Student's First Amendment rights. The Second Circuit upheld a denial of an injunction to void the election of a Seniro Class Secretary and ordering the school to have a new election in which the plaintiff's daughter would be allowed to participate. The daughter had been disqualifed from the election because she posted a vulfar and misleading message about the supposed cancellation of an upcoming school event on an independently-operated, publicly accessible blog. The District Court held that the plaintiff was unlikely to prevail on the merits. The Second Circuit affirmed, stating that the student's blog post created a foreseeable risk of substantial disruption at the the school. The Court held that the, under the circumstances of the case, warratned the disciplinary action imposed and the fact that the student's statement on the blog did not take place on school grounds was irrelevant because the statement was likely to create a disruption. All this about a school concert.

Much ado about nothing.

The decision in Doninger v. Niehoff can be found here.

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.