Age discrimination case reinstated for trial

For some reason, the Second Circuit does not publish many of its employment discrimination cases, even when it overturns the ruling of a district court on summary judgment. That doesn't mean we should ignore the unpublished decisions. If discrimination cases are your bread and butter, it's still worth noting how the Court of Appeals views these cases.

This time around its Carras v. MGS 782 Lex, Inc., 2008 WL 5273278 (2d Cir. Dec. 19. 2008), where the Second Circuit reinstated an age discrimination claim. The 62 year-old plaintiff was fired from his job as Chief Financial Officer of a shoe importing company. The defendant argued that plaintiff was fired for cost-cutting reasons. The district court thought the jury could only find that cost-cutting was the real reason, not the plaintiff's age. But the plaintiff produced evidence that he was willing to work for a lower salary and that the corporate vice president repeatedly told the president that plaintiff was too old and that the president capitulated to the vice president's wishes that plaintiff be terminated. Management had also openly joked about plaintiff's age on several occasions. Plaintiff was also replaced by a 26 year-old.

In crediting the company's financial justifications for terminating the plaintiff, the Court of Appeals held, the trial court weighed the evidence, a task for the jury, not a court on a motion for summary judgment.

Circuit strikes down and modifies Patriot Act provision on National Security Letters

The USA Patriot Act allows the FBI to demand from telephone and Internet service providers certain information from their customers about their communications activity. Through "national security letters" (or NSL's), the FBI could find out if someone was engaged in terrorist activities. But the recipients of these NSL's could not communicate to anyone that they received them. Nor could they tell anyone they had to comply with them. This created significant First Amendment problems, which the Second Circuit resolved on December 15.

The case is Doe v. Mukasey. The district court struck down much of this statute on a preliminary injunction. The Court of Appeals gives this case extended treatment, striking down and otherwise narrowly interpreting parts of the law.

Plaintiffs argued that the nondisclosure requirement is a content-based prior restraint which the First Amendment forbids. They also argued that this licensing scheme must include a mechanism for the government to seek judicial review on the restraint. This objection is rooted in case law requiring the government to initiate legal proceedings when it wants to restrict certain speech. We call it the Freedman requirement, based on a Supreme Court ruling from the 1970s. But the government responds that this not quite like prior restraints governing public assemblies and entertainment like movies and books but, instead, simply a restriction on speech comparable to grand jury secrecy and judicial misconduct proceedings. Also, under the statute, to trigger the nondisclosure requirement, the FBI must first certify to a court that the national security letters are intended to deal with international terrorism or clandestine intelligence activities.

The Second Circuit first holds that the above speech restrictions are not classic prior restraints in that they don't squelch speech in public forums. But the Court holds that this is not quite comparable to secret grand jury proceedings, either. "In any event, John Doe, Inc., has been restrained from publicly expressing a category of information, albeit a narrow one, and that information is relevant to intended criticism of a governmental activity," the Court states.

What tangles up the Court of Appeals is the absence of any mechanism for the government to seek a court order allowing it to silence the recipient of a national security letter. In other words, where is the Freedman requirement? This mechanism is normally required when the government wants to restrict certain speech. The government argued, among other things, that this requirement is burdensome because the government issues thousands of national security letters each year. But the Court of Appeals suggests that one way to deal with this is to have the government tell the recipient that it has 10 days to advise whether it will challenge the nondisclosure requirement and that if the recipient chooses to do so, the government will have a limited time frame in which to seek the appropriate court order. This Freedman procedure will work, the Court says, because the government doesn't think too many NSL recipients want to make an issue of this in the first instance. So the point here is that Freedman requirements must apply to NSL's.

But there is another problem. The Patriot Act requires the courts to defer to the government's judgment in issuing NSL's. The First Amendment requires the government to provide a concrete reason for nondisclosure requirements. The Court of Appeals resolves this issue by requiring the government to show why disclosure would risk "an enumerated harm," that is, "the Government must at least indicate the nature of the apprehended harm and provide a court with some basis to assure itself (based on in camera presentations where appropriate) that the link between disclosure and risk of harm is substantial." This solution allows the government to exercise its national security objectives without the Federal courts breathing over its shoulder.

The Court of Appeals, in effect, is saying that if the government provides a concrete reason for nondisclosure, that reason may outweigh the NSL recipient's First Amendment interest in publicizing the letter and any grievance related to the production of the Internet activity of an ISP customer. The Court concludes, "A demonstration of a reasonable likelihood of potential harm, related to international terrorism or clandestine intelligence activities, will virtually always outweigh the First Amendment interest in speaking about such a limited and particularized occurrence as the receipt of an NSL and will suffice to maintain the secrecy of the fact of such receipt."

One last problem: under the statute, the government certification that the NSL's are necessary are deemed conclusive by the courts unless the courts think the certification was advanced in bad faith. The Second Circuit rejects this. Such a procedure gives the government too much leeway to regulate speech without satisfying "strict scrutiny," the standard governing court review of most speech restrictions. The Court pounds the table on this one: "“Under no circumstances should the Judiciary become the handmaiden of the Executive.”

No political demonstrations at West Point

In spring 2007, an activist group sought to hold an anti-war demonstration at the United States Military Academy at West Point, located in Orange County, New York. The occasion was the annual graduation ceremony featuring Vice President Cheney, who would address the cadets when public opinion was souring on the Iraq war. West Point denied the permit application, and the trial court denied the plaintiff's request for a preliminary injunction. This week, the Second Circuit affirmed that denial.


The case is Sussman v. Crawford, decided on December 2. I represented the plaintiffs in this case. It's not everyday that people sue under the First Amendment to protest at a military installation. The case law in this area is sparse in the Second Circuit. The Court of Appeals took the opportunity to confirm that nonpublic forums like West Point are no place for political demonstrations even though this is government property has enough space for any demonstration.

In the mid-1970's, the Supreme Court sharply limited free speech rights at military installations. That case was Greer v. Spock, 424 U.S. 828 (1975), which held that the military has discretion to deny speech and public assembly permits if they would interfere with military readiness and morale. In Sussman v. Crawford, the plaintiffs argued that West Point is not comparable to Fort Dix or other installations because West Point is also a college campus and a cultural center, with a large football stadium, an auditorium that hosts public lectures and concerts and a hotel that the public can frequent. They also argued that the planned demonstration for Cheney's speech, about a mile or so away from the graduation ceremony (but still on West Point property), would not interfere with the ceremony or cause any security problems.

The Court of Appeals rejected these arguments, holding that "While the West Point reservation differs from some other military installations in that it houses an Academy and often invites speakers to address its cadets, we believe that the presence of the Academy within the cantonment is not sufficient to convert West Point into a public forum." The Court also held that West Point's speech policy was not arbitrary applied.

The Second Circuit resolved some noteworthy procedural issues here. First, after the trial court denied the injunction, the plaintiffs sought to stay that denial in the Court of Appeals in May 2007. The Court of Appeals denied that application in a published opinion, 488 U.S. 136 (2d Cir. 2007). The plaintiffs then took a formal appeal from the district court's ruling, giving rise to the opinion decided on December 2. Law of the case principles do not squarely apply here since the first published opinion was an interlocutory ruling, but the Court of Appeals still reviewed the issues while taking into account its earlier opinion. The lesson here is that appealing a district court opinion in the wake of an interlocutory ruling may lead to the same result unless something happened in the interim (new facts or new case law) that would change the outcome.

In addition, the plaintiffs also challenged the procedural rules governing the resolution of speech and public assembly permits at West Point. That issue was not resolved in the interlocutory ruling in May 2007. But West Point revised those rules to avoid any constitutional question. Under Lamar Adver. of Penn, LLC v. Town of Orchard Park, 356 F.3d 365 (2d Cir. 2004), the revised rules moot the challenge to the old rules. Lamar Advertising involved the enactment of a municipal ordinance which changed the speech procedure under review. That kind of legislative change almost guarantees that the old rule will not come back. Prior to Lamar Advertising, the Second Circuit generally held that a new rule does not moot out a challenge to the old provision because the defendant is then free to bring back the old rule after the lawsuit is over. In Sussman v. Crawford, the reasoning of Lamar Advertising has been extended to regulations enacted by a government entity such as West Point as opposed to a law enacted by a City Council or Town Board.

City of Rochester curfew is struck down as unconstitutional

Curfews are common in municipalities that are concerned about crime and quality of life issues, such as minors loitering on the street corner or hurling beer bottles onto the neighbor's lawn. But these curfews are not always legal. The Appellate Division in upstate New York struck down the City of Rochester curfew a few weeks ago.


