Circuit rejects Syrian rendition/torture claim

The War on Terror continues to produce contentious but interesting rulings from the Second Circuit. Today, over a lengthy dissent by Judge Sack, the Court of Appeals holds that a dual citizen of Syria and Canada cannot sue American officials for constitutional violations flowing from their decision to remove him to Syria after denying him entry to this country because of his alleged ties to al Qaeda.

The case is Arar v. Ashcroft, decided on June 30. As Judge Cabranes writes for the majority, "Arar alleges that [defendants] mistreated him while he was in the United States and then removed him to Syria with the knowledge or intention that he would be detained and tortured there."

The claim under the Torture Victims Protection Act fails because, while he alleges that defendants removed him to Syria with the knowledge or intention that Syrian authorities would interrogate him under torture and that defendants also gave Syrian authorities information about him and suggested subjects for Syrian authorities to interrogate him about, the plaintiff does not contend "that defendants possessed any power under Syrian law, that their allegedly culpable actions resulted from the exercise of power under Syrian law, or that they would have been unable to undertake these culpable actions had they not possessed such power."

The plaintiff also cannot maintain a Bivens action against U.S. officials. A Bivens claim allows the victims of a civil rights violation to sue federal officials. But Bivens remedies are quite limited, as any experienced civil rights lawyer can tell you. One reason for this is that the Supreme Court instructs that Bivens claims must fail if there is another way for the plaintiff to gain relief, even if that relief is relatively limited. Here, the Immigration and Nationalization Act offers the plaintiff some relief. That kills the Bivens claim, which normally would provide for the full range of damages. While the plaintiff argues that federal officials interfered with his right to pursue relief under the INA, the Second Circuit adopts the reasoning of the Eighth Circuit in holding that, at best, the plaintiff can sue for a due process violation arising from that interference. But, the Court of Appeals is "reluctant to permit litigants to avoid congressionally mandated remedial schemes on the basis of mere allegations of official interference."

Another reason the plaintiff can't win is that a ruling in his favor would interfere with U.S. foreign policy and national security. Time and time again the courts have declined to entertain such claims for that reason. The Second Circuit reminds us: "The Supreme Court has observed on numerous occasions that determinations relating to national security fall within 'an area of executive action in which courts have long been hesitant to intrude.'” The crux of the Second Circuit's reasoning follows:

this suit arises from the Executive Branch’s alleged determination that (a) Arar was affiliated with Al Qaeda, and therefore a threat to national security, and (b) his removal to Syria was appropriate in light of U.S. diplomatic and national security interests. There can be no doubt that for Arar’s claims to proceed, he must probe deeply into the inner workings of the national security apparatus of at least three foreign countries, as well as that of the United States, in order to determine the basis for his alleged designation as an Al Qaeda affiliate and his removal to Syria via Jordan despite his request to be removed to Canada.

As any judicial inquiry into the plaintiff's claims would require the court to delve into national security issues and potentially disrupt the effective functioning of U.S. foreign policy, his claim must be dismissed.

Age discrimination can violate Section 1983

The rules of the game if you want to file an age discrimination case in Federal court include filing a discrimination complaint with the Equal Employment Opportunity Commission. Then you have to wait two months before you can bring the lawsuit, giving the EEOC an opportunity to investigate and possibly resolve the claim. But there is another way: Section 1983.

The Supreme Court has never taken up this issue, but in the Second Circuit, the district courts for the most part are allowing plaintiffs to litigate their age discrimination claims under the Equal Protection Clause of the Constitution, enforceable through Section 1983. Other Circuits have held that you can't do this, because the Age Discrimination in Employment Act is sufficiently comprehensive to preeempt Section 1983 (the general civil rights law which allows you to enforce your federal rights in court). See, e.g., Zombro v. Baltimore City Police Dep't, 868 F.2d 1364, 1366-67 (4th Cir. 1989) (availability of the ADEA's detailed procedures forecloses age discrimination claim brought under § 1983 because a plaintiff may not "cavalierly bypass the comprehensive process fashioned by Congress in the ADEA"). But for the time being, in the Second Circuit, you can litigate both under the ADEA and Section 1983.

