Circuit Watcher

06-5324 In Re: World Trade Center Disaster Site Litigation
Before: NEWMAN, SOTOMAYOR, AND WESLEY, Circuit Judges.
Interlocutory appeal from an order of the Southern District of New York (Hellerstein, J.), entered on October 18, 2006, denying Defendants’ motions for judgment on the pleadings on immunity grounds under New York state law, and Defendants’ motions for summary judgment on immunity grounds under federal law. Plaintiffs moved to dismiss the appeal for lack of jurisdiction under the final judgment rule. Appeal of the state defenses is dismissed, as the defenses do not fall under the collateral order doctrine. We have jurisdiction over the appeal of the federal defenses, as the Stafford Act confers immunity from suit, and affirm the district court’s decision to deny Defendants’ motions. DISMISSED IN PART AND AFFIRMED IN PART. … In Re: World Trade Center Disaster Site Litigation

06-3974 Brito v. Mukasey
BEFORE: MINER, SACK, and HALL, Circuit Judges.
Petition for review of a final decision of the Board of Immigration Appeals. Petitioner failed to exhaust the issue of whether he was properly designated an arriving alien and thus we do not reach it. Because Petitioner’s current application for adjustment of status is new and separate from the application he previously filed, the Immigration Judge lacks jurisdiction to adjudicate it. Petitioner lacks standing to argue that regulations withholding from immigration judges jurisdiction to adjudicate adjustment of status applications are ultra vires. Accordingly, the petition is denied. … Brito v. Mukasey

06-5163-ag James v. Mukasey
Before: CALABRESI, CABRANES, and SOTOMAYOR, Circuit Judges.
The petitioner seeks review of a decision of the Board of Immigration Appeals (“BIA”) finding him removable for having committed an aggravated felony. While we lack jurisdiction to consider the petitioner’s unexhausted adjustment of status claim, we have jurisdiction to review whether the BIA properly deemed the petitioner’s conviction an aggravated felony. We conclude that the agency’s decision on this issue was based on an incorrect premise in that it assumed we treat the petitioner’s statute of conviction, New York Penal Law section 260.10, as divisible when in fact that is an open question. Accordingly, the petition for review is GRANTED in part and DISMISSED in part, the order of removal is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this opinion. … James v. Mukasey.

07-5771 Air Transp. Ass’n of Am. v. Cuomo
Before: WESLEY, LIVINGSTON, Circuit Judges, and COGAN, District Judge.¹
The Air Transport Association of America appeals from a final judgment of the United States District Court for the Northern District of New York (Kahn, J.) granting summary judgment to defendants and dismissing plaintiff’s complaint seeking declaratory and injunctive relief against New York State’s Passenger Bill of Rights, codified at section 553(2)(b)-(d) of the New York Executive Law and sections 251-f to 251-j of the New York General Business Law. We reverse and hold that the substantive provisions of the law, N.Y. Gen. Bus. Law § 251-g(1), are preempted by the Airline Deregulation Act of 1978. Reversed and remanded. … Air Transp. Ass’n of Am. v. Cuomo.

1. The Honorable Brian M. Cogan, District Judge, United States District Court for the Eastern District of New York, sitting by designation. [↩]

06-1872, 06-5243 Auto. Club of New York, Inc. v. Dykstra
Before: MCLAUGHLIN and WESLEY, Circuit Judges, and COGAN, District Judge.¹
Appeal from final judgments of the United States District Court for the Southern District of New York (Owen, J.) permanently enjoining the City of New York from enforcing the provisions of its tow truck licensing scheme, codified at Title 20, Chapter 2, Subchapter 31 of the Administrative Code of the City of New York, against tow operators from outside New York City, invalidating § 20-495(d) of the New York City Administrative Code, and awarding Appellee $651,856 in attorneys’ fees and $6,293.98 in expenses. We affirm and hold that enforcement of the tow truck licensing scheme against operators from outside of New York City is not genuinely responsive to safety concerns, and, as a result, is preempted by 49 U.S.C. § 14501(c)(1). … Auto. Club of New York, Inc. v. Dykstra.

