Court-approved settlement in prisoners' rights case entitles plaintiffs to attorneys' fees

Under the civil rights laws, the winner recovers attorneys' fees from the losing party. As with everything else in law, the prevailing party inquiry is complicated. An outright victory at trial or court order means the plaintiff is entitled to attorneys' fees. If the case settles, it's a closer question.

The case is Perez v. Westchester County Department of Corrections, decided on November 19. The Muslim plaintiffs sued their jailers for religious discrimination over the refusal to serve them Halal meat consistent with their religious practices. Prior to trial, the County agreed to provide the food as frequently as it provided Jewish inmates kosher food, ending the case.

Ten years ago, this was a more straightforward question. Most federal courts recognized the plaintiff was a prevailing party under the attorneys fees statute if the defendant gave in and provided plaintiff the relief requested rather than fight the case. This was the "catalyst" theory. But in 2001, the Supreme Court rejected the catalyst theory and held in Buckhannon v. West Virginia that the plaintiff needs a judgment or some kind of judicially-approved settlement. The Second Circuit has interpreted Buckhannon to mean that "judicial action other than a judgment on the merits or a consent decree can support an award of attorneys' fees, so long as such action carries with it sufficient judicial imprimatur."

In this case, when the County agreed to settle (at the district court's urging), the parties did not enter into a consent decree, which would have entitled plaintiffs to attorneys' fees under Buckhannon. However, the dismissal of the lawsuits only took effect "upon the Court's approval and entry of this Stipulation and Order." The district court amended the agreement to designate it an "order of" settlement, and also noted that the court had discretion to accept any case brought by plaintiffs to enforce the settlement in case the County failed to live up to the settlement. The court also "so ordered" the settlement and then awarded plaintiffs' lawyers nearly $100,000 in attorney fees as the prevailing party in this civil rights lawsuit.

The Court of Appeals (Calabresi, Livingston and Korman, D.J.) upholds the fee award under Buckhannon. Challenging the award, the County said the plaintiffs were not prevailing parties and that the settlement was the kind of voluntary change in behavior which disentitles the plaintiffs to any fees under Buckhannon. The Second Circuit disagrees. As a result of the settlement, the County has changed its behavior in providing the religious food. The settlement also has a "sufficient judicial imprimatur" because the trial court retained authority to enforce the settlement. The Second Circuit holds for the first time that an order of dismissal that explicitly incorporates the terms of a settlement entitles the plaintiff to attorneys' fees. This is particularly the case because the district court intended to place its judicial imprimatur on the settlement as shown by its active involvement in sanctioning the settlement. Not only did the district court retain authority to enforce the agreement, but it reviewed and approved the agreement. Plaintiffs satisfy the difficult Buckhannon standard.

Gitmo lawyer can't sue on behalf of hypothetical future clients

A lawyer by the name of Fenstermaker brought a lawsuit on behalf of detainees at Guantanamo Bay. Fenstermaker is not detained there, but his clients are. He alleged violations of their right to counsel and the speedy trial rules. The Court of Appeals says he can't do this.

The case is Fenstermaker v. Obama, a summary order decided on November 3. A lawyer can sue on his client's behalf if, among other things, he has a "close relation" to clients who are hindered from pursuing their own interests. There is no "close relation," however, because Supreme Court precedent holds that lawyers cannot premise third-party standing on hypothetical future clients. Kowalski v. Tesmer, 543 U.S. 125 (2004). Another reason why Fenstermaker cannot sue on his clients' behalf is that their interests may not be in alignment. Fenstermaker alleges the government has violated the speedy trial rules, "but detainees [who are facing trial for war crimes] may well have an interest in avoiding prosecution or challenging their detention through other legal avenues.

Fenstermaker did bring a claim on his own behalf: he alleged that the government violated his First Amendment right to disseminate information to detainees about his legal practice. The Court of Appeals disagrees. There is a kernel of a First Amendment claim here because "litigation is a form of political expression protected by the First Amendment." Attorney advertising is also free speech. But "defendant's inability to deliver Fenstermaker's statement of practice to unknown detainees not yet subject to military commission charges does not violate the First Amendment." He could have sent information about his practice to detainees at an address made available by the Defense Department, and since he has no right to send out this information in the manner of his choosing, there is no First Amendment violation.