This issue was brought to life once again recently in Shapiro v. New York City Department of Education, 2008 U.S. Dist. LEXIS 46327 (S.D.N.Y. 2008), decided on June 16. My office co-represented the plaintiffs in Shapiro. In that case, some of the plaintiffs did not file EEOC complaints. Their only remedy for the age discrimination against their government employer, then, was Section 1983. This statute holds that state actors who violate your civil rights can be sued in court for damages. There is no damages cap under Section 1983, which also offers punitive damages and attorneys' fees. It also has a longer statute of limitations than the ADEA: three years to 300 days.

Why can plaintiffs sue both under the ADEA and Section 1983? Because the Second Circuit held in 1993 that race and gender discrimination, normally litigated under Title VII of the Civil Rights Act of 1963, may also violate the Equal Protection Clause. That case was Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134 (2d Cir. 1993), which held that Title VII did not preempt a § 1983 claim for gender discrimination in violation of the Equal Protection Clause of the Constitution. As the district courts in the Second Circuit have held that age discrimination claims against the government may be litigated under the Constitution, see, e.g., Purdy v. Town of Greenburgh, 166 F. Supp. 2d 850 (S.D.N.Y. 2001), Judge Rakoff adopts the reasoning in those cases and allows the plaintiffs' Section 1983 claims in this case to go forward.

A discrimination complaint can take on a life of its own

In retaliation cases filed under the employment discrimination laws, the plaintiff can win the case by showing that management punished him for complaining about discrimination. In that sense, the cover-up can be worse than the crime, and the retaliation itself gives the plaintiff two cases: one for the initial discrimination and another for the retaliation. The tricky part for the plaintiff is sometimes proving that the right people knew about the initial discrimination complaint. If the decisionmaker was not unaware of the complaint, he can't be responsible for retaliation.

The Second Circuit, however, holds that "general corporate knowledge" is enough to prove that the right people knew about the initial discrimination complaint. The idea is that a complaint to one member of management will become known to others in the management hierarchy. In other words, the discrimination complaint can take on a life of its own. This makes sense. When someone in the workplace complains about discrimination, anyone of importance in the workplace will likely find out about it. Discrimination complaints are not like other complaints. Discrimination complaints represent fighting words, and management not only takes them seriously, they may take it personally.

This played out in a case that went to trial in the Eastern District of New York, where the judge dismissed one of the claims because certain decisionmakers were not aware of the plaintiff's discrimination complaint, which got them off the hook for retaliation. The Second Circuit reversed, in an unpublished summary ruling.

The case is Triola v. Snow, decided on June 26. Summarizing the reasoning of the trial court, the Court of Appeals (Straub, Sack and Kravitz) noted:

The district court found that there was "no evidence that Joseph King, Mr. Triola's immediate supervisor, was aware of the informal complaint that [Mr. Triola] filed on May 8, 1998 or of his meeting with the EEO counselor on that date." Rather, the court, relying on Mr. King's affidavit, found that Mr. King first became aware of Mr. Triola's complaint on November 25, 1998. Accordingly, on the ground that Mr. Triola had failed to establish the knowledge requirement of a prima facie case of retaliation, the court dismissed Mr. Triola's claims of retaliation prior to November 25, 1998.

However, the Court reiterated its longstanding rule that "neither this nor any other circuit has ever held that, to satisfy the knowledge requirement, anything more is necessary than general corporate knowledge that the plaintiff has engaged in a protected activity. Rather, the knowledge element is satisfied when a plaintiff has complained directly to another employee whose job it was to investigate and resolve such complaints."

Since the plaintiff in this case met with an in-house Equal Employment Opportunity officer to complain informally about discrimination, we may assume that the complaint made its way to the decisionmakers -- in particular a Mr. King -- who subjected the plaintiff to an adverse employment action. Since the district court ignored the Second Circuit's rule about "general corporate knowledge" governing discrimination complaints, the case returns to the trial court to "consider whether Mr. Triola proved a causal connection between his protected activity and the adverse action, and whether retaliation played a motivating role in Mr. King's action."

