U.S. Second Circuit: August 2009 Archives
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August 2009 Archives

Coalition on W. Valley Nuclear Wastes v. Chu, No. 07-5243

In a challenge to the Department of Energy's issuance of an environmental impact statement concerning waste management activities at a project site that did not address long-term closure issues regarding the rest of the site, summary judgment for defendants is affirmed where: 1) the waste management activities that the Department was undertaking did not depend on the closure action for their justification; and 2) a prior stipulation entered between the parties did not curtail the Department's ability to reevaluate its strategy for completing environmental impact review.

Read Coalition on W. Valley Nuclear Wastes v. Chu, No. 07-5243

Appellate Information

Argued: March 9, 2009

Decided: August 31, 2009

Judges

Opinion by Judge Livingston

Counsel

For Appellants:

Robert E. Knoer, The Knoer Group, PLLC, Buffalo, NY

For Appellees:

Tamara N. Rountree, United States Department of Justice, Washington, DC

Mary K. Roach, United States Department of Justice, Washington, DC

US v. Concepcion, No. 08-3785

In a drug and firearm prosecution, the District Court's order suppressing evidence obtained through a wiretap is reversed, where the government's affidavit in support of its application for the wiretap set forth facts minimally adequate to support the finding that a wiretap was necessary to the government's investigation.

Read US v. Concepcion, No. 08-3785

Appellate Information

Argued: June 3, 2009

Decided: August 31, 2009

Judges

Opinion by Judge McLaughlin

Counsel

For Appellant:

William J. Harrington, Assistant United States Attorney, for Lev L. Dassin, Acting United States Attorney for the Southern District of New York, New York, NY

For Appellee:

Darrell B. Fields, Federal Defenders of New York, New York, NY

Bliven v. Hunt, No. 07-1146

In a 42 U.S.C. section 1983 action claiming that Defendant-Judge violated due process by paying Plaintiff less than the amount of compensation he requested as a public defender, the dismissal of the complaint is affirmed, where: 1) the determination of Plaintiff's compensation was a judicial act and thus entitled to immunity; and 2) Plaintiff's claims against the city failed because the judges were not municipal policymakers.

Read Bliven v. Hunt, No. 07-1146

Appellate Information

Argued October 22, 2008

Filed August 28, 2008

Judges

Opinion by Judge Kearse

Counsel

For Appellant:

David Bliven, White Plains, NY, pro se

For Appellees:

Diana R.H. Winters, Assistant Solicitor General, New York, NY

Susan Choi-Hausman, New York, NY

Kuhne v. Cohen & Slamowitz, LLP, No. 08-1669

In an action under the Fair Debt Collection Practices Act claiming that defendants illegally attempted to collect a debt because they were not licensed to do so in New York, the Court of Appeals certifies the following questions to the New York Court of Appeals: 1) whether defendant was a "debt collection agency" under the pre-amendment version of New York City Administrative Code section 20-489(a); and 2) if so, whether defendant violated New York Gen. Bus. Law section 349.

Read Kuhne v. Cohen & Slamowitz, LLP, No. 08-1669

Appellate Information

Argued: May 19, 2009

Decided: August 27, 2009

Judges

Opinion by Judge Livingston

Counsel

For Appellant:

Brian L. Bromberg, Bromberg Law Office, P.C., New York, NY

For Appellees:

Thomas A. Leghorn, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, NY

US v. Main, No. 08-4088

In a drug prosecution, a denial of defendant's motion for a reduction of sentence is affirmed where the district court lacked authority to reduce defendant's sentence under 18 U.S.C. section 3582(c), because the sentence was dictated by his plea agreement pursuant to Fed. R. Crim. P. 11(c)(1)(C), and not the Sentencing Guidelines related to crack cocaine.

Read US v. Main, No. 08-4088

Appellate Information

Argued: May 11, 2009

Decided: August 27, 2009

Judges

Opinion by Judge Walker

Counsel

For Appellant:

Elizabeth D. Mann, Assistant Federal Public Defender, Burlington, VT

For Appellee:

Paul Van De Graaf, Acting United States Attorney, District of Vermont, Burlington, VT

US v. Ray, No. 08-2795

In an appeal from an order sentencing defendant, after a fifteen-year delay, to a one-day term of imprisonment and three years of supervised release with a special condition that she serve six months in a halfway house, the order is vacated where: 1) the Speedy Trial Clause of the Sixth Amendment, which governs the timing of trials, does not apply to sentencing proceedings; but 2) for purposes of a Due Process claim, the delay in the imposition of sentence was not justified by any legitimate reason and caused defendant prejudice insofar as the custodial portion of it threatened to undermine her successful rehabilitation.

Read US v. Ray, No. 08-2795

Appellate Information

Argued: January 14, 2009

Decided: August 27, 2009

Judges

Opinion by Judge Cabranes

Counsel

For Appellant:

Yuanchung Lee, Appeals Bureau, Federal Defenders of New York, Inc., New York, NY

For Appellee:

Charles P. Kelly, Assistant United States Attorney, United States Attorney's Office for the Eastern District of New York, Brooklyn, NY

David C. James, Assistant United States Attorney, United States Attorney's Office for the Eastern District of New York, Brooklyn, NY

Brodsky v. Nuclear Reg. Comm., No. 08-1454

In a petition for review of an order of the U.S. Nuclear Regulatory Commission granting an exemption from certain fire safety regulations to an energy company, the petition is dismissed, where 1) the court lacked jurisdiction under the Hobbs Act to review exemptions; and 2) the order being challenged was not an amendment or other order covered by the Hobbs Act.

