No chill. The Second Circuit has held that a public employee alleging retaliation for having exercised his or her First Amendment rights is not normally required to show that the State's conduct had an actual chilling effect. Morrison v. Johnson can be found here.

Argumentative summations. Samuel Yakobowicz was convicted on four counts of filing false federal excise tax returns on behalf of his company and one count of attempting to impede the administration of internal revenue laws. The district court allwed the parties to make short statements to the jury at the conclusion of every witness. Yakobowicz objected to this procedure on the ground that it was not authorized by the Federal Rule of Criminal Procedure. The government used its "interim summations" to argue and reargue its theory of the case to the jury.

The Second Circuit held that, in the context of criminal proceedings, such interim argumentative summations favored the prosecution, constituting structural error that warranted reversal.

Judge Sotomayer dissented, stating that while the District Court erred by allowing such interim summations, such error was not structural, but was were trial error, subject to harmless error analysis. She felt that the error was harmless.

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

No recusal. Five years ago, Judge Winter, right before he took senior status, had a conversation with the member of a law firm about whether he would continue to serve on the bench or take senior status. The lawyer told Judge Winter that if he chose to leave the bench, his firm would be interested in discussing the possibility of employing him at his firm. Judge Winter chose to continue on the bench as a senior judge. There were no further conversations on the matter. Now, one of the firms (I suspect that it is Mayer, Brown, Rowe & Maw L.L.P., but I could be wrong.) is appearing in a case before Judge Winter. He has stated that he does not think this conversation five years ago warrants recusal. No kidding.

The decision in In re CBI Holding Co. (Bankruptcy Services, Inc. v. Ernst & Young) can be found at the Second Circuit website. If I find a better site, I will post it.

Congratulations. I know that it's off-topic, but I want to congratulate fellow-blogger Heidi Bond of Letters of Marque, who has just disclosed on her blog that she will be clerking for the Honorable Alex Kozinski of the Ninth Circuit. True, it's not as good as the Second Circuit, but it's still pretty good.

Hague Protocol of 1955. The dispute was simple. A shipper was seeking to recover from an air carrier for loss of goods transported by international air freight. The legal issue, however, turned on something more esoteric -- whether the United States was a party to the Hague Protocol of 1955, which amended tthe Warsaw Convention of 1929. The Warsaw Convention is a multilaateral treaty that regulates, among other things, the liability for international air carriers. The District Court had held that United States has acceded to the Hague Protocol when it ratified Montreal Protocol No. 4 in 1998, but the Second Circuit held that the United States did not become a party to the Hague Protocol until after the Senate consented to the Protocol's ratification on July 31, 2003. The case was remanded to the District Court for further proceedings. The decision in Avero Belgium Insurance v. American Airlines, Inc. can be found on the Second Circuit website. When I get a more direct URL, I will post it.

Motion for costs after remand. A plaintiff sought sanctions and attorneys' fees because a case he had commenced had been improperly removed to federal court. The defendants had agreed to stipulate to remand, but the plaintiff refused to so stipulate. The plaintiff's initial motion to remand had been granted, but its motion for fees and sanctions was denied. The Second Circuit on appeal from the district court's order on fees and sanctions, affirmed the decision of the district court, but made clear that the district court had had jurisdiction to hear the motion. The decision in Bryant v. Britt can be found here.

Late appeal. The Board of Immigration Appeals dismissed an appeal as untimely. The petitioner had sent his notice of appeal by overnight delivery (as recommended by the BIA), but it was not delivered for five days. Had it been delivered on time, it would have been timely. The Second Circuit held that these facts might constitute the "unique and extraordinary circumstances" that would allow the BIA to consider the appeal although it was technically late. The Court vacated the BIA opinion and remanded the case for further proceedings. The decision in Sun v. United States Department of Justice can be found here.

What's the amount. The Second Circuit reversed the denial of a defendant's presentencing motion to withdraw his guilty plea on a criminal drug charge brought under 21 U.S.C. 841(b)(1)(A), which charge requires a finding of a specific quantity of crack. The defendant had not admitted to the quantity of crack involved in the offense. The decision by the Second Circuit in United States v. Gonzalez can be found here.

Non-argument calendar. Commencing October 3, 2005, the Second Circuit will institute a Non-Arguement calendar for all INS cases, involving the denial of an asylum claim. For more information on this procedure, check out the Second Circuit website.

No pretrial restraint. The Second Circuit has decided that 28 U.S.C. 2461(c), part of the Civil Asset Forfeiture Reform Act of 2000, does not authorized pretrial restraint of assets that the government claims are subject to criminal forfeiture. The decision in United States v. Razmilovic can be found here.

No 9/11 Insurance Money for Citigroup. The Second Circuit has affirmed the judgment of the District Court of the Southern District of New York that Citigroup was not entitled to insurance money paid to 7 World Trade Company, L.P. for Citigroup's permanent but removable property at 7 World Trade Center, where Citigroup had rented space. The Court held that because Citigroup's property was explicitly excluded from coverage, it was entitled to no money from the insurance proceeds. The decision (very short) in Citigroup, Inc. v. Industrial Risk Insurers can be found here.

Local call. All it takes is a local telephone call to meet the requirement of a connection to interstate commerce to support a federal conviction. The statute at issue, 18 U.S.C. 1958, requires the use of a facility in interstate commerce. The Second Circuit held that that phrase only means that the facility (which includes means of transportation and communication) is used -- at times -- in interstate commerce, not that the alleged criminal used it in interstate commerce. The circuits appear to be split on this issue. The decision in United States v. Perez can be found at here.

