2d Circuit rules in favor of JD Salinger in "Catcher in the Rye" copyright dispute

We all read the Catcher in the Rye, by JD Salinger. The book is a literary landmark that continues to impress scholars and critics today. This is why some writers try to capitalize on that book. Not an easy task.

The case is Salinger v. Colting, decided on April 30. Judge Calabresi has fun with this case, describing at length both the book and its influence over the years, as well as a few words about the reclusive Salinger (who died recently):

Catcher is a coming-of-age story about a disaffected sixteen-year-old boy, Holden Caulfield, who after being expelled from prep school wanders around New York City for several days before returning home. The story is told from Holden’s perspective and in his “own strange, wonderful, language.” Nash Burger, Books of the Times, N.Y. Times, July 16, 1951. Holden’s adventures highlight the contrast between his cynical portrait of a world full of “phonies” and “crooks” and his love of family, particularly his younger sister Phoebe and his deceased younger brother Allie, along with his developing romantic interest in a childhood friend, Jane Gallagher. While his affection for these individuals pushes him throughout the novel toward human contact, his disillusionment with humanity inclines him toward removing himself from society and living out his days as a recluse. He ultimately abandons his decision to live as recluse when Phoebe insists on accompanying him on his self-imposed exile.

Catcher was an instant success. It was on the New York Times best-seller list for over seven months and sold more than one million copies in its first ten years. Polly Morrice, Descended from Salinger, N.Y. Times, March 23, 2008. To date it has sold over 35 million copies, influenced dozens of literary works, and been the subject of “literally reams of criticism and comment.” Literary critic Louis Menand has identified Catcher “rewrites” as a “literary genre all its own.” The Holden character in particular has become a cultural icon of “adolescent alienation and rebellion,” a “moral genius” “who refuses to be socialized.”

Inseparable from the Catcher mystique is the lifestyle of its author, Salinger. Shortly after publishing Catcher, Salinger did what Holden did not do: he removed himself from society. Salinger has not published since 1965 and has never authorized any new narrative involving Holden or any work derivative of Catcher.

The defendant here is a writer, Colting, who wrote a book entitled, "60 Years Later: Coming Through the Rye," which "tells the story of a 76-year-old Holden Caulfield, referred to as 'Mr. C,' in a world that includes Mr. C’s 90-year-old author, a 'fictionalized Salinger.' The novel’s premise is that Salinger has been haunted by his creation and now wishes to bring him back to life in order to kill him. Unsurprisingly, this task is easier said than done. As the story progresses, Mr. C becomes increasingly self-aware and able to act in ways contrary to the will of Salinger. After a series of misadventures, Mr. C travels to Cornish, New Hampshire, where he meets Salinger in his home. Salinger finds he is unable to kill Mr. C and instead decides to set him free. The novel concludes with Mr. C reuniting with his younger sister, Phoebe, and an estranged son, Daniel."

I guess you could call this book "fan fiction." Salinger sought and received an injunction in district court against "60 Years Later." You can get an injunction at the start of the case if you are going to suffer "irreparable harm" without the injunction and you have a likelihood of success on the merits of the case. The Court of Appeals affirms, sort of, but not before analyzing recent Supreme Court authority in patent infringement cases, applying that case in copyright cases. That case is eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006).

Under the new standard, you cannot presume that a copyright violation will create irreparable harm necessary for a preliminary injunction. That issue will be for the district court on remand. The Second Circuit observes, "This is not to say that most copyright plaintiffs who have shown a likelihood of success on the merits would not be irreparably harmed absent preliminary injunctive relief. As an empirical matter, that may well be the case, and the historical tendency to issue preliminary injunctions readily in copyright cases may reflect just that." In other words, Salinger may well be able to prove irreparable harm, after all.

In the meantime, the Second Circuit rules that "there is no reason to disturb the District Court’s conclusion as to the factor it did consider — namely, that Salinger is likely to succeed on the merits of his copyright infringement claim." For you non-lawyers, this means that Salinger has a great case on the merits of his copyright case in that "60 Years Later" is substantially similar to "The Catcher in the Rye." The newer book is essentially a sequel to the Salinger classic. Indeed, the Second Circuit says that any argument to the contrary is "manifestly meritless."

Anti-war protester defeats qualified immunity in false arrest case

The Court of Appeals has ruled that an anti-war protester may proceed with a false arrest lawsuit against a police officer who claimed the plaintiff went limp when he ordered him to disperse. While courts often dismiss false arrest cases because the police had an objective reason to believe probable cause justified the arrest, this case is allowed to proceed.

The case is Bradley v. Jusino, decided by summary order on April 14. Bradley brings a false arrest claim against police officer Jusino, who arrested Bradley for Obstructing Governmental Administration arising from a street protest. The Court of Appeals (Feinberg, Calabresi and Raggi) lets the case go forward.

