Denial of en banc review. The Court's decision to deny en banc review in Landell v. Sorrell seems to have triggered a debate. That case involved Vermont's radical limits on campaign spending. An article on the case from today's New York Law Journal can be found here. (You may need a password. Sorry.) The various decisions can be found at the Second Circuit website. (I will try to get a better cite.)

New certified questions. The Second Circuit has certified five questions to the New York State Court of Appeals regarding the application to summary judgment of section 388(1) of the New York Vehicle and Traffic Law. The questions are:

1. Under New York law, are uncontradicted statements of the both the owner and the driver of a car that the dirver was operating the vehicle without the owner's permissions sufficient to warrant a court in awarding summary judgment to the owner?

2. If no, can additional circumstantial evidence such as the contemporaneous accident reports submitted by the owner tip the balance and warrant a court in awarding summary judgment despite the interested nature of the sources?

3. If no, is the uncontradicted testimony of the driver and the woner that the driver was operating the vehicle without permission, even if not sufficient for summary judgment, sufficient at a trial to overcome the statutory presumption of permissive use, thereby placing the burden on the plaintiff to prove permissive use at trial?

4. Even if the concontradicted testimony of the dirver and owner that the use of the vehicle was without permission is not by itself enough to rebut the presumption of permissive use, is the addition of such further evidence as contemporaneous accident reports by the ownersufficient to do so, with the result at trial that the burden of proving permissive use will rest on the plaintiff?

5. Is the answer of any of the previous questions affected by the absence of evidence that the defendant (Amtrak) reported the unauthorized use of its vehicle to any law enforcement agency?

The decision in Country Wide Insurance Co. v. National Railroad Passenger Corp. a.k.a. Amtrak can be found here.

Bad character. An non-citizen sought suspension of deportation. However, prior to that she had attempted to obtain asylum and had made false statements in her testimony. The Second Circuit held that such statements could constitute evidence that she was not of good character, which would preclude the relief she sought. The decision in Medina v. Gonzales can be found here.

Prisoner for a Day. Susan Godding was convicted of the embezzlemant of almost $366,000 from her employer, but was sentenced to one day's imprisonment, five years' supervised reliease, with six months in hom confinement, and full restitution. The Government appealed this sentence. The Second Circuit remanded the case to the District Court, noting that the Court would be required to consider, among other things, the need for the sentence imposed "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." The decision in United States v. Godding can be found here.

Habeas Proceeding is Civil. Well, it should come as no surprise that a habeas proceeding is a civil action, but the question in Vacchio v. Ashcroft is whether its a civil action within the meaning of the Equal Access to Justice Act, which would allow the plaintiff to recover attorneys' fees. The proceeding at issue was "a petition for a writ of habeas corpus challenging an immigration detention." the Court found that it was a civil action under the Act and that the plaintiff was a prevailing party, but because the Government's position was substantially justified, and that the plaintiff was not entitled to fees. Judge Oakes issued a short dissent. The decision can be found here.

You gotta sign. Sarhank had a contract with one of Oracle Corp.'s subsidiaries. It sought arbitration not only with the subsidiary, but with Oracle itself. Although Sarhank had an arbitration agreement with the subsidiary, Oracle had never signed such an agreement. The arbitrators (under Egyptian law) found that Oracle was bound to arbitrate and rendered an award against both Oracle and the subsidiary. Sarhank sought to enforce the award in America under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The Second Circuit held that it was not bound by the finding of the arbitrators as to whether Oracle was bound by the arbitration clause and found that the award could not be enforced as Oracle had not agreed to arbitrate. The decision can be found here.

I thought this was over. Well, Judge Guido Calabresi's remarks comparing Bush v. Gore to the use of legitimate institutions by fascist leaders is back in the news. The Second Circuit's Judicial Council has determined that the admonition he received for the remark by the chief judge was sufficient punishment. An article on this determination can be found here. This is old news. You'd think the Judicial Council would have something better (or at least more timely) to do.

Certified Question. The New York State Court of Appeals has answered a certified question regarding common law copyright under New York law of sound recordings produced prior to 1972 (at which date sound recordings became subject to statutory copyright). The decision in Capitol Records, Inc. v. Naxos of America, Inc. can be found here. C.E. Petit of Scrivener's Error has some comments on the case here.

New case for the Supremes? Occasionally, I will point out a Second Circuit case that I think might be picked up by the Supremes. The case of Abdul-Malik v. Hawk-Sawyer might be such a case, although procedurally it might not make the cut (if certiorari is even sought). The appeal was dismissed by the Second Circuit on the ground that it was meritless. But that's only Second Circuit precedent. The Court noted that there is a sharp dispute among the circuits and suggested congressional attention.

The question is how to treat prisoners sentenced first in federal and then in state court, and the phenomenon (in some circuits) that neither the state nor the federal court can run those sentences concurrently.

The decision can be found here.

Clarett appeal. The Supreme Court has denied certiorari in the Clarrett case, challenging the eligibility rules of the NFL. For more info, click here.

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.