Vietnam Veterans and Agent Orange Claims

With the election campaign’s discussion of the contribution of veterans while in the military and patriotism, it’s of interest to note a Rules Change that the Department of Veterans Affairs (DVA) is proposing. The proposal (RIN 2900-AM74) seeks to amend 8 CFR Part 3 on the “Definition of Service in the Republic of Vietnam” in connection with claims from exposure to the herbicide Agent Orange. The DVA proposed the rule change last November after the US Court of Appeals for Veterans Claims (CAVC) decision in Haas v. Nicholson, 20 Vet. App. 257 (2006). That case involved a claim by a Vietnam Service Medal recipient for compensation under the Agent Orange Act of 1991. The CAVC overturned the DVA rule requiring Vietnam veterans to have set foot in the Republic of Vietnam to qualify for the legal presumption that they were entitled to compensation for exposure to Agent Orange.

In response, the DVA moved on three separate fronts to limit claims for Agent Orange exposure to only those Vietnam veterans who had “boots on the ground” in the Republic of Vietnam. In addition to the Rules Change, the DVA requested Sen. Akaka (D-HI) to introduce the Agent Orange Equitable Compensation Act (S. 2026) to "amend title 38, U.S. Code, chapter 11, to …clarify that the presumption of herbicide exposure provided by 38 U.S.C. 1116(f) applies only to veterans who served in Vietnam on land or on Vietnam's inland waterways and not to those who served only in waters offshore or in airspace above." That bill is pending in Committee on Veterans' Affairs.

The DVA also filed an appeal of the decision by the CAVC. In May 2008, the Federal Circuit reversed the decision of the CAVC in Haas v. Peake, 525 F.3d 1168 (Fed.Cir. 2008) (Westlaw password):

We reverse the Veterans Court's ruling rejecting the DVA's interpretation of section 3.307(a)(6)(iii) of the agency's regulations as requiring the service member's presence at some point on the landmass or the inland waters of Vietnam. We remand to the Veterans Court for further proceedings consistent with this opinion. Before the Veterans Court on remand, Mr. Haas is free to pursue his claim that he was actually exposed to herbicides while on board his ship as it traveled near the Vietnamese coast. However, he is not entitled to the benefit of the presumptions set forth in 38 U.S.C. § 1116 and the corresponding DVA regulations, which are limited to those who “served in the Republic of Vietnam.”

The National Veterans Legal Services Program has filed a brief with the US Court of Appeals for the Federal Circuit requesting an en banc review, or a re-hearing of the Haas case. Interestingly, under the proposed DVA “Definition of Service in the Republic of Vietnam”, a pilot who became a POW and was held in captivity in the Hanoi Hilton would not be entitled to a presumption for receiving benefits for Agent Orange exposure.

NJ Assesses Points for Dismissed Tickets

The New Jersey Law Journal reports a change in how the NJ Motor Vehicle Commission (MVC) assesses points on traffic tickets that are dismissed in court and merged with another offense as part of a plea bargain. The change began in May and will have a major impact on municipal court traffic cases where plea bargaining of NJ Title 39 motor vehicle offenses is now common practice. The MVC policy relies on an unreported November 2007 opinion in State v. Price (2007 WL 3287844) (password needed), an appeal of a judgment of conviction for second degree eluding where the trial court merged motor vehicle offenses into the eluding conviction. The Monmouth County Appellate Division rejected the appeal but, on its own motion, remanded the judgment of conviction to the trial court to require the imposition of mandatory motor vehicles points:

This merger, however, does not obviate the imposition of mandatory penalties under Title 39....“Those penalties...must survive the merger, particularly since they represent not only punishment for the offender but also protection for the driving public.”

In May, the MVC sent a memo to municipal judges, court administrators and municipal prosecutors to announce the change. But the change comes with very little notice to the NJ municipal court defense bar catching many off guard.

Traditionally, NJ Supreme Court rules prohibited plea bargaining in municipal court. Now, plea bargains in the Municipal Courts are permitted and governed by R. 7:6-2(d). In July, 2000, the NJ Legislature passed P.L.2000, c.75 to prohibit operating a motor vehicle in an unsafe manner and to allow municipal prosecutors to move before the municipal court to amend the original charge to a lesser offense. This lesser offense, "Unsafe Driving", imposes no points against the defendant's record. This resulted in plea bargains amending a point-producing charge, such as speeding or passing on the right, to a charge without points. That practice will change as a result of the new MVC directive. Now, to insulate a defendant from MVC points, the better practice will be to ask the municipal prosecutor to move for a directed verdict of not guilty. Whether municipal prosecutors will make such motions is another question as the affect on revenues generated in muncipal courts could be significant. That is an item for a separate posting.

