Justia U.S. 2nd Circuit Court of Appeals Opinion Summaries

Flores, a native of Ecuador, legally entered the U.S. in 1978 but overstayed his visa. He obtained legal permanent resident (LPR) status in 1979 and a passport stamp reading “temporary evidence of lawful admission for permanent residence valid until 1‐2‐80.” In November 1979, INS denied Flores’ application for adjustment of status and granted voluntary departure. Flores remained. In 1994, an immigration judge ordered his deportation. The BIA dismissed his appeal. In 2008, Flores was arrested and placed in detention. After three months, he was placed on supervised release. The BIA granted a motion to reopen; an IJ terminated the removal proceedings in 2010. The BIA closed the case in 2011. Flores subsequently received a notice from USCIS requesting that he report for a “[r]eview of your IJ decision, and LPR status.” Flores appeared and received a second passport stamp. He received his green card in 2012. In 2013, Flores sent administrative claims to federal entities under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671‐2680. After those entities denied his claims, Flores filed suit under the FTCA, alleging false arrest and imprisonment and other claims. The Second Circuit affirmed summary judgment for the government. Flores failed to present his claims within the two‐year statute of limitations; the “continuing violation doctrine” did not apply to this action and Flores failed to establish entitlement to equitable tolling of the limitations period. Flores’s injuries ceased after the IJ’s 2010 order. View "Flores v. United States" on Justia Law

Defendants Brenda Halpin and the State of Connecticut appealed a district court judgment denying their motion to dismiss plaintiff Virginia Brown’s claims of First Amendment retaliation and violation of Connecticut General Statutes section 31–51q. Halpin argued on appeal to the Second Circuit she was entitled to qualified immunity, and the State argued that it was guarded from liability pursuant to the doctrine of sovereign immunity. Plaintiff?appellee Virginia Brown was hired by defendant?appellant the State of Connecticut in September 2012 as a “staff attorney II” in its Retirement Services Division (the “Division”). In October 2012, approximately one month after her hiring, Brown began making complaints that program was being improperly administered. Brown was responsible for providing legal services to the Comptroller and Connecticut State Employees Retirement Commission (the “Commission”); Brown prepared written materials for the Commission explaining that an incorrect standard was being applied. Brown alleged that members of the Division and Comptroller subsequently retaliated against her by systematically stripping her of job responsibilities. Brown filed a whistleblower complaint with the Auditors under Connecticut General Statutes in December 2013; by December 2014, her position in the Division was eliminated. Although Brown then transferred to another state agency, she lost two credited years of service for the purpose of eligibility for compensation and benefits. After review, the Second Circuit determined Halpin’s appeal was premature because her qualified immunity defense rested on disputed factual allegations. Although the Court found it had jurisdiction to hear the State’s sovereign immunity defense, it found Brown had alleged misconduct falling within the scope of 31–51q, which provided a limited waiver to the State’s sovereign immunity. Accordingly, the Court dismissed Halpin’s appeal for lack of jurisdiction and affirmed the district court denying the State’s motion to dismiss Brown’s claims under 31– 51q. View "Brown v. Halpin" on Justia Law

Novelis’ Oswego plant management announced that employees would no longer receive Sunday premium pay and that holiday and vacation days would no longer count toward overtime eligibility. Abare and others obtained signed union authorization cards from a majority of the eligible employees.The Union requested voluntary recognition. Management announced that it no longer contemplated compensation changes. Some employees requested the return of their authorization. Novelis declined the demand for recognition. The Union sought an election. Novelis aggressively resisted organizing efforts. Executives reminded employees that Novelis’ unionized Quebec plant had closed. Novelis prevailed, 287 to 273. Abare subsequently posted a vulgar remark to his Facebook account complaining about his salary and castigating his fellow workers. Novelis demoted him. The NLRB issued a complaint alleging violations of the National Labor Relations Act, 29 U.S.C. 158(a)(1). An ALJ concluded that Novelis had committed unfair labor practices (ULPs) by restoring Sunday and holiday pay, removing Union literature, prohibiting employees from wearing Union paraphernalia, coercively interrogating employees, threatening employees, and by demoting Abare. The ALJ recommended the “extraordinary relief” of a bargaining order. The Board upheld the decision, declining to allow Novelis to supplement the record. The district court upheld the findings but refused to issue an interim bargaining order. The Second Circuit affirmed, concluding that the Board did not fully consider events occurring between the ULPs and its decision. While there is reasonable cause to believe that ULPs occurred, the evidence is not overwhelming. The employees are "sharply divided over the issue of unionization.” View "Novelis Corp. v. National Labor Relations Board" on Justia Law