Read Brodsky v. Nuclear Reg. Comm., No. 08-1454

Appellate Information

Argued: May 11, 2009

Decided: August 27, 2009

Judges

Opinion by Judge Walker

Counsel

For Petitioners:

Richard L. Brodsky, Albany, NY

For Respondent:

Robert M. Rader, General Counsel, Nuclear Regulatory Commission, Washington, DC

Karen D. Cyr, Office of the General Counsel, Washington, DC

Ford v. D.C. 37 Union Local 1549, No. 08-2317

In an action for breach of a union's duty of fair representation under the Labor Management Relations Act (LMRA), dismissal of the action for lack of jurisdiction is affirmed where the LMRA does not apply to public employees.

Read Ford v. D.C. 37 Union Local 1549, No. 08-2317

Appellate Information

Argued: August 6, 2009

Decided: August 25, 2009

Judges

Per Curiam

Counsel

For Appellant:

Roxanne Ford, pro se, New York, NY

For Appellee:

Robin Roach, Senior Assistant General Counsel, District Counsel, AFSCME, AFL-CIO, New York, NY

Sousa v. Roque, No. 07-1892

In an action by a public employee claiming that defendants retaliated against him in violation of the First Amendment for reporting workplace violence, summary judgment for defendants is vacated where the speaker's motive is not dispositive of whether the speech is on a matter of public concern.

Read Sousa v. Roque, No. 07-1892

Appellate Information

Argued: November 5, 2008

Decided: August 21, 2009

Judges

Opinion by Judge Cabranes

Counsel

For Appellant:

John R. Williams, New Haven, CT

For Appellee:

Clare E. Kindall, Assistant Attorney General, Office of the Attorney General, Hartford,
CT

Arista Records, LLC v. Launch Media, Inc., No. 07-2576

In a copyright infringement action, an order finding that LAUNCHcast, a music webcasting service that provides users with individualized internet radio stations, did not constitute an interactive service under 17 U.S.C. 114(j)(7) is affirmed where: 1) a user could not request a particular song on demand through defendant's service; and 2) defendant's service did not provide a program specially created for the user.

Read Arista Records, LLC v. Launch Media, Inc., No. 07-2576

Appellate Information

Argued: March 17, 2009

Decided: August 21, 2009

Judges

Opinion by Judge Wesley

Counsel

For Appellants:

Hadrian R. Katz, Arnold & Porter, LLP, Washington, DC

For Appellee:

Michael S. Elkin, Winston & Strawn LLP, New York, NY

US v. Hassan, No. 05-6949

Defendant's money laundering convictions are reversed where, although the government had abundant evidence of defendant's khat-related activities, the circumstantial evidence that the government presented did not support an inference that his proceeds were the result of the importation of cathinone. Other drug and conspiracy convictions are vacated where the district court gave erroneous instructions that omitted defendant's specific intent to import a controlled substance.

Read US v. Hassan, No. 05-6949

Appellate Information

Argued May 4, 2007

Filed August 21, 2009

Judges

Opinion by Judge Pooler

Counsel

For Appellant:

Ira M. Feinberg, Hogan & Hartson, L.L.P., New York, NY

For Appellee:

Mary K. Barr, Assistant United States Attorney for the Eastern District of New York, Brooklyn, NY

Koehler v. Bank of Bermuda Ltd., No. 05-2378

In a proceeding to enforce a default judgment, denial of petitioner's motion seeking an order and requiring respondent to deliver to petitioner certain stock certificates is vacated where a court sitting in New York may order a bank over which it has personal jurisdiction to deliver stock certificates owned by a judgment debtor (or cash equal to their value) to a judgment creditor, pursuant to N.Y. C.P.L.R. Article 52, when those stock certificates are located outside New York.

Read Koehler v. Bank of Bermuda Ltd., No. 05-2378

Appellate Information

Argued: February 29, 2008

Decided: August 20, 2009

Judges

Per Curiam

Counsel

For Appellant:

Brian G. West, Towson, MD

For Appellee:

Daniel B. Rapport, Friedman Kaplan Seiler & Adelman LLP, New York, NY

Robert J. Lack, Friedman Kaplan Seiler & Adelman LLP, New York, NY

In an appeal from a district court order granting an application by a newspaper to access sealed wiretap applications relating to the investigation of a prostitution ring, the order is reversed where: 1) petitioner did not show good cause to unseal the wiretap-related documents pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968; and 2) petitioner did not have a First Amendment right to gain access to wiretap applications.  (Amended opinion)

Read In the Matter of the App. of the N.Y. Times. Co. to Unseal Wiretap & Search Warrant Materials, No. 09-0854

Appellate Information

Argued: June 16, 2009

Decided: August 6, 2009

Amended: August 20, 2009

Judges

Opinion by Judge Cabranes

Counsel

For Appellant:

Daniel L. Stein, Assistant United States Attorney

For Appellee:

David E. McCraw, The New York Times Company, Legal Department, New York, NY

Itai Maytal, The New York Times Company, Legal Department, New York, NY

US v. Gamez, No. 07-3660

Defendant's sentence for illegally reentering the U.S. following removal is vacated where criminal possession of a weapon in the second degree, in violation of N.Y. Penal Law section 265.03, is not a crime of violence for the purposes of Sentencing Guidelines section 2L1.2(b)(1)(A)(ii).

