2d Circuit quietly applies Amended ADA retroactively

In 2008, Congress amended the Americans with Disabilities Act to overturn Supreme Court decisions that had narrowly applied the statute. The Americans with Disabilities Amendments Act (ADAAA) took effect on January 1, 2009. Among other things, the ADAAA broadens the definition of who is "disabled" under federal law, making it easier for plaintiffs to win their cases. No court has applied the ADAAA retroactively ... until now.

The case is Hilton v. Wright, decided on March 9. I have summarized the case at this link. Briefly, Hilton was an inmate in state prison. He was diagnosed with Hepatitis C virus and wanted treatment at the jail. Dr. Hilton would not provide Hilton that treatment, so Hilton sued in federal court under the Eighth Amendment (cruel and unusual punishment) and the Americans with Disabilities Act. The Second Circuit vacated summary judgment because the district court issued a cursory decision that did not fully explain why plaintiff was not entitled to a trial.

In ordering the district court to resolve the motion again, the Second Circuit provided some guidance on remand, ruling that the ADAAA, not its predecessor, governs this case. As I wrote in yesterday's summary of the case,

Hilton also sues under the Americans with Disabilities Act. The Court says that under the old ADA, Hilton probably does not have a "disability" under the law, because "to avail himself of the 'regarded as' prong of the definition of 'disability' [Hilton] needed to show that he was perceived as both 'impaired' and 'substantially limited in one or more major life activity.'" Thus, "under the old regime, Hilton could survive summary judgment on his ADA claim only if he could raise a genuine issue of material fact about whether Dr. Wright and/or DOCS regarded him personally as being substantially limited in a major life activity. The record is devoid of any such evidence."

The ADA Amendments Act (ADAAA) changes the legal standard, making it easier for plaintiffs to win their cases. Under the new law, which applies to Hilton's case, "An individual meets the requirement of 'being regarded as having such an impairment' if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." The difference between the new ADA and the old ADA is that to prevail under a "perceived as disabled" claim, the plaintiff need only show that the defendants believed he had an impairment, even if that impairment does not impair a major life activity.

This lawsuit was filed in 2005, so the Complaint does not raise any events post-dating January 1, 2009. The question in this case is whether DOCS violated Hilton's rights under federal disability law when Dr. Wright denied him treatment in 2005. Yet, the Court of Appeals expressly applies the ADAAA, which took effect four years later. The Second Circuit (Winter, Pooler and Hall) does not address whether the ADAAA has retroactive effect (and does not acknowledge cases from around the country that go the other way on this issue), but in applying the Amended Act, the Court is in fact applying it retroactively. This is significant, because no court, to my knowledge, has held the ADAAA has retroactive effect.

In 2009, a Southern District of New York judge noted, "Primmer acknowledges that all courts, in this Circuit and elsewhere, that have addressed the question of whether the ADAAA applies retroactively to claims filed before its effective date have answered in the negative." Primmer v. CBS Studios, Inc., 667 F. Supp. 2d 248, 257 (S.D.N.Y. 2009) (citing, inter alia, Lytes v. DC Water & Sewer Auth, 572 F.3d 936 (D.C. Cir. 2009); Milholland v. Sumner County Bd. of Educ, 569 F.3d 562, 567 (6th Cir. 2009)). And, in Villanti v. Cold Spring Harbor Cent. Sch. Dist., 733 F. Supp. 2d 371, 377 (E.D.N.Y. 2010), a judge noted that "While the Second Circuit has not yet addressed this issue in a published decision, it has held in multiple summary orders that the ADAAA does not apply retroactively. ... Moreover, other federal district and circuit courts have held almost universally that the ADAAA does not apply retroactively. ... The Court finds these cases to be persuasive. The ADAAA contains no language indicating that it applies retroactively, and it would work an injustice on parties to be held liable for conduct that they would have reasonably believed at the time was in compliance with the law."

So the question is, did the Second Circuit inadvertently apply the ADAAA retroactively? I doubt it. This case was argued in March 2011; the Court had a long time to think about this. It also noted that the parties did not brief this case under the ADAAA. That did not stop the Court of Appeals from resolving this case under the ADAAA anyway. 

Second Circuit weighs in on ADA Amendments Act

The Court of Appeals has sent a prisoners' rights case back to the district court to clarify why the judge dismissed the case on summary judgment. In doing so, the Second Circuit (for the first time) provides an extended look at the recently-enacted Americans with Disabilities Amendments Act, which took effect in 2009.

