U.S. Second Circuit: February 2010 Archives
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February 2010 Archives

Immigration and Criminal Decisions

The Second Circuit heard two petitions for review of Board of Immigration Appeals decisions, and one criminal appeal.

De La Rosa v. Holder, 09-3099, involved a petition for review of the BIA's order denying petitioner's application for deferral of removal under the Convention Against Torture.  The court of appeals granted the petition, holding that: 1) the BIA's "weight of the evidence" review of the Immigration Judge's findings did not conform to the dictates of 8 C.F.R. section 1003.1(d)(3)(i); and 2) without discussion, the BIA appeared to have improperly assumed that the activity of certain government actors overrode both the complicity of other government actors and the general corruption and ineffectiveness of the Dominican government in preventing unlawful killings.

Kone v. Holder, No. 08-1445, concerned a petition for review of the BIA's denial of petitioner's asylum application.  The court of appeals granted the petition on the ground that the BIA improperly shifted the burden of proof to petitioner to demonstrate future persecution, and failed to consider the relevant circumstances in finding petitioner less than credible.

In US v. Savoca, No. 08-4610, the Second Circuit affirmed defendant's amended sentence for attempted robbery, holding that: 1) an obstruction of justice enhancement applied to conduct that occurred with respect to an otherwise closely related case, such as that of a co-defendant; 2) except in extraordinary cases, the application of an enhancement for obstruction of justice ordinarily indicated that the defendant had not accepted responsibility to warrant a reduction in his guidelines calculation; and 3) the sentencing judge imposed a sentence within the properly calculated guideline range.

Related Resources:

CERCLA Ruling in Niagara Mohawk Power Assn. v. Chevron U.S.A., Inc.

Niagara Mohawk Power Assn. v. Chevron U.S.A., Inc., No. 08-3843, involved an action to recover costs pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  The district court granted summary judgment for defendant.

As the court of appeals wrote:  "At the center of this dispute is a contaminated site in Troy, New York -- known as the Water Street Site -- that over the last 100 years has played host to various industrial activities including a coke plant, a steel manufacturing facility, a manufactured gas plant, and a petroleum distribution facility. Each use led to the release or disposal of toxic substances, many subject to liability under CERCLA."

The Second Circuit affirmed in part on the grounds that: 1) allowing plaintiff to proceed under 42 U.S.C. section 107(a) would in effect nullify the Superfund Amendments and Reauthorization Act amendment and abrogate the requirements Congress placed on contribution claims under section 113; and 2) plaintiff did not offer evidence that it incurred costs as to certain disputed areas.  However, the court reversed the judgment in part where: 1) the 2003 Consent Order between plaintiff and the New York State Department of Environmental Conservation qualified as "an administrative or judicially approved settlement" under section 113(f) (3)(B), and thus plaintiff was entitled to seek contribution under CERCLA; and 2) plaintiff introduced evidence that defendant's asphalt facility produced or used hazardous materials that may have been released with the asphalt at issue.

Related Resources

Habeas Matter in Perkins v. Herbert

Perkins v. Herbert, No. 08-1490, involved the government's appeal from the conditional grant of petitioner's habeas petition in a robbery prosecution.

As the court of appeals wrote: "On direct appeal following his conviction, Perkins asserted a constitutional challenge under the Confrontation Clause of the Sixth Amendment, arguing that the trial court erred in admitting the Grand Jury testimony and supporting depositions of Cruz without allowing Perkins the opportunity to cross-examine her."

The Second Circuit reversed, holding that: 1) the prosecution failed to meet its burden in showing that petitioner procured the absence of a witness, and that the state appellate court and magistrate judge, therefore, both correctly concluded that petitioner did not waive his right of confrontation; but 2) the erroneously admitted evidence was cumulative of properly admitted evidence, and the remaining evidence of guilt, including petitioner's oral confession, was strong.

Related Resources

Full Text of Perkins v. Herbert, No. 08-1490

Contract Ruling in Law Debenture Trust Co. v. Maverick Tube Corp.

In one of the appeals decided today, the Second Circuit dealt with an alleged breach of an indenture.

In Law Debenture Trust Co. v. Maverick Tube Corp., No. 08-5668, plaintiff noteholders in defendant corporation sued for breach of contract and unjust enrichment based on defendant's refusal to allow certain noteholders to convert their notes to cash and stock following the acquisition of defendant.  The district court granted summary judgment to defendant.

The Second Circuit affirmed, holding that, under the express terms of the indenture, the acquirer was not a "Public Acquirer" because its securities that were traded on the New York Stock Exchange were not its ordinary shares.

Related Resources:


Ruling on Application of Faragher/Ellerth Defense

In another appeal decided today, the circuit court handled an employment discrimination case.

