Chapter 13 Plan and Res Judicata. The Second Circuit has held that a Chapter 13 bankruptcy confirmation order is res judicata with respect to the debtor's and the Trustee's post-confirmation attempt to avoid a confirmed, recorded lien on the debtor's property where the lien was claimed by the debtor at the outset of the bankruptcy proceedings and included in the plan. The decision in Celli v. First National Bank of Northern New York (In re Celli) can be found here.

Not extraterritorial. In Ofori-Tenkorang v. American International Group, Inc., the Second Circuit held that 42 U.S.C. 1981 does not prohibit discriminatory conduct occurring while a plaintiff is outside the jurisdiction of the United States. The decision in that case can be found here.

More certfied questions. In two decisions issued on August 15, 2006, the Second Circuit certified questions to the New York Court of Appeals.

In White Plains Coat & Apron Co. v. Cintas Corp., the Court certified the following question:

Does a generalized economic interest in soliciting business for profit constitute a defense to a claim of tortious interference with an existing contract for an alleged tortfeasor with no previous economic relatinship with the breaching party?

The decision in that case can be found here.

In Highland Capital Management LP v. Schneider, the Court certified the following question:

Based on this record, do the eignt promissary notes issued by McNaughton Apparel Group, Inc., to the Schneiders fall within the definition of a "security" as contemplated by Section 8-102(15) of the New York Uniform Commercial Code?

The decision in that case can be found here.

Random. In MacWabe v. Kelly, the Second Circuit held that random, suspiciousless searches at the NYC subway are constitutional. The decision can be found here.

On vacation. Sorry for the lack of posts in recent days. I'm off to the ABA Annual Meeting in Hawaii and was frantically catching up on work beforehand. We all can't be Howard Bashman. I'll try to post in the next few days, if I can, but I will be back in New York on August 10 at which time regular posts will resume.

Presumed Lying. The Second Circuit overturned a verdict where the district judge had instructed the jury that the defendant had a strong motive to lie and his testimony should be closely scrutinized. The Court held that such an instruction presumed the defendant's guilt and the charge was so unbalanced as to amount to reversible error, especially in that the case was a close one, based on credibility findings.

The decision in United States v. Gaines can be found at the Second Circuit website. It was decided on July 20, 2006.

Moving. The Second Circuit Clerk's Office Records, Mail, and Intake Division will relocate to 500 Pearl Street (3rd Floor) on Monday, July 24, 2006. The public counter will be closed and there will be no access to records on July 24. The Night Depository Box will be relocated to 500 Pearl Street, at the Worth Street entrance, and will be available for use at that location starting at 5 pm on Friday, July 21. Normal operations ( 9 am - 5 pm) will resume at the new location on Tuesday, July 25. Documents due on July 24 will be accepted for filing on Tuesday, July 25.

Sex Discrimination in a Retaliation Action. A plaintiff filed a complaint with the EEOC, claiming that her employer had discriminated against her. While she had only checked Retaliation on her Charge of Discrimination form, she had alleged acts of sexual discrimination. The EEOC gave her a right to sue letter. She brought an action, alleging, among other things, claims of sexual discrimination. The District Court dismissed that claim, asserting that the plaintiff had not exhausted her administrative remedies.

The Second Circuit vacated the dismissal of the sex discrimination, holding that the sexual discriminaton was "reasonably related" to the retaliaion claim to allow the discrimination to be brought in federal court. The allegations were sufficeint to have put the EEOC on notice of a potential sex discrimination claim existed even though she did not check the SEX box on the Charge of Discrimination Form.

The decision in Williams v. New York City Housing Authority can be found at the Seconjd Circuit website. The case was decided on July 19, 2006.

Answers. In a prior decision, the Second Circuit certified certain questions to the New York Court of Appeals. The questions were:

1. Is it possible for a client to ratify an attorney's fee agreement during a period of continuous representation?

2. Is it possible for a client to ratify an attorney's fee agreement during a period of continuous representation if attonrney misconduct has occurred during that period? If so, can ratification occur before the attorney has committed the misconduct?

3. Is it possible for a client to ratify an unconscionsable attorney's fee arrangement?

The Court of Appeals answered all three questions in the affirmative although it noted that ratification induced by misconduct would be invalid and that it would be ra are case when unconscionable agreement may be ratified by the client.

The Supreme Court remanded the case to the District Court for further proceedings to decide the issue of unconscionability.

The decision in King v. Fox can be found at the Second Circuit website (decided on July 18, 2006). The New York Court of Appeals decision can be found here. I'm sorry for my inability to provide a direct link. Someone's been monkeying with the Second Circuit website. I used to be able to find direct links by using the search enginge at weww.ca2.uscourts.gov:8080, but that appears not to work anymore. I will try to find out what the problem. If anyone has any ideas, let me know.

Chapter 3. The Martha Graham saga is back before the Second Circuit. After the last appeal, the Second Circuit had remanded the case to the district circuit solely to resolve the issue of who owned certain dances created by Martha Graham from 1956 to 1965. The District Court held that Martha Graham had assigned the common law copyrights in the dances to the Martha Graham Center of Contemporary Dance and that Graham's heir, Ronald Protas had no right to them.

To add to the confusion, before the evidentiary hearing on this issue, Protas had sought a new trial and relief from the prior judgment based on newly discovered evidence and fraud. The Court had denied that application.

