Wanna get sanctioned?

If you want to get sanctioned, bring a lawsuit that drives the Court of Appeals up the wall. Say, a truther lawsuit that alleges that the Bush administration orchestrated the 9/11 attacks.

The case is Gallop v. Cheney, decided on April 27. Gallop worked at the Pentagon on September 11, 2001. Her child was in the building that day. She and her child were injured. The lawsuit says that "former senior government officials caused the September 11, 2001 attacks against the United States in order to (a) create a political atmosphere in which they could pursue domestic and international policy objectives and (b) conceal the misallocation of $2.3 trillion in congressional appropriations to the Department of Defense." More specifically, the Court of Appeals (Cabranes, Winter and Walker) says:

the Complaint hypothesizes a fantastical alternative history to the widely accepted account of the “explosion” that injured Gallop and killed hundreds of other men and women inside the Pentagon. Among other things, Gallop’s complaint alleges that American Airlines Flight 77 did not crash into the Pentagon - indeed, that no plane crashed into the Pentagon. Complaint para. 4 (“[T]he official story, that a hijacked plane crashed into the Pentagon and exploded . . . is false.”). Instead, the Complaint alleges that the United States” most senior military and civilian leaders "cause[d] and arrange[d] for high explosive charges to be detonated inside the Pentagon, and/or a missile of some sort to be fired at the building . . . to give the false impression that hijackers had crashed the plane into the building, as had apparently happened in New York.” Complaint para. 3

This is poppycock, the Court of Appeals says. Since the Complaint contains "pure speculation and conjecture," "unsupported assumptions" and "fails to plausibly allege the existence of a conspiracy among defendants," the district court properly dismissed the case. But the Court of Appeals takes it step further. The district court did not sanction the plaintiff and her attorney. Finding that "this appeal, to say nothing of the original complaint, was 'brought without the slightest chance of success," the Second Circuit sua sponte imposes sanctions, ordering them to show cause why they should not be sanctioned in the amount of $15,000, to be divided among plaintiff and counsel.

Court of Appeals excuses one-day late habeas filing

If you are convicted inmate sitting in jail in Attica, New York, you know that the habeas corpus petition is your last chance. Imagine what it must feel like when your lawyer files the habeas petition one day late. One day!

The case is Dillon v. Conway, decided on April 26. After he was convicted of murder, assault, attempted robbery and criminal possession of a weapon, Dillon hired a lawyer to file the habeas action. After exhausting his state court appeals, the conviction became final on November 29, 2006, which gave Dillon until November 29, 2007 to file his petition in federal court. (There's a one-year statute of limitations for habeas corpus petitions). Dillon's lawyer, Langone, filed it in federal court on November 30, and the district court threw out the petition. The Court of Appeals (Cabranes, Lohier and Winter) reverses.

The Supreme Court says the deadline for these petitions is flexible, "subject to equitable tolling in appropriate cases." This exception applies if the inmate "has been pursuing his rights diligently and some extraordinary circumstance stood in his way and prevented timely filing." The "extraordinary circumstance" test makes this an uphill battle in most cases, but the Second Circuit says that Dillon satisfies it, though it regards this as a close case.

Here's why. First, Dillon was certainly pursuing his rights, repeatedly pressuring his lawyer to file the petition and specifically urging him not to wait until the last minute. He relied on his lawyer's assurance that the petition would be filed well in advance of the deadline.

Second, Dillon's lawyer's negligence constitutes an extraordinary circumstance. The lawyer thought that the petition was due one year and one day after the state court conviction became final. He held this belief because he misread a 1998 federal decision that applied that deadline in a different context; counsel knew this case well, as he was a paralegal for one of the law firms that worked on the case. The Court of Appeals observes,

although miscalculating a deadline is the sort of garden variety attorney error that cannot on its own rise to the level of extraordinary circumstances, Dillon's case involves more than a simple miscalculation. Langone in effect admitted affirmatively and knowing misleading Dillon by promising him that he would file the petition before November 30, 2007. Langone breached that promise when he failed to follow his client's instruction, with disastrous consequences that Dillon could neither have foreseen nor prevented.

No lawsuit for sex offender challenging New York's relocation conditions

The Interstate Compact for Adult Offender Supervision regulates the transfer of sex offenders from one state to another. Plaintiff in this case brought a lawsuit claiming that the New York Division of Parole violated the Compact in allowing him to move from New Jersey to New York provided he tell his New York employer about his conviction and his lifetime supervision. The Division also wanted plaintiff to allow New York to monitor his Internet use at home. He loses the case.

The case is M.F. v. State of New York Executive Department, Division of Parole, decided on April 11. As the Second Circuit (Lynch, Livingston and Parker) notes, the Compact is little-known. This is the first occasion for the Court of Appeals to take up this issue.

