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.

Outlaws. The Second Circuit affirmed the order of the district court granting summary judgment to the Connecticut Department of Corrections, dismissing the action brought against it by correctional officers who had been disciplined for being members of the Outlaws Motorcycle Club.

The decision in Piscottano v. Murphy can be found here.

No immunity. In Gilles v. Repicky, the Second Circuit reversed an order granting summary judgment based on qualified immunity grounds. The Court held that a police officer could not hold an individual after he no longer had reasonable grounds to believe that she had engaged in criminal activity, even if at the time of the stop, he had such grounds.

The decision can be found here.

More certified questions. The Second Circuit is putting the New York State Court of Appeals back to work by certifying some more questions. The questions submitted to the New York Court in Reddington v. Staten Island University Hospital are:

Does the institution of a time-barred claim pursuant to New York Labor Law 740 simultaneously with a claim pursuant to New York Labor Law 741 trigger section 740(7)'s waiver provision and thereby bar the section741 claim, even if the section 740 claim is subsequently withdrawn?

Does the definition of employee in New York Labor Law 741 encompass an individual who does not render medical treatment, and under what circumstances?

The decision can be found here.

Unsworn recantation. The Second Circuit in Haouari v. United States denied without prejudice a criminal convict's motion to file a second motion under 28 U.S.C. 2255 because the new evidence was not in the proper form. The evidence was an unsworn letter from the petitioner's co-conspirator, recanting his prior testimony. The Court held that the evidence would have to be provided in the form of a sworn affidavit.

The decision can be found here.

Unsubstantiated. The Second Circuit remanded a case to the district court for resentencing because it was unclear to what extent the district court had impermissibly based its sentencing enhancement on unsubstantiated charged conduct.

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

Terror. The government's search and detention of certain American citizens of the Islamic faith upon their return to the US from Canada where they were attending an Islamic convention that the government believed that terrorists would be attending was held not to violate the Administrative Procedure Act, the Religious Freedom Restoration Act or the First and the Fourth Amendments to the Constitution.

The decision in Tabaa v. Chertoff can be found here.

Punitive. The Second Circuit has affirmed an award of $1 billion in punitive damages.

The damage award was based on the district court's finding that the appellants "engaged in a coordingated campaign of lies and misrepresentation in order to swindle Motorola of more than $2 billion" and that, "threatened with exposure, [appellants] resorted not only to further lies and corporate manipulations, but even to obstruction of justice and, ultimately, misrepresentations to this court."

I think it was the misrepresentation to the court that really did it.

The decision in Motorola Credit Corp. v. Uzan can be found here.

Answered certified question. In a case involving an alleged molestation of a child by a pastor, the Second Circuit had certified a question to the Vermont Supreme Court. The question was whether under Vermont Law a church is subject to vicarious liability for tortious acts of its pastor under the Restatement (Second) of Agency sec. 219(2)(d) if the pastor was allegedly aided in accomplishing the tort by the existence of the agency relation with the church. The Vermont Supreme Court answered the question in the negative and the Second Circuit affirmed the District Court's grant of summary judgment.

The decision in Doe v. Newbury Bible Church can be found here.

Full Court Press. Interesting article in the New York Law Journal entitled "Addition of Livingston Gives Circuit a Full Bench." Check it out.

Dancing. Well, the Town of Henrietta has found out that you have to be careful when you attempt to close down a teen dance club. You should follow your own rules for taking away a special use permit and you should definitely not make statements that can be seen as racially discriminatory. The Second Circuit granted a partial summary judgment to the plaintiffs in this case, reinstating their substantive due process claims, while upholding the dismissal of the equal protection and conspiracy claims.

Cine SK8, Inc. v. Town of Henrietta was remanded to the district court so that the immunity defenses, which were not addressed by the Distict Court could be dealt with. The decision can be found here. (Thanks to Wait A Second!)