On appeal, the Second Circuit held that Protas's motion for a new trial and relief from the prior judgment was untimely because it was made more than a year after the judgment was entered. Protas had argued that the one-year period should not have begun to run until after the judgment after remand. The Second Circuit held that its prior decision, because it had affirmed the District Court, did not alter the positions of the parties so as to restart the time limit. With respect to the seven dances at issue on remand, Protas had gotten a new trial. Hence, the merits of the motion were not reached.

Protas also argued that the District Court had improperly to admit certain documents into evidence, but the Second Circuit held that the documents did not relate to the ownership of the seven dances at issue.

Finally, the Second Circuit held that the District Court had not abused its discretion in ruling that Martha Graham had assinged all her rights in the seven dances to the Center.

The deciison in Martha Graham School and Dance Foundation, Inc. v. Martha Graham Center of Contemporarty Dance, Inc. can be found here.

Not Final. A plaintiff was seeking long-term disability benefits. The plan administrator held that he was not entitled to them, and he appealed that determination to the District Court. The District Court remanded the case to the plan administrator to reconsider the eligibility of the plaintiff for long-term disability benefits under the correct emplyment description . (The record was unclear whether the correct job description had been used by the plan administrator.) That decision was appealed. The Court held that it was not a final judgment. There is a dispute among the circuits as to whether a remand to a claims administrator under ERISA can ber be a final decision and had never been decided by the Second Circuit. But the Court held that under the law of any circuit, this remand order would not be appealable. No legal question had been decided by the district court The district court had not found the denial of benefits to be erroneous nor was an error of law embedded in the denial. The remand was made because the factual record was unclear as to whether the defendant had considered plaintiff's correct job description while applying the correct and undisputed legal standard. The appeal was dismissed for lack of appellate jurisdiction.

The decision in Viglietta v. Metropolitan Life Insurance Co. can be found here.

Same sex marriage. Well, it isn't a Second Circuit case, but it's pretty important to New Yorkers. The New York State Court of Appeals has held that the New York Constitution does not require that the option of marriage be available to couples of the same sex. For the opinion (written by Judge Robert Smith) can be found here. Chief Judge Kaye and Judge Ciparick dissented. Judge Rosenblatt took no part in the case.

Exhausted. The Second Circuit has held that where an employee benefit plan sets up administrative remedies after a claim has already been filed in court, the claimant is deemed to have exhausted his (or her) administraive remedies, pursuant to 29 CFR 2560.503-1(l). The decision in Eastman Kodak Co. v. Coyne can be found here.

Certified. The Second Circuit has certifed the quesiton of whether an NASD employee terminations form, a Forum U-5, is subject to an absolute or a qualified privilege in a libel action. The decision in Rosenberg v. Metlife, Inc. can be found here.

And the nominee is . . . Well, President Bush has nominated Debra Ann Livingston for a seat on the United States Court of Appeals for the Second Circuit. See here for more info.

Nondischargeable. The Second Circuit, in Ball v. A.O. Smith Corp., has held that a judgment of sanctions entered against a lawyer under 28 U.S.C. 1927 and Rule 11 of the Federal Rules of Civil Procedure is a non-dischargeable debt for "willful and malicious injury by the debtor to another" for purposes of Bankruptcy Code 523(a)(6).

The decision in that case can be found here.

New Legal Blog. And this one is pretty new, having started in April. Say hi to Susan McDonald and her Legal Research and Writing Blog in which she blogs about legal research and writing. Susan is a Nashville, Tennessee attorney. Welcome to the blogosphere.com/

Letters of Marque. For the last three years, I have been enjoying Letters of Marque, the blog of law student, Heidi Bond. As I've mentioned, Heidi is no longer a law student, and I gather that she will not be blogging for the foreseeable future, certainly not while she is clerking for Judge Alex Kozinski. So I'm taking the blog off my blogroll. At present, the blog is empty. While there is a second blogger, L, from what I gather, he or she (we don't know which) is not a law student.

Change in the Law. Congress passed a statute (18 U.S.C. 2709) that allows the FBI to issue National Security Letters, i.e., administrative subpoenas, to internet service providers (ISPs) that allows the FBI to gain access to subscriber information or electronic communication transaction records held by the ISP when that information is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities. Two ISPs challenged the statute. The district courts ruled on the constitutionality of the statute, but, in the interim, Congress amended the statute, changing some of the relevant provisions.

With regard to the first ISP, the Second Circuit held that because the statute had been changed to provide for pre-enforcement judicial review, the ISP's Fourth Amendment claim no longer existed. That portion of the appeal was declared moot and the part of the district court's decision on that issue was vacated.

With regard to the First Amendment clains raised by the ISP, the statute originally did not allow the ISP to seek counsel in that it required the ISP not to disclose the existence of the subpoena to anyone. The statute was amended to allow talking to an attorney with respect to the request. The ISP, however, maintained that the amended statute still violated its First Amendment rights. The Second Circuit held that it should not decide the issue. It vacated the portion of the district court's decision relating to that issue and remanded the case to the district court for furhter proceedings, including possible new pleadings.

With respect to the second ISP, which dealt with the portion of the statute forbidding the ISP from revealing that it is a recipient of such a subpoena, the district court had granted an injunction. The government has now conceded that the ISP can reveal its identity renders the appeal moot. The Court did not vacate the decision because it was presumptively correct and the valuable to the legal community as a whole.

