Certified Question in Gun Case

The Second Circuit, in a decision by retired Justice Sandra Day O'Connor, has certified a question to the New York State Court of Appeals, in a case involving New York's gun licensing rules.  The case involved an individual who was denied a gun license because he was not domiciled in New York; he merely had a vacation home in the State.  The relevant statute was understood to require a domicile in New York.  The individual brought an action, asserting that to the extent that the gun licensing statute prevented him from having a license, it was unconstitutional.  The District Court granted summary judgment to the State, dismissing the action.  On appeal, the Second Circuit declined to rule and certified the following question to the New York State Court of Appeals:


Is an applicant who owns a part-time residence in New York but makes his permanent domicile elsewhere eligible for a New York handgun license in the city or county where his part-time residence is located?

The decision in Osterweil v. Bartlett can be found here.

Strict Compliance

The Second Circuit overturned a District Court decision that allowed a party to file a late notice of appeal.  The ECF staff had failed to update the party's attorney's e-mail address and, accordingly, the party did not receive notice of entry of a judgment against his client.  The District Court held that this was excusable neglect, warranting an opportunity to file a late notice.  The Second Circuit reversed.

The Court noted that it was the responsibility of the attorney to update the system in the ECF system and not the responsibility of the ECF stafff.  Hence, the failure to receive notice was solely the fault of the attorney, and the District Court has abused its discretion in extending the party's time to file a notice of appeal.

Judge Lynch dissented from the decision, stating the the Court should have deferred to the judgment of the District Court.

The decision in In re Worldcom, Inc. (Communications Network International, Ltd. v. MCI WorldCom Communications can be found here.

Malice.  The Second Circuit has certified a question to the New York State Court of Appeals.  In Georgitsi Realty, LLC v. Penn-Star Insurance Co., the Court had to address the question of whether an act performed on adjacent property that caused damage to the plaintiff's property can constitute "vandalism" under the plaintiff's property insurance company.  A subsidiary question of whether "malicious damage" may be found to result from an act not directed specifically at the insured property is critical to the resolution of the issue.  Because that question had not been decided by the New York State Court of Appeals and because the Second Circuit believed that that Court should have the opportunity to address taht issue, the Second Circuit has certified that question for decision to the New York State Court of Appeals.

The decision in the case can be found here.

Bad Mistake.  In Gusler v. City of Long Beach, the plaintiff brought an action, claiming retaliation for making statements about his employer, the Long Beach Fire Department. The action was brought against the City of Long Beach, the police department, the volunteer fire department and eleven individuals. The individuals moved to dismiss, in part, on the ground of qualified immunity. The Court denied the motion on that ground, but dismissed as to certain of the individuals on the ground that the plaintiff had failed to state a valid cause of action against them. After the motion (and the death of one of the defendants), only three of the individuals remained in the action. The remaining individuals filed a notice of appeal within the 30-day period, however, the notice of appeal stated that it was Nassau County, which was not a party to the action, that was appealing. After the 30-day period for filing a notice of appeal had passed, an amended notice of appeal, properly naming all of the individuals – both those who had been dismissed and those who had not -- as the appealing parties was filed. The Second Circuit dismissed the appeal for lack of jurisdiction. The notice of appeal did not meet the requirements of Rule 3(c)(1)(A), which requires a notice of appeal to specify who is taking the appeal. The Court found that the notice of appeal did not meet the requirement of the rule.

Interestingly, the Court's opinion does not list the name of the attorneys involved.

The decision in this case can be found here.








It is interesting that the opinion, unlike most Second Circuit opi

Volley and Cheering.  The Second Circuit upheld a District Court's issuance of a permanent injuntion, preventing Quinnipiac University from eliminating its women's volley ball program.  The District Court had held that Quinnipiac's proposed elimination of the program would violate Title IX.  The Circuit Court agreed and held that competitive cheer leading is not a sport and, accordingly, the existence of Quinnipiac's varsity competitive cheer leading squad should not be considered in determining whether Quinnipiac had been discriminating against women in providing athletice opportunities.