New blog. Well, OK, it's been around since December 2004, but it's new to me. I've just run across the Second Circuit blog, authored by a group of Federal Public Defenders in New York, New York. I haven't done an exhaustive look at the blog, but it seems to be oriented toward criminal law (understandably, given the identities of their authors). Welcome to the blogosphere, gang.

Parents. Under immigration law, someone subject to coercive family planning policies in his or her native land (or that person's spouse) may seek asylum in the United States. The Second Circuit has held that parents or parents-in-law of such persons are not entitled to seek asylum. The decision in Yuan v. United States Department of Justice can be found here.

Dickens. I usually don't report on criminal cases involving sentencing disputes, but being a big Charles Dickens fan, I could not go without providing you with a link to United States v. Brady, a case where Judge Cardamone starts off with a quote from A Tale of Two Cities. Unfortunately for Brady, the sentence she was given by the District Court, along with the giant downward departure, was remanded because the District Court's factual findings were insufficient to justify the departure. The decision can be found here. The worst of times, indeed! (Of course, further factfinding will be performed by the District Court, which may then warrant the departure, so you never know.)

Jury decides. A party who demands that a jury consider a claim for lost wages under Title VII will get a jury where the defendant fails to object. That's what the Second Circuit held in Broadnax v. City of New Haven, a case of first impression. A lost wages award is considered to be an equitable remedy, and equitable claims are generally not decided by juries. However, the Court found, agreeing with other circuits, that a failure to object is equivalent to consent under Rule 39(c) of the Federla Rules of Civil Procedure, which allows jury trials even in cases not triable of right by juries if both parties consent. The decision can be found here.

Amend that notice. If you file a notice of appeal from a judgment and the judgment is later amended after a post-trial motion, you had better file a new notice of appeal if you want to appeal from any of the amendments. The plaintiff in Sorensen v. City of New York learned that rule to her regret -- her appeal was dismissed. The decision in that case can be found here.

BTW, you've probably heard of this case. It's about the Danish woman who left her baby in a carriage in front of a restaurant while she was having lunch inside. Evidently, that's common in Denmark.

Circuit split. The Second Circuit has noted that "[t]here is a circuit split on the question of whether the actual use [of the telephone] by the defendant must be an interstate one" for such acts to be covered by 18 U.S.C. 1958. The District Court had answered that question in the negative, in accord with decisions of the Fifth and Seventh Circuits. The Sixth Circuit has taken the opposite view, as had two district courts in the Second Circuit. The Second Circuit agreed with the Fifth and Seventh Circuits.

In that the Sixth Circuit decision was limited to its facts by a later Sixth Circuit opinion, it is unlikely that this issue is likely to go up to the Supreme Court at this time.

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

Quattrone report. Frank Quattrone's appeal of his obstruction of justice conviction was argued in the Second Circuit. The New York Sun published this report of the argument.

Non-attorney Parent representing Minor Child. The Second Circuit, in Tindall v. Poultney High School District, has seemed to take a looser view on non-attorney parents representing their minor children. While, in this case, the Court did not allow the parent to represent the child, it gave more time for counsel to be retained. It also stated that "the rule that a parent may not represent her child should be applied gingerly." The decision does not set out the exact perameters of the rule, so I guess that is an issue for another day. Judge Kearse concurred in part and dissented in part. Her dissent went straight to the issue of non-attorney parents representing their children. She disagrees with the Court's less stringent view. The decision can be found here.

How odd! The Second Circuit has held that the destruction of trial exhibits, absent a showing of specific prejudice to an appellant's ability to perfect an appeal, does not warrant a new trial. That is not odd. The Second Circuit is in agreement with most other circuits on this point. What is odd that the two circuits that hold differently are the Fifth and the Eleventh Circuits, two fairly conservative circuits. Well, if the Fourth Circuit had joined them, I would have believed that the Messiah has come. To read the Second Circuit's opinion in United States v. Weisser, click here.

Supreme Court nominees. Everyone's talking about who's going to replace Chief Justice Rehnquist (or other aging justices). (It's not as bad as last year when the media decided that there Rehnquist and O'Connor were both quitting and neither did. Serves the media right!) In the past I had thought that a number of Second Circuit judges would be excellent choices. My top had been Senior Judge Jon Newman, although he's now in his 70s. I know Amalya Kearse was Judge Newman's choice -- he did an op ed piece suggesting her appointment during the Bush I presidency -- and she certainly would have been a credible pick and a fine justice. I also like Judge Jose A. Cabranes, although not being from the Federalist school, I doubt he'd even be considered, let alone considered seriously. If a Democrat were in office Guido Calabresi might have been chosen, although because of intemperate remarks about President Bush, his appointment would be fought by the Republicans. But actually, the best pick I could provide to President Bush, if he were inclined to pick a New Yorker, would not be on the Second Circuit, but on the New York State Court of Appeals. Judge Robert Smith would not only be a credit to the High Court, but has the Conservative credentials (Republican, Federalist Society) that he could actually be considered. Here's hoping President Bush looks beyond the short list that has been reported in the media.

Voting Rights of Felons. The Second Circuit, sitting en banc, has heard a case involving the voting rights of prisoners and felons on parole. New York law provides that such individuals are not eligible to vote, but the statute has been challenged under the Voting Rights Act on the ground that that qualification results in the denial to vote because of race. An article on the argument in Muntaqim v. Coombe can be found here. (You may need a password to access it. Sorry.) I will report on further developments.