Confirming that every case has the potential to be interesting, the trial judge described the case this way:

This action initially appeared to be a relatively routine confrontation between a demonstrator and a police officer towards the end of an unexpectedly massive anti-war demonstration. However, the circumstances were unfamiliar to both Bradley, a 63-year old self-styled farmer from outside Ithaca, and Jusino, a very recent graduate of the Police Academy. Under these circumstances, difficulties in managing and presenting a qualified immunity defense in a false arrest case became manifest. The regrettable procedural tangle and ultimate resolution is described below.

Bradley claimed that Jusino was interfering with legitimate police practices, but Bradley testified that "while he was trapped in a dense crowd of protesters, a line of officers moving into the crowd bumped into him, he fell, he quickly rolled onto his stomach, face-down on the sidewalk, to protect himself as the line passed overhead, he felt someone grab his arm, lift him partway off the sidewalk, the drop him, and he was placed under arrest." As the Court of Appeals sees it, "these facts do not provide a basis, actual or arguable, to think that Bradley intended to disrupt police officers or cause public inconvenience."

Jusino claimed that he thought Bradley intentionally ignored police orders to disperse and that he went limp when Jusino grabbed him. On its face, Jusino is describing an Obstructing Governmental Administration charge, but the jury can reject Jusino's version of events and credit Bradley's version, particularly if the jury thinks the crowd was too dense to permit ready dispersal and Bradley did not have time to get up at Jusino's command. So that even though police officers can assert qualified immunity if they believe in good faith that probable cause justified the arrest, this immunity cannot attach if the jury is able to credit the plaintiff's testimony and draw the reasonable inference that the arrest lacked probable cause.

City of Bridgeport discrimination case gets some new plaintiffs

The City of Bridgeport Police Department has been under federal court supervision for over two decades, the byproduct of a racial discrimination suit filed in 1978. That case is still breathing, and now it has some additional plaintiffs thanks to a Second Circuit ruling that grants white police officers the right to intervene in the case. The Court of Appeals suggests, though, that this case cannot hang around forever.

The case is Bridgeport Guardians v. Delmonte, decided on April 27. After the district court issued a remedy order in 1982 upon finding that the police department discriminated against minority officers, this case has seen twists and turns over the years, to the point where the department has since been led by two African-American Chiefs of Police. As Judge Parker notes in writing the opinion, "Throughout this period, the only constant has been that the police department of Connecticut's third-largest city has been run under the supervision of a federal court and its appointed special master."

In 2008, the court entered an order that says the City must take all appropriate steps to ensure that its hiring practices do not have a disparate impact on minority candidates "by [among other things] utilizing race-neutral measures, including the appropriate weighting of the oral and written portions of the examination to reduce the disparate impact while preserving the validity and usefulness of the examination."

This order prompted the white and Hispanic officers to try to intervene in the case. Reversing the district court on this issue, the Second Circuit (Parker, Cabranes and Amon [D.J.]) allows the officers to intervene. These officers object to the 2008 order, claiming it would allow the City to adopt race-conscious promotional and hiring practices" that would adversely affect their interests. Since these white and Hispanic officers have an interest that clashes with that of the current plaintiffs, under Rule 24(a)(2), they want to intervene in the lawsuit. Largely following its precedent from 2001, Brennan v. New York City Board of Education, 260 F.3d 123, the Second Circuit reasons:

appellants are white and Hispanic male employees who claim that their employer has reached a settlement agreement in an employment discrimination suit that violates their rights. They, like the intervenors in Brennan, have an interest in their employers’ employment practices and, therefore, a settlement agreement that they assert infringes their statutory and constitutional rights. Under Brennan, therefore, the current officers have asserted an interest in their promotion that is sufficient for intervention, and have asserted that as a practical matter the interim order could impede their rights. As their rights are not represented by any other party – especially now that the Union is no longer involved – they are entitled to intervene.

The subtext here is disparate impact, which the Supreme Court recognizes as a violation of Title VII of the Civil Rights Act of 1964. Municipalities cannot adopt race-neutral employment practices that have a disparate impact on racial minorities without a showing of business necessity. In all likelihood, the intervenors in this case see the City's efforts to avoid disparate impact as a threat to their own promotional opportunities. Recall that the Supreme Court in another Connecticut case, Ricci v. DeStefano, 129 S.Ct. 2658 (2009), made it more difficult for employers to discard civil service tests "to achieve a more desirable racial distribution of promotion eligible candidates." Disparate impact figured heavily in the Ricci decision in that the City in that case wanted to avoid testing that would disproportionately hurt minority candidates. While the intervenors in the Bridgeport Guardians case decided on April 27 want the Court to throw out the district court's order because it violates the new rule in Ricci, the Second Circuit is sending the case back to the district court to take up that issue in the first instance.

