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ADMINISTRATIVE LAW Petition filing deadline is ruling date, not postmark The deadline for filing a petition for review of a U.S. Department of Labor Administrative Review Board decision under the Toxic Substances Control Act was the date of the decision, not the day the decision was postmarked, the 9th U.S. Circuit Court of Appeals held on Feb. 17 in a case of first impression. Dierkes v. Department of Labor, No. 03-73141. On Sept. 2, 2003, Tina Dierkes filed a petition for review of a U.S. Department of Labor Administrative Review Board (ARB) decision, which had been decided on June 30, 2003. The employee protection provisions of the Toxic Substances Control Act, 15 U.S.C. 2622(c)(1), mandated that Dierkes’ petition be filed within 60 days of the date the decision was issued, or Aug. 29, 2003. However, Dierkes argued that her petition was timely because the date the decision was “issued” was the date the decision was postmarked. Dismissing Dierkes’ petition as untimely, the 9th Circuit relied on precedential Workers’ Compensation Benefits Review Board decisions, and held that the 60-day clock began running when the decision was decided, not when it was postmarked. Citing the workers’ compensation decision and public policy issues, the court said, “Dierkes’s proposed rule would require docketing clerks to attempt to interpret a badly smudged or otherwise illegible postmark. Moreover, if a petitioner discarded or lost the envelope in which the ARB mailed the decision, it would be impossible to determine when the decision had been issued. Utilizing the date indicated on the Board decision as the date of issuance alleviates such potential difficulties.” Full text of the decision BUSINESS LAW Federal law pre-empts securities class action An investors’ class action alleging dissemination of biased investment research by a stock brokerage firm is pre-empted by the Securities Litigation Uniform Standards Act (SLUSA), the 3d U.S. Circuit Court of Appeals ruled on Feb. 16. Rowinski v. Salomon Smith Barney Inc., No. 03-4762. On behalf of other customers and retail brokers of Salomon Smith Barney, Ryan Rowinski filed a class action against the brokerage firm in Pennsylvania state court alleging various claims of fraud, breach of contract and violation of state consumer laws. Rowinski gave several examples of what he considered biased investment research and advice. Among other things, Rowinski claimed investment decisions were made to curry favor with current and potential investment banking clients, to the detriment of the retail brokerage customers. Salomon removed the case to a federal district court, which granted Salomon’s motion to dismiss under SLUSA. The 3d Circuit affirmed, finding the federal statute’s pre-emption of claims alleging material misrepresentations and omissions in connection with the purchase or sale of any security applies to all of the claims alleged in this case. The complaint alleges that Salomon misrepresented the value of its investment banking clients’ securities, it sets forth a broad class definition encompassing purchasers and sellers, and it seeks recovery of trading fees and commissions charged in connection with the purchase or sale of securities. Full text of the decision CIVIL PRACTICE Notice obligation applies to tort, not contract, suit The statutory notice requirement does not apply in a breach of contract case involving the spraying of a pesticide, the North Dakota Supreme Court ruled on Feb. 16. Pratt v. Altendorf, No. 20040163. Robin Pratt, a farmer, contracted with Richard Altendorf, the owner of a cropspraying business, to spray fungicide on his crops. After harvest time, Pratt sued Altendorf for breach of contract, claiming that Altendorf sprayed the crops too early in their growing cycle to be completely effective, which resulted in a reduced crop yield. The trial court dismissed the action for failure to provide notice under N.D. Cent. Code � 4-35-21.1(1), which states that “[n]o civil action may be commenced arising out of the application of any pesticide by any applicator inflicting damage on property unless, within sixty days from the date the claimant knew or reasonably should have known of the damage [t]he claimant has served the applicator allegedly responsible for damage with a verified report of loss.” The North Dakota Supreme Court reversed the summary judgment dismissing Pratt’s action, and remanded for further proceedings. Pratt had not contended that Altendorf’s application of the fungicide was a tortious act inflicting damage on his crops. Instead, he had alleged that the spraying services constituted a breach of his contract by providing the services too early, thereby rendering the spraying less effectual and resulting in a reduced crop yield. The alleged harm was caused by untimely or premature services. The statutory notification requirement does not apply to an action of this type. The notice-reporting requirements apply only to actions arising out of the “application” of pesticides “inflicting damage on property.” Pratt’s action against Altendorf is based upon contract, not tort, principles, and thus does not fall within those actions for which the claimant must give statutory notice under Section 4-35-21.1(1) prior to the filing of the action. Full text of the decision CONSTITUTIONAL LAW Illegal aliens have no right to driver’s licenses Iowa’s policy of denying driver’s licenses to illegal aliens is constitutional, the Iowa Supreme Court held on Feb. 18. Sanchez v. State, No. 14/04-0176. Pursuant to a state statutory scheme, the Iowa Department of Transportation decided not to issue driver’s licenses to illegal aliens because