Withdrawn. The opinion in Salamon v. Our Lady of Victory Hospital, which had been posted on October 29, 2007, has been withdrawn without explanation. An amended decision will be posted. If you must know what this case is about (and, of course, if you read this blog, you probably must), go to Wait A Second! for a description of the case. Sorry, but that's the best I can do.

Thomas J. Meskill. Senior Circuit Judge Thomas J. Meskill has died at the age of 79. Before becoming a Circuit Judge, Judge Meskill was a congressman and the governor of Connecticut.

Certified question. The Second Circuit has certified some more questions to the New York State Court of Appeals. The questions are:

Whether an '"Executive" is an "employee" under Labor Law, Article 6, section 193 and entitled to the protections of that statute?

In the absence of a governing written agreement, when are commissions "earned" and therefore considered "wages" under sections 191 and 193 thereby rendering most subsequent deductions unlawful?

The decision in Pacter v. Bernard Hodes Group, Inc. can be found here.

Oops. The Second Circuit held that a student seeking relief under Title III of the Americans with Disabilities Act or under Title V based on a violation of Title III does not have to exhaust administrative remedies. The District Court got it wrong.

The decision in Mc Inerney v. Renssalear Polytechnic Institute can be found here

Retroactive transfer. The Second Circuit has held that a copyright action brought by a holder of a copyright cannot be defeated by a retroactive transfer by a co-owner of the copyright.

The decision in Davis v. Blige can be found here.

World Trade Center. Well, litigation relating to 9/11 goes on. In In re World Trade Center Disaster Site Litigation, the plaintiffs sought to vacate a stay of proceedings pending a decision on an interlocutory appeal relating the purported immunity from suit alleged by the defendants. The motion to vacate the stay was made after argument on the appeal. Without finally deciding the issues on appeal, the Court vacated the stay, holding that it was less likely that the defendants would prevail on appeal and that the public interest favors permitting pretrial proceedings to resume.

The decision can be found here.

Exhaustion. The Second Circuit held that a student had to exhaust his administrative remedies before going to Federal Court even though he was scheduled to graduate before his remedies could be exhausted. The plaintiff in Coleman v. Newburgh Enlarged City School District had the award of attorneys' fees revered because the District Court should have dismissed the action for failure to exhaust.

The Court left open the question as to whether the exhaustion requirement is jurisdictional (and non-waiveable) or merely mandatory (but waiveable). In this case, the School District has not waived the defense.

The decision can be found here.

Reasons. The Second Circuit has vacated a sentence in United States v. Hirliman because the judge for the second time had failed to provide his reasons for deviating from the Guidelines. The Second Circuit had previously remanded the case for resentencing, and ordered the judge to provide reasons for deviation, but he did not do so. The case is being reassigned to a new judge for resentencing.

The decision can be found here.

Guns. The Second Circuit heard arguments in City of New York v. Beretta USA Corp., a case involving whether New York City should be able to go to trial in its efforts to force gun manufacturers and distributors to put a lid on the illegal sale of firearms.

The New York Law Journal's coverage of this oral argument can be found here.

Crawford. The Second Circuit upheld a grant of a petition for habeas corpus, holding that Gregg Becker's Sixth Amendment right of confrontation had been violated by the admission of 11 guilty plea allocutions at his trial. The Supreme Court in Crawford v. Washington had held that out of court testimonial statements cannt be admitted against a defendant unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine him.

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

Solomon Amendment. The Second Circuit has held that the Solomon Amendment, which withholds certain federal funding to universities of which any part does not allow military recruiters, does not violate the First Amendment rights of the faculty of a university.

The decision in Burt v. Gates can be found here.

Fraternal. A fraternity tried to prevent the College of Staten Island from inforcing its policy of not recognizing student groups that discriminate on the basis of sex. The district court had granted a preliminary injunction, but the Second Circuit held that the balance of interests favored the College and reversed.

The decision in Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University of New York can be found here.

Oral argument. Looks like the Second Circuit is putting some limits on oral argument, at least temporarily. Time will tell if this interim rule becomes permanent.