The days are numbered for this case. At the end of the opinion, Judge Parker suggests that "the world has turned over many times since" this case was filed in 1978, and that "[e]xcept in highly unusual circumstances, it is the business of cities, not federal courts or special masters, to run police departments. At some point in time this litigation has to be ended. On remand, we are confident that the capable district judge will look hard for that point."

Missing alibi witnesses not enough to win ineffective assistance claim in federal court

It's time for a habeas corpus quiz. A criminal defendant claims on appeal that, in violation of the Sixth Amendment, he was denied effective assistance of trial counsel who did not take the time to check out or interview seven of his nine alibi witnesses who in some form or another claimed that the defendant was in Florida when the victim was murdered in New York City. Does he have a real habeas claim?

The case is Rosario v. Ercole, decided on April 12. The prosecutor claimed that the victim was shot and killed by Rosario on the street in the presence of two eyewitnesses. His first lawyer got money from the court to hire an investigator to check out Rosario's alibi witnesses who lived in Florida. This attorney testified at a subsequent hearing on Rosario's post-trial motion that she did not have the investigator travel to Florida to search them out and she admitted there was no strategic reason behind that choice. When that lawyer was replaced by new counsel, the new attorney mistakenly thought that the court had denied that request for alibi money, though he did try to contact the alibi witnesses by phone (and could not reach them). Despite this negligence, a state trial judge rejected Rosario's ineffective assistance claim. The Court of Appeals (Wesley and Cabranes)affirms, over a lengthy dissent from Judge Straub.

On the face of it, Rosario has a great ineffective assistance claim and should win the habeas corpus petition in federal court. But two factors work against that result. First, a state judge heard extensive evidence, including testimony from the seven alibi witnesses, and decided in the final analysis that Rosario's representation was good enough. Second, under the 1996 habeas corpus law, state courts get the benefit of the doubt once these motions reach federal court. The inmate has to show that the state court unreasonably applied settled Supreme Court precedent in resolving the constitutional issues raised by the habeas corpus petition. So that even if the state court got it wrong, it has to get it really wrong for the inmate to get that second bite at the apple in federal court.

The state judge did say that, in terms of credibility, the two alibi witnesses who testified for Rosario at his criminal trial were the best ones for Rosado, and that the ones whom his lawyers did not round up had various problems with their testimony which would have been largely cumulative in any event. The Second Circuit finds that the state judge did not unreasonably apply the Supreme Court's legal standard governing ineffective assistance claims.

In a 40+ page dissent, Judge Straub lets the majority have it. "This appeal presents an extraordinarily troubling set of circumstances," he writes, before summarizing the record and attacking Rosario's criminal lawyers for neglecting to try to prove his innocence through no less than seven additional alibi witnesses. This is especially galling, Judge Straub suggests, because the affirmative evidence of Rosado's guilt was weak, and the alibi witnesses in Florida could have made the difference at trial. He writes, "there is a reasonable probability that the jury's verdict would have been different" had these alibi witnesses turned up at trial. He adds, "there exists too much alibi evidence that was not presented to the jury, and too little evidence of guilt, to now have any confidence in the jury's verdict."

Supreme Court limits enhancements to statutory attorneys' fees

I was still running around the schoolyard when this happened, but the Supreme Court in 1975 dropped a bomb on the civil rights community when it ruled in the Alyeska Pipeline case that plaintiffs who win their cases are not entitled to recover attorneys' fees from the losing defendants. This prompted Congress in 1976 to pass the Civil Rights Attorneys' Fees Award Act which allows prevailing parties to recover fees from the defendants in civil rights and other public interest litigation (42 U.S.C. sec. 1988). The courts have been grappling with this legislation ever since. Once again, the Supreme Court weighs in.

The case is Perdue v. Kenny A., decided on April 21. The issue this time around is whether the winning lawyers in a civil rights case can recover a fee enhancement for exceptional work in handling the case. In order to understand this issue, you need to know the basic rules governing the attorneys' fees entitlement. This is a little simplistic, but the plaintiff wins a civil rights or environmental case, courts generally multiply the lawyer's hourly rate by the number of hours he worked on the case. We call that the "lodestar" method. It's an easy way to calculate the attorneys' fees, and after the court arrives at a dollar amount, the number is usually reduced if the lawyer spent too much time on the case or did not prevail on all issues.

Is the lawyer entitled to a special enhancement for exceptional work, above and beyond the lodestar? The trial judge in the Perdue case thought so. These lawyers beat the hell out of the State of Georgia in challenging the way it ran its public foster homes. In this class action lawsuit representing 3,000 children who (according to Justice Breyer's concurrence/dissent) endured hellish living conditions, it took the lawyers roughly 30,000 hours to perform the work, and the attorneys' fees application sought more than $14 million. The trial court awarded about $6 million in fees, and then enhanced that award by 75 percent, raising the attorneys' fees by another $4.5 million. I have never seen a fee award this high, but the trial court said the lawyers' performance was the finest he had ever seen in his 27 years on the bench.

