2d Circuit vacates decision reinstating pro se plaintiff's victory

The below blog entry was written a day or two after the decision came down, but since that time the decsion has been withdrawn by the Court. Still worth a read.

The word of the year for plaintiff's lawyers these days is Iqbal, as in Ashcroft v. Iqbal, 129 S.Ct. 1949 (2009), a Supreme Court ruling that requires plaintiffs to file "plausible" complaints and dispenses with the more lenient "notice pleading" under the Federal Rules of Civil Procedure. But Iqbal is still a new case, and the Court of Appeals is still trying to figure it all out.

The case is DiPetto v. United States Postal Service, a summary order decided on May 12. DiPetto is suing pro se for employment discrimination. Pro se plaintiffs get the benefit of the doubt when courts are reviewing the sufficiency of their complaints. In the Second Circuit, the standard is that "dismissal of a pro se claim as insufficiently pleaded is appropriate only in the most unsustainable of cases." More broadly for the rest of us, heightened pleading requirements are not appropriate for civil rights cases alleging racial discrimination.

This cloudy mix of competing legal standards (Iqbal plausibility against solicitude for pro se litigants) compels the Court of Appeals (Miner, Walker and Lynch) to reinstate DiPetto's lawsuit. This is a rare victory in the Second Circuit for a pro se appellant. DePetto wins the appeal because "Appellant stated he was Caucasian, described specific discriminatory actions that had been taken against him by his supervisor, and alleged that he was treated differently, inter alia, on the basis of his race." In addition, the complaint provides relevant details, including the allegation that, "because he was Caucasian, he received less overtime and work breaks than other employees, and that sick and annual leave policies were applied differently to him." As this is "fair notice" to defendant about the basis for the discrimination claim, the complaint is good enough to be reinstated.

After this blog entry was posted, an astute reader emailed me to ask where he could find a copy of this opinion. It is no longer on the Second Circuit website, and it's not on Westlaw, either. The docket entries say that the decision summarized above was issued on May 12, 2010. But another entry for that same day says the decision was issued in error. The docket entry reads: "Notice to counsel in re: Order vacating summary order filed on 05/12/2010." The docket entries do not tell us why the decision was vacated.