Unfair settlement. The Government, in the course of criminal proceeding, entered into a settlement agreement with members of the Rigas family. Under the agreement, the Rigases would forfeit certain assets and all victims of their crimes would be discharged. Certain victims protested, claiming that the settlement would foreclose them from getting full restitution in ongoing civil actions, which they claim to be entitled to under the Crime Victims' Rights Act of 2004 ("CVRA"). The Second Circuit noted that, under the Manditory Victim Restitution Act ("MVRA"), victims are not entitled to restitution if there are too many victims or if the factual issues are so complex that determining the cause or the amount of a victim's loss would unduly prolong the sentencing process. In this case, both exceptions to required restitution under the MVRA, were applicable. Also, in light of the complex issues of culpability of the individuals and because of the security ineterest affecting the Rigases assets, the victims could not meet their burden in showing that the Government or the district court had acted unreasonabley in entering into the Settlement Agreeement or approving it. The decision in In re W. R. Huff Asset Management Co. can be found here.

"Excessive" Appeal -- Off Topic. This has nothing to do with the Second Circuit, but the Pennsylvania Superior Court's decision in Jones v. Jones may be of interest to appellate practitioners. The appellant (the wife in a divorce case) has raised 29 issues on appeal and listed them in narrative form in a statement required by Pennsylvania rules. The Court found that such a statement waived the issues on appeal and that the appeal was frivolous. The case was remanded for a hearing on counsel fees. The decision can be found here.

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.

Off-topic, but interesting. Justice Doris Ling-Cohan has issued an order, holding that a provision of New York law, forbidding same-sex marriage is unconstitutional under the New York constitution, although the effect of the order is stayed for 30 days so that New York City can appeal, which it will. A copy of the decision can be found here. It's not about the Second Circuit, but it's darn interesting. (And it's 62 pages!)

No appeal from a magistrate judge's order. Mathew J. Harrison pleaded guilty of conspiring to distribut marajuana. After the plea, the district judge assigned him counsel and released him on $5,000 bond with certain conditions of release. Harrison broke these conditions on several occasions. Because of these violations, the magistrate judge revoked his bail. Harrison made three separate motions for reconsideration to the magistrate judge, which were denied. Harrison filed a notice of appeal from the magistrate judge's detention order. The Court noted that a magistrate judge's ruling on bail is not final and cannot be appealed to the Court of Appeals because it is subject to review by the district court. Hence, the Second Circuit lacked jurisdiction to hear the case and dismissed the appeal. The case in United States v. Harrison can be found here. What surprises me is that Harrison's attorney did not seem to know that he should have seen review from the district court first.

New rule. The Second Circuit is putting out a new rule requiring the filing of briefs in PDF form. For more information on the proposed rule, which will not be effective until after a public comment period, click here.

Rescission Statute. An insured brought an action against its insurer, challenging the latter's rescission of her disability insurance policy within the six-year limitations period. The District Court dismissed the case based on a provision that provided that an insured could only bring an acton within three years on legal challenged to denied proofs of claim. The Second Circuit held that this provision had no applicability in this case. Terry v. Unum Life Insurance Co. can be found here.

Habitual residence. When one parent kidnaps a child from one country to another, the non-kidnapping party can get the child back to the child's "habitual residence" to decide all child custody issues by invoking the Hague Convention on the Civil Aspects of International Child Abduction, providing the relevant countries are parties to the treaty. In order to invoke the treaty, it must be shown the location of the habitual residence of the child. This term is not decided in the treaty, and in Gitter v. Gitter, the Second Circuit provided the factors that must be considered in making such a decision. First, the intent of the parents must be considered. However, that is not dispositive. The Court must also look to evidence that unequivocally points to the child having acclimatized to another country. The District Court had decided that the United States, not Israel was the habitual residence of the child based on the first factor, but did not consider the second factor. Based on that, the Second Circuit remanded the case for reconsideration by the District Court. The decision can be found here.

Correction. A few days ago, I noted that the On Appeal blog was the same as the Appellate Law and Practice blog. I got two e-mails informing me that I was wrong. The Appellate Law and Practice blog can be found here. It's nice to know that someone is reading.

Crawford Not retroactive. The New York Law Journal has written an article on the retoractivity of the Crawford case. The article can be found here (and I don't think you have to be a subscriber).

New blog. Check out John Derrick's new blog on appellate practice, On Appeal. You can find it here. Enjoy it!

UPDATE: I see that it is actually an update of the Appellate Law and Practice blog that has been listed for a few months on my bloglist and has moved off of blogspot. I'll make the change on my bloglist. You can still enjoy it.

Breach of Duty of Good Faith and Fair Dealing -- Not enough. Sterling National Bank breached its duty of good faith and fair dealing to National Market Share, Inc. by failing to honor approximately $800,000 in payroll checks. However, it was National Market's Share's faithless principal who had caused the company to go out of business. Hence, the bank was only ordered to pay nominal damages of $1. The Second Circuit affirmed. The decision in National Market Share, Inc. v. Sterling National Bank can be found here.

Forfeiture. Barbara Pacheco purchased certain real property that the government was trying to forfeit from a criminal defendant. Pacheco knew about this in that a notice of pendency was filed long before she bought it. However, because the criminal defendant's wife had an interest in the property, Pacheco's purchase may be valid as to her purchase of the wife's interest -- or, at least, the Second Circuit, on its appeal from a motion to dismiss, did not find otherwise. The decision in United States v. Serendensky can be found here.