The decision in Biediger v. Quinnipiac University can be found here.

Investor Claims.  The Second Circuit has held that an investor may assert a claim against a portfolio manager even though the investor was not a party to the contract spelling out the manager's duties.  The Court held that the relationship between the investor and the manager was sufficiently close to impose a duty on the manager, allowing the investor to sue for gross negligence.

The decision in Bayereische Landesban v. Aladin Capital Mangement can be found here.

Picketing the RNC.  It's sort of counterintuitive, but anti-abortion protesters cannot picket the Republican National Convention.  Two such protesters who picketed at  the 2004 Republican National Convention were arrested for not moving themselves to an area reserved for picketing when instructed to do so by the police.  The protesters brought an action under 42 U.S.C. 1983, claiming that the police had violated their First and Fourth Amendment rights.  The District Court granted summary judgment to the Police, and the Second Circuit affirmed, claiming that what was involved was a valid time, place and manner restriction.

The decision in Marcavage v. City of New York can be found here.

New York Times.  Well, it's not technically about the Second Circuit, but it was published by the New York Times, which is in the Second Circuit, and it's about federal appellate judges, which include the judges of the Second Circuit, so close enough.  I'm not sure I totally agree with it, but this op-ed piece, which rails against judicial opinions being written by law clerks should be of interest to those interest in the appellate procedure.

Standard of Review. The Second Circuit rejected the Board of Immigration Appeals' ruling that an Immigration Judge's finding concerning a future event is not fact-finding subject to clear error review. The Court noted that "[a] determination of what will occur in the futre and the degree of likelihood of the occurrence has been regularly regarded as fact-finding subject to only clear error review." The Second Circuit, however, agreed with the Board of Immigrations Appeals on its holding that de novo review applies to the ultimate question of whether the applicant for asylum has sustained her burden to establish that her subjective fear of persecution is objectively reasonable. The Court stated: "What the law's legal construct of a reasonable person would believe or do under the particular circumstances of a case is normally a question of law, the decision of which is reviewed de novo.

The decision in Huang v. Holder can be found here.

On February 17, 2012, Judge Roger J. Miner of the Court of Appeals for the Second Circuit died.

Incarcertation Is Not Withdrawal. The Second Circuit has held that a party to a conspiracy can be held responsible for losses caused by the conspiracy after his incarcertation. In United States v. Leslie, the defendant arguedthat his sentence had been incorrectly calculated because certain losses caused by the conspiracy in which he had been engaged had been imputed to him and used to establish his sentence even though he had already been incarcerated at the time those loses were incurred. The defendant took the position that incarceration should be seen as withdrawal from the conspiracy. The Court held that withdrawal from a conspiracy required an affirmative act; cessation from participation in the conspiracy was not enough. Accordingly, the defendant, because he had not shown any affirmative act constituting withdrawal, had not withdrawn from the conspiracy, and the entire loss caused by the conspriacy was imputable to him for purposes of sentencing.

The decision in this case can be found here.

Seventh Circuit. OK, it's not from the Second Circuit, but you have to read this opinion just for the first line, especially if you are an appellate lawyer.

Certified question. The Second Circuit has certified two questions to the Virginia Supreme Court. The questions are:

1. Does Virginia law permit equitable tolling of a state statute of limitations due to the pendancy of a putative class action in another jurisdiction?

2. Does Va. Code Ann. 8.01-229(E)(1) permit tolling of a state statute of limitations due to the pendency of a putative class action in another jurisdiction?

In Casey v. Merck & Co., the plaintiffs had filed a products liability claims that were governed byVirginia law after the limitations period had elapsed, but argued that the statute should have been tolled because of the existence of a class action asserting the same claims in Tennessee under the doctrine of American Pipe & Constr. Co. v. Utah. The plaintiffs claimed that Virginia recognized this doctrine. The Second Circuit felt unsure of this issue and certified the questions. The decision in Casey can be found here.

