No harm, no foul, no First Amendment case

The First Amendment makes it illegal for the government to retaliate against you for engaging in free speech. This issue usually arises in the context of public employees who blow the whistle on government misconduct. This time around it's different. It concerns a guy who sued the Town of Ridgefield, Connecticut.

The case is Tuccio v. Marconi, decided on December 18. Tuccio is a developer. He filed a lawsuit against a Town police officer. At the same time, he was trying to get a permit to use the municipal sewer system for his project. When the Board denied his request for the permit, he brought a retaliation suit in federal court, claiming the Town held the police case against him. Then, with the retaliation suit pending, Tuccio asked for a meeting with the Town's director of planning and zoning. The Town's lawyer objected to this and said that Tuccio should only communicate with her in writing. According to Tuccio, other Town officials also declined to meet with him.

So does Tuccio have a case? No. Well, yes and no. The case went to trial, and Tuccio won (winning $1 in damages). Then the trial court vacated the jury's verdict under Rule 50, "finding that plaintiff's evidence did not reasonably support a verdict in his favor." The Court of Appeals (Leval, Cabranes and Livingston) affirms, and Tuccio experiences the ultimate disappointment. He wins at trial but in the end he gets nothing.

Under Second Circuit authority, "our constitutional doctrine prohibits government officials from punitive retaliation against persons who exercise their First Amendment right to sue the government." That's the rule in Dougherty v. Town of N. Hempstead Board of Zoning Appeals, 282 F.3d 83 (2d Cir. 2002). If Town officials would not meet with Tuccio in retaliation for his lawsuits, why doesn't he have a case? Because there are limits to retaliation cases. The meetings which Tuccio wanted with Town officials were not that important. At the time of the proposed meetings, Tuccio had no business with the Town, and while he wanted a "sit down" with one of them, the record is devoid of any reason for that meeting. He was neither denied access to any public meetings nor any business opportunities. The meeting denials were trivial.

Instead, the Town attorney was being cautious: he did not want Town officials to meet with a guy who was suing the Town. Not a bad strategy, the Court of Appeals says. Allowing public officials to have meetings like this with a litigation adversary can only mean trouble, for reasons that any lawyer can tell you. God knows what the municipal official might say to a litigation adversary. It could hurt the Town and come out at trial. Since the meeting denials caused no harm, and balancing that against the Town lawyer's prudent refusal to allow public officials to meet with Tuccio, the plaintiff has no case under the First Amendment. No harm, no foul.

What does it take to nudge an Iqbal claim across the finish line?

When the Supreme Court handed down Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) a few months ago, all the attention focused on Iqbal's failed attempt to blame former Attorney General John Ashcroft for Iqbal's detention in the aftermath of the 9/11 attacks. Civil litigators took away a different lesson from Iqbal: it got a little easier for trial courts to dismiss lawsuits without discovery. It is not enough for lawsuits to allege a conceivable civil rights violation; the lawsuit must allege a plausible violation. If you think this is a distinction without a difference, keep reading.

The case is Rutherford v. Katonah-Lewisboro School District, 2009 WL 3755382 (S.D.N.Y. Nov. 3, 2009), a case decided by Judge McMahon. This case is notable for other reasons, discussed here, but it also highlights what Iqbal has done to some civil rights cases. This case arises from allegations that a school teacher behaved inappropriately at a science fair. Judge McMahon starts off by observing that "in the suburbs, where education is the only priority, there us hyper-sensitivity on the part of all concerned whenever something remotely out of the ordinary happens at local schools."

The strange event here was that Rutherford allegedly destroyed student work and raised her voice. The school board decided to send her to a medical examination to see if she was physically or mentally fit to perform her duties. The board referenced this on its website, though it did not mention Rutherford by name, calling her only "Employee No. 785." She claims in the lawsuit that the school board stigmatized her with an allegation of mental instability only because the parents of the students who accused her of losing it at the science fair were on the school board.

Although Rutherford claims that the website reference violated her right to medical privacy and shocked the conscience in violation of the Fourteenth Amendment, she cannot proceed with this claim. Judge McMahon notes that Iqbal changes the ground rules for surviving a motion to dismiss. You have to allege enough facts to "nudge [its] claims across the line from conceivable to plausible." Conceivable is not the same thing as plausible. A rough way to see it is this way: conceivable means perhaps a 40 percent chance that the allegations support a claim. Plausible means greater than 50 percent.

Judge McMahon suggests that Rutherford's privacy and "shocks the conscience" claims are conceivable. But not plausible. The Complaint suggests that the school board did not intend to humiliate plaintiff; the website reference did not mention her name or gender. While the Complaint alleges that the school board acted "maliciously," without allegations to back it up, this buzzword is not going to cut it in the post-Iqbal world. The court adds, "It is simply not possible to infer malice from nothing more than the fact that the complaining children were the children of a board of education member. ... [W]hile it is conceivable that Defendants could have acted from the base motive of wanting to appease the complaining children's parent, no fact alleged in the complaint makes it plausible to think that Defendants did so."

School teacher hit with gag-order does not have First Amendment claim

A school district disciplined one of its teachers after she allegedly destroyed student work and raised her voice at a science fair. The district placed her on paid administrative leave and directs her "to have no further communication with any District employee," including "any verbal, written or electronic communication whatsoever" during her suspension. Is this an unconstitutional gag order in violation of the First Amendment?

The case is Rutherford v. Katonah-Lewisboro School District, 2009 WL 3755382 (S.D.N.Y. Nov. 3, 2009) a district court case decided by Judge McMahon. Plaintiff argues that this speech restriction violates the First Amendment because it violates the right of free association in that she cannot communicate with a union representative, who was a district employee. (Another issue of interest in this case -- the right to privacy -- will have to wait for now).

In resolving this issue, Judge McMahon is faced with a quandary: in public employee First Amendment cases, the courts require that the plaintiff establish that she was silenced on a matter of public concern. That issue typically arises when the plaintiff is retaliated against, i.e., she is demoted or fired for blowing the whistle. That did not happen here; rather, the gag order prevents plaintiff from speaking. Does the public concern test apply in this context? After providing a good overview of the state of the law in this area, the district court says "yes." If the public concern test arises in freedom of association cases involving retaliation, then it must apply in this case, where the plaintiff is simply prohibited from speaking to certain people. This is a complicated issue; the Second Circuit has never dealt with this precise point. But over the years, the courts have emphasized that there is no hierarchy among First Amendment rights in that there is no greater right to speak than there is to petition the government for grievances. The trend in "gag order" cases and freedom of association cases is to apply the "public concern" test in this context; Judge McMahon does so here. A contrary holding would give employees greater rights to associate than to speak out.

In framing the test this way, Judge McMahon dismisses the Complaint on this point. Plaintiff was not prohibited from engaging in associational matters on a public concern. Barring her from speaking to the union (if, in fact, that was the school district's intention) does not silence plaintiff on a matter of public concern because "the only reasonable inference that can be drawn from the pleadings is that Plaintiff's desire to communicate with her union representative was motivated by her own self-interest, not by any desire to vindicate federally protected labor relations policies. There is simply nothing in the complaint that suggests Plaintiff wished to confer wit her union representative about anything other than 'her desire to protect her job and/or her reputation as a schools counselor.'"