Read US v. Gamez, No. 07-3660

Appellate Information

Argued: September 23, 2008

Decided: December 5, 2008

Opinion filed: August 20, 2009

Judges

Per Curiam

Counsel

For Appellant:

Edward S. Zas, Appeals Bureau, Federal Defenders of New York, Inc., New York, NY

For Appellee:

Sharon E. Frase, Assistant United States Attorney, New York, NY

Cooper v. U.S. Postal Serv., No. 07-4825

In an Establishment Clause challenge to religious displays in a contract postal unit operated by a church, summary judgment for plaintiff is vacated where the Establishment Clause requires no more than that the postal counter be free of religious material, and that visual cues distinguish the space operating as a postal facility from the space functioning as purely private property.

Read Cooper v. U.S. Postal Serv., No. 07-4825

Appellate Information

Argued: March 20, 2009

Decided: August 20, 2009

Judges

Opinion by Judge Jacobs

Counsel

For Appellant:

Jeffrey A. Shafer, Alliance Defense Fund, Washington, DC

Benjamin W. Bull, Alliance Defense Fund, Washington, DC

For Appellee:

Aaron S. Bayer, Wiggin and Dana LLP, New Haven, CT

Kevin M. Smith, Wiggin and Dana LLP, New Haven, CT

NLRB v. Consolidated Bus Transit, Inc., No. 08-0856

NLRB's petition for enforcement of its finding that respondent-employer committed an unfair labor practice by terminating an employee is granted where substantial evidence supported the NLRB's determination that respondent discharged, instead of temporarily disqualified, the employee from employment as a school bus driver.

Read NLRB v. Consolidated Bus Transit, Inc., No. 08-0856

Appellate Information

Argued: December 16, 2008

Decided: August 20, 2009

Judges

Per Curiam

Counsel

For Petitioner:

Joan E. Hoyte, National Labor Relations Board, Washington, DC

For Respondent:

Michael J. Mauro, Milman Labuda Law Group PLLC, Lake Success, NY

US v. Pizzonia, No. 07-4314

Defendant's Racketeer Influenced and Corrupt Organizations (RICO) Act  conviction is affirmed where, even though the predicate acts proved by the government were outside the statute of limitations, other trial evidence permitted the jury to conclude that both the charged racketeering conspiracy and defendant's membership in it continued into the limitations period.

Read US v. Pizzonia, No. 07-4314

Appellate Information

Argued: September 25, 2008

Decided: August 19, 2009

Judges

Opinion by Judge Raggi

Counsel

For Appellant:

Diarmuid White, White & White, New York, NY

For Appellee:

Joey Lipton, Assistant United States Attorney, Brooklyn, New York

Peter A. Norling, Assistant United States Attorney, Brooklyn, New York

US v. Ware, No. 07-5222

Defendant's securities fraud conviction is affirmed, where the Double Jeopardy Clause did not apply to defendant's retrial because he himself moved for a mistrial. However, his sentence is vacated where the district court made insufficient findings regarding defendant's role in the conspiracy for sentencing purposes.

Read US v. Ware, No. 07-5222

Appellate Information

Filed August 18, 2009

Judges

Opinion by Judge Kearse

Counsel

For Appellant:

Ulysses Thomas Ware, pro se.

For Appellee:

Michael J. Garcia, United States Attorney's Office for the Southern District of New York

Okin v. Cornwall-on-Hudson, No. 06-5142

In a 42 U.S.C. section 1983 action alleging that defendants-officers permitted plaintiff's partner to abuse her, summary judgment for certain defendants is affirmed in part where plaintiff failed to show a genuine issue of material fact as to whether defendants enhanced the risk of violence by making explicit assurances to the perpetrator. However, the ruling is reversed in part where plaintiff raised a genuine issue of material fact as to whether defendant-officers implicitly but affirmatively sanctioned the abuse.

Read Okin v. Cornwall-on-Hudson, No. 06-5142

Appellate Information

Argued: April 28, 2008

Decided: August 18, 2009

Judges

Opinion by Judge Pooler

Counsel

For Appellant:

Michael H. Sussman, Goshen, NY, for Plaintiff-Appellant.

For Appellees:

Matthew P. Ross, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, NY

Jamie R. Wozman, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, NY

US v. Dhafir, No. 05-5965

Defendant's Medicare fraud sentence is vacated where the district court overlooked an alternate means of determining which sentencing provision under U.S.S.G. section 2S1.1(a) applied to the charges against defendant.