Split. The Second and the Seventh Circuits are split over the degree to which a felony law on company disclosures shields them from shareholder suits. There is an article on this in today's New York Law Jouranal on this issue. This may not be available to non-subscribers. Sorry.

New en banc case. Here is the order of the Second Circuit relating to the new en banc case, Muntaqim v. Coombe. Oral argument will be heard on April 7, 2005. For anyone interested in the original opinion, see here.

Definition of "Wilful" Under the Family and Medical Leave Act of 1993. The Second Circuit, in accordance with a decision of the First Circuit, has held that the definition of "wilful" under the Fair Labor Standards Act should be used under the Family and Medical Leave Act of 1993 as well. The Supreme Court has held that an employer acts willfully under the Fair Labor Standards Act when he or she "knew or showed reckless disregard for the matter of whether it sondcut was prohibited by the [FLSA]." "If an employer acts reasonably in determining its legal obligation, its action cannot be deemed willful . . . . If an employer acts unreasonably, but not recklessly, in determinining its legal obligation, then . . . it should not be . . . considered [willful.]"
Under the context of the Family and Medical Leave Act, this issue is pertinent to the extent of a statute of limitation. The case in Carlton v. New York University School of Law can be found here.

Certified Question. The Second Circuit has certified the following questions to the Supreme Court of Connecticut:

What is the correct interpretation of "chronic" disabilities under the Connecticut Fair Employment Practices Act (the "Act")?

At what point, in relation to the act of discrimination complained of, must a disability qualify as "chronic" to support recovery under the Act?

If the Act applies only to disabilities that are "chronic" at the timie of the alleged act of discrimination, is evidence of the progression of an illness or injury after the alleged act of discrimination probative of whether that disability was in fact "chronic" when the alleged act of discrimination occurred?

The case involved a worker who was laid off and claimed that he was the victim of discrimination under the Act and the Americans with Disabilities Act.

The decision in Caruso v. Siemens Business Communication Systems, Inc. can be found here.

Deadbeat Mom. Joanne Venturella, divorced from James Ferretti, who was awarded custody of the couple's two children, was ordered to pay child support in the amount of $450 every two weeks. She refused to do so. To prevent her pay from being garnished, she left her job and moved to Florida, where she worked as a tutor at a private school.

But her day of reckoning came. She was indicted, under 19 U.S.C. 228, which provides that a person who owes over $10,000 in child support obligations with respect to children who reside in another state. The primary issue at trial was whether Venturella "resided" in Florida. She claimed that the definition of "residence" should be the same as "domicile," which would require a showing that she intended to permanently live in Florida with no intent of returning to New York. The Government claimed that "residence" should be defined as her principal, actual dwelling place, which, it contended, was Florida.

The District Court adopted the Government's position over Venturella's objection. She was found guilty and was sentenced to 15 months' imprisonment, followed by one year of supervised release and a special assessment of $100 and ordered restitution of $59,073.06.

Venturella appealed, and the Second Circuit affirmed. It held that to require an intent to remain as part of the definition of "resides" could lead to absurd results. It also noted that such a definition was at odds with the focus of the statute -- to offer federal criminal penalties against parents who willfully fail to honor their child support obligation and live in another state.

The Second Circuit rejected her position that the legislative history supported the position that residence within the meaning of the statute meant domicile. On the contrary, it held that the legislative history supported the Government's position.

The Court also rejected Venturella's arguments that the District Court's failure to hold the statute unconstitutionally vague and that the District Court's failure to instruct the jury on a dual residence defense were plain error. (Neither issue was raised before the District Court.) Finally, it dismissed the appeal as to her ineffectiveness of counsel claim in that its regular practice was not to hear such arguments on direct appeal.

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

No New Life to Barred Claims. The question in In re Enterprise Mortgage Acceptance Co., LLC Securities Litigation (really three unconsolidated appeals heard together) is whether section 804 of the Sarbanes-Oxley Act revived previously expired securities claims. The Second Circuit has held that previously time barred claims are not revived pursuant to that section.

In each of the cases, the plaintiffs had initiated actions for securites fradu prior to the passage of the Act. Then, after the Act was enacted, one plaintiff added additional claims and another added an additional defendant, trying to take advantage of the Act's extended statute of limitations.

The Court noted that normally statutes are not given retroactive effect. If the statute does not clearly provide that Congress intended it to be applied retroactively, then the statute will not be given retroactive effect if giving such retroactive effect would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.

The Court concluded that Congress did not clearly give the statute retroactive effect. Further, the Court held that reviving time-barred claims has an impermissible retroactive effect by stripping defendants of an affirmative defense.

The decision can be found here.

Statutory Interpretation Saves the Day! An 18-year old was about to be sent up the river for 10 years advertising to distribute or receive child pornography, but the Second Circuit, through a tour-de-force of statutory interpretation vacated the sentence and remanded to the District Court. You can read the decision in United States v. Pabon-Cruz here.

Rule changes. Several Second Circuit Local Rules have been amended. See here for details.

Pro bono. Here is the Second Circuit's Plan for the Appointment of Pro Bono Counsel.

New Rule is not Retroactive. The rule set out in Blakely v. Washington is not a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court. That finding was the death knell for Freddy Carmona's motion to file a second habeas corpus petition based on Blakely. The decision in Carmona v. United States can be found here.

