Late. Bad news for the defendant in Napoli v. City of Windsor. A motion for summary judgment on qualified immunity was denied on January 12, 2009. On May 14, 2009, an order was issued clarifying the January 12, 2009. On June 9, 2009, the defendant filed a notice of appeal. Too late! Because the May 14, 2009 order did not relate to qualified immunity issue, it did not restart the time to appeal. The Second Circuit dismissed the appeal for lack of appellate jurisdiction.

The decision in the case can be found here.

New nomination. President Obama as nominated Assistant U.S. Attorney Raymond Lohier, Jr. for a seat on the Second Circuit. Mr. Lohier is chief of the Securities and Commodities Fraud Task Force of the U.S. Attorney's Office of the Southern District of New York.

For more information on this nomination, click here.

Certified questions. On an appeal from a preliminary injunction, enjoining the sale of untaxed cigarettes by a American Indian merchant to anyone other than members of the tribe, the Second Circuit certified two questions to the New York State Court of Appeals:

1. Does New York Tax Law 471-e, either by itself or in combination with the provisions of section 471, impose a tax on cigarettes sold on Native American reservations when some or all of these cigarettes may be sold to persons other than members of the reservation's nation or tribe?

2. If the answer to Question 1 is "no," does New York Tax Law 471 alone impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to person other than members of the reservation's nation or tribe?

The decision in City of New York v. Golden Feather Smoke Shop, Inc. can be found here.