Moving right along, the district court next rejects the argument that the gag order is illegal because the school district, through the union contract, agreed that employees can speak with the union about personnel matters. A Tenth Circuit case supports this analysis, Shrum v. City of Coweta, 449 F.3d 1132 (2006), but Judge McMahon declines to follow Shrum because it is poorly-reasoned in that it misapplies Supreme Court authority which requires that courts resolve the threshold issue of whether the protected association impacts on a matter of public concern. (For you First Amendment mavens, it appears that the Tenth Circuit applied the Pickering balancing test -- involving potential disruption of school district functions arising from the speech -- rather than the public concern test).

In the end, the district court notes that she is not crazy about the attorneys' briefing in this case, and that "the parties have barely begun to scratch the surface of the issues presented by Shrum." No matter. Plaintiff ultimately must lose this issue on qualified immunity grounds. As readers of this blog may know, qualified immunity means public officials cannot be sued for damages if the claimed legal violation was not clearly-established at the time. There are no cases quite like this one in the Second Circuit, which means the law in this area is not clearly-established and the defendants cannot be expected to know the full contours of the law. However interesting Rutherford's freedom-of-association case may be, for now, that claim is too esoteric for her to prevail as a matter of law.

Second Circuit revives disability discrimination case

The Court of Appeals has been broadly interpreting the federal disability discrimination laws lately. A few months ago, it ruled that the children of hearing-impaired parents could sue a hospital under the Rehabilitation Act because they were required to interpret for their parents after their father underwent an emotional procedure. This time around, the Second Circuit rules in favor of a disabled woman who was denied a reasonable accommodation in order to visit with her incarcerated husband.

The case is Fulton v. Goord, decided on December 22. As Fulton has Multiple Sclerosis, it is difficult for her to travel long distances. When her husband was incarcerated 300 miles from home, she wanted him transferred to a prison closer to New York City. The state rejected that request. The trial court said that Fulton does not have standing to bring the claim because she has "no legally cognizable interest" in having her spouse transferred to a nearby prison. This analysis misunderstands the case, the Second Circuit (Walker, Jacobs and Leval) says. Rather, "the essence of Fulton's challenge is the defendants' refusal, in light of her disability, to provide her with, or even to consider, 'a reasonable accommodation to participate in the visiting program.'" As Fulton's claim alleges that she suffered harm as a result of the state's refusal to accommodate her disability under the visitation program, she has standing to sue. Citing Innovative Health Systems v. City of White Plains, 117 F.3d 37 (2d Cir. 1997), the Court of Appeals notes that the standing rules are relaxed under the federal disability discrimination laws.

The next question is whether Fulton states a claim for relief under federal law. The Second Circuit says that ... she might have a claim. The Court of Appeals does not definitively say that Fulton can sue. It says that the district court should give her case another look under Rule 12 to see if she states a claim upon which relief can be granted. But let's read between the lines. The Court of Appeals says that, in all likelihood, Fulton has a case, at least on paper. Fulton is an eligible participant in the visitation program, and she says that the state denied her a reasonable accommodation in the form of relocating her husband so that she can more easily visit him. Of course, this does not mean that all of her husband's relatives or acquaintances can bring a claim like this. "Reasonable accommodations" under federal law is a "relational term" that depends on the circumstances. In this context-specific inquiry, the wife probably has more rights than anyone else. As the district court also improperly interpreted her claim to mean that the transfer policy "is discriminatorily based on [Fulton's] disability," the case is sent back for the trial court to reconsider its opinion.

A footnote to this blog post is a footnote the opinion. The Second Circuit suggests ways that plaintiff could be accommodated short of moving her husband to a closer prison. This may be the first case in our Circuit which makes reference to Skype computer software:

For example, it is not unusual for prisoners to be shuttled to urban
centers for court appearances and prosecutorial interviews, and such a visit could also serve to accommodate a disabled spouse. Fulton herself posits that her husband could perhaps have been temporarily transferred “back and forth to a downstate facility accessible” to her for occasional visits. Other prisons have made similar short-term arrangements for disabled inmates. ... Absent transporting the prisoner or the visitor, there are also now electronic means for visits, such as via a “Skype”-style program over the internet. See generally Skype, http://www.skype.com (offering software that enables internet video and voice conferencing). In noting that the possibility of a reasonable accommodation is not unrealistic, we express no view on the reasonableness of any potential accommodation in the instant case. The DOCS likely has other commonplace practices that Fulton might benefit from, and it is for the DOCS, in the first instance, to determine whether any of them would be a reasonable accommodation in this case.

Inmates are not necessarily in "custody" for Miranda cases

Let's face it. It's getting harder and harder to win a habeas corpus motion in federal court. This time around, the Court of Appeals rejects a claim brought by an inmate who incriminated himself without Miranda warnings.

The case is Georgison v. Donelli, decided on December 7. In 1993, Georgison was accused to hitting someone with a pipe in the Bronx. This dispute apparently arose from an organized crime dispute over the garbage carting industry. Three years later, when Georgison was in jail on an unrelated offense, the authorities wanted to ask him questions about that assault the Bronx. Georgison met with these unarmed detectives in a visitor's room while a sergeant waited outside. Georgison was not read his Miranda rights but he did say a few things which incriminated him, i.e., he denied piping anyone even though the detectives said nothing about a pipe. He also admitted he was on the premises when the assault took place. These admissions got him convicted for assault, and he lost his appeals in the state courts. Hence, the habeas corpus petition.

The question is whether, in ruling against him, the state courts unreasonably applied settled Supreme Court authority. Under the 1996 habeas corpus law, state courts have some leeway in interpreting the U.S. Constitution. This kills a lot of habeas corpus petitions, and it dooms Georgison's. Miranda requires that anyone in police custody be read their rights before the police can ask them questions. Georgison relies on Mathis v. United States, 391 U.S. 1 (1968), for the proposition that inmates are per se "in custody" for purposes of Miranda and thus must be advised of their rights before answering law enforcement's questions. After all, inmates are not exactly free to leave the way the rest of us can.

The Second Circuit (Miner, Wesley and Stanceu [D.J.]) disagrees. The Court finds that "the Supreme Court has cast serious doubt on the existence of a per se or bright-line rule that would require Miranda warnings in the prison setting. The Court of Appeals notes that, in Bradley v. Ohio, 497 U.S. 1011 (1990), even Justice Marshall suggested in dissenting from the denial of certiorari that the Supreme Court had yet to "clarify what constitutes 'custody' for Miranda purposes in the prison setting." The Court of Appeals has also ruled in United States v. Newton, 369 659 (2d Cir. 2004) that "the mere fact of incarceration does not necessarily require that an individual be in the sort of custody that warrants Miranda warnings before an interview." This means that the law in this area is not clearly-establishes for purposes of winning a habeas corpus petition under the 1996 habeas law. The state courts, then, did not unreasonably apply constitutional law in ruling against Georgison. As he was free to get up and leave during the interview -- and he actually did so -- Georgison was not restrained during questioning, and Miranda warnings were therefore not required here.