For those of you who do not know what Blakely is about, where the heck have you been. Read the opinion, or better yet, read the blog.

Moist is Not Wet. The Second Circuit held that Georgia Pacific Corporation's product, "Quilted Northern Moist-Ones" pre-moistened towelettes did not infringe on Playtex Products, Inc.'s "Wet Ones" brand. The decision in Playtex Products, Inc. v. Georgia Pacific Corporation can be found here.

Senior Circuit Judge Ellsworth Van Graafeiland died. The Judge, who was 89 years old, died on Saturday. He was appointed to the bench in 1974. For more information, click here. (Thanks to Howard Bashman of How Appealing for the pointer.)

Voter Enrollment Scheme Enjoined. New York law provides that if a party does not get at least 50,000 votes for its gubernatorial candidate in the previous election, the party is removed from the voter registration forms and voters registered as members of such parties become non-enrolled voters. As a recognized party has certain benefits as a result of that status. For instance, a party may choose their statewide candidate in a closed primary electin, while an independent organization may not. A number of small political parties challenged the law and obtained a preliminary injunction. The Board of Elections appealed.

The Second Circuit affirmed the grant of the injunction. It upheld the District Court's finding that the law would damage the minor parties ability to identify, appeal to, inform, organize, mobilize and raise money from its supporters." It also held that the State's interest in upholding the statute did not outweigh the plaintiff's interests.

The decision in Green Party of New York State v. New York State Board of Elections can be found here.

Harmless Error? The Kings County DA obtained the conviction of Guy Zappulla with the use of a confession taken in violation of Zappulla's Miranda rights. The Appellate Division, Second Department affirmed his conviction, holding that the use of the tainted confession was harmless error. The District Court denied Zappulla's petition for a writ of habeas corpus. But the Second Circuit reversed and remanded, holding that the Appellate Division applied the harmless error review in an objectively unreasonable manner and that the admission of the confession required the Court to vacate the conviction.

The factors relevant to a harmless error determination as to improperly admitted evidence, based on Supreme Court precedent, are:

the overall strength of the prosecutor's case;

the prosecutor's conduct with respect ot the improperly admitted evidence;

the importance of the wrongfully admitted testimony; and

whether such evidence was cumulative of other properly admitted evidence.

Based on these factors, the Second Circuit held that the admission of the confession was not harmless error.

The decision in Zappulla v. People can be found here.

Outside the record. The Second Circuit affirmed the decision of the District Court in which the Court, after a three-day bench trial, determined that the plaintiff was entitled to disablity benefits. The defendant insurance company had argued that the District Court had erred in considering material outside the administrative record in reaching its decision. The administrator in this case was the very insurance company that had denied the claim.

The Second Circuit held that such a conflict, in and of itself, did not per se constitute good cause to consider evidence outside of the administrative record. Such a rule would allow a plaintiff to add evidence to the record in almost every case because the administrator of the benefits plan is always linked to the insurer. However, in this case, there were no written procedures for claims review, and the Court held that the lack of such procedures exacerbated the conflict, rendering it proper for the District Court to have considered the new evidence.

The Court then looked to the evidence and held that it was sufficient to justify the District Court's finding. The Court also upheld the District Court's award of attorneys' fees.

The decision in Locher v. Unum Life Insurance Co. can be found here.

Update on Second Circuit News. It's not much of an update, but I called the Second Circuit library and asked what the problem was with the Second Circuit News blog. I was told that it had been taken down. The person I spoke to wasn't sure if it was going to be coming back up. He just said that there were some "issues" with it. If I hear anything further, I will let you know. And if any of you find out anything, let me know -- shausler at gmail.com.

Second Circuit New -- AWOL. With some trepidation, I note that Second Circuit News has not been accessible for the past few days. It would be a shame if this valuable cite were to disappear into the blogosphere. I will keep my readers posted if I hear anything (and I would appreciate it, if you know anything about the blog's disappearance, please keep me informed -- shausler at gmail.com)

The Railroad is Sovereign. The plaintiffs in Abrams v. Societe Nationale des Chemins de Fer Francais were Holocaust survivors, who brought an action against the railroad company that transported tens of thousands of French civilians to Nazi death camps. The District Court dismissed the case for lack of subject matter jurisdiction because the railroad had been nationalized and was an instrumentality of the French government and, hence, protected from suit by the Foreign Sovereign Immunity Act.

The Second Circuit had vacated the order and remanded for further proceedings on the issue of what the State Department's position during World War II on the significance of the corporate form in foreign sovereign immunity determinations and whether the State Department would have recognized imunity in a case like this.

The defendants sought review from the Supreme Court, which granted certiorai, vacated the Second Circuit decision and remanded for further consideration in light of the Court's decision in Republic of Austria v. Altmann.

Upon remand, the Court affirmed the decision of the District Court. The Court held that Altman held that the Foreign Sovereign Immunity Act could be applied retroactively and that the State Department's views were irrelevant. Hence, the District Court lacked jurisdiction to hear the case and had correctly dismissed it.

The decision can be found here.

I've always wondered why cases like this were not barred by the statute of limitations. Anyone who can enlighten me is invited to e-mail me with the information -- shausler at gmail.com.

Legal Malpractice and the Arbitrator's Affidavit. Mason, Ketterman & Cawood had an interesting idea. When sued for malpractice relating to its representation of a woman in a Dalkon Shield-related arbitration, it got the arbitrator to provide an affidavit to the effect that none of their alleged mistakes would have changed the decision. The District Court granted summary judgment to the firm on the ground that, even if the firm had been negligent in its representation, the negligence was not the proximate cause of the injury, the loss before the arbitrator.