The Supreme Court takes away that enhancement, ruling that the trial court did not clearly identify any compelling reasons for it. Writing for a 5-4 majority, Justice Alito endorses the lodestar approach to calculating attorneys' fees, warts and all, and says that multiplying the hours spent on the case by the lawyers' hourly rates, will be enough except in the rare and exceptional cases. In order to recover an enhanced fee above and beyond the lodestar, counsel must proffer "specific evidence that the lodestar fee would not have been adequate to attract competent counsel." Moreover, while "there is a strong presumption that the lodestar figure is reasonable, ... that presumption may be overcome in those rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee."

This is going to be a very tough standard for lawyers to satisfy. The Court goes out of its way to emphasize how prevailing lawyers are going to rarely recover an enhanced fee, treating us with language that warns against attorney windfalls:

Section 1988 serves an important public purpose by making it possible for persons without means to bring suit to vindicate their rights. But unjustified enhancements that serve only to enrich attorneys are not consistent with the statute’s aim. In many cases, attorney’s fees awarded under §1988 are not paid by the individuals responsible for the constitutional or statutory violations on which the judgment is based. Instead, the fees are paid in effect by state and local taxpayers, and because state and local governments have limited budgets, money that is used to pay attorney’s fees is money that cannot be used for pro-grams that provide vital public services.

This language will certainly under criticism. Doesn't the insurance company pay out attorneys' fees, and not the taxpayers? In any event, the Court does suggest you can get an enhancement if "the method used in determining the hourly rate employed in the lodestar calculation does not adequately measure the attorney's true market value, as demonstrated in part through the litigation." An enhancement may also be appropriate if "the attorney's performance includes an extraordinary outlay of expenses and the litigation is exceptionally protracted." Another reason to enhance would be cases where "an attorney's performance involves exceptional delay in the payment of fees."

2d Circuit smacks down State Court of Appeals in habeas ruling

Legal malpractice claims are the last refuge of the inmate who wants to get out of jail. Most ineffective assistance claims fail, but some inmates hit the jackpot. Racky Ramchair certainly did.

The case is Ramchair v. Conway, decided on April 2. Ramchair went to jail on a robbery conviction. He then filed a habeas corpus petition challenging the performance of his attorney who handled the appeal in the state courts. This habeas petition was not going to be easy. You have to jump through hoops these days to win a habeas petition. First, you have to show that the state court ruling on appeal was an unreasonable application of settled constitutional law. Second, Ramchair in particular was arguing that the well-respected New York Court of Appeals had unreasonably applied settled constitutional law.

So how did Ramchair win the habeas petition? Ramchair's attorney was present at the arguably suggestive lineup right after Ramchair's arrest. At the criminal trial, the district attorney wanted the jury to think the lineup was fine as proven by the failure of Ramchair's attorney to contemporaneously object to the lineup, at which Ramchair was identified as the perpretator of the crime. As Ramchair's lawyer at trial was the same lawyer who was present at the lineup, this evidence created a real problem. A lawyer cannot testify at the very trial he is litigating, so he asked for a mistrial so that Ramchair could hire another trial lawyer and the lineup attorney could testify at the next trial. The judge denied the mistrial.

The ineffective assistance claim is that Ramchair's lawyer on appeal did not challenge this mistrial denial in the state appeals courts. This was a potentially meritorious claim, so the failure to raise it on appeal was quite problematic. Why was it potentially meritorious? The Second Circuit observes that "the clear implication was that [Ramchair's lawyer] conceded that the lineup was fair."

The legal issue actually raised by Ramchair's appellate counsel was weak. The stronger claim -- challenging the criminal court judge's refusal to grant a mistrial -- was much stronger, but appellate counsel did not raise that issue on appeal. As the Second Circuit (Winter, Calabresi and Sack) says, "appellate counsel's failure to raise the mistrial claim was not a sound strategic decision, but a mistake based on counsel's misunderstanding that the mistrial claim, which trial counsel explicitly made, had not been preserved. We agree ... that this mistake rose to the level of constitutional ineffectiveness, and that the New York Court of Appeals' decision to the contrary was an unreasonable application of clearly established Supreme Court precedent."

If you follow habeas claims in the Second Circuit, you'll find that most of the "bad" state appellate rulings that unreasonably applied settled constitutional law are from the Appellate Division, the mid-level appeals court in New York. In this case, it was the State Court of Appeals that blew it. I have not seen that in quite a while. The Second Circuit has a good relationship with the State Court of Appeals in that the latter sometimes resolves complicated state law issues for the former. But in this case, the Second Circuit makes it clear that, in rejecting Ramchair's ineffective assistance of counsel claim, the State Court of Appeals mistakenly ruled that Ramchair's appellate lawyer filed a comprehensive brief in challenging the conviction. And since appellate counsel testified in connection with the habeas petition that she did not raise that issue out of mistake, and not strategy, the State Court of Appeals got it wrong in finding otherwise.