The case is Anonymous v. City of Rochester, decided on October 10. (Hat tip to New York Legal Update which alerted me to this case). The law made it illegal for minors to be in a public place between the hours of 10:00 pm and 5:00 am on most days, unless the minor is accompanied by a parent or guardian or can show that he fits within one of the exceptions to the law, i.e., he is on his way to work or there is some emergency that requires him to be outside during the prohibited hours.


A parent challenged the constitutionality of the curfew under the U.S. Constitution, particularly the Equal Protection Clause and its implied freedom of movement. Since the law implicates these principles, the Appellate Division applies "strict scrutiny" in reviewing the law's constitutionality. In other words, the court carefully reviews the law, which will be struck down unless the City can offer some compelling reasons for its enactment. Strict scrutiny means death for most laws, and that is what happened here.


Citing federal court precedents, the Appellate Division states that "the ordinance infringes on plaintiff son's fundamental right of free movement because it affects the right of plaintiff son 'with parental consent to walk the streets, move about at will, meet in public with friends, and leave his house[] when [he] pleases. This right to movement is a vital component of life in an open society, both for juveniles and adults.'"


But then the Appellate Division does something very interesting. In the Second Circuit Court of Appeals, laws like this are not subjected to strict scrutiny. See, i.e., Ramos v. Town of Vernon, 353 F.3d 171 (2d Cir. 2003). Instead, the municipality has greater leeway to regulate the actions of minors, who do not typically enjoy the rights of their elders. The Appellate Division will have none of this, and it rejects the distinction between minors and adults. Curfew laws in the Appellate Division are therefore reviewed as if they are regulating the activities of older folks. In this regard, the Appellate Division rejects the constitutional interpretation of the federal Court of Appeals in its own jurisdiction and instead follows the lead of other federal courts around the country which have granted minors greater constitutional rights.


But that was academic, because the Appellate Division says it would even strike down the law under the more lenient burden of proof as recognized in the Second Circuit. The reasons advanced for enacting the curfew, i.e., dealing with juvenile crime and victimization as reflected in three tragic deaths from 2001 through 2005, do not cut the mustard. Those crimes either took place outside the curfew hours or they involved a minor who was already under careful judicial supervision as a result of his background. In addition, there is no "substantial relationship" between the law and its goals, because "the crime statistics for the City demonstrate that the vast majority of violent crime during curfew hours is committed by persons over 18, and that adults are far more likely to be victims of such crime during those hours." It was also not enough for City officials to assume that children are more vulnerable at night than adults.


The law also discourages First Amendment activity, in that it prohibits minors from being in a public place for 5-6 hours a day. The Court reasons, "'Being out in public is a necessary precursor to almost all public forums for speech, expression, and political activity . . . [The] relationship [of governmental regulation of nonspeech, i.e., the nocturnal activity of minors,] to expressive conduct is intimate and profound.' By subjecting juveniles to arrest merely for being in a public place during curfew hours, the ordinance forcefully and significantly discourages protected expression." The problem is that a police officer had to make a judgment whether the minor is engaging in First Amendment expression or simply hanging out with his buddies. That prospect will chill legitimate First Amendment activity.


Finally, there is a father's rights component to the court's analysis. The law interferes with a parent's right to direct and control their child's upbringing. The Court reasons, "We conclude . . . that the ordinance interferes with parental supervision and supplants plaintiff father's reasonable standards by preventing plaintiff son from exercising his fundamental constitutional rights with plaintiff father's permission, approval and encouragement."


In cases like this, where the Appellate Division is picking and choosing from competing rulings of the federal courts on this issue, there is going to be room for disagreement, especially when a state appellate court rejects the reasoning in a comparable case from the federal Court of Appeals in its own jurisdiction. Not surprisingly, two Appellate Division justices dissent from the majority's reasoning, which almost guarantees that this case will go before the New York Court of Appeals, the highest court in the State.

The Constitution survives 9/11

A federal judge in the Eastern District of New York has held that two Arab men can sue federal agents for detaining them in August 2004 for engaging in innocuous behavior on a trans-Atlantic flight. In what may be the first case of its kind, Judge Block also held that Arab ethnicity has no relevance in determining whether a detention is supported by probable cause.


The case is Farag v. United States, 2008 WL 4965167, decided on November 24. Two Arab-Americans were flying from San Diego to New York City. They were friends but not sitting together. During the flight, one of the Arab men kept looking at his watch. The Arab men talked loudly to each other in a mixture of Arab and English. As they were not sitting together, they talked over the heads of passengers. One of the Arabs wanted to sit closer to his friend, so he asked two men if he could take the vacant seat between them. That arrangement would have cost the Arab man his window seat. These two men got suspicious and said no to the new seating arrangement. They got even more suspicious when the two Arabs moved their seats to another location on the plane without carrying their overhead baggage with them. Then, as the plane dallied on the tarmac upon landing, one of the Arab men deleted phone numbers from his cell phone.


The Arab men were actually upstanding fellows. One was a former police officer and corrections officer. The other one worked for General Electric and had a valid U.S. visa. The two men who sat near them -- whom one of the Arabs wanted to sit in between -- were actually counterterrorism agents. When the Arabs got off the plane, they were greeted by Port Authority Police Officers who were carrying shotguns. The Arab men were handcuffed and taken to the Port Authority police station, where they were interrogated for several hours, and they were not free to leave. As they were completely innocent, the Arab men were let go at 4:00 a.m., scared out of their wits.


The lawsuit against the federal agents raises a question that has not arisen since 9/11. Can federal agents take Arab ancestry into account in their decision to detain people suspected of terrorist activity? The reason for the question is obvious to anyone familiar with "reasonable suspicion" and "probable cause" analysis. The "unusual" events on the plane -- speaking in Arab and English, moving around to different seats, checking the time and other facially innocent events -- are not enough to detain for a terrorism investigation. There are too many rational explanations for this activity, and the judge in this case seems a little disturbed that the U.S. Attorney's office is trying to argue that this behavior alone creates reasonable suspicion to detain these men.


But what about the fact that they are Arab? Is that enough? No, says Judge Block, who notes that our world has changed since 9/11 in ways large and small. But it has not changed so much that the Constitution has been erased. Although the government argued that Arab ancestry is relevant because the 9/11 hijackers were Middle Eastern males, that is not enough. The government did cite a Supreme Court case from 1975, U.S. v. Brignoni-Ponce, 422 U.S. 873, which held in dicta that, while a border patrol agent could not make a traffic stop solely because of the apparent Mexican ancestry of the car's occupants, their ancestry could be a relevant factor. But Judge Block suggests that the precedential value of this decision has diminished greatly over the last 25 years, as more and more Hispanics live in the United States such that the statistical analysis relevant in 1975 is outdated today. Other federal courts have similarly revised the vitality of Brignoni-Ponce's analysis.


Writing on a fresh slate, Judge Block cites a scholarly analysis that notes "an increasing 'hostility to the use of race as a basis for police action under the Fourth Amendment." And you thought no one read law review articles. But law professors are not judges. So Judge Block says it himself: "Although this is the first post-9/11 case to address whether race may be used to establish criminal propensity under the Fourth Amendment, the Court cannot subscribe to the notion that in the wake of 9/11 this may now be permissible."


Federal judges like to include in their opinions language that reflects the gravity of issues like this to ensure that civil liberties must survive even the most horrible terrorist attack. Judge Block does so here: "The Court 'fully recognizes the gravity of the situation that confronts investigative officials of the United States as a consequence of the 9/11 attack, and that the mindset of of airline travelers has understandably been altered by 9/11. This justifiable apprehension must be assuaged by ensuring that security is strictly enforced, and by the passage of time without, hopefully, other episodic affronts to our country; but fear cannot be a factor to allow for the evisceration of the bedrock principle of our Constitution that no one can be arrested without probable cause that a crime has been committed."

Title VII case is dismissed because co-workers are not similarly-situated

One way to prove discrimination under the employment discrimination laws is to show that you were disciplined for something and someone else at work got away with it. If that someone else is outside the protected class (race, gender, religion, age), you may have a case. But this is a tough way to win.

The case is Billue v. Praxair, Inc., decided on November 20 by summary order. The general rule in this area is set forth in Graham v. Long Island Railroad, 230 F.3d 34 (2d Cir. 2000), which holds that you can claim discrimination if similarly-situated co-workers were not comparably disciplined. The plaintiff, a truck driver, pointed to a co-worker who left his truck unattended for five minutes, leaving the rear trailer door locked, within 100 yards of the employer's property. That guy was not disciplined as plaintiff was, even though plaintiff is black and the co-worker is white.

But these co-workers do not have comparable cases. According to the Court of Appeals, the plaintiff abandoned his truck for 20 minutes while he went shopping. He also "urinated in a public parking lot along a highway." So while both workers were derelict in their duties and probably violated company rules, the plaintiff's actions were materially worse than those of his co-workers. He cannot compare himself to the white co-worker, and for that reason his discrimination case was dismissed.

