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ATTORNEY FEES Detention challenges are civil actions under law Attorney fees may be awarded under the Equal Access to Justice Act (EAJA) in proceedings to challenge an immigration detention, the 2d U.S. Circuit Court of Appeals ruled in a matter of first impression on April 18. Vacchio v. Ashcroft, No. 03-2532. An immigration judge granted Tullio Vaccio’s habeas petition and application for cancellation of removal. Vacchio petitioned for fees under the EAJA, but a Vermont district court denied the petition, ruling that a challenge to an immigration detention was not a “civil action” under the act, that Vacchio was not a “prevailing party” and that the government’s position was “substantially justified.” Though affirming the ultimate conclusion that attorney fees were not proper here, the 2d Circuit ruled that attorney fees may be available in such situations. The court characterized the proceeding as a civil action. A prior circuit decision held that habeas corpus petitions were not civil actions under the EAJA, but the court today limited that holding to habeas petitions in criminal matters. The court also ruled that Vacchio was a prevailing party, but found that the U.S. government’s position was substantially justified, as the government was required to put on a defense to a challenge to the underlying laws’ constitutionality. Full text of the decision CIVIL PRACTICE Medicare suit’s place is in federal district court A suit to recover funds paid to Medicare after a medical malpractice suit victory arises under the Medicare statutes and must be brought in federal district court, not federal claims court, the U.S. Court of Appeals for the Federal Circuit ruled on April 21 in a case of first impression. Wilson v. United States, No. 04-5051. Laura Wilson’s husband received medical treatment that was paid by Medicare. After his death, Wilson won a medical malpractice case on his behalf. Saying that Wilson’s recovery of the malpractice award resulted in an overpayment by Medicare, Medicare moved to recover a portion of the judgment. Wilson settled with Medicare, then sued the agency under the Tucker Act in U.S. Federal Claims Court to have Medicare pay the money back to her. She argued Medicare’s actions were not authorized by statute. The claims court dismissed her suit for lack of jurisdiction, ruling that Wilson’s claims arose under the Medicare statutes, vesting exclusive jurisdiction in federal district courts. The Federal Circuit affirmed, ruling that Wilson’s claim was covered by the Medicare Act as it ultimately challenged Medicare’s overpayment of benefits. If Wilson was dissatisfied with Medicare’s determination that the receipt of proceeds from the malpractice settlement constituted an overpayment, she should have protested through the administrative review process provided by the Medicare Act, the court ruled. Full text of the decision CONSTITUTIONAL LAW Prior tenant’s debt can’t justify denial of water The denial of water service to tenants whose rental predecessors left delinquent accounts violates the new tenants’ equal protection rights, the 6th U.S. Circuit Court of Appeals ruled on April 18. Golden v. City of Columbus, No. 03-4252. Hazel Golden leased a house in Columbus, Ohio, from a landlord whose previous tenant had a direct-billing agreement for water service, but who vacated the property without paying the water bill. The city eventually shut water off to the house. Golden, who did not have a direct-billing agreement with her landlord, was told that, pursuant to a 1991 ordinance, the water service would not be restored until the delinquent bill was paid, though water service resumed the next day. This same scenario played out three times before the bill was made current and Golden and her landlord entered into a direct-billing agreement on their own. Golden sued the city, alleging that its policy violated due process and equal protection rights. An Ohio district court ruled for the city on Golden’s substantive claims, as well as her attempts at class action certification. The 6th Circuit affirmed the denial of class action status and the due process ruling, but reversed as to the equal protection ruling. As Golden was not the consumer at the time the water was shut off-the landlord and the prior tenant were-she was not denied due process when the water was cut off without the benefit of a hearing. However, the city’s policy treats classes of tenants differently: those who have direct-billing agreements with their landlords and those who do not. The city’s policy of denying service to subsequent tenants is not a rational means of collecting the landlord’s water-service debt. Full text of the decision CONSUMER PROTECTION Smoking dangers known in Puerto Rico by 1960 Expert evidence in a suit by the family of a deceased cigarette smoker showed that, by 1960, the dangers of smoking were common knowledge in Puerto Rico, the 1st U.S. Circuit Court of Appeals held on April 21. Prado-Alvarez v. R.J. Reynolds Tobacco Co. Inc., No. 04-1695. Francisco Garcia Lopez began smoking in 1960 and continued for 42 years until his death from lung cancer. His surviving family members sued R.J. Reynolds, claiming that smoking was a substantial factor in his illness and death, and alleging a variety of theories of Puerto Rico law, including failure to warn and defective design. A Puerto Rico federal court dismissed the failure-to-warn claim based on pre-emption by the Federal Cigarette Labeling and Advertising Act, and granted summary judgment to Reynolds on all others. The 1st Circuit affirmed, noting that to prevail on common law failure to warn or design-defect claims, the family had to prove that the ordinary consumer was unaware of the dangers of smoking. The court held that no reasonable jury, confined to the record in this case, which included conflicting expert reports, could conclude that the general public in Puerto Rico lacked knowledge about the risks of smoking in 1960. Moreover, the family’s claim that nicotine’s addictive nature rendered it impossible for him to quit was belied by testimony that he quit near the end of his life because of the cost of cigarettes. Full text of the decision CRIMINAL PRACTICE Sniper’s convictions, death sentence affirmed John Muhammad’s convictions and death sentence for being the triggerman in a series of shootings were affirmed by the Virginia Supreme Court on April 22. Muhammad v. Virginia, No. 041050. Muhammad was convicted by a Virginia jury in the well-publicized spree of 16 sniper shootings in the mid-Atlantic states in September and October 2002. His conviction was specifically for capital murder of one victim in the commission of an act of terrorism; capital murder of at least two persons within a three-year period; conspiracy to commit capital murder (with Lee Malvo); and illegal use of a firearm in the commission of capital murder. A jury then sentenced Muhammad to two death sentences for the capital murder convictions, and to 13 years in prison for the remaining convictions. The Virginia Supreme Court affirmed the convictions and death sentence, rejecting Muhammad’s 102 assignments of error, including the dominant one-”the legal viability of the Commonwealth’s theories of capital murder and the sufficiency of the evidence to support its theories.” The court held that aggravating factors are not required to be recited in a capital murder indictment. The court said that the evidence was sufficient to prove that Muhammad and Malvo acted together as a sniper team and that Muhammad was an “immediate perpetrator” and principal in the first degree. No right to privacy on laptop acquired by fraud The possessor of a fraudulently obtained laptop computer had no expectation of privacy when police found child pornography on it following a search authorized by the store owner, the 9th U.S. Circuit Court of Appeals held on April 21. United States v. Caymen, No. 03-30365. A woman complained to an Alaskan store that it had charged her credit card for a laptop computer she had not purchased. Nicolai Caymen picked up the laptop at the store, and police obtained a warrant for his home. The police seized the computer, and, following the store’s permitting a search of the laptop’s contents, they found child pornography there. Prosecutors charged Caymen with possession of child pornography, but Caymen moved to suppress the evidence, arguing that he was the owner of the laptop because he had not been convicted of any wrongdoing in its acquisition, and therefore the store had no authority to permit a search of the laptop’s contents. An Alaska district court denied Caymen’s motion to suppress. Affirming, the 9th Circuit held that the issue was not who actually owned the laptop, but whether Caymen had a reasonable expectation of privacy in its contents. The court said, “The ‘capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place,’ but rather ‘whether the individual by his conduct has exhibited an actual (subjective) expectation of privacy,’ and further, ‘whether the individual’s subjective expectation of privacy is one that society is prepared to accept as reasonable.’ Thus we do not consider whether title to the laptop passed from the store to Caymen.” Full text of the decision GOVERNMENT County agency may withhold personal data A County Register of Deeds may charge redaction fees before releasing personal information considered to be confidential, the Kansas Supreme Court held on April 22 in a question of first impression. Data Tree LLC v. Meek, No. 92,596. First American Corp. provides business information to consumers. Data Tree LLC, a subsidiary of First American, collects and provides real estate information. On March 24, 2003, First American requested records from the Sedgwick County Register of Deeds on behalf of Data Tree. The Register of Deeds informed First American that it would have to pay for the redaction of the records, as they contained confidential personal information such as Social Security numbers. The Register of Deeds explained that the personal information contained in the records was not subject to disclosure under the Kansas Open Records Act. Data Tree sued the Register of Deeds under the statute. The trial court granted the Register of Deeds’ motion for summary judgment. The Kansas Supreme Court affirmed. The Kansas Open Records Act, Kan. Stat. Ann. 2004 Supp. 45-221(a), provides that “[e]xcept to the extent disclosure is otherwise required by law, a public agency shall not be required to disclose: . . . Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.” The goal of the statute is to ensure public confidence in government by increasing public access to government. Since the information being sought by Data Tree was for commercial purposes, it did not serve the main purpose of the statute. Full text of the decision LEGAL PROFESSION Successor firm entitled to share of asbestos fee There was no reversible error in a lower court’s award of a share of fees in an asbestos class action to a law firm that had split from one of the prevailing firms in the case, the 4th U.S. Circuit Court of Appeals held on April 18. In re MRRM P.A., No. 04-1838. MRRM, the law firm known formerly as Ness, Motley, Loadholt, Richardson & Poole, was a prevailing law firm in an asbestos class action with approximately $20 million in attorney fees. Edward Westbrook, a Ness Motley partner in charge of the litigation, distributed half of the fee to Ness Motley with another 10% going to a firm serving as co-counsel. Subsequently, Westbrook and other Ness Motley lawyers left to form the firm Richardson Patrick Westbrook & Brickman (RPWB), which claimed a share of the fee for additional work done on the case. When the three firms could not agree on a distribution of the remaining 40%, Westbrook petitioned a South Carolina district court for a division of the fees. The court awarded RPWB $2.5 million in fees, and Ness Motley appealed, arguing that RPWB was not entitled to any fees because its lawyers had already been compensated for their work through the fees to Ness Motley. Affirming, the 4th Circuit said it upheld the award reluctantly because the district court did not articulate fully its reasons for the division of fees. The court said, “We affirm this allocation, because the circumstances of this case have allowed us to surmise the basis for the exercise of the district court’s discretion and because appellant has given us no real reason to believe that this discretion has been abused.” Full text of the decision

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