The Second Circuit held that the arbitrator's affidavit was inadmissible and its use in the summary judgment motion was prejudicial to the plaintiff. It is well settled law that testimony revealing the deliberative thought processes of judges, juries or arbitrators is inadmissible. Admission of the affidavit put the plaintiff in an impossible spot: she could not rebut the thought processes of the arbitrator. Hence, the Court vacated the decision to the extent it granted summary judgment on the issue of liability.

The Court did affirm the decision to the extent that it ruled in favor of the law firm on its counterclaim for the costs and expenses of the arbitration.

The decision in Rubens v. Mason can be found here.

Another new blog. Say hello to Appellate Law and Practice, a blog which deals with, well, appellate law and practice. (Bet you didn't see that coming.)

Back to the Second Circuit. The case, Muntaqim v. Coombe, may be heading back to the Second Circuit. The Court had denied rehearing en banc in October. However, nine judges said they would reconsider if the Supreme Court denied certiorari, which the Court has done. The case involved the issue of whether a provision of New York Election Law, which disenfranchises persons currently in prison or on parole can be challenged under the Voting Rights Act. The order denying rehearing, along with concurrences and dissents can be found here. The original panel decision, which affirmed the dismissal of the action, can be found here. Thanks to SCOTUS for alerting us to this.

Immigration Appeals Surge in the Second Circuit. Now this is interesting. Immigration appeals constitute 44% of the Second Circuit's docket. (That doesn't leave much space for all those boring sentencing appeals.) In order to keep pace with these appeals, the Court is taking a number of steps, such as asking its judges to sit more often, hiring a part-time staff attorney and bringing on a dozen volunteer attorneys to help its regular staff attorneys vet and schedule cases. The Court is planning on fielding three panels of judges in a single week three times next year. For more information, read the New York Law Journal article on this subject by clicking here. I think you need a subscription to read it. (Sorry.)

Sex Offender Registration. The Second Circuit, in United States v. Rosario, decided the issue of whether a condition of supervised release requiring registration as a sex offender violates the Tenth Amendment. The sentence that Rosario was serving was not related to a sexual offense, but he had previously been convicted of rape of a seven-year-old girl. The Court held that because Rosario was already required to register under state law, conditioning his release on registration was not an undue intrusion into a state's regulatory scheme.

A second issue addressed by the Court was whether modifications to the oral pronouncement of sentence in a subsequent written judgment are valid. The general rule, the Court acknowledged, is that they are not. The basis for this rule is that a criminal defendant is entitled to be present at all critical stages of his trial, including sentencing. However, as to modifications of the terms of supervised release omitted from the oral pronouncement, the Court has permitted the inclusion of mandatory or standard conditions of supervised release contained in subsections 5D1.3(a), (c) of the Sentencing Guideline, conditions recommended by subsection 5D1.3(d) of the Guidelines and basic administrative requirements that are necessary to supervised release. Here, the Government agreed that a provision requiring Family Court approval before Rosario could see his son, which was not imposed in the oral pronouncement, should be removed, and the Court remanded the case to delete that provision.

The Court did note, in dicta, that in some circumstances, it would afford the sentencing judge an opportunity to reimpose the provisions of the written sentence in the defendant's presence.

The decision can be found here.

This case was decided on October 8, 2004. I am trying to catch up on some cases that I had pulled for inclusion in this blog, but had not had the opportunity to write about. Sorry for the delay.

Underneath Their Robes post. Check out the Halloween post of Underneath Their Robes, which reveals certain secrets of some Second Circuit Judges, among others.

Appellate Advocacy Seminar. DRI is running an appellate advocacy seminar at the Westin New York in New York, New York on November 11-12, 2004. It looks like a great program. Howard Bashman of How Appealing will be there (and, I hope, so will I). For more information, click here.

Minors and sentencing. The Second Circuit, in United States v. Lewis, decided an issue of first impression with respect to whether the use of a minor in a crime can be used to enhance a sentence, under section 3B1.4 of the Sentencing Guidelines, of a leader of a conspiracy who was not directly involved with recruiting a minor, and did not have actual knowledge that such individual was a minor, but who nonetheless had general authority over the activities in furtherance of the conspiracy. The Court held (in accord with other circuits that had decided the issue) that 3B1.4 does not require scienter in order to apply the enhancement. The Court determined that the use of a minor by one of the defendant's co-conspirators was a reasonably foreseeable act in furtherance of the conspiracy.

The Court also addressed the issue of whether the mother of one of the defendants had the authority to consent to a search of his bedroom where the defendant himself was present at the scene of the search, handcuffed in a police car outside his apartment building. The Court held that since the mother had permission to access the defendant's room, her consent was sufficient to warrant the search of that room.

The decision can be found here.

Chief Justice Not at Work. Chief Justice Rehnquist was not able to make it to work today. That's not surprising in light of his recent surgery for thyroid cancer. For more information, click here.

Motion for dismissal treated as one for summary affirmance. In United States v. Monsalve, the defendant agreed to plead guilty to one count of conspiracy with intent to distribute greater than one kilogram of heroin. However, at sentencing, her counsel objected to her sentence on the ground that because the defendant had not orally admitted to a drug type or quantity, her sentence should not be based on greater than one kilogram of heroin. She appealed on that ground.

