Not testimonial. The Second Circuit has held that autopsy reports are not testimonail under Crawford v. Washington, and the failure to have the opportunity to cross-examine the author of such reports before their admission into evnidence does not violate the Sixth Amendment.

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

Dead. A police officer who was hit by a SUV operated by Second Circuit Judge John M. Walker, Jr. died. The accident is still under investigation, but the police had seen no need to have the judge tested for drug or alcohol use.

Not final. In Honeywell Int'l, Inc. v. Purculator Products Co., the court entered an order, granting summary judgment on the issue of liablity under the Employee Retirement Income Security Act. The case then settled. The defendant made an application to compel the plaintiff to pay attorneys' fees and costs. The plaintiff sought to appeal from the order granting summary judgment on liability, which was the predicate for the request for fees. The Second Circuit dismissed the appeal. The order was moot in that the case was settled and could not be appealed, and, to the extent that it was the predicate for the application for fees, an appeal could not be taken until the Court had decided that fees would be granted and the amount of such fees. Until that determination was made, the decision was not final and not appealable.

The decision can be found here.

One occurrence or Two? Well, it's mixed news for Larry Silverstein. The Second Circuit has held that the terrorist attack on the World Trade Center on 9/11 was one occurrence for certain insurers bound under the so-called Will-Prop form, but upheld the jury verdict finding that, for purposes of other insurers not bound by that form, the attack constituted two occurrences. This may warrant further discussion after I've had a chance to read it in full. It's a long one, over 70 pages.

The decision in SR International Business Insurance Co. v. World Trade Center Properties can be found here.

Substantial Compliance. The Second Circuit has held that substantial compliance with IDEA is not sufficient to prevent a preliminary injunction being issued against a school district. While the Secretary of Education is permitted to withhold funds from a school district that has not substantially complied with IDEA, that requirement does not provide a district to avoid injunctive relief if it substantially complies with the statute. It is required to provide a free, appropriate public education.

The Second Circuit, in DD v. New York City Department of Education, however, held that the plaintiffs were not entitled to relief immediately, but "as soon as possible."The case was remanded to the District Court for a decision under the correct standards. The Court suggested that the preliminary injunction motion be combined with the merits and that the entire controversy be adjuciated.

The decision can be found here.

Executory. A bankruptcy court held that a contract to exchange certain parcels of land for which all performance had been completed except for the reimbursement of certain construction expenses could be rendered fully executory, rendering it incapable of rejection, by a bankruptcy debtor when the final payment is tendered post-petition. On appeal, the District Court affirmed on the issue that the contract was an executory contract as of the petition date, but rejected the Bankruptcy Court's holding that executory contract status should be determined as of the rejection motion date. The District Court remanded the case to the Bankruptcy Court for further proceedings consistent with its opinion. The debtor appealed.

The Second Circuit dismissed the appeal, holding that the case was not final. The ultimate issue of whether the debtor should have been allowed to reject the contract was still before the Court. Although both parties asserted that the further proceedings would be ministerial only, the Second Circuit, nevertheless, held that appellate jurisdiction was lacking for lack of finality and declined to create a new exception to the final judgment rule.

The decision in COR Route 5 Co., LLC v. The Penn Traffic Co. (In re The Penn Traffic Co.) can be found here.

Chapter 3. Well, it's about time for another post relating to Martha Graham School and Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc. When previously before the Second Circuit, the Court had held that Martha Graham had transferred most of her works to the Martha Graham Center of Contemporary Dance, Inc. and remanded the case to the District Court to resolve the issue of who owned seven of her dances. On remand, the District Court rejected the plaintiffs' motion for a new trial and held that the Center also owned the seven dances. The plaintiffs appealed.

The Second Circuit held that the plaintiffs' motion for a new trial was untimely in that it was made more than a year after the original judgment.

The Second Circuit also held that certain evidence had been properly excluded and did not warrant reversal.

The decision in this case can be found here.

Presumption against preemption. There is a Supreme Court case, Buckman Co. v. Plaintiffs' Legal Comm., which held that state fraud-on-the FDA claims (claims alleging that companyies had fraudulently induced the FDA to approve their products, causing damage) were impliedly preempted by federal law. Michigan has a statute that narrows liability for companies making FDA-approved products. The law provides that if the device or drug is approved by the FDA, the company is immune from state law tort claims unless the company withheld or misrepersented information that would have altered the FDA's decision to approve the drug. The issue raised in Desiano v. Warner-Lambert & Co. was whether, under the rationale of Buckman, federal law also preempts traditional common law claism that survive a state's legislative narrowing of common law liability through a fraud exception to that statutory limitation. The Court, holding that there was a presumption against preemption, held that such a claim would not be precluded under Buckman.

The decision can be found here.