The question is whether the Compact can give rise to a cause of action. M.F. wants to sue because the conditions placed on his transfer to New York were unacceptable, causing him to refuse the transfer, which means he cannot live with his companion, who lives in New York. You can understand why M.F. rejected the Division's conditions: he did not want his employer to know that he was convicted in New Jersey of using the Internet to solicit sex from "underage individuals," as the Second Circuit tells us. His legal theory is that these conditions were unfair because an offender convicted in New York would not be subject to the same conditions.

Even if New York violated the Compact, M.F. cannot sue over this. The Compact does not give rise to a private cause of action. The Second Circuit's review of the Compact shows that Congress did not intend or imply that people can sue to enforce it. First, "the Compact's 'text and structure' make clear that it is solely an agreement between states, and not a source of private rights of action for the offenders whose interstate movement it governs." In addition, the statute creating the Compact "does nothing more than authorize states (1) to enter into agreements and compacts with each other for purposes of crime prevention, and (2) to establish agencies to oversee those interstate agreements and compacts."

Nominal damages for a non-trivial claim means attorneys' fees

Without attorneys' fees waiting for them at the conclusion of a successful civil rights case, most lawyers will not take the case. The clients cannot typically afford their representation, and the cases are too time-consuming for lawyers to litigate them for free. There's a catch, though. Under a 1992 Supreme Court ruling, victorious cases that result in nominal damages may not entitle the lawyer to any fees, because the nominal award is too trivial to justify attorneys' fees, which can cost the defendants thousands of dollars.

The case is Diamond v. O'Conner, a summary order decided on April 6. Here's what happened, as per the district court:

Diamond, an African-American, sued O’Connor, the South Burlington Police Department, unnamed officers of the South Burlington Police Department, and the City, alleging violations of his constitutional rights under 42 U.S.C. § 1983. He claimed that the Defendants unlawfully seized more than $5,000.00 of Diamond’s money on March 21, 2005, and that this seizure was racially based. Diamond also alleged a pattern of intimidation and harassment consistent with the policies of the South Burlington Police Department, where O’Connor was primarily responsible for drug enforcement.

At trial, the judge ruled in Diamond's favor under Rule 50, deciding that O'Connor violated Diamond's Fourth Amendment rights. You don't see that very often: the trial court granting plaintiff judgment as a matter of law without sending the claim to the jury. Diamond sought and was awarded nominal damages, or one dollar. A jury ruled in favor of O’Connor and the City on Diamond’s other claims. So Diamond's only victory is that O'Conner seized his property in violation of the Constitution, but he gets no damages for this.

Diamond's lawyer then petitioned the district court for attorneys' fees. Counsel was awarded about $100,000 on the claim that resulted in nominal damages. O'Connor appeals, arguing that nominal damages are essentially trivial damages and that Diamond should not get any attorneys fees at all. Now, the district court has broad discretion on these issues; the Second Circuit does not know the case the way the trial court did, and the trial court has to really blow it on the attorneys' fees issue for the Second Circuit to reverse. The Court of Appeals (Katzmann, Chin and Gleeson [D.J.] affirms the fee award, deciding that the trial court did not abuse its discretion.

The decision here tells us nothing about why this fee award was appropriate, but the district court provides some good background in this area, pointing out that, under Farrar v. Hobby, the 1992 Supreme Court decision on attorneys' fees and nominal damages, "under certain circumstances a prevailing party should receive no attorneys’s fees; for example, in a case where nominal damages are awarded to a plaintiff who sought and failed to prove compensable injury, a reasonable fee may be no fee at all." That happened, for example, in McCardle v. Haddad, 131 F.3d 43 (2d Cir. 1997), where the plaintiff won an employment discrimination verdict but the jury awarded no damages. But this case is different because, unlike most employment discrimination cases, O'Connor did not ask for any money damages and his case raises an important matter under constitutional law, i.e., police abuses. The district court stated:

[Diamond] did not itemize any damages in discovery. He testified that his primary goal in bringing and pursuing his lawsuit was to call attention to O’Connor’s illegal practices and to prevent further misconduct. Diamond’s lawsuit vindicated an important Constitutional right for one’s property to be secure from prolonged detention without probable cause. The judgment also alerts the City that O’Connor and other officers may require additional training and supervision to prevent violations of Constitutional rights. Having received complete relief on this claim, the case is distinguishable from Farrar and McCardle, and the Court concludes that reasonable attorneys’ fees are appropriate in this case.