1. The Honorable Brian M. Cogan, United States District Court for the Eastern District of New York, sitting by designation. [↩]

06-1041 Rweyemamu v. Cote
Before: CARDAMONE, WALKER, and STRAUB, Circuit Judges.
Appeal from a judgment of the United States District Court for the District of Connecticut (Warren W. Eginton, Judge) concluding that the “ministerial exception” to Title VII barred plaintiff’s suit and granting defendants’ motion to dismiss for lack of jurisdiction. We hold that Title VII is unconstitutional as applied in this case and that the ministerial exception bars plaintiff’s claim. AFFIRMED.
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JOHN M. WALKER, JR., Circuit Judge: Alleging that the Roman Catholic Diocese of Norwich, through its Bishop, misapplied canon law in denying him a requested promotion and, ultimately, in terminating him, Father Justinian Rweyemamu, an African-American Catholic priest, claims racial discrimination in a Title VII suit against the Bishop and the Diocese. After the district court dismissed the suit pursuant to the “ministerial exception,” Father Justinian appealed. The question we must decide is whether, under the First Amendment, Title VII is unconstitutional as applied in this case. In reaching this constitutional question, we distinguish this case from our decision in Hankins v. Lyght, 441 F.3d 96, 99 (2d Cir. 2006), which held that a federal statute, the Religious Freedom Restoration Act (RFRA) of 1993, 42 U.S.C. §§ 2000bb, 2000bb-1 to -4, governed the merits of an age discrimination action against a church. … Rweyemamu v. Cote.

05-6026-ag Int’l Union, United Auto., Aerospace, & Agricultural Implement Workers of Am., AFL-CIO v. NLRB
Before: MINER and RAGGI, Circuit Judges, and RAKOFF, District Judge.¹
Petitioner International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, AFL-CIO petitions for review of those parts of a decision of the National Labor Relations Board that found that Stanadyne Automobile Corporation did not commit unfair labor practices in the period before a representation election by (1) orally issuing a rule that purported to prohibit “harassment” of co-workers, (2) suggesting possible plant closures and other negative consequences of unionization in speeches directed at employees, and (3) announcing improved employee pension benefits shortly before the election. We hold that it was unreasonable for the Board to find that Stanadyne’s no-harassment rule did not, in context, have a chilling effect on rights protected by Section 7 of the National Labor Relations Act, 29 U.S.C. § 157, but we hold that in all other respects the Board’s decision was reasonable and supported by substantial evidence. Petition granted in part, denied in part, and remanded. … Int’l Union, United Auto., Aerospace, & Agricultural Implement Workers of Am., AFL-CIO v. NLRB.

1. The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. [↩]

07-5648 Almontaser v. New York City Dep’t of Educ.
NEWMAN , WINTER, AND B.D. PARKER, Circuit Judges.
Before: Appeal from an order of the United States District Court for the Southern District of New York (Stein, J.), denying a motion for a preliminary injunction. AFFIRMED. … Almontaser sued, alleging, inter alia, retaliation in violation of her First Amendment rights and infringement of her Fourteenth Amendment right to due process. She moved for a preliminary injunction: 1) requiring the DOE to “afford[] [her] a full and fair opportunity to be reviewed and considered for the position of [permanent] principal at [KGIA]” according to the applicable hiring regulations by a “disinterested person,” and 2) “enjoining and restraining defendants from proceeding pursuant to [these regulations] or to otherwise select, assign, or appoint a principal at [KGIA] until [she] is afforded such consideration.” See Fed. R. Civ. P. 65. After a two-day hearing, the district court denied the application. Almontaser appealed. … Almontaser v. New York City Dep’t of Educ..

05-7005 U.S. v. Dominguez
Before: MINER, SACK, and HALL, Circuit Judges. Appeal by the Government from a judgment of conviction and sentence for conspiracy to distribute cocaine and cocaine base entered in the United States District Court for the Northern District of New York (Hurd, J.) insofar as the sentence reflects a departure of approximately 93% from the statutory minimum sentence, the District Court having determined that the Government’s motion for a downward departure based upon defendant’s cooperation enabled it to exercise discretion, apparently informed by a variety of specified and unspecified factors, to impose a sentence it deemed “fair and reasonable under the circumstances.” Vacated and remanded. … U.S. v. Dominguez

05-6967 U.S. v. Sero
Before: WALKER, B.D. PARKER, Circuit Judges, and CASTEL, District Judge.¹
PER CURIAM: Fernando Sero appeals from a judgment of conviction in the United States District Court for the Southern District of New York (Brient, J.). Sero was convicted of exporting weapons and other defense articles from the United States to the Philippines in violation of the Arms Export Control Act (“AECA”), 22 U.S.C. § 2778, and the International Traffic in Arms Regulations (“ITAR”), 22 C.F.R. Part 120, et seq. Sero pled guilty to one count of a four count indictment charging him with unlawfully shipping the following gun parts and amunition: three take-down pins, one trigger housing unit, one bolt group, one sighting group, one magazine release, three receivers, one stock, one buffer spring, ten 7.62 mm magazines, two boxes of .40 caliber Black Talon DP cartridges, and three boxes of weapons primers. He was sentenced principally to 40 months imprisonment – – six months below the bottom of the guideline range – – followed by a three-year term of supervised release. This appeal, which challenges the length of his sentence, followed. … we affirm. U.S. v. Sero.

