In a motion for costs by the prevailing party in an appeal, the motion is denied where, while an award of costs to a prevailing party pursuant to Rule 39 is customary, the court retained discretion to deny costs when, in the exercise of its discretion, it determines taxation is not appropriate, and equitable considerations militated against taxing costs.

Read Moore v. Delaware, No. 08-2426

Appellate Information

Argued June 17, 2009

Decided July 27, 2009

Judges

Per Curiam

Counsel

For Appellee:

Frank W. Miller, The Law Firm of Frank W. Miller, East Syracuse, NY

For Appellants:

Catherine E. Stuckart, Binghamton, NY

In an action under the Torture Victim Protection Act and the Fifth Amendment based on plaintiff's detention at a U.S. airport and subsequent removal to and alleged torture in Syria, the dismissal of the complaint is affirmed where 1) plaintiff insufficiently pleaded that the alleged conduct of defendant U.S. officials was done under color of Syrian law; and 2) in the context of extraordinary rendition, allowing a Bivens action against policymaking federal officials would have the natural tendency to affect diplomacy, foreign policy, and the security of the nation. 

Read Arar v. Ashcroft, No. 06-4216

Appellate Information

In Banc Rehearing: December 9, 2008

Decided: November 2, 2009

Judges

Opinion by Judge Jacobs

Dissents by Judge Calabresi, Judge Pooler, Judge Sack and Judge Parker

Counsel

For Appellant:

David Cole, Maria Couri LaHood, Jules Lobel, Katherine Gallagher, Center for Constitutional Rights, New York, NY

For Appellees:

Jonathan F. Cohn, Larry Lee Gregg, R. Joseph Sher, Dennis C. Barghaan, Assistant United States Attorneys, U.S. Department of Justice, Washington, DC

Defendant's mail fraud sentence is affirmed where: 1) a defendant is not entitled to an offset against a loss based on business expenses that confer no benefit upon the victims; and 2) Application Note 2(C) to section 2S1.1 of the Sentencing Guidelines does not preclude an enhancement for obstruction of justice pursuant to section 3C1.1 of the Guidelines where a defendant's obstruction relates to an offense underlying a money laundering offense, but not to the money laundering offense itself.

Read US v. Byors, No. 08-4811

Appellate Information

Argued: October 9, 2009

Decided: October 29, 2009

Judges

Opinion by Judge Cabranes

Counsel

For Appellant:

Bradley S. Stetler, Stetler, Allen & Kampmann, Burlington, VT

For Appellee:

Gregory L. Waples, Assistant United States Attorney, District of Vermont, Burlington, VT

In a 42 U.S.C. section 1983 action alleging that the state unlawfully established an involuntary conservatorship over plaintiff, dismissal of the complaint is affirmed in part where the judge responsible for the conservatorship did not act in the clear absence of subject matter jurisdiction, and he was not aware of the defects in personal jurisdiction, making judicial immunity appropriate.  However, as to the issue of quasi-judicial immunity under Connecticut law, the court certified the following question to the Connecticut Supreme Court:  What is the role of conservators, court-appointed attorneys for conservatees, and nursing homes in the Connecticut probate court system, in light of the six factors for determining quasi-judicial immunity outlined in Cleavinger v. Saxner, 474 U.S. 193, 201-02 (1985)?

Read Gross v. Rell, No. 08-2626

Appellate Information

Argued: May 20, 2009

Question Certified: October 27, 2009

Judges

Opinion by Judge Straub

Counsel

For Appellant:

Sall R. Zanger, Connecticut Legal Rights Project, Inc., Middletown, CT

For Appellees:

Gregory T. D'Auria, Jane R. Rosenberg, Clare Kindall, Associate Attorneys General, Hartford, CT

Defendant's firearm possession conviction is vacated where the district court erred by admitting evidence that defendant had been in an apartment from which weapons and drugs were later recovered.

