Case Digests

Daily Record (Rochester, NY), Jul 8, 2008

U.S. Court of

Appeals for the

Second Circuit

Fifth Amendment

Torture Victim Protection?Act

Arar v. Ashcroft

06-4216-cv

Appealed from the Eastern District

of New York

Background: The plaintiff is a dual citizen of Syria and Canada who alleges he was mistreated by officials in the United States and removed to Syria with the knowledge or intention that Syrian authorities would interrogate him under torture. He brought an action against the United States and various U.S. officials pursuant to the Torture Victim Protection Act and the Fifth Amendment. The defendants moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim on which relief can be granted.

Ruling: Arar's allegations about the events surrounding his removal to Syria do not state a claim against defendants under the Act. The allegations of mistreatment do not state a cause of action under the Fifth Amendment as there are no damages authorized for such a claim. The court also finds that Arar did not adequately establish federal subject matter jurisdiction over his request for a judgment declaring the defendants acted illegally by removing him to Syria so authorities there could interrogate him under torture.

David Cole of the Center for Constitutional Rights for the plaintiff, and Dennis Barghaan, assistant U.S. attorney, for the defendant

Fair Trial

Classified Documents

U.S. v. Aref

07-0981-cr

Appealed from the Northern

District of New York

Background: The defendants were arrested following a sting operation and the jury found they conspired to conceal the source of what a cooperator said were proceeds from the sale of a surface-to- air missile, which officials alleged was to be used in a terrorist attack. The district court denied a motion of the New York Civil Liberties Union to intervene in the case for the purpose of asserting a First Amendment right to discovery of certain documents sealed by court order.

Ruling: Under the Classified Information Procedures Act, a criminal defendant is entitled to discovery of relevant classified evidence helpful to his defense. This decision is within the district court's discretion and may be made without the defendant's or his lawyer's participation. The court notes that district courts usually should refrain from entirely sealing court orders and documents filed by the parties, but finds the district court did not err in sealing the sensitive documents in this case.

Terence L. Kindlon and Corey Stoughton for the appellants, and William C. Pericak, assistant U.S. attorney, for the United States

u.s. district

Court, wdny

Social Security

Disability

Ward v. Astrue

06-CV-374

Judge Telesca

Background: The plaintiff brings this action following the denial of his claim for disability and SSI benefits. He alleges the decision of the administrative law judge, who denied his application for benefits, was not supported by substantial evidence. Both parties moved for judgment on the pleadings. The plaintiff filed his claim at the age of 31 in 2004, claiming he suffers from peripheral neuropathy in the lower extremities, affective and anxiety disorders and substance abuse. The ALJ found the plaintiff suffered from impairments that were severe, but not severe enough to meet or equal -- either singly or in combination -- any of the impairments listed in the regulations. It also was found that the plaintiff still could perform light work if he ended his substance abuse.

Ruling: The ALJ properly weighed the medical evidence. The ALJ reasonably determined the plaintiff's affective and anxiety disorders did not cause severe impairment and it is the plaintiff's abuse of substances that prevents him from working and worsens his mental condition. The plaintiff's complaint is dismissed.

Joseph D. Clark of the Law Offices of Kenneth Hiller for the plaintiff, and Kevin D. Robinson, U.S. Attorney's Office, for the defendant

u.s. district

Court, Ndny

Job Discrimination

Title VII

Zhou v. State University of New

York Institute of Technology

08-CV-444

Judge Hurd

Background: The plaintiff alleges employment discrimination claims under Title VII and [section]1981. Among the defendants is an assistant professor of human resources, the dean of the business school and president. The plaintiff alleges a campaign of harassment was launched against him in retaliation for allegations of academic fraud he made against another instructor. The defendants moved to dismiss. The plaintiff withdraws his [section]1981 claims against these defendants in their official capacities, and the Title VII claims in their individual capacities. Otherwise, he opposes the motion.

Ruling: The court finds the complaint sets forth causes of action under [section]1981 and Title VII. Based on documentary evidence presented by the plaintiff, the Title VII claims are not time- barred.

Xu-Shen Zhou, pro se, and Douglas G. Goglia, New York State Attorney General's Office, for the defendants

Social Security

Legal Fees

Smoke v. Barnhart

02-CV-0764

Judge Kahn

Background: In this Social Security benefits case, plaintiff's counsel agreed to represent the plaintiff, beginning in 2000, before the Social Security Administration, the Appeals Council and the district court, pursuant to a contingency fee agreement that if the plaintiff was successful counsel received 25 percent of all past due benefits. Ultimately, counsel was successful in his representation, and the plaintiff received benefits. The plaintiff's attorney was awarded an administrative fee of $14,450 and is in receipt of a notice from the Social Security Administration indicating $16,039.00 is being withheld for anticipated legal fees. Before the court is a motion by the attorney to receive the second payment.