Appeal Dismissed. The Second Circuit dismissed an appeal where the appellant filed the appeal within 30 days of a corrected judgment, but not within 30 days of the original judgment. Because the corrected judgment did not alter the substantive rights of the parties affected by the first judgment, the time of appeal runs from the time of the first judgment. In this case, a law clerk had purportedly told the appellants' attorneys that an appeal would lie from the second judgment, which the appellate argued required the "exceptional circumstances" doctrine to apply. The Court, however, noted that the "exceptional circumstances" doctrine had been abrogated by the Suprme Court and that parties should not be seeking legal advice from judges or judicial staff.

The decision in In re American Safety Indemnity Co. (American Safety Indemnity Co. v. Official Committee of Unsecured Creditors) can be found here.

Exclusionary Rule. The Second Circuit has held that the exlusionary rule doe not apply to 18 U.S.C. 3109, a statute that empowers federal officers to break into a house to execute a search warrant after being refused admission.

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

Another New Blog. I have to add my usual caveat. This is not a new blog. It is a blog that I have just discovered, and which I think my readers might like. Take a look at Wayne Schiess's legal-writing blog. And thanks to Law Dawg Blawg for tipping me off to its existence. Law Dawg Blawg is another fine blog you should check out if you haven't already done so. It's been on my blog roll for ages.

No expert. Derrick Bell's attorney failed to retain a medical expert regarding the reliability of the complaining witness's identification -- the only evidence tying him to the crime. The Second Circuit held that such a failure constituted constitutionally deficient representation, warranting the grant of a writ of habeas corpus.

The decision in Bell v. Miller can be found here.

So Close. The Second Circuit had granted Rodriguez's petition for habeas corpus on the ground that his Sixth Amendment rights had been violated by the state court having excluded his family from his criminal trial. Then, the Supreme Court had to get in the act and vacate and remand the case with instructions to reconsider it in light of the Supreme Court's decision in Carey v. Musladin. So what's the Second Circuit to do? It has now affirmed the district court's decision denying the petition.

The decision in Rodriguez v. Miller can be found here.

Resigning arbitrator. The Second Circuit held that the resignation of an arbitrator did not prevent the remaining arbitrators from acting. To have held otherwise would allow one party to keep any action or any futher action from happening. This is so even when the arbitration agreement set out who the arbitrators would be.

The case in Zeiler v. Deitsch involved a "zabla" arbitration panel where each party picks on arbitrator and those arbitrators pick a third arbitrator who will serve as presiding arbitrator of the panel. The Court held that, in the event of a resignation, the party whose arbitrator resigns would have the power to appoint a replacement. In this case, Zeiler never attempted to do so, so the Court held that the remaining arbitrators could act.

The decision in this case can be found here.

No Notice. The Second Circuit has held that a district court need not give a criminal defendant advance notice before imposing a sentence in excess of the recommendations set out in the Sentencing Guidelines.

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

Rare bird. The Second Circuit has affirmed the conviction of Thomas Cullen, an internationally known professional falconer for violation of the the Wild Bird Conservation Act of 1992 Cullen was convicted of illegally importing some Black Sparrowhawks, a very rare bird indeed. Cullen tried to escape imprisonment by asserting a number of technical defenses, but to no avail.

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

New blog. There's a new blog in town, covering the Second Circuit's civil rights decisions. It's called Wait a Second!, and you should check it out. Of course, I will continue to cover civil rights decisions coming from the Second Circuit, where appropriate.

Law Review. This is a bit off-topic, but my adopted law student blogger, Butterflyfish, has made Law Review at her unnamed law school. Congratulations to her. If you have not been reading her blog up to now, you should definitely check it out.

Rebutting the Prima Facie Showing. The Second Circuit has held that an employer sued for failing to promote an employee in retaliation for his exercise of his First Amendment rights may not be awarded summary judgment because a jury could have ruled in his favor on the issue of whether he rebutted the plaintiff's prima facie showing of a retaliatory action, but can only be awarded summary judgment if he rebuts the prima facie showing by making a showing that no reasonable jury, drawing all references in the plaintiff's favor, could have ruled for the plaintiff. It reversed the decision of the District Court, granting summary judgment to the defendant on that issue.