1. The Honorable P. Kevin Castel, United States District Court for the Southern District of New York, sitting by designation. [↩]

06-5698 Spool v. World Child Int’l Adoption Agency
Before: SACK, HALL, and LIVINGSTON, Circuit Judges.
Domestic adoption agency, its founder, and two clients brought action against former joint venture partner and related parties for civil violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and the Computer Fraud and Abuse Act (CFAA). The United States District Court for the Southern District of New York, Charles L. Brieant, J., dismissed the amended complaint. Plaintiffs appeal. Affirmed.
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LIVINGSTON, Circuit Judge: Plaintiffs-Appellants appeal from a judgment of the United States District Court for the Southern District of New York (Charles L. Brieant, J.) dismissing their claims for substantive violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968, RICO conspiracy, and violation of the Computer Fraud and Abuse Act (CFAA), id. § 1030, for failure to state a claim on which relief can be granted, and declining to exercise supplemental jurisdiction over their related state law claims. Because we agree with the district court that the facts alleged do not establish the continuity required to prove a pattern of racketeering activity, and because the plaintiffs do not challenge the district court’s dismissal of their CFAA claims, we affirm. … Spool v. World Child Int’l Adoption Agency.

07-0089 Ruzsa v. Rubenstein & Sendy Attys at Law
Before: CABRANES, POOLER, and KATZMANN, Circuit Judges.
Plaintiff-appellant Istvan Ruzsa appeals from a judgment of the United States District Court for
the District of Connecticut (Janet C. Hall, Judge), dismissing his complaint for failure to prosecute.
Because we find no error in the District Court’s dismissal of Ruzsa’s complaint, the judgment is
affirmed.
.
PER CURIAM: Plaintiff-appellant Istvan Ruzsa commenced this pro se action against the law firm of Rubenstein & Sendy on December 12, 2005, seeking relief for alleged wrongdoing—specifically, legal malpractice and theft—arising from a 1995 car accident. Rubenstein & Sendy moved for a more definite statement, and the United States District Court for the District of Connecticut (Janet C. Hall, Judge) granted that motion on February 2, 2006, ordering Ruzsa to file an amended complaint by March 31, 2006. Ruzsa did not file an amended complaint by that deadline and, indeed, did nothing further to pursue his claim. The Clerk of Court then entered a Notice to Counsel on October 26, 2006, notifying the litigants that, pursuant to Rule 41(a) of the Local Rules of the District of Connecticut, the action would be dismissed unless a “satisfactory explanation of why it should not be dismissed is submitted to the Court by November 15, 2006.” Ruzsa did not respond to this notice, and on December 4, 2006, the Clerk of Court entered a judgment dismissing the complaint. This appeal followed. … Ruzsa v. Rubenstein & Sendy Attys at Law.

05-2516, 05-3303, 05-6178 U.S. v. Cutler
Before: JACOBS, Chief Judge, KEARSE and POOLER, Circuit Judges.
Appeals by the United States challenging the sentences imposed on the above defendants in the United States District Court for the Southern District of New York, Loretta A. Preska, Judge, following their convictions of, inter alia, bank fraud, tax evasion, and false statements, and conspiracy to commit those offenses and mail fraud, 18 U.S.C. §§ 371, 1014, 1341, 1344, and 1623, and 26 U.S.C. § 7201. Vacated and remanded for resentencing. Judge Pooler concurs in a separate opinion.
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KEARSE, Circuit Judge: Defendants James Cutler and Sanford Freedman, following a jury trial in the United States District Court for the Southern District of New York, Loretta A. Preska, Judge, were convicted, along with others, on various charges relating to extensive bank frauds and tax frauds. Issues raised in an appeal by Freedman have been dealt with in a summary order filed today, see United States v. Freedman, Nos. 05-2516, -6068. This opinion deals with an appeal by the government, No. 05-3303, challenging the sentence imposed on Cutler, and a cross-appeal by the government, No. 05-6178, challenging the sentence imposed on Freedman. … U.S. v. Cutler.