Read US v. Dhafir, No. 05-5965

Appellate Information

Argued: August 28, 2008

Decided: August 18, 2009

Judges

Opinion by Judge Parker

Counsel

For Appellant:

Peter Goldberger, Ardmore, PA

For Appellee:

Michael C. Olmsted, Assistant United States Attorney, Syracuse, NY

Rotimi v. Holder, No. 06-0202

Petition for review of an order holding plaintiff statutorily ineligible for a waiver of inadmissibility and dismissing plaintiff's appeal is denied where the Board of Immigration Appeals' interpretation of "lawfully resided continuously" as used in Immigration and Nationality Act sec. 212(h) and applied to plaintiff is reasonable, and thus plaintiff is ineligible for a INA sec. 212(h) waiver because he did not lawfully reside continuously in the United States for the disputed period of time. 

Read Rotimi v. Holder, No. 06-0202

Appellate Information
Petition for review of a decision and order of the Board of Immigration Appeals.
Argued March 23, 2009
Decided August 14, 2009

Judges
Before FEINBERG, NEWMAN, and KATZMANN, Circuit Judges.
Per Curium Opinion.
NEWMAN, Circuit Judge, concurring.
KATZMANN, Circuit Judge, with whom FEINBERG, Circuit Judge, joins, concurring.

Counsel
For Petitioner: DANIEL SHABASSON, Pollack, Pollack, Isaac & DeCicco, New York, N.Y.

For Respondent: DIONE M. ENEA, Special Assistant United States Attorney, Brooklyn, N.Y.

US v. Parker, No. 08-4199

Sentence for drug crimes is affirmed where: 1) the district court did not err in imposing consecutive prison terms under 18 U.S.C. sec. 924(c)(1)(A)(i) as the Whitley/Williams rule has no bearing on this case since the predicate drug crime underlying defendant's conviction does not dictate a mandatory minimum sentence; and 2) any error by the district court in calculating defendant's criminal history category was harmless. 

Read US v. Parker, No. 08-4199

Appellate Information
Appeal from the United States District Court for the District of Delaware.
Argued August 6, 2009
Decided August 14, 2009

Judges
Before MCLAUGHLIN, CALABRESI, RAGGI, Circuit Judges.
Opinion by RAGGI, Circuit Judge.

Counsel
For Appellant: JON P. GETZ, Muldoon & Getz, Rochester, New York.

For Appellee: MONICA J. RICHARDS, Assistant United States Attorney, Buffalo, NY.

Shomo v. City of New York, No. 07-1208

In an action claiming medical indifference in violation of the Eighth Amendment, district court judgment is affirmed in part and vacated in part where: 1) the continuing violation doctrine can apply to Eighth Amendment claims of medical indifference brought under 42 U.S.C. sec. 1983 when the plaintiff shows an ongoing policy of deliberate indifference to his or her serious medical needs and some acts in furtherance of the policy within the relevant statute of limitations period; 2) the court properly granted plaintiff leave to amend his complaint in order to state timely Eighth Amendment claims based on the continuing violation doctrine; 3) the court properly dismissed plaintiff's claims with prejudice as to certain defendants; 4) plaintiff is granted leave to replead his claims against named and unnamed supervisors and replead his municipal liability claim against the City; and 5) plaintiff's ADA and Rehabilitation Act claims are remanded as the court did not address whether the continuing violation doctrine applied to plaintiff's disability discrimination claims.    

Read Shomo v. City of New York, No. 07-1208

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued: April 1, 2009
Decided August 13, 2009

Judges
Before JACOBS, Chief Judge, and POOLER, Circuit Judge.
Opinion by POOLER, Circuit Judge.
Concurring Opinion by DENNIS JACOBS, Chief Judge. 

Counsel
For Plaintiff: LEE G. DUNST, Gibson Dunn & Crutcher LLP, New York, NY.

For Defendant: SUZANNE K. COLT, Assistant Corporation Counsel, New York, NY.

 

 

Brown v. Greene, No. 07-5383

District court judgment denying petition for habeas corpus in a robbery case is affirmed where the state court's rejection of plaintiff's ineffective assistance of counsel argument was not contrary to or an unreasonable application of federal law.    

Read Brown v. Greene, No. 07-5383

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued: March 25, 2009
Decided August 13, 2009

Judges
Before FEINBERG, STRAUB, and RAGGI, Circuit Judges.
Opinion by FEINBERG, Circuit Judge.
Dissenting Opinion by STRAUB, Circuit Judge.

Counsel
For Petitioner: SUSAN EPSTEIN, The Legal Aid Society, New York, NY.

For Respondent: ASHLYN DANNELLY, Assistant Attorney General, New York, NY.  

Dean v. Blumenthal, No. 07-1986

In a First Amendment challenge to a prohibition on contributions by certain law-firm employees to candidates for Connecticut Attorney General, district court judgment is affirmed where: 1) the challenged contractual bar on campaign contributions has not been enforced in over six years and cannot reasonably be expected to be reimplemented, and thus plaintiff's requested relief of a declaratory judgment, injunctive relief, and a cease-and-desist order are moot; and 2) defendant is entitled to qualified immunity from plaintiff's claim for damages as there was no clearly established right under the First Amendment to receive campaign contributions during the relevant period. 

Read Dean v. Blumenthal, No. 07-1986

Appellate Information
Appeal from the United States District Court for the District of Connecticut.  
Argued: November 10, 2008
Decided: August 11, 2009

Judges
Before KATZMANN and HALL, Circuit Judges.
Per Curium Opinion

Counsel
For Appellant: KAREN LEE TORRE, Law Offices of Karen Lee Torre, New Haven, CT.

