Off topic. I was in my local Barnes & Noble yesterday and picked up a copy of Richard Kluger's Simple Justice, which has been reissued in a nice trade paperback. The book is a fascinating study of Brown v. Board, probably the best history of a famous case that I have ever read (and I've read a lot of them). This new edition was released to coincide with the 50th anniversary of the case, and contains some new material. Highly recommended.

Well, the Second Circuit has started issuing full opinions again. Yesterday, the Court rendered a decision in Gold v. Deutsche Aktiengesellschaft. In that case, Gold, a homosexual man, broght an action in which he alleged sexual harassment against his employer. Gold, however, had signed a Form U-2, which mandated arbitration of all claims. Gold asserted that such claims were not subject to arbitration, citing cases from the Ninth Circuit and Massachusetts. The District Court sent the case to arbitration, where, after 30 sessions, the arbitration panel found for the defendants and dismissed the claims. Gold went back to Court, continuing to assert that his claims should be heard in Court. The District Court disagreed and dismissed his action. The Second Circuit affirmed. First, it held that sexual harassment claims were subject to arbitration based on prior precedent in the Circuit. It did not find special circumstances warranting invalidating the arbitraion clause. Gold had not read the Form U-4 carefully nor did he question it. That was his responsibility. The case can be found at the Second Circuit website. It was decided on April 21, 2004.

I'm mortified by my failure to post for a while, but it's not my fault. The Second Circuit hasn't issued a full opinion since April 14, if I'm not mistaken. The most recent rash of cases was on April 15, and they were all summary decisions. Don't worry, folks, once the Second Circuit starts cranking out the decisions again, you'll read about it here.

In United States v. Nucci, the Second Circuit considered an issue of first impression in the Circuit -- whether it was improper to order a number of defendants to pay restitution to a victim, where the cumulative effect of the orders would be that the victim would receive a windfall. Nucci argued that the Court should have apportioned the restitution among the defendants, rather than ordering each to pay the full amount, or limited the total amount that the victim could receive. The Court stated that is was within the District Court's discretion to apportion the restitution under the statute, and that any restitution obligation may be ordered to be joint and several. The Court noted that nothing in the statute precluded double recovery by a victim in the criminal context, nor does it expressly state that the defendant's restitution obligation ceases upon the victim having been made whole by receipt of restitution payments from other co-defendants. The Second Circuit, however, joined the Seventh and Ninth Circuits in holding that the statutes, although they do not explicitly say so, bar the recovery by the victim of any sum above his or her actual loss. The Court stated that to hold otherwise would be in derogation of the common law. The Court was unwilling to allow for such a windfall in the absence of clear and unequivocal language from Congress. The decision can be found on the Second Circuit website. It was decided on April 14, 2004.

In a case where Judge Calabresi concurs with himself (it's true; I couldn't make that up), the Second Circuit has held that the provisions of the Antiterrorism and Effective Death Penalty Act, which took away from the petitioner, who was being deported after serving a term of incarceration on a drug offense, the right to seek discretionary relief from the Attorney General, could not be applied retroactively in this case. The petitioner could have sought such relief at the time of his arrest, but chose to wait to a later time, expecting that he would have a stronger case after he had a record of rehabilitation after serving his sentence. Hence, his settled expectations were frustrated when the new legislation took away such rights. Since the Act did not clearly state that it was to be retroactive, the Court held that it could only be applied retroactively if it did not frustrate settled expectation. The Court noted that the district court, which had granted habeas relief to the petitioner on the ground that the Act could not be applied to criminal conduct that preceded the passage of the Act was wrong. It remanded the case to the District Court to determine whether the petitioner could make an individualized showing that he had relied on his right to make an application for discretionary relief at a later time in waiving his right to do so at an earlier time. As noted, Judge Calabresi wrote the decision and issued a concurring opinion, in which the other panel members did not join, which provides "an explanation of the current state of the law in this complicated area, and how it relates to [this] case." The decision in Restrepo v. McElroy can be found here. Unfortunately, I cannot get a direct link to the concurring opinion, but it can be found at the Second Circuit site.

