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HABEAS
Yung v. Walker, October 31
The circuit finds that the district court
improperly granted petitioner's writ of habeas corpus for the New York
trial court's exclusion of his sisters from the trial during the
testimony of an undercover officer. The district court should have
first afforded the state courts an opportunity to make additional
findings and to conduct an evidentiary hearing to permit the parties
to present additional evidence concerning the justification for the
closure. Vacated and remanded.
--------------------------
IMMIGRATION
Hoxhallari v. Gonzales, October 31
The circuit finds that respondent's claims of
persecution under the previous regime in his native Albania are too
remote, given the substantial change in circumstances in his home
country since then, to support a claim for asylum. Since country
conditions are sufficiently evident and concern a country that is the
subject of an appreciable proportion of asylum claims, the immigration
judge did not need to recite robotic findings when relying on changed
country conditions. Petition for review denied.
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IMMIGRATION
Lin v. U.S. Department of Justice, October 30
The circuit remands petitioners asylum case to
the Board of Immigration Appeals for a determination on whether newly
obtained documents established that petitioners home province in China
has an official policy of forced sterilization of parents of two or
more children, including parents whose children were born abroad. If
so, the Board should reassess petitioners claim that he risks forced
sterilization if returned to China.
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AGRICULTURE
Continental Food Group LLC v. P.J Produce Inc., October 30
The district court denied a motion by the Union
Pacific Railroad to intervene in an action by unpaid creditors of
defendant produce company to recover from a trust fund created
pursuant to the Perishable Agriculture Commodities Act. The circuit
finds that the statute was intended by Congress to benefit produce
suppliers only, and since the funds that Union Pacific is seeking to
recover are not administrative expenses of the trust, as claimed, but
unpaid transportation costs, the railroad is not entitled to be paid
ahead of PACA trust beneficiaries. Affirmed.
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ANTITRUST
Paycom Billing Services, Inc v. Mastercard International, Inc, October
30
The district court dismissed the complaint filed
against defendant credit card network by a company that serves as
payment processor for website operators, which alleged that higher
fees and penalties imposed on merchants that dont require customers to
present a card than on merchants that require customers to present the
card violate antitrust laws. The circuit concludes that since the fees
and fines are charged to banks and only indirectly passed on to
plaintiff, plaintiff lacks antitrust standing. Plaintiff also failed
to establish that the banks have jointly agreed to pass on the costs
and therefore has not sufficiently alleged concerted action. Affirmed.
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PRISONER RIGHTS
Salahuddin v. Goord, October 30
The circuit finds that defendant state
corrections officials failed to establish that they had a legitimate
penological interest for policies that interfered with plaintiffs’
ability to practice Islam, including denial of religious meals when he
was housed in a disciplinary unit and on days when he is in the prison
law library. Thus, defendants’ motion for summary judgment on the
freedom of religion claims should not have been granted. The district
court properly dismissed an Eighth Amendment claim based on defendants
failure to provide plaintiff immediate treatment for hepatitis C.
Defendants were not willfully blind to a serious medical problem but
based prison policy on treatment of hepatitis C on the fact that the
disease can take 20-30 years to generate dangerous symptoms. Vacated
in part.
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IMMUNITY
Clubside Inc. v. Nosworthy, October 25
The circuit holds that plaintiff developer did
not have a constitutionally protected property interest in the
extension of the sewer district, so defendant sewer board had
qualified immunity from plaintiff's due process claims. However, as to
plaintiff's equal protection class-of-one claim, it is not possible to
determine based on the stipulated facts whether plaintiff was treated
differently from another similarly situated developer, so the circuit
lacks jurisdiction over defendant's appeal from the denial of
qualified immunity as to that claim. Reversed in part.
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ADMIRALTY
Asoma Corp. v. SK Shipping Co. Ltd., October 25
The district court concluded that the bills of
lading, and not the contract of charter, were the governing contract
of carriage for steel damaged during shipment, and their South Korea
forum selection clause controlled. The circuit holds that in a suit
charging defendant ship owner with breach of the terms of the contract
of charter brought by the charterer, the ship owner is bound to the
terms of its contract leasing the ship to the charterer, including the
forum selection clause specifying that litigation for cargo damage be
brought in the Southern District of New York. Reversed.
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CONFRONTATION
U.S. v. Feliz, October 25
The circuit held that because autopsy reports are
public records under New York law, they are not testimonial. Thus, it
did not violate the Confrontation Clause to admit them into evidence,
even though defendant did not have an opportunity to cross-examine the
medical examiners who prepared the reports. Affirmed.