The case is Hilton v. Wright, decided on March 9. Hilton is an inmate with Hepatitis C virus. The state prison system had a treatment program for this, but defendant Dr. Wright disallowed treatment because Hilton had used drugs in the past and therefore needed to enroll in a substance abuse program. Hilton was ineligible for the program, however, because he would not be in prison long enough to complete the program. After Hilton complained to prison medical staff about the Hepatitis symptoms, Dr. Wright again considered whether to allow him to undergo antiviral treatment, but he again disallowed it, concluding that Hilton would not benefit from treatment. Hilton eventually got treatment after he filed the lawsuit.

The district court's grant of summary judgment was too cursory, the Second Circuit (Hall, Winter and Pooler) says, and for that reason the case is remanded for clarification. This is what the Court of Appeals wants to know:

 (1) why, given the evidence on the record, there is no genuine issue of material fact about whether Dr. Wright is entitled to qualified and immunity, and (2) why there is no genuine issue of material fact about whether the doctor's conduct violated the Eighth Amendment.

The Court of Appeals tips its hand on these issues, though, suggesting "there may well be genuine issues of material fact." While everyone agrees that Hilton had a serious medical condition (a necessary requirement for a deliberate indifference claim), the disputed issue is Dr. Wright's subjective recklessness in denying him the antiviral treatment. As the Court of Appeals frames the issue, "what did Dr. Wright know about how long Hilton's treatment had been delayed and what did Dr. Wright know about the likely medical consequences of such a delay?"

Hilton also sues under the Americans with Disabilities Act. The Court says that under the old ADA, Hilton probably does not have a "disability" under the law, because "to avail himself of the 'regarded as' prong of the definition of 'disability' [Hilton] needed to show that he was perceived as both 'impaired' and 'substantially limited in one or more major life activity.'" Thus, "under the old regime, Hilton could survive summary judgment on his ADA claim only if he could raise a genuine issue of material fact about whether Dr. Wright and/or DOCS regarded him personally as being substantially limited in a major life activity. The record is devoid of any such evidence."


The ADA Amendments Act (ADAAA) changes the legal standard, making it easier for plaintiffs to win their cases. Under the new law, which applies to Hilton's case, "An individual meets the requirement of 'being regarded as having such an impairment' if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." The difference between the new ADA and the old ADA is that to prevail under a "perceived as disabled" claim, the plaintiff need only show that the defendants believed he had an impairment, even if that impairment does not impair a major life activity.

Many ADA cases died on the vine under the old ADA when plaintiffs claimed they were discriminated against because of a perceived disability. The new ADA changes that. The parties in this case may not have been aware of the new standards. The Second Circuit overlooks that, probably because the law is the law whatever the parties think it is, or was. The Court writes:

Although both parties thought that Hilton needed to demonstrate that the defendants regarded him as being substantially limited in a major life activity, it is clear that he was only required to raise a genuine issue of material fact about whether Dr. Wright and/or DOCS regarded him as having a mental or physical impairment. Hilton was not required to present evidence of how or to what degree they believed the impairment affected him.

On remand, the district court has to review this claim along with the Eighth Amendment claim.

Don't insult the 2d Circuit judges (or any other judges)

Gallop v. Cheney will go down in the annals of Second Circuit case law as the mother of all appellate sanctions. The Court of Appeals has issued a fourth published opinion further outlining why plaintiff's counsel should be punished for trying to litigate a 9/11 conspiracy theory and then attacking the Second Circuit judges over their decision to throw out the case and sanction the attorneys.

The latest decision is here, decided on February 2. In summary, the plaintiff alleges that the government caused the 9/11 attacks "in order to (1) create a political atmosphere in which they could pursue domestic and international policy objectives and (2) conceal the misallocation of $2.3 trillion in congressional appropriations to the Department of Defense." The district court threw out the case, and the Court of Appeals affirmed and also sua sponte ordered plaintiffs' counsel to show cause why sanctions were not in order for this frivolous case. Counsel then submitted papers attacking the judges on the case (Cabranes, Winter and Walker) and asking that they be disqualified because of their "evident severe bias, based in active personal emotions from the 9/11 attack ... leading to a categorical pre-judgment totally rejecting [Gallop's] Complaint, out of hand and with palpable animus in [its] decision." Counsel also asked that any other judges on the court who shared that bias should recuse themselves as well. The Court responded not with recusals but with sanctions for counsel's suggestion that the judges are not emotionally capable of deciding this case.

This most recent decision sanctions a second lawyer who also worked on the case. His role was apparently not known to the Court any earlier. This guy says he was substantially involved in drafting the motion to disqualify the judges. He says that he sincerely believed that the motion had merit and he had a duty as Gallop's lawyer to file it. He also said he engaged in "righteous if overheated advocacy, and not in bad faith." He also apologized to the Court for using inflammatory language, stating that he felt "demeaned, and disrespected by the nature of tenor of the Court's judgments." This mea culpa will not fly. Like his colleague, this second lawyer gets sanctioned. The punishment is that for the next year, he must provide notice of this sanction to any federal court in this Circuit where he appears in a case.

