Federal Judiciary

Congratulations. As regular readers

Posted on March 04, 2008
Congratulations. As regular readers of this blog (if there is such a thing) know, I have the practice of "adopting" a law school blogger. My current adoptee is "Butterflyfish," who blogs on life and law school. She has just been made an editor on the law review of her unnamed law school...

Absolute immunity. The Second

Posted on February 25, 2008
Absolute immunity. The Second Circuit has held that testifying witness in police disciplinary hearings have absolute immunity.The decision in Rolon v. Henneman can be found here.

What is a person? Chemical companies

Posted on February 25, 2008
What is a person? Chemical companies were held to persons under 28 U.S.C. 1442(a)(1), allowing them to remove a case to federal action. The chemical companies were found to have acted under a federal officer performing acts under color of federal office with respect to Agent Orange...

Certified question. The Second

Posted on February 19, 2008
Certified question. The Second Circuit has certified an interesting question to the New York State Court of Appeals. (Well, they're all interesting to me, but that 's because I'm a Second Circuit geek.) The question is whether, when an injured person brings an action against an insured by serving the party throught the Secretary of State, this service suffices to trigger the insured's obligation to notify his insured under the terms of the policy...

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Terror Publicity. The owner of

Posted on February 15, 2008
Terror Publicity. The owner of an ice cream parlor in Park Slope, Brooklyn, who had been convicted of illegally funneling money from the business to Yemen in violation of U.S. law. There had been some publicity about his terror connections, and he was convicted...

Suspension. The Second Circuit,

Posted on February 14, 2008
Suspension. The Second Circuit, in Ruis-Martinez v. Mukasey, has held that the REAL ID Act does not violate the Suspension Clause of the Constitution. The respondents had argued that relief under the Act, with its 30-day limitations period, was not an adquate substitute for relief under a writ of habeas corpus...

Objection. The Second Circuit

Posted on February 07, 2008
Objection. The Second Circuit has held that the objection of the Department of Homeland Security to a petition to reopen a removal proceeding, having nothing to do with the merits, is an insufficient basis to deny the petition.The decision in Melnitsenko v...

Doctor an Employee. While the

Posted on January 29, 2008
Doctor an Employee. While the Court asserted that the issue is fact specific, it held that issues of fact from which a jury could infer that a staff physician was an employee, and not just an independent contractor, and subject to statutes prohibiting sexual harassment...

Conference. Calling all appellate

Posted on January 24, 2008
Conference. Calling all appellate attorneys. I've just been advised that the DRI Appellate Advocacy Seminar will be held on February 28-29, 2008 in Orlando Florida. The program includes:An assessment of the Roberts Court by Supreme Court practitioner Patricia Ann Millett and law professor David Stras...

Overtime. The Second Circuit held

Posted on January 24, 2008
Overtime. The Second Circuit held that a nurse placement service had violated the Fair Labor Standards Act by failing to pay its employees time and a half for working overtime without authorization, however, held that the Secretary of Labor could not find the company in contempt of a consent order, requiring the company to pay its workers overtime rates for work in excess of 40 hours...

Straying. A sentence which strayed

Posted on January 15, 2008
Straying. A sentence which strayed from the terms of a plea agreement warranted setting a hearing before the District Court on the issue of sentencing. The summary order issued in United States v. Leonardo can be found here. The defendant in this case was a disgraced ex-lawyer, Anthony Leonardo Jr...

Not following Procedures. When

Posted on January 10, 2008
Not following Procedures. When procedures designed to safeguard an immigrant's right to counsel were not followed by the government, the Second Circuit reversed the order of removal imposed by the Immigration Judge and affirmed by the Board of Immigration Appeals...

Immigration Custody. The Second

Posted on January 07, 2008
Immigration Custody. The Second Circuit has held that a person in immigration custody is not "in custody" within the meaning of 28 U.S.C. 2254.The decision in Ogunwomoju v. United States can be found here.

Outlaws. The Second Circuit affirmed

Posted on December 24, 2007
Outlaws. The Second Circuit affirmed the order of the district court granting summary judgment to the Connecticut Department of Corrections, dismissing the action brought against it by correctional officers who had been disciplined for being members of the Outlaws Motorcycle Club...

No immunity. In Gilles v. Repicky,

Posted on December 21, 2007
No immunity. In Gilles v. Repicky, the Second Circuit reversed an order granting summary judgment based on qualified immunity grounds. The Court held that a police officer could not hold an individual after he no longer had reasonable grounds to believe that she had engaged in criminal activity, even if at the time of the stop, he had such grounds...

More certified questions. The

Posted on December 18, 2007
More certified questions. The Second Circuit is putting the New York State Court of Appeals back to work by certifying some more questions. The questions submitted to the New York Court in Reddington v. Staten Island University Hospital are:Does the institution of a time-barred claim pursuant to New York Labor Law 740 simultaneously with a claim pursuant to New York Labor Law 741 trigger section 740(7)'s waiver provision and thereby bar the section741 claim, even if the section 740 claim is subsequently withdrawn?Does the definition of employee in New York Labor Law 741 encompass an individual who does not render medical treatment, and under what circumstances?The decision can be found here.