Novelis’ Oswego plant management announced that employees would no longer receive Sunday premium pay and that holiday and vacation days would no longer count toward overtime eligibility. Abare and others obtained signed union authorization cards from a majority of the eligible employees.The Union requested voluntary recognition. Management announced that it no longer contemplated compensation changes. Some employees requested the return of their authorization. Novelis declined the demand for recognition. The Union sought an election. Novelis aggressively resisted organizing efforts. Executives reminded employees that Novelis’ unionized Quebec plant had closed. Novelis prevailed, 287 to 273. Abare subsequently posted a vulgar remark to his Facebook account complaining about his salary and castigating his fellow workers. Novelis demoted him. The NLRB issued a complaint alleging violations of the National Labor Relations Act, 29 U.S.C. 158(a)(1). An ALJ concluded that Novelis had committed unfair labor practices (ULPs) by restoring Sunday and holiday pay, removing Union literature, prohibiting employees from wearing Union paraphernalia, coercively interrogating employees, threatening employees, and by demoting Abare. The ALJ recommended the “extraordinary relief” of a bargaining order. The Board upheld the decision, declining to allow Novelis to supplement the record. The district court upheld the findings but refused to issue an interim bargaining order. The Second Circuit affirmed, concluding that the Board did not fully consider events occurring between the ULPs and its decision. While there is reasonable cause to believe that ULPs occurred, the evidence is not overwhelming. The employees are "sharply divided over the issue of unionization.” View "Novelis Corp. v. National Labor Relations Board" on Justia Law

Three defendants found by a jury to have engaged in a criminal conspiracy to distribute and possess with intent to distribute cocaine, 21 U.S.C. 841(b)(1)(A) challenged their convictions, contending that venue did not properly lie in the Southern District of New York, the place of their prosecutions. The Second Circuit affirmed their convictions, finding that, although the bulk of their joint criminal activity took place in the U.S. Virgin Islands and in Florida, the defendants’ activities and knowledge of the related travel to New York by one of the conspirators, who had left Florida with drugs obtained through the conspiracy and traveled to the New York area with plans to sell the drugs there, sufficed to support venue in the Southern District as to each defendant. The court upheld the denial of three suppression motions, which were based on searches resulting from DEA wiretaps, a protective sweep search of the master bedroom in the Florida residence in which a defendant was arrested, and a search of that defendant’s business, pursuant to a warrant. The court rejected a contention that the government failed adequately to disclose impeachment evidence regarding its lead witness and arguments that the court improperly calculated the defendants’ Guidelines ranges. View "United States v. Yuk" on Justia Law

The Second Circuit denied a petition for review of OSHA's final order affirming a citation issued to a construction company for a repeat violation of an excavation standard and assessing a penalty of $25,000. The court held that the Commission did not abuse its discretion by relying on previous violations more than three years old, because neither the Manual nor the Commissionʹs precedent limits OSHA to a three‐year look back period. Furthermore, the Commissionʹs precedents established that ʺthe time between violations does not bear on whether a violation is repeated.ʺ Finally, this was the company's third violation in six years. View "Triumph Construction Corp. v. Secretary of Labor" on Justia Law

The Second Circuit vacated defendant's conviction for drug-related offenses based on the district court's failure to inform defendant of the immigration consequences of his plea. In this case, the district court acknowledged defendant's concerns regarding serious potential immigration consequences of his guilty plea, but took no action to remedy an earlier oversight or to inquire further. Therefore, the district court's failure to inform defendant violated his substantial rights. The court remanded for further proceedings. View "United States v. Gonzales" on Justia Law

The Second Circuit denied the petition for review of FERC's two orders authorizing Millennium Pipeline to construct a natural gas pipeline in Orange County, New York. The court held that the Department waived its authority to review Millennium's request for a water quality certification under the Clean Water Act by failing to act on that request within one year. The court concluded that FERC did have jurisdiction over the pipeline where the Natural Gas Act provided that FERC had plenary authority over the transportation of natural gas in interstate commerce. View "New York State Department of Environmental Conservation v. FERC" on Justia Law

Petitioner challenged the BIA's retroactive application of a new rule expanding the types of larceny that qualify as a crime of moral turpitude. The Second Circuit granted the petition for review and reversed the BIA's latest order issued on remand. In this case, the BIA issued Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847 (B.I.A. 2016), on the same day that it dismissed petitioner's appeal. The court considered the factors in Lugo v. Holder, 783 F.3d 119, 121 (2d Cir. 2015), to determine that the BIA could not apply the new rule in Diaz-Lizarraga retroactively. In light of the second and third Lugo factors, the court found that Diaz-Lizarraga was an abrupt departure from BIA precedent and that petitioner relied on the previous rule when pleading guilty. The court then applied the categorical approach and the BIA's pre-Diaz-Lizarraga standard for larceny crimes involving moral turpitude, and held that the BIA erred when it found that petitioner's larceny conviction constituted such a crime. View "Obeya v. Sessions" on Justia Law

The Second Circuit held that the evidence at trial was sufficient to prove defendant's possession of crack cocaine with intent to distribute. The court also held, as a matter of first impression, that the New York offense of robbery in the second degree constitutes a "crime of violence" as that term was defined in the United States Sentencing Guidelines before August 1, 2016. Therefore, the court affirmed defendant's conviction and sentence. View "United States v. Smith" on Justia Law