The decision in Dillon v. Morano can be found here.

Human Shield. Judith Karpova went to Iraq to act as a human shield and protect the civilian infrastructure. In doing so, she violated several executive orders and regulations of the Treasury Department and was fined $6.700. Ms. Karpova brought an action, claiming that the government had violated her First and Fifth Amendment rights. The District Court granted summary judgment to the government, dismissing the claims. Karpova appealed.

The Second Circuit affirmed, holding that the government had provided Ms. Karpova all the constitutional protections to which she was entitled and that the penalty imposed her was proper under the pertinent orders and regulations.

The decision in Karpova v. Snow can be found here.

Unearned Fees. The Second Circuit has held that the Real Estate Settlement Procedures Act of 1974 is violoated by the collection of an unearned, unidvidued post-closing fee.

The decision in Cohen v. JPMorgan Chase & Co. can be found here.

Exhausted. The Second Circuit remanded a habeas corpus case to the District Court to consider whether threats made against the convict plaintiff by prison employees made the administrative grievance procedures unavailable to him or whether they estop the Bureau of Prisons from asserting the defense of failure to exhaust administrative remedies.

The decision in Marcias v. Zenk can be found here.

Certified Question. The Second Circuit has certified a question to the New York State Court of Appeals in Rivkin v. Century 21 Teran Realty. The certified question is:

Did any of the real estate brokers breach a fiduciary duty to the plaintiff, a potential buyer, by failing to disclose, in any form, the brokers' representation of a competing buyer for the property that the plaintiff sought to buy.

The decision can be found here.

Still Removable. The Second Circuit has held that an immigrant who has been convicted of a crime of moral turpitude, which renders him removable under immigration law, may not evade removal from the United States by having the criminal court in which he was convicted amend the judgment to provide that he was convicted of a crime that would not render him removable.

The decision in Saleh v. Gonzalez can be found here.

Interesting article. Appellate advocates might want to check out the article "A View From the Cheap Seats: The Ten Top Tips for Appellate Lawyers From Law Clerks." It's from the Appellate Advocate, a publication of the Texas State Bar Appellate Section, but it's relevant to those located in the Second Circuit as well.

No Jurisdiction. The Second Circuit has held that it did not have appellate jurisdiction to hear an appeal from an order remanding a case to state court after the District Court had joined a party whose presence destroyed subject-matter jurisdiction. The Court also held that the collateral order doctrine did not allow the Court to review the District Court's joinder order.

The decision in Price v. J&H Marsh & McLennon, Inc. can be found here.

New Rule. A new rule on Disposition by Summary Orders has been enacted by the Second Circuit. The text of the rule can be found here.

Probate Exception. The Second Circuit has reinterpreted the probate exception, which provided that federal courts should not, in general, decide cases dealing with probate issues. The Court has held that a federal court should decline subject-matter jurisdiction only if a plaintiff seeks (1) to acheive to administer an estate, probate a will, or do any other purely probate matter or (2) to reach a res in the custody of a state court in federal court

The decision in Lefkowitz v. Bank of New York can be found here.

It's Back! The Legal Research and Writing Blog, which has been inactive since March, is back in service with new posts. Praise the Lord!

Danger. The Second Circuit upheld the District Court's decision dismissing the action of a Transit worker who was fired for making remarks that indicated that he might be violent. The Court assumed that the remarks of the worker were of public interest, but, applying a balancing test, found that the Transit Authority's interest in keeping violent individuals off its work force outweighed the worker's First Amendment rights.

The decision in Blackman v. New York City Transit Authority can be found here.

Abuse of Discretion. The Second Circuit has held that the Board of Immigration exceeded its discretion in denying a motion to reopen a hearing where the motion was based solely on facts of which the Board had taken judicial notice. The petitioner had wanted to rebut the inferences that the Board had made based on the noticed facts.

The Court's decision in Chhetry v. U.S. Department of Justice can be found here.