The decision in Doe v. Gonzales can be found here.

Going Up. I'm going out on a limb here and predicting that a new Second Circuit case will go up to the Supreme Court. Riegel v. Medtronic, Inc. raises, among other things, the question of whether section 360k(a) of the 1976 Medical Device Amendments to the Food, Drug, and Cosmetic Act preempts coomon law tort claims regarding medical devices that have entered the market pursuant to the Food and Drug Administration's rigorous premarket approval process. There is a split in the Circuits, with the Second Circuit joining the Third, Fifth, Seventh and Eigth Circuits holding that the federal statute does preempt common law tort claims. The Eleventh Circuit holds that it does not. With a 5-1 split, I might not be so confident of certiorari being granted, but there is also a split among the state courts that have dealt with that question with Texas and Pennsylvania coming out in favor of preemption and Illinois, New York, Washington and Oregon coming out against. Cases in California have come out on both sides of the question.

The decision can be found here.

Fair Use. The Second Circuit held that the use of seven images in a 480-page book on the story of the Grateful Dead constituted fair use (under the circumstances). The decision in Bill Graham Archives v. Dorling-Kindersley Limited can be found here.

Unreviewable discretion. The Second Circuit refused to review an immigration judge's discretionary refusal to find that the petitioner had shown "unusual or outstanding equities" sufficient to overcome the extremely adverse circumstances -- repeated convictions of crimes -- to justify granting him a waiver of removal under the Immigration and Nationality Act. The Court held that it had no jurisdiction to review the immigration judge's finding, under 8 U.S.C. 1252(a)(2)(B)(ii). The petitioner had also failed to raise any colorable constitutional claims or questions of law sufficient to invoke the Court's jurisdiction, under 8 U.S.C. 1252(a)(2)(D).

The decision in Avendano-Espejo v. Department of Homeland Security can be found here.

Third Circuit Blog. Those federal public defenders are spreading. First, the Second Circuit Blog, and now the Third Circuit Blog. As far as I can tell, it deals solely with criminal matters, which is not surprising in that it's run by public defenders. And it's not a new blog. It's been around since January 2005. Hey, I annoumce them as I find one.

BREAKING NEWS: OK, it's not really news, but it looks like each circuit has one. (The Fifth Circuit Blog site is still under construction.) So if you practice criminal law in federal courts, there's a blog for you.

Congratulations. I would be remiss in not acknowledging the recent gradulation of cyber-friend (we've never actually met or spoken in real life) Heidi Bond of Letters of Marque from the University of Michigan School of Law, where she was an editor of the law review and a winner of the coveted Bates award (I'm not exactly sure what it is, but I'm sure it is coveted) and will be going on to clerk for Judge Alex Kozinski. Best of luck. I'm sure we will be hearing great things from her in the near future.

Another new blog. Well, it's not so new -- it apparently has been running since November 4, 2005 -- but it's new to me. Meet Legal Writing Prof Blog. It's about -- surprise -- legal writing and it is run by Nancy Soompaa of Texas Tech University School of Law and Sue Liemer of Southern Illinois University School of Law. Welcome (belatedly) to the blogosphere and congratulations on scoring another link.

Limitation of Liability. What luck. A provision in an Express Cargo Bill limiting liability to $500per package has saved The Burlington Northern and Santa Fe Railray Compnay from being socked with major damages when its change from Long Beach, California to Chicago, Illinois derailed. The actual loss for the destruction of two engines was $234,585.88. Because there were two engines involved, the defendants had to pay $1,000. The lawyer who wrote that contract deserves a bonus.

The decision in American Home Assurance Co. v. Hapag Lloyd Container Line GmbH can be found here.

Inflexible. The Second Circuit, in a case of first impression in the circuit, held that the requirement that an application to permit an appeal an order certifying a class in a class action be made within 10 days is either jurisdictional or is a claim-processing rule that is inflexible. In that the plaintiff objected to the late filing of the application, the Court denied it.

The decision in Coco v. Incorporated Village of Belle Terre, New York can be found here.

I've Made It! This blog has finally been listed on the blogroll of How Appealing. When I first started this blog, I asked Howard Bashman to list me on the blogroll. He promised that he would do so, but it never happened. Being unagressive in asking for favors, I never raised the issue towith him again until last week, when I had occasion to e-mail him regarding an outdated link on the How Appealing blogroll. I mentioned that this blog was not listed, and he immediately rectified the matter. Let's see if that leads to greater numbers of hits.

Missing info. Those in the know realize that my post of yesterday on the Muntaqim case was incomplete. I was accurate as far as it went, but there was a companion case, Hayden v. Pataki that was arued together with Muntaqim was also decided. Unfortunately, the link on the Second Circuit website only gives me an error message. The link from Findlaw does the same thing, so I haven't read this decision. The New York Law Journal says that the en banc court decided 8-5 that Congress did not intend to allow challenges to the felon disenfranchisement law under the Voting Rights Act.

The ABA Law Students Divison just recently held a moot court competition on this very issue, and I, as a judge in the preliminary rounds, heard extremely good arguments on both sides of this issue. I would not be surprised if Hayden makes its way to the Supreme Court.

Once I do get a copy of the decision, I will post a more complete report.