06-4580-ag Jiang v. Board of Citizenship & Immigration Servs.
Before: POOLER, SACK and SOTOMAYOR, Circuit Judges.
The Board of Immigration Appeals (“BIA”) affirmed a decision of the Immigration Judge (“IJ”) concluding that petitioner was ineligible for asylum and withholding of removal on the basis of the persecutor bar in 8 U.S.C. § 1158(b)(2)(A)(i) and 8 U.S.C. § 1231(b)(3)(B)(i), because she was found to have assisted in the forced insertion of intrauterine devices (“IUDs”). Consistent with our decision in Ying Zheng v. Gonzales, 497 F.3d 201 (2d Cir. 2007), because the BIA has not yet articulated in a precedential decision its position regarding whether and under what conditions involuntary IUD insertion constitutes persecution, and because the BIA has taken inconsistent positions on this issue, we GRANT the petition for review, VACATE the order of the BIA, and REMAND for further proceedings consistent with this opinion. … Jiang v. Board of Citizenship & Immigration Servs.

06-4477-ag, 06-5239-ag, 06-5302 Ni v. Board of Immigration Appeals
Before: CABRANES, POOLER, and SACK , Circuit Judges.
Petitioners seek review of orders of the Board of Immigration Appeals (“BIA”), denying their respective motions to reopen removal proceedings. They contend that the motions should have been granted so that they would not remain subject to final orders of removal while pursuing their applications for adjustment of status before the U.S. Citizenship and Immigration Services (“USCIS”). Because we find that the BIA erred in denying the motions to reopen by failing to support its decision with a rational explanation, the petitions for review are GRANTED, the relevant orders are VACATED, and these cases are REMANDED to the BIA for proceedings consistent with this opinion. … Ni v. Board of Immigration Appeals.

07-1688-ag Singh v. Mukasey
Before: WINTER and WESLEY , Circuit Judges, and COGAN , District Judge.¹
Petition for review of a final decision of the Board of Immigration Appeals (“BIA”) dismissing the petitioner’s appeal from an Immigration Judge’s (“IJ”) order of removal. The IJ found the petitioner statutorily ineligible for a waiver application under former Immigration and Nationality Act of 1952 § 212(c) because he pled guilty to an aggravated felony after the enactment of the Immigration Act of 1990 (“IMMACT”), and subsequently served a sentence of more than five years confinement. We hold that § 511(a) of IMMACT’s exclusion of “an alien who has been convicted of an aggravated felony and has served a term of imprisonment of at least 5 years” from eligibility for discretionary relief from deportation is not impermissibly retroactive as to an alien who pled guilty to a disqualifying felony after the Act’s enactment, even though he confessed guilt to police prior to the enactment. We also hold that § 404(d) of the Antiterrorism and Effective Death Penalty Act of 1996’s (“AEDPA”) exclusion of all aliens convicted of “aggravated felonies” from eligibility for discretionary relief from deportation is not impermissibly retroactive as to an alien whose conviction pre-dated AEDPA but who was statutorily barred from discretionary relief by the time he sought such relief even under pre-AEDPA law because he had already served more than five years imprisonment. Petition for review denied. … (Original Opinion, as filed Mar. 13, 2008) As amended, Mar. 14, 2008: Singh v. Mukasey.

1. The Honorable Brian M. Cogan, United States District Court for the Eastern District of New York, sitting by designation. [↩]

05-5644-cr U.S. v. Tran
BEFORE: SACK, SOTOMAYOR, HALL, Circuit Judges. Opinion by Hall.
Appeal from a judgment of conviction in the United States District Court for the Western District of New York (Arcara, C.J.) of knowingly importing into the United States 500 grams or more of a mixture or substance containing methamphetamine, 21 U.S.C. §§ 952(a), 960(b)(1)(H), and knowingly possessing with the intent to distribute a mixture containing methamphetamine, id. § 841(a)(1), with a resulting sentence principally consisting of 235 months’ imprisonment. AFFIRMED. … U.S. v. Tran

07-0156-ag Corovic v. Mukasey

05-5739-cr United States v. Regalado
06-0078-cv O’Mara v. Town of Wappinger

07-0522-pr DiSimone v. Phillips

06-3383-ag Savchuk v. Mukasey

06-3691-cv PRL USA Holdings, Inc. v. United States Polo Ass’n

06-1546-cv J. Walter Thompson U.S.A., Inc. v. Bank of Am. Corp.

06-4753-ag Saliou v. Mukasey

06-3595-ag Dia v. Mukasey

07-0740-ag Lin v. Mukasey

05-3799-ag Catalbasoglu v. Mukasey

05-4704-ag Chen v. Mukasey

07-1032-ag Mansilla-Palencia v. Mukasey

07-2124-ag Zheng v. Mukasey

04-3650-ag Granados Rios v. Mukasey

05-3784-ag Singh v. Mukasey

No. 05-2696-cr United States v. Munoz

06-1333-cv Valdez v. United States

05-6116-cv In re M/V DG Harmony

06-2228-cv Ehrenfeld v. Mahfouz