Fourth Amendment's Warrant Clause does not apply overseas

The Court of Appeals affirmed the convictions of al Qaeda terrorists by holding for the first time that portions of the Fourth Amendment do not apply when U.S. agents are gathering evidence overseas.

The case is In Re Terrorist Bombings, issued on November 24. The Court of Appeals actually issued three separate opinions, each focusing on a different issue. In the Fourth Amendment opinion, the Second Circuit considered whether U.S. agents were able to search defendant El-Hage's residence and conduct electronic surveillance of his telephone lines, both land-based and cellular in August 1996 and August 1997. Normally, under the Fourth Amendment, you need a warrant to search someone's home or phone lines. The angle here is that this all happened abroad, and that the U.S. did not search defendant's private affairs with a warrant.

The Court holds that "the Fourth Amendment’s Warrant Clause has no extraterritorial application and that foreign searches of U.S. citizens conducted by U.S. agents are subject only to the Fourth Amendment’s requirement of reasonableness." The reasons for this holding are as follows: (1) no U.S. precedent supports the defendant's argument that a warrant is needed; (2)
"nothing in the history of the foreign relations of the United States would require that U.S. officials obtain warrants from foreign magistrates before conducting searches overseas or, indeed, to suppose that all other states have search and investigation rules akin to our own"; (3) any warrants issued by American judicial officers would have dubious legal significance in a foreign nation; and (4) it's not even clear that American judicial officers have the power to issue such warrants in any event.

Under the reasonableness standard outlined above, American authorities properly searched the defendant's property and phone lines in Kenya. American officials knew that al-Qaeda was operating in Kenya at that time. Suspected al-Qaeda associates were using telephones in the building where the defendant lived. American authorities had a disciplined approach to monitoring this activity and determining that the search was necessary. The Court concludes, "U.S. agents did not breach the privacy of El-Hage’s home on a whim or on the basis of an unsubstantiated tip; rather, they monitored telephonic communications involving him for nearly a year and conducted surveillance of his activities for five months before concluding that it was necessary to search his home."

Swastika tattoo is fair game for cross-examination

For the second time in a week, the Court of Appeals has held that criminal defendants are allowed to cross-examine their adverse witnesses if they have racist views.

The case is United States v. Figueroa, decided on November 18. The defendant was arrested and charged with possessing an unlicensed gun. A government witness against Figueroa had swastika tattoos. Since Figueroa is a racial minority, his lawyer wanted to cross-examine the witness, Wright, about his racist views which could impeach his credibility. The trial court said no. The Court of Appeals said yes.

The Confrontation Clause of the Sixth Amendment allows the defendant to test the adverse witness' bias to testify falsely against him. Swastika tattoos are sufficiently racist that the cross examiner should be allowed to focus on them. As the Court of Appeals held a few days ago in ruling that a criminal defendant was allowed to similarly cross-examine a racist witness, "racial bias, at least when held in extreme form, can lead people to lie or distort their testimony, and therefore might bear on the accuracy and truth of a witness' testimony, even though the bias is directed generally against a class of persons and not specifically against the accused."

It goes without saying that the swastika is associated with racist views. The Court of Appeals says it anyway, going so far as to quote Mein Kampf, Adolph Hitler's biography, which talks about the symbol's meaning. While the trial court has latitude in limiting cross-examination, in this case the trial court went too far, citing Fed.R.Evidence 608, which governs attacks on a witness's credibility and truthfulness. That was wrong. The real purpose of the proposed cross examination was to expose witness bias, which is permissible.

The defendant loses the appeal, however. The Court of Appeals held the improper limitation on cross-examination was harmless: "even if Wright's credibility had been undermined by cross-examination regarding his swastika tattoos and related bias, the remainder of the government's case was overwhelming."

Untimely EEOC complaint results in Title VII dismissal

You have 300 days to file a charge with discrimination with the Equal Employment Opportunity Commission if you suffered discrimination at work. Not 301 days or 302 days, but 300 days. The Federal courts strictly interpret this rule, for the most part. The Second Circuit did so this week.

The case is Alleyne v. American Airlines, decided on November 17. This case raises a recurring problem. Let's say you are fired on January 1 but the termination does not take effect until March 30. Then the operative date for purposes of filing the EEOC complaint is January 1, not when the adverse decision actually takes effect.

This case covers the same territory, according to the Court of Appeals, because the plaintiff lost his seniority in March 2002 and was terminated from his position in June 2003. His EEOC filing was within 300 days of the termination, not the loss of seniority. But since the plaintiff claimed that his seniority was revoked in March 2002 for discriminatory reasons and for the purposes of making it easier to fire him down the road, the operative date for the EEOC filing is March 2002, especially since he does not claim the June 2003 termination was discriminatory.

In other words, the real discriminatory event was in March 2002. While the consequence of that event was plaintiff's termination in June 2003, it was the March 2002 seniority revocation which counts under this analysis. The plaintiff argued that he could not have anticipated in March 2002 that the seniority decision would have this effect on his employment more than a year later. The Circuit Court disagrees. The loss of seniority is no trivial matter. Moreover, the Second Circuit states, "Alleyne does not, and reasonably cannot, downplay the significance of the loss of approximately nine years of seniority. 'Seniority is an important employee benefit because . . . it provides job protection. Its deprivation is an injury that sets the statute of limitations running even though the injury is contingent rather than actual unless and until job protection is needed.' Thus, in order to have notice of his claim under Title VII, Alleyne need not have forecast every problem attending his loss of seniority. '[T]he proper focus [for calculating the limitations period] is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.'"

Circuit upholds $300,000 in damages for pain and suffering in harassment suit

People are often surprised to hear that when a case goes to trial, the jury is not given any real guidance as to the value of the case for the purposes of determining an award for pain and suffering. The standard jury instructions ask the jury to give the plaintiff an amount of money that would fairly compensate her for the emotional distress, with the warning that the jury should not make its award based on passion.

This means that the jury can give an excessive award. You can't blame the jury. They have no guidance on these matters. The question, then, is how do the courts assess whether a damages award is appropriate? Case law provides the only answer. Courts will look the comparable cases to see what other juries awarded, and also to see what judges are willing to live with.

The case is Marchisotto v. City of New York, decided on November 7. This unpublished summary order is another guide for lawyers and their clients about damages for serious pain and suffering. In this case, the plaintiff, a male police officer, prevailed at trial on his sex discrimination and retaliation claim against a female supervisor, who pursued a sexual relationship with plaintiff and retaliated against him when he rebuffed her advances.

The jury awarded plaintiff $300,000 in damages for pain and suffering. That's a lot of money. But the trial court sustained the award, noting that plaintiff proved that his physical health suffered substantially as a result of the illegal treatment at work and he sought medical help which lasted several years. The plaintiff was also suffering from depression, anxiety and insomnia, taking medication to for these maladies. Moreover, medical testimony showed that he suffered from panic disorder, posttraumatic stress disorder and major depressive disorder and that these problems persisted through trial. The plaintiff was "shattered" and unable to move on with his life. These are serious damages, and the Court of Appeals, in affirming the damages award, agreed that this justifies the $300,000 award for pain and suffering.

While the Court of Appeals does not do so, the trial court opinion cites cases from New York and around the country in showing that this damages award is in line with comparable cases. Here's a taste of those cases:

Osorno v. Source Enterprises, Inc., 2007 WL 683985, at *5 (S.D.N.Y. Mar. 2, 2007) (finding an award of $4 million for emotional distress to be reasonable based on plaintiff's testimony about her depression, anxiety, and embarrassment); Petroyits v. New York City Transit Auth., 2003 WL 22349676 (S.D.N.Y. Oct. 15, 2003) (award of $150,000 in compensatory damages is not excessive where plaintiff sought mental health treatment for stress from denial of promotion); McDonough v. City of Quincy, 452 F.3d 8, 22 (1st Cir. 2006) (upholding compensatory damages award of $300,000 where bulk of award was for emotional damages and plaintiff testified that he had loved his job, suffered humiliation, and his relationship with his family suffered because of his anger); Moorer v. Baptist Memorial Health Care System, 398 F.3d 469, 485-86 (6th Cir. 2005) (finding award of $250,000 for emotional damages reasonable when plaintiff and his physician testified that he suffered from depression, loss of self-esteem, anxiety, and “excessive thoughts”).

New trial granted where defendant was prevented from cross-examining racist complaining witness

Habeas corpus petitions are hard to win these days, ever since Congress revised the procedures in 1996 to require that the petitions be denied unless the state criminal court unreasonably applied settled constitutional law in denying the defendant a fair trial. That strict requirement did not prevent the Court of Appeals from affirming a habeas award where the criminal court did not allow a defendant to cross-examine the complaining witness about his alleged racist beliefs.