Bad health-care proxy wipes out constitutional claim

Plaintiff sued Nassau County when its emergency responders ignored her request to take her sick husband to the hospital of her choice and then physically prevented her from interfering with their emergency care. The district court allowed her constitutional claim against the County to proceed to trial, but it dismissed her claim against the individual defendants. In a rare procedural maneuver, the Court of Appeals rules against the plaintiff pre-trial.

The case is Stein v. County of Nassau, a summary order decided on April 8. The individual defendants sought qualified immunity in the district court, which denied that request in ruling that the emergency responders did not have an objectively reasonable basis to ignore Rita Stein's directive in light of a health care proxy which allowed her to make decisions for her ailing husband. In particular, the district court said that the scope of the health care proxy extends beyond decisions in the hospital setting.

This normally means that Stein's case against the individual defendants goes to trial. In the federal system, you cannot take up an appeal until the case is over, post-trial. One exception to this rule is when the district court thinks its ruling is subject to legitimate debate and that the Court of Appeals should hear the appeal right away. This rarely happens, because even if the district court certifies the case for interlocutory appeal, the Court of Appeals still has to agree to hear the case.

The Second Circuit (Lynch, Sack and Straub) decide to take the appeal. It rules for the individual defendants, but on grounds that no one anticipated. The Circuit says that "the parties' focus below on the scope of health care proxies masked what appears to be a fundamental flaw in Rita's constitutional claim: there is no evidence that Milton's treating physician took the statutorily required steps to empower Rita to act as Milton's agent." In other words, the health care proxy didn't count. In order for the health care proxy to count under New York law, the physician must decide that the principal (Rita's husband) lacks capacity to make health care decisions. That determination must be made in writing. As there is no evidence of that written determination here, "it is therefore highly unlikely that Rita had the authority to dictate where Milton would be treated. Absent such authority, there could be no constitutional deprivation."

The Second Circuit ruling does not give us any of the factual background, but it was quite a scene, according to the district court, which tells us:

Mrs. Stein advised the Individual Defendants that she was Mr. Stein's health care agent, and thus was authorized to make medical decisions on his behalf given his incapacitation. The Individual Defendants refused to honor Mrs. Stein's status as Mr. Stein's health care agent, even though Mrs. Stein showed them the duly executed proxy designating her as such. During his deposition, Defendant Diaz testified that Nassau County instructed him not to honor health care proxies. Plaintiffs contend that health care proxies are always valid, regardless of the setting. Defendants contend that health care proxies are "not valid in a pre-hospital setting."

...

Without Mrs. Stein's consent and over her objection, Defendant Barthelson lifted Mrs. Stein off the floor and carried her out of the Steins' bedroom. Mrs. Stein concedes that she "intentionally attempted to obstruct the Defendants from taking Milton Stein out of the house." But Mrs. Stein claims that she was entitled to do so, because Defendants were ignoring her instructions as Mr. Stein's health care agent.

This result in the Court of Appeals, I'm sure, is devastating for Rita. Not only is she not getting a trial against the individual defendants on her constitutional claim, but the health care proxy was irregular, which means she had no authority to make decisions for her now-deceased husband. Someone blew it. Perhaps aware that this procedural error is an awful way to lose the case, the Court of Appeals provides a back-up holding that further supports its conclusion that Rita should not get a trial. It rules that, even with a good health care proxy, it was objectively reasonable for the defendants to believe they had no obligation to follow Rita's directives. She did not tell defendants that the a treating physician had made an independent determination that Milton was incapacitated. "As a result, the Individual Defendants had no reason to believe that Rita had the authority to act on Milton's behalf."

There may still be a trial on the other claims, though. From the looks of it, Rita has traditional tort claims against the emergency responders, flowing from her forced removal from the bedroom. The Second Circuit decides in its discretion not to decide whether the district court properly ruled in Rita's favor against the County. While Rita has state-law claims against the individuals, the case is remanded to the district court to determine whether they are entitled to any state-law immunities.

The ADA does not recognize the right to be left alone

The Americans With Disability requires employers to accommodate your disability. They have to do this if the accommodation allows you to do your job. We call this a "reasonable accommodation" under the statute. Not every accommodation is reasonable.

The case is Theilig v. United Tech Corp., a summary order decided on March 24. Theilig certainly had a disability under the ADA,having taken leave for heart surgery and receiving treatment for severe depression. To make a long story short, he wanted to work from home for two months. That could work in this day and age, with the Internet, email and videoconferencing and all, but not this case. Plaintiff wanted to work from home with "no direct person to person contact and definitely none with his previous co-workers." His psychiatrist said that the working with certain colleagues, in particular, with two supervisors, posed a risk of workplace violence or suicide.

This is not going to work under the ADA, the Court of Appeals (Katzmann, Raