Case Digests

Daily Record (Rochester, NY), Jul 2, 2008

U.S. Court of Appeals for the Second Circuit

Public Utilities

Federal Preemption

Wheelabrator Lisbon Inc. v.

Department of Public Utility Control

06-3632-cv

Appealed from the District

of Connecticut

Background: The plaintiff filed for injunctive relief from a state agency decision requiring the transfer of renewable energy credits to a utility company. The principal dispute concerns the ownership of the renewable energy attributes of the energy conveyed in an electricity purchase agreement. Wheelabrator argues that a 2004 decision of the DPUC modified the terms of the agreement and imposed utility-type regulation in conflict with Section 210(e) of the Public Utility Regulatory Policies Act. Concluding that the agency decision was not preempted by Section 210(e), the district court granted summary judgment to the state agency and its commissioners.

Ruling: The court finds the state agency decision was not preempted by federal law. The district court's ruling is affirmed.

Vincenzo Franco of Van Ness Feldman PC for the appellant, and Tatiana D. Eirmann, assistant Connecticut Attorney General, for the appellees

Death Penalty

Trifurcation

U.S. v. Fell

06-2882-cr

Appealed from the District

of Vermont

Background: The defendant was convicted of a carjacking that caused a death and was sentenced to death. In 2001, he signed a draft plea agreement that would have resolved the capital charges with a sentence of life without parole. The Attorney General rejected the plea deal. It was agreed that Fell would plead guilty in exchange for a bench trial on sentencing. The AG rejected this agreement as well. The government sought the death penalty. At the penalty phase, the verdict form indicated that 17 mitigating factors were found by at least one juror; eight were found unanimously. After considering the court's instructions to weigh the aggravating and mitigating factors, the jury decided unanimously that a sentence of death should be imposed. The appellant contends the Federal Death Penalty Act is unconstitutional because it does not allow for a separation of eligibility from the selection phases of sentencing in death penalty cases.

Ruling: The FDPA is not unconstitutional. Fell suffered no unfair prejudice resulting from the district court's implementation of the FDPA's sentencing procedures in light of the factors that weighed overwhelmingly in favor of the death penalty.

John Blume, Christopher Seeds and Sheri Lynn Johnson for the appellant, and William B. Darrow, assistant U.S. attorney, for the appellee

u.s. district

Court, wdny

Public

Corporations

11th Amendment

Sulieman v. Roswell Park

Cancer Institute

05-CV-0766A

Judge Skretny

Background: The plaintiff is a medical doctor who, while on a fellowship at Roswell Park, became embroiled in a controversy with the supervising physician, who also is named as a defendant in this case. The plaintiff believed the supervising doctor engaged in unethical medical practices and raised the issue with him; the fellowship was terminated. A claim for wrongful discharge and one alleging a violation of the New York Health Care Whistleblower's Protection Act of 2002 remain standing at this point of the litigation. The defendant moved to dismiss. The magistrate judge issued a recommendation, which was before Judge Skretny.

Ruling: The supervising physician is immune from liability in his individual capacity on the plaintiff's [section]741 whistleblower claim, and his motion is granted as to that basis for the plaintiff's suit. As to the suit against Roswell Park, it is noted by the magistrate that the vulnerability of a state's treasury is of paramount concern under an 11th Amendment analysis. The balancing test leads to a finding that the action is not barred by the 11th Amendment and the plaintiff's action survives.

A.L.A. Sulieman, pro se, and James R. Grasso of Phillips Lytle LLP for the defendant

Social Security

SSI

Papoi v. Astrue

06-CV-445

Judge Telesca

Background: The plaintiff seeks judicial review of the denial of his claim for SSI benefits. In 2004, when he was 41, the plaintiff filed the claim due to cervical disk herniations, lumbosacral strain, severe muscle spasms, carpal tunnel syndrome of the right hand, asthma and depression. Both parties moved for judgment on the pleadings.

Ruling: The defendant's motion is granted as the denial was supported by substantial evidence. Although the plaintiff's disabilities are severe, they are not severe enough, either singly or in combination, to qualify for benefits.

Jeffrey E. Marion for the plaintiff, and Kevin D. Robinson, U.S. Attorney's Office, for the defendant

Disability

Gates v. Barnhart

05-CV-6732

Judge Telesca

Background: The plaintiff brought action seeking review of the denial of his claim for disability benefits, filed in 2003 when he was 36. He had suffered from emotional problems, memory problems, anxiety, breathing and pulmonary problems. He alleges the decision denying his application for benefits did not properly weigh the opinions of his treating physicians and other medical sources and did not properly assess his credibility. Both parties moved for judgment on the pleadings.