Seventh Circuit. OK, it's not from the Second Circuit, but you have to read this opinion just for the first line, especially if you are an appellate lawyer.

Certified question. The Second Circuit has certified two questions to the Virginia Supreme Court. The questions are:

1. Does Virginia law permit equitable tolling of a state statute of limitations due to the pendancy of a putative class action in another jurisdiction?

2. Does Va. Code Ann. 8.01-229(E)(1) permit tolling of a state statute of limitations due to the pendency of a putative class action in another jurisdiction?

In Casey v. Merck & Co., the plaintiffs had filed a products liability claims that were governed byVirginia law after the limitations period had elapsed, but argued that the statute should have been tolled because of the existence of a class action asserting the same claims in Tennessee under the doctrine of American Pipe & Constr. Co. v. Utah. The plaintiffs claimed that Virginia recognized this doctrine. The Second Circuit felt unsure of this issue and certified the questions. The decision in Casey can be found here.

No baseball caps. The Second Circuit has upheld a District Court decision, dismissing an action by an attorney who was ordered not to wear a baseball cap and casual attire when appearing in Court. The attorney had asserted claims under the First and Fourteenth Amendments of the Constitution. The Second Circuit held that the restriction was content neutral (which the plaintiff acknowledged) and was appropriate to support the legimate goal of maintaining decorum in Court proceedings. Assuming that a constitutionally-protected liberty interest in one's personal appearance existed, the Court held that such a right was not "fundamental" and the restriction was not subject to strict scrutiny. Since there was a rational basis for the restriction, that claim was properly dismissed.

The decision in Todd v. Katz can be found here.

Defaulted. Defendant was charged with murder. The jury was hung on his first trial. On his second trial, the testimony of a state's witness at the first trial was admitted without informing the jury at the second trial that the witness had since recanted his testimony. The Defendant sought habeas corpus relief from the district court, which was granted. On appeal, however, the Second Circuit held that the issue had not been raised and preserved before the trial court and was procedurally defaulted under New York law.

The decision in Whitley v. Ercole can be found here.

Waiving Penalties. The Second Circuit has held that only the Attorney General, not a district court, has the authority towaive all or part of any delinquency or default penalties properly assessed under 18 U.S.D. 3612(g) for failure to pay restitution.

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

School paper. The Second Circuit held that a school can prohibit a student newspaper from publishing a sexually explicit stick-figure cartoon.

R.O. v. Ithica City School District can be found here.

Cigarette taxes on Indian reservations. The Second Circuit has held that the District Court improperly enjoined the state from enforcing a cigarette tax on sales in Indian reservations. Because the tax was paid by the consumer, not by the Indian retailer, the law did not violate tribal immunity or the tribal immunity for state taxation. And while the retailers would bear an economic burden from the prepayment of the tax, that is only because they chose to participate in the taxable cigarette market.

The decision in Oneida Nation of New York v. Cuomo can be found here.

UPDATE: After losing before the Second Circuit, the tribes went to state court and obtained a temporary restraining order enjoining New York frommtaxing reservation cigarette sales to non-Indian customers. A hearing on the tribes' motion for an injunction will be held on June 1, 2011.

Certified Question. In Connecticutt, there is a common law "make whole" doctrine, under which an insurer's right of subrogation may only be enforced after the insured has been fully compensated for his loss. In Fireman's Fund Ins. Co. v. TD Banknorth Ins. Agency Inc., an insured argued that the insurer could not collect from the escrowed funds containing the settlement of its claims against third-parties until it had recovered its deductible ($150,000) under the "make whole" doctrine. The District Court held that the subrogation clause in the insurance contract abrogated the "make whole" doctrine. On appeal, the Second Circuit disagreed. However, the Court noted that the Connecticut courts had not decided whether the "make whole" doctrine applied to deductibles. The Court certified this question to the Connecticutt Supreme Court.

The Second Circuit's decision in this case can be found here.

Sanctions for frivolous and vexatious litigation. When April Gallop commenced an action claiming that Dick Cheney and Donald Rumsfeld orchestrated the September 11, 2001 attacks for their own political purposes, you could predict that the case was not long for the world. And, of course, it was dismissed. But unwisely, Ms. Gallop and her attorneys chose to appeal, and now they face an award of sanctions. The Second Circuit held that under Rule 38 of the Federal Rules of Appellate Procedure, 28 U.S.C. 1927 and its inherent power, it had the authority to impose such sanctions, provide adequate notice and an opportunity to be heard is afforded. The Court gave Ms. Gallop and her attorneys 30 days to show cause why they should be ordered to pay double costs and damages in the amount of $15,000.

The decision in Gallop v. Cheney can be found here.

No private right of action. The Second Circuit, in M.F. v. State of New York Executive Department Division of Parole has held that the Interstate Compact for Adult Offender Supervision does not create a private right of action. M.F., an individual who had been convicted of endangering the welfare of children in New Jersey sought to move to New York, where he worked. New Jersey made a request to New York that it take over the lifetime supervision imposed upon him. New York agreed, but required him, among other things to inform his employer of his conviction. M.F refused and decided not to relocate to New York. It brought an action against the New York Division of Parole, claiming that it had violated the Interstate Compact by placing requirements on him that would not be placed on a New York offender. The District Court granted summary judgment to New York, holding that M.F. had failed to show that a New York offender would have been treated differently. On appeal, M.F. argued that New York, on a motion for summary judgment, had the initial burden of showing that the same restriction would have been placed on a New York offender, and that because New York failed to make such a showing, an issue of material fact existed, precluding summary judgment. (M.F. also claimed for the first time that the District Court did not have jurisdiction over the action and requested that the Court remand the case to the District Court with instruction to dismiss the action so that M.F. could refile in state court.) The State on appeal claimed that the restrictions placed on M.F. were no different than those that could have been placed on a New York offender. It also argued, for the first time, that the Interstate Compact created no private right of action. The Second Circuit affirmed. First, the Court held that the District Court did have jurisdiction to hear the action. The Court then held that the Interstate Compact did not create a private right of action, so that even if the State had violated the Interstate Compact, M.F. had no remedy under it to bring an action for damages. The decision can be found here.