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IMMIGRATION
Beskovic v. Gonzales, October 24
The circuit finds that the immigration judge did
not identify the legal standard on which he relied in assessing
whether the treatment petitioner experienced at the hands of police in
his native country, Serbia-Montenegro, constituted persecution, so it
is not possible to determine whether he applied the correct legal
standard, precluding meaningful appellate review. Remanded.
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ERISA
Swede v. Rochester Carpenters Pension Fund, October 23
The circuit finds that a 2004 Supreme Court
ruling, which held that pension plan amendments broadening the
definition of disqualifying employment violate ERISA's "anti-cutback"
rule, applies retroactively. Thus plaintiff, whose pension was
suspended after his plan was amended to bar retirees from taking
supervisory positions within the construction industry, was entitled
to retroactive restoration of benefits. Affirmed.
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CIVIL PROCEDURE, EMPLOYMENT
Design Strategy Inc. v. Davis, October 19
The circuit finds that plaintiff was not entitled
to a jury trial because evidence to support the lost profits claim was
properly precluded due to defendant's discovery violations, and the
remaining claims were equitable in nature. The district court properly
held following a bench trial that defendant employee had breached a
fiduciary duty of loyalty that required the forfeiture of four weeks
of salary, but defendant was not liable for overpaid commissions and
had not been unjustly enriched, so the claim for punitive damages was
unsupported. Affirmed.
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ERISA
Demirovic v. Building Service 32B-J Pension Fund, October 19
The circuit finds that the district court
properly used a deferential arbitrary and capricious standard to
review a fund's denial of disability benefits to plaintiff, despite
the fact that the fund failed to make its initial determination within
the statutory time limit, because plaintiff chose to appeal the
determination and received a timely decision on the appeal. However,
even under the deferential standard, the determination was
fundamentally flawed because it failed to give a full and fair
consideration of whether plaintiff could in fact find sedentary work
that the evidence indicated she was capable of performing. Vacated in
part.
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ERISA, CIVIL PROCEDURE
LaForest v. Honeywell, October 19
The circuit holds that a company cannot presently
appeal the district court's grant of summary judgment, which held that
defendant is liable to plaintiffs under ERISA because that ruling did
not address the remedy for defendant's violation, a matter that was
ultimately mooted by a settlement of the case. Dismissed for lack of
jurisdiction.
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TAX, ADMINISTRATIVE LAW
In Re: Barbara Ann Kuhl, October 19
The circuit finds that petitioner is not entitled
to attorney fees for successfully challenging the IRS's effort to
collect taxes that had been discharged in a bankruptcy proceeding
because petitioner failed to exhaust administrative remedies.
Dismissed for lack of jurisdiction.
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TAX
William L. Rudkin Testamentary Trust v. Commissioner of Internal
Revenue, October 19
The circuit holds that investment-advice fees
incurred by a trust are not fully deductible from the calculation of
adjusted gross income for tax purposes but instead are deductible only
to the extent that they exceed two percent of the trust's adjusted
gross income. Affirmed.
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ENTRAPMENT, SEX OFFENDER
U.S. v. Brand, October 19
The circuit holds that the prosecution provided
sufficient evidence for the jury to conclude that defendant had a
predisposition to travel across state lines for the purpose of
engaging in illegal sexual activity with a minor, so his entrapment
defense cannot succeed. The court properly instructed the jury on
entrapment and also properly admitted images of child pornography
found on defendant's computer as evidence of his predisposition to
commit the crimes. Affirmed.
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PRISONER RIGHTS
Ruggiero v. County of Orange, October 19
The circuit finds that plaintiff's claim against
prison officials for excessive force was subject to the administrative
exhaustion requirement of the Prison Litigation Reform Act even though
he was confined in a drug treatment facility rather than a
conventional prison because he was confined in the facility based on
his violation of the criminal law. He offered no evidence that prison
officials did anything to prevent him from pursuing administrative
remedies, so his failure to do so was not excusable. Dismissal
affirmed.
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CRIMINAL PROCEDURE
U.S. v. Burrell, October 19
The circuit holds that defendant's conviction was
final before a U.S. Supreme Court ruling made sentencing guidelines
discretionary, so defendant may advance the claim that he should be
resentenced under advisory guidelines only on collateral review. A
remand of defendant's conviction to correct the judgment to reflect
dismissal of one count was ministerial in nature and did not change
the date on with the conviction became final for purposes of direct
review. Affirmed.