The Government moved to dismiss the appeal based on the defendant's waiver of appeal in the plea agreement. The Court agreed that the defendant had waived her appellate rights, but that certain statutory rights could not be waived. The Court held that the defendant's only contention on appeal -- that her sentence violated her Sixth Amendment under Blakely v. Washington because the District Court imposed the mandatory minimum sentence based on a drug type and quantity that she had not verbally admitted during her plea colloquy -- was frivolous and treated the Government's motion as one for summary affirmance, and affirmed the sentence imposed by the District Court.

The decision can be found here.

Apologies. Posting has been a little slow of late. Unfortunately, even faithful bloggers have spurts of heavy work activity, which keep them from their blogging duties. I can't promise that it won't happen again, but I will do my best to keep the posts coming at a steady pace.

Bad news. Chief Justice William H. Rehnquist has been hospitalized for thyroid cancer. He's being released from the hospital later this week, and he expects to be back on the bench next week. Although I respectfully disagree with him on many (most) issues, my prayers are with him for a full recovery.

Close, but no cigar. The Second Circuit agreed with the District Court that counsel for Cox, a criminal defendant in a murder case, was ineffective in failing to object to a patently unconstitutional jury instruction on intent, where intent was the primary issue in the case, and that counsel's ineffectiveness prejudiced Cox. It also agreed that the state courts' denial of Cox's appeal "involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court." However, it vacated the decision of the District Court, granting Cox a writ of habeas corpus because the District Court had not affored Cox's counsel an opportunity to explain his deficient performance, as required by the case law. While the Court doubted that Cox's counsel could "offer an explanation to defeat the conclusion that his performance was a result of ignorance, inattention or ineptitude," it nevertheless remanded the case to the District Court for further proceedings.

The decision in Cox v. Donnelly can be found here.

Quattrone free pending appeal. Former star banker Frank Quattrone won a court ruling on Tuesday that will allow him to stay out of prison until a decision is reached on the appeal of his obstruction of justice conviction.

In allowing Quattrone to remain free on bail, the U.S. Second Circuit Court of Appeals overturned a lower court ruling that would have forced the one-time investment banker to report to prison next week to begin serving an 18-month jail sentence.

For more information, click here.

Joint Post III. Yet another special eduction case has come down from the Second Circuit. In AA v. Fred Philips, the Court held that the plaintiff bore the burden of proving that the defendants -- the New York State Education Department, the Commissioner of Education and the Governor -- that they had failed in their obligation to bring the Central Islip Union Free School District into compliance with the Individuals with Disabilities Education Act on issues specifically identified as deficient in a report issued by the Education Department and failed to comply with their monitoring and enforcement obligations with respect to district IDEA violations that were not noted in the report.

The Second Circuit held that the plaintiffs had not met their burden and affirmed the dismissal of the District Court.

The decision can be found here. This post can also be found on Second Opinion's sister blog -- The FAPE Page, which deals with special education law issues.

WorldCom again! In this post, I promised an update as to why the Second Circuit, in a summary order, vacated an injunction of the District Court enjoining an Alabama state court from trying a case related to the WorldCom securities litigation. In the summary order, the Court stated that a full opinion would follow, and, on October 18, 2004, the decision in Retirement Systems of Alabama v. J.P. Morgan Chase & Co. came down.

The Court's decision was based on a violation of the Anti-Injunction Act, which bars a federal court from enjoining a proceeding in state court unless that action is "expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." The Supreme Court has held that any doubts as to the power of a federal court to issue an injunction against an action pending in state court should be resolved in favor of letting the state court action proceed.

The Court noted that it was clear under Supreme Court precedent that a federal court in which an in rem action is pending may enjoin a state court proceeding involving the same res because such a proceeding would necessarily impair and may defeat the federal court's jurisdiction. A federal court's jurisdiction in an in personam action, however, would not be so impaired. The Second Circuit had held in an earlier case that a federal court in an in personam case may enjoin a parallel state court action if the state court action would interfere with a pending settlement of a federal case.

Although the appellees argued that the parties were in settlement discussions, they could not represent that a settlement was imminent. Nor had they shown that the District Court's injunction was necessary to protect the prospective settlement. And while the state court action was likely to delay the trial of the federal action, the Second Circuit held that the District Court had no interest in being the first court to go to trial or reach a judgment. Hence, the injunction was not necessary in aid of the District Court's jurisdiction and violated that Anti-Injunction Act.

The decision in the case can be found here.

Judge Feinberg gets Devitt Award. Second Circuit Senior Judge and former Chief Judge Wilfred Feinberg has been selected as the 2003 recipient of the Edward J. Devitt Distinguished Service to Justice Award. Judge Feinberg will receive the award on Oct. 22, 2004, at the Daniel Patrick Moynihan U.S. Courthouse in New York City. (Thanks to Second Circuit News for the information.)

ADA case. See this article on a recent Second Circuit case dealing with the issue of whether personality problems (i.e., the ability to get along with others) is a disability under the Americans with Disability Act.

New blog. Not that it has anything to do with the Second Circuit, but anyone interested in complementary and alternative medicine law should check out Michael H. Cohen's blog on that subject.

Self-incrimination and the right to counsel. A defendant who wants a court-appointed lawyer but claims that forced public disclosure of his finances will violate the privilege against self-incrimination must face an open hearing with the government present, according to a decision by District Judge Sweet.