True, the State and Federal Courts of Appeals have a nice relationship. But the Second Circuit's smackdown in the Ramchair case is strictly business. Nothing personal.

Sloth-like permit process for guns may violate Due Process Clause

Service at the gun counter was rotten. As rotten as asking a teenage worker at Stop And Shop to check in the back room to look for any more sale items. That's when teenage Johnnie goes on his lunch break, and you are standing in Aisle 7 waiting for assistance.

That's what it felt like for M. Peter Kuck, who went to the Connecticut Department of Public Safety to renew his gun permit. Kuck refused to provide documents to verify his citizenship, an insulting requirement in his view, so he appealed to Board of Firearms Permit Examiners. The problem for Kuck was that there was no sense of urgency at the Board, which takes forever to process the appeals. So long, in fact, that the Board may be violating the Due Process Clause.

The case is Kuck v. Danaher, decided on March 23. Kuck's permit appeal was not scheduled to be heard for 18 months. Under the Due Process Clause, "a delay amounts to a due process violation only where it renders the prescribed procedures meaningless in relation to the private interests at stake," the Court of Appeals tells us. While the courts will tolerate a relatively brief administrative delay that takes into account the bureaucratic workload, there are limits to the court's patience.

The courts resolve these disputes by weighing the citizen's property or liberty interest against the risk of erroneous deprivation of that interest as well as government's interest in maintaining these procedures. We call this the Matthews balancing test, named after a Supreme Court ruling from 1976. At this stage of the case (the district court dismissed Kuck's complaint without any pre-trial discovery), the Second Circuit (Parker, Straub and Livingston) says that the state may have violated Kuck's due process rights. While Kuck's right to gun ownership is not as pressing as the need for a vehicle to drive to work or any interference with his livelihood, Connecticut law does provide for the right to own a gun, "an interest that is highly valued by many of the state's citizens," Judge Parker writes. Kuck also convinces the Court of Appeals that DPS often denies these permits after non-trivial delays for bogus reasons, a factor that also tips the Matthews test in his favor. While the state has a compelling interest in making sure that guns don't wind up in the wrong hands, the state cannot dismiss this case simply by arguing "that public safety is important and appeals have gotten backed up." As the Court of Appeals concludes, "the State gives no account of how or why public safety requires unsuccessful applicants to wait a year-and-a-half for an appeal hearing."

Judge Straub calls out the Second Circuit in qualified immunity

Qualified immunity is no joke. If you bring a Section 1983 case, the individual defendants may be entitled to qualified immunity if their actions were objectionably reasonable even if, in hindsight, the defendant violated the Constitution. A few years ago, Judge Sotomayor suggested that the Second Circuit has been misinterpreting the Supreme Court's qualified immunity case law. Judge Sotomayor now sits on the Supreme Court, but Judge Straub on the Second Circuit is now carrying the torch.

The case is Taravella v. Town of Wolcott, decided on March 16. The Court of Appeals (Jacobs and Hall) holds that the plaintiff cannot proceed with his procedural due process case arising from his employment dispute with the Town. Not the most intriguing case in the world ... except that Judge Straub dissents on the merits and also suggests the Second Circuit's qualified immunity rules miss the bullseye.

The Second Circuit's current qualified immunity doctrine reads like this:

A government official sued in his individual capacity ... is entitled to qualified immunity in any of three circumstances: (1) if the conduct attributed to him is not prohibited by federal law ... ; or (2) where that conduct is so prohibited, if the plaintiff’s right not to be subjected to such conduct by the defendant was not clearly established at the time of the conduct ... ; or (3) if the defendant’s action was objectively legally reasonable ... in light of the legal rules that were clearly established at the time it was taken. X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 65-66 (2d Cir. 1999)

This means that even if the governing case law was clearly established (and in hindsight it looks like the defendant broke the law), that defendant can still avoid liability if his actions were objectively reasonable. Judge Straub has given this a lot of thought. Other Second Circuit cases only describe qualified immunity in two steps, i.e., whether the defendant's conduct was prohibited by law and whether the case law at the time was clearly established on that point. The objective reasonableness prong is sometimes omitted from the analysis in Second Circuit cases. It is the objective reasonablness angle which prompts judges to dismiss a lot of Section 1983 cases on the basis that the defendant acted reasonably at the time on the basis of facts known to him, i.e., he was confronted with a strange or urgent set of circumstances and used his reasonable judgment.