NYPD breathalyzer policy does not violate Fourth Amendment

The NYPD imposed a policy that any officer who causes an injury as a result of gunfire must submit to a breathalyzer test to see if he was drinking. The police union challenged the policy as a Fourth Amendment violation. It's legal.

The case is Lynch v. City of New York, decided on December 11. The Fourth Amendment is quite brief. It says that the government may not subject you to unreasonable searches and seizures. Applying the Fourth Amendment is not so easy. What's reasonable? The answer to that question depends on the legal standard devised by the courts to make the amendment work. The standard here is "special needs."

The Second Circuit (Kearse, Cabranes and Straub) tells us that "The Fourth Amendment requires that searches and seizures be reasonable, and a search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. Nonetheless, the Supreme Court has upheld certain regimes of suspicionless searches where the program was designed to serve special needs, beyond the normal need for law enforcement."

How do we apply the "special needs" doctrine? The court must determine the purpose of the search. Under "special needs," the primary purpose of the program must be unrelated to the government's general interest in crime control. If the search relates to a special need and is unrelated to a general interest in crime control, the court has to determine if the search is reasonable, i.e., "weighing the special need ... against the privacy interest advanced." This balancing test involves weighing (1) the nature of the privacy interest, (2) the nature of the government intrusion and (3) "the nature and immediacy of the government's needs, and the efficacy of its policy in addressing those needs."

Again, this balancing test appears nowhere in the Fourth Amendment. But the general language in the Fourth Amendment is not going to resolve any cases. "Reasonableness" is not specific enough to assess government policies, street searches and other intrusions. Here, the "special needs" test upholds the breathalyzer search, which is primarily unrelated to crime control; it ensures that an officer who fires his gun while intoxicated is quickly disciplined or removed from duty. The point is not to prosecute the officer. The policy also deters officers from carrying their guns while intoxicated. Personnel management is not crime control, the Court of Appeals concludes, and neither is NYPD's desire to promote its reputation.

What complicates things is that there is one crime control objective here: every shooting is a potential crime and breathalyzer tests produce useful evidence against the officer. But while the policy has multiple purposes -- "some unrelated to crime control and one directly to crime control" -- crime control is not the primary purpose. Since law enforcement officers have a diminished expectation of privacy and they already submit to drug testing, the three-part balancing test favors the City, and the police union is not entitled to a preliminary injunction against the policy. The City's "special needs" outweigh the union's privacy interests.

Solving the Simmons puzzle

For purposes of awarding attorneys' fees to lawyers who represent successful plaintiffs, the Court of Appeals has been gone out of its way to distinguish between the four judicial districts in New York. The highest rates are in the Southern District of New York, which includes Manhattan. The other districts, including adjacent Eastern District of New York, have lower hourly rates. If your office is in Manhattan but you win a trial in Brooklyn (EDNY), there are ways to get the higher SDNY rates, but it's not easy.

In Simmons v. New York City Transit Authority, 575 F.3d 170 (2d Cir. 2009), summarized here, the Second Circuit said that the SDNY lawyer who wins the trial in Brooklyn can get SDNY rates if the plaintiff can establish that her lawyer would likely have produced a much better result than a lawyer in EDNY.

The Court therefore presumes that a district court should award fees at the prevailing market rate in the district in which it sits. To overcome the presumption in favor of this "forum rule," the plaintiff must show “that a reasonable client would have selected out-of-district counsel because doing so would likely (not just possibly) produce a substantially better net result.” Under Simmons, “[a]mong the ways an applicant may make such a showing is by establishing that local counsel possessing requisite experience were unwilling or unable to take the case.”

This is a difficult standard to apply. There are many good civil rights lawyers in the Eastern District of New York. How can a lawyer in Southern District of New York (with its much higher hourly rates) prove that she was the best choice for the EDNY lawsuit? We found out in early December. The case is Germain v. County of Suffolk, 2009 WL 4546671 (E.D.N.Y. Dec. 5, 2009). Germain had a discrimination lawsuit in EDNY. Plaintiff's first law firm was disqualified from the case, and other law firms on Long Island wanted too much money up front and charged hourly rates. Other lawyers did not call her back. Of course, they are now regretting their actions. Germain won the case, and the lawyers who did represent her without charge receive attorneys' fees in excess of $200,000.

Germain's difficulties in finding an EDNY lawyer to handle her case entitle her lawyers (whose offices are in Manhattan) to SDNY rates. In this case, Germain's lawyer, Janice Goodman, Esq., recovers $450.00 per hour. Germain solves the Simmons puzzle. Judge Spatt reasons:

On these facts, the Court finds that the Plaintiff has met her burden to show that it was necessary for her to retain out-of-district counsel. After DeJong was disqualified and other local civil rights attorneys in Long Island declined to take the case on a contingent basis, the Plaintiff was faced with the choice of proceeding pro se or retaining out-of-district counsel. Under the circumstances, it was reasonable for the Plaintiff to believe that Goodman, an experienced civil rights lawyer, could produce a substantially better result than any relief she might have been able to obtain acting pro se. Accordingly, the Court finds that the conventional forum rule does not apply in this case.

This is a mixed result. True, Judge Spatt applied SDNY rates for an EDNY case. But cases like this strike a nerve among civil rights lawyers who maintain offices in Manhattan but try cases in Brooklyn. The Simmons equation really grows out of an earlier Second Circuit attorneys' fees case, Arbor Hill v. County of Albany, 522 F.3d 182 (2d Cir. 2008), where the Court of Appeals presumed that the hourly rate should be assessed based on the district in which the case was tried, not where the lawyers have their offices. Albany (where the Arbor Hill case was handled) may be far from New York City (where the Arbor Hill lawyers had their offices), but Brooklyn is only a few subway stops from the SDNY courthouse in Manhattan. The EDNY/SDNY distinction is the subject of a particularly interesting footnote in Gutman v. Klein, 2009 WL 3296072 (EDNY Oct. 13, 2009), where Judge Cogan noted that many of the cases pending in EDNY are actually handled by SDNY lawyers. Footnotes like this are always worthy reading. Here is part of it:

A purely geographic lodestar also ignores the practical reality of practicing law in New York, which the docket of this Court reflects. Of lawyers that currently appear before this Court, 307 of the lawyers have offices in the Eastern District, while 727of the lawyers have offices in the Southern District. This raises the question of exactly what is the bar that practices in this district. Indeed, much less travel time is chargeable to clients coming from Manhattan to this Court than from Riverhead, which is within this district. Moreover, the two district courts have recognized the significant overlap between attorneys practicing in the Southern and Eastern Districts by adopting a single set of Local Rules for both districts. Even Congress has recognized the overlap by allowing an exception from the normal district-only residence requirement for U.S. Attorneys and federal judges, an exception which permits United States attorneys and federal judges, unlike any other district except the District of Columbia, to reside in one district and work in the other. See 28 U.S.C. § 545(a) (U.S.Attorneys); 28 U.S.C. § 134(b) (district court judges). This is just part of the reality that law is now practiced in an environment where law firms maintain multiple offices nationwide, attorneys maintain multiple federal bar admissions and have national practices, and modern telecommunications permit court appearances by video and telephone. It may be that the concept of a geographically-based as opposed to case complexity-based lodestar will someday have as much relevance to the selection of an attorney as dinosaurs have to birds.