New hearing ordered for Section 8 benefits

Article 78 is a procedure under New York law allowing you to challenge a government decision as arbitrary and capricious. These actions are expedited but difficult to win, as the courts assume that administrators and government officials are acting in good faith. They are equally hard to win in the context challenging an adverse decision at an evidentiary hearing, where the hearing officer can weigh the evidence and assess credibility, judgments which are impossible to attack on appeal.

If you lose an administrative hearing, whether it involves the loss of government employment or benefits, you can appeal in two ways: lack of evidence or a technical legal basis, usually involving due process. Most lawyers will tell you that the evidentiary basis is truly an uphill battle. Any evidence is usually enough to sustain the adverse decision, even if your side produced convincing evidence, as well.

These cases usually win on legal grounds, if they win at all. That's what happened in Matter of Chavis v. City of Poughkeepsie Office of Social Development, decided on June 17. My office represented Chavis in this appeal, argued in February 2008. The City revoked Chavis's Section 8 housing benefits after accusing her of improperly allowing her estranged husband to live in the subsidized apartment. The hearing officer told Chavis's (non-lawyer) representative that she could not represent Chavis at the hearing because the representative wanted to testify about the dynamics of domestic violence and how that factored into the allegations. As it happend, the hearing officer then decided that he did not need that insight into domestic violence, after all. As Chavis is developmentally disabled, she had to represent herself at the hearing, never a good strategy in light of the potential consequences, i.e., the loss of these important housing benefits. The Appellate Division concluded:

The hearing officer abused his discretion in his rulings concerning the petitioner's advocate, Priscilla Taylor, among which was her exclusion from the proceeding in her capacity as the petitioner's advocate. Therefore, under the unique circumstances of this case, we annul the determination confirming the termination of the petitioner's participation in the Section 8 Housing Choice Voucher Program and remit the matter to the respondents for a new fair hearing at which the petitioner can be properly represented either by an assigned attorney or the advocate or advocates she sought to have represent her at the original hearing on this matter.

The public debate over en banc review of firefighters' employment case continues

The Court of Appeals is in the middle of a catfight over whether to hear a case en banc. The en banc process involves having all the judges on the Second Circuit hear and decide a case rather than the three judges who hear a given case at random. The idea is that the issue raised in the case is so important that the entire Court of Appeals (about 15 judges) should hear and decide the issue.

The Second Circuit is notorious for denying nearly every request for en banc review. Other Circuits are more generous in this regard. Still, the Second Circuit's stingy en banc practice does not stop attorneys from getting that second bite at the apple. We've all been there. Appellate attorneys always want their cases heard en banc, especially when their cases run up against a Second Circuit precedent which can only be set aside through en banc review or the Supreme Court. Without regular en banc cases, old precedents of the Second Circuit remain the law of the Circuit for years.

The Court of Appeals recently issued a some written opinions from the judges over whether to hear an employment discrimination case en banc. The case involves a municipality's determination to put aside test scores for a firefighter's position because the test had a disparate impact on racial minorities. The City took facially-neutral but race-conscious measures to avoid liability. The City did this because Title VII of the Civil Rights Act of 1964 recognizes the "disparate impact" theory of liability if the test is not sufficiently job-related for the position.

Separate opinions have been streaming out of the Court of Appeals over the past week. Today's entry is from Dennis Jacobs, the Second Circuit's chief judge. What makes Judge Jacobs' opinion dissenting from the Court's determination not to hear the case en banc is that the Court is not hearing enough cases in this posture. He notes that "The grant or denial of in banc review is governed by [Rule] 35, which says that in banc rehearing is disfavored--unless such review is needed for coherence of the Court’s decisions or 'the proceeding involves a question of exceptional importance.'" He suggests that other judges on the Court are going out of their way to deny en banc petitions when the Court of Appeals should be taking up those cases. While the judges have discretion not to hear cases en banc,

No doubt, the proper exercise of discretion results in the denial of review in the overwhelming number of cases. And the resulting pattern may resemble the pattern of denial that would result from saying “no” by tradition. But the decision to grant or deny in banc review is like any other discretionary decision in the sense that discretion should be exercised, not elided or stuck in a default position.