Read US v. Williams, No. 08-5151

Appellate Information

Decided: October 27, 2009

Judges

Opinion by Judge McLaughlin

Counsel

For Appellant:

Donald Yanella, New York, NY

For Appellee:

Justin D. Lerer, Jo Ann M. Navickas, Assistant United States Attorneys, Brooklyn, NY

In a petition for review of a BIA order removing petitioner from the U.S., the petition is denied where, because petitioner challenged a determination committed to the sole discretion of the Attorney General -- namely, the credibility and weight accorded to certain evidence -- the court of appeals lacked jurisdiction to review her claims.

Read Contreras-Salinas v. Holder, No. 08-4611

Appellate Information

Argued: October 8, 2009

Decided: October 27, 2009

Judges

Per Curiam

Counsel

For Appellant:

Glenn T. Terk, Wethersfield, CT

For Appellee:

Russell J.E. Verby, Michael F. Hertz, Barry J. Pettinato, Office of Immigration Litigation, United States Department of Justice, Washington, DC

In an action to recover on a defaulted loan, dismissal of the action on forum non conveniens grounds is reversed where a non-signatory to an agreement may be bound by a forum selection clause and forum non conveniens waiver contained in contracts entered into by an entity alleged to be a predecessor in interest.

Read Aguas Lenders Recovery Grp. LLC v. Suez, S.A., No. 08-1589

Appellate Information

Argued: April 15, 2009

Decided: October 23, 2009

Judges

Opinion by Judge Winter

Counsel

For Appellant:

Jennifer R. Scullion, Louis M. Solomon, Daniella M. Rudy, Proskauer Rose LLP, New York, NY

For Appellee:

John J. Kerr, Jr., Simpson Thatcher & Bartlett LLP, New York, NY

In a gender and age discrimination action by an employee of a university, summary judgment for defendants is affirmed in part where plaintiff failed to produce evidence of an express or implied contract to continue her employment.  However, the order is reversed in part where: 1) in the circumstances here, a non-renewal of an employment contract itself was an adverse employment action and the district court erred in requiring plaintiff to show the existence of an unofficial tenured position to satisfy the adverse action requirement; and 2) the circumstances surrounding the non-renewal of her contract gave rise to an inference of age or gender discrimination.

Read Leibowitz v. Cornell Univ., No. 07-4567

Appellate Information

Argued: February 27, 2009

Decided: October 23, 2009

Judges

Opinion by Judge Bianco

Counsel

For Appellant:

David M. Marek, Jeffrey L. Liddle, Liddle and Robinson, LLP, New York, NY

For Appellees:

Wendy E. Tarlow, Nelson E. Roth, Valerie Cross Dorn and Norma W. Schwab, Cornell University, Ithaca, NY

In an appeal from the district court's order vacating a maritime attachment, the order is affirmed where both the party that attached the funds and the party that owned the funds were present in another jurisdiction.

Read ProShipLine, Inc. v. Aspen Infrastructures, Ltd., No. 08-0838

Appellate Information

Argued: March 12, 2009

Decided: October 22, 2009

Judges

Opinion by Judge Sack

Counsel

For Appellant:

John Sullivan, Andrew R. Brown, Hill Rivkins & Hayden LLP, New York, NY

For Appellees:

John Orzel, Vincent M. DeOrchis, DeOrchis & Partners, LLP, New York, NY

In an action claiming that defendants violated the U.S. Constitution and New York law when they successfully petitioned the family court of New York for an order temporarily removing plaintiff's child from her custody, dismissal of the action is vacated in part where: 1) the family court issued a superseding order returning plaintiff's child to her custody, and the family court proceedings were eventually dismissed, so plaintiff was not a "state-court loser" under the Rooker-Feldman doctrine; and 2) in addition, her claims did not "invite district court review and rejection" of a state court judgment.  However, the dismissal is affirmed in part where plaintiff failed to allege that the family court proceeding was terminated in her favor and thus did not state a malicious prosecution claim.

Read Green v. Mattingly, No. 08-4636

Appellate Information

Argued: October 7, 2009

Decided: October 21, 2009

Judges

Opinion by Judge Cabranes

Counsel

For Appellant:

Carolyn A. Kubitschek, Lansner & Kubitschek, New York, NY

For Appellees:

Tahirih M. Sadrieh, Edward F.X. Hart and Elizabeth A. Wells, New York, NY