The case is Brinson v. Walker, decided on November 13. The black defendant was charged with robbing a white victim on the street. The defendant denied committing any crime and wanted to prove that the complaining witness hated blacks and used racial epithets. The defendant would prove this through testimony from the complaining witness's co-workers and associates.

The trial judge said no, that this evidence was not relevant because the racial statements were made after the robbery. The Court of Appeals said yes, that the trial judge's ruling violated the Confrontation Clause of the Sixth Amendment, which the courts have interpreted to mean that you can challenge the witness's bias. According to the Second Circuit, "It is hard to conceive of a more 'prototypical form of bias' than racial bias." Since the criminal court prevented the defendant from proving that the complaining witness is a racist, that evidentiary ruling violated the Constitution.

The question, then, is whether that evidentiary ruling represented an unreasonable application of settled Supreme Court case law. The Court of Appeals said that it was. The extreme bias that the complaining witness allegedly harbored toward blacks makes it clear that the defendant had the right to bring this all before a jury to test the witness's credibility, and that this evidence could have made a difference at trial in exonerating the defendant. The Second Circuit reasons, "Brinson had a constitutional right under the Confrontation Clause to cross-examine Gavin on such extreme racial bias so that the jury could make its judgment whether Gavin’s testimony was affected by bias, and in the circumstances it was an 'unreasonable application of clearly established Federal law, as determined by the Supreme Court' to bar his exercise of that right on the ground that a racial bias is general rather than personally directed."

First Circuit excuses the failure to e-file through ECF

The legal profession is slowly becoming a paperless profession, as courts are requiring lawyers to e-file their legal documents. We call this ECF filing. The point is that the Courthouse should not be clogged with voluminous filing cabinets which are bursting at the seams. But some courts and judges still want the hard copy of your legal filings. What happens if you forget to e-file, or you do it too late? Can the case be dismissed over this? Don't laugh. It actually happened.

This case is out of the First Circuit. The case is Velazquez-Linares v. United States, decided on November 10. The plaintiff filed her "paper complaint", but she did not electronically file it fast enough. The judge dismissed the complaint because of this! The court also sanctioned the lawyer in the amount of $150.00. Under the court's local rules, "Standing Order No. 1" states that "parties shall promptly provide the Clerk with electronic copies of all documents previously provided in paper form." The lawyer objected to dismissal, explaining that his computer had malfunctioned. The judge said the lawyer waited too long to fix this problem.

The First Circuit reinstated the lawsuit. The Court of Appeals noted that the rules required "prompt" electronic filing, but it was unclear what "prompt" means, and the trial court could have set a firm deadline. In addition, the government-defendant did not suffer any harm by the late e-filing. The First Circuit reasoned: "In the peculiar circumstances of this case, we hold that the district court read the standing order too inflexibly and acted outside the realm of its discretion in dismissing the action and imposing a monetary sanction without first affording the plaintiff notice and a brief opportunity to cure."

No catalyst fees under the Equal Access to Justice Act

In the old days, when the plaintiff brought a civil rights case against the government or a private entity, he was considered the "prevailing party" if the defendant changed the very policy or rule that gave rise to the lawsuit. While the policy change may have mooted out the suit, if the policy change gave the plaintiff what he wanted in the first place, then the plaintiff was considered to have won the case and was therefore allowed to recover his legal fees from the defendant. We called that the "catalyst theory" of attorneys' fee liability.

The catalyst theory died in 2001, when the Supreme Court issued Buckhannon v. West Virginia, 532 U.S. 598 (2001), a sea change in attorneys' fees case law since most of the federal courts had adopted the catalyst theory. On the basis of its reasoning, courts have applied Buckhannon to every statute that allows for fee-shifting. One by one, these statutes are being narrowly interpreted under Buckhannon. You can now include the Equal Access to Justice Act in that category.

The case is Ma v. Chertoff, decided on November 4. This case involved the government's failure to allow the plaintiff to become a lawful permanent resident. Under the catalyst theory, if the plaintiff won, then his attorney recovered all legal fees expended in handling the case, which can be quite substantial. But the government gave in and granted Ma's application mid-litigation and gave him a green card. His lawyer moved for legal fees. Motion denied. Following the lead of other appeals courts which have ruled on this issue, the Court of Appeals holds that Buckhannon's reasoning applies to the fee statute governing these cases, the Equal Access to Justice Act. So the plaintiff wins the case, but his lawyer does not get paid.

False arrest claim reinstated

The Court of Appeals has reinstated a false arrest and malicious prosecution claim which the district court dismissed on summary judgment. The Second Circuit issued this ruling as an unpublished summary order, but since the Court reversed the district court, it's always newsworthy.

The case is Ramos v. City of New York, decided on November 4. Ramos claimed he was falsely arrested and maliciously prosecuted in connection with his arrest for second degree harassment and resisting arrest. Of course, Ramos has to prove the arrest lacked probable cause to prevail in this lawsuit. The resisting arrest claim boostraps on the harassment arrest. If the harassment arrest lacked probable cause, then there is no resisting arrest.

Ramos gets a trial because in order to arrest for second degree harassment, the arresting officer had to personally witness the violation. You can look it up: Criminal Procedure Law section 140.10(1)(a). In this case, that did not happen. The officer did not witness the event, and no one apparently looked up the harassment law. "It is uncontested that the offense did not occur in the officer's presence," the Second Circuit tells us. Therefore, the jury can find Ramos was arrested without probable cause. As the district court gave short shrift to the malicious prosecution claim, the Second Circuit tells it to re-consider that claim on remand.

Being smacked around by a supervisor is not an "adverse employment action"

A guy working in a post office was assaulted by a supervisor. Plaintiff alleges the assault was an act of discrimination on account of his race, color and national origin. But he can't sue the post office because this assault is not an "adverse employment action."

The case is Mathirampuzha v. Potter, decided on November 3. (My write-up on another aspect of the opinion is here). The plaintiff alleged that a supervisor, Sacco, "grabbed the plaintiff's arm, punched him in the shoulder and the chest, spit in his face, and poked him in the eye. Sacco also shouted, 'Joe, I'll never let you go the Hartford plant.'" When plaintiff complained to a higher-ranking supervisor, she laughed it off. However, Sacco was issued a warning letter and transferred to another work assignment for at least a year.

Under Title VII of the Civil Rights Act of 1964, you need an "adverse employment action" to bring a lawsuit. In other words, your negative treatment must be worth suing over. At one end of the equation is job termination, clearly an adverse action. At the other end of the picture is being given a lousy photocopier, not an adverse action. The courts apply a sliding-scale analysis in this area.

The Court of Appeals says, "Only in limited circumstance does a single, acute incident of abuse qualify as an adverse employment action." So, in hostile work environment claims, a single act of sexual harassment may qualify if it's "extraordinarily severe," such as rape. The question is whether the single act of non-sexual abuse represents an "intolerable alteration of the plaintiff's working conditions." No dice for plaintiff.

Since the plaintiff continued to work at the plant, he was not denied salary or responsibilities, and the assault did not bring lasting harm to his ability to do his job, it's not an adverse action. The Second Circuit explains,

The physical encounter itself, while understandably upsetting, was not so severe as to alter materially the plaintiff's working conditions -- unlike, for example, a rape, or an obscene and humiliating verbal tirade that undermines the victim's authority in the workplace. The Postal Service's response to the incident, moreover, while not immediate, ultimately ameliorated the plaintiff's working conditions, as Sacco was eventually disciplined and transferred to another work assignment for at least one year. Although a more severe incident of harassment or abuse could constitute an adverse employment action, the brief incident in this case, however regrettable, does not meet the "extraordinarily severe" standard.

One final ruling by the Court of Appeals in this case. Plaintiff alleged that he was denied a transfer for discriminatory reasons. But that claim fails because he cannot show that anyone with a discriminatory motive was responsible for this. While Sacco assaulted plaintiff, Sacco had nothing to do with the transfer denials. The Court of Appeals does note that its precedents support the position that some transfer denials constitute adverse employment actions if they objectively create a significant change in working conditions. But that gray area is not fleshed out here since plaintiff cannot show that anyone with discriminatory animus denied him the transfers.

Administrative exhaustion requirements strictly enforced in Title VII claim

Some cases do not get out of the starting gate. That's because an administrative filing requirement has to be satisfied. This is the case in employment discrimination lawsuits under Title VII of the Civil Rights Act of 1964. It's the reason why a Title VII case arising from a post office dispute was dismissed.