Disability discrimination case dismissed under old ADA rules

The Americans with Disabilities Act has changed, but the changes enacted in 2008 are not retroactive, so cases like this are dismissed, and that's just the way it is.

The case is Price v. Mount Sinai Hospital, a summary order decided on February 2. Price has a variety of ailments. According to the Second Circuit (Sack, Raggi and Chin), "at the time of termination, Price suffered from headaches, abdominal pain, weight loss, insomnia, and panic attacks, which her psychotherapist identified as symptoms of work-related stress and depression." She cannot sue her former employer, however, because these ailments do not substantially limit a major life activity under the ADA that was in effect at the time (2004). In fact, applying the old standard, the Court of Appeals asks whether the condition is "any worse than is suffered by a large portion of the nation's adult population" while at the same noting that that very standard is superseded by the ADA Amendments Act. Under the old act, Price cannot meet that stringent test that the ADAAA has now rejected.

Mount Sinai also wins summary judgment because Price's "difficulties were alleviated by medication, precluding a reasonable jury finding of disability causing substantial impairments under the applicable version of the ADA." Here again, the Court of Appeals cites the relevant Supreme Court case that articulated that narrow interpretation of the ADA, noting that that precedent is also superseded by the ADAAA. It's almost like the Second Circuit is teasing Price in reminding her that the case might have turned out differently had she been terminated after January 1, 2009.

Things have changed under the ADAAA. Congress in 2008 rejected various Supreme Court cases that had narrowly interpreted the ADA, and the EEOC in 2011 issued regulations that further protect the rights of disabled employees. The new law and regulations can be found here. My guess is that Price could have avoided summary judgment under the ADAAA, but that law was not yet in effect. She is stuck under the old rules. The only things that would allow Price to take advantage of the new ADA rules are a DeLorean and a flux capacitor.

No en banc review in First Amendment challenge to anti-prostitution policy

It doesn't matter how interesting the legal issue is. The Second Circuit is not interested in hearing cases en banc. For the non-lawyers out there, en banc is Latin for the Court of Appeals as a whole, as opposed to the three judges who normally hear each case. This time around, the Court will not review a case that struck down a federal government requirement that certain international HIV/AIDS funding recipients maintain an express policy against prostitution and sex trafficking.

The case is Alliance for Open Society International v. United States Agency for International Development. The Court of Appeals, which originally resolved the case in July 2011, issued its order denying en banc review on February 2. Back in July 2011, the Second Circuit said that the requirement that aid recipients maintain the anti-prostitution policy constitutes viewpoint discrimination in violation of the First Amendment. As outlined in my write-up on this case from last year, there are reasons why certain aid recipients cannot adopt what would normally be a common-sense policy opposing prostitution.

The D.C. Circuit Court of Appeals came out the other way on this issue, which makes it a good candidate for U.S. Supreme Court review. Maybe that's why the rest of the Second Circuit does not see the point in hearing the case en banc. Writing for himself and two other Second Circuit colleagues, Judge Cabranes says the Circuit should take up this case, stating that the majority decision last July misapplies First Amendment case law and "relies upon a purported distinction between affirmative and negative speech restrictions."

Judge Cabranes goes on to write: "the panel decision thus presents the exceptionally important question of whether, despite Congress's broad powers under the Spending Clause, a funding condition that imposes an affirmative speech requirement 'infringes' constitutionally protected speech. Although the majority has vigorously denied 'putting ... aside the unconstitutional conditions doctrine in answering that question with respect to the policy requirement, it is clear that the disposition of this case turns not on the existing jurisprudential framework, but on an affirmative-negative paradigm of the panel's own invention."

2nd Circuit throws out $1.6 million judgment in tortious interference case

This must  be a devastating and heartbreaking loss for plaintiff and his attorney. And a glorious victory for defendants. The Court of Appeals has vacated a jury verdict in the amount of $1.6 million and dismissed the Complaint.

The case is Raedle v. Credit Agricole Indosuez, decided on February 28. Plaintiff sued for tortious interference with contract. He worked for defendant CAI. After he was fired, plaintiff applied to work for another employer, the Dreyfus Corporation, which offered him a job. After Dreyfus called CAI's people for a reference, Dreyfus rescinded its job offer. Claiming that CAI tortiously interfered with his offer from Dreyfus, Raedle offered testimony from a fellow named Thunelius about a phone call placed by the Dreyfus human resources manager, Leibig, in which plaintiff's boss at CAI trashed his job performance and even said that plaintiff had "mental issues" and "psychopathic" tendencies. Thunelius called CAI himself to verify this bad reference. CAI's people denied disparaging Raedle to anyone at Dreyfus.