No "new" parades on Fifth Avenue does not violate First Amendment

So you want to have a parade along Fifth Avenue, the crown jewel of parade routes in New York City? You probably can't do it, unless you were grandfathered in when New York City banned any "new" parades in 2001. Is this legal under the First Amendment? Yes.

The case is International Action Center v. City of New York, decided on November 17. In 2001, the City decided that Fifth Avenue parades put too much of a strain on traffic, street closures and other problems. The 2001 law says that "permits will be disapproved ... if the application seeks to hold a parade on Fifth Avenue ..., unless the parade was held at that location prior to the promulgation of these rules." So when International Action Center wanted to protest the Iraq War in 2005, it was denied the permit for Fifth Avenue and directed to another part of the City.

Prior restraint and public forum law under the First Amendment is counter-intuitive. That which makes sense to those unfamiliar with the complicated case law in this area is actually illegal. One line of cases holds that you cannot be sent to a different public forum if the one you want is available; you can still broadcast your message, but the re-direction violates the First Amendment because you are denied access to a public forum. On the other hand, if you are familiar with public forum caselaw, the Fifth Avenue Rule may seem unconstitutional. After all, new organizations who want to host a parade based on current events (such as the Iraq War) are shut out.

As the Court of Appeals (Chin, D.J., and Parker) sees it, this rule is content-neutral and thus constitutional. Plaintiff argues that the Fifth Avenue Rule "discriminates against public discussion on the topic of current events." Not so, says Judge Chin. "The Fifth Avenue Rule does not seek to regulate messages or distinguish between different types of speech. The Fifth Avenue Rule applies to all 'new' parades, irrespective of their content. There is nothing in the record to suggest that the City has banned new parades on Fifth Avenue because it is seeking to restrict speech relating to current events. Although the Fifth Avenue Rule may indeed have 'an incidental effect on some speakers or messages but not others,' that is true of many content-neutral regulations. Such an incidental effect does not convert a content-neutral regulation into a content-based on." Ward v. Rock Against Racism, 491 U.S. 781 (1989) supports this holding. The point is that whatever the message, either anti-war or in favor of a newly-created nation, the permit will be denied for Fifth Avenue because it is a "new" parade, not because of the particular message the parade organizers want to promote.

An interesting angle comes halfway through the opinion, where the Court of Appeals addresses the argument that the Fifth Avenue Rule has been inconsistenly applied and therefore does not promote the significant government interest of managing congestion. In 2004, after the City lost a preliminary injunction allowing Critical Mass to hold a bicycle rally, it allowed the event to take place on Fifth Avenue. Then, in 2006, after the highly-publicized Sean Bell shooting, in the interests of encouraging a peaceful march in the wake of Al Sharpton's threats to have tens of thousands of protesters on Fifth Avenue with or without a permit, the City allowed the march to proceed down Fifth Avenue. The Second Circuit deems these departures too "unique" to support plaintiff's claim that the Fifth Avenue Rule has been inconsistently applied.

Convict cleared by DNA testing cannot sue DA's office

One of the biggest advances in forensics over the last few decades is DNA testing for criminal convicts found to be innocent of their crimes and set free. One of the rock-solid principles of civil rights law is that you cannot sue the prosecutor in connection with his advocacy against you as a criminal defendant. These concepts intersected in Douglas Warney's case before the Second Circuit.

The case is Warney v. Monroe County, decided on November 13. As the Court of Appeals opens up the narrative, "Douglas Warney was wrongfully convicted and jailed for ten years." His story sounds like something out of John Grisham's non-fiction book, An Innocent Man. Warney has a 68 IQ and an eighth-grade education. A fellow in Rochester, William Beason, was fatally stabbed in his own apartment after a violent struggle, and there was blood evidence all over the place as well as fingerprints. After Warney called the police to say that he "knew of" Beasley, the police questioned Warney, who confessed to the crime after an abusive interrogation. The confession contained inconsistencies which should have signaled to the police that Warney probably didn't do it. At trial, experts said that the blood on the murder weapon and other blood evidence as well as a mystery fingerprint did not match Warney's. The jury convicted Warney anyway.