PLRA limits attorneys' fees even if inmate is released from jail

In the mid-1990's, Congress limited the attorneys' fees for inmates who won their civil rights cases. Generally, if a civil rights plaintiff wins the case, her attorney recovers fees, usually calculated by multiplying the lawyer's hourly rate by the hours expended on the case. But under the Prison Litigation Reform Act (PLRA), the attorney's hourly rate is limited under a formula which allows the attorney $138 per hour in the Southern District of New York. This is a lot lower than the hourly rate for experienced lawyers in New York.

The case is Perez v. Westchester County of Corrections, decided on November 20. I wrote about this case in the context of the lawyer's entitlement to attorneys' fees where the case did not prevail at trial but, instead, settled. This installment covers another attorneys' fees issue: whether the PLRA limitation on fees applies when the inmates are released from prison. The Court of Appeals answers that question in the affirmative.

The lawyers in this case got nearly $100,000 in challenging the County's food policies which affected the religious practices of Muslim inmates. But that amount would have been a lot more had the PLRA not attached. Under the PLRA, fees are limited "in any action brought by a prisoner who is confined in any jail, prison, or other correctional facility." How does this language apply when the plaintiff is no longer an inmate? Plaintiffs argue that the congressional concerns in enacting the PLRA do not apply since that law was intended to dissuade prisoners from wasting everyone's time with frivolous lawsuits. That is no longer a concern when the inmate is once again a productive member of society and has better things to do than to file lawsuits.

The Court of Appeals (Calabresi, Livingston and Korman, D.J,) appreciate plaintiffs' arguments, which Judge Chin had recognized in an unrelated case, Morris v. Eversley, 343 F.Supp.2d 234 (SDNY 2004). But the Second Circuit sides with the County on this one. Reasonably read, the law is best interpreted to limit attorneys' fees if the plaintiffs were inmates at the time the lawsuit was filed. Remember, the law references "any action brought by a prisoner who is confined ..." This means the PLRA applies if the plaintiff was confined when he brought the action. The Court of Appeals does recognize an anomaly in this reading: plaintiffs who wait until they leave prison before filing suit are not limited under the PLRA. Even so, the Court finds, "Congress may well have thought that persons still incarcerated were more inclined to bring suits than those who were back in the world and now had less time on their hands and better things to do with it."

No due process violation where village demolishes damaged building

I may not know much, but I do know this: due process claims in the Second Circuit are very hard to win. Especially when they involve emergencies resulting from damaged buildings which require municipal officials to take them down quickly.

The case is WWBITV, Inc. v. Village of Rouses Point, decided on December 9. Plaintiffs' building was an old hotel that caught fire in June 2006. After the fire, the building was in bad shape. As the Second Circuit (Lynch, Miner and Katzmann), puts it, "The roof and the top floors had been completely destroyed. Debris hung off the hotel’s facade, and officials were concerned that it would fall into the street. The instability of the building, as well as its proximity to the street, necessitated the closing of State Road 11." The next morning, a team of contractors tore it down at the direction of the village board, which held an emergency meeting. While the board did publicize the meeting, it did not tell the Clarkes, who owned the building.

Plaintiffs claimed that by tearing down the Hotel without providing any form of prior hearing, the Village deprived them of their property without due process of law in violation of the Fourteenth Amendment. True, due process requires the government to provide notice and an opportunity to be heard before it deprives you of your property (or liberty). But not in emergency situations. When the building is unstable, there is no time for pre-deprivation process. The building can collapse while the due process procedures are unfolding. That's been the law in the Second Circuit since 1999, when the Court of Appeals sustained summary judgment in Catanzaro v. Weiden, 188 F.3d 56 (2d Cir. 1999), which involved similar facts except that the building was damaged when someone drove a car into it. (I represented the plaintiff in Catanzaro, where the Court of Appeals first vacated summary judgment before changing its mind on a motion for re-hearing).

The rule in Catanzaro is that "where there is competent evidence allowing [an] official to reasonably believe that an emergency does in fact exist ... the discretionary invocation of an emergency procedure results in a constitutional violation only where such invocation is arbitrary or amounts to an abuse of discretion.” Tough standard for due process plaintiffs to get around. And the Clarkes don't get around it in this case. While the Clarkes suggest they could have convinced village officials to employ less drastic methods to protect public safety, that is not enough to win the case. Under the "arbitrary and capricious" standard, the Court will defer to municipal judgment where every minute counts. The Second Circuit reasons, "As Catanzaro makes clear, such hindsight analysis of a municipality’s means of dealing with an emergency would encourage delay and risk increasing the public’s exposure to dangerous conditions."

Bergstein & Ullrich settle disability discrimination suit

Mount Kisco agrees to provide sign-language interpreters in court

Timothy O'Connor
Westchester Journal-News
tpoconnor@lohud.com
December 12, 2009

Mount Kisco's municipal court has agreed to provide interpreters for hearing-impaired crime victims, witnesses and parties in the village court to settle a federal lawsuit filed by an alleged victim of domestic abuse.

Dorothy Silva, a deaf woman from Somers, sued last year after attending proceedings in Mount Kisco Village Court where her alleged abuser was charged with harassing her.

Silva said she could not follow the proceedings because court officials didn't provide an interpreter for her.

"As a result of (Mount Kisco's) failure to provide (Silva) with a sign-language interpreter, she was unable to sufficiently understand, participate in and otherwise follow the criminal proceedings against her abuser," her lawyer Stephen Bergstein wrote in the lawsuit.

Court officials told Silva there wasn't enough money for a sign-language interpreter, the lawsuit said.

In a settlement of the lawsuit filed in U.S. District Court in White Plains, the village agreed to provide sign-language interpreters for those who need such assistance.

"This policy represents one of the few written guidelines adopted by any municipality on this issue," Bergstein said Friday.

Bergstein was assisted by an attorney from Independent Living in Newburgh in drafting the new policy. He said towns and villages often fail to comply with the Americans with Disabilities Act's requirements to provide such assistance.

"Hearing-impaired persons have a right to know what is happening in court when they are crime victims and their abusers are prosecuted and being sentenced," he said.

Mount Kisco Mayor J. Michael Cindrich said the matter could have been handled without the filing of a lawsuit.

"It was an amicable settlement," he said. "We provide interpreters for every group of people that needs them, regardless of language or disability ."

Silva filed the suit in January 2008, 10 months after she attended proceedings involving her former boyfriend, who is the father of her daughter. The suit says she will likely have to return to court for further hearings.

The settlement does not call for Silva to receive any money from Mount Kisco. That was fine with her, Bergstein said, because the goal of the lawsuit was not financial.

"It really wasn't about money," he said. "It was about changing the policy."

No costs for losing plaintiff in funky search case

When you lose an appeal in federal court, you usually have to pay the winner's costs. These costs usually include the out-of-pocket expenses for bringing the appeal, including photocopying and other necessary expenditures. This may not sound like much, but it can total more than $1,000. What if the losing plaintiff doesn't have the money?