Remanded. The Second Circuit had certified the question of whether New York law extended the tort of conversion to electronic data. The New York State Court of Appeals accepted the question and answered that conversion under New York law did extend to electronic data. In light of this decision, the Second Circuit, in Thyroff v. Nationwide Mutual Insurance Co., has vacated the District Court's dismissal of the plaintiff's conversion claim and remanded the case to that court for further proceedings.

Bootlegging. The Second Circuit held that Congress had the power to promulgate the statute banning bootlegging of unauthorized recordings of performances. The Court held that such legislation was valid under Congress's power arising from the Commerce Clause.

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

"Lawfully admitted." The Second Circuit has held that a lawfully admitted permanent resident, who obtained that status by fraud or mistake has not been "lawfully admitted for permanent residence" for purposes of section 212 of the Immigration and Nationality Act, which allows for a waiver of inadmissiblity.

The decision in De la Rosa v. United States Department of Homeland Security can be found here.

Benefits. The Second Circuit has decided a case raising the issue of whether the entire amount of a state law settlement covering both disability and death benefits may be credited against an award of death benefits under the Longshore and Habor Workers' Compensation Act. The Court held that it may not and that only the portion of the settlement funds directed toward state law death benefit cliams may be credited. The case was remanded to the Benefits Review Board for fact-finding regarding the allocation of the petitioner's prior state settlement between death benefits and disability benefits, noting that the burden of proof would be on the party asserting the credit.

The decision in Barscz v. Director, Office of Werkers' Compensation Programs can be found here.

Two Step Confession. The Second Circuit has ruled that a inculpatory statement made after the criminal defendant was Mirandized was admissible even thought the authorities had obtained a earlier inculpatory defendant from the defendant before he had been Mirandized. The Court held that a deliberate two-step strategy had not been used by the government; such a strategy would have warranted suppression under Supreme Court precedent.

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

Default. The Second Circuit vacated a default judgment on a counterclaim where (1) it found the showing that the plaintiff had failed to produce documents was willful and (2) the court had not considered lesser sanctions before granting the default judgment.

The decision in Shcherbakovskiy v. Da Capo Al Fine, Ltd. can be found here.

Certified question. The Second Circuit has certified a question to the New York State Court of Appeals relating to long-arm jurisdiction under New York law. The certified question was:

Does CPLR 302(a)(1) confer jurisdiction over the defendant, a Saudi businessman who was named as a supporter of terrorism in a New York author's book.

The decision in Ehrenfeld v. Mahfouz can be found here.

Warrantless Search. The Second Circuit has held that a search where the police lured two individuals away from their car so that they could conduct a warrantless search was constitutional. The court held that the search fell within the automobile exception.

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

It's nice to be noticed. The Adjunct Law Prof. Blog made mention of Second Opinions, which, of course, gives me a little visability. And so I'd like to return the favor. Go visit that blog right now. Oh, and by the way, the post in which this blog is mentioned is right on

Repugnant. The Second Circuit decided that it couldn't decide whether allowing a party to enforce two foreign judments was repugant to the public policy of New York, and remanded the case to the District Court.

The decision in Sarl Lewis Feraud International v. Viewfinder, Inc. can be found here.

Interesting Program. How Appealing referred its readers to this article on a program to help appellate attorneys hone their skills and prepare for oral argument. Somebody should do something like this in New York. (Maybe I will.) Thanks to Howard Bashman of How Appealing for cluing me in to this program.

In today's Law Journal. Extraordinary Measures Reduce Circuit's Immigration Case Backlog. And not a moment too soon. I was getting tired of reading those immigration cases.

Leave the Hearing Officer Alone. The Second Circuit has held that a district court should not overturn the decision of a hearing officer if the decision is reasoned and supported by the record. The decision in Gagliardo v. Arlington Central School District can be found here.

