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CIVIL PRACTICE No private suits under federal Holocaust law The Federal Holocaust Victims Redress Act doesn’t create a private right of action, the 9th U.S. Circuit Court of Appeals held on May 18. Orkin v. Taylor, No. 05-55364. Andrew Orkin and other descendants of Margarete Mauthner, a Jewish art collector who fled Nazi Germany, sued actress Elizabeth Taylor under the federal Holocaust Victims Redress Act, arguing they were the proper owners of the Vincent Van Gogh painting, “Vue de l’Asile et de la Chapelle de Saint-R�my,” which Taylor purchased in 1963. The descendants claimed that Mauthner had lost the painting when she fled Nazi Germany. A California federal court dismissed the complaint, holding that the act does not create a private right of action. Affirming, the 9th Circuit applied the U.S. Supreme Court’s 1975 Cort v. Ash test for determining whether a federal law creates a private right of action. The court said, “The plain text of the Holocaust Victims Redress Act leaves little doubt that Congress did not intend to create a private right of action . . . .Rather, the legislative intent was to encourage state and foreign governments to enforce existing rights for the protection of Holocaust victims.”   Full text of the decision CONSTITUTIONAL LAW Court clerk fired for son’s campaign can’t sue judge A fired court clerk has no First Amendment cause of action against the judge who terminated the clerk’s employment because her son ran against another court clerk in a political campaign, the 4th U.S. Circuit Court of Appeals held on May 18. Smith v. Frye, No. 06-1801. Andrew Frye Jr., a West Virginia state judge, fired Mary Lou Smith, a court clerk, because her son, Greg Smith, was running for the office of Mineral County, W.Va., circuit clerk against another court clerk. Frye claimed his candidacy created a conflict of interest for his mother. The Smiths, mother and son, sued Frye, alleging that the firing violated their First Amendment rights. A West Virginia federal court dismissed the suit, holding that Mary Lou Smith had no cause of action, as she had not exercised any First Amendment rights prior to her discharge. Affirming, the 4th Circuit said there was no evidence that Frye intended to punish Smith for expressive conduct or political affiliation. “Rather, Judge Frye’s belief that Ms. Smith supported her son’s candidacy might have led Judge Frye to conclude that, in a small office in which Ms. Smith was working with the incumbent circuit clerk, the potential conflict of interest would hinder the efficient administration of the judicial system.” EVIDENCE No need for expert proof in repressed-memory suit Expert testimony is not necessary to introduce evidence of recovered repressed memories, the New Jersey Supreme Court ruled on May 17. Phillips v. Gelpke, No. A-1-2006. From the time she was 11, Melissa Phillips was having episodic flashbacks of sexual molestation by her uncle. When she was 19, she filed a civil suit against her aunt and uncle. She submitted the expert report of a psychologist who described, in general, repressed memories. The expert, however, did not diagnose Phillips as being afflicted with any disorder that causes repressed memory. The defendants moved for summary judgment, arguing that Phillips had not produced expert testimony to support a diagnosis of a memory impairment. The court denied the motion, and the jury awarded Phillips $863,520. An intermediate appellate court reversed, holding that, as there is scientific uncertainty as to the reliability of repressed memory, Phillips should have called an expert to testify on the soundness of her abuse memories. The New Jersey Supreme Court reversed, holding that Phillips’ ability to recall past sexual abuse went to the weight to be accorded to her testimony, not its admissibility. Jurors weren’t being asked to analyze the validity of a memory prodded by medication, hypnosis or third-party stimulation that requires expert explanation, so they alone had to decide if Phillips’ recollection was credible. Stop’s unconstitutionality voids evidence of guns A Texas trial judge should have suppressed evidence of three guns seized as the result of an unconstitutional traffic stop, the 5th U.S. Circuit Court of Appeals held on May 15. U.S. v. Martinez, No. 05-20330. Based on a tip about a man named “Angel,” Houston police believed Juan Angel Martinez had witnessed a quadruple homicide and might be storing the guns at his girlfriend’s house. Without a search warrant, police stopped a car with Martinez and his girlfriend in it, and asked her to consent to a search of her home. She agreed and police found three guns. However, police learned that the tip was wrong: Martinez had not witnessed the crime and the guns were not involved. Charged as an illegal alien possessing guns, Martinez sought to suppress evidence of the guns. A Texas federal judge refused, ruling the traffic stop was justified. Martinez was found guilty of being a felon in possession of guns and sentenced to 92 months. On appeal, he argued the stop was not based on “reasonable suspicion,” as required by the U.S. Supreme Court’s 1968 ruling in Terry v. Ohio. The 5th Circuit reversed, holding that “the government bore the burden of proving reasonable suspicion.” An informant’s tip may provide reasonable suspicion if the informant is credible and the information can be verified. But the government made no effort