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IMMIGRATION
Biao Yang v. Gonzales, July 31
The circuit finds that immigration judges, in two
cases consolidated for appeal, properly denied asylum on grounds that
petitioners lacked credibility, in one case due to inconsistencies in
petitioner's story and in the other because petitioner failed to call
as witnesses his cousin and members of his church, who could have
vouched for his claim that he suffered religious persecution in China.
However, the Board of Immigration Appeals should reconsider the
findings in each case that the asylum applications were frivolous in
light of a recent ruling clarifying the rules that govern
frivolousness determinations. In neither case did the judge make
specific findings that petitioner deliberately fabricated material
elements of his asylum claim. Vacated in part.
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SENTENCING
USA v. Cuevas, July 27
The circuit holds that defendant, who was
extradited from the Dominican Republic to the United States to face
drug trafficking charges, is not covered by the Dominican Republic's
30-year sentencing cap because U.S. officials never agreed to such a
limitation as a condition of his extradition. However, the case is
remanded for reconsideration under advisory sentencing guidelines of
the 390-month sentence. Remanded.
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PRISONERS RIGHTS
Macias v. Zenk, July 26
The district court dismissed for failure to
exhaust administrative remedies plaintiff inmate's claim that prison
health officials failed to address his medical need for pain
medication and other treatment in violation of the Eighth Amendment.
The circuit holds that plaintiff was required to file a grievance as a
first step even though the Bureau of Prisons' administrative remedy
system was authorized to provide only some of the relief he sought.
However, on remand, the district court must determine whether threats
by prison personnel to withhold food and medication from plaintiff if
he pursues his complaint rendered the administrative grievance
procedures unavailable to him. Vacated.
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IMMIGRATION
Khan v. Gonzales, July 26
The circuit finds that the immigration judge's
unambiguous misstatement of pertinent facts in the record, when he
denied petitioner's application for a waiver of deportability by
stating that petitioner had multiple drug convictions, rather than a
single conviction for a drug transaction involving two counts, raises
a question of law over which the circuit has jurisdiction. However,
petitioner failed to raise that issue before the Board of Immigration
Appeals, and the government raises issue exhaustion as an affirmative
defense, so the circuit is precluded from considering the challenge.
Petition for review denied in part and dismissed in part.
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SECURITIES, CLASS ACTIONS, CIVIL PROCEDURE
In re WorldCom Securities Litigation v. In re WorldCom Securities
Litigation, July 26
The district court dismissed as time-barred the
actions of certain bondholders of WorldCom brought against the
underwriters of the bonds under Section 11 of the Securities Act. The
circuit holds that the filing of a complaint asserting a class action
tolled the statute of limitations for the bondholders at issue, which
are public and private pension funds that were putative class members,
even though they filed individual suits asserting the same claims
prior to the class certification decision. Vacated and remanded.
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EMPLOYMENT
Kassner v. 2nd Avenue Delicatessen Inc., July 24
The district dismissed as time-barred and for
failure to state a cause of action all of the employment
discrimination claims filed by two plaintiffs, waitresses aged 61 and
79 who asserted that defendant employer pressured them to retire and
gave them less desirable work assignments than younger workers in
retaliation for their complaints about their treatment. The circuit
finds that while some claims were properly dismissed as time barred,
one plaintiff's claim alleging that retaliatory assignments began
after she requested that her union file a grievance on her behalf
properly stated a claim of employment-related age discrimination. The
other plaintiff should be allowed to proceed to discovery and put on
evidence in support of her hostile work environment claims. Reversed
in part.
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CONTRACT, COPYRIGHT
Phillips v. Audio Active Ltd., July 24
The circuit holds that a forum selection clause
asserting that disputes over a recording contract are to be resolved
in England under English law is mandatory, and enforcement of the
clause with respect to the contract claim would not be unreasonable.
However, plaintiff's claims alleging infringement of his copyrights do
not originate from the recording contract because plaintiff does not
rely on the contract to establish his ownership of the relevant
copyrights. Those claims instead arise under the Copyright Act because
plaintiff relies on his authorship of the work. Thus, those claims are
not covered by the forum selection clause. Reversed in part.