Gorzynski v. JetBlue Airways Corp., No. 07-4618, involved claims that plaintiff suffered a hostile work environment, age discrimination, and retaliation for complaints of race and age discrimination.  The district court granted summary judgment to defendant.

However, in a ruling clarifying the application of the Faragher/Ellerth affirmative defense, the circuit court held:

"...an employer is not, as a matter of law, entitled to the Faragher/Ellerth affirmative defense simply because an employer's sexual harassment policy provides that the plaintiff could have complained to other persons as well as the alleged harasser. Instead, we conclude that the facts and circumstances of each case must be examined to determine whether, by not pursuing other avenues provided in the employer's sexual harassment policy, the plaintiff unreasonably failed to take advantage of the employer's preventative measures. In some instances, it may be unreasonable for a victim of harassment to complain only to the harasser because, as a realistic and practical matter, there are other channels that are adequately indicated and are accessible and open. But, in other cases, there may be reasons why the plaintiff failed to complain to those other than the harasser, who are listed as available. And in such cases, a genuine issue of fact may be raised as to whether it was reasonable not to pursue other options."


Today, the Second Circuit decided cases concerning attorney discipline, an attorney's fee award, criminal sentencing and government benefits.

In US v. Walker, No. 08-3874, defendant appealed his sentence for firearm possession, which the district court enhanced based on a prior state conviction.  The court of appeals affirmed, holding that 1) the modified categorical approach applicable in the Second Circuit to prior convictions for statutory offenses also applied to prior convictions for state common law crimes; and 2) defendant's prior South Carolina "strong arm robbery" conviction was a crime of violence under U.S.S.G. section 2K2.1(a)(2).

In In re: Saghir, No. 09-90017, the Second Circuit removed an attorney from the bar of the court of appeals, pursuant to the court's reciprocal discipline rule, on the ground that the attorney was previously disbarred by the Southern District of New York.

Service Employees Int'l., Inc. v. Director, Office of Workers' Comp. Program, No. 08-2515, involved a petition for review of an order of the Benefits Review Board of the Department of Labor awarding claimant compensation under the Defense Base Act for temporary total disability and temporary partial disability.  The court of appeals denied the petition on the ground that substantial evidence supported the Administrative Law Judge's finding that claimant's pterygia was caused or aggravated by his working conditions in Iraq.

Rodriguez v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., No. 08-4966, concerned an appeal from the district court's order awarding attorneys' fees after an infant compromise hearing.  The Second Circuit affirmed the award on the grounds that: 1) the district court did not err in looking beyond the retainer agreement between plaintiffs and their attorneys to the actual work performed by the various attorneys; and 2) the district court did not err in determining that appellant-attorneys did not obtain informed consent from the client for the fee-sharing agreement.

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Civil Rights, Criminal, Employment and Immigration Rulings

Today, the Second Circuit decided cases regarding qualified immunity in a 42 U.S.C. section 1983 matter, criminal sentencing issues, employment and immigration.

In V.S. v. Muhammad, No. 08-5157, plaintiff sued various New York City employees involved in the termination of her parental rights based on alleged child abuse in a family court proceeding.  The district court denied defendants summary judgment based on qualified immunity and defendants appealed.  The Second Circuit reversed, holding that: 1) even if defendants had been aware of a physician's alleged reputation for overdiagnosing child abuse, it still would not have been unreasonable for them to rely on his diagnosis of plaintiff's child in these circumstances; and 2) the city defendants were absolutely immune from a claim of abuse of process.

In US v. Green, No. 08-5426, defendant appealed from the district court's denial of defendant's motion to reduce his drug and firearm possession sentence under 18 U.S.C. section 3582(c)(2).  The Second Circuit affirmed on the ground that defendant was sentenced pursuant to a Fed. R. Crim. P. 11(c)(1)(C) plea agreement, and was thus ineligible for a reduction of sentence under section 3582(c)(2).

In Ragone v. Atlantic Video, No. 08-4666, plaintiff appealed from the dismissal of her Title VII sexual harassment complaint and the grant of defendant's motion to compel arbitration.  The court of appeals affirmed on the grounds that: 1) the fact that plaintiff was offered the arbitration agreement on a "take it or leave it" basis did not render it unenforceable; and 2) defendant agreed to waive any potentially unconscionable terms of the agreement.

In DeRosa v. Nat'l. Envelope Corp., No. 08-2562, an action under the Americans with Disabilities Act claiming that defendant-employer terminated plaintiff based on a medical disability, the district court granted summary judgment to defendant on the ground that plaintiff's statements on his job application judicially estopped him from challenging his termination.  The court of appeals vacated the judgment because plaintiff's statements did not contradict his position on the critical issue of whether he was able to fulfill the essential functions of his employment with reasonable accommodation.