The case is Moore v. County of Delaware, decided on November 2. In July, the Court of Appeals rejected Moore's due process claim arising from a warrantless police search of his house when his lover called authorities after entering the house without his permission and panicked when an unidentified caller rang the telephone. The police showed up and discovered drugs in the house, and then the government seized Moore's property, allegedly without due process. The Second Circuit held that defendants had qualified immunity from suit because the legal violation was not clearly established.

Pouring salt into the wound, the government then sought costs from Moore in the amount of $2,572.18. Moore objected because he is "nearly destitute." Although an award of costs is the rule, not the exception, the Court needs a good reason to waive them. The Court of Appeals (Cabranes, Hall and Stein, D.J.) does not set forth a bright-line rule that says nearly destitute losing parties do not have to pay costs. Instead, the Court says "denial of costs may be appropriate where a losing party can demonstrate misconduct by a prevailing party, the public importance of the case, the difficulty of the issues presented, or its own limited financial resources."

These factors weigh in Moore's favor. The case did involve governmental misconduct even though the government ultimately prevailed, in that the evidence seized from Moore's property was suppressed by a state court. Moore brought this case in good faith and, of course, he cannot afford the costs. Under the circumstances, he's off the hook for the $2,572.18.

Post office retaliation case is reinstated for trial

In baseball, a tie goes to the runner. In litigation, close calls on the evidence go the jury. At least in employment discrimination cases.

The case is Faul v. Potter, decided by summary order on December 9. Roberta Faul worked for the Post Office. She filed a discrimination complaint with the Equal Employment Opportunity Commission in May 2002 and her position was eliminated in March 2004. Normally, if you want to prove a retaliation claim through circumstantial evidence, this nearly two-year gap between protected activity and termination is too long to connect the EEOC complaint with her termination. But, as the Court of Appeals (Raggi, Walker and Dearie [D.J.]), reminds us, causation is proven either "indirectly, by showing that the protected activity was followed closely by discriminatory treatment ... or directly, through evidence of retaliatory animus directed against the plaintiff by the defendant." Faul meets this de minimus burden through evidence that her superior, Sands, threatened her job in September 2002.

The harder issue is pretext, a necessary element to Faul's claim. Faul can prove that management's reason for the elimination of her position was pretextual. The Second Circuit goes out of its way to praise the district court for its careful review of the case. This seems to have been a close one. But the Court of Appeals here is taking seriously the principle that all ambiguities are interpreted in the plaintiff's favor on a summary judgment motion.

After Faul filed her EEOC charge, Sands requested an audit of his own office. This was an unusual maneuver, and it may establish that he was looking for a way to fire Faul. While the auditors recommended that Faul's position be eliminated, the record suggests that Sands had the final say on this decision. The Court concludes, "the record here permits the inference that it was Sands's retaliatory motives that occasioned not only their arrival, but also implementation of their recommendation" to eliminate Faul's position. The fact that Sands and Faul were not getting along in the 15 months between her EEOC complaint and the audit further helps Faul's position on appeal. It was apparently also unusual for an occupied position to be excessed. On this record, Faul gets her day in court.

JP Morgan underwriters are entitled to FLSA overtime pay

Not everyone is entitled to overtime. The Fair Labor Standards Act says that you get overtime pay if you work more than 40 hours per week unless, among other things, you work in a "bona fide executive administrative, or professional capacity." This provision brought a Mr. Michael J. Davis and his co-workers into Federal court against J.P Morgan Chase.

The case is Davis v. J.P. Morgan, decided on November 20. Davis and others were underwriters responsible for approving loans in accordance with guidelines provided by J.P. Morgan, which regarded these employees as exempt from the FSLA. This was a huge gamble. If J.P. Morgan called it wrong, it can owe a lot of people a lot of money. J.P. Morgan called it wrong, the Second Circuit (Lynch, Pooler and Livingston) rules in vacating summary judgment in favor of the employer.

Federal regulations say that someone works in a bona fide administrative capacity if she performs work "directly related to management policies or general business operations" and "customarily and regularly exercises discretion and independent judgment." This is in contrast to "'production' or, in a retail or service establishment, 'sales' work." Where do the plaintiffs in this case fall?

Underwriters at Chase were primarily responsible for selling loan products under management's guidelines. As the Second Circuit puts it, "Underwriters were given a loan application and followed procedures specified in the Credit Guide in order to produce a yes or no decision" from the customer. "Their work is not related either to setting 'management policies' nor to 'general business operations' such as human relations or advertising, but rather concerns the 'production' of loans -- the fundamental service provided by the bank." As far as the FLSA is concerned, these underwriters fall under the category of production rather than of administrative work.

This opinion was written by Judge Lynch, newly appointed to the Second Circuit. He was a district court judge when he heard the appeal and became a Circuit judge when he wrote the opinion. The opinion is well-structured. It starts by suggesting that Second Circuit authority points in this direction, and then it cites what the Court deems "persuasive decisions of our sister circuits" as well as district court rulings in the Second Circuit. Trial court decisions from around the country round out the discussion. Judge Lynch then distinguishes a few cases cited by J.P. Morgan from around the country. Legal scholarship that any Second Circuit junkie can appreciate.

Supervisor's "purposeful ignorance" of sexual harassment may violate Title VII

What is an employer's obligation to rid the workplace of sexual harassment? And when can we presume that management even knew about a hostile work environment? In a ruling handed down last week, the Second Circuit held that a manager should have known that a female subordinate was a sexual harassment victim and that the district court should not have granted summary judgment to the employer.

The case is Duch v. Jakubek, issued on December 4. This case actually raises several issues surrounding employer knowledge of a hostile work environment and its obligation to clean up the workplace. While two managers knew that Duch was being harassed, one of them was actually excused for not taking remedial action. As the Second Circuit does not issue many rulings on the employer's liability for co-worker harassment, this is an important case.

Duch worked for the Office of Court Administration. She was harassed by Kohn. When Duch was assigned to work with Kohn, she asked her supervisor, Jakubek to change her schedule. Kohn told Jakubek that he may have done "something or said something that I should not have." When Jakubek spoke about this with Duch, she said she did not want to talk about it. Jakubek was fine with this. He told Duch that "I don't want to know what happened."

Duch more explicitly told the EEO liaison, Christiano, about the harassment. But Duch did not speak to Christiano about this in her role as EEO liaison; she spoke to Christiano as a friend. Duch told Christiano not to report Kohn's harassment, and Christiano did not report it.

While Christiano actually knew about the harassment and Jakubek had reason to know about it, no one reported it, and Duch deteriorated mentally. If Title VII requires management to take prompt remedial action to investigate and remedy sexual harassment, is OCA liable for the inaction of Jakubek and Christiano? The answer is No and Yes.

First, some underbrush. Management did provide Duch a reasonable avenue to complain about the harassment. Christiano may not have been the best EEO officer in the world (she did not go to the sexual harassment training and inappropriately suggested that Duch "grab and hurt" the harasser. But OCA had other avenues for complaint besides the EEO office, including the Inspector General, other supervisors and a Work Life Program representative. If Duch is going to win the case, it will not stem from OCA's lack of reasonable avenues for complaint.