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EVIDENCE
US v. Rodriguez, July 24
The district court concluded that since the
government did not make a record of an interview with a cooperating
witness in which the witness lied, the government was under no
obligation to disclose the substance of the lies to defense counsel.
The circuit holds that while the government is under no obligation to
take notes of interviews with every potential witness, the government
has a duty to disclose information that may impeach its witnesses or
exculpate the defendant, even if the information has not been recorded
in tangible form. On remand, the court must determine whether the
undisclosed statements in this case were sufficiently material that
the government was obligated to make a disclosure. Remanded.
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SEARCH
U.S. v. Baldwin, July 23
The circuit concludes that defendant, who pulled
his car over in response to a patrol car's overhead lights and siren
but then proceeded to drive away, did not submit to police authority
and therefore was not seized within the meaning of the Fourth
Amendment, so there is no need to determine whether police had
probable cause to pull him over. However, his unprovoked flight from
the police gave officers probable cause to arrest him and the district
court properly denied defendant's motion to suppress evidence found
after the arrest. Affirmed.
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IMMUNITY, CIVIL RIGHTS
Zellner v. Summerlin, July 20
After a jury awarded plaintiff damages for false
arrest and imprisonment, the district court granted judgment to police
officers because police had probable cause to arrest plaintiff, a
college professor who monitored a protest at a construction site. The
circuit finds that the district judge impermissibly substituted his
own findings for those of the jury on factual issues including whether
plaintiff, while talking to a police officer, attempted to sit down to
block a truck and encouraged other protesters to sit down. The circuit
upholds the dismissal of plaintiff's excessive force claim but remands
for reinstatement of the jury's awards of compensatory and punitive
damages on the claims for false arrest and imprisonment. Reversed in
part.
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SENTENCING
USA v. Rose, July 20
The circuit finds that the district court
properly declined to resentence defendant and even though the court
did not specifically mention the mandatory factors that it took into
consideration, there was no indication that the court was unaware of
the obligation to consider the factors enumerated in the sentencing
statute and of the sentencing options under advisory guidelines. The
court properly enhanced the sentence for defendant's use of a minor
even though the minor was not vulnerable to exploitation but instead
was a hardened drug dealer. Affirmed.
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CONSTITUTION, GOVERNMENT
OneSimpleLoan v. U.S. Secretary of Education, July 19
The circuit finds, pursuant to the "enrolled bill
rule," that the text of a bill in Congress, as authenticated by the
presiding officers of the House and Senate before being presented to
the president, is unimpeachable, even if the version of the bill
passed by the House of Representatives is not identical to the version
passed by the Senate. Affirmed.
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ATTORNEYS
U.S. v. Santiago, July 18
Defense counsel sought to withdraw from
representing defendant on grounds that there is no non-frivolous basis
for appeal. The circuit denies the motion to withdraw but without
prejudice to renewal upon the filing of a declaration showing that
reasonable efforts were made to ensure that the defendant, who may be
illiterate, receives adequate oral notice of counsel's withdrawal and
of defendant's right to proceed pro se or seek appointment of new
counsel.
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IMMIGRATION
Saleh v. Gonzales, July 17
The circuit holds that petitioner, a lawful
resident alien who was found to be removable after he was convicted of
receiving stolen property, remained removable even after petitioner
obtained an amendment of the judgment in the criminal case downgrading
the offense to the nonremovable misdemeanor of petty theft, because
the amendment was secured solely to help petitioner avoid immigration
consequences, not because of any procedural or substantive defect in
the original conviction. Petition denied.
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IMMIGRATION
Lin v. U.S. Department of Justice, July 16
The circuit holds that the statute that grants
eligibility for asylum to those who have been forced to abort a
pregnancy or to undergo involuntary sterilization was not intended to
confer automatic asylum eligibility on spouses, whether legal spouses
or spouses from a traditional marriage, but only on individuals who
themselves have undergone or been threatened with coercive birth
control procedures. Petitions denied.