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INSURANCE
SR International Business Insurance v. World Trade Center Properties,
October 18
The circuit holds that a jury properly concluded
that some of the appellant insurers, who were engaged in negotiations
over insurance coverage for the World Trade Center at the time of the
terrorist attacks, had issued binders that treated the two attacks as
one occurrence, but other insurers had issued binders that
contemplated a two-occurrence treatment of the attacks. The jury's
determination that the insurers provided different coverage is not a
manifestation of error. Affirmed.
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ELECTIONS
Person v. New York State Board of Elections, October 18
The district court denied the motion for a
preliminary injunction filed by a candidate for state office who
challenged election rules that prohibit certain types of payments to
petition signature collectors and bestow official status only on
parties that received at least 50,000 votes in the last gubernatorial
election. The circuit finds that plaintiff has no likelihood of
success on the merits because the restriction on payments to signature
gatherers does not impose an impermissible burden on vote-gathering
and the rules concerning party status are a reasonable way to keep
frivolous candidates off the ballot. Affirmed.
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PRISONER RIGHTS
Peralta v. Vasquez, October 17
The circuit holds that when a prisoner is subject
to a single disciplinary proceeding that gives rise to one type of
sanction that affects the duration of custody and another that affects
the conditions of confinement, the prisoner can maintain a federal
civil rights action aimed solely at the sanction affecting conditions
of confinement without needing to show that the disciplinary
proceeding or punishment was invalidated, provided that the prisoner
agrees to abandon any claim as to the other type of sanction.
Remanded.
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SENTENCING
U.S. v. Pereira, October 16
The circuit finds no evidence that the sentencing
judge failed to take into account all of the required statutory
factors when it set defendant's sentence, even though the judge did
not expressly mention the factors or explain her consideration of
each. The court also properly regarded defendant's adjudication as a
youthful offender, for a 1998 conviction, as an adult felony for the
purpose of enhancing the base offense level for unlawful reentry
because defendant was convicted in an adult court and served his
sentence in an adult facility. Affirmed.
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EDUCATION
D.D. v. New York City Board of Education, October 16
The district court denied a preliminary
injunction to preschool students who claimed that New York City
schools violated their rights under the Individuals with Disabilities
Education Act through the failure to provide educational services
mandated by their Individualized Education Programs. The circuit finds
that the district court should not have used the "substantial
compliance" standard to determine whether plaintiffs could prove that
their rights were being denied, but plaintiffs have no right to
immediately receive the required educational services. The law gives
plaintiff's a right to receive mandated services "as soon as possible"
after the programs have been developed. Remanded.
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IMMIGRATION
Shao v. Board of Immigration Appeals, October 16
The circuit finds that the many discrepancies in
petitioner's story supported the immigration judge's conclusion that
petitioner's claim to have suffered past persecution in China lacks
credibility. However, the case should be remanded to the Board of
Immigration Appeals for a finding, in the first instance, as to
whether proof that petitioner already has two children in China
establishes a well-founded fear of future persecution in China, which
would qualify petitioner for asylum without proof of past
discrimination. Remanded.
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CONSTITUTION
Luessenhop v. Clinton County, New York, October 11
The circuit holds that the Tax Injunction Act
does not preclude a district court's adjudication of a taxpayer's
claim that the notice of foreclosure provided by a state taxing
authority was constitutionally inadequate, because that challenge does
not contest the government's authority to collect property taxes or
dispute the assessments or amounts owed. On remand, the court should
determine whether the tax agencies made the requisite extra efforts to
serve notice. Remanded.
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IMMUNITY
Woods v. Cafiero, October 10
The circuit finds that the Board of Education
failed to prove that it is an arm of the State of New York and thus
the Board is not entitled to immunity from a suit by a teacher who
claimed he was fired in violation of age discrimination laws. Though
the state has historically played an active role in education, local
boards of education have historically played an independent role, and
the state treasury would not be obligated to pay directly any judgment
against the Board. Affirmed.
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MONEY LAUNDERING
U.S. v. Ness, October 10
The circuit holds that defendant sought to
conceal the identity of funds by using code words, clandestine
meetings and by avoiding a paper trail, which established the
concealment element of defendant's money-laundering conviction.
Affirmed.
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CIVIL RIGHTS
Green v. City of New York, October 6
The district court dismissed plaintiff's claim
that a paramedic violated his civil rights by transporting him to a
hospital against his wishes after he suffered a medical emergency that
caused him to temporarily stop breathing. The circuit finds that the
Americans with Disabilities Act claim against the hospital was
properly dismissed because it is a private, not a public, entity. The
claims based on theories of municipal liability were also properly
dismissed because plaintiffs failed to show a failure to train
emergency workers about the right to refuse medical treatment, and
there was no evidence of a widespread practice that violated that
right. However, the district court should not have dismissed the
Fourth Amendment seizure claim because the paramedic violated a right
that was clearly established at the time. Vacated in part.