Post-trial, the district attorney's office would not allow Warney's lawyer access to the evidence he needed to conduct DNA testing. Meanwhile, while the case was still winding through the courts on appeal, the DA's office did test the blood and found that the DNA was not Warney's. As he sat around in jail, the DA waited 72 days to tell Warney's lawyer that Warney was exonerated. Later on, someone else confessed to the murder, and the court vacated Warney's conviction.

This all makes Warney's case against the district attorney a sympathetic one. But Warney cannot win his civil rights case alleging the unlawful failure to promptly disclose exculpatory evidence, the Second Circuit (Jacobs, Newman and Pooler) holds. Under a 1976 Supreme Court decision, you can't sue prosecutors for any acts taken in the course of their official duties as advocates. Otherwise, every other convict would sue the DA who brought the charges. There is no immunity for prosecutors, however, for acts taken in the course of their administrative duties or investigatory functions unrelated to the DA's preparation for judicial proceedings. This is a fine line.

Warney loses this civil case. Once the conviction is final, the prosecutor still works on the case, defending against appeals and habeas corpus challenges in federal court and pursuing parole violations. Having said that, federal courts are all over the place on this precise issue. Addressing this issue for the first time, the Second Circuit holds that there is "no principled reason to withhold absolute immunity for work performed in defending a conviction from collateral attack," i.e, on appeal and in other contexts. Warner cannot win his case because the DNA exoneration happened while his case was still in the "judicial phase." The prosecutors were still functioning as advocates in the context of Warner's post-conviction challenges. That the DA's office withheld the DNA results for 72 days does not change the analysis. The Court of Appeals sums up as follows:

[T]he steps taken here--testing, disclosure, and even the delay in making disclosure, as well as the identification of the real killer–-were integral to and subsumed in the advocacy functions being performed in connection with Warney’s post-conviction initiatives. The decisions made by the prosecutors in this case--whether to test for potentially inculpatory (or exculpatory) information, how and when to disclose or use that information, and whether to seek to vacate Warney’s conviction--were exercises of legal judgment made in the “judicial phase” of proceedings integral to the criminal justice process.

Trial court needs to give qualified immunity analysis deeper thought

Qualified immunity lets individual government defendants off the hook if they acted reasonably under the circumstances or their behavior did not violate clearly-established law. This analysis normally looks carefully at the defendant's actions to see if he can win the case without a trial. But, sometimes, it's the actions of the trial court which require greater scrutiny.

The case is Distiso v. Town of Wolcott, a summary order decided on November 5. The parent brought this racial discrimination lawsuit, alleging that her African-American son suffered racial harassment by classmates and discrimination by his teachers and the principal, who did not respond properly to the allegations.

These cases are usually brought under Title VI of the Civil Rights Act, which does not allow for a qualified immunity defense. This case, however, was filed under the Equal Protection Clause of the Constitution, enforced under 42 U.S.C. section 1983, which does carry a qualified immunity defense. In equal protection claims, the court has to apply Gant v. Wallingford Board of Education, 195 F.3d 134 (2d Cir. 1999), the only time the Second Circuit has addressed this issue in a precedential opinion, holding that the student has to show that defendants were deliberately indifferent to known discrimination such that their response was clearly unreasonable. This is a difficult burden for the plaintiff to satisfy.

Whether defendants can invoke qualified immunity in this case under the Gant standard is impossible to tell, the Second Circuit (Straub and Livingston) says, because the district court did not address Gant in rejecting qualified immunity and issued a cursory analysis of the issue. Under the circumstances, defendants get another crack at the apple in seeking qualified immunity. The case is remanded to the district court to try again.

2d Circuit reverses summary judgment in racial discrimination case

The Court of Appeals has reinstated a racial discrimination claim where the plaintiff alleged that he was subjected to racist ridicule and hostility in the workplace and then denied a promotion on the basis of disputed facts.