While some judges believe that an issue of overriding importance should be heard by the Supreme Court, Judge Jacobs offers a cogent response:

I do not think it is enough for us to dilate on exceptionally important issues in a sheaf of concurrences and dissents arguing over the denial of in banc review. If issues are important enough to warrant Supreme Court review, they are important enough for our full Court to consider and decide on the merits. . . . [T]o rely on tradition to deny rehearing in banc starts to look very much like abuse of discretion.

Rare public debate among 2d Circuit judges in Title VII en banc denial

For most of us, losing a case in the Court of Appeals means the end of the case. The Supreme Court takes very few cases these days, and the Court of Appeals rarely grants en banc review, where the entire court, as opposed to the three judges who sat on the case, take up the issue anew. That doesn't stop people from seeking en banc review. But it's the rare en banc petition that produces dissenting opinions from the judges who want the entire Court of Appeals to re-hear the case. That happened on June 12, when the Court of Appeals declined to re-hear an employment discrimination case that holds that a public employer, faced with a prima facie case of disparate impact liability, may take facially neutral, but race conscious, measures to avoid such liability.

The case is Ricci v. DeStefano. The original panel decision is here. That ruling succinctly held as follows:

Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the [Civil Service] Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

And that was that, all of two pages. But there was more to this case, as the June 12 en banc decisions reveal. In fact, there is 72 pages worth, including the reprint of the district court opinion. Several judges on the Court of Appeals want to the entire Second Circuit to re-hear the case. The debate on this issue is here. Led by Judge Katzmann, five judges state that there is no reason to re-hear this case because the Second Circuit rarely engages in that practice, and a petition for Supreme Court review is pending. Led by Judge Parker, five judges (a slightly different lineup) argue that the panel decision is actually consistent with Second Circuit precedent, so this case is not that unique.

However, in objecting to the en banc denial, led by Judge Cabranes, six judges argue that this case raises important questions of first impressions for this Circuit: "may a municipal employer disregard the results of a qualifying examination, which was carefully constructed to avoid race-neutrality, on the ground that the results of that examination, yielded too many qualified applicants of one race, and not enough of another?" These judges further object that the panel's decision is too short and does not adequately address the important issues raised here.

"Class of one" claims not appropriate for public workers

In 2002, the Supreme Court held that you can sue the government under the Equal Protection Clause of the U.S. Constitution if it treats you differently than other people without any rational basis. The Supreme Court called those cases "class of one" cases because all it takes is one person to show that the government is treating people arbitrarily. That case was Willowbrook v. Olech, 528 U.S. 562 (2002). The Court now holds that "class of one" cases are not appropriate for public employees who were treated arbitrarily at work.

The case is Enquist v. Oregon Dept. of Agriculture, decided on June 9. There are relatively few remedies available to public employees who are fired for no good reason, especially if they can't prove their terminations were motivated by race, gender, religion or certain forms of whistleblowing. So when the Supreme Court issued Olech in 2002, plaintiffs tried to show that their arbitrary treatment at work violated the Equal Protection Clause in that other employees were treated more favorably. Those cases are now behind us.

Speaking for the Court, Chief Justice Roberts notes that the government has more leeway than the private sector in managing its operations, and that public employees have fewer rights than everyone else. The Court cites cases holding, for example, that public employees have diminished rights under the Constitutional provisions governing search and seizure, due process and whistleblower rights. The Court summarizes the state of the law in this area:

Our precedent in the public-employee context therefore establishes two main principles: First, although government employees do not lose their constitutional rights when they accept their positions, those rights must be balanced against the realities of the employment context. Second, in striking the appropriate balance, we consider whether the asserted employee right implicates the basic concerns of the relevant constitutional provision, or whether the claimed right can more readily give way to the requirements of the government as employer.

O.K., you may say, the government has leeway to manage its operations. What about the "class of one" theory in Olech which says that the government cannot treat people arbitrarily? The answer is that this theory does not work in the employment context because management normally has discretion to treat workers differently; that's the reality of the workplace. Olech and other cases recognizing the "class of one" theory involved the government misapplying its written classifications and regulations, usually dealing with property and taxation. Recognizing that this decision represents a departure from the Supreme Court's usual rules for "class of one" cases, the Chief Justice writes:

What seems to have been significant in Olech and the cases on which it relied was the existence of a clear standard against which departures, even for a single plaintiff, could be readily assessed. There was no indication in Olech that the zoning board was exercising discretionary authority ...