they do not have Social Security numbers or other documents required to obtain a license. A class of illegal aliens who sought to obtain driver’s licenses and a class of licensed drivers who want the illegal aliens to be licensed sued the state, claiming that denial of the licenses violates equal protection. The trial court granted the state’s motion to dismiss. The Iowa Supreme Court affirmed, finding the state’s licensing scheme to be rationally related to the legitimate state interest of “not allowing its governmental machinery to be a facilitator for the concealment of illegal aliens.” Full text of the decision CRIMINAL PRACTICE No time limit on DNA test motion after trial There is no time limit for bringing a post-conviction motion for forensic DNA testing, and a defendant making such a request does not have to prove that specific DNA evidence exists and is currently available for testing, the New York Court of Appeals ruled on Feb. 15. People v. Pitts and People v. Barnwell, nos. 9 and 10. In 1995, Bernard Pitts was convicted of the rape of a 14-year-old girl, though the state did not introduce any forensic evidence at trial. Five years after the appeal of his conviction was final, Pitts filed a pro se motion to have DNA testing performed upon the swabs and physical evidence taken from the victim. The trial court ruled that Pitts’ motion was untimely and that he hadn’t proved that the material he wanted tested contained DNA. The appellate court affirmed. In another case, Anthony Barnwell was convicted of rape in 1987. Again, no forensic evidence was used at trial. Barnwell’s request 10 years later to have rape kit samples tested for DNA was rejected without a hearing. The ruling was affirmed on appeal. In both appellate rulings, the courts said the defendants did not exercise “due diligence” in making their requests. The New York Court of Appeals rejected the appellate courts’ rulings that the DNA-testing statute for convictions before Jan. 1, 1996, contains a time limit. The statute does not impose a due diligence requirement, either, and it is the state’s burden to show that what DNA evidence exists and whether the evidence is available for testing. Nonetheless, based on differences in the procedural postures of the two cases, the court affirmed the denial of Pitts’ motion, but reversed the denial of Barnwell’s motion. Full text of the decision EMPLOYMENT Hostile environment can be retaliatory action A hostile work environment is a retaliatory adverse employment action if employer-tolerated, the 1st U.S. Circuit Court of Appeals held on Feb. 16. Noviello v. City of Boston, No. 04-1719. Christi Noviello, a parking enforcement officer for the city of Boston, was riding in a van with her supervisor, Jos� Ortiz, when he ripped her bra from her body, hung it on the van’s outside mirror, and yelled a crude sexual remark to a co-worker outside. Noviello promptly reported the incident to several municipal officials, who promptly investigated, suspended and ultimately cashiered Ortiz. Thereafter, Noviello endured ostracization and mistreatment by fellow employees. She filed a complaint with the Massachusetts Commission Against Discrimination and the federal Equal Employment Opportunity Commission, but the harassment persisted. She allegedly required treatment for physical and psychological problems. She requested withdrawal of her administrative complaint and brought suit in Massachusetts state court. When she added federal claims, the city removed the case to a Massachusetts federal court, which granted summary judgment to the city. The 1st Circuit affirmed in part, vacated in part and remanded. The court held that the creation and perpetuation of a hostile work environment, tolerated by the employer, can comprise a retaliatory adverse employment action under 42 U.S.C. 2000e-3(a). The court said that summary judgment was in error on the retaliation claims, as they were timely, cognizable and supported by sufficient evidence, but was properly granted on the sexual harassment claims, because the state law claim is time-barred and the federal claim runs afoul of the employer’s affirmative defense of swift, effective and non-negligent response to the underlying incident. Full text of the decision INTELLECTUAL PROPERTY Smithsonian is ‘U.S.’ for copyright purposes A copyright action against the Smithsonian Institute must be brought in the U.S. Court of Federal Claims because the institute is considered “the United States,” the 2d U.S. Circuit Court of Appeals ruled on Feb. 16. O’Rourke v. Smithsonian Institution Press, No. 04-0151. Kevin O’Rourke filed a pro se copyright infringement action in a New York federal district court against the Smithsonian Institute’s publishing arm for allegedly copying from a book O’Rourke wrote on Irish-American history. The district court granted the Smithsonian’s motion to dismiss for lack of jurisdiction, agreeing that the U.S. Court of Federal Claims held exclusive jurisdiction over copyright actions against the United States. The 2d Circuit affirmed, noting that no other circuit has considered the question of the Smithsonian’s status under the copyright statute. The Smithsonian is not considered a government agency for purposes of some federal statutes, and the legislative history of the copyright exclusive jurisdiction statute does not mention the Smithsonian. Nonetheless, its 19th century creation, governance and operation�including the fact that Congress appropriates funds for the institute’s publications and the treasury department pays for any judgments against the institute�establish that it is part of the U.S. government. Full text of the decision

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