact from which a jury could infer that a staff physician was an employee, and not just an independent contractor, and subject to statutes prohibiting sexual harassment. The decision in Salomon v. Our Lady of Victory Hospital can be found here.

Conference. Calling all appellate attorneys. I've just been advised that the DRI Appellate Advocacy Seminar will be held on February 28-29, 2008 in Orlando Florida. The program includes:

An assessment of the Roberts Court by Supreme Court practitioner Patricia Ann Millett and law professor David Stras.

A panel discussion giving the "view from the other side of the bench" by appellate judges Theodore McKee (3d Cir.), Diane Sykes (7th Cir.) and Chief Justice Jean Hoefer Toal (S.C. Sup. Ct.)

"The Beautiful Brief -- Persuasion Through Appearances" by Professor Ruth Anne Robbins, author of Painting with Print

A panel discussion by three in-house lawyers about the contributions that appellate lawyers give to the trial team

"Judicial Use of Legal Reasoning -- Theory Versus Practice" by Professor Emily L. Sherwin

"The Impact of the Internet in Briefs and Judicial Opinions" by Professor Coleen M. Barger

"How to Bring a Cold Paper Record to Life" by Dahlia Lithwick, giving a journalist's perspective on how to convert a box of paper into a compelling story

"The Unwritten Rules of Appellate Procedure" by appellate attorney Luther Mumford

A presentation on arbitration appeals by Aaron S. Bayer

A presentation on ethical issues in appellate advocacy by Douglas R. Richmond of Aon Corp.

For more info, check out the DRI (it stands for Defendse Research Institute) website.

Overtime. The Second Circuit held that a nurse placement service had violated the Fair Labor Standards Act by failing to pay its employees time and a half for working overtime without authorization, however, held that the Secretary of Labor could not find the company in contempt of a consent order, requiring the company to pay its workers overtime rates for work in excess of 40 hours. The Court held that the consent decree was ambiguous in that it did not unambiguously proscribe the challenged conduct. Judge Jacobs, concurring with the decision, found, however, that the company did not even violated the FLSA because the work was prohibited by the company, unless advanced authorization was received.

The decision in Chao v. Gothan Registry, Inc. can be found here.

Straying. A sentence which strayed from the terms of a plea agreement warranted setting a hearing before the District Court on the issue of sentencing. The summary order issued in United States v. Leonardo can be found here. The defendant in this case was a disgraced ex-lawyer, Anthony Leonardo Jr., who had been convicted for conspiracies to commit murder, traffic cocaine and launder money. Mr. Leonardo had been a prominent defense attorney. An article on this case can be found here.

Not following Procedures. When procedures designed to safeguard an immigrant's right to counsel were not followed by the government, the Second Circuit reversed the order of removal imposed by the Immigration Judge and affirmed by the Board of Immigration Appeals.

The decision in Picca v. Mukasey can be found here.

Immigration Custody. The Second Circuit has held that a person in immigration custody is not "in custody" within the meaning of 28 U.S.C. 2254.

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