Source: New Jersey Law Journal, Points Now Assessed For Merged Traffic Charges by Charles Toutant, June 19, 2008 (password needed)

NYSBA Task Force to Study Wrongful Convictions

This month, the New York State Bar Association established a task force of 22 professors, former judges, prosecutors, defense attorneys and others to identify rules, procedures and statutes contributing to the problem of wrongful convictions. The news release issued earlier this month lists BLS Prof. William Hellerstein as one of the task force members. Professor Hellerstein, who has been a member of the faculty since 1985, is the author of articles, books and reports on criminal law and constitutional litigation. An experienced civil rights and appellate advocacy authority, Prof. Hellerstein brings the perspective of the defense bar to this new task force. See Second Look Victory, a 2004 News Channel 4 report which briefly covers the reversal of the wrongful murder conviction of David Wong, for whom Prof. Hellerstein, the Director of Brooklyn Law School's Second Look Clinic, served as lead counsel.

Other members of the task force with connections to BLS are the Hon. Charles J. Hynes, Kings County District Attorney and BLS Adjunct Professor of Law; David Louis Cohen, Esq., BLS Class of 1971; and the Hon. George Bundy Smith, Retired Court of Appeals Judge and 2008 BLS commencement speaker.

The Task Force is expected to conduct an analysis of cases in New York State that have led to wrongful convictions and to hold hearings with input from communities around the state and to study the rules, procedures and statutes that may play a part in wrongful convictions. Adequacy of compensation is one of the key issues under review. The Task Force is expected to issue a final report in April 2009.

Episode 029 - Conversation with Chief Clerk Tom Kilfoyle, BLS Class of 1984

Episode 029 - Conversation with Chief Clerk Tom Kilfoyle, BLS Class of 1984.mp3

A recent article in the Brooklyn Eagle featured Kings County Supreme Court Chief Clerk Tom Kilfoyle, BLS Class of 1984, with this opening paragraph:

In what is possibly the busiest state court in the United States, Brooklyn Supreme Court’s Civil Term, if you posed the ridiculous question, “Who is the most important person in this court,” most respondents, from judges to court officers, would laugh and say “That’s a ridiculous question.” But in their minds they would be thinking of one person: Tom Kilfoyle, the chief clerk.

In this podcast, Chief Clerk Kilfoyle talks about his years as an evening student at BLS along with the work he does with the Supreme Civil Term, 2d Judicial District, Kings County. For more information on the NY Supreme Court and its clerks, see the 53 minute streaming video Navigating the Supreme Court in the library's collection that is part of the Brooklyn Law School webcast series.

Justice Breyer Interview on Legal Writing

This past Saturday, US Supreme Court Justice Stephen Breyer appeared on C-Span with Bill Press to talk about good legal writing. The discussion was part of the Burton Awards program held at the Library of Congress to honor partners in law firms and law school students who use plain, clear and concise language in briefs and other legal writing. Anna Burns, BLS Class of 2008, was a recent recipient of a Burton Award for Legal Writing.

In the conversation, Justice Breyer refers to his own book Active Liberty: Interpreting Our Democratic Constitution, Call No. KF4552 .B74 2005 along with The Nine: Inside the Secret World of the Supreme Court by Jeffrey Toobin, Call No. KF8748 .T66 2007 both of which are in the BLS library collection.

The link to the half hour conversation is here.

BLS Alumnus and Basketball in the News

This week, the Associated Press has a story about City of Seattle v. Professional Basketball Club LLC, the lawsuit about the final two years of the lease between the city and the SuperSonics at Seattle’s KeyArena. The Sonics gained the NBA's approval to move the team to Oklahoma City, the hometown of team owner Clay Bennett, largely based on economic considerations. The City of Seattle argues that the lease forces the franchise to play two more seasons before departing.

The Sonics are represented by 53 year old Brad Keller, who graduated magna cum laude from Brooklyn Law School with the Class of 1979. Keller is the managing partner of Byrnes & Keller LLP in Seattle, Washington. The case has been pending in U.S. District Court for the Western District of Washington since October 2007 when Keller successfully removed the case from the state courts to the federal court. The six-day, no-jury trial before U.S. District Judge Marsha Pechman is expected to conclude this week.

The Sonics’ argument that it can terminate its lease early because they are losing money at Key Area, if successful, could set a precedent with broad implications in the sports world. If the court permits early termination, it could impact the willingness of taxpayers to authorize public funding of new stadiums.