The question of whether the Probation Department's monitoring of a convicted pornographer's computer violates the Fourth Amendment arose in United States v. Lifshitz, a case decided by the Second Circuit on March 30, 2004. The case, authored by Judge Katzmann, was one of first impression in that the Second Circuit had "never evaluated the conformity of special conditions of probation or supervised release with the Fourth Amendment." The Court noted that, under Supreme Court precedent, to allow a special needs search in the absence of probable cause or a warrant, (1) the government must allege a special need, (2) there must be a diminished expectation of privacy and (3) the search must seek a minimum of intrusiveness coupled with maximum effectiveness so that the searches bear a close and substantial relationship to the government's special needs. The Court remanded the case to the district court to evaluate the privacy implications of the proposed computer monitoring techniques as well as their efficacy as compared with computer filtering, and then to impose a condition. The decision can be found here. Stay tuned for future developments.

The Second Circuit has upheld the streamlined review procedures of the Board of Immigration Appeals in Zhang v. United States Department of Justice. Zhang sought political asylum, claiming that he had left China to escape prosecution for violating China's oppressive birth control policies. After a hearing, the Immigration Judge denied Zhang's application because he did not find Zhang to be credible. Zhang appealed to the BIA, which using the new streamlined review procedures, affirmed the Immigration Judge without an opinion. Zhang appealed to the Second Circuit, arguing that the BIA, by having a single Board member summarily affirm the decision of the Immigration Judge, abused its discretion and denied him due process. The Second Circuit noted that similar arguments had been made before the First, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits and had been rejected in each of them. The Court noted that appellate review of agency decisions is a statutory, not Constitutional, right. Because nothing in the immigration laws requires review by a three-member panel, the BIA was free to set up its own procedures. Also, a petitioner could still go to the Court of Appeals to further argue his or her case. Although the summary affirmance of the BIA would not meet the standards of a reasoned decision, the decision of the Immigration Judge would provide such a decision. In sum, Zhang got all the process he was entitled to -- a hearing, a reasoned decision, review by the BIA and the right of relief from the Courts. The decision was rendered on March 24, 2004 and can be found on the Second Circuit website.

Do you know how hard it is to get an appellate court to grant rehearing? Well, take it from someone who's done that, it ain't easy. Well, the United States government got rehearing, and they still managed to lose. (I've done that, too, but that's a story for another day.) In United States v. Lauersen, the defendant, convicted of health care fraud, was sentenced to 87 months, the minimum of the applicable sentencing range. On the original appeal, the Second Circuit agreed with the government that the District Court had erred in ont increasing the adjusted offense level by an additional 4 levels because the offense derived more that $1,000,000 in gross receipts from the offense. This enhancement would increase the minimum sentence by four years. The Second Circuit ruled that the additional enhancement created a new circumstance that might justify a downward departure. The new enhancement overlapped with another 13 level enhancer (amount of loss) and, hence presented a circumstance that is present to a degree not adequately considered by the Sentencing Commission. It, therefore, permitted the District Court to exercise its discretion to mitigate the effect of the enhancement by making a downward departure. The Government moved for rehearing on the issue of the possible downward departure. Since the issue was not briefed, the Court granted rehearing and held to its original ruling. The Court held that "when the addition of substantially overlapping enhancements results in a significant increase in the sentencing range minimum . . . , a departure may be considered." Its not such a bad loss for the government. The good doctor will be out of circulation for more than seven years. Not a bad day's work. The decision can be found at the Second Circuit site.

Since the Second Circuit has been issuing nothing but summary opinions for the past few days and I haven't found anything of real interest going back the past few weeks, I'm going off topic a bit, and talk about legal blogs (I've never warmed up to the term "blawg" for some reason) that I like. I'm not one of those lawyers who checks 50 blogs a day. I'm much more selective than that.
Of course, the legal blog god is Howard Bashman. I can't understand how Howard makes a living, considering the time he puts into his blog, How Appealing, which purports to involve appellate law, but basically tells you everything you want to know about what's going on in the legal world. Practically the first thing I do every morning is check out his blog, and there's always something of interest.
I also check out C.E. Petit's Scrivener's Error blog. It covers publishing law, but often goes afield to other areas. I'm not actively involved in that area of law, but Charlie is a friend of mine and I find his insights fascinating, even if I don't always agree with him.
The blogosphere is lousy with law student bloggers. I find most of them pretentious and unworthy of my time, but Heidi Bond's Letters of Marque blog is worth reading for its sheer wackiness.