As Judge Sotomayor noted in her concurrence in Walczyk v. Rio, 496 F.3d 139, 166 (2d Cir. 2007), the "objective reasonablness" prong finds no support in Supreme Court case law and the Second Circuit is therefore erecting an additional hurdle for plaintiffs in civil rights cases. Judge Straub now adopts Judge Sotomayor's take on this issue, highlighting an inconsistency between Second Circuit and Supreme Court decisions and even an inconsistency in the Second Circuit, depending on the panel hearing the case. The case law in this area remains muddled, Judge Straub notes. This lack of clarity cries out for full Second Circuit review, Judge Straub suggests, summarizing his views as follows:

I attempt to call our Court’s attention to the apparent long-standing inconsistency in our case law regarding the proper standard for analyzing qualified immunity claims. We should — and it is my hope that we soon will — resolve this inconsistency by holding that qualified immunity is decided in accordance with a two-step analysis: (1) a court must determine whether the facts, taken in the light most favorable to the party asserting the injury, show that the state official’s conduct violated a constitutional right; and (2) even if a constitutional violation can be made out on a favorable view of the submissions, the official is entitled to immunity if the right was not clearly established.

It's not easy to open a neighborhood sex shop

The First Amendment prevents towns and villages from outlawing sex shops, but the courts give them a fair amount of leeway to regulate their location. A recent Second Circuit case gives you a good primer on the rules of the road.

The case is TJS of New York v. Town of Smithtown, decided on March 10. I would guess that the average person does not want this "filth" in his neighborhood. On the other hand, someone is obviously frequenting these adult entertainment places, or they would not be in business. Unless the mayor is a customer, there is no easy way to reconcile these competing issues.

First things first. The Court of Appeals (Calabresi, Winter and Sack) outlines the Supreme Court's framework for evaluating the legality of restrictions on these businesses. Municipalities can regulate these places so long as they leave open "reasonable avenues of communication for adult-only businesses." Normally, you can find them on the edge of town somewhere. These alternative locations have to provide a "reasonable opportunity to locate and operate such a business."

The first question is one that the Second Circuit has never resolved: what is the time frame in determining whether the town is providing a reasonable alternative for these businesses. Do we look to whether there were any such locations when the law was passed, or is that question answered when the lawsuit is filed? The operative time frame is when the lawsuit is filed. This means that the regulation could be constitutional when the town passed it in 1974, but subsequent development and construction may render the regulation unconstitutional in 2010 if there are no good places left for the adults-only nightclub. Although the Town argues that this new rule will over time permit repeated lawsuits against the same law, Judge Calabresi provides the benefits of this new rule:

Although the rule we endorse today might in some circumstances open ordinances up to more than one attack, it would only do so if there were significant changes in the surrounding community. And the burden of pleading and proving such charges with particularity could well be put on the plaintiff. Furthermore, the implications of the reverse rule would be constitutionally troubling. If the only relevant question were whether an ordinance provided adequate alternatives on the day of its passage, any law that did so would thereafter be immune from First Amendment challenge. And speech that the Supreme Court has held to be protected by that Amendment would be silenced. Conversely, a strict time-of-passage rule might arguably make it impossible for a city to save a constitutionally deficient ordinance: post-enactment remedial measures taken by a city to make alternative sites more available (such as opening new land to development) would, in theory, seem to be just as constitutionally irrelevant as developments limiting the availability of such alternatives. Our holding avoids these perverse results.

So TJS of New York makes it easier for other adult-only businesses to operate in your hometown. But TJS is unable to win this case as to its own business ambitions. Although the Town has to make space available for these businesses, it does not have to provide them the best possible locations. "Where the physical features of a site or the manner in which it has been developed are 'totally incompatible with any average commercial business,' or the site lacks the basic infrastructure that is a precondition to private development, it should not be considered part of the relevant real estate market for purposes of determining availability." On the other hand, "whether or not sites fit the specific needs of adult businesses ... is constitutionally irrelevant."

While TJS says that the Town has to make available land that would be compatible with other businesses sharing similar physical characteristics (such as Blockbuster Video, CVS Pharmacy or Wendy's), that is not the law. If the available land is too large or too small for the adult-only business, that's just too bad. "Obstacles such as the possibility of 'making due with less space than one desired,' or 'having to purchase a larger lot than one needs,' do not render property unavailable for the purpose of constitutional analysis. Alternative sites need only be available, not attractive."

Another case falls into the Garcetti graveyard

Things changed when the Supreme Court in 2006 tightened up the legal standards governing the rights of public employees who speak out on the job. The old formulation was that you can't suffer retaliation for speaking out on matters of public concern. The new test, in Garcetti v. Ceballos, 547 U.S. 410 (2006), is that speech arising from your "official duties" is not protected speech, no matter how important the subject matter.