Endeavoring. The Second Circuit addressed the issue of whether the cross-reference of United States Sentencing Guidelines 2J1.2 with 2X3.1 for cases "involving obstruction" of an investigation applies when there was no actual obstruction, but merely an "endeavor" to obstruct justice. The Second Circuit held that that cross-reference does apply whether there is actual obstruction or merely an endeavor to do so.

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

Burn!!!! This is not a post about a Second Circuit case (it's about a Seventh Circuit case), but the sanction imposed by Judge Easterbrook for a frivolous motion is worth mentioning to all appellate practitioners. The appellant in Custom Vehicles, Inc. v. Forest River, Inc. moved to have the Court strike sections of its opponent's brief, claiming that it contained unsupported assertions of fact. The Judge acknowledged that it was possible that the appellant's reading of the record might be correct and the appellee's wrong, but then asked why the appellant believed that the Court was going to redact his adversary's brief. He explained that the proper method of pointing out errors in an appellee's brief is to point them out in a reply brief. Judge Easterbrook noted that the"judiciary has quite enough to do deciding cases on their merits" and pointed out that there was no rule for "a judicial blue pencil."

As a sanction, Judge Easterbrook deducted twice the length of the motion from the permissible length of a reply brief.

The decision can be found here. Oh, and thanks to Howard Bashman of How Appealing for pointing this decision out.

Not contempt. The Second Circuit reversed a conviction of criminal contempt against a plaintiff in a civil action, arising from her contact with a juror in the courtroom cafeteria during the trial of her case. The plaintiff had given the juror, who she knew she was not supposed to talk to, some papers, which she told the juror that she should read.

The plaintiff had been charged under 18U.S.C. 401(1), for a direct contempt of court. However, in order to be convicted of that statute, a party would have to have committed the contempt in or near the courtroom. The Second Circuit held that the cafeteria, ten floors away from the courtroom was not sufficiently near the courtroom to trigger the statute. The Court stated that: "Unlike jury rooms, witness rooms, or immediately adjacent hallways, the cafeteria is not a place 'set apart' for official court business, or for the use of jurors or other trial participants."

In that the government had failed to prove an essential element of its case in this contempt proceeding, the judgment was reversed and the case remanded with instructions to enter a judgment of acquittal. The decision in United States v. Rangolan can be found here.

Bankruptcy Rule 8001 Dismissal. A bankruptcy debtor appealed a dismissal of his bankruptcy case but did not include a transcript of the proceedings below, as required by Bankrutptcy Rule 8006. The district court dismissed the appeal, without considering the merits, pursuant to Bankruptcy Rule 8001 because of the debtor's failure to include the transcript. The debtor appealed to the Second Circuit.

The Second Circuit adopted a flexible approach to Rule 8001 and declined to adopt any fixed rules about what district court must do in the Rule 8001 context and held that a court should exercise its discretion given the factual circumstances of a particular case. The Court stated that district courts should consider whether a lesser sanction (other than dismissal) might be appropriate, whether counsel's behavior evinces bad faith or a pattern of negligence, whether any party has suffered prejudice as a result of the attorney's conduct and whether the litigant should be granted the opportunity to rectify the problem.

In this case, the debtor, who acted pro se (but who was a bankruptcy lawyer), believed the transcript was not necessary because it contained only argument, not testimony. The Court found that dismissing the case had been an abuse of discretion. The Court noted that the district court did not give the debtor an opportunity to rectify the error. The Court was also concerned that serious questions on the merits, which might have been resolved in the debtor's favor, had been left unresolved.

The Court vacated the judgment of the district court and remanded the case for proceedings not inconsistent with its decision. The decision in In re Harris can be found here.

New blogger. Well, with the graduation of Heidi Bond from law school and the blogosphere (at least temporarily, while she's clerking for Judge Kozinski), I have decided to adopt a new 1L blog. My new adoptee is Law Mommy of Law and Mommyhood. Check it out. I'm sure you'll like it.

Apprentice Finalist. I don't know if you watched the Fifth Season of The Apprentice, Donald Trump's show, but one of the final four was an appellate attorney, Roxanne. So I decided to see what she's up to. According to The Apprentice website, she worked for Winstead Sechrest & Minick, P.C., a Texas firm. But she doesn't seem to be working there anymore because there is nobody named Roxanne in their appellate department. A little more poking around on the internet reveals that she has set up a consulting firm (and her full name is Roxanne Wilson). But the website doesn't reveal what the firm does, and it seems to indicate that she's still practicing law. I enjoyed watching her and rooting for her on The Apprentice, and I hope she does well -- in appellate litigation. Just for the record, she is a graduate of the University of Michigan Law School and clerked for two Texas Supreme Court justices. (University of Michigan? I wonder if she knows Heidi Bond.)

Where are the women? This post is not about the Second Circuit. It's about Supreme Court clerks. For the first time since 1994, the number of women clerking for Supreme Court Justices is in the single digits. What gives?