EDIT: The decisions in Hayden v. Pataki can be found here. It's a lengthy document, but when I get to read it in its entirety, I expect to have some things to say (or maybe not).

Muntaqim en banc. In an unusual procedural posture, the Second Circuit agreed to hear Muntaqim v. Coombe en banc after the Supreme Court had denied certiorari. The case involved whether the New York felon disenfranchisement law violated the Voting Rights Act. The Second Circuit held that because Muntaqim was not a New York citizen, he did not have standing to raise the claim. The Court held that it had no jurisdiction and vacated all prior rulings. The decision in the case can be found here.

Rascist Cops. I'm sure you all remember that famous Labor Day parade in New York, where a bunch of apparently brainless cops and firemen participated on a float that featured mocking stereotypes of black Americans. They were fired, and they sued, claiming that their First Amendment rights were violated. The government moved to dismiss, but the District Court denied their motion. The Second Circuit reversed, noting that while the government was not as free as a private individual or company to fire employees, it retained hte freedome to dismiss employees who do not meet the reasonable requirements of their job. The decision in Locurto v. Guiliani can be found here.

Oh, by the way, these events all happened in 1998. Talk about the slow pace of litigation!

Taxing Embassies. The City of New York tried to tax parts of embassies that were used in a manner that would subject them to property tax. Embassy buildings are exempt from taxes only if they are used for embassy offices and the quarters of a diplomat. The builidngs at issue also had living space for embassy employees who were not diplomats. Under the law, that portion of the premises would be taxable. India and Mongolia did not pay their tax bills, and the City obtained tax liens. It commenced an action to establish the validity of the liens on the embassy (acutally missions to the UN) property.

India and Mongolia claimed to be exempt by sovereign immunity, but the district court disagreed, holding that an exception to the Foreign Sovereign Immunity Act. The Act exempts any case in which rights in immovable property situated in the United States are in issue. The Second Circuit affirmed and remanded the case for further proceedings. The Court emphasized that it was not deciding the merits of the dispute. It merely decided that the case was not barred by sovereign immunity.

The decision in City of New York v. Permanent Mission of India to the United Nations can be found here.

Wolff & Byrd, Consellors of the Macabre. Well, they're fictional, but they do practice in the Second Circuit (Brooklyn, to be precise). I would be remiss if I did not alert my regular readers to the new Supermatural Law website with web comic strips of Wolff & Byrd, the specialists in supernatural law. Wolff & Byrd used to appear regularly in the National Law Journal, but unfortunately those golden days are over, but you can get your W&B fix on line -- for free. It's really nice of my good friend, Batton Lash, to provide us with this free entertainment. But if you really like them, you can help Bat by buying the Wolff & Byrd books. But, at any rate, you owe it to yourself to at least check the site out.

Certified Question. Doe v. Newbury Bible Church involves an allegation of sexual molestation of a boy by the former pastor of the church. The case was sent to Vermont for certification of a question relating to vicarious liability. It is persently unclear whether a church can be held vicariously liable for the acts of its pastor. The decision in this case can be found at the Second Circuit website. It was decided on April 21, 2006.

Pleading Standard. In Liebowitz v. Cornell University, the Second Circuit vacated in part a decision of the Southern District of New York, dismissing the plaintiff's employment discrimination. The case had been dismissed on a motion to dismiss where "all factual allegations in the complaint" are to be taken as true. The District Court, however, did not take all of the factual allegations as true, but instead accepted certain allegations of the University. The Second Circuit held that the complaint, if the allegations were true, did state a cause of action, and vacated the judgment as to those causes of action, while affirming the dismissal of other causes of action, which it found had not been adequately pleaded. The decision can be found at the Second Circuit website. It was decided on April 21, 2006.

Read a Book. The Advisory Group to the New York State and Federal Judicial Council announces the publication of the Second Edition of the "Practice Handbook on Certification of State Law Questions by the United States Court of Appeals for the Second Circuit to the New York State Court of Appeals". It can be obtained from the Second Circuit website.

How Appealing. Howard Bashman's How Appealing blog has changed location. It can now be found at http://howappealing.law.com. The change has been made to my blogroll.

Landlord/Tenant Law and the FDCPA. The Second Circuit decided that the service of a notice of petition and petition in a non-payment proceeding brought by a landlord against his tenant constitues an "initial communication" under the Federal Debt Collection Practices Act. Hence, the warnings and notices required by 13 U.S.C. 1692g should have been sent with the pleadings. The Second Circuit has joined the Seventh Circuit on this issue. The decision in Goldman v. Cohen can be found on the Second Circuit website. It was decided on April 12, 2006.

Sympathy. I would like to send my sincerest sympathy to Second Circuit Judge Carbarnes, whose mother diied at age 96 on April 2, 2006.

A Star in Town. Since the Second Circuit is the most important commercial law federal court in the country, it should be no surprise that national appellate stars appear before it. Nevertheless, I have not noticed Carter Phillips's name on a Second Circuit decision as counsel (or anything else) in a while.

Phillips represented Tribune Televison Co. in Ellis v. Tribune Television Co. Tribune owned both television stations and a newspaper in the Hartford, Connecticutt area, in violation of FCC rules. Tribune had received several temporary waivers of the rules and has applied for a permanent waiver, but when the last temporary waiver had expired and the application for a permanent wavier was pending, Neil Ellis, a Hartford resident, brought suit under 47 U.S.C. 401(b).