The case is Mathirampuzha v. Potter, decided on November 3. Plaintiff worked at the post office. His boss assaulted him on the job. Plaintiff claims the assault was for discriminatory reasons, so he brings an internal EEO complaint with his employer, as required when you work for the Federal government and want to pursue a discrimination claim. But the problem is that the internal EEO complaint does not raise a slew of other allegedly discriminatory actions against plaintiff. So when he brings his lawsuit in Federal court, the question is whether the court has authority to hear these other claims.

The general rule is that your administrative EEO complaint has to raise all your issues. The same rule applies if you work in the private sector and have to file an administrative charge of discrimination with the Equal Employment Opportunity Commission. If you leave out certain claims in the administrative filing, however, the Federal court can still consider them if those omitted claims are reasonably related to the claims that you did raise in the EEO/EEOC filing. The reason for this is that the omitted claims might fall within the scope of the administrative investigation into the claim that you expressly filed. A thorough investigation might necessarily include an investigation into the omitted claims which the investigator stumbles upon.

This exception to the requirement that plaintiffs fully exhaust all their claims in the administrative process before filing suit in Federal court has its limits. Those limits are explored in this case. The plaintiff's claim that a manager went postal against him in the post office for discriminatory reasons is not reasonably related to his other claims (not alleged in the EEO charge) that the assault was retaliatory or that his manager had verbally harassed him, denied him lunch breaks and other privileges and subjected him to a hostile work environment. In dismissing the plaintiff's claims other than the assault charge, the Court of Appeals reasons, "We do not think that the plaintiff's allegation of a single incident of aggression by Sacco could reasonably be expected to blossom into an investigation covering allegations of unrelated misconduct by Sacco dating back several years."

In other words, plaintiff's claim that he was assaulted for discriminatory reasons is too discrete from the other, omitted claims relating to longstanding harassment and discriminatory job actions. In order to pursue the other claims in court, he had to raise them in his EEO charge. In making its point, the Court of Appeals cites a recent Supreme Court case on the issue of statutes of limitation and sexual harassment, Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), for the proposition that hostile work environment claims are different from discrete acts like promotion denials and job terminations.

Court strikes down prohibition against political leafleting in teacher mailboxes

In Weingarten v. Board of Education, 08 Civ. 8702 (LAK), 2008 WL 4620573 (S.D.N.Y. Oct. 17, 2008), Judge Kaplan upheld the City's prohibition against teachers wearing political buttons to class. I wrote about that part of the case here. While that ruling generated news coverage, another part of the opinion was ignored, even though the teachers won that battle.

The Board of Education enforced a rule that allowed the union to distribute literature in teachers' mailboxes, but political literature could not be similarly distributed. The same rule applied to teacher bulletin boards. While courts have held that teacher mailboxes are not traditional public forums in that they do not have to accommodate unbridled free speech, even nonpublic forums cannot discriminate without any rational basis at all. Judge Kaplan cannot discern any rational basis for allowing union speech but disallowing political speech in teacher mailboxes and bulletin boards. This is especially the case where students have no opportunity to view the bulletin boards, which only service the teachers. So unlike the rule prohibiting teachers from wearing political buttons to class, there can be no argument that the bulletin board rule would confuse or unduly influence young student minds.

Judge Kaplan therefore enjoins enforcement of these speech restrictive rules. This is one of the rare cases where the plaintiff in a First Amendment case prevails in challenging speech restrictions in nonpublic forums. Even in this context, where the government has significant leeway in regulating speech, it must articulate a reasonable basis for the speech distinctions. In failing to do so, the Board of Education loses.

Court upholds prohibition against teachers wearing political buttons in school

New York City teachers wanted to wear political buttons to class in this election year. But the Board of Education requires teachers to "maintain a posture of compelte neutrality with respect to all candidates." The City was asking for a First Amendment lawsuit. It got one.

The case is Weingarten v. Board of Education, 08 Civ. 8702 (LAK), 2008 WL 4620573 (S.D.N.Y. Oct. 17, 2008). The trial court resolved a preliminary injunction motion by reviewing the state of free speech in the public schools. As a general rule, teachers and students have First Amendment rights in school, but those rights are limited in light of the need for efficient public service. We call that the Tinker principle, named after a 1969 Supreme Court ruling which remains the starting point for free speech in public schools. But that was 40 years ago, and this doctrine has undergone many twists and turns, mostly in favor of school districts.

Judge Kaplan had to iron out conflicting rulings on this issue. In James v. Board of Education of the Town of Addison, 461 F.2d 566 (2d Cir. 1977), the Second Circuit held that, without a concrete showing that this activity would interfere with the educational process, a high school teacher could not be punished for wearing an anti-war armband to class. But that was 30 years ago, and the case law has tilted in the direction of school districts even further. In 1988, the Supreme Court held in Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988) that public schools can censor school newspapers to ensure both that students are protected from inappropriate speech and that controversial speech is not attributed to the school.

James may have been the Second Circuit's high point for teacher speech. Judge Kaplan finds that its persuasive authority has been seriously undermined by later developments in the Supreme Court. While James made it more difficult for school officials to regulate speech, Judge Kaplan finds that, post-Hazelwood and other court rulings over the years, the question today is "whether the defendants' view that the opinions conveyed by teacher-worn political buttons 'might reasonably [be] perceive[d] to bear the school's imprimatur' or otherwise interfere with the accomplishment of defendants' public role."

Formulating the issue this way hurts the plaintiffs. Judge Kaplan finds that school officials reasonably believed that the political buttons would interfere with the educational process. The court defers to the district's expert authority on the effect these buttons would have on young and impressionable students. Since the challenged regulation does not discriminate on the basis of political messages and teachers have other ways to express support for political candidates (like wearing their buttons outside of school), the regulation represents a good faith effort by school officials about the impact of political buttons in school. For this reason, the prohibition against wearing political buttons to school is upheld.

The New York lis pendens law is constitutional

In New York, someone filing a lawsuit that would affect title to real property can file a lis pendens, a document that makes it difficult for the defendant to sell off the land. The lis pendens is also filed when the lawsuit would affect use and enjoyment of the property. The document alerts future buyers of the land that a pending lawsuit involves that very property. While the landowner can sell the land, realistically, it's impossible with a lis pendens, because the buyer will have to live with the result of the lawsuit, and that result may frustrate the buyer's use of the property. Who would buy land with an active lis pendens? That's the point.

The lis pendens can be filed without the defendant's knowledge. The dramatic consequences of a document like this gave rise to a class-action lawsuit challenging the New York lis pendens law as a violation of constitutional due process, which guarantees notice and a right to be heard before the government deprives you of a property interest. Interesting case, to the say the least. So interesting that the Court of Appeals devotes 40 pages of analysis to the issue. In the end, the lawsuit fails. The lis pendens law satisfies due process.

The case is Diaz v. Peterson, decided on October 17. The Court of Appeals sidesteps the issue of whether the lis pendens represents a property deprivation, as it decides instead that even if it does, the law provides the property owner with sufficient due process.

Due process claims are more complicated than people think. The courts apply a balancing test, taking into account the property rights of the landowner, the risk of unfair property deprivation and the government's interesting in efficiently ensuring fair process. We call that the Matthews balancing test, after a Supreme Court case, Mathews v. Eldridge, 424 U.S. 319 (1976).

Under Mathews, the plaintiffs lose. First, since the property owner subject to a lis pendens continues to be able to inhabit and use the property, receive rental income from it, enjoy its privacy, and even sell it, lis pendens is deemed one of the “less restrictive” means of protecting a disputed property interest. Second, there is little risk of erroneous property deprivation under the statute, as the property owner is entitled to a hearing to make sure that the lis pendens was not filed in bad faith. While notice and hearing are afforded post-deprivation, this procedural safeguard suffices where “the nature of the issues at stake minimizes the risk” of wrongful deprivation. Finally, New York has an interest in safeguarding the property while the parties litigate the dispute in court. The concern is that an unsuspecting property buyer will walk into a legal dispute and be forced to live with the result of that lawsuit over which he has no control. This would only spawn additional litigation. The lis pendens allows New York to protect the property buyer.

No state action in suit against private mental health facility

The Constitution only regulates government behavior, not private behavior. Someone can censor you, and it would be legal, but if the government does it, it's illegal. We call it "state action," i.e., you can sue for a constitutional violation if there is state action. There was no state action in a lawsuit resolved today by the Court of Appeals, so the case is dismissed.

The case is Sybalski v. Independent Group Home Living Program, decided on October 15. The plaintiff sued a group home, alleging that it placed unlawful restrictions on family members from visiting their mentally-ill son after they complained about living conditions. Sounds like a First Amendment case, but it's not, because the group home does not have any connection with the government. The family argued that the home is extensively regulated by the state, and that this regulation creates a nexus between public and private entities, hence state action. But, as the Court of Appeals notes, "While the state has established substantive rights for patients in mental health facilities and procedures for protecting these rights, those actions, without more, do not amount to 'significant encouragement,' 'willful particip[ation],' or state 'entwin[ing],' in defendants’ decision to restrict the Sybalskis’ access to their son."