No baseball caps. The Second Circuit has upheld a District Court decision, dismissing an action by an attorney who was ordered not to wear a baseball cap and casual attire when appearing in Court. The attorney had asserted claims under the First and Fourteenth Amendments of the Constitution. The Second Circuit held that the restriction was content neutral (which the plaintiff acknowledged) and was appropriate to support the legimate goal of maintaining decorum in Court proceedings. Assuming that a constitutionally-protected liberty interest in one's personal appearance existed, the Court held that such a right was not "fundamental" and the restriction was not subject to strict scrutiny. Since there was a rational basis for the restriction, that claim was properly dismissed.

The decision in Todd v. Katz can be found here.

Defaulted. Defendant was charged with murder. The jury was hung on his first trial. On his second trial, the testimony of a state's witness at the first trial was admitted without informing the jury at the second trial that the witness had since recanted his testimony. The Defendant sought habeas corpus relief from the district court, which was granted. On appeal, however, the Second Circuit held that the issue had not been raised and preserved before the trial court and was procedurally defaulted under New York law.

The decision in Whitley v. Ercole can be found here.

Waiving Penalties. The Second Circuit has held that only the Attorney General, not a district court, has the authority towaive all or part of any delinquency or default penalties properly assessed under 18 U.S.D. 3612(g) for failure to pay restitution.

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

School paper. The Second Circuit held that a school can prohibit a student newspaper from publishing a sexually explicit stick-figure cartoon.

R.O. v. Ithica City School District can be found here.

Cigarette taxes on Indian reservations. The Second Circuit has held that the District Court improperly enjoined the state from enforcing a cigarette tax on sales in Indian reservations. Because the tax was paid by the consumer, not by the Indian retailer, the law did not violate tribal immunity or the tribal immunity for state taxation. And while the retailers would bear an economic burden from the prepayment of the tax, that is only because they chose to participate in the taxable cigarette market.

The decision in Oneida Nation of New York v. Cuomo can be found here.

UPDATE: After losing before the Second Circuit, the tribes went to state court and obtained a temporary restraining order enjoining New York frommtaxing reservation cigarette sales to non-Indian customers. A hearing on the tribes' motion for an injunction will be held on June 1, 2011.

Certified Question. In Connecticutt, there is a common law "make whole" doctrine, under which an insurer's right of subrogation may only be enforced after the insured has been fully compensated for his loss. In Fireman's Fund Ins. Co. v. TD Banknorth Ins. Agency Inc., an insured argued that the insurer could not collect from the escrowed funds containing the settlement of its claims against third-parties until it had recovered its deductible ($150,000) under the "make whole" doctrine. The District Court held that the subrogation clause in the insurance contract abrogated the "make whole" doctrine. On appeal, the Second Circuit disagreed. However, the Court noted that the Connecticut courts had not decided whether the "make whole" doctrine applied to deductibles. The Court certified this question to the Connecticutt Supreme Court.

The Second Circuit's decision in this case can be found here.

Sanctions for frivolous and vexatious litigation. When April Gallop commenced an action claiming that Dick Cheney and Donald Rumsfeld orchestrated the September 11, 2001 attacks for their own political purposes, you could predict that the case was not long for the world. And, of course, it was dismissed. But unwisely, Ms. Gallop and her attorneys chose to appeal, and now they face an award of sanctions. The Second Circuit held that under Rule 38 of the Federal Rules of Appellate Procedure, 28 U.S.C. 1927 and its inherent power, it had the authority to impose such sanctions, provide adequate notice and an opportunity to be heard is afforded. The Court gave Ms. Gallop and her attorneys 30 days to show cause why they should be ordered to pay double costs and damages in the amount of $15,000.

The decision in Gallop v. Cheney can be found here.