On March 3, 2004, the Second Circuit, in Fickling v. Flower, Medalie & Markowitz, Esqs. (In re Fickling), held that attorneys' fees earned prior to the conversion of a debtor's bankruptcy case from a Chapter 11 to a Chapter 7 are dischargeable. The appellant in this case was a law firm that had represented the debtor in the Chapter 11 phase of the bankruptcy, but which withdrew prior to the conversion of the case to a Chapter 7. The Bankruptcy Court discharged the debtor from paying the attorneys' fees, and the District Court affirmed. Although the statutory language classified debts arising before the conversion as pre-petition debts, which are dischargeable, the law firm argued that (1) its fees were an administrative expense, and,hence not dischargeable, and (2) to treat the debt as dischargeable would ignore the implications of 11 U.S.C. 329, which gives the bankruptcy court the power to reveiw claims for attorneys fees. As to the first argument, the Second Circuit held that the statute gives an administrative claim a priority in payment, but has no effect on discharge. Absent a statutory exception, such claims may be discharged. As to the second argument, the Second Circuit noted that section 329 applied to post-petition attorney fee claims, which were not dischargeable. Hence, the statute was not superfluous. It just did not apply to this case. The law firm also sought to be paid on the basis of fraud by the debtor. It claims that it had not filed interim fee applications based on false assurances by the debtor that it would be paid out of the proceeds of a condemnation proceeding. The Court rejected this request because the law firm had not sought revocation of the discharge within a year, as required by the statute. (I'm having trouble getting a direct link to the case. You can find it at the Second Circuit site.)

The Second Circuit has determined, in a 26-page opinion, that the Government of Russia is a political organ of the Russian Federation. That issue was crucial to a resolution of a foreign lender's attempt to enforce a Swedish arbitration award against the Russian Federation. The Federation, among other things, claimed that it was not a party to the arbitration, and, accordingly, the lender could not enforce the award against it. The decision in Compagnie Noga D'Importation et D'Exportation S.A. v. The Russian Federation can be found here. Judge Dennis Jacobs concurred in the case, agreeing with certain parts of the majority decision, and setting out his own reasoning on those points where he differed with the majority. His concurrence can be found here. The lender's collection troubles are not yet over. The Court remanded the case to the district court to determine (1) whether the lender's assignments of its arbitral proceeds to certain of its creditors deprived it of standing to seek confirmation of the arbitral award and (2) whether the creditors to whom the lender assigned the arbirtation proceeds must be joined as necessary parties. Stay tuned for further developments.

Before we get to the Court, a little bit more about me. (It's always about me.) I work for the law firm of Cox Padmore Skolnik & Shakarchy LLP. As far as litigation is concerned, we have a general commercial practice though we dabble in other areas, and I am getting involved in special education law. I just got back from what I call special ed boot camp (but others call the COPAA conference) where I learned a great deal about an area of law of which I previously had little knowledge. I joined COPAA's amicus brief committee, so I hope to be merging my interest in appellate advocacy with this new practice area.

You don't know me. This is my first post and my first blog. My name is Sandy Hausler, and I am a New York attorney. Don't hold that against me. Although I would like to say that I practice solely in the appellate courts, that is not true. I practice in every court in New York State, from top to bottom, but my one true love is appellate advocacy. My book shelf is full of books on appellate practice, including Stern, Gressman, Shapiro & Geller, Supreme Court Practice (8th edition), Garner, The Winning Brief and oddities like Weiner, Briefing and Arguing Federal Appeals (it took me years to find a copy of that -- it has just come back into print). Since, I am an appellate geek, I decided to do a blog about my home Circuit, the Second Circuit. I may occasionally talk about other local appellate courts, especially if I am involved in the case, or even other circuits and the Supreme Court, but ordinarily I will be telling you about what's happening in the Second Circuit. I hope you enjoy it. Come back soon and tell all your friends about this blog.