Cross-post. It's been a while since I've done a cross-post with this blog's sister blog, The FAPE Page, but another Second Circuit case in the area of special education law just came down. The Court, in Murphy v. Arlington Central School District Board of Education, has held that expert fees are compensable as costs under the Individuals with Disabilities Act, but that such fees will not generally be approved unless the application is accompanied by time records contemporaneously maintaned by the person performing the services. The decision can be found here.

Offer of judgment and mootness. Trans Union, L.L.C. issued a credit report about Peter McCauley that was incorrect and prevented him from getting a certain student loan. He had to borrow that money and accrued damages of $240. He sued Trans Union. Trans Union made an offer of judgment for the entire $240 plus court costs, but it was rejected. It moved for summary judgment, claiming that there was no longer any case or controversy between the parties. The District Court noted McCauley, at the time the offer was made, had potentially been entitled to punitive damages, but determined that he was no longer entitled to such damages (presumably because Trans Union was willing to pay) and that if Trans Union repeated its offer, and McCauley declined to accept it, another summary judgment could be made. Trans Union made another offer in the same amount. The offer stated that there was no admission of guilt and that the judgment should be confidential. McCauley rejected it and, upon a second summary judgment, the Court dismissed the case. McCauley appealed the case pro se and won. The Court held that the dismissal made no sense. Trans Union admitted that it owed McCauley $240. It made a conditional offer. McCauley was not obligated to agree to the conditions, but in not doing so, he wound up with nothing even the amount that Trans Union admitted it owed. The Court concluded that the rejected settlement offer did not moot the case so as to warrant judgment in favor of Trans Union. The Court remanded the case to the District Judge for the purpose of entering a default judgment. Both parties had agreed at oral argument that such a solution would satisfactorily resolve the case. The decision in McCauley v. Trans Union, L.L.P. can be found here.

Changing a copyrighted program. That's what Titleserv did to a program created by a former employee who left without signing over his copyrights. He told Titleserv that it could only use the program as is, but that did not stop Titleserv, since modifications were required to make the programs work. The employee sued for breach of copyright, and Titleserv moved for summary judgment, which was granted. On appeal, the Second Circuit affirmed, holding that, under 17 U.S.C. 117, it was entitled to adapt the programs because it was an owner of the programs, the copy was created as an essential step in the utilization of the computer program in conjunction with a machine and the program was ued in no other way. The decision in Krause v. Titleserv, Inc. can be found here.

Judge Frederic Block of the Eastern District of New York has asked the Second Circuit for guidance on a case where blacks were disproportionately excluded from a jury that convicted a man of three robberies. An article on this case (Anderson v. Superintendent) can be found in today's New York Law Journal. You may need a password to get the article. The decision can be found here.

Finality of Criminal Judgment. In Moshier v. United States, the Second Circuit held that a criminal judgment was final for purposes of the Anti-Terrorism and Effective Death Penalty Act of 1996 when the time for filing a direct appeal expires. The decision can be found here.

Supreme Court bound? I couple of posts ago, I blogged on the case of United States v. Doe. See that post for the details (or check the decision for the full details). I should note that, according to footnote 4 thereof, the decision is in conflict with a Seventh Circuit decsion and in sharp tension with decisions of the Eighth and D.C. Circuits. The Court stated: "We are mindful that uniformity among the circuits fosters predictability in the invocation of the privilege and supresses forum shopping. We are in no position, however, to resolve this tension in the law." Could this case be heading to the Supreme Court?

The Relitigation Exception. Woolsely had given up his parental rights to his child, and then changed his mind. The Texas Court had ruled in favor of the adoptive parents and against Woolsey. Woolsely had brought an action in the District Court of the Western District of Pennsylvania, seeking a declaratory judgment that his parental rights had been invalidly terminated and an order setting aside the adoption decree entered by the Texas court. The District Court dismissed the action as time barred. Woolsley later brought an action in a Connecticut court, seeking visitation rights and contending that the Texas decree was void. The Smiths, the adoptive parents, brought an action in federal courts, seeking damages for this vexatious litigation and for intentional infliction of emotional distress and sought an injunction to prevent Woolsley from further attempts to challenge the Texas decree. The District Court granted the injunction.

The Anti-Injunction Act generally prohibits federal courts from enjoining state court proceedings. There is a relitigation exception, which provides authority to federal courts to issue an injunction to protect its judgments from further litigation in state courts. In Smith v. Woosley, the Second Circuit stated that "the purposes of the relitigation exception -- precluding relitigation in state courts of issues determined by a federal court -- appears to be better served by allowing a district court that has subject matter and personal jurisdiction to issue an injunction that protects the judgment of another federal court than by forcing the litigants to a likely inconvenient forum for an identical result." The Court further noted that if one were to limit the relitigatiojn exception to courts that had entered the judgment rather than other federal courts, such a limitation on the exception would be one of venue, not subject matter jurisdiction. That objection had been waived by Woolsley's failure to object. The Court also asserted that the equities favored granting the injunction to the Smiths.

The last question was whether the Pennsylvania judgment was entitled to protection. The Pennsylvania court never reached the merits of the case, but dismissed the case on statute of limitatons grounds. In that the judgment left Woolsley with no forum to bring his claim (as the statute of limitations had appeared to have passed in all relevant jurisdictions), the relitigation exception applied. The Court, however, modified the injunction to allow Woolsley to bring an action in a forum whose statute of limitations had not paseed in which personal jurisdiction could be obtained over the Smiths and where he would otherwise be entitled to challenge the Texas decree. In other words, Woolsely lost.