For Appellee: GREGORY T. D'AURIA, Office of the Attorney General for the State of Connecticut, Hartford, CT.  

Petition for review of a decision of the NLRB is denied where the Board properly ruled that plaintiff's effort to enforce the work preservation clause of the collective bargaining agreement amounted to a boycott in violation of the National Labor Relations Act sec. 8(e). The Board's award of attorneys fees to the employer is reversed where the employer withheld a document from the union in defiance of a discovery order and thus prolonged the proceedings.    

Read Local 917, International Brotherhood of Teamsters v. NLRB, No. 07-2424

Appellate Information
Petition for review of an Order of the National Labor Relations Board.
Argued: December 3, 2008
Decided: August 11, 2009

Judges
Before JACOBS, Chief Judge, McLAUGHLIN, and PARKER, Circuit Judges.
Opinion by JACOBS, Chief Judge.

Counsel
For Petitioner: Gene M. Szuflita, Belson & Szuflita, Brooklyn, New York.

For Respondent: Jill A. Griffin, Amy H. Ginn, National Labor Relations Board, Washington, D.C. 

ReAmerica, S.A. v. Wells Fargo Bank Int'l, No. 08-1927

In a dispute involving fraudulent wire transfers, district court grant of summary judgment for defendant is affirmed where: 1) plaintiff's action is governed by the Uniform Commercial Code and thus its claim that defendant wrongfully debited its account is time-barred by the UCC's one-year statute of repose; and 2) plaintiff's common law negligence claim is precluded by U.C.C. Article 4A.    

Read ReAmerica, S.A. v. Wells Fargo Bank Int'l, No. 08-1927

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued: May 6, 2009
Decided: August 11, 2009

Judges
Before WINTER and CABRANES, Circuit Judges.
Opinion by CABRANES, Circuit Judge

Counsel
For Plaintiff: JOSEPH A. KILBOURN, Cone & Kilbourn, Mount Kisco, NY.

For Defendant: EDWARD L. POWERS, Bingham McCutchen LLP, New York, NY. 

Jacobs v. New York Foundling Hospital, No. 07-4354

In a dispute involving the denial of overtime pay, district court grant of summary judgment for defendant is affirmed where defendant is not obligated to pay overtime under the Fair Labor Standards Act as the Act's definition of "enterprise" refers to the activities performed by a public agency and does not extend to a private, non-profit, independent contractor associated by regulation and contract with a public agency.    

Read Jacobs v. New York Foundling Hospital, No. 07-4354

Appellate Information
Appeal from the United States District Court for the Eastern District of New York.
Argued: August 27, 2008
Decided: August 11, 2009

Judges
Before NEWMAN and CALABRESI, Circuit Judges.
Per Curium Opinion

Counsel
For Plaintiff: Jonathan A. Bernstein, Levy Davis & Maher, LLP, New York, N.Y.

For Defendant: Stephen J. Macri, New York, N.Y. 

County of Nassau, NY v. Hotels.com, LP, No. 07-3919

In a dispute involving hotel taxes, district court judgment is vacated and remanded for a further jurisidictional determination as there are substantial questions as to whether the complaint meets the requirements for class certification under Fed. R. Civ. P. 23.    

Read County of Nassau, NY v. Hotels.com, LP, No. 07-3919


Appellate Information
Appeal from the United States District Court for the Eastern District of New York.
Argued: January 22, 2009
Decided: August 11, 2009

Judges
Before WALKER and CALABRESI, Circuit Judges.
Per curium Opinion

Counsel
For Plaintiff: PETER J. CLINES, Office of the Nassau County Attorney, Mineola, N.Y.

For Defendant: BRIAN S. STAGNER, Kelly Hart & Hallman, LLP, Fort Worth, Tex. 

Finkel v. Romanowicz, No. 07-2558

In a breach of fiduciary duty action brought under ERISA, district court judgment is affirmed in part and reversed in part where: 1) plaintiff failed to establish defendant's status as an ERISA fiduciary as he did not allege or introduce evidence demonstrating that defendant exercised authority or control over the management of ERISA plan assets; 2) plaintiff was not entitled to a hearing prior to the dismissal of its breach of fiduciary duty claim against defendant, as the record demonstrates that no hearing was necessary and plaintiff did not request one; and 3) the court erred in holding that defendant was not personally liable for certain dishonored checks under New York's Uniform Commercial Code, as plaintiff established that the checks did not indicate that defendant signed them in a representative capacity and defendant presented no evidence of an understanding between the parties that he had signed them in a representative capacity. 

Read Finkel v. Romanowicz, No. 07-2558

Appellate Information
Appeal from the United States District Court for the Eastern District of New York.
Argued: May 8, 2009
Decided: August 11, 2009

Judges
Before CABRANES and WALLACE, Circuit Judges.
Opinion by CABRANES, Circuit Judge.

Counsel
For Appellant: JAMES R. GRISI, Cohen, Weiss and Simon LLP.  

Brown v. Green, No. 07-5383

District court judgment denying a petition for habeas corpus relief is affirmed where the state court's rejection of plaintiff's ineffective assistance of counsel argument was not contrary to or an unreasonable application of federal law.    

