Thursday, May 21, 2015

Social Security claimant recovers attorneys' fees under Equal Access to Justice Act

When people win their Social Security benefits before an administrative law judge, their lawyers can recover attorneys' fees if -- and only if -- the government's position in opposing the fees was not substantially justified. (This is distinct from civil rights cases, where the plaintiff's lawyer recovers fees as a matter of course if plaintiff wins the case).

The case is Padula v. Colvin, a summary order decided on May 7. In 2013, the Second Circuit ruled in Padula's favor after the ALJ denied his benefits. The Court said the ALJ had not considered all relevant medical and other evidence in deciding that Padula's reported symptoms of fatigue and nausea were not credible. As a prevailing party, Padula then moved for attorneys' fees under the Equal Access to Justice Act. The district court said no to the fees. The Court of Appeals (Calabresi, Pooler and Raggi) says yes.

A body of case law tells us what "substantially justified" means under the EAJA. The government must make a strong showing that its position in the case was "justified to a degree that could satisfy a reasonable person." The problem for Padula and other plaintiffs is the standard of review on appeal is "abuse of discretion," which is another way of saying the Court of Appeals defers to the district court's ruling. But not all deference is limitless.

On the record before us, the [Social Security] Commissioner has not carried her burden of showing that her position was substantially justified. To be sure, the Commissioner continues to urge a view of the evidence suggesting that it should have prevailed on the merits of the prior appeal, but this reprise of arguments we previously found unavailing is insufficient on its own to show that her “position . . . had a reasonable basis in both law and fact.” In her submissions to the district court and this Court, the Commissioner makes no attempt to defend the ALJ’s failure to consider the treatment notes of Padula’s psychiatrist, which recounted Padula’s complaints of fatigue and nausea, and revealed that he was being prescribed medication to alleviate precisely these documented symptoms. The Commissioner’s sole defense of its prior litigation position is its contention that the ALJ reasonably relied on the treatment notes for several individual visits, where Padula failed to report nausea, fatigue, or side effects of his medication.
While Padula gets fees, the Court of Appeals cuts them by 40 percent. Counsel spent about 81 hours on the case. The Court says it usually awards fees in cases where the lawyers expended 20 to 40 hours on the case.

Monday, May 18, 2015

Don't swing a belt at a police officer

Trial is where the action is, the culmination of all discovery and motion practice. At trial, a great case on paper can be rejected by the jury in five minutes. Sometimes the case does not even make it to the jury, as the trial court can dismiss the case mid-trial if plaintiff does not have enough evidence to win.

The case is Bennett v. Britton, a summary order decided on April 20. Plaintiff sued Town of Southampton police officers for excessive force. The trial court threw out the case under Rule 50 at the close of the plaintiff's case, ruling that Bennett's theory of the case -- that a blond-haired officer had assaulted him -- was not true because there was no blonde-haired officer on the scene of plaintiff's injuries. This decision was actually wrong, says the Court of Appeals. The jury can credit any plausible theory it wants at trial, and it can reject plaintiff's factual arguments and credit certain other facts that can still result in a plaintiff's victory. Despite that error, plaintiff still loses on appeal, and the case will never go to the jury.

One theory of the case held that Sgt. Britton struck plaintiff from behind with his knee. This theory of liability could have held water. As the Court of Appeals (Katzmann, Pooler and Carney) states:

Bennett’s treating physician testified that it would be extremely difficult for Bennett to walk with a fractured femur, yet both arresting officers testified that Bennett was able to walk to their vehicle following his arrest. But after Sergeant Britton’s knee strike, according to one officer’s testimony, Bennett was yelling in pain and had to be carried to his cell. Deciding between the two versions was a job for the jury that it did not get to do.
But the jury does not have to decide whether this version holds true because there was another reason plaintiff should have lost the trial under Rule 50: Sgt. Britton had good reason to strike plaintiff. Police officers testified that when plaintiff was directed to remove his belt at the police station, he menacingly swung the belt at an officer. Sgt. Britton struck plaintiff to protect the target of plaintiff's ire. As plaintiff cites no evidence controverting the officers' testimony or suggesting the officers were not credible on these points, he could not win the trial even had the district court allowed the case to proceed to verdict. 

Friday, May 15, 2015

Convicted felon wins due process appeal from parole rescission

This case is a fascinating one because it involves a convicted murderer who sued state parole officials who allegedly conspired to rescind a parole board decision to grant him parole. The case was dismissed on summary judgment, but the Court of Appeals revives plaintiff's due process claim.