Standing. The Second Circuit has reversed the District Court's grant of summary judgment to the Government in a case involving the constitutionality of a provision of the Foreign Intelligence Surveillane Act of 1978, which provides the Government unregulated authority to monitor international communications. The action had been brought by attorneys, journalists, and labor, legal, media and human rights organizations, who had reason to believe that their international communications might be monitored. The District Court held that the plaintiffs did not have standing to bring the action. The Second Circuit reversed, holding the because the plaintiffs have reason to fear that they will be injured by the statute and that they have incurred expenses to avoid such injury, they have standing to bring the action. The Court did not address the merits of the action.

The decision in Amnesty International USA v. Clapper can be found here.

New Judge. The Senate has confirmed the nomination of Raymond Joseph Lohier, Jr. by a vote of 92-0.

Extraterritorial reach. The Second Circuit has held that the RICO statute does not have extraterritorial reach. The decision in Norex Petroleum Limited v. Access Industries, Inc. can be found here.

She's arrived! Who has? Why the daughter of my latest law student blogger adoptee, Izzie, that's who. She's named Z, at least on the blog, and Izzie has been stingy with pictures, but I'm sure that will change.

I haven't mentioned Izzie because I thought I'd wait until I updated my blogroll. But who knows when that will happen? You can follow her law school adventures (and non-law school adventures) at Only 3 Years.

And while I'm at it, my first law student blogger adoptee, Heidi Bond, after clerking for Judge Alex Kozinski of the Ninth Circuit and Justices Sandra Day O'Connor (retired) and Anthony Kennedy of the United States Supreme Court is now an Assistant Professor at Seattle University School of Law. (She has been since 2009. I've been holding out on you.)

And my second law student blogger adoptee, Butterflyfish is still blogging and is pregnant (second time). I'm sworn to secret about anything else.

No private right of action. The Second Circuit had held that a federal statute that bars discrimination against health care workers who refuse to participate in abortion procedures does not create a private cause of action. In Cenzon-DeCarlo v. Mount Sinai Hospital, an operating room nurse claimed that she was forced to participate in a late-term abortion and sued the hospital. The Court held that there was no evidence of congressional intent to create a private right of action.

The decision in the case can be found here.

Ooooh, technical. In Local Union 36, International Brotherhood of Electrical Workers, AFL-CIO v. NLRB, the Second Circuit dealt with a technical issue. The NLRB sought to have the case transferred to the DC Circuit because it had not been served with a copy of the petition for review stamped by the court with the date of filing, as required by statute. Because of this defect, the NLRB asserted that the appeal should be heard where the case had been instituted, i.e., in the DC Circuit. The petitioner had, however, served it with the petition for review, accompanied by the e-mail bearing the date and time of filing. The Second Circuit held that this was sufficient compliance with the statute and denied the NLRB's motion.

The decision in this case can be found here.

Attorneys' Fees. The Second Circuit has held that an attorney appearing pro se in a bankruptcy proceeding is not entitled to seek attorneys' fees under Bankruptcy Code 7430 after prevailing in challenging a claim filed against him in the bankruptcy court.

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

Reissued Order. The Board of Immigration Appeals dismissed a petitioner's appeal on the ground that no brief was filed within the time scheduled by the Court. The reason for this was that her attorney withdrew, and her new attorney moved for reconsideration. Within 30 days of the denial of that motion and after the BIA had issued a "Reissued Order," she appealed to the Second Circuit even though more than 30 days after had passed since the issunace of the original order. The Second Circuit held that the appeal was timely in that the petitioner was seeking relief was from the Reissued Order.

The decision in Lewis v. Holder can be found here.

Burned. In Moltner v. Starbucks Coffee Co. (discussed below), the plaintiff had been burned while opening the lid on a "Venti"-sized cup of coffee from Starbucks. The defendant moved for summary judgment, which motion was granted. The plaintiff put in expert affidavits to show that cups and/or lids were defectively designed. The district court held that all of affidavits did not meet the standard required by Rule 702 of the Federal Rules of Evidence. The Second Circuit agreed in a summary order.

The summary order can be found here.

Removal. The Second Circuit held that the time to remove a case begins to run from the time that the amount of damages are specified, not from the time the complaint is served (though, of course, that can be the same time). In Moltner v. Starbucks Coffee Co., the plaintiff did not specify the damages in her complaint. The defendant served a Request for Supplemental Demand for Relief. The plaintiff responded that she sought damages not to exceed $3 million. The defendant then sought to remove the case to federal court. The plaintiff sought to remand the case to state court, claiming that the removal was untimely. The Court declined to remand and granted defendants' motion for summary judgment (discussed in another post). The plaintiff appealed from the order denying her motion for remand and granting the defendant's motion for summary judgment.

The Second Circuit in upholding the decision not to remand the case, stated: "We join the Eighth Circuit, as well as all of the district courts in this Circuit to have addressed the issue, inholding that the removal clock does not start to run until the plaintiff serves the defendant with a paper that explicitly specifies the amount of monetary damages." The Court felt that it was unreasonable for a defendant to be forced to guess the defendant's damage and seek removal on the basis of such a guess.

The decision in this case can be found here.