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IMMIGRATION
Manzur v. U.S. Department of Homeland Security, July 16
The family of a General, who was accused of
plotting a coup and was executed in Bangladesh, sought asylum. The
circuit finds that the denial of asylum deficient because the analysis
of several of the individual incidents of past harm contains both
legal and factual errors. Also, the lower court's reasoning does not
show that the judge properly considered petitioners' claims in the
aggregate by determining how the individual incidents affected the
significance of the other incidents. Petition granted.
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CONSTITUTION
Husain v. Springer, July 13
The circuit finds that a public college
president's decision to cancel a student government election because
of content published in a school newspaper violated the First
Amendment rights of the student journalists who produced the
publication. The paper was supported by a mandatory student activity
fee and constituted a limited public forum. Thus the content could not
be restricted unless school officials could assert a compelling
government interest in maintaining public order. An issue remains as
to whether the president reasonably believed that her actions were
lawful at the time she nullified the election, so the district court
inappropriately determined that the president was entitled to
qualified immunity. Remanded.
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IMMIGRATION
Chambers v. Gonzales, July 13
The circuit finds that a legal resident alien who
was a passenger in a car that drove across the border from Canada with
her previously deported boyfriend, committed affirmative acts of
assistance to an alien when she attempted to illegally enter the US by
lying about his residence and concealing his passport. Though no
subterfuge in the form of fraudulent documents or hidden compartments
was used, petitioner's lies supported the inference that she knew her
boyfriend could not legally enter the country, and thus she was
properly found to be removable. Petition denied.
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IMMIGRATION
Ni v. Gonzales, July 12
The circuit finds that that the denial of
petitioner's asylum application was based on an adverse credibility
finding that was supported by petitioner's implausible and
inconsistent testimony about her fear of sterilization in her native
China, a fear that she did not mention in her asylum application but
raised only at the end of a hearing before an immigration judge. The
circuit does not need to reopen proceedings to take evidence of a
heightened risk of sterilization now that petitioner has had a baby
because the regulations only provide an avenue for reopening
proceedings before the Board of Immigration Appeals, if petitioner has
new, material evidence that was previously unavailable. Petition
denied.
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REAL ESTATE
Rivkin v. Century 21 Teran Realty, LLC, July 12
The district court dismissed claims by plaintiff,
who unsuccessfully bid on a house and accused the real estate broker
of a breach of fiduciary duty. The circuit certifies to the New York
Court of Appeals the question of whether a real estate broker breaches
a fiduciary duty to a client by failing to disclose that the broker
also represented a competing buyer for the property sought by the
client.
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ATTORNEY FEES
Arbor Hill Concerned Citizens Neighborhood Association v. County of
Albany, July 12
To clarify how the forum rule should be applied
to determine reasonable attorney fees for a prevailing party, the
circuit holds that the district court may adjust the prevailing hourly
rate in the district where the suit was filed to account for a
plaintiff's reasonable decision to retain out-of-district counsel.
However, the district court should also consider what a reasonable,
paying client would expect to pay. Plaintiffs prevailed in a voting
rights case filed in Albany, and the district court properly found
that a reasonable, paying resident of Albany would have made a greater
effort than plaintiffs did to retain an attorney in the Northern
District of New York, where rates for legal services are lower than in
the Southern District, where plaintiffs found the attorneys who
represented them. Affirmed.
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INSURANCE
Industrial Risk Insurers v. Port Authority of New York and New Jersey,
July 12
The district court dismissed claims by an
insurer, which paid over $400 million for the collapse of a building
adjacent to the World Trade Center towers, that the largest tenant in
the building was responsible for gross negligence in the design of a
diesel fuel generator system that exacerbated a fire and contributed
to the collapse. The circuit finds that the district court properly
dismissed the insurer's claim on grounds that New York's
subrogation-waiver doctrine precluded plaintiff's claims that sound in
gross negligence. Affirmed.
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SECURITIES
ATSI Communications Inc. v. The Shaar Fund, Ltd., July 11
The circuit finds that plaintiff's claim that
defendants acquired plaintiff's shares of convertible preferred stock
on fraudulent pretenses, then aggressively short sold common stock in
plaintiff company and converted the preferred stock to cover their
short positions, lacks specific allegations that defendants did
anything to manipulate the market. The claim thus failed to meet the
heightened pleading requirements for a securities fraud claim.