Talking with Counsel. The Second Circuit held that an order by the District Court, later rescinded, which prohibited a criminal defendant from speaking with his counsel after the first day of his cross-examination, did not violate the defendant's criminal rights under the circumstances of the case. In addition to rescinding the order, the Court had adjourned the case the next morning to allow the attorney to speak with his client. The attorney, however, took the position that the remedy was insufficient to cure the constitutional violation of not allowing him to speak with his client immediately after the day's testimony. The Second Circuit disagreed.

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

Update: Andrews will be seeking rehearing en banc, and, if that fails, review by the Supreme Court. Personally, I would not bet the farm on obtaining cert. or even a rehearing by the Second Circuit, but time will tell.

What's a picture worth? The plaintiff in Grace v. Corbis-Sygma, a photographer sued his agents and bailees for losing a large number of his pictures. After winning a six-figure amount after a bench trial, the plaintiff appealed, claiming that the award was not high enough. On appeal, the Second Circuit vacated the award and remanded the case to the District Court for a new assessment of damgages.

The decision can be found here.

Recusal. The Second Circuit overturned the conviction of two men conicted of a series of financial crimes based on the refusal of the district judge to recuse himself. The Court made clear that it was dealing only with the appearance of impartiality and noted that there was nothing suggesting that the district judge had acted improperly.

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

No protest. The Second Circuit denied a motion to stay an order, denying a request for a preliminary injunction, requiring West Point to allow a demonstration on its grounds during graduation, where Vice President Cheney is to speak.

The decision in Sussman v. Crawford can be found here.

Converting a Kidney. I previously blogged on Colavito v. New York Organ Donor Network here. The Second Circuit had certified a question as to whether the intended recipient of an organ donation could bring a private cause of action for common law conversion or under the New York Public Health Law if he does not receive the organ.

The Court of Appeals held that the intended recipient of a donated organ might have a common law right to it under New Yok law, no such right exists for the specivied donee of an incompatible kidney. Also, under the Public Health Law, a party would only have a cause of action if he could benefit from the kidney. The kidney at issue was not compatible with Colavito. The decision of the New York State Court of Appeals can be found here. The Second Circuit granted summary judgment to the defendant

The Second Circuit's decision can be found here.

Procedural Hurdle. A convicted burglar sought habeas relief, challenging identity evidence that was admitted against him at trial. The petition had been denied by the District Court on the merits, but the Second Circuit, in affirming the decision of the District Court, did not reach the merits, holding that review was barred by independent and adequate state law grounds. The criminal defendant had not raised the issue at trial, barring him from raising it on appeal or in a habeas proceeding.

Judge Straub dissented, arguing that the criminal defendant had adequately raised the issue at trial and that the trial court had rendered a decision on the issue. Having set aside the procedural bar, Judge Straub found that the New York Appellate Division had unreasonably applied clearly established Supreme Court law relating to the issue. He would have granted the relief sought.

The decision in Garvey v. Duncan can be found here.

Feldman's to the right of me, Feldmans to the left of me. This is a non-substantive post. I just thought it amusing that both the criminal defendant and the United States were represented by Steven Feldman. Not the same Steven Feldman, of course, but still . . .

It's a sentencing case, and I'll give you the link to United States v. Ubiera, so that you can find out more.

Federal Jurisdiction. An interesting question of federal jurisdiction arose in a recent Second Circuit case. A student's IEP (individualized education program) provided that the student was entitled to a 1:1 paraprofessional, but only at the public school. The student attended a parochial school, and the parents asked for a due process hearing, seeking to have the services of the paraprofessional be provided to him at his private school. The hearing officer ruled in favor of the parents. The school district appealed to the New York Education Department's State Review Officer, who agreed with the hearing officer, except held that there was no obligation to provide the paraprofessional under IDEA (the Individuals with Disabilities Education Act). He did, however, find such an obligation under the New York State Education Law. The school district filed an action in the federal court, challenging the determination of the State Review Officer. The District Court upheld the decision of State Review Officer.