She also cannot win on the basis of Christiano's failure to report the harassment. According to Christiano's unrefuted testimony, Duch told Christiano not to report it. The Second Circuit dealt with a similar issue in Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997), which presumes that the victim's instruction that a supervisor not take action on the harassment will absolve the company of any Title VII liability. Although Torres says that "there is certainly a point at which harassment becomes so severe that a reasonable employer simply cannot stand by, even if requested to do so by a terrified employee," as Christiano was not aware of the extent of Duch's emotional harm, she did not drop the ball in keeping Duch's confidence.

It is Jakubek's inaction which may violate Title VII, entitling Duch to a trial. Supervisors have a duty to take affirmative steps to stop the harassment. He knew that Duch did not want to work with Kohn and that Kohn had engaged in sex-related misconduct toward women in the past. He also told Kohn to "grow up" in hearing from Kohn himself that he may have done something wrong. Jakubek also told Duch that he did not want to hear about her problems with Kohn. The Second Circuit (Cabranes, Leval and Hall) concludes, "Based on this aggregation of facts, a jury could reasonably find that Jakubek strongly suspected that it was sexual harassment on Kohn's part that was responsible for Duch's emotional reaction, that Jakubek knew the issue was ongoing" and that Jakubek had a duty to inquire further rather than to discourage Duch from revealing the full extent of the harassment. In other words, a supervisor's "purposeful ignorance of the nature of the problem ... will not shield an employer from liability under Title VII."

Jakubek's inaction means that OCA could lose the case at trial. Jakubek had reason to know of the harassment October 2001, when he spoke with Duch about her problems with Kohn. Although management got around to investigating the harassment in January 2002 (when Duch told someone else about it), that was too long after Jakubek's constructive knowledge of the hostile work environment.

Defendant pays nominal damages and walks away from the case

There are ways for defendants in Section 1983 cases to make the lawsuit go away by simply consenting to judgment for the plaintiff. They can even do it without any concession of liability on their part. This is an obscure procedure, but it surfaced recently in a First Amendment case against the President of the College of Staten Island.

The case is Husain v. Springer, 2009 WL 3422927, decided by the Eastern District of New York on October 26. If you're a First Amendment junkie, Husain is a hell of a case. It started in 1997 when the college president nullified the student elections because the college newspaper had allegedly broken the rules in endorsing student candidates. In 2007, the Court of Appeals held that the newspaper editors had a case under the First Amendment because the college's act of nullifying the student elections had a chilling effect on the newspaper's First Amendment activity. That decision is reported at 494 F.3d 108 (2d Cir. 1997). The Second Circuit ruling was notable not only for its innovative First Amendment reasoning but because Chief Judge Jacobs dissented despite admitting that he did not want to waste his time by reading the majority opinion.

Interesting case, but the newspaper editors are only entitled to nominal damages. These damages are separate from pain and suffering and punitive damages. Nominal damages are available when the defendant has broken the law but no other damages are available. The case can proceed on a nominal damages theory, and in constitutional cases it may be the only way that courts can decide important precedents where the plaintiffs have not suffered tangible damages.

What happened here is that after the Court of Appeals reinstated the case, the defendant college president decided to end the case by paying out the damages to which plaintiffs are entitled: one dollar for each of the eight plaintiffs. Despite paying out the damages, the defendant does not have to concede liability. Is this legal? Yes, says the court. Defendants can consent to judgment and pay any appropriate damages without conceding liability. As the Court of Appeals has held, "There is no justification for taking the time of the court and the defendant in the pursuit of minuscule individual claims which defendant has more than satisfied." Abrams v. Interco Inc., 719 F.2d 23, 32 (2d Cir. 1983). Judge Gershon applies that logic in this case, and the case is over after 12 years of litigation.

Plaintiffs vigorously objected to this tactic, but Judge Gershon cites from a Fifth Circuit case holding that "A winning party cannot appeal merely because the court that gave him his victory did not say things that he would have liked to hear, such as that his opponent is a lawbreaker." Judge Gershon also emphasizes that the Second Circuit's ruling in this case is still good law and a viable precedent. So, the decision in this case ends with language you don't normally see in civil rights cases: "Defendant's motion for entry of judgment against herself is granted."

It's not defamatory to accuse inmate of cooperating with authorities

How would you like it if someone accused you of cooperating with the police? What if you were in jail and other inmates frowned upon that allegation? Is it defamation? The Second Circuit says it is not.

The case is Michtavi v. New York Daily News, decided on November 25. Michtavi is in jail, convicted on a narcotics offense. After the Daily News wrote that he planned to cooperate with police and testify against an organized crime figure with whom he was associated, he sued for defamation.

Courts ask what a "right-thinking person" would think of the allegation in determining whether the plaintiff is entitled to protect his reputation in a defamation suit. The Court of Appeals (Jacobs, Kearse and Gardephe, D.J.) notes that the Restatement on Torts says that a statement is not defamatory if the relevant audience carries "standards [that] are so anti-social that it is not proper for the courts to recognize them."

Well, you know where this is going. The relevant audience here is the inmate population which doesn't like cooperating witnesses. This is not enough for plaintiff. In the context of a defamation case, no one really cares what inmates think. Citing cases which include a State Supreme Court decision from 1941 and a Southern District case written by Judge Mukasey (who later became Bush 43's Attorney General), the Second Circuit notes that "The population of right-thinking persons unambiguously excludes 'those who would think ill of one who legitimately cooperates with law enforcement.'"

Court of Appeals affirms overtime ruling for non-exempt worker under FLSA

The Second Circuit has ruled in favor of a worker who was denied overtime pay, ruling that the Fair Labor Standards Act does not exempt workers whose job skills are not customarily the product of advanced educational training.

The case is Young v. Cooper Cameron Corp., decided on November 12. Young was a highly-skilled Product Design Specialist II with 20 years of engineering-type experience but no college degree. He worked with hydraulic power units which contain fluid under pressure for use in connection with oil drilling rigs. After Young was let go in a reduction-in-force, he sued for all the the overtime which defendant had denied him.

The legal standard governing whether a worker is exempt from overtime pay is whether he is employed in a professional capacity. Regulations define "professional" as employees whose work requires "knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study." We presume that if the job requires an academic degree, the job is exempt from FSLA. (This means that lawyers who did not go to law school are still exempt).

As the Court of Appeals (Jacobs, Pooler and Parker) frames it, "the issue is whether a position can be exempt notwithstanding the lack of an educational requirement, if the duties actually performed require knowledge of an advanced type in a field of science or learning." The judgment in Young's favor is affirmed. Chief Judge Jacobs writes, "an employee is not an exempt professional unless his work requires knowledge that is customarily acquired after a prolonged course of specialized, intellectual instruction and study.." Although Young had specialized knowledge, he was entitled to overtime under FSLA because his job did not customarily require an advanced degree. In fact, none of the employees in his title had more than a high school education.