Copyright Spamigation

The case of UMG Recordings, Inc. v. Marie Lindor, No. 05-CV-1095 in the EDNY in Brooklyn has had a long and tortuous history including a reported opinion in November 2007 at 531 F.Supp.2d 453. The litigation began in February 2005 with the filing of a complaint against Marie Lindor, seeking damages and injunctive relief for copyright infringement under U.S. copyright laws, 7 USC § 101 et seq. The defendant is a home health aide who has never bought, used, or even turned on a computer in her life. She was sued by the Recording Industry Association of America (RIAA) in Brooklyn federal court for using an "online distribution system" to "download, distribute, and/or make available for distribution" music files, commonly referred to as peer to peer computer network or P2P.

Fortunately for Ms. Lindor, her defense counsel was Ray Beckerman who maintains a website called Recording Industry vs. the People to document the litigation tactics employed by the RIAA. Initially, the Lindor case seemed on track to follow the usual pattern in cases filled by the RIAA, where it discovers an IP address involved in file sharing, attempts to tie it to somebody and then brings suit in federal court, finally offering the defendant a chance to settle out of court for a few thousand dollars. On many occasions, would-be defendants decide to write a four-digit check to the RIAA and make the problem go away. In UMG v. Lindor, the defendant and her counsel, Ray Beckerman, decided to fight back, taking an unusual tactical course: investigating the possible use of P2P network by RIAA member companies.

Using agressive discovery tactics, Beckerman asked tough questions of the RIAA about its own use of P2P networks for sending music to radio stations. The RIAA refused to answer on the grounds that it was "not relevant to the claim or defense of any party," "not relevant to the subject matter involved in this action," and is not "reasonably calculated to lead to the discovery of admissible evidence". The judge found the RIAA's objections unconvincing and ordered them to respond. The RIAA responded to the questions without divulging whether the employees of record labels used P2P networks. Instead the plaintiffs merely replied that the two in-house lawyers they contacted and the head of procurement said that the record label never registered accounts. Defense attorney Beckerman objected, saying that RIAA deliberately narrowed the judge's instructions to cover the conduct of the labels themselves, rather than its employees, as the interrogatory had directed. This tactic struck a sore point especially since the record labels argue that the mere use of a P2P network indicates guilt.

Examining the numerous motions, pleadings and filings in both Westlaw and PACER reveals extensive pre-trial motion conferences related to discovery, summary judgment motions and applications for attorney fees. This week, it appears that the plaintiff is now making a motion for voluntary dismissal of the three and a half year old case. RIAA has not given up unconditionally as its application for dismissal is not only without prejudice but also seeks an order awarding discovery sanctions against Ms. Lindor and her attorney, Ray Beckerman, and staying all future proceedings. This stay would include any application for attorney fees on behalf of a prevailing copyright defendant to which they are presumptively entitled under § 505 of the Copyright Act even where plaintiff voluntarily dismisses the complaint, Mostly Memories, Inc. v. For Your Ease Only, Inc., 526 F.3d 1093 (7th Cir. 2008).

The library catalog, SARA, has some useful material on the topic including Music Piracy and Crime Theory by Sameer Hinduja, Call No. HV6773 .H56 2006 and Internet Piracy, a short collection of essays edited by James D. Torr, Call No. KF3024.C6 I58 2005.

Judicial Immunity: How Absolute is it?

Today’s New York Law Journal has a front page story (password required) about the dismissal of defamation claims filed against two federal judges by a pro se attorney. The libel actions stem from an employment discrimination suit filed in September 2003 by Loretta McHenry, a 1990 graduate of Brooklyn Law School. In August 2005, Judge David G. Trager entered an order for summary judgment in favor of Ms. McHenry’s former employer. McHenry appealed the dismissal to the Second Circuit where in February 2007 Judge Robert A. Katzmann affirmed the order for summary judgment in favor of the employer. In October 2007, McHenry filed a 22 page libel complaint against Judge Katzmann in Kings County Supreme Court. The following month, she filed a separate 38 page libel complaint in state court against Judge Trager, a former Dean of Brooklyn Law School from 1983 to 1993. Both libel actions were removed to federal court. In January 2008, Eastern District Judge Dora L. Irizarry entered an order dismissing the pro se plaintiff’s complaint against Judge Trager. On June 13, 2008, Judge Irizarry entered a separate order of dismissal of the complaint against Judge Katzmann. The dismissals of both libel complaints against the federal judges cited the US Supreme Court decisions of Mireles v. Waco 502 U.S. 9 (1991) and Forrester v. White, 484 U.S. 219 (1988) stating “It is well-settled that judges have absolute immunity from suits for damages arising out of judicial acts performed in their judicial capacities”.