In other words, "While the State of New York has established procedures governing the limitations that mental health facilities place on the ability of patients to receive visitors, the administrators of those facilities make the decision about whether such limitations should be imposed. Accordingly, based on the facts alleged in the complaint, the state’s involvement in defendants’ decision to restrict the Sybalskis’ access to their son is insufficient to render that decision “state action” under the joint action test."

The plaintiffs also invoke the "public function" test, which creates state action if the otherwise private entity is performing a public function as defined by the courts. Under the public function test, “the exercise by a private entity of powers traditionally exclusively reserved to the [s]tate” can constitute “state action.” Not in this case. The operation of a facility like this is not a traditional state function, as opposed to the police or fire departments. As caring for the mentally ill is not a public function under this definition, there is no state action, and the case is dismissed.

Court of Appeals reinstates criminal conviction in civil rights case

A few years ago, an inmate at the Westchester County Jail died after he was beaten up by a corrections officer, Cote. The U.S. government brought an excessive force claim against Cote under the Federal civil rights statute, known as section 242, which criminalizes the use of excessive force by law enforcement. The case went to trial, and the jury convicted Cote. The trial court then vacated the conviction on a number of grounds, including its belief that inmate witnesses gave incredible testimony. The Court of Appeals reinstated the conviction.


The case is United States v. Cote, decided on September 24, 2008. At trial another corrections officer and three inmates testified about the beating. They recalled that Cote was angry that the victim hit another officer and that Cote punched and kicked the victim extensively. Also testifying was a medical witness from the local hospital who described the extensive external and internal injuries to the victim, Zoran Teodorovic, which included head injuries and multiple fractures in several areas. The medical witness said it was unlikely the victim sustained the injuries by simply falling to the floor.

Although the jury convicted Cote of using excessive force, the trial court vacated the verdict, reasoning that the inmate testimony was unreliable and incredible and not consistent with contemporaneous photographs which did not reflect severe injuries. The Court of Appeals reinstates the guilty verdict on the basis that the trial court has no authority to second-guess the jury's credibility assessments, particularly since "four eyewitnesses testified that Cote viciously assaulted Teodorovic while he was lying on the ground, already in a position of weakness." True, the witnesses gave conflicting accounts about how many times Cote kicked and beat the victim. But, as the Court of Appeals notes, "to the extent the inmate witnesses' testimony on the number of stomps and kicks to Teodorovic was inconsistent, however, the jury was entitled to reject the extremes of the testimony and conclude that the truth lay somewhere in between."

As for the photographs which did not depict the consequences of this brutal beating, the district court overlooked the medical testimony that serious internal injuries like those sustained by the victim are not always captured on film, and that CAT scans before the jury did reflect those injuries to the skull and brain.

Circuit clarifies standard in student disability cases

If a parent of a disabled student sues the school district under the Individuals with Disabilities in Education Act, he has to prove that the district did not provide the student with a “free appropriate public education” in “the least restrictive environment.” This means that the district has to draft an education plan for the student which will allow him to enjoy special educational benefits with the fewest restrictions possible. The question before the Court of Appeals this week was: how do the courts resolve claims that the district did not provide the least restrictive educational environment for these students?



The case is P., by and through his parents v. Newington Board of Education, decided on October 9. The courts recognize that the law contains two contradictory goals: if possible, the student should be "mainstreamed" in class with non-disabled peers, but there will be occasions when the district has to make arrangements for the student to receive his education outside the school, at a special facility for example. A factor in resolving these disputes is the recognition that educational policy is a local function, and the courts do not like to second-guess those decisions.


The Second Circuit has never determined exactly how to resolve whether a district is affording a disabled student educational services in the least restrictive environment. In this case, the court borrows the standard from the Third Circuit, which has stated:

in determining whether a child with disabilities can be educated satisfactorily in a regular class with supplemental aids and services (the first prong of the two-part mainstreaming test we adopt today), the court should consider several factors, including: (1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class.

If, after considering these factors, the court determines that the school district was justified in removing the child from the regular classroom and providing education in a segregated, special education class, the court must consider the second prong of the mainstreaming test – whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate.

In the end, like many legal tests, this is a case-by-case analysis, with the balance tipping toward the school district's independent judgment since these cases involve educational policy. The legal standard must also take into account the IDEA’s purpose of educating children with disabilities, “to the maximum extent appropriate, together with their non-disabled peers.” This does not mean the school district will win each lawsuit, but it's an uphill battle for the parents, including the plaintiffs in this case, who lose the case.

Southampton strip-search may violate the Constitution

A woman in Suffolk County, New York, was arrested and strip-searched at the Village of Southampton police station after she was pulled over for a traffic violation and the officer saw marijuana in the truck. Although the police had no reason to believe that she had drugs on her person, she was strip-searched by a female officer pursuant to police policy to strip-search all arrested females. The evidence suggested that the search was telecasted through the police department. The Court of Appeals says that can sue the Village as well as the police officers.

The case is Hartline v. Gallo, decided on October 8. The policy of strip-searching all female arrestees even without individualized suspicion that they are carrying contraband violates the Fourth Amendment prohibition against unreasonable searches and seizures. Hunches are not allowed under Second Circuit case law which, really, every law enforcement agency should know after all these years.

The Second Circuit (Wesley, Calabresi and Leval) reinstate the case which the district court dismissed. The Court is perplexed at what happened to the plaintiff, stating:

It is hard to imagine how the facts of this case could have led a reasonable officer in Officer Gallo’s position to suspect that Hartline was illicitly concealing drugs on her person. Officer Gallo had no reason to believe that Hartline was under the influence of narcotics at the time of her arrest. Officer Gallo found no useable narcotics in Hartline’s vehicle, nor did he see Hartline take any suspicious actions which might have suggested she was hiding something as he approached her vehicle. Officer Gallo did not notice anything about Hartline’s physical appearance that suggested she was secreting drugs on her person, nor did he engage in a less invasive pat down search that suggested the presence of contraband. Hartline answered every question that Officer Gallo asked her about drugs truthfully, yet Gallo did not even ask Hartline if she had any drugs on her person. Furthermore, Hartline had been arrested for nothing more serious than a B-misdemeanor.

The Circuit shot holes through the defendants' justifications for strip-searching this woman, concluding that these searches would be commonplace if the police department got away with the search here. "That result would be unacceptable in any society that takes privacy and bodily integrity seriously," the Court observes.

The only way out for the officers at this point is qualified immunity, which protects the police from lawsuits if the law was not clearly established at the time of the violation. But the Court of Appeals has been ruling against blanket strip-searches for two decades. Qualified immunity protects good-faith public officials who are not expected to be legal scholars in predicting what the court would do under unique circumstances. While the Second Circuit has never before held that a strip-search like this is illegal, it has never before suggested that it might be legal. Therefore, no qualified immunity for the officers.

Mandatory arbitration is OK under Sarbanes-Oxley Act

A woman who sued her employer under the Sarbanes-Oxley Act (SOX) cannot maintain this whistleblower claim in court because she signed an arbitration agreement, the Court of Appeals held in a case of first impression in this Circuit.

The case is Guyden v. Aetna, decided on October 2. Under SOX, public companies cannot fire any employee who in good faith blows the whistle on a violation of federal securities law. When Guyden got her position, she signed an agreement to arbitrate any employment-related disputes. Agreements like this keep claims out of court, and most employees never think twice about signing away these rights when they start a new job. But these agreements can come back to haunt the employee when she needs to bring a lawsuit. It haunted Guyden, who was fired after blowing the whistle on securities irregularities.

Under the Federal Arbitration Act, arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” As the Supreme Court noted in Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983), this law embodies the “liberal federal policy favoring arbitration agreements” and “establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.”

Guyden's way out of this is case law holding that, when statutory claims are involved, a party can prevent enforcement of the arbitration agreement only by showing that “Congress intended to preclude a waiver of judicial remedies for the statutory rights at issue.” She argues that the arbitration agreement is not enforceable because her claim has a public purpose; it's not just a private lawsuit. This is so, she argues, because plaintiffs bringing a SOX whistleblower claim are acting as private attorneys general, and the litigation helps the public learn about a corporation’s fraudulent conduct.

The Second Circuit disagrees, noting that it rejected a similar argument in 1998 under a different law, the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, which had a similar objective as the SOX law. Moreover, SOX primarily aims to provide a private remedy for the aggrieved employee, not to publicize alleged corporate misconduct. And, the employee does not even have to show the allegations of corporate misconduct are true, only that she believed in good faith that they were true. As the Court of Appeals sees it, SOX is like most other employment statutes that provide for a private remedy. Claims in court may be waived in favor of arbitration.