This will certainly be heading to the Second Circuit and maybe to the Supreme Court. I do not have the full decision yet -- I've only read this article -- but will post again on this fascinating (to me, at least) topic at a later date after I've read the decision. (I'm not sure, but you might need a subscription to the New York Law Journal on-line to access the article.)

Joint Post II. Another Second Circuit special education case about which I am posting here and on The FAPE Page, Second Opinions's sister blog. (I am the father of both.) In J.S. v. Attica Central Schools, six students who attend school in the Attica Central School District brought an action against the school district, claiming that they had been denied a free appropriate public education and stating claims under the Individuals with Disabilities Education Act, section 504 of the Rehabilitation Act, section 1983 and New York State education law. The school district moved to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. The District Court denied the motion but certified the issue of subject matter jurisdiction for interlocutory appeal. The Second Circuit agreed to hear this appeal.

The jurisdictional issue was whether exhaustion of administrative remedies was required before a Federal District Court could hear the case. The District Court had held that the school district's alleged systemic violations of IDEA could not be remedied through administrative proceedings and that exhaustion would be futile.

The Second Circuit affirmed, holding that systemic violations of IDEA, as opposed to "textbook" cases presenting issues involving individual children, could not be remedied by administrative action and that the exhaustion requirement would be futile.

The systemic problems at issue included: (1) the school district's total failure to prepare and implement Individualized Education Programs, (2) the school district's failure to notify parents of meetings as required by law, (3) the school district's failure to provide parents with legally required progress reports, (4) the school district's failure to provide appropriate training to school staff, (5) the school district's failure to perform timely evaluations and reevaluations of disabled chilren, (6) the school district's failure to provide parents with required procedural safeguards regarding identification, evaluation and accommodation of otherwise disabled children and (7) the school district's failure to perform legally required responsibilities in a timely manner, including providing and implementing transition plans, transitional support services and declassification services for children with disabilities.

The decision can be found here.

Ineffective. The Second Circuit has held, in United States v. Morgan, that it generally will not decide ineffective assistance of counsel claims on direct appeal. Such claims should be raised in a habeas corpus petition. The decision can be found here.

Joint Post. This is my first joint post with Second Opinions's sister blog, The FAPE Page. That blog covers special education law, so this post is about a special education case that came down from the Second Circuit.

The question presented in Mackey v. Board of Education for the Arlington Central School District was whether the parents of a learning disabled child are entitled to equitable relief under the Individuals with Disabilities Education Act, reimbursing them for private school tuition, when the denial of reimbursement results solely from the untimely issuance of a state administrative decision. The parents, disagreeing with the IEP developed by the school district, placed their child in a private school for the 2000-01 school year, while a decision was pending with respect to reimbursement at the same private school for the prior school year.

Ultimately the state review officer held that the private school had become the student's pendency placement for the 2000-01 school year based on the finding that the parents were entitled to reimbursement for that school for the prior year.

The District Court, however, held that because the decision which found that the parents were entitled to reimbursement for the 1999-2000 school year was rendered after the 2000-01 school year, the parents could not be reimbursed for the tuition for that year.

The Second Circuit disagreed, holding that penalizing the parents because the state review officer was derelict was unfair. It remanded the case to the District Court for a finding as to when the student's pendency placement at the private school took place.

The decision can be found here.

Quattrone Should Go to Prison Now. At least that's what the United States government thinks. The government urged the Second Circuit to reject a request from former star investment banker Frank Quattrone that he be allowed to stay out of prison while he appeals his obstruction of justice conviction. Quattrone, convicted of hindering a federal probe into stock allocation, is scheduled to begin serving an 18-month sentence late this month. Last month he asked the appeals court to allow him to remain free pending appeal. But federal prosecutors, in a filing with the Court, said that Quattrone's request amounted to "little more than a series of complaints" that his trial judge treated him unfairly. For more information, click here.

Acceptable access. The Court, in Bourdon v. Loughren, held that a prisoner's right to access to the courts is satisfied by appointment of counsel and such right was not violated by the government's denial of materials that the prisoner requested from the jail's law library. The Court further held that the access to courts through appointed counsel is not measured by reference to the Sixth Circuit's guarantee of effective assistance of counsel. In order to bring such a claim, asserting denial of access to the courts by appointed counsel, a prisoner must show that the provision of counsel did not furnish him with the capability of bringing his challenges before the courts, not that he was denied effective representation in the court. The Court found that Bourdon's rights had not been violated under the facts of the case.

Judge Oakes concurred, agreeing that Bourdon's rights had not been violated, but disagreed with the majority's holding that a state's affrimative obligation to provide access to the courts can be measured without reference to the Sixth Amendment's guarantee of effective assistance of counsel.

The majority decision can be found here. Judge Oakes's concurrence can be found here.

Novel Question. The Second Circuit affirmed the conviction of Michael Griffith in a summary order, but it issued a full decision to explain a novel question implicated in the appeal: whether, under 18 U.S.C. 3153, information obtained from a defendant during a pretrial-services interview can be used against the defendant for impeachment purposes. The Court held that it could.

No (Re)argument here. At the request of a judge, the court, sua sponte, conducted a poll as to whether to rehear Muntaqim v. Coombe en banc. The case involved the issue of whether a provision of New York Election Law, which disenfranchises persons currently in prison or on parole can be challenged under the Voting Rights Act. The Court declined to rehear the case. The order with concurrences and dissents can be found here. The original panel decision, which affirmed the dismissal of the action, can be found here.