Searching SARA, the library catalog, for material about judicial immunity yields only a few titles. Suing Judges: a Study of Judicial Immunity (1993) by Abimbola A. Olowofoyeku, Call No. K2146 .O45 1993 (Int'l) traces the origin of the doctrine of judicial immunity almost 400 years of the common law for the rule that "no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him", quotiing Lord Denning in Sirros v Moore [1975] QB 118. The book reviews "the law relating to the protection of judicial officers in common law legal systems” and argues that immunity is unnecessarily wide. This book tests fundamental assumptions on the topic of judicial immunity.

A search of recent legal periodicals shows some cracks in the doctrine of absolute judicial immunity. For example, the November 2006 edition of the ABA Journal had an article entitled Getting out the ‘No’ Vote by Wendy N. Davis reporting a South Dakota campaign to persuade voters to reject a ballot initiative known as Judicial Accountability Initiative Law or JAIL. The proposal would have amended the state constitution to allow litigants to sue judges for intentionally violating people's due process rights. The May 2008 edition of the Wisconsin Law Journal reported that the proposal was ultimately defeated by a margin of 89% to 11%, even though early polls showed voters in favor of the proposal by margins of 3 to 1. In the upcoming issue of 24 Touro Law Review at page 473, Erwin Chemerinsky has an article entitled Absolute Immunity: General Principles and Recent Developments which explores the issue of judicial immunity in detail.

The Future of Consumer Arbitraton: Back to the Common Law?

When the US Congress passed the United States Arbitration Act (now known as the Federal Arbitration Act or the FAA) in 1925, it seemed a good alternative to costly litigation. Before that, the common law rule of revocability (which allowed either party to revoke an arbitration clause before an arbitral award was determined) made enforcement of agreements to arbitrate future disputes all but impossible. The 1920 passage of the New York Arbitration Law, the first American statute to make arbitration effective, led to the federal legislation. Since then, arbitration has had the reputation of being an efficient method of alternate dispute resolution saving precious judicial resources for more serious matters. Over the years, US Supreme Court precedents have given an expansive reading of the FAA. The most recent ruling by the Court was the decision in Hall Street Associates, LLC v. Mattel, Inc. that parties cannot agree to a higher standard of judicial review of arbitration awards. That decision questioned the validity of a long-standing doctrine permitting courts to overturn arbitration awards that are in "manifest disregard" of the law.

For the average consumer, however, the favorable treatment of arbitration may have some unintended consequences. Typically, most credit card or bank loan agreements have "arbitration clauses" slipped into numerous pages of boilerplate stating that disputes must go to arbitration rather than to a civil jury. These clauses potentially impact disputes with credit card companies from mistaken charges, failures to credit returned items, penalty fees that were promised to be waived and even problems arising from stolen credit cards or identity theft.

This month’s cover story in Business Week reports on the large number of credit card disputes settled through arbitration by one of the nation’s largest for-profit arbitration firms, the National Arbitration Forum (NAF). Reporters Robert Berner and Brian Grow raise serious questions about the impartiality of the arbitrators. They cite a California law suit filed this March by Dennis J. Herrera, San Francisco's city attorney, accusing NAF of churning out awards for creditors without sufficient justification. The suit cites state records showing that NAF handled 33,933 collection arbitrations in California from January 2003 through March 2007. The suit alleges that of the 18,075 cases not dismissed or settled before arbitration, consumers won just 30, or 0.2%. The WSJ Law Blog’s Dan Slater posted a story on the suit.

Legislation is pending to invalidate pre-dispute arbitration agreements and allow consumers to decide if they want to go to arbitration after a dispute arises. Sen. Feingold (WI) introduced S. 1782 and Rep. Johnson (GA) sponsored H.R. 3010, the Arbitration Fairness Act in Congress during the current session. In addition to consumer cases, the proposed legislation would overturn the strong presumption in favor of arbitrability in decisions of the US Supreme Court under the Federal Arbitration Act in consumer and labor disputes. Prospects for passage are slim given the time remaining in the 110th Congress.

For further reading on the topic, see Consumer Arbitration Agreements: Enforceability and Other Topics, by F. Paul Bland, Jr. (Call No. KF9084 .B53 2007) in the library’s main collection.

