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.