Attorney's Lien. Cassie Sutton retained Leeds Morelli & Brown ("LMB") to represent her in a discrimination action against her former employer. Her retainer agreement with LMB provided that she would pay a $5,000 retainer upon signing the agreement and two additional payment of $2,500. LMB would be entitled to 40% of any settlement, less all retainer payments, or 40% of a damage award after trail, without deduction for retainer payments. Sutton paid $5,000 plus one $2,500 payment. LMD filed a Title VII action against her employer. The parties reached a settlement where Sutton would be paid $15,000, but the agreement was not executed. Sutton told LMB that she would not sign because she was uncomfortable with having LMB represent her.

LMB wrote to the Chief Magistrate Judge, informing her that it wished to be removed as counsel after Sutton raised questions with the firm regarding a news story implicating it in possible unfair settlements in other cases. The Magistrate Judge relieved the firm as counsel. LMB than applied to the Magistrate Judge for a charging lien in the amount of $37,879.18 (less the $7,500 retainer payments) on Sutton's file. It also asked for an immediate payment of $544.54 in expenses. Sutton opposed the application and sought return of the payments that she had made.

The Magistrate Judge denied Sutton's request for return of the payments, granted LMB's request for its expenses and granted an attorney's lein in the amount of $10,490.50. Sutton sent a letter to Judge Gerson objecting to the Magistrate Judge's order. Judge Gerson treated the letter as an appeal from the order, and affirmed the order. While these proceedings were ongoing, Sutton filed a notice of appeal.

The Second Circuit found that it had appellate jurisdiction. The notice appeal was either a timely notice of appeal from the Magistrate Judge's judgment or was a premature notice of appeal from Judge Gerson's judgment, confirming the Magistrate Judge's judgment.

The Court noted that had Sutton accepted the settlement, LMB would have been provided to no additional payments (other than expenses) because 40% of $15,000 is less than the $7,500 it had already been paid. Hence, the Court held that LMB was entitled to its expenses, that Sutton was not entitled to a return of the funds she had already paid and vacated the charging lien.

The decision is Sutton v. New York City Transit Authority can be found here.

Appropriate Delegation. The International Emergency Economic Powers Act authorizes the President to regulate financial transactions with foreign countries or nationals in a time of security crisis and prescribes criminal penalties for violations of the president's regulations. Osmah Al Wahaidy pleaded guilty to transferring money to Iraq on three occasions in 1999 and 2000 in violation of the regulations enacted pursuant to the Act, but reserved his right to challenge the constitutionality of the Act. He moved to dismiss the indictment, which motion was motion was denied, and he appealed from the order denying the motion, claiming that the Act improperly elegated Congress's authority to define criminal offenses to the executive branch.

The Second Circut held that the delegation was not improper. The Court noted that only twice had a delegation of power been found unconstitutional, even in cases involving criminal offenses.

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

Discriminatory Transfer. An employee of the Westchester County Department of Social Services filed complaints against the County and DSS to the EEOC and the New York State Division of Human Rights, claiming that they had discriminated against him on the grounds of his age, race, gender and religion. He was transferred out of his job to another position. Although the transfer did not affect his job title, job grade, salary, benefits or hours of work, he had been stipped of his prior responsibilities, which were replaced by menial tasks. The employee brought a retailiation claim. The district court granted the County's motion for summary judgment, holding that the employee had not shown sufficient evidence that he had suffered an adverse employment action.

The Second Circuit reversed, holding that there was genuine triable issue of fact as to whether the employee's reassignment dould well have dissuaded a reasonable employee in his position from complaining of unlawful discrimination. The case was remanded to the district court for further proceedings.

The decision in Kessler v. Westchester County Department of Social Services can be found here.

250th Column. Those Second Circuit groupies are certainly familiar with the regular column of my former colleagues and friends, Martin Flumenbaum and Brad Karp (both partners at Paul Weiss Rifking Wharton & Garrison LLP) on the Second Circuit. Today's New York Law Journal, features their 250th column, which deals with the evolution of the Second Circuit over the past two decades. Congratulations, guys. Keep on writing them!

Credibility Findings Arbitrary. While an appellate court rarely overturns credibility findings in Zhu v. Gonzalez it did so. The Immigration Judge found an alien seeking asylum was not credible because her testimony was contradicted by a statement made by her husband, which itself was contradicted by another, neither of which were subject to cross-examination. The Board of Immigration Appeals affirmed the Immigration Judge's opinion. The Court, in vacating and remanding, the decision, sould not understand "from the record, why the [immigration judge] would conlcude that, on the one hand, [the husband, who had come to the United States earlier] had 'no reason to lie or make up a claim' and that his asylum application was therefore reliable but that, on the other hand, [the wife, the petitioner in this case] was fabricating her version."

The decision can be found here.