Tribune moved to dismiss the action on the ground that the FCC had revised its rule prohibiting ownership of both television stations and newspapers in the same geographic area and that, under the new rule, its cross-ownership was legal. It also argued that the factual and legal issues involved in the case were not ripe because the FCC had not acted upon Tribune's application for a permanent waiver. Tribune finally argued that the doctrine of primary jurisction required dismissal in light of the administrative proceedings before the FCC.

Ellis moved for summary judgment.

While the motions were pending, implementation of the FCC's new cross-ownership rule had been stayed by the Third Circuit.

The District Couirt denied Tribune's motion and granted summary judgment in Ellis's favor.

The Second Circuit reversed, holding that the "district court erred in failing to recognize the FCC's primary jurisdction in this matter." The Court vacated the District Court's decision and remanded the case to the District Court with instructions to dismiss.

The decision, which was issued on March 29, 2006, can be found on the Second Circuit's website.

Congratulations, Carter!

Fee changes. Prices are going up everywhere, and the Second Circuit is no exception. The new fee schedule can be found at the Second Circuit website.

Supreme Court Practice. The newest issue of The Journal of Appellate Practice and Process has a number articles on Supreme Court Advocacy: Acquiring the Necessary Experience. This is a topic of great interest to me, given my special interest in appellate advocacy and Supreme Court advocacy being at the top of the heap of that discipline. There is a preface by David C. Frederick, the author of Supreme Court and Appellate Advocacy. It is interesting, but it leans too much to the modern belief that Supreme Court advocacy is best done by Supreme Court specialists. While there is a lot to be said for that school of thought, the idea that you should stay away from the Supreme Court unless you've worked for the Solicitor General or some advocacy group that appears before the Court often is hard to swallow. As lawyers, we often deal with issues in areas of law, which we are new to. We might even go to Courts that we have never been to before. Should a lawyer, no matter how experienced, never take on an antitrust case because he or she is not an antitrust expert?

Fortunately, there is a growing literature on Supreme Court practice, Supreme Court oral arguments can be downloaded off the internet, and examples of cert petitions and merits briefs from the Court are readily available. (See here and here, for instance.) So while a practioner might give serious thought before taking on a case before the Supreme Court (assuming he or she is lucky to get one), I would argue that it is something that can be done without being an experienced Supreme Court practitioner.

I shouldn't give you the impression that Mr. Frederick only speaks of this subject; indeed, it is only a subtext, which I pick up because I am sensitive to it. Although I have filed amicus briefs (both at the petition stage and the merits stage), cert petitions and oppositions to certiroari, I have never appeared before the Court . . . yet. And I refuse to be deterred.

There is an article on the Stanford Supreme Court Clinic run by Tom Goldman, an experienced Supreme Court advocate who blogs at SCOTUSblog, Amy Howe, his wife and partner, and Pamela Karlan of Stanford. That clinic is only of use to attorneys who wish to appear before the Court if you are a student at Stanford, in which case it is excellent. If you have a case that might merit Supreme Court review but which your client cannot afford, the clinic might take the case, but you are basically going to be handing it off to the students and the instructors. But since the instructors (Goldman, Howe and Karlan) are top notch, it certainly would good for the client.

Frederick also mentions that the Georgetown Law Center's Supreme Court Institute provides free moot courts if you are arguing before the Supreme Court, provided you are the first attorney on a case to get in touch with it. I expect that that is a very helpful service to an attorney, whether experienced or not.

I have not read the other articles in the issue (although I'm pretty much through the one on the Stanford Supreme Court Clinic), and I may have more to add in another post. We'll see.

Another new blog. All right, it's not really new. It's been up and running since last November. But it's new to me. Sui Generis, a New York law blog, written by Nicole Black of Rochester, New York, is definitely worth viewing. Don't take my word for it. See for yourself.

By the way, in the interest of full disclosure, Nicole has been kind enough to mention this blog in an article entitled "Use of Law Blogs Is On th Rise" in the Daily Record. She's posted a link to the article here.

New blog. The Second Circuit Sentencing Blog has appeared to deal with substantive cases on sentencing law in the Second Circuit. Since I don't usually cover such cases, anyone interested in that area of the law in the Second Circuit might want to check it out.

Reply briefs. I had stated a couple of weeks ago, that I would be blogging about issues of general interest to appellate lawyers. This is the first such post. I have been reading Judge Ruggero J. Aldisert's Winning on Appeal: Better Briefs and Oral Arguments. Judge Aldisert makes a statement that I have also heard from other jurists, but with which I could never agree. He suggests that reply briefs should only be filed in very limited circumstances. From the judge's point of view, I can understand that less paper is better than more paper. But from an attorney's point of view, it makes no sense. The appellee, since he files his brief after the appellant, get's a chance to comment on the points made by the appellant. The appellant, however, if no reply brief is filed, never gets a chance to take issue with the appellee's points (especially if there is no oral argument). In most cases, the appellee will make arguments that are worth rebutting in some way. I surely agree that a reply brief should not be filed if its only purpose is to repeat what is said in the appellant's initial brief. But if no answer can be made to the appellee's brief, then the appellant probably should deserves to lose the appeal.

Having said this, I still highly recommend Judge Aldisert's book.