The Garcetti cases are now starting to trickle in from the Second Circuit. A few months ago, the Court of Appeals rejected a First Amendment retaliation case where a public school teacher filed a grievance complaining about how the school disciplined an unruly student. (Weintraub v. Board of Education, 593 F.3d 196 (2d Cir. 2010)). This time around, the Court of Appeals rejects a case where a public employee advocated on behalf of a subordinate who complained about profiteering on public property.

The case is Huth v. Haslin, decided on March 11. Huth was the supervisor. Archer was the subordinate who told Huth that Thruway employees were selling bootleg DVD's on Thruway Authority premises. Archer also told Huth that a supervisor was engaging in reverse discrimination in the workplace. Huth conveyed this information to her supervisor, Bloomer. The Thruway Authority then accused Huth of unrelated misconduct, prompting her to bring a lawsuit. Afterwards, the Thruway Authority demoted Huth, which led to an amended complaint alleging that she was demoted in retaliation for the lawsuit.

Huth's case fails for two reasons. First, the Court of Appeals (Cabranes, Hall and Stein [D.J.], tells us, "Huth passed along Archer’s concerns about the actions of certain Thruway Authority employees to the head of Huth’s division and that she did so at daily meetings when they discussed the employees in their division. We have no difficulty concluding that such speech was made not as a 'citizen' but, rather, pursuant to Huth’s official duties as a Thruway Authority employee and supervisor."

But what about the lawsuit? Doesn't it violate the First Amendment to suffer demotion in retaliation for challenging an (allegedly) false charge of misconduct leveled against her in retaliation for reporting a subordinate's complaint about illegal behavior at work? In other words, does the initial lawsuit alleging retaliation for reporting illegal conduct qualify as First Amendment activity? This may surprise you, but the answer is no. The lawsuit was not protected activity under the First Amendment. The Second Circuit summarizes its reasoning:

The record also makes plain that Huth’s present lawsuit, asserting claims for monetary and punitive damages, does not qualify as speech "on a matter of public concern." Huth’s original complaint, which she contends was protected speech and the basis for defendants’ further retaliation, alleged only that defendants retaliated against her for specific statements she made to her supervisor and for the union activities of Archer. Much like other public employee speech that we have held not to be protected from retaliation by the First Amendment, Huth’s lawsuit was "personal in nature and generally related to her own situation.”

Why is this so? Because Huth's lawsuit did not reflect that she "wanted to debate issues of ... discrimination, that her suit sought relief against pervasive or systemic misconduct by a public agency or public officials, or that her suit was part of an overall effort ... to correct allegedly unlawful practices or bring them to public attention.” Since the original complaint was personal in nature and was not part of a broader effort to grieve systemic problems in the workplace, it does not qualify as First Amendment activity.

Sex offender does not have due process claim

I would guess that due process claims are among the hardest to win in the federal courts. Many claims die because the plaintiff does not have a property or liberty interest, the deprivation of which is necessary for the government to provide you fair process. Other cases die because the availability of an Article 78 under New York law (an expedited lawsuit in the state courts) is by itself due process. Sometimes, due process claims arising from reputational damage are allowed to proceed, but the legal requirements for those claims are so difficult that these "stigma plus" claims routinely die an orderly death, probably because the court think these cases are nothing more than routine defamation cases cloaked in constitutional language.

The case is Vega v. Lantz, decided on March 2. No, due process claims are not for everyone, and they sure as hell are not for Vega, an inmate who was sentenced to a very long jail term after a jury convicted him of some of the worst sex-related crimes imaginable. I would imagine that the Court of Appeals (Sack, Parker and Goldberg [D.J.], initially reacted that way when they reviewed the record in this case. Then they realized they are trained professionals and must resolve the case properly.

Stigma-plus cases are a due process offshoot. You can challenge the fairness of government classifications or statements that ruin your reputation. Vega was classified as a sex offender, which "exposed him to harassment from prison officials and other inmates, as well as a denial of access to various programs such as one that permitted him to tutor other inmates." His argument was that he was not actually acquitted of any sexual offense but, instead, assault in the first degree and kidnapping. The district court ruled in his favor, but the Court of Appeals reverses.

As the Second Circuit notes, "while it may be the case that, in certain circumstances, misclassification as a sex offender results in stigma plus, this possibility is of no particular assistance to Vega because he has not established a threshold requirement – the existence of a reputation-tarnishing statement that is false. ... Vega has not alleged that the conduct underlying his conviction for assault – the removal of a teenage girl’s nipple and the forcing her to swallow it – did not occur. Nor has Vega alleged that Department officials were unreasonable in classifying this conviction a 'sexual offense' that involved 'physical conduct.'"