The Court of Appeals handled this issue on a clean slate in this Circuit, but it does note that other federal circuit courts have ruled the same way. The Court of Appeals does reject as non-persuasive some contrary district court rulings and an unpublished Eleventh Circuit case. Although this is an issue of first impression in the Second Circuit, the Court of Appeals also sustains the district court's finding that Cooper Cameron's erroneous classification of Young as exempt was willful, which entitles Young to additional damages.

Constitutional challenge to N.Y. riot law fails

One way to challenge your criminal conviction is to argue that the law under which you were prosecuted is too vague and that you were not on notice that your actions fell under its provisions. The Second Circuit has rejected that challenge in the context of the New York statute prohibiting riot in the first degree.

The case is Ortiz v. N.Y.S. Parole, decided on November 10. Ortiz was convicted of riot in the first degree in connection with a riot outside Central Park which broke out after the Puerto Rican Day Parade in 2000. The decision outlines some disgusting assaults against women by various rioters. As the Second Circuit (Kearse, Livingston and Sack) sets out in the opinion, Ortiz was present when the riot started, but he claimed he left the scene before some of the riotous behavior continued. He was charged under the riot law for these acts, and the criminal court judge said that "once one joins a riot, [a] person remains criminally liable for the conduct set in motion until he makes substantial effort to end the conduct." In other words, with limited exceptions, if you help start the riot, you are responsible for whatever happens afterward by anyone else who participated in the riot. The jury charge stems from the statute, which reads:

A person is guilty of riot in the first degree when (a) simultaneously with ten or more other persons he engages in tumultouous [sic] and violent conduct and thereby intentionally or recklessly causes or creates a grave risk of causing public alarm, and b) in the course of and as a result of such conduct, a person other than one of the participants suffers physical injury or substantial property damage occurs.

The argument here is that, in violation of the U.S. Constitution, the statute does not clearly set out that you are responsible for the consequences of the riot that you helped to create. In ruling against Ortiz on his initial appeal, the state appellate court said that "the riot statute permits a riot participant to be held criminally liable for the acts of other participants, in the course of the same continuing riot, even after his or her participation may have terminated."

As federal courts defer to the state courts' interpretation of its criminal statutes, Ortiz loses his habeas corpus challenge. The fact that this was the first time an appellate court in New York interpreted the riot law this way does not mean that the state judges unreasonably applied constitutional principles in ruling against him. It is true that the Supreme Court has said that "due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope." But, under Second Circuit caselaw, it is also true that "due process is not ... violated simply because the issue is a matter of first impression." Here, since the state appellate courts' interpretation of the riot law "was not so unexpected and indefensible as to deprive Ortiz of fair notice," the adverse ruling was not unreasonable and therefore does not support his habeas petition. The conviction stands.

EEOC wins battle over UPS discrimination records

The Equal Employment Opportunity Commission wanted records from United Parcel Service to determine whether UPS was violating the religious rights of employees. UPS said no. The district court said no. The Court of Appeals says yes. EEOC gets the records.

The case is EEOC v. United Parcel Service, decided on November 19. EEOC is charged with investigating employment discrimination claims. Two UPS employees (one in Buffalo, the other in Texas) claimed the company would not allow them to wear beards as required by their religious observances, despite the company's policy to grant exemptions from the no-beards policy.

This is what the EEOC's subpoena demanded from UPS:

(1) all documents related to the Appearance Guidelines and a list of all jobs which are subject to the Guidelines; (2) identifying information for all job applicants denied employment because of their refusal to adhere to the Appearance Guidelines since January 1, 2004; (3) identifying information for all employees who requested a religious accommodation to the Appearance Guidelines and the outcomes of those requests since January 1, 2004; and (4) identifying information for all employees who were terminated for reasons relating to the Appearance Guidelines since January 1, 2004.

The district court found that the subpoena was overly broad and sought national information not relevant to the individual charges. The Court of Appeals (Newman, Katzmann and Trager, D.J.) reverses.

Under Second Circuit case law, trial courts have a limited role in enforcing administrative subpoenas like this. "To obtain enforcement of an administrative subpoena, '[a]n agency must show only [1] that the investigation will be conducted pursuant to a legitimate purpose, [2] that the inquiry may be relevant to the purpose, [3] that the information sought is not already within [the agency’s] possession, and [4] that the administrative steps required ... have been followed.'" The Court adds, "A subpoena that satisfies these criteria will be enforced unless the party opposing enforcement demonstrates that the subpoena is unreasonable or that compliance would be 'unnecessarily burdensome.'” Also, the company cannot reject the subpoena on the ground that it believes the discrimination claims are meritless.

The information requested here is relevant to EEOC's investigation, and the district court applied too restrictive a legal standard in sustaining UPS's objection. Not only did the company's physical appearance policy apply to UPS offices around the country, but company policy promises to evenly apply the religious exemption. Yet, the two complainants here were not given the chance to secure an exemption, and one of them was told there was no exemption policy. He also alleged in his EEOC complaint that UPS had a pattern and practice of failing to accommodate employees who wanted the religious exemption. Without too many citations from Supreme Court and Second Circuit authority, the Court of Appeals upholds the subpoena and in effect awards EEOC the requested documents.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Convict cleared by DNA testing cannot sue DA's office

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

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

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

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

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

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

Trial court needs to give qualified immunity analysis deeper thought

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

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

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

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

2d Circuit reverses summary judgment in racial discrimination case

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

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

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

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

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

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

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

(Nearly) million dollar fee application gets second look

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

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

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

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

Court rejects Valerie Plame's First Amendment suit against CIA

Remember the Valerie Plame scandal? She was outed by the Bush administration as a covert CIA operative after her husband, Joe Wilson, accused the President of going to war against Iraq on false pretenses. Bush is gone, and the scandal is forgotten. But it takes a while for these political scandals to reach the courts. That day has arrived.

The case is Wilson v. CIA, decided on November 12. Valerie Plame-Wilson wanted to reveal information about her career with the CIA in her autobiography. The CIA pulled out Plame's secrecy agreement with the agency in which she promised as a condition of her employment not to disclose classified information. In fact, in prosecuting Scooter Libby for lying about slipping Plame's covert status to the media, the government did publicly disclose that, from January 2002 forward, Plame worked in the CIA's Counterproliferation Division, focusing on Iraq. Plame wanted information about her pre-2002 employment in the book. Does the First Amendment allow her to do so?

Plame says "yes." While the CIA can impose a prior restraint on employee speech as a condition of employment, it cannot prevent an former employee from publishing classified information if the agency itself has officially disclosed it. Plame also points out that the media had widely reported that she was a classified CIA employee for 20 years, and that rigid enforcement of the secrecy agreement means that she is the only person who cannot write about portions of her career.

The Court of Appeals (Katzmann, Raggi and Keenan [D.J.] says no. The opinion summarizes the Plame scandal and how the government exposed Plame's CIA service in the context of her husband's whistleblowing about the Iraq war in the wake of President Bush's 2003 State of the Union Speech in which he made the case for the Iraq war. The intriguing context of this case, however, does not gain Plame any relief. The CIA did not "officially" disclose information about Plame's pre-2002 service, even if it did refer to it in a private letter to Plame in the context of her retirement. While a Congressman cited the letter in publicly trying to enact legislation on Plame's behalf, the CIA did not know that Plame was going to provide the letter to Congress, and the letter itself inadvertently omitted the "classified" stamp which makes it contents off-limits. The Court of Appeals concludes, "a former employee's public disclosure of classified information cannot be deemed an 'official' act of the agency."

