Case Digests

Daily Record (Rochester, NY), Jun 24, 2009

U.S. Court of Appeals for the Second Circuit

Cable Television

Must-Carry Provisions

Cablevision Systems Corp. v. FCC

07-5553-ag

Petition for review of decision

of Federal Communications

Commission

Background: The petition is for review of an order of the Federal Communications Commission, which directed petitioner Cablevision to carry the signal of television station WRNN. The must-carry provisions of the 1992 Cable Act require cable operators, such as Cablevision, to carry the signals of a number of local commercial television stations. The FCC's decision ordered the company to include certain Long Island communities in the market of WRNN, a station broadcasting from upstate New York; the resulting order directed Cablevision to carry WRNN on its Long Island cable systems. Cablevision argues that the commission's decision contravenes the text and purpose of the statute, and that the statute as applied violated Cablevision's First and Fifth Amendment rights.

Ruling: The petition is denied. Cablevision was required to show that the regulation had an economic impact that interfered with distinct investment-backed expectations to establish a regulatory taking. It failed to do so. As to its First Amendment claim, the court finds the order to be content neutral. It has no trouble concluding that the order "advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further these interests."

Henk Brands of Paul, Weiss, Rifkind, Wharton & Garrison LLP for the petitioner, and Jacob M. Lewis of the Federal Communica-tions Commission for the respondent

Medicaid

Wong v. Doar

08-4992-cv

Appealed from the

Southern District of New York

Background: The appeal is from an award of summary judgment in favor of the defendants on the plaintiff's challenge to state Medicaid Manual section 3259.7, an informal rule issued by the U.S. Department of Health and Human Services' Centers for Medicare and Medicaid Services, which provides that income placed in a Special Needs Trust be considered in determining the extent of benefits to which a Medicaid-eligible person is entitled. The rule effectively prevents Medicaid recipients such as Wong from using trusts to shelter monthly Social Security Disability Insurance income from certain Medicaid eligibility determinations. Plaintiff Sai Kwan Wong is a permanently disabled Medicaid recipient who resides in a nursing home. Through his guardian, Wong appeals an award of summary judgment in favor of the named city, state and federal defendants -- among them, the commissioner of the New York City Human Resource Administration and the Secretary of the Department of Health and Human Services -- which was entered by the district court.

Ruling: The court rejects the plaintiff's argument that section 3259.7 conflicts with the plain language of 42 U.S.C. [section]1396p(d), and accords Skidmore deference to the enforcing agency's issuance of section 3259.7 as a reasonable exercise of discretion to fill a gap in the statute on an issue about which Congress failed to express clearly its intent.

Aytan Yehoshua Bellin for the appellant, and Janet Z. Zaleon, assistant corporation counsel, for the appellee

u.s. district

Court, wdny

Appellate

Jurisdiction

Wik v. City of Rochester

07-CV-6541

Judge Siragusa

Background: The plaintiff filed a motion to modify an order that denied a motion for reconsideration and dismissed several of the plaintiff's claims. The plaintiff, in his latest application seeking reconsideration of that decision, disputes the applicability of the Rooker-Feldman doctrine to the case, and asserts that the state judge erroneously made a factual determination on a summary judgment motion.

Ruling: The court repeatedly has cautioned the plaintiff to obtain counsel to assist him in the case. The court's prior decision does not pass validity on the decision of the state court, but holds only that it is prevented from doing so by the Rooker-Feldman doctrine. The district court cannot act as a court of appellate review. Only the Supreme Court has jurisdiction to hear an appeal from a state court action in which an appellant claims a constitutional violation. The court finds no basis for reconsidering its prior decisions determining that the portions of the complaint pertaining to the city's taking of the real property at issue should be dismissed.

Daniel Joseph Wik, pro se, and John M. Campolieto, City of Rochester Law Department, for the defendants

Social?Security

Soto v. Astrue

08-CV-6352

Judge Telesca

Background: The plaintiff, alleging that back problems and a rotator cuff injury limited his ability to engage in employment, filed claims for disability and SSI benefits. They were denied and the action followed. At the time of the hearing, the plaintiff was 46 years old, and the highest level he had attended in school was sixth grade. His past work consisted of employment as a cleaner, housekeeping supervisor, mixing machine operator, inspector and dining room attendant.