Unsworn recantation. The Second

Posted on December 18, 2007
Unsworn recantation. The Second Circuit in Haouari v. United States denied without prejudice a criminal convict's motion to file a second motion under 28 U.S.C. 2255 because the new evidence was not in the proper form. The evidence was an unsworn letter from the petitioner's co-conspirator, recanting his prior testimony...

Unsubstantiated. The Second Circuit

Posted on November 28, 2007
Unsubstantiated. The Second Circuit remanded a case to the district court for resentencing because it was unclear to what extent the district court had impermissibly based its sentencing enhancement on unsubstantiated charged conduct.The decision in United States v...

Terror. The government's search

Posted on November 26, 2007
Terror. The government's search and detention of certain American citizens of the Islamic faith upon their return to the US from Canada where they were attending an Islamic convention that the government believed that terrorists would be attending was held not to violate the Administrative Procedure Act, the Religious Freedom Restoration Act or the First and the Fourth Amendments to the Constitution...

Punitive. The Second Circuit has

Posted on November 21, 2007
Punitive. The Second Circuit has affirmed an award of $1 billion in punitive damages.The damage award was based on the district court's finding that the appellants "engaged in a coordingated campaign of lies and misrepresentation in order to swindle Motorola of more than $2 billion" and that, "threatened with exposure, [appellants] resorted not only to further lies and corporate manipulations, but even to obstruction of justice and, ultimately, misrepresentations to this court...

Answered certified question. In

Posted on November 15, 2007
Answered certified question. In a case involving an alleged molestation of a child by a pastor, the Second Circuit had certified a question to the Vermont Supreme Court. The question was whether under Vermont Law a church is subject to vicarious liability for tortious acts of its pastor under the Restatement (Second) of Agency sec...

Dancing. Well, the Town of Henrietta

Posted on November 12, 2007
Dancing. Well, the Town of Henrietta has found out that you have to be careful when you attempt to close down a teen dance club. You should follow your own rules for taking away a special use permit and you should definitely not make statements that can be seen as racially discriminatory...

Withdrawn. The opinion in Salamon

Posted on November 02, 2007
Withdrawn. The opinion in Salamon v. Our Lady of Victory Hospital, which had been posted on October 29, 2007, has been withdrawn without explanation. An amended decision will be posted. If you must know what this case is about (and, of course, if you read this blog, you probably must), go to Wait A Second! for a description of the case...

Thomas J. Meskill. Senior Circuit

Posted on October 30, 2007
Thomas J. Meskill. Senior Circuit Judge Thomas J. Meskill has died at the age of 79. Before becoming a Circuit Judge, Judge Meskill was a congressman and the governor of Connecticut.

Certified question. The Second

Posted on October 15, 2007
Certified question. The Second Circuit has certified some more questions to the New York State Court of Appeals. The questions are:Whether an '"Executive" is an "employee" under Labor Law, Article 6, section 193 and entitled to the protections of that statute?In the absence of a governing written agreement, when are commissions "earned" and therefore considered "wages" under sections 191 and 193 thereby rendering most subsequent deductions unlawful?The decision in Pacter v...

Oops. The Second Circuit held

Posted on October 15, 2007
Oops. The Second Circuit held that a student seeking relief under Title III of the Americans with Disabilities Act or under Title V based on a violation of Title III does not have to exhaust administrative remedies. The District Court got it wrong...

Retroactive transfer. The Second

Posted on October 09, 2007
Retroactive transfer. The Second Circuit has held that a copyright action brought by a holder of a copyright cannot be defeated by a retroactive transfer by a co-owner of the copyright.The decision in Davis v. Blige can be found here.

World Trade Center. Well, litigation

Posted on October 09, 2007
World Trade Center. Well, litigation relating to 9/11 goes on. In In re World Trade Center Disaster Site Litigation, the plaintiffs sought to vacate a stay of proceedings pending a decision on an interlocutory appeal relating the purported immunity from suit alleged by the defendants...

Exhaustion. The Second Circuit

Posted on October 02, 2007
Exhaustion. The Second Circuit held that a student had to exhaust his administrative remedies before going to Federal Court even though he was scheduled to graduate before his remedies could be exhausted. The plaintiff in Coleman v. Newburgh Enlarged City School District had the award of attorneys' fees revered because the District Court should have dismissed the action for failure to exhaust...

Reasons. The Second Circuit has

Posted on October 02, 2007
Reasons. The Second Circuit has vacated a sentence in United States v. Hirliman because the judge for the second time had failed to provide his reasons for deviating from the Guidelines. The Second Circuit had previously remanded the case for resentencing, and ordered the judge to provide reasons for deviation, but he did not do so...

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