Class action defendants sanctioned $35,000 for litigation abuses

A class action in the Southern District of New York alleges that a private mental health facility in Rockland County physically and mentally abused patients in violation of New York law. Judge Robinson certified the case as a class action, which means that potential class plaintiffs have the option to opt out of the class. That's when things got ugly.

The case is Romano v. SLS Residential, Inc., 07 Civ. 2034 (SCR), issued on September 23. Judge Robinson found that SLS Residential went out of its way to contact class members to falsely advise that their mental health records would be made public if they did not opt out of the class. A therapist employed by defendants contacted some of the class plaintiffs to personally advise them of these adverse consequences. Of course, no one wants their mental health records publicized, so all hell broke loose, as plaintiffs began calling their lawyer and the court to complain.

In finding that defendant engaged in sanctionable conduct, the district court held that defendants schemed to mislead class plaintiffs to persuade them to quit the lawsuit and also to lose confidence in their attorney. Making matters worse, defendants used plaintiffs' therapist to impart this false information, taking advantage of the trust that these plaintiffs had in their therapist. The court further noted that defendants took advantage of vulnerable mental health patients in trying to minimize liability in this action.

Judge Robinson entered the following relief: all opt-out notices are void, and corrective notices will be sent to the class plaintiffs. Defendants and their agents cannot have any more contact with the plaintiffs without court order. And they must pay $35,000 in sanctions plus attorneys' fees.

ACLU wins Freedom of Information battle over war records

The American Civil Liberties Union sued the Department of Defense which would not turn over photographs of the abusive treatment of prisoners in Iraq and Afghanistan, along with those "rendered" to other countries that use torture. The Second Circuit has agreed with the ACLU that these photographs are not exempt from the Freedom of Information Act.

The case is ACLU v. Department of Defense, decided on September 22. The Iraq war has been fertile ground for litigation. This time around, it concerns controversial pictures which raised outrage when American soldiers were photographed abusing Iraqi prisoners. But, since we're at war, the government raises the defense that releasing these photographs would endanger soldiers and civilians in Iraq and Afghanistan. True, the Freedom of Information Law contains an exemption, § 552(b)(7)(F) for law enforcement records that could reasonably be expected to endanger “any individual.” The government is using that defense here, as well as the argument that FOIL protects the privacy of the prisoners depicted in the photographs. The Court of Appeals is not buying it.

The Court has to weigh the open-government philosophy of FOIL with the exceptions outlined in that statute. The notes that "Exemption 7(F) justifies withholding any law enforcement records that 'could reasonably be expected to endanger the life or physical safety of any individual.'” What does "any individual" mean under the statute? Does it include soldiers and civilians? Can it include a large class of people that cannot be identified, or specific individuals? The government argues for the "large class of people" interpretation, but the Second Circuit disagrees, reasoning:

The plain language of the phrase “endanger the life or physical safety of any individual” connotes a degree of specificity above and beyond that conveyed by alternative phrases such as “endanger life or physical safety.” It is true that the statute does not read “any named individual,” and we thus understand it to include individuals identified in some way other than by name -- such as, for example, being identified as family members or coworkers of a named individual, or some similarly small and specific group. This does not, however, mean that the “individual” contemplated by exemption 7(F) need not be identified at all, or may be identified only as a member of a vast population. To the contrary, the legislature’s choice to condition the exemption’s availability on danger to an individual, rather than danger in general, indicates a requirement that the subject of the danger be identified with at least reasonable specificity.

Accordingly, the Court holds that to justify withholding documents under this exemption, the government must identify at least one individual with reasonable specificity and establish that disclosure of the documents could reasonably be expected to endanger that individual." The government does not meet that burden in this case.

Circuit clarifies when building renovations must be ADA compliant

Disabled people sued a Montauk resort complex because it was not wheelchair accessible. Easy case, right? Not really. The Americans with Disabilities Act contains specific and complicated rules governing when these defendants are liable for disability discrimination. The Court of Appeals has untangled these rules in a lengthy opinion, Roberts v. Royal Atlantic Corp., issued on September 18.

The issue concerns when a property owner has to make the building accessible for disabled people once they make building alterations that could affect its usability. When these alterations are made, the altered portions of the building must be accessible, to the maximum extent feasible. But the property owner has a defense: the accommodations do not have to be disproportionate to the overall alterations in terms of cost and scope.

In this case, the district court dismissed the complaint after a hearing. On appeal, the Court of Appeals rules in favor of the plaintiffs. This case is unique in that, over the course of 35 pages, the Court cites very few precedents (about three or four), relying solely on the statute and regulations. That's rare for any Court of Appeals. Relying strictly on the written rules governing these disputes, the Second Circuit (Sack, Jacobs and Pooler) makes the following rulings:

First, under the law, a building is "altered" requiring the property owner to accommodate the disabled when the alterations affect the overall usability of the building. Normal maintenance doesn't count. More extensive remodeling and renovations do count. "The greater the change made by a modification to a facility or portion of the facility, the closer it is, in effect, to new construction," the Second Circuit says.

Accordingly, the Court tells us, considerations for determining whether the modifications in this case are alterations under the ADA can (but need not) include factors such as:

1. The overall cost of the modification relative to the size (physical and financial) of the facility or relevant part thereof.

2. The scope of the modification (including what portion of the facility or relevant part thereof was modified).

3. The reason for the modification (including whether the goal is maintenance or improvement, and whether it is to change the purpose or function of the facility).

4. Whether the modification affects only the facility's surfaces or also structural attachments and fixtures that are part of the realty.

Under the rules, facilities must be made accessible even if the costs of doing so are high. The property owner can get around this if handicap accessibility is "virtually impossible." In other words, "the proportionality requirement limits the extent to which supporting areas must be made accessible," the Court says.

In this case, renovations to the resort in 2000-01 were significant, requiring disabilities accommodations. Bathrooms and kitchens were remodeled, rooms were gutted and floors were replaced. Most of the rooms were so renovated, and the property owner desired to renovate rather than merely maintain the place. As defendants changed the usability of the units, they had to make them accessible for people with disabilities. On remand, the defendants have to show that they made the necessary accommodations to the maximum extent feasible. Defendants can win only if the accommodations are "virtually impossible." Excessive cost is no defense to a case like this.

As for the parking area, the issue is whether the renovations were significant enough to trigger ADA accessibility requirements. Even if the lots were not "altered" under the law, they still have to be accessible if they are within the "path of travel" to the rooms, as the law defines that phrase. They are. The parking areas connect to the public street. But the parking areas do not have to be made accessible as a whole, as the path of travel for the person traveling by car begins at the parking space.

Waterbury cannot be sued for Mayor's illegal sex acts

The Mayor of the City of Waterbury, Connecticut, forced minors to have sex in his office after he threatened to send their mother to jail. After Mayor Giordano was convicted in Federal court for these crimes, his victims sued the City for civil rights violations under 42 USC 1983. To the uninitiated, this case would be a slam dunk. But nothing is that simple.

The case is Doe v. Giordano, decided on September 11. You cannot simply sue the City when one of its employees violates your civil rights. We call this Monell liability. The employee has to be a policymaker, a legal term of art. Even a single act by a policymaker is binding on the municipality. Generally speaking, the Mayor is a policymaker. In fact, he is the chief operating officer of the municipality. Plaintiffs win, right? Wrong.

"Policymaker" carries a complicated definition. While Giordano was responsible for law enforcement and other matters relevant to the City, the plaintiffs have to show that he is an official policymaker with respect to the area of policy that encompassed his illegal acts. So, when government employees sue the City after the Mayor fires them for whistleblowing, the City is liable because the Mayor is usually the policymaker when it comes to personnel and he makes those decisions in his official capacity. That scenario happens all the time, but this case is quite different. The Mayor was acting in his personal capacity when he had unlawful sex in his office. Rather than furthering the City's business, the Mayor was advancing a purely personal agenda. There is no Monell liability here, and the plaintiffs cannot recover damages from the City.

Court dismisses more Borat claims

The Borat movie was good for a few laughs, but it also spurred many lawsuits. Bystanders who were humiliated in the fake documentary when its star, Sacha Cohen, pretended to be a foreigner studying American culture have mostly lost their cases for invasion of privacy and other torts. The latest round of cases, also alleging humiliation, have also been decided in Borat's favor.