Plame also argues that the government's interest in classifying this information is weakened by the fact that the media had already publicized her pre-2002 role with the CIA. Plaim and amici suggest that including this information in her book allows her to participate in the public debate over the scandal that led to her resignation. The Court of Appeals disagrees, concluding that "This argument overlooks a critical fact: as a condition of her employment with the CIA, Ms. Wilson signed a contract forever waiving her right to 'disclose in any form or in any manner ... information which is classified ... and which I have obtained during the course of my employment" with the CIA. Plame remains bound by this agreement, which does not contain an exception allowing her to discuss classified information provided that no harm would result.

Student harassment case fails under "actual notice" test

It's illegal for school districts to condone racial harassment among students. But the legal standards for these cases makes them hard to win. You might think student harassment cases apply the same legal standards as workplace harassment cases. Think again.

The case is D.T. v. Somers Central School District, a summary order decided on October 15. The plaintiff is a black student who endured racial harassment from classmates. The Court of Appeals (Raggi, Livingston and Cogan) affirms summary judgment for the school district. The legal analysis shows how hard it is to win these cases. First, the district must have actual notice of the harassment, unlike in employment discrimination cases, where the employer can lose if it should have known about the harassment. Under Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), the Supreme Court rejected the "constructive notice" test in Title VI and Title IX cases. This means the parents' evidence in the form of affidavits from a psychologist and another parent about harassment against a different student are not relevant to this case.

Second, the school district loses the case only if its response to the racial (or sexual) harassment was "clearly unreasonable in light of the known circumstances." That's the rule in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). While an employer which unreasonably deals with sexual harassment loses the case, the "clearly unreasonable" test in school harassment cases is a much higher standard, a "deliberate indifference" test. The parents lose this case because "the record indicates that J.L.'s teacher reprimanded the alleged harasser for her actions in class and may have sent one of the two students out in the hall." In addition, there is no evidence that the teacher's response to the harassment caused subsequent harassment against plaintiff elsewhere in the building. Under Gebser and Davis, no deliberate indifference.

The Second Circuit decision does not tell us what happened to the student, but the district court ruling does. Classmates said he was "not black enough" and called him a "nigger." In the "cafeteria incident," "student MC and student L approached JL's lunch table and shook hands with everyone seated at the table, except JL and JL's friend, KF. During this encounter, L hit JL in the back of the head approximately twelve times, MC told JL that he was not being a 'good nigger' and MC grabbed JL's chair, causing JL to fall to the ground."

See how hard it is to win these cases? On this evidence, if J.L. was an employee at the school district and he suffered this kind of harassment, the school's response might well entitle him to victory. Why is it so hard to win student harassment cases? Part of the reason has to do with the fact that the Constitution's Spending Clause applies in deciding these cases, which invokes a different legal test.

When the Supreme Court recognized a cause of action for student-on-student harassment under Title VI, it did so in a close vote. Four Justices did not want these claims to proceed at all. Justice Kennedy in dissent warned of an "avalanche of liability" against schools. He added,

The only certainty flowing from the majority's decision is that scarce resources will be diverted from educating our children and that many school districts, desperate to avoid Title IX peer harassment suits, will adopt whatever federal code of student conduct and discipline the Department of Education sees fit to impose upon them. The Nation's schoolchildren will learn their first lessons about federalism in classrooms where the Federal Government is the ever-present regulator. The Federal Government will have insinuated itself not only into one of the most traditional areas of state concern but also into one of the most sensitive areas of human affairs. This federal control of the discipline of our Nation's schoolchildren is contrary to our traditions and inconsistent with the sensible administration of our schools.

As this was a 5-4 case, this language could have been the majority, and student-on-student lawsuits would have been scuttled from the outset.

Unusual jury verdict form costs plaintiff $12,000 in damages

When the judge gives the case over to the jury, the jury goes into a room with a verdict sheet to guide its deliberations. The verdict sheet contains questions that help the jury answer the questions relevant to the case. A good verdict form makes the process easy, sort of like a checklist. A bad verdict form, well ...

The case is Aczel v. Labonia, decided on October 9. This is a police beating case, and the jury awarded plaintiff about $12,000. But there were problems with the verdict form. The jury decided that the police officer did use excessive force and that plaintiff was entitled to damages. But the jury also found that the officer had qualified immunity from suit, which is a legal doctrine giving the police the benefit of the doubt in hard cases and relieves them of any liability. How can the jury find that the officer has qualified immunity but that he also has to pay the plaintiff $12,000 in damages for excessive force?

The trial court entered judgment for the officer on the basis that qualified immunity means no damages for plaintiff. Over a colorful dissent from Judge Pooler, the Court of Appeals (Leval and Parker) affirms the trial court. The bad verdict form produced two appeals to the Second Circuit. This opinion puts an end to the case. The plaintiff gets nothing, not even a new trial.

The majority says there is no inconsistency in what the jury did. "Those factual findings were (a) that Labonia used excessive force and (b) that Plaintiff suffered some damages caused by that use of excessive force, but that (c) Labonia reasonably believed his conduct was justified in the circumstances and was therefore entitled to qualified immunity." We can expect that excessive force will cause the plaintiff harm, but that reality is not inconsistent with the notion that the excessive force was justified under the circumstances. Qualified immunity trumps the excessive force finding. The damages award is a nullity, and the jury should not have tried to award them.

This case does provide some insight into how jurors think. After the jury came back with the inconsistent verdict, the judge told the jury to resume deliberating because qualified immunity means no damages. The jury then gave the judge a note stating it was trying to compromise among rigid positions and that it wanted plaintiff to at least recover his expenses and let the police officer off the hook. The judge told the jury it cannot do this; it's all or nothing. Then the jury gave the judge a note stating it wanted to reopen deliberations on the claims that it had already rejected. The jury left the inconsistent verdict sheet as it was and formally completed its deliberations. Apparently the jury liked the plaintiff ... but it liked the police officer also. This why the case went to the Second Circuit on two separate occasions.

The complicated nature of this case produced a lengthy dissent from Judge Pooler, who writes:

In this case, the jury’s initial verdict was an impermissible compromise between jurors who wanted to find that defendant-appellee Leonard Labonia was entitled to qualified immunity and jurors who wanted to award damages to plaintiff-appellant John Aczel. After the legal inconsistency was explained by the judge, the jury was invited to strike its damage award, if it indeed agreed that Labonia was entitled to qualified immunity. The jury could not reach agreement to do so. Nonetheless, the district court set aside the jury’s damages award. Never before have we permitted a district court to reconcile a jury’s inconsistent verdict, where the jury was asked to do so itself, but was unable to reach agreement. This result usurps the role of the jury and fails to accord proper deference to Aczel’s Seventh Amendment rights. I would vacate the district court’s judgment as to Aczel’s claims of excessive force and assault and battery against Labonia and remand for a new trial on those counts.