Read Brown v. Green, No. 07-5383

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued: March 25, 2009
Decided: August 11, 2009

Judges
Before FEINBERG, STRAUB, and RAGGI, Circuit Judges.
Opinion by FEINBERG, Circuit Judge.

Counsel
For Petitioner: Susan Epstein, The Legal Aid Society, New York, NY.

For Respondent: Ashlyn Dannelly, Assistant Attorney General, New York, NY.  

Green Island Power Authority v. FERC, No. 07-1737

Petition for review of several orders and notices issued by the Federal Energy Regulatory Commission during the proceedings to relicense the School Street Hydroelectric Project is denied in part and granted in part where: 1) co-petitioner Adirondack Hydro Development Corporation lacks standing to challenge any of the orders or notices issued in the administrative proceedings, as none of the injuries identified by Adirondack are sufficient to satisfy the injury-in-fact requirement of the standing analysis; and 2) the FERC abused its discretion and acted acted arbitrarily and capriciously when it denied petitioner Green Island's motion to intervene without first considering whether the settlement offer materially amended the School Street license application.   

Read Green Island Power Authority v. FERC, No. 07-1737

Appellate Information
Appeal from the Federal Energy Regulatory Commission. 
Argued December 19, 2008
Decided August 10, 2009

Judges
Before SACK and KATZMANN, Circuit Judges.
Opinion by KATZMANN, Circuit Judge.

Counsel
For Petitioner: FRANCES E. FRANCIS, Spiegel & McDiarmid, LLP, Washington, D.C.

For Respondent: HOLLY E. CAFER, Federal Energy Regulatory Commission, Washington, D.C. 

Henry v. Ricks, No. 07-4178

District court judgment denying a petition for habeas relief is affirmed where: 1) recent decisions by the New York Court of Appeals announcing a change in New York's law of depraved indifference murder are not applicable to plaintiff's conviction; and 2) the due process clause of the Fourteenth Amendment does not require the retroactive application of a new interpretation of a criminal statute in the collateral review of plaintiff's conviction.   

Read Henry v. Ricks, No. 07-4178

Appellate Information
Appeal from the United States District Court for the Northern District of New York.
Argued June 19, 2009
Decided August 10, 2009

Judges
Before MINER and CABRANES, Circuit Judges, and STEIN, District Judge.
Opinion by CABRANES, Circuit Judge.

Counsel
For Appellant: ROBERT N. ISSEKS, Middletown, NY.

For Appellee: LISA E. FLEISCHMANN, Assistant Attorney General, New York, NY.

US v. Freeman, No. 08-1886

Sentence for receipt of child pornography is affirmed where the district court did not err in imposing a four-level enhancement for the possession of images containing sadistic or masochistic conduct, as the court made an objective determination that the image depicted sexual activity involving a minor and the depicted activity would have caused pain to the minor, and thus established an adequate basis for the application of the enhancement.    

Read US v. Freeman, No. 08-1886

Appellate Information
Appeal from the United States District Court for the Western District of New York.
Argued May 8, 2009
Decided August 10, 2009

Judges
Before CABRANES and WALLACE, Circuit Judges.
Opinion by CABRANES, Circuit Judge.

Counsel
For Appellant: JAY S. OVSIOVITCH, Assistant Federal Public Defender.

For Appellee: STEPHAN J. BACZYNSKI, Assistant United States Attorney.  

In re Application of the N.Y. Times Co., No. 09-0854

In a case involving an application by the New York Times Company to access sealed wiretap applications relating to the investigation of the prostitution ring once patronized by former Governor of New York Elliot Spitzer, an order granting the application is reversed where: 1) the Times has not shown good cause under Title III of the Omnibus Crime Control and Safe Streets Act to unseal wiretap applications, orders, and related documents authorized as part of the government's investigation of the prostitution ring; and 2) the Times does not have a First Amendment right to gain access to wiretap applications under the history and logic approach or the public attendance approach.    

Read In re Application of the N.Y. Times Co., No. 09-0854


Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued: June 16, 2009
Decided: August 7, 2009

Judges
Before WINTER, CABRANES, and HALL Circuit Judges.
Opinion by CABRANES, Circuit Judge.

Counsel
For Appellant: DANIEL L. STEIN, Assistant United States Attorney, New York, NY,

For Appellee: DAVID E. MCCRAW, The New York Times Company, New York, NY.

Read Lafaro v. N.Y. Cardiothoracic Group, PLLC, No. 08-4621

Plaintiffs' itemized bill of costs submitted pursuant to Federal Rules of Appellate Procedure 39(d) following a judgment of this court vacating and remanding an order of the district court is construed as an appropriate application for costs and thus granted.    

Read Lafaro v. N.Y. Cardiothoracic Group, PLLC, No. 08-4621

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued: March 16, 2009
Decided: August 7, 2009

Judges
Before CALABRESI and WESLEY, Circuit Judges, and DRONEY, District Judge.
Per Curium Opinion.

Counsel
For Plaintiff: RICHARD G. MENAKER, Menaker & Herrmann, LLP, New York, NY.