The case is Johnson v. CH Energy Group, a summary order decided on November 17. After joining the company in 2001, Johnson sought to become a "Lineman First Class" in 2006. The test for this position includes a written and practical component. Meanwhile, he endured various racial comments and acts of hostility at work. As the Court of Appeals (Katzmann, Newman and Pooler) summarize the evidence:

When he first started as a Lineman, Johnson, who is African American, claims that he found a photograph of a black Lineman from Con Edison (a competitor firm) and on another occasion, a black woman, taped to his locker. He says that one of his colleagues called him “Boy” and “Willis.” Johnson further alleged that a photograph of all of the lineman in the Kingston branch had been taped to his locker, and that his picture had been colored black.

While he was employed at the Kingston branch, Johnson argues that another employee of a similar level at CHG&E said that Johnson had “snowed” everyone at Kingston and that he could “see right through him.” On another occasion, in October 2005, Johnson gave Wayne Rice, his supervisor, a length of rope as part of a work-related task. Johnston claims Rice threw it back at him, and said “maybe [he would] make a noose.” Thomas Brocks, a Vice-President of Human Resources at CHG&E, contacted Johnson after the noose incident and encouraged Brocks to inform him if he heard any other racial comments. Johnson also alleges that Dave Warren, one of his supervisors, was dismissive of him and critical of his work in front of his coworkers.

In 2006, seeking the promotion, Johnson passed the written exam but failed the practical component. Two of the proctors said that Johnson removed his glove during the test; Johnson said this was not the case.

Johnson has a prima facie case of racial discrimination based on the noose and photograph incident. To prevail, he has to show that management's reason for the promotion denial is pretext for discrimination. The Second Circuit notes that, under Reeves v. Sanderson Plumbing, 530 U.S. 133 (2000), the jury can infer discriminatory intent on the basis of management's false reason. However, under Second Circuit precedent, the court must review the totality of the circumstances in making that determination, including the strength of the prima facie case. Under this test, summary judgment is vacated and the case is remanded for trial. The Court of Appeals reasons:

Johnson’s history of discrimination at CHG&E, including the noose incident and the harassment he experienced when his photograph was colored black and photographs of African Americans were placed on his locker, add strength to his prima facie case of race discrimination. Second, the proctors’ disagreement about whether or not Johnson had removed the glove, along with his history of disagreement with one of the proctors, Dave Warren, provides reason to question the explanation the employer has proffered for the employment decision.

(Nearly) million dollar fee application gets second look

After logging more than 2,400 hours on a First Amendment retaliation case which produced a positive opinion in the Court of Appeals in 2005, Carol Konits' lawyers filed an application for attorneys' fees, which are available to prevailing parties in civil rights litigation. They wanted $906,000 in fees. The district court gave them approximately $364,000. This steep reduction brings the case to the Court of Appeals.

The case is Konits v. Valley Stream Central High School District, decided on October 26. Attorneys' fees awards are the product of a complicated formula the goes beyond simply multiplying the lawyer's hourly rate by the number of hours expended. What's a reasonable hourly rate? What if, like this case, the case takes years to resolve and the lawyer's rate increases in the interim? What if the lawyer spent time on losing claims? You get the picture. Attorneys' fees litigation can take several years if the issues are hotly disputed.

In an unpublished opinion, the Second Circuit (Calabresi, Hall and Sessions, D.J.) remands this case to the Eastern District of New York because the trial court reduced the requested attorneys' fees without providing sufficient reasons for that reduction. As the Court of Appeals notes, "[t]he district court is required to present a 'concise but clear' record for review by the appellate court." That didn't happen here.

For example, while the trial court reduced the fees by one-third for work expended prior to March 2, 2004, when certain constitutional claims were dismissed, "the court did not provide a sufficient explanation for its finding that the claims are 'sufficiently separable' so as to be a basis for reducing the attorneys' fee award." Similarly, while the claims against many defendants were dismissed, the district court did not adequately explain the 25 percent reduction, "particularly in view of the judge's comparatively limited involvement in the case which would reduce his exposure to counsel's work over the full life of the litigation." These and other inadequate explanations for the dramatic reduction in requested attorneys' fees lands the case back on the trial judge's desk for a second look.