The decision can be found here.

Is something going on? I've noticed that Findlaw has not been updating its Second Circuit opinions since mid-February. And ever since the Second Circuit News blog disappeared (for no reason that I can find), the only place to find Second Circuit opinions is on the Second Circuit website. That would be OK, except that when you link to an opinion, you don't seem to get the URL for the opinion. The address, at least on my computer, remains the general Second Circuit website URL. If anyone knows another way to get cites to Second Circuit opinions, please let me know.

Governmental attorney-client privilege. A federal grand jury subpoenaed the testimony of Anne C. George, the former chief legal counsel to the Office of the Governor of Connecticut. The investigation regarded possible criminal violations by Connecticut public officials and employees and by private parties with whom the state had done business. The grand jury was seeking to obtain testimony about the contents of confidential communications between Ms. George and the governor and members of his staff. The district court entered an order compelling Ms. George to testify, holding that in that the testimony was necessary to the grand jury, the governmental attorney-client privilege must yield because the interests served by the grand jury's fact-finding process outweigh the interest served by the privilege. The Second Circuit reverse, holding that the attorney-client privilege applied and refused to fashion a balancing test or otherwise establish a rule whereby a generalized asserton of privilege must yield to the demonstrated, specific need for evidence. The decision in United States v. Doe can be found at the Second Circuit website. I will try to get you a better site at a later date.

Here's an interesting article on the Second Circuit's reaction to the Supreme Court's sentencing guideline cases.

Off-topic, but interesting. Justice Doris Ling-Cohan has issued an order, holding that a provision of New York law, forbidding same-sex marriage is unconstitutional under the New York constitution, although the effect of the order is stayed for 30 days so that New York City can appeal, which it will. A copy of the decision can be found here. It's not about the Second Circuit, but it's darn interesting. (And it's 62 pages!)

No appeal from a magistrate judge's order. Mathew J. Harrison pleaded guilty of conspiring to distribut marajuana. After the plea, the district judge assigned him counsel and released him on $5,000 bond with certain conditions of release. Harrison broke these conditions on several occasions. Because of these violations, the magistrate judge revoked his bail. Harrison made three separate motions for reconsideration to the magistrate judge, which were denied. Harrison filed a notice of appeal from the magistrate judge's detention order. The Court noted that a magistrate judge's ruling on bail is not final and cannot be appealed to the Court of Appeals because it is subject to review by the district court. Hence, the Second Circuit lacked jurisdiction to hear the case and dismissed the appeal. The case in United States v. Harrison can be found here. What surprises me is that Harrison's attorney did not seem to know that he should have seen review from the district court first.

New rule. The Second Circuit is putting out a new rule requiring the filing of briefs in PDF form. For more information on the proposed rule, which will not be effective until after a public comment period, click here.

Rescission Statute. An insured brought an action against its insurer, challenging the latter's rescission of her disability insurance policy within the six-year limitations period. The District Court dismissed the case based on a provision that provided that an insured could only bring an acton within three years on legal challenged to denied proofs of claim. The Second Circuit held that this provision had no applicability in this case. Terry v. Unum Life Insurance Co. can be found here.

Habitual residence. When one parent kidnaps a child from one country to another, the non-kidnapping party can get the child back to the child's "habitual residence" to decide all child custody issues by invoking the Hague Convention on the Civil Aspects of International Child Abduction, providing the relevant countries are parties to the treaty. In order to invoke the treaty, it must be shown the location of the habitual residence of the child. This term is not decided in the treaty, and in Gitter v. Gitter, the Second Circuit provided the factors that must be considered in making such a decision. First, the intent of the parents must be considered. However, that is not dispositive. The Court must also look to evidence that unequivocally points to the child having acclimatized to another country. The District Court had decided that the United States, not Israel was the habitual residence of the child based on the first factor, but did not consider the second factor. Based on that, the Second Circuit remanded the case for reconsideration by the District Court. The decision can be found here.

Correction. A few days ago, I noted that the On Appeal blog was the same as the Appellate Law and Practice blog. I got two e-mails informing me that I was wrong. The Appellate Law and Practice blog can be found here. It's nice to know that someone is reading.

Crawford Not retroactive. The New York Law Journal has written an article on the retoractivity of the Crawford case. The article can be found here (and I don't think you have to be a subscriber).

New blog. Check out John Derrick's new blog on appellate practice, On Appeal. You can find it here. Enjoy it!

UPDATE: I see that it is actually an update of the Appellate Law and Practice blog that has been listed for a few months on my bloglist and has moved off of blogspot. I'll make the change on my bloglist. You can still enjoy it.

Breach of Duty of Good Faith and Fair Dealing -- Not enough. Sterling National Bank breached its duty of good faith and fair dealing to National Market Share, Inc. by failing to honor approximately $800,000 in payroll checks. However, it was National Market's Share's faithless principal who had caused the company to go out of business. Hence, the bank was only ordered to pay nominal damages of $1. The Second Circuit affirmed. The decision in National Market Share, Inc. v. Sterling National Bank can be found here.

Forfeiture. Barbara Pacheco purchased certain real property that the government was trying to forfeit from a criminal defendant. Pacheco knew about this in that a notice of pendency was filed long before she bought it. However, because the criminal defendant's wife had an interest in the property, Pacheco's purchase may be valid as to her purchase of the wife's interest -- or, at least, the Second Circuit, on its appeal from a motion to dismiss, did not find otherwise. The decision in United States v. Serendensky can be found here.