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PREEMPTION, TORT
Desiano v. Warner Lambert Co., October 6
The circuit holds that federal law does not
preempt plaintiffs' common-law tort claims under Michigan law against
the maker of a diabetes drug that caused liver problems, so the
district court improperly granted defendant a judgment on the
pleadings. Vacated.
ENVIRONMENT
Islander East Pipeline Company v. Department of Environmental
Protection, October 6
The circuit finds that the Connecticut
environmental agency's denial of petitioners permit for a gas pipeline
was arbitrary and capricious because the agency failed adequately to
explain or support its denial with record evidence, did not
acknowledge or explain contradictory record evidence, and neglected to
consider important aspects of the problem. Remanded.
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COPYRIGHT
Martha Graham School v. Martha Graham Center, October 5
The circuit finds that the district court
properly denied a new trial after it found that dancer Martha Graham
assigned the copyrights to seven unpublished dances to the Martha
Graham Center. The court correctly declined to consider new evidence
offered by appellant, the trustee of Graham's estate, because it did
not specifically relate to the seven dances. Affirmed.
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BANKRUPTCY, CIVIL PROCEDURE
In Re: The Penn Traffic Company, October 5
The circuit holds that it lacks jurisdiction to
consider an appeal from the district court's ruling on a bankruptcy
matter because the district court remanded to the Bankruptcy Court for
significant further proceedings as to whether the debtor can reject a
project agreement entered into prior to the filing of the bankruptcy
petition but under which some obligations had not yet been performed.
The final determination of the debtor's rejection motion is not merely
a ministerial act, so there has not yet been a final judgment that the
circuit can review. Dismissed.
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EMPLOYMENT
Nestor v. Pratt & Whitney, October 5
The district court dismissed plaintiff's claim
for damages under federal civil rights laws in a case in which
plaintiff already won back pay after a Connecticut civil rights
commission found that she was fired by her employer based on her sex.
The circuit finds since relief including compensatory damages other
than back pay, punitive damages, attorney fees and prejudgment
interest was unavailable from the state commission, and since the
Connecticut Supreme Court has recognized an exception to res judicata
for later actions that assert claims or seek relief that could not
have been recovered in the prior proceeding, plaintiff is entitled to
proceed with her suit in federal court. Reversed.
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CIVIL RIGHTS
Jones v. McMahon, October 5
The district court denied a law enforcement
agencies' motion to dismiss a suit against them for misconduct in
dispersing a demonstration by members of the Onondaga Nation against a
tobacco tax. The circuit finds that the motion to dismiss the free
speech claim was properly denied because it was not objectively
reasonable for defendants to believe that the demonstration presented
a clear and present danger after several protesters walked onto an
interstate freeway. Defendants' claim of qualified immunity with
respect to the excessive force claim under federal law was also
properly denied because issues remain as to the reasonableness of the
force applied.
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CIVIL PROCEDURE
In Re: American Express Co., October 3
The circuit amends its original opinion by adding
that while the statute of limitations defense was not before the court
in the appeal, it can be raised as a defense in the answer to the
appeal, when that answer is filed.
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SECURITIES
Securities and Exchange Commission v. WorldCom, Inc., October 2
A nonparty creditors committee challenged the
district court's approval of an SEC plan to distribute money it
collected through its civil enforcement action to victims of
WorldCom's securities fraud on grounds that the plan excluded
investors whose aggregated trades of securities resulted in a net
profit and those who recovered thirty-six cents or more on the dollar
in the bankruptcy proceeding. The circuit finds that the committee has
nonparty standing to appeal the district court's order, but the court
correctly reviewed the SEC's plan for fairness and reasonableness and
properly approved the hard choices made on how best to apportion
limited funds among the many injured investors. Affirmed.
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SECURITIES, DAMAGES
Boyce v. Soundview Technology Group Inc., October 2
A jury awarded plaintiff damages for defendant's
breach of a stock option agreement but plaintiff claimed that an
erroneous jury instruction reduced the amount he otherwise would have
won. The circuit finds that the lower court's instructions
misinterpreted the "wrongdoer rule," which imposes on the breaching
party the burden to establish uncertainty as to the amount of damages.
The court also incorrectly said the rule is "disliked," a comment that
may have encouraged the jury to downplay the rule, so the circuit
cannot conclude that the error was harmless. Award vacated. Remanded
for new damages trial.
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