The case is Victory v. Pataki, a summary order decided on April 17. At eight single-spaced pages, this is one of the longest summary orders in years. Plaintiff is not a sympathetic character. He was convicted of felony murder in the death of a police officer in 1970, and in 1978 he escaped from jail and remained at large before they found him and threw him back into jail. He's been a model inmate since 1981. He was granted parole in March 1999, but before plaintiff was able to leave prison, a series of phone calls took place between Governor Pataki's office and Board of Parole people in Albany. This led to a parole rescission hearing that month, which resulted in ... rescission. No parole for Victory. The Board of Parole then reversed that decision because the rescission ruling was procedurally flawed, ordering a new hearing that never happened because a state court next granted plaintiff's habeas corpus petition, which the Appellate Division then reversed while ordering a new hearing. That new hearing never happened, either, because plaintiff was reincarcerated for violating parole conditions. Some further court activity led to plaintiff's freedom again. Meanwhile, he sued state officials, including Pataki, for the parole rescission.

Got all that? The beauty of the court system is that even someone like Victory can get a fair shake despite his background. As governor, Pataki had made an issue about denying parole to guys like this, but that did not become law. No politician was ever taken to the woodshed for being tough on crime. Anyway, the Second Circuit (Pooler and Parker [Wesley recused himself]) reverses summary judgment on the due process claim, finding that the district court did not view the evidence in the light most favorable to Victory. It boils down to those communications among Parole Board and Governor's office people right after Victory won parole. The Second Circuit finds evidence of a conspiracy, one of the hardest ways to win a civil rights case. Here is how the Court of Appeals sees it:

[A]t no point did the district court address the phone records corroborating Victory’s contention that the conversations allegedly identifying Victory’s escape as a basis for rescission preceded Graber’s own purported realization that he had overlooked the escape. Whereas the State Defendants asserted that Graber first became aware of Victory’s escape on January 13, 1999, during a phone conversation between Graber, Tracy, and Grant, Victory pointed to phone records indicating that this call could not have occurred until January 14, 1999, the day after admissible evidence suggests that Lapp was already soliciting letters emphasizing the escape. As the district court at one point acknowledged, Victory raised a genuine dispute as to whether Graber lied about his awareness of the escape to the rescission panel. Considering these facts in conjunction with the State Defendants’ inconsistent testimony regarding the chain of events preceding the rescission hearing, a reasonable juror could conclude that there was an agreement among those defendants who prematurely set in motion rescission procedures with this allegedly false pretext in mind. These “inference[s] of impropriety” distinguish Victory’s conspiracy allegations from those that we have dismissed on the basis that they are supported only by “unsubstantiated speculation” with no evidence “to suggest anything untoward took place.”

Wednesday, May 13, 2015

Circuit revives racial discrimination/retaliation claim

I am finding that the Court of Appeals does not reverse summary judgment that often in employment discrimination cases, and that when they do so, they often issue a summary order, which has no precedential value. This is one of those cases.

The case is Henvill v. Metropolitan Transportation Authority, decided on April 20. Plaintiff claims racial discrimination in connection with "command discipline" issued by a supervisor. He also claims retaliation over the removal of summons-issuing responsibilities. One issue on appeal is whether the command discipline was an adverse action under the civil rights laws. If you practice in this area, you know that not every negative decision at work can give rise to a lawsuit. It has to be a significant alteration of the plaintiff's responsibilities. Only then is it worth suing over.

Here, "the alleged effects of the command discipline plausibly constitute a 'material loss of benefits.'" In addition, the Amended Complaint alleges that specific white officers who committed overtime violations similar to plaintiff's violations were not disciplined. This would give plaintiff a classic disparate treatment case. So that claim is revived on appeal following the district court's contrary decision.

The Court of Appeals (Jacobs, Lohier and Geraci [D.J.]) also revives the retaliation claim. Plaintiff alleged that shortly after he filed an EEOC charge, management prohibited him from issuing summonses. This change in duties may have constituted a significantly adverse job action sufficient to support a Title VII retaliation claim, the Court of Appeals says. And you know it's true. What police officer doesn't want to issue summonses?

Monday, May 11, 2015

How to plead a racial discrimination case

I always think racial discrimination cases are the hardest of all the discrimination cases to win. We all know racism still exists, but you are asking the court or jury to brand the defendant with a scarlet letter in finding that it practiced the most insidious discrimination of them all.

The case is Green v. District Council 1707, a summary order decided on April 17. This case was dismissed under Rule 12 for failure to state a claim. For non-lawyers, that means the case did not get any further than the lawyer filing the lawsuit. The judge reviews the allegations and decides if plaintiff has alleged enough facts to support a plausible claim.

The Court of Appeals (Jacobs, Lohier and Chen [D.J.]), reinstates the racial discrimination case. Here is the reasoning:

The defendants argue that the allegations in Green’s amended complaint fail to give rise to an inference of race discrimination. We disagree with respect to Green’s claims based on his termination and the denial of severance. Green has stated a claim of race discrimination under § 1981 because he plausibly alleged, among other things, that his supervisor consistently treated African American and Latino employees better than similarly situated Caucasian employees and that he was replaced by an African American.