Affirmed.
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CONFRONTATION
USA v. Lombardozzi, July 11
The circuit finds that a co-conspirator's plea
allocution admitted into evidence against defendant violated the
Confrontation Clause, as interpreted by a Supreme Court ruling handed
down after defendant was convicted. However, the error was harmless
because even without that hearsay testimony, the evidence supported
defendant's conviction for extending credit on extortionate terms.
Affirmed.
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IMMIGRATION
Batista v. Gonzales, July 10
The Board of Immigration Appeals determined that
petitioner was ineligible for a discretionary waiver of
inadmissibility because she attempted to smuggle an alien into the
United States who was not her "spouse, parent, son, or daughter." The
circuit concludes that even though the alien who petitioner attempted
to smuggle was her nephew, whom she treated as though he were her son,
the Board's construction of the statutory term "son" to exclude a
nephew is reasonable. Petition denied.
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IMMUNITY
State Employees Bargaining Agent Coalition v. Rowland, July 10
The circuit holds that in this suit against the
now former Connecticut governor and secretary of the Office of Policy
& Management challenging a 2002 order terminating 3,000 unionized
state workers due to a budget crisis, defendants are not entitled to
legislative immunity with respect to plaintiffs' claims to placement
into other, existing positions, because granting this relief would not
enjoin defendants in their performance of legislative functions.
However, discovery is necessary to assess whether defendants are
entitled to legislative immunity with respect to plaintiffs' claims
for reinstatement to their previous positions in order to determine
whether the specific relief sought would enjoin defendants in their
performance of legislative functions. Affirmed.
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IMMIGRATION
Khan v. Gonzales, July 10
The circuit concludes that extraordinary or
unique circumstances may excuse an untimely challenge to an order of
removal with the Board of Immigration Appeals and here the Board did
not consider whether petitioner had established such circumstances.
The jurisdictional language in the order that dismissed petitioner's
appeal suggests that the Board assumed there were no equitable
exceptions to the time limits for appeals provided by regulation.
Petition granted.
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BAIL
USA v. Sabhnani, July 9
The circuit finds that the district court order
compelling the pretrial detention of defendants, who are foreign
nationals charged with harboring and abusing illegal aliens, must be
vacated because the government has now identified further conditions
necessary to assure defendants' attendance at trial and defendants are
willing to abide by these conditions. Remanded.
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ARBITRATION
Applied Industrial Materials Corp. v. Ovalar Makine Ticaret Ve Sanayi,
A.S., July 9
The circuit concludes that a member of an
arbitration panel, who cast the deciding vote on an arbitration award,
violated the Federal Arbitration Act when the arbitrator failed to
disclose that the company for which he serves as chief executive
officer had a business relationship, generating the nontrivial amount
of $275,000 in revenue, with a company that is acquiring one of the
parties in the dispute. Motion to vacate the arbitration award
affirmed.
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BANKRUPTCY
Official Committee of Unsecured Creditors of Applied Theory Corp. v.
Halifax Fund, L.P., July 9
The circuit finds that the unsecured creditors'
committee had no authority to bring an adversary suit for equitable
subordination because both the trustee and bankruptcy court determined
that the claim would not benefit the estate. Affirmed.
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CONSTITUTION
Bronx Household of Faith v. Board of Education of the City of New
York, July 2
The circuit vacates a permanent injunction that
barred the NYC Board of Education from allowing a church group to use
school facilities for Sunday worship services, but the circuit does
not address the merits because the three judges on the panel do not
agree that the dispute is ripe for adjudication. If the parties want
to bring this protracted litigation to an end, the city can adopt the
Revised Standard Operating Procedure Manual, then require plaintiff to
apply to use school buildings pursuant to that rule, and if the city
denies the application, plaintiff may seek review of that denial in
the district court on an expedited basis and either party's appeal
from any judgment of the district court will be referred to this
panel. |