On appeal, the Second Circuit held that because there was no right to the relief under federal law, the Court lacked jurisdiction. Even if IDEA incorporates certain state standards relevant to this case (an issue not decided), this does not provide an independent federal question that would sustain a federal court's jurisdiction. Nor does the provision of IDEA that allows an aggrieved party from an administrative decision in a special education action to bring an action in federal court, allow such a party to bring an action where there was no federal question. To hold that the court had jurisdiction in such a circumstance would allow jurisdiction insonsistent with Article III. The Court decided that the case should be brought in state court and dismissed the action.

The decision in Bay Shore Union Free School District v. Kain can be found here.

Answer to Certified Question. In Highland Capital Management L.P. v. Schneider, the Second Circuit had certified the question of whether certain promissory notes issued by McNaughton Apparel Group Inc. to the Schneiders fall within the definition of a "security" as contemplated by UCC 8-102(15) to the New York Court of Appeals. The New York Court of Appeals held the promissory notes were securities under the UCC. In light of this ruling, the Court remanded the case to the District Court, which had held that the notes were not securities, for reconsideration of certain claims. In addition, the Court reversed the dismissal of one claim on which the District Court had held that the Statute of Frauds limited the damages, rendering the claim below the jurisdictional requirement of the Court. In light of the fact that the notes were securities, the Statute of Frauds limitation did not apply and the count was reinstated.

The decision in this case can be found here.

Lodestar. In determining attorneys' fee awards under the Voting Rights Act, while "the court should generally use the prevailing hourly rate in the district where it sits to calculate what has been called the 'lodestone' -- what we think is more aptly termed the 'presumptively reasonable fee' -- the district court may adjust this base hourly rate to account for a plaintiff's reasonable decision to retain out-of-district counsel, just as it may adjust the base hourly rate to account for other case-specific variables." The district court, in deciding a lodestar rate, should decide what a reasonable paying client would be willing to pay. In making that finding, the Court should consider the complexity and difficulty of the case, the available expertise and capacity of the client's other counsel (if any), the resources required to prosecute the case effectively (taking account of the resources being marshaled on the other side but not endorsing scorched earth tactics), the timeing demands of the case, whether the attorney had an interest (independent of that of his client) in acheiving the ends of the litigation or initiated the representative himself, whether the attorney was initially acting pro bono (such that a client might be aware that the attonrey expected low or non-existent remuneration), and other returns (such as reputation, etc.) the attorney expected from the representation.

The decision in Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany can be found here.

Fifty Dollars Based on certain contractual limitations of liability, the district court held that the most that the plaintiff could recover against the two defendants was $50 against each. The Court suggested that each defendant tender $50 to the plaintiff, without conceding liability. When they did, the Court entered judgment in favor of the plaintiff in the amount of $5 from each defendant, and dismissed the action as moot and for lack of subject matter jurisdiction.

While the Second Circuit, on appeal, held that the District Court had been correct in determining the extent of liability, it held that the District Court was wrong in dismissing the action as moot and for lack of subject matter jurisdiction. Had the defendants paid the plaintiff the entire amount of its claim, then the case would be moot, but in that it only paid the amount that the District Court held was owed, the case was not moot. At any rate, since the judgment entered was final, the plaintiff could appeal.

The decision in ABN Amro Verzekeringen BV v. Geologistics Americas, Inc. can be found here.

Direct Appeal. In general, when a party wants to appeal from a decision of a bankruptcy court, the appeal is made to the district court in the first instance. One can, however, appeal directly to the Court of Appeals if you meet the criteria of 28 U.S.C. 158(d)(2)(A). That provision allows a direct appeal if the bankruptcy court certifies that either "(i) the judgment, order, or decree involves a question of law as to which there is no controlling decision . . . or involves a matter of public importance; (ii) the judgment, order, or decree involves a question of law requiring resolution of conflicting decisions; or (ii) an immediate appeal from the judgment, order, or decree may materially advance the progress of the case." In such cases, the Court of Appeals has discretion to hear the appeal.

In Webber v. United States Trustee, a creditor sought to take a direct appeal to the Second Circuit to address the issue of whether the increase in the homestead exemption should be applied retroactively. The Second Circuit declined to hear the appeal, stating that there was not a conflict in the decisions and there was no reason to believe that resolution of the issue would result in a more rapid resolution of the case.