This case went to trial. CAI's witness testified that he could not have slammed plaintiff in this manner. He gave some particular reasons for this:

Shaiman testified that he had no recollection of discussing Raedle with either Leibig or Thunelius, adding that "Thunelius" was an "unusual" name that he would have remembered — in part because his son had a poster of jazz musician Thelonious Monk in his bedroom, which would have served as a "pneumonic." Shaiman explained that he would never have said Raedle had "mental issues" because "I would never say anything like that about anyone. This is a hot button issue for me personally. I have a 19-year old son that has behavioral and other special needs, and he has been in the care of a behavioral psychologist for a dozen or more years. . . . I would never do that based on my personal experience." Leibig similarly testified that she had no recollection of speaking to anyone at CAI.

This testimony about Thelonious Monk and pneumonics must have persuaded the jury, which ruled against Raedle's claim, in favor of CAI. But the trial judge granted Raedle a new trial under Rule 59, reasoning that the verdict was "drastically wrong, and would result in a serious injustice if allowed to stand." The trial judge said that "it is a certainty that someone at CAI made a sufficiently damaging communication to Dreyfus, so that Dreyfus drew back from its quite strong desire to hire plaintiff for a very favorable position."

With his second bite at the apple, Raedle took his claim to a new jury, which awarded him $1 million in lost wages, $600,000 in reputational damages and $800,000 in punitives. That's over $2 million on a claim that a different jury had rejected! (The trial judge took away the punitive damages award).

The Court of Appeals (Parker, Lohier and Pooler) rejects the second verdict and says that the trial court had no right to even grant Raedle a new trial and that the first verdict was based on witness credibility about what Dreyfus told CAI and therefore should not have been overturned. The second trial is a nullity and should never have happened. The original verdict for defendant is reinstated and Raedle gets nothing. 

Inmate cannot prove ineffective assistance of counsel on deliberate indifference claim

The Court of Appeals says that an inmate cannot prove that his lawyer was ineffective in connection with his trial on charges of depraved indifference murder. The habeas corpus petition is denied.

The case is Parker v. Ercole, decided on January 23. Parker was charged with both intentional murder and depraved indifference murder. There is a difference between the two, as any law student will tell you. The prosecutor said that Parker shot Johnson in the midst of a street fight over a stolen car. Parker denied the charge. The real question at trial was whether Parker pulled the trigger. The jury found Parker guilty of depraved indifference murder, not intentional murder. Parker's argument is obvious: the only basis to find him guilty would have been intentional murder, not depraved indifference murder. The state appellate courts rejected his argument.

Parker now pursues a habeas action claiming that his lawyer was ineffective in failing to preserve his argument that the evidence was insufficient to support the depraved indifference claim. The Second Circuit (Kearse, Cabranes and McLaughlin) rejects the argument. The district court did say that Parker did not preserve this appellate argument at trial, but it addressed the argument anyway in assessing the ineffective assistance claim that he raised on the habeas petition. But the district court still rejected the petition. The Court of Appeals says that even if there was ineffective assistance, Parker cannot show prejudice (a necessary requirement on habeas petitions like this) because even if his lawyer did do what he was supposed to, that argument would have failed because the evidence was sufficient to support the verdict, and Parker did exhibit depraved indifference to human life in that he was extremely reckless in firing the gun (as opposed to a point blank shooting). That motion would have been futile. Quoting from the Appellate Division, here's why:

The distance between [Parker], who was a novice user of the subject rifle, and the people across the street, was hardly close. All of the witnesses testified that the “shooter” was standing inside the hallway of a residence on the opposite side of the street. The victim, his girlfriend, their male companion and two of [Parker’s] own friends were located across the street from this residence near the victim’s parked car. Another of [Parker’s] friends was also in the immediate vicinity. Moreover, it was dark outside, the street was dimly lit and the weather was described as “a blizzard.” . . . .

While the jury heard testimony from one witness, who acknowledged that he had changed his statement to police a couple of times and who was himself threatened with being charged with murder, that [Parker] allegedly told him that he put the scope [of the rifle] on the victim’s chest that morning, they also heard evidence from the victim’s girlfriend that the victim was pacing back and forth on the street at the time the shot was fired. The jury further heard testimony that, just minutes before the shooting, [Parker] refused to participate in his companions’ decision to steal the victim’s car because he and the victim had been childhood friends. ... [T]here is ample record support for the jury’s decision that [Parker’s] conduct that morning was reckless and depraved rather than intentional.