Ascencio-Rodriguez v. Holder, No. 08-3058, involved a petition for review of the BIA's order denying petitioner's application for cancellation of removal but granting his request for voluntary departure.  The court of appeals denied the petition because, for the purposes of cancellation of removal eligibility under 8 U.S.C. section 1229b(b)(1)(A), petitioner's arrest and conviction for illegal entry into the U.S. and his subsequent departure to Mexico interrupted his period of "continuous physical presence" in the U.S.

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Securities Fraud and Attorney's Fees Cases Decided

The Second Circuit decided two cases today, one involving a securities fraud action alleging inadequate disclosure of transfer agent fees, and the other concerning an attorney's fee award in a civil rights class action.

In Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, No. 07-5125, the complaint alleged that defendant investment bank negotiated a contract for transfer agent services that saddled plaintiffs with excessive, misleadingly disclosed fees.

The Second Circuit affirmed the dismissal of plaintiffs' claims under the Investment Company Act on the ground that the claims could only be brought derivatively on behalf of the mutual funds in which plaintiffs had purchased shares.  However, the court reversed the dismissal of plaintiffs' Securities Exchange Act claims, agreeing with plaintiffs that defendant made inadequate disclosures concerning the transfer fee arrangements.

McDaniel v. Schenectady, No. 07-5580, concerned an attorney's fee award pursuant to the settlement of a class action challenging a county's strip-search policy in its jails.  Plaintiffs appealed the fee award, which was lower than the amount they requested.

The Second Circuit affirmed the award, holding that the district court did not abuse its discretion by declining to award attorneys' fees using a percentage-of-fund approach, and instead opting for a lodestar method, relying on the Second Circuit's previous decision in Arbor Hill Concerned Citizens Neighborhood Ass'n. v. County of Albany.

Related Resources

Zabala v. Astrue, No. 08-0928

Petition for review of the Social Security Commissioner's denial of petitioner's application for Supplemental Security Income is denied where, although an administrative law judge improperly declined to consider a report by a treating psychiatrist, the report was substantially duplicative, such that consideration of the report would not have affected the disability determination.

Read Zabala v. Astrue, No. 08-0928

Appellate Information

Argued: May 26, 2009

Decided: February 11, 2010

Judges

Opinion by Judge Leval

Bolmer v. Oliveira, No. 08-4113

In a 42 U.S.C. section 1983 action based on plaintiff's involuntary commitment, denial of summary judgment for defendant is affirmed where: 1) the medical-standards test set forth in Rodriguez v. City of New York, 72 F.3d 1051 (2d Cir. 1995), for determining whether an involuntary commitment violates substantive due process, was not inconsistent with County of Sacramento v. Lewis, 523 U.S. 833 (1998); and 2) denying defendant-county summary judgment based on sovereign immunity did not require a showing that it acted with discriminatory animus or ill will toward plaintiff.

Read Bolmer v. Oliveira, No. 08-4113

Appellate Information

Argued: November 13, 2009

Decided: February 8, 2010

Judges

Opinion by Judge McLaughlin

Counsel

For Appellant:

Emily V. Melendez, Assistant Attorney General, Attorney General of the State of Connecticut, Hartford, CT

For Appellee:

William Brooks, Touro Law Center, Central Islip, NY

Nancy B. Alisberg, Office of Protection & Advocacy for Persons with Disabilities, Hartford, CT

Gildernew v. Quarantillo, No. 08-6301

In an action seeking a declaratory judgment that plaintiff, an Irish national, was entitled to naturalize in the U.S., summary judgment for defendant is affirmed where: 1) the one-year absence bar in 8 U.S.C. section 1427(b) applied both to the period preceding the naturalization interview and the period following the interview; and 2) plaintiff was neither exempt from the continuous residence requirement, nor did he present a set of facts that would warrant an estoppel.

Read Gildernew v. Quarantillo, No. 08-6301

Appellate Information

Argued: January 25, 2010

Decided: February 4, 2010

Judges

Per Curiam

Counsel

For Appellant:

Eamonn Dornan, Dornan & Associates, P.L.L.C., New York, NY

For Appellee:

F. James Loprest Jr., United States Attorney's Office for the Southern District of New York, New York, NY

Clear Channel Outdoor, Inc. v. City of N.Y., No. 09-1553

In a group of billboard owners' First Amendment challenge to provisions of New York City's Zoning Resolution, summary judgment for defendants is affirmed where: 1) the city was not required to adopt the "least restrictive means" of advancing its asserted interests; 2) the city did not violate the protections afforded commercial speech when it distinguished between plaintiffs' signs or billboards and those located on government property; and 3) the New York Constitution did not provide broader protection for commercial speech than the First Amendment.