Unwaiving a waived right of appeal. The Second Circuit, in Campusano v. United States has decided the issue of whether a criminal defendant, who instructs his attorney to file a notice of appeal despite a waiver of his right to appeal in his plea agreement, has suffered per se ineffective assistance of counsel if his attorney fails to do so.

Campsano's plea agreement contained a provision that he would not appeal or otherwise challenge his sentence provided the sentence fell within a stipulated range.of 108-135 months. He was sentenced to 108 months. He twice instructed his attorney to file a notice of appeal, but his attorney did not do so. He then moved, pursuant to 28 U.S.C. 2255, to vacate, set aside or correct his sentence on the basis of ineffective assistance of counsel. Campano argued that the failure to file a requested notice of appeal constitutes ineffective assistance and that no independent showing of prejudice was required.

The District Court denied Camuosano's motion, holding that the rule that the failure to file a notice of appeal constitutes per se ineffective assistance unless the defendant asks his attonrey to file an appeal that raises one of the permitted grounds for appeal despite the plea waiver. Campusano appealed.

The Second Cirucit reversed. It noted that while plea waivers were enforceable in most cases, "important constitutionsal rights require some exceptions to the presumptive enforceability of a waiver." These rights are endangered when an attorney fails to file a notice of appeal. The Court remanded the case to the district court for a determination of whether Campusano in fact instructed his attorney to file an appeal. If he did give such an instruction, he is to be allowed a direct appeal.

The decision in this case can be found at the Second Circuit website. The case was decided on March 23, 2006.

Quattrone wins! Frank Quattrone's conviction was vacated because of erroneous jury instructions. The Court also decided that Judge Richard Owen should not retry the case (if it is retured), but should be assigned to a new judge. The decision in United States v. Quattrone can be found at the Second Circuit website. The decision was issued on March 20, 2006.

Upcoming. Judge Batts of the Southern District of New York dismissed an action brought by the City of New York against internet cigarette sellers. Judge Batts held that the City had failed to plead a proper case under RICO. The City has said that it plans on appealing to the Second Circuit. An article on this case appears in today's New York Law Journal. It may not be available to you on-line if you are not a subscriber. (Sorry.)

Privilege. Francia Collazos was in prison and kept a journal. Part of the journal involved conversation she had with her attorney. Part involved incidents with defendant Nicholas DeFonte. DeFonte found out about the existence of the journal and subpoenaed it. Collazos moved for a protective order on the ground that the journal was privileged. The district court denied the motion.

The Second Circuit held that those portions of the journal that described conversations with her attorney were privileged. The other sections were privileged if they set out material she intended to discuss with her counsel. The Court remanded the case for a hearing as to whether the journal fell within the scope of the privilege as it set out in its decision. The decision in United States v. DeFonte can be found at the Second Circuit website. It was decided on March 15, 2006.

Certified questions to Connecticut. Northfield Ins. Co. v. Derma Clinic Inc. involved allegations of sexual assaults by a masseuse. The plaintiffs in those actions also sued the massage company and its onwer. The company and owner were sued for failing to advise the plaintiffs in these actions that there had been complaints against the employee, failure to investigate the allegations, continuting to employ the employee, failing to report the employee to the proper authorities and other claims stemming from these allegations.

The company and its owner relied on two insurance companies to cover their defense against the claims. The first policy was a professional liability policy and covered the company and its executive officers and directors (but only with respect to their duties as the company's officers and directors. The policy describes the business of the company as "massage therapist." This policy exluded any damages arising out of any dishonest, fraudulent, criminal or malicious act or omission of any insured or "employees."

The second policy on which the company and its owner relied was a commerical general liability policy. The policy excludes coverage for bodily injury arising out of the rendering or failure to render any professional services, including bu t not limited to . . . massage.

The Insurance Company disclaimed coverage and commenced a declaratory judgment, seeking a determination that their insurance policies did not obligate it to defend or indemnify the company.

The Insurance Company moved for summary judgment, and the District Court granted the motion, holding that neither policy covered the claims.

he Second Circuit certified four questions to be answered by the Supreme Court of Connecticut. The questions are:

1. In a policy with multiple coverage parts, does a criminal acts exclusion in the Commerical Crime Coverage Form apply to disputes arising under the Commercial General Liability Form?

2. Can an employee's pleas of nolo contendere and the resulting conviction be used to trigger an insurance policy's criminal acts exclusion?

3. When applied to the business of massage therapy, does the term "professional services" include acts ancillary to the business of a massage therapist, e.g., the investigating, training, monitoring, supervising of masseurs?

4. Under the language of the commercial coverage policy, do the negligence claims against the company and its owner arise out of the rendering of professional services when the underlying acts involve physical and sexual assualts during the performance of a message.

The decision was rendered on March 6, 2006 and can be found on the Second Circuit website.

Rule 32.1. Howard Bashman, of How Appealing fame, has written an article on an attempt by opponents of proposed Rule 32.1 of the Federal Rules of Appellate Procedure, which would allow for the citation of "unpublished" opinions, to limit the effect of the rule by making the rule applicable only to such decisions issued after January 1, 2007. His article (on Law.com) can be found here.

To the Majors. Tom Goldstein, who has invented the small firm Supreme Court practice (and is one of the few able to maintain such a firm), is leaving his firm of Goldstein & Howe and heading for Akin, Gump, Strauss, Hauer & Feld. Goldstein & Howe will become Howe & Russell. for more info, check this post. As one in awe of Tom, I wish him the best of luck.