In the alternative, the defendants argue that the District Court was right to dismiss the amended complaint because it pointed to legitimate, nondiscriminatory reasons for Green’s termination. But “[w]hether there existed non-pretextual, non-discriminatory explanations for the defendants’ employment decisions . . . is not properly decided on a motion to dismiss for failure to state a claim.” Brown v. Daikin Am. Inc., 756 F.3d 219, 230-31 (2d Cir. 2014). We therefore vacate the judgment of the District Court insofar as it dismissed Green’s claims for race discrimination under § 1981 with respect to Green’s claims based on his termination and the denial of severance.
Take a close look at the reasoning. You cannot win an employment discrimination case without showing the employer's reason for your termination (or job denial) was a pretext for discrimination, i.e., the employer says you were fired for lateness, but in fact non-white employees were coming into work late all the time and were not fired. But in drafting the complaint, you do not have allege that the employer's articulated reason was pretextual. Of course, most lawyers will continue to do so, and for good reason. Under the Iqbal plausibility standards governing complaint drafting these days, the more detail, the better. You want the trial court to find the allegations of discrimination are plausible. What better way to show plausibility than to allege with detailed facts that the employer has offered a phony reason for the plaintiff's discharge?

Thursday, May 7, 2015

2d Circuit says FLSA complaint does not have to be in writing

The Court of Appeals holds that, in order to bring a retaliation claim under the Fair Labor Standards Act, plaintiffs are not required to complain about pay disparities in writing; a verbal complaint to management is enough. This ruling repudiates a Second Circuit case from 1993.

The case is Greathouse v. JHS Security, decided on April 20,  nearly two years after oral argument. In Lambert v. Genessee Hospital, the Second Circuit 22 years ago said these claims required a formal complaint to a government agency. But in 2011, the Supreme Court ruled in Kasten v. Saint-Gobain Performance Plastics, 131 S. Ct. 1325, that "filing a complaint" under the FLSA includes oral as well as written complaints so long as the complaint is "sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context."

The Supreme Court tells the Second Circuit what to do, so the Second Circuit has no choice but to declare the Lambert ruling dead and gone. Other Circuits have already done this. The Second Circuit (Pooler, Carney and Korman [D.J.]) notes that either other Circuit Courts have said the FLSA protects workers from retaliation for their complaints made to employers. In hindsight, the Second Circuit says, the Court of Appeals in 1993 probably got it wrong in any event, and "we now conclude that the statutory language is not as plain and unambiguous as it seemed when Lambert was decided." The FLSA does not require "formal" complaints, and it also does not say plaintiffs have to file anything with a governmental agency. Moreover, "filed any complaint" may be interpreted to include intra-company complaints.

This interpretation is also consistent with the FLSA's statutory purpose, intended "to correct and as rapidly as practicable to eliminate labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers." Since "the government cannot directly monitor every employer's payroll, FLSA also creates an enforcement mechanism that relies in significant part on employees' complaints." The revised FLSA interpretation allows pay disparity complaints to be resolved informally, quickly and without government red tape, before the employees have lost significant wages or benefits.

This ruling has a few caveats. Employers cannot be expected to interpret all workplace complaints as FLSA complaints. The proverbial water cooler grievance probably doesn't count. In Kasten the Supreme Court said:

“a complaint is ‘filed’ [only] when a reasonable, objective person would have understood the employee to have put the employer on notice that the employee is asserting statutory rights under the Act.” The employee need not invoke the Act by name, but, as the Court concluded, “[t]o fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” 
The Second Circuit declines to define the exact contours of that standard, but it does say that the Kasten test would "exclude from the concept of 'fil[ing a] complaint' a mere passing comment."

Tuesday, May 5, 2015

Famous figure skater loses defamation case

Defamation cases are like professional grudge matches. Courts have in place strict rules that plaintiffs must satisfy in order to win. Otherwise, every insult and affront becomes a lawsuit.

The case is Baiul v. Disson, a summary order decided on April 16. Plaintiff is Oksana Baiul, the 1994 Olympic Gold Medal winner. One barrier to victory is that if the plaintiff is a "public figure," she has to prove the falsehood was made with actual malice against her. That's because public figures have to tolerate a lot more nonsense than everyone else. Politicians are public figures, but renowned athletes are, too, like the plaintiff, a self-described "superstar in the world of figure skating." Even I have heard of the plaintiff.

So the actual malice standard kicks in. Plaintiff must prove that someone uttered a public falsehood with knowledge that it was untrue. You have to prove malice with clear and convincing evidence. The defendant said plaintiff failed to appear for a skating show because she was out shopping. Even if this statement if false, plaintiff cannot show it was said maliciously. She also does not suggest the story was improbable or that the information came from a dubious source. Plaintiff even admitted at deposition that "it was gossip in the skating industry that she missed an event because she was out shopping."