Read Clear Channel Outdoor, Inc. v. City of N.Y., No. 09-1553

Appellate Information

Argued: November 16, 2009

Decided: February 3, 2010

Judges

Opinion by Judge Wesley

Counsel

For Appellants:

Victor A. Kovner, James Eric Rosenfeld and Linda Jane Steinman, Davis Wright Tremaine LLP, New York, NY

For Appellees:

Karen M. Griffin, New York City Law Department, New York, NY

In re: Zyprexa Prods. Liab. Litig., No. 07-3815

In a drug defect product liability litigation, appellant-law firm's interlocutory appeal from the district court's order finding that all of appellant-law firm's cases that were pending in the district court were subject to certain attorney compensation strictures and that appellant was prohibited from making any disbursements from a fund that it maintained until a fund administrator had certified that the protocols had been adhered to, is dismissed where the injunction did not give or aid in giving substantive relief sought in the lawsuit, and thus there was no jurisdiction under 28 U.S.C. section 1292(a).

Read In re: Zyprexa Prods. Liab. Litig., No. 07-3815

Appellate Information

Argued: March 12, 2009

Final Submission: June 17, 2009

Judges

Per Curiam

Counsel

For Appellant:

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

Eric Roberson, The Mulligan Law Firm, Dallas, TX

For Appellee:

William M. Audet, Audet & Partners, LLP, San Francisco, CA

James M. Shaughnessy, Milberg LLP, New York, NY

Hicks v. Baines, No. 06-3782

In a Title VII action based on defendants' alleged retaliation against plaintiffs for their complaints regarding workplace discrimination, summary judgment for defendants is affirmed in part where plaintiffs' allegations in support of many of their claims were overly conclusory.  However, the order is vacated in part where a reasonable jury could find for plaintiffs on their claims regarding defendant's allegedly punitive changes to plaintiff's work schedule.

Read Hicks v. Baines, No. 06-3782

Appellate Information

Argued: April 13, 2009

Decided: February 2, 2010

Judges

Opinion by Judge Jacobs

Counsel

For Appellant:

David J. Seeger, Law Office of David J. Seeger, Buffalo, NY

For Appellee:

William R. Hites, Law Office of William Hites, Buffalo, NY

Azize v. Bureau of Citizenship & Imm. Servs., No. 05-4315

In a petition for review of a BIA order denying an application for cancellation of removal claiming that petitioner was improperly denied an opportunity to complete an application for naturalization, the case is remanded to the district court where the district court needed to determine the circumstances of petitioner's alleged failure to file tax returns, whether his first naturalization proceeding was terminated for failure to surrender his green card, and if a premature termination occurred, whether petitioner would have proceeded to the point in the citizenship process where he would have become eligible to take the oath of allegiance.

Read Azize v. Bureau of Citizenship & Imm. Servs., No. 05-4315

Appellate Information

Heard: August 26, 2009

Decided: February 1, 2010

Judges

Opinion by Judge Newman

Counsel

For Petitioner:

Hagit M. Elul, Hughes Hubbard & Reed LLP, New York, NY

For Respondents:

F. James Loprest, Jr. and Sarah S. Normand, Special Asst. U.S. Attys., New York, NY

Account Servs. Corp. v. US, No. 09-3561

In a corporation's appeal from the district court's order holding it in contempt for failing to comply with a subpoena for corporate records, the order is affirmed where a corporation with a sole shareholder, officer, and employee may not refuse to comply with a subpoena demanding production of corporate records under the Fifth Amendment's "act of production" privilege.

Read Account Servs. Corp. v. US, No. 09-3561

Appellate Information

Argued: December 10, 2009

Decided: February 1, 2010

Judges

Per Curiam

Counsel

For Appellant:

John V. Donnelly III, L. Barrett Boss, Cozen O'Connor, Philadelphia, PA

For Appellee:

For Appellee:

Arlo Devlin-Brown and Michael A. Levy, Assistant United States Attorneys, New York, NY

NGM Ins. Co. v. Blakely Pumping, Inc., No. 09-1655

In an action by an insurer seeking a declaration that it was not obligated to defend its insured in a personal injury action, summary judgment for defendant is reversed where the policy at issue did not cover defendant's auto under any circumstances and, therefore, the district court erred in finding that New York Insurance Law section 3420(d)(2) required plaintiff to timely disclaim coverage.

Read NGM Ins. Co. v. Blakely Pumping, Inc., No. 09-1655

Appellate Information

Argued: December 10, 2009

Decided: February 1, 2010

Judges

Per Curiam

Counsel

For Appellant:

Haydn J. Brill, Brill & Associates, P.C., New York, NY

For Appellee:

Robert D. Cook, Cook, Netter, Cloonan, Kurtz & Murphy, P.C., Kingston, New York