The 30-day deadline to appeal is sacrosanct

Weekends are sacrosanct. So are deadlines. In particular, deadlines for filing the notice of appeal. There is nothing easier than typing up the notice of appeal. You probably have an old notice of appeal in your computer anyway. Just change the caption. Then attach the judgment and a check for $455 and send it to the district court.

The case is Napoli v. Town of New Windsor, decided on March 29. This case alleges that the Town violated a public employee's First Amendment rights. After the district court denied qualified immunity for the named defendant, his lawyer asked the judge in writing to clarify the decision, i.e., whether the Town Supervisor was a policymaker under Monell v. Department of Social Services, 436 U.S. 658 (1978). The district court ruled in plaintiff's favor on these post-motion inquiries.

Qualified immunity denials entitle you to an immediate appeal, even before trial. But you only have 30 days to file a notice of appeal. Those 30 days can fly past you like a summer's day. It's a jurisdictional deadline, so the ease with which you can prepare the notice of appeal is nothing compared to the devastation of missing the deadline by even one day. There are few grounds for an extension, and you should not really count on the district court granting you one.

What happened here was that the defendant did not file the notice of appeal within 30 days of the qualified immunity decision. He did so after the district court resolved the post-motion inquiries. This was too late. The rule is that "when the lower court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered ... the period within which an appeal must be taken ... begins to run anew." This exception does not apply here. The district court's post-summary judgment ruling did not mention or seek to clarify the qualified immunity decision but, instead, raised unrelated issues, i.e., Monell liability. "The district court's clarification of issues completely unrelated to qualified immunity did not start the time in which defendants can seek an interlocutory appeal."

This issue may seem clear, but the Second Circuit (Pooler, Raggi and Livingston) relies on cases from around the Circuits for the proposition that an unrelated clarification does not start the time for a notice of appeal. If the law was not clear in the Second Circuit prior to this case, it is now.

Workplace retaliation case survives summary judgment

Retaliation cases can go to trial on the basis of circumstantial evidence, but nothing helps a retaliation case like direct evidence. That's why the City of Amsterdam is going to trial in Angelita Kercado-Clymer's case.

The case is Kercado-Clymer v. City of Amsterdam, a summary order decided on March 25. Plaintiff's hostile work environment did not survive appeal, but her retaliation claim does.

Here is the well-known legal standard for retaliation: To establish a prima facie case of Title VII retaliation, a plaintiff must show (1) “participation in a protected activity known to the defendant,” (2) “an employment action disadvantaging the plaintiff,” and (3) “a causal connection between the protected activity and the adverse employment action.” Supervisor Brownell knew that plaintiff filed a discrimination complaint with the local human rights agency. Shortly after plaintiff exercised her rights, Brownell began taking it out on her. The Court of Appeals summarizes the evidence:

[A] month after she filed the complaint, Brownell caused Kercado-Clymer to receive a counseling memorandum and then several months later he initiated disciplinary charges against her for driving the wrong way down a one-way street leading to her loss of accrued vacation time. He also banned her from desk duty during the week. A reasonable trier of fact could find that the counseling memorandum, disciplinary charges, loss of accrued vacation, and ban from desk duty could all dissuade a reasonable worker from making or supporting a charge of discrimination.

The above snippet is the circumstantial evidence. But there is also direct evidence in the form of Brownell's hostile statements to the press. He said that Kercado-Clymer is “a chronic complainer,” “professional victim,” and “one of [his] worst employees” who “blatantly lied,” “was never qualified to be hired,” “has always demanded special treatment,” “and can’t be trusted,” following her filing of this suit, and the testimony of a male officer that Brownell has a reputation for being vindictive.

Although the Court of Appeals issued this decision as a summary order (and not a precedential published opinion), this case is a little more interesting than you might think. First, as noted above, the Court of Appeals deems it relevant that a co-worker testified about Brownell's vindictive reputation. That evidence is certainly music to the ears of plaintiffs' attorneys, but I'm sure the City will file a motion in limine to exclude this evidence at trial on the basis that reputational evidence violates Fed.R.Evid. 404, which prohibits propensity evidence. Then again, if the Second Circuit treats this as relevant evidence, the district court may very well deny the City's motion.

Another quirk is that this retaliation case was filed under 42 U.S.C. sec. 1983, which enforces the Equal Protection Clause. But courts have held that non-First Amendment retaliation cases (i.e., cases like this one which mirror retaliation cases filed under Title VII) cannot support an Equal Protection claim. It's not clear to me how this claim made it this far. As the Second Circuit held in 1993, "it has been assumed in this Circuit that a § 1983 claim is not precluded by a concurrent Title VII claim, when the former is based on substantive rights distinct from Title VII. A plaintiff cannot use Section 1983 to gain perceived advantages not available to a Title VII claimant, but a plaintiff can assert a claim under Section 1983 if some law other than Title VII is the source of the right alleged to have been denied." Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 143 (2d Cir. 1993).