Hein Online YouTube Channel

If you have questions about searching for legal periodicals, other legal titles or other questions about bookmarking and downloading material from HeinOnline, easy to view help has arrived. HeinOnline has created six video tutorials and posted them on YouTube. View them at http://www.youtube.com/HeinOnline08 . There are six topics:

· “Introducing the HeinOnline YouTube Channel”
· “How to Find an Article in the Law Journal Library”
· “Finding the Coverage Information for a Title”
· “Bookmarking a Search in HeinOnline with Internet Explorer”
· “Bookmarking a Search in HeinOnline with Firefox”

Each video goes step-by-step through its respective topic. They are available on YouTube, as well, by entering Hein Online in the search box.

"Footprints in the Sand” Goes to Court

“Footprints in the Sand” has appeared on plaques, t-shirts, mugs and other merchandise sold in stores and online usually signed "Author Unknown". With merchandising rights at stake, it comes as no surprise that a lawsuit is pending in a federal court on Long Island to decide just who wrote it.

On May 12, Basil Zangare of Shirley, N.Y., filed a 16 page complaint (password needed) under the Copyright Act of 1976, claiming that the words were written by his late mother, Mary Stevenson, in the 1930s and that she registered them with the U.S. Copyright Office in 1984. There are two defendants named in the suit. One of them, Margaret Fishback Powers, is a Canadian traveling evangelist. Powers says that she has a registered trademark for "Footprints" and "Footprints in the Sand" and that she wrote the words at a Thanksgiving religious retreat in Canada in 1964. She has a website marketing items using the poem. The second defendant, Carolyn Joyce Carty, claims on her webpage that she wrote the poem in 1963 when she was 6 years old and was inspired by poet Henry Wadsworth Longfellow. The poem was popular 20 years ago but has become less so today. According to the complaint, Zangare seeks more than $1 million from each of the two women as unjust enrichment.

Source: Washington Post, Search to Divine Authorship Leads 'Footprints' to Court by Hank Stuever, June 1, 2008

US Supreme Court to Rule on Case out of Brooklyn's Metropolitan Detention Center

On June 12, the case of Ashcroft v. Iqbal, with roots in Brooklyn, will come up before the US Supreme Court. The Court will consider a government request to overturn a Second Circuit decision that declined to dismiss a suit against former Attorney General John Ashcroft and FBI Director Robert Mueller. The plaintiff alleges that Ashcroft and Mueller personally condoned plans to isolate all Arab and Muslim immigrants arrested near New York City in the wake of the 9/11 attacks in the maximum security wing of the Metropolitan Detention Center (“MDC”) in Brooklyn.

The case involves a claim for damages by Javaid Iqbal, a Muslim Pakistani who was held for a time in a maximum security facility in Brooklyn after he was arrested by the FBI and immigration agents. He has since returned to Pakistan. Iqbal has not challenged the legality of his initial arrest, or his initial detention in the Brooklyn facility but contends that the conditions of his continuing confinement and his classification as a “high-interest” suspect based on ethnicity violated his rights. He argued that the sweep of Muslim men, reaching thousands of them as part of the official investigation of the 9/11 attacks, was based on racial and religious discrimination.

The Ashcroft-Mueller petition raises two questions:

1. Whether a conclusory allegation that a cabinet level officer or other high-ranking official knew of, condoned, or agreed to subject a plaintiff to allegedly unconstitutional acts purportedly committed by subordinate officials is sufficient to state individual-capacity claims against those officials under Bivens.

2. Whether a cabinet-level officer or other highranking official may be held personally liable for the allegedly unconstitutional acts of subordinate officials on the ground that, as high-level supervisors, they had constructive notice of the discrimination allegedly carried out by such subordinate officials.

Yesenia Batista, Class of 2009, Awarded DRI Law Student Diversity Scholarship

BLS student Yesenia Batista of the Class of 2009 will be awarded the DRI Law Student Diversity Scholarship at the third annual DRI Diversity for Success seminar in Chicago on June 12 and 13. DRI is a national organization of defense trial lawyers and corporate counsel, and the scholarship is one of only two $10,000 awards granted to applicants.

Currently working as a summer law clerk in Thompson Hine LLP’s New York office, Yesenia has been active in law student affairs at BLS. She was involved with the Legal Association of Women (LAW) and the Brooklyn Journal of International Law. She also worked with the Second Look Program investigating claims of innocence by prisoners whose appellate remedies have run their course, and in the American Civil Liberties Union’s Women’s Rights Project, where she analyzed women’s rights issues including domestic violence, employment discrimination and equal access to justice. Yesenia served as an intern for Judge Ronald L. Ellis (SDNY).