In contrast to the set rules that government officials must follow in zoning, taxation and other areas, in the public employment context those rules usually don't exist. So, when the government decisionmaking is subjective and individualized, public officials can treat people differently in light of the discretion they normally enjoy in managing their operations. In this employment case, since public officials may treat their workers differently in light of those subjective assessments, the plaintiff here, a plaintiff who claims she was treated shabbily at work can't bring a "class of one" case under the Equal Protection Clause. Instead, the Court reasons, she can get relief through other means, presumably through the union or a formalized grievance process.

Ripeness knocks out NYCLU's free speech suit

Mootness and ripeness may not be the most exciting areas of civil rights law, but if you can't get past mootness and ripeness, the court will not address the merits of your case, and it gets dismissed on those procedural, or technical, grounds. That's what happened last week, when the New York Civil Liberties Union sued the State Lobbying Commission under the First Amendment.

The case is New York Civil Liberties Union v. Grandeau, decided on June 6. NYCLU ran a billboard in Albany endorsing free speech rights in private shopping malls. (The Supreme Court and New York Court of Appeals have held that the First Amendment does not apply on private property, including malls and shopping centers. I was on the losing end of this issue in 2007, when anti-war protesters were sued by a shopping center). This billboard grew out of a controversy when a man was kicked out of the Crossgates Mall in Albany for wearing an anti-war shirt.

As an organization that lobbies the State Legislature to pass certain laws, NYCLU has to report that lobbying activity to the State Lobbying Commission. It did not report the billboard to the Commission even though, at the time NYCLU ran the billboard, a State legislator was sponsoring a bill that would have extended free speech rights to shopping malls. When the State Lobbying Commission demanded that NYCLU account for this billboard in its annual lobbying report, NYCLU sued under the First Amendment, claiming that the lobbying rules did not cover the billboard which made no reference to the proposed legislation and that the State was unconstitutionally forcing it to report this non-lobbying political activity.

Sounds like a great case, except that the State backed off and decided that the billboard was not covered under the lobbying rules after all. So, is the case moot under the circumstances? No, says the Court of Appeals (Sotomayor, Raggi and Gleason), which holds that the case still presents a live controversy because the State more broadly interprets the lobbying law to cover non-legislative advocacy such as the billboard and other activities. Also, the Commission backed off only because it determined that NYCLU had not paid for the billboard. It still disagrees with NYCLU over what activities are reportable. The case is not moot.

But the case is not ripe, either, and that dooms the lawsuit. The ripeness question asks whether its too early to bring the lawsuit. The Commission's policy over reportable activity is too vague for the court to intervene, and it is unclear whether NYCLU is actually challenging State policy, or whether it's merely hanging its hat on deposition testimony from a State official. Since judicial review into this issue would benefit from additional factual development, i.e., an actual inquiry by the Lobbying Commission into NYCLU's endeavors, the case is not ready for judicial resolution.

Yoko Ono loses copyright suit over "Imagine"

The copyright laws are not absolute. Someone can use copyrighted materials provided it complies with the "fair use" rule. This rule protects the copyright holder from unauthorized exploitation of your creative expression but also allows everyone else to use portions of that creativity for other artistic purposes. So it's a battle between property ownership and free expression. Yoko Ono learned this the hard way on June 2, 2008.

The case is Lennon v. Premise Media, 2008 U.S. Dist. LEXIS 42489 (S.D.N.Y. June 2, 2008). Yoko has exercised strict control over John Lennon's musical legacy ever since he was murdered in December 1980. That's a good thing. Beatles fans have been subjected to very few frivolous compilation albums and other marketplace garbage that can truly tarnish the legacy of an accomplished artist. So when she learned that conservative commentator Ben Stein was using portions of Lennon's classic song "Imagine" in a movie, "Expelled," promoting "intelligent design" over evolution, she brought a lawsuit alleging copyright infringement. The court ruled against her.