The decision can be found here.

Not shocked. The Second Circuit has held that workers who performed search, rescue and cleanup services at the World Trade Center after the terrorist attacks cannot sue government officials who issued reassuring and knowingly false statements about the air quality in lower Manhattan. In affirming the dismissal of the action, the Second Circuit held that the defendants actions did not shock its conscience even if the defendants acted with deliberate indiference. "When agency officials decide how to reconcile competing governmental obligations in the face of a disaster, only an intent to cause harm arbitrarily can shock the conscience in a way that justifies constitutional liability." Too bad for the poor workers, I guess. (For the record, the panel was Chief Judge Jacobs and Judges Sack and Raggi.

The decision in Lombardi v. Whitman can be found here.

Inherent authority. The Second Circuit has held that it has the inherent authority to admit to bail movants, who are seeking bail pending the court's consideration of their petition for review of a BIA order.

The decision in Elkimya v. Department of Homeland Security can be found here. Unfortunately for Elkimya, although the court held it had the inherent authority, it chose not to exercise its authority in his favor.

Another certified question. The Second Circuit has certified another question to the New York State Court of Appeals:

Is an open space restriction imposed by a subdivision plat under New York Town Law 276 enforceable against a subsequent purchaser, and under what circumstances?

The Second Circuit has stated that it has many times greatly benefitted from the guidance of the New York State Court of Appeals. Sure it's dictum, but it's nice to know.

The decision in O'Mara v. Town of Wappinger can be found here.

Trolls. There's a big fight between a Danish company and an American company over who has the rights to manufacture those cute/ugly little troll dolls. So far the Danes are winning.

A Dane by the name of Thomas Dam created the dolls and obtained a copyright in Denmark. He also got a copyright in America, which was invalidated because certain dolls of this type had been sold in America prior to Dam's copyright, and the design fell into the public domain.

After Dam died, his heirs granted the exclusive right to make the dools to Trolls Co., a Danish company.

Congress enacted 104A of the Copyright Act, which put America into compliance with the Berne Convention, having the effect, among other things, of restoring Dam's copyright. Trolls Co. applied for and was granted a registration certificate in 2000.

Uneeda Doll Co. had been manufacturing trolls under a license from Dam's company since the 1960s. Uneeda had told Trolls Co. that it had no intention of manufacturing trolls. However, Trolls Co. found out that Uneeda was about to do so just at the time that Trolls Co. was about to relaunch the dolls. Trolls Co. told Uneeda that its dolls were infringing Trolls Co.'s copyright.

Trolls Co. sued and obtained an injunction. The Second Circuit has affirmed. The decision in Trolls Co. v. Uneeda Doll Co. can be found here.

Great news. I just got back to the office after Passover and find the terrific news that Catherine O'Hagan Wolfe, formerly clerk of court for the New York Appellate Division, First Department, has been named the new clerk of court for the Second Circuit. As anyone who practices appellate law in New York knows, Ms. Wolfe is a great choice. My only question is what is going to happen to the First Department?

First issue on the plate -- on-line filing. It's coming.

Covered Security. The Securities Litigation Uniform Standards Act precludes the maintenance -- in state or federal court -- of class actions alleging state law violations but premised on deception "in connection with the purchase or sale of a covered security." A covered security is a security listed on one of the national securities exchanges or issued by investment companies registered by the SEC. The question that came before the Second Circuit is whether a document that was not a covered security became a covered security because it was attached to a document that was a covered security. The district court held that it became a covered security. On appeal, the Second Circuit held that it did not and vacated the District Court's order with orders to remand the case to the New York County Supreme Court.

The decision in Ring v. AXA Investment, Inc. can be found here.

DNA and the Fourth. The Second Circuit has held that requiring felons convicted of nonviolent crimes and sentenced to probation to supply a sample of their DNA for analysis and storage in a federal database does not violate the Fourth Amendment.

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