U.S. Second Circuit: October 2012 Archives
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October 2012 Archives

Seven Suggestions for Surviving Sandy in the Second Circuit

Hurricane preparation is turning into an annual event on the East Coast.

With just hours to go before Hurricane Sandy makes landfall, we have a few practical suggestions for those of you who have decided to hunker down and wait out the storm.

Second Circuit Asks for NY Court of Appeals for Tips on Tips

Lawyers are a well-caffeinated bunch, and many of us get our regular fix at Starbucks.

You’ve probably noticed a plexiglass tip box next to the register while ordering your latte in your neighborhood Starbucks. While other coffee shops may boast tip jar/can variations with messages like “Tips = Good Karma” or “Thanks a Latte,” the Starbucks tip receptacles are uniform. And they’re the subject of a challenge before the Second Circuit Court of Appeals.

The question in the case: Which Starbucks staffers get to share in the tip box bounty?

Abuse of Discretion: Court Should Have Banned Harasser from Store

The most common form of redress for sexual harassment is a check. But what about injunctive relief? Should a court order a business to keep a harasser away from employees?

The Second Circuit Court of Appeals recently concluded that, in the face of egregious acts of sexual harassment perpetuated by a single employee, a district court abused its discretion when it declined to order injunctive relief to ensure that that harasser was no longer in a position to continue his offensive conduct.

Edie Windsor Wins: Second Circuit Says DOMA is Unconstitutional

The Second Circuit Court of Appeals is now the second federal appellate court to strike down Defense of Marriage Act (DOMA) Section 3, reports The Associated Press. Applying “heightened scrutiny,” the Second Circuit concluded that DOMA’s classification of same-sex spouses was not substantially related to an important government interest and held that DOMA Section 3 violates equal protection.

Chief Judge Dennis Jacobs, a George H.W. Bush nominee, wrote the opinion for the divided panel. Senior Judge Chester Straub dissented from the majority holding that DOMA is unconstitutional under the Fifth Amendment’s equal protection guarantee.

Can You Challenge a Vacated Removal Order?

It's hard -- nearly impossible, in fact -- to win an immigration appeal if you're not appealing the correct removal order.

Nadeisha Lotha Fuller was admitted to the United States in 1992. In 2003, an immigration judge ordered Fuller removed on the ground that she had been convicted of an aggravated felony. Fuller asked the Board of Immigration Appeals (BIA) to reconsider that order. The BIA granted Fuller's motion, vacated the order of removal, and issued a new final order of removal.

By the time Fuller's attorney learned about the new order, the 30-day deadline to petition for review of the new order had passed, so Fuller petitioned the Second Circuit to review the older order. Her argument? The BIA's subsequent order left the reasoning of the prior order intact and vacated it in name only.

Second Circuit Heads to New York Law School on Oct. 12

Will Field Trip Fridays be the latest trend in federal appeals?

On October 12, the Second Circuit Court of Appeals will end a second consecutive week with oral arguments outside its usual home inside the Daniel Patrick Moynihan Courthouse on Pearl Street.

Court Finds Pretrial Detention 'Troubling,' But Constitutional

Antonio Briggs was indicted for substantive and conspiratorial drug crimes. He was arraigned on August 17, 2010. On September 1, 2010, Magistrate Judge Hugh Scott ordered Briggs held without bail pending trial. The district court affirmed that decision, finding that Briggs poses a flight risk and danger to the community.

Briggs has been sitting in jail for two years, and is understandably antsy. He claims that his continued detention violates due process.

The Second Circuit Court of Appeals ruled last week that Briggs' detention doesn't violate due process quite yet, but it might early next year.

Remittitur: Groin Kick Costs Excessive Force Victim $200,000

Remittitur — the R-word — is one of the most dreaded terms in Black’s Legal Dictionary.

This week, the Second Circuit Court of Appeals dropped an R-bomb in an excessive force lawsuit, reducing a punitive damages award by $200,000. The reason? The defendant cop’s behavior was reprehensible, but not reprehensible enough to warrant a $300,000 punitive damages award.

Second Circuit Considers 'Now Settled' Defense in Custody Case

The Second Circuit Court of Appeals made it harder for foreign parents to win an international custody dispute in federal courts this week.

Diana Lucia Montoya Alvarez and Manuel Jose Lozano, two now-separated parents, disputed whether courts in the United States or the United Kingdom should decide who has custody of their five-year-old child. To resolve the case, the Second Circuit Court of Appeals answered two questions of first impression regarding the interpretation of Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction: (1) whether the "now settled" defense to the return of an abducted child is subject to equitable tolling; and (2) whether a child who lacks legal immigration status in the United States can be found to be settled within the meaning of the Convention.