to demonstrate the informant’s reliability to the trial court. Moreover, at the time of the traffic stop, the police lacked verified information of criminal activity. “Only when the police have a reasonable basis to suspect criminal activity can they justifiably conduct an investigative stop,” the court said. Since the guns were seized as a result of an unconstitutional stop, evidence relating to them must be suppressed. TAXATION Medical residents free to seek student exemptions Medical residents enrolled in graduate medical education programs are not precluded from seeking a student exemption to paying federal withholding taxes, the 11th U.S. Circuit Court of Appeals held on May 18 in a case of first impression case. U.S. v. Mount Sinai Medical Center of Florida Inc., No. 06-11693. In 2002, the Justice Department filed a complaint against Mount Sinai Medical Center of Florida in Miami Beach, alleging that the Internal Revenue Service had issued an erroneous refund of $2.45 million. The refund was for taxes withheld and paid as required by the Federal Insurance Contributions Act (FICA). Mount Sinai argued that the taxes were properly refunded under FICA’s student exemption, which exempts “service[s] performed in the employ of . . . a school, college, or university . . . if such service is performed by a student who is enrolled and regularly attending classes.” The government sought summary judgment, arguing that medical residents may not seek FICA exemptions because Congress specifically barred medical interns from seeking FICA exemptions. A Florida federal trial judge granted the motion, ruling that the student exemption to FICA does not apply to medical residents. The 11th Circuit reversed and remanded. Since Congress had amended the law many times, had it “wanted to make medical residents ineligible for the student exemption, it could have easily crafted a specific exclusion.” The court rejected the government’s argument that it would be highly incongruous for Congress to repeal the intern exemption but continue to exempt medical residents. “The fact that Congress repealed the entirely separate intern exemption in 1965 is irrelevant to the question of whether residents may qualify for the student exemption under the plain language of the statute,” the court wrote. Instead, a case-by-case analysis is necessary to determine whether a medical resident qualifies for a FICA tax exemption. The trial court must determine whether Mount Sinai qualifies as a “school, college, or university.” TORTS ERISA pre-empts claim against pension Web site An employee’s state law professional malpractice suit against a Web site set up to calculate pension benefits is pre-empted by the Employee Retirement Income Security Act, the 3d U.S. Circuit Court of Appeals ruled on May 14. Kollman v. Hewitt Associates, No. 05-5018. When Gerald Kollman considered retiring from his job at Rohm and Haas Co., he accessed a Web site designed to estimate how much a retiring worker could expect to receive as a lump-sum pension payout. The site, run by Hewitt Associates, estimated that Kollman would receive more than $522,000, though this amount did not include the portion of his pension that was earmarked for his ex-wife, even though Kollman knew of the obligation. Two months later, Kollman sent in the paperwork based on the Web site’s estimate. A week later, he received notice that after paying the obligation due to his ex-wife, Kollman would receive $419,917. Kollman sued Hewitt for professional malpractice for incorrect calculation. A Pennsylvania federal court dismissed the claim, ruling that it was pre-empted by the Employee Retirement Income Security Act (ERISA). The 3d Circuit affirmed. A state law claim is pre-empted if the claim “relates to” ERISA. A claim that an agent had acted negligently in some way to cause injury to the plan does not implicate the ERISA plan and would not be pre-empted. But Kollman’s claim goes to the “essence of the function” of an ERISA plan: the calculation and payment owing to a plan participant. Any adjudication of this claim would necessarily require a court to consider the plan’s details. U.S. not liable for sites of mailboxes on highway Under the Federal Torts Claims Act, the United States is not liable for the negligent placement of mailboxes, the 8th U.S. Circuit Court of Appeals ruled on May 17. Riley v. U.S., No. 06-3711. Lucas E. Riley sustained serious injuries in an automobile accident on U.S. Highway 63. A pickup truck struck his vehicle because his view of traffic was obscured by mailboxes. Prior to the accident, nearby residents, including the county sheriff and a deputy, had complained to the postmaster about the location of the mailboxes and presented a petition requesting that they be moved. After the accident, letters and another petition were sent to the U.S. Postal Service, and the mailboxes were finally moved. Riley sued the United States for negligence over the placement of the mailboxes and failure to relocate them. A Missouri federal court dismissed the suit, citing sovereign immunity. The 8th Circuit affirmed. Although the United States is liable for certain torts under the Federal Tort Claims Act, Section 2680(a) of the act provides for a discretionary function exception. Because the decision about where to locate the mailboxes involved an element of judgment or choice, the discretionary function exception applied here.

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