For Defendant: JORDY RABINOWITZ, Westchester County Health Care Corporation, Valhalla, NY.

Davis v. Barrett, No. 08-0479

In a prisoner civil rights action brought under 42 U.S.C. 1983, summary judgment for defendant is vacated and remanded where: 1) plaintiff's appeal of the administrative hearing was sufficient to exhaust all available administrative remedies as required by the PLRA; and 2) there is a dispute of fact as to the conditions of plaintiff's confinement to administrative segregation, and the factual record is not fully developed as to the actual conditions of his confinement in comparison to ordinary prison conditions. 

Read Davis v. Barrett, No. 08-0479

Appellate Information
Appeal from the United States District Court for the Western District of New York.
Argued: June 23, 2009
Decided: August 7, 2009

Judges
Before PARKER and WESLEY, Circuit Judges, CEDARBAUM, District Judge.
Per Curium Opinion.

Counsel
For Plaintiff: KATHRINE A. GEHRING, Duane Morris, LLP, New York, NY.

For Defendant: MARTIN A. HOTVET, Assistant Solicitor General, Albany, NY.

Spinelli v. City of New York, No. 07-1237

In an action arising from defendants' confiscation of plaintiff's firearms inventory and suspension of her dealer's license, dismissal of plaintiffs' due process, Fourth Amendment, and tortious interference with business relations claims is dismissed in part, reversed in part and vacated in part where: 1) the court properly dismissed plaintiffs' Fourth Amendment claim as the defendant's warrantless search of plaintiff's gun shop was objectively reasonable and performed pursuant to established regulations; 2) the court erred in dismissing plaintiffs' due process claims as defendant denied plaintiffs constitutionally sufficient notice and the opportunity for a post-deprivation hearing; and 3) the reversal of plaintiffs due process claim reinstates the court's supplemental jurisdiction over her state law tortious interference claim.    

Read Spinelli v. City of New York, No. 07-1237

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued: January 22, 2009
Decided: August 7, 2009

Judges
Before WALKER and CALABRESI, Circuit Judges.
Opinion by WALKER, Circuit Judge.

Counsel
For Plaintiff: SANFORD F. YOUNG, Law Offices of Sanford F. Young, New York, N.Y.

For Defendant: ANN E. SCHERZER, Assistant Corporation Counsel, New York, N.Y.

US v. Battista, No. 08-3750

In a case arising from the NBA gambling scandal involving former referee Tim Donaghy, judgment ordering defendant to pay restitution to the NBA under the Victim and Witness Protection Act is affirmed where: 1) the NBA was a victim of defendant's offense as it was directly and proximately harmed by defendant committing the crime of conspiracy to transmit wagering information; 2) the court acted within its discretion in determining that defendant has a reasonable potential for future income and that he should have sufficient resources to contribute to the payment of restitution to the NBA; and 3) attorneys' fees are recoverable as "other expenses" under the Act, and thus the court did not err in awarding the NBA attorneys' fees incurred as a result of the assistance it provided to the government in its investigation and prosecution of defendant's criminal offense. 

Read US v. Battista, No. 08-3750

Appellate Information
Appeal from the United States District Court for the Eastern District of New York.
Argued May 13, 2009
Decided August 6, 2009

Judges
Before WALKER, WESLEY, WALLACE, Circuit Judges.
Opinion by WESLEY, Circuit Judge

Counsel
For Appellant: JACK MCMAHON, Philadelphia, PA.

For Appellee: JEFFREY GOLDBERG, Assistant United States Attorney, Brooklyn, NY.

Doe v. CIA, No. 07-0797

Dismissal of an action by the wife and children of a covert-status former CIA employee, following the district court's exclusion from evidence of classified information covered by the state-secrets privilege, is affirmed where: 1) plaintiffs' rights of access to the courts were not compromised by the government's refusal to provide plaintiffs' counsel with secure facilities that would allow counsel to prepare an opposition to the government's assertion of the state-secrets privilege as plaintiffs have no right to use material that is alleged by the government to contain state secrets in order to participate in the district court's review of the bona fides of the government's allegation; and 2) plaintiffs have established no infringement of their right to communicate with counsel.    

Read Doe v. CIA, No. 07-0797

Appellate Information
Appeal from a judgment of the United States District Court for the Southern District of New York.
Argued: February 3, 2009
Decided: August 5, 2009

Judges
Before: SACK and PARKER, Circuit Judges, and COTE, District Judge.
Opinion by Sack, Circuit Judge.

Counsel
For Plaintiff: MARK S. ZAID, Mark S. Zaid, P.C., Washington, DC.

For Defendant: SARAH S. NORMAND, Assistant United States Attorney, New York, NY.

Liu v. Holder, No 07-0204

Petition for review of an order denying withholding of removal is denied where substantial evidence supports the IJ's finding that petitioner failed to satisfy his burden of establishing a clear probability of future persecution in his home country, and the IJ properly relied on petitioner's failure to provide corroborating evidence in so finding.    

Read Liu v. Holder, No 07-0204

Appellate Information
Petition for review of an order of the Board of Immigration Appeals.
Argued: November 28, 2007
Decided: August 5, 2009

Judges
Before: JACOBS, Chief Judge, PARKER and WESLEY, Circuit Judges.
Opinion by JACOBS, Chief Judge.