Not Ex Post Facto. The Second Circuit has held that it does not violate the ex post facto clause to apply the holding of United States v. Booker to actions that occurred before Booker was decided. This is one of those cases where the defendant was sentenced to a term longer than he would have been under the Sentencing Guidelines. The decision in United States v. Fairclough can be found at the Second Circuit website. It was decided on February 17, 2006.

Public Trial. The Second Circuit granted a writ of habeas corpus to a criminal defendant whose relatives were order excluded during the testimony of an undercover officer unless they consented to sitting behind a screen. The Court, in Rodriguez v. Miller, held that such a procedure violated Rodriguez's Sixth Amendment right to a public trial. The decision can be found on the Second Circuit website. The case was decided on February 17, 2006.

Certified questions. In Colavito v. New York Organ Donor Network, Inc., the Second Circuit certified certain questions to the New York State Court of Appeals. The questions certified are as follows:

Do the applicable provisions of the New York Public Health Law vest the intended reipient of a directed organ donation with reights that can be vindicated in a provate party's lawsuit sounding in the common law tort of conversion or through a private right of action derived from the Public Health Law?

Does the Public Health Law immunize either negligent or grossly negligent conduct?

If a donee can bring a provate action to enforce the rights referred to in the first question, may the plaintfiff recover nominal or punitive damages without demonstrating pecuniary loss or actual injury?

The decision can be found at the Second Circuit website. The case was decided on February 23, 2006.

Another new blog. My law firm, Cox Padmore Skolnik & Shakarchy LLP is starting a new blog, which will deal with commercial law. The template of the blog already exists, but the content will be appearing shortly, probably some time nex week. Please check it out.

New blog. Well, it's not really new. I've known about it for some time, but for some unknown reason I never added it to my blogroll. Second Circuit Blog is run by members of the Federal Public Defenders office in the Second Circuit. It appears to deal exclusively with Second Circuit criminal cases, though, if I am wrong on that, I hope someone will correct me so that I can correct the error. It is now on my blogroll and I encourage my readers (such as they are) to check it out.

Spanish Isn't Hispanic. New York's definition of "Hispanic" for purposes of certifying minority-owned businesses for possible affirmative action excludes people of Spanish or Portugese descent who do not also come from Latin America. The Second Circuit, in Jana-Rock Construction v. New York State Department of Economic Development held that under rational basis review the distinction passes constitutional muster. The decision, which was rendered on February 21, 2006, can be found at the Second Circuit website.

New Policy. This is my policy, not the Court's. While I will continue to provide summaries of Second Circuit cases, I am going to also post on my general views on the law, appellate practice and other legal matters. I hope that you will continue to find this blog to be interesting and informative. If you have comments, complaints or suggestions, feel free to e-mail me.

Fully retained. In the Western District of New York, they have a practice of asking retained attorneys whether they are "fully retained," i.e., retained for the duration of the case, to avoid mid-trial motions for the appointment of counsel once the defendant's money has run out. This policy was challenged in United States v. Parker, which was decided on February 21, 2006. The Second Circuit held that the policy is proper. The decision can be found at the Second Circuit website.

Constitutional. The Second Circuit has held that the Religious Freedom Restoration Act of 1993 is Constitutional as applied to federal age discrimination law. The case involved a church policy requiring retirement of ministers at age 70. Paul Hankins, a Methodist minister who challenged the policy. In that RFRA had been found unconstitutional as it applied to state law, I'm looking forward to a close reading of the decision to see the Court's reasoning in upholding it as applied to federal law. Stay tuned for a further post. I've noticed that the "link" to Hankins v. Lyght is not working, but you can find a link to it at Findlaw. (If you are reading this post long after February 20, 2006, the link may not be there (it's the recent cases link), but search around and you should be able to find it. The case was decided on February 16, 2006.)

Family planning. It's well known that China has a family planning policy which allows couples to have only one child. Violation of that policy was punished by sterilization. The Chengs claimed that they could not be removed from the United States based on Article III of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Convention prohibits the expulsion of an alien if there are substantial grounds to believe that he or she would be in danger of being subjected to torture. The Chengs claims that the Chinese policy constituted torture. The Immigration Judge rejected their claims for relief from removal and the Board of Immigration Appeals affirmed. The Second Circuit, in Ni v. Board of Immigration Appeals, held that the immigration judge's failure to consider the Chengs' claims constituted reversible error, granted the Chengs' petition and remanded the case for further proceedings. The decision can be found at the Second Circuit website. The case was decided on February 13, 2006.

Changes to Blog Roll. I've noticed that some of the blogs on my blog roll are no longer active. Second Circuit News is long gone. There hasn't been a post on On Appeal in many a moon. The Induce Act Blog has changed it's name to Legislating IP. And the Blawg Channel has fallen apart, and it's mission has been taken over by Between Lawyers. These changes have been made to the blog roll. If you know of any suitable blogs that should be added, don't be shy; let me know.

Help! I used to be able to get direct links to cases through Findlaw. Now when I find a case, I get an adobe document without an URL. The same thing happens at the Second Circuit website. If anyone knows a way to get a direct link, I'd appreciate it. E-mail me at the link on the right.