On September 3, Judge Preska of the Southern District of New York dismissed three cases filed by seven people. The decision can be found here. Judge Preska does not seem to be a fan of the movie, which became a big hit as Borat/Cohen made an ass of himself in trying to make fun of American culture using unsuspecting civilians as props for his juvenile antics. The court wrote in an earlier Borat decision "The movie employs as its chief medium a brand of humor that appeals to the most childish and vulgar in its viewers." Having seen it, I can say that Judge Preska accurately summarizes the movie.

Not everyone thought the movie was funny. The plaintiffs certainly did not. One plaintiff, a driving instructor, was shocked when Borat began driving like a lunatic "while engaging in conversations with strangers and making derogatory and offensive remarks about sexual intercourse, Jews, women and African-Americans." An etiquette trainer was horrified when Borat humiliated them and their friends at a dinner party by insulting other guests in a locker-room kind of way. The most disgusting scenes were not described in the court ruling, I can assure you.

But the plaintiffs have a problem in suing Borat/Cohen for fraud and humiliation: they signed a release that says they can't sue him. Borat had a good lawyer advise him that you can't use people this way without having them sign a waiver. The driving instructor signed it without reading the contract because he did not bring his reading glasses. No matter. Judge Preska says the agreements are clear in warning the bystanders that they will appear in a "documentary-style film" intended "to reach a young adult audience" in a humerous way. While the plaintiffs' lawyers tried to argue that the contract was misleading, Judge Preska disagreed: "There can be no reasonable debate . . . that Borat is a film 'displaying the characteristics of a film that provides a 'factual record or report,'" albeit one of a fictional character's journey across the country. Since the fictional story is told in the style of a real one, there is nothing misleading about the contract.

The plaintiffs also argued that the agreement was a fraud because it did not alert them to the true nature of the movie. This claim dies, also. The plaintiffs signed away their right to challenge any promises about the nature of the film or the true identity of the participants in the movie.

The success of Borat suggests that others will try to replicate its success with gotcha movies of their own. Cases like this will provide guidance for lawyers hoping to prevent the movie-makers from getting sued. Judge Preska does us a favor in summarizing the terms of the agreements. There is no greater peace of mind then using the very language in your own contracts for which the courts have already given their stamp of approval.

How do you count the people in Congressional districts?

A savvy registered voter in New York brought a lawsuit challenging the constitutionality of the congressional districts in this state. His argument is that while the constitution requires that each congressional district have the same number of people, the districts are illegal because they do not have have the same number of people eligible to vote.

The case is Kalson v. Paterson, decided on September 9. As the Court of Appeals notes, "congressional districts within a state must have the same population." That way, the congressman in Manhattan wields the same power as the congresswoman in Buffalo (at least in theory, anyway). But, Judge Calabresi points out,

The Supreme Court . . . has never precisely defined what is the relevant “population” for the purposes of apportioning congressional representation. And, behind this case there lies a theoretically difficult question, whether congressional districts must be of the same total population — the number of residents within each district — or some different population that represents the number of votes cast in each district. Put differently, this is a choice between two conceptions of democratic equality, "electoral equality” and “equal representation.”

In other words, how do we classify "population": by the number of people in the congressional district, or by the number of people who are eligible to vote? The question is important, because the plaintiffs says that, since other districts have fewer registered voters, his vote actually has less weight than those cast in other districts.

A judge in the district court dismissed the case, hence this appeal. The Court of Appeals deems this an interesting case, and it is, although the Supreme Court hinted in 1969 that the plaintiff is probably wrong. At best, the Second Circuit says, this case is not obviously frivolous. Before the Court can deal with this issue, though, it has to resolve a procedural problem: cases like this should be handled by three district court judges before they reach the Court of Appeals, unlike 99 percent of all other cases which go before one district court judge. No one asked for a three-judge panel, and that normally prevents the Second Circuit from even hearing the case if, and only if, the case has a substantial basis in law. Put another way, if the case is weak, it does not matter that no three-judge panel was convened.

So the Second Circuit is tasked with determining whether this case is substantial or not, as opposed to determining whether the plaintiff should win the case and on what legal basis. The Court says this case is not substantial, however, excusing the lack of a three-judge panel in the district court and ruling against the plaintiff on the merits. Judge Calabresi reaches this conclusion because "Plaintiff does not assert that voting age is the best available proxy for actually equal voting power." The Court adds,

Even assuming, arguendo, that districts must be apportioned to create, or even just to approximate an equal number of voters, it does not follow at all that districts should be apportioned by voting-age population. Were it true, as Plaintiff argues, that [the Constitution] creates an individual right to an equally weighted vote, that right is not vindicated by having districts of equal voting-age population. Many persons of voting age cannot vote, such as felons, ex-felons, and noncitizens, and many eligible voters choose not to vote.

Due process satisfied in property foreclosure

What does "due process" mean? Questions like that are being asked this week as law schools begin yet another semester. The point is that a very brief reference to due process of law in the Fourteenth Amendment can give rise to volumes of case law, as due process very often is in the eye of the beholder. The Second Circuit further defines due process in holding what prior notice is required when the County wants to foreclose on a home.

The case is Miner v. Clinton County, decided on September 5. The County wanted to proceed with foreclosure against a homeowner who allegedly did pay property taxes. There is no dispute that the home is a property interest which requires some due process before the government can take it away. The question is what pre-deprivation notice is required before the County can seize the property?

The Second Circuit holds that the homeowner does not have a right to actual notice of foreclosure. Instead, "they are entitled to notice that is reasonably calculated under the circumstances to reach the intended recipients, alert them to a pending foreclosure, and advise them of an opportunity to be heard." In this case, the notice of foreclosure was sent to the plaintiff's house in Staten Island (the foreclosure property is in Clinton County, upstate New York), and someone signed for the letter, though the signature was illegible. The County Clerk's office assumed that the plaintiff received notice, but when the taxes were not paid, the County foreclosed on the property.

The County acted reasonably, the Court of Appeals held. Prior letters sent to the Staten Island address were never returned, and the Clerk's office relied on the Post Office's representation that the foreclosure letter was actually delivered.

The law in this area is always a little fuzzy. Citing Supreme Court case law, the Court of Appeals states that "In the context of real estate foreclosures, due process does not require actual notice. Rather, the government must provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."

But the plaintiff's lawyer was resourceful, finding a case from 1956 that gives the plaintiff some wiggle room. The Second Circuit is not buying it: "Although some courts have held the absence of a signature on a delivery receipt may defeat a presumption of delivery, see, e.g., Moore v. Dunham, 240 F.2d 198, 199 (10th Cir. 1956) (holding that, under Oklahoma law, an unsigned return receipt was insufficient to establish valid service), we can find no support for the proposition that the signature must be identifiable."

Can a non-custodial parent bring a lawsuit under the IDEA?

The law governing the education of disabled students is sufficiently complicated that even experienced lawyers tear their hair out trying to make sense of its provisions. This is particularly true since the Individuals With Disabilities in Education Act ("IDEA") must be interpreted in light of State education law, which includes lengthy and convoluted regulations. What this means is that when the Second Circuit came upon an IDEA case that touched upon State education law, the Court referred it to the New York Court of Appeals for a ruling that clarifies certain issues so that the Second Circuit can issue a proper decision.

The case is Fuentes v. Board of Education of the City of New York, decided on August 26. The issue here is typical of many IDEA cases: a parent who is dissatisfied with the educational placement of his disabled child is suing the school in order to get the proper benefits. The problem here is that the parent-plaintiff is the child's non-custodial parent. The IDEA allows parents to sue on behalf of their children, but that law does not clearly identify who is a "parent." In other words, "parent" is a term of art under the IDEA. But the law does not speak to this situation: a non-custodial parent who wants to sue over his child's education. As the Second Circuit (Walker, Calabresi and Raggi) states:

The parties’ briefing and our own research have not uncovered controlling precedent from the New York Court of Appeals as to whether the biological and non-custodial parent of a child retains the right to participate in decisions pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the right to control education decisions.

Ultimately, this is a matter of State law. Although the IDEA is a Federal statute, education is primarily a State function and the IDEA borrows many State educational concepts. While some of the mid-level appellate courts in New York have ruled on the issue (holding that the non-custodial parent does not have the right to bring a case like this), the New York Court of Appeals has not definitively resolved this issue. The Second Circuit explains, "While we might normally accept the unanimous decisions of two departments of the Appellate Division as sufficiently determinative to allow us to decide this case, we are reluctant to take that final step in the absence of a Court of Appeals pronouncement because the ruling has broad implications affecting the custodial arrangements in New York–-a matter of paramount state concern."

The Second Circuit is therefore exercising its authority to certify the issue to the New York Court of Appeals for a ruling on this issue. The file is now sent to the New York Court of Appeals in Albany. When that court issues a ruling, the case returns to the Second Circuit which will apply the authoritative decision by the New York Court of Appeals.