Counsel
For Petitioner: JIM LI, New York, NY.

For Respondent: KEITH MCMANUS, U.S. Department of Justice, Washington, D.C.

In re Chrysler LLC, No. 09-2311

District Court order authorizing the sale of substantially all of Chrysler LLC's assets to New CarCo Acquisition LLC is affirmed where: 1) the bankruptcy court did not abuse its discretion in approving the sale as the sale did not constitute an impermissible sub rosa plan and prevented further, unnecessary losses; 2) the court properly held that although the plaintiffs did not consent to the sale order's release of all liens on Chrysler's assets, consent was validly provided by the collateral trustee, who had authority to act on behalf of all first-lien credit holders; 3) the plaintiffs lack standing to raise the issue of whether the Secretary of the Treasury exceeded his statutory authority by using TARP money to finance the sale of Chrysler's assets as they cannot demonstrate that they have suffered an injury in fact; and 4) arguments advanced by present and future tort claimants against the portion of the sale order extinguishing all existing and future claims against New Chrysler are rejected.    

Read In re Chrysler LLC, No. 09-2311

Appellate Information
Appeal from the United States Bankruptcy Court for Southern District of New York.
Argued: June 5, 2009
Decided: June 5, 2009
Opinion filed: August 5, 2009

Judges
Before: JACOBS, Chief Judge, KEARSE and SACK, Circuit Judges.
Opinion by JACOBS, Chief Judge.

Counsel
For Appellant: GLENN M. KURTZ, THOMAS E. LAURIA, White & Case LLP, New York, NY.

For Appellee: THOMAS F. CULLEN, Jones Day, Washington, D.C.

Lanferman v. Board of Immigration Appeals, No. 06-3432

Petition for review of an order finding plaintiff removable under the Immigration and Nationality Act for having committed a firearm-related offense in violation of New York Penal Law is granted where, in light of the present court's decision in James, before deciding whether plaintiff committed a removable offense the matter must be remanded to the Board to determine whether New York Penal Law sec. 120.14 is divisible under the modified categorical approach.    

Read Lanferman v. Board of Immigration Appeals, No. 06-3432

Appellate Information
Appeal from the United States District Court for the Southern District of Iowa.
Argued: May 30, 2007
Decided: August 5, 2009

Judges
Before: KEARSE, STRAUB, and POOLER, Circuit Judges.
Per Curium Opinion

Counsel
For Petitioner: ADAM PASKOFF, Paskoff & Tamber, LLP, New York, N.Y.

For Respondent: PAUL NAMAN, Assistant United States Attorney, Beaumont, T.X.

Acosta v. Artuz, No. 05-4196

Denial of petition for writ of habeas corpus is affirmed where: 1) petitioner's claim is procedurally barred as he failed to adequately exhaust state remedies before seeking federal habeas relief; and 2) habeas relief is not warranted as petitioner cannot demonstrate that clearly established Supreme Court precedent compelled the state court to conclude that his confession was inadmissible as the product of interrogation rather than admissible as a volunteered statement.   

Read Acosta v. Artuz, No. 05-4196

Appellate Information
Appeals from the United States District Court for the District of Massachusetts.
Argued: April 7, 2008
Decided: August 4, 2009

Judges
Before WALKER, CABRANES, and RAGGI, Circuit Judges.
Opinion by RAGGI, Circuit Judge.

Counsel
For Petitioner: MONICA R. JACOBSON, New York, New York.

For Respondent: MORGAN J. DENNEHY, Brooklyn, New York

US v. Perez, No. 08-4131

Federal corrections officers' convictions for obstruction of justice and other crimes are affirmed where: 1) defendants' challenge to the sufficiency of the evidence was properly rejected as their actions were within the category of conduct proscribed by 18 U.S.C. sec. 1512; and 2) the instructions to the jury did not constitute plain error and thus a new trial is not required.    

Read US v. Perez, No. 08-4131

Appellate Information
Appeal from the United States District Court for the Eastern District of New York.
Heard: April 27, 2009
Decided: August 3, 2009

Judges
Before: NEWMAN, POOLER, and PARKER, Circuit Judges.
Opinion by NEWMAN, Circuit Judge.

Counsel
For Appellant: Edward S. Zas, Federal Defenders of New York, Inc., New York, NY.

For Appellee: Sarah Coyne, Asst. U.S. Atty., Brooklyn, NY.

Simmons v. N.Y. City Transit Authority, No. 08-4079

In a dispute involving attorney's fees, district court judgment is vacated and remanded where the court erred in awarding attorney's fees to plaintiff's based on the prevailing hourly rates in the district where her counsel was based, rather than where the suit was litigated, as plaintiff did not satisfy the exception to the forum rule for attorney's fees.    

Read Simmons v. N.Y. City Transit Authority, No. 08-4079

Appellate Information
Appeal from the United States District Court for the Eastern District of New York.
Submitted: April 8, 2009
Filed: August 3, 2009

Judges
JACOBS, Chief Judge, WALKER, and LEVAL, Circuit Judges.
Opinion by WALKER, Circuit Judge.

Counsel
For Plaintiff: Gregory Antollino, New York, NY.

For Defendant: Steve S. Efron, New York, NY.