Diversity Jurisdiction Under the Telephone Consumer Protection Act. The Telephone Consumer Protection Act prohibits the sending of unsolicited junk faxes. The statute provides the state courts with exclusive jurisdiction. But the Second Circuit has held that where there is a basis for diversity jurisdiction, a federal district court can hear the case. The decision in Gottlieb v. Carnival Corp., decided on February 3, 2006, can be found at the Second Circuit website

Partial Birth Abortion Law is Out. The Second Circuit, in National Abortion Federations v. Gonzalez held the the Parial Birth Abortion Ban Act was unconstitutional because it lacked an exception for the protection of a woman's health. Chief Judge Walker concurred in the result, and Judge Straub dissented from the ruling. The decision (by Judge Newman), concurrence and dissent can be found at the Second Circuit website.

Without Prejudice. In Camilli v. Grimes, the Second Circuit held that a District Court properly exercised its discretion in allowing the plaintiff to dismiss her claim without prejudice, even though such an action would prevent the defendant from bringing a malicious prosecution action. The dismissal in this case would only allow the plaintiff to reassert her claims if the defendant brought an action against her. The decision can be found at the Second Circuit website.

From the Second Circuit Website:

12/28/05 - Due to a planned infrastructure upgrade to the Thurgood Marshall United States Courthouse, located at 40 Foley Square, the Law Library will close on Friday February 24, 2006 for the duration of the project. During the pendency of the project, the library collection temporarily will be relocated.
Effective January 3, 2006, Library Hours will be: Monday, Wednesday, Friday, 9:00 am to 12 :00 noon, Tuesday and Thursday, 9:00 am to 4:45 pm. A list of local public access law libraries and Government Documents Depository Libraries is available in the Library.

Martha loses. Well, it was worth a try, especially when you have a lot of money and had already served your sentence. But Martha Stewart lost the appeal of her conviction. The decision can be found here. (You have to click on the link to the United States v. Stewart case.)

Answers to Certified Questions. The Second Circuit had sent two certified questions to the New York State Court of Appeals in Regatos v. North Fork Bank. The questions were:

1. Can the one-year statute of repose established by New York UCC 4-A-505 be varied by agreement? If so are there any minimum limits of the variation thereof (such as "reasonable time") that estop the bank from denying Regatos recovery?

2. In the absence of agreement, deos New York UCC Article 4-A require actual notice, rather than merely constructive notice? If so, can this requirement be altered by agreement of the parties and was such achieved in this case?

The New York State Court of Appeals held that the statute of repose could not be varied by agreement. It further held that actual notice was required by the statute and that this requirement could not be altered by agreement.

In light of these answers, the Second Circuit affirmed the District Court's award of $731,005.48, plus interest, to Regatos.

The decision in this case can be found here.

Another cross-posting. The Second Circuit is on the verge of deciding whether, in considering a challenge to the substantive validity of an individualized education program (IEP) in special education cases, a court may consider retrospective evidence. That issue had not been considered in the administrative proceedings or by the district court, so the Second Circuit remanded the case to the district court to decide that issue. The decision in D.F. v. Ramapo Central School District can be found here. This post will also be posted on my other blog, The FAPE Page, which deals with special education issues.

Class Attorney's Fiduciary Duties. Where a party, who is technically part of a class, but enters an appearance in the class action by his own attorney, he cannot sue the class attorney for breach of fiduciary duty. Because he had his own attorney, he was not represented by the class attorney. The decision in Schick v. Berg can be found here.

Reduced fees. Well, there's one attorney who probably will take a hit in his business now that the decision in In re Goldstein has been released. David Goldstein, for reasons that are not clear, took an inordinate amount time to consummate the settlement of a wrongful death action in which he represented the plaintiff. Different explanations for the delay were given to different parties at different times in the case. At any rate, despite the delay, Goldstein asked for his full contingeny fee. The magistrate judge balked, noting that a number of Goldstein's cases had languished because of his lack of attention and disregard of court orders and that she had previously recommended sanctions against him in another case. The magistrate judge issued a recommendation that Goldstein's fees and expenses be radically reduced. The District Court adopted the recommendation. The Court referred the case to the Grievance Committee for the First Department and for the Eastern District of New York. Goldstein appealed.

The Second Circuit held that the District Court had the authority to reduce his fees and its decision to do so in this case was not an abuse of discretion. The Court stated: "Goldstein's arguments regarding the reduction of his fees demonstrate no error, much less and abuse of discretion. When asked to provide evidence of his disbursements, he did not do so. That failure and the treatment of his client, who had to personally seek the court's aid in forcing Goldstein to complete the settlement, slone justify the reduced award."

The Second Circuit held that it did have jurisdiction to consider an appeal from that part of the District Court's order, referring the matter to the disciplinary committees because the order had reputational consequences and potential costs in responding to the referral. This jurisdiction is limited. The Court may only review in such a case "for prejudicial procedural error, clear error in findings of fact, and abuse of discretion in the sanction imposed." Under the circumstances of the case, the Court affirmed this section of the order as well.

The decision in this case can be found here.

A3G Revealed! Not that it's news anymore, but blogger Article III Groupie of Underneath Their Robes is no longer anonymous and he's a federal prosecutor. And now that it's known that David Lat is the infamous A3G, he has closed down the blog. For more info, click here. This post is not really about the Second Circuit, but I don't want to be the only legal blogger who didn't mention it.

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.)