The movie features a few seconds of Imagine during a sequence that suggests that its utopian and anti-religious lyrics are consistent with totalitarian dictatorships. Of course, this use of Imagine is probably in violation of everything that John Lennon stood for. Probably what equally offended Yoko was that Imagine is one of John Lennon's most popular songs. But under the "fair use" doctrine, it's permitted, so long as the unauthorized use is "transformative." This means that they can use parts of the song in the interests of "criticism, comment, news reporting teaching . . . scholarship or research." It's the reason why book reviewers can quote from a book during a negative book review. In our case, according to the district court:

Defendants' use is transformative because the movie incorporates an excerpt of "Imagine" for purposes of criticism and commentary. The filmmakers selected two lines of the song that they believe envision a world without religion: "Nothing to kill or die for/ And no religion too." As one of the producers of "Expelled" explains, the filmmakers paired these lyrics and the accompanying music to a sequence of images that "provide a layered criticism and commentary of the song." The Cold War-era images of marching soldiers, followed by the image of Stalin, express the filmmakers' view that the song's secular utopian vision "cannot be maintained without realization in a politicized form" and that the form it will ultimately take is dictatorship. The movie thus uses the excerpt of "Imagine" to criticize what the filmmakers see as the naivete of John Lennon's views. Indeed, much of defendants' asserted purpose for
excerpting the song is apparent from a viewing of the movie.

The excerpt's location within the movie supports defendants' assertions. It appears immediately after several scenes of speakers criticizing the role of religion in public life. In his voiceover, Ben Stein then connects these sentiments to the song by stating that they are merely "a page out of John Lennon's songbook." In defendants' view, "Imagine" "is a secular anthem caught in a loop of history recycling the same arguments from years past through to the present. We remind our audience that the ideas they just heard expressed from modern interviews and clips that religion is bad are not new and have been tried before with disastrous results." The filmmakers "purposefully positioned the clip . . . between interviews of those who suggest that the world would be better off without religion and an interview suggesting that religion's commitment to transcendental values place limits on human behavior. .
. . mak[ing] the point that societies that permit Darwinism to trump all other authorities, including religion, pose a greater threat to human values than religious belief."

In other words, the filmmakers can use Imagine to suggest that Lennon didn't know what he was singing about in criticizing religion and that his point of view has proven disastrous. Beatles fans may be outraged over this argument, but it's not illegal for the filmmakers to use the song for that purpose. Since the movie promotes the concept that a God-like force created humanity as opposed to evolution, using a brief portion of the song is a "fair use," even though the song is put to use that contradicts its utopian expression.

It's never too late to hold that a statute is illegal

The New York City Housing Maintenance Code contains a provision (Section 27-2076(b)) which prohibits children under 16 years of age from living in a single room occupancy (SRO), i.e., rooming units without kitchen or sanitary facilities. That law was enacted in 1960. In 2008, a Federal court ruled that this law might violate the Fair Housing Act.

The case is Sierra v. City of New York, 2008 U.S. Dist. LEXIS 38757 (S.D.N.Y. May 14, 2008). At the time, this law seemed like a good idea. Children shouldn't live under these potentially unsanitary conditions, and the law was intended to protect them. The problem is that eight years later, Congress passed the Fair Housing Act, which makes it illegal to refuse or deny housing to anyone because of their familial status. The NYC housing law is facially discriminatory under the Fair Housing Act because it prohibits certain families from living in SRO's. Faced with this conflict, Judge Jed S. Rakoff sides with the Sixth, Ninth and Tenth Circuits in holding that the City law should be reviewed under "heightened scrutiny" and not the rational basis test adopted by the Eighth Circuit. This means that the City has a greater burden in justifying the SRO law.

That will not be easy, Judge Rakoff finds. The City's rationale for the SRO law may be legitimate in theory, but not in practice. Evidence before the judge suggests that landlords are both ignoring the law when they rent to families and then seek to have these low-income tenants evicted when the landlord has the opportunity to earn more money from the apartment. That tactic harms children because the family is forced into homelessness, "a condition far more detrimental to children's safety than living in SRO's," Judge Rakoff observes.

The court is not yet ready to find the SRO law illegal. In preparation for an injunction hearing, the parties have an opportunity for limited discovery on such issues as how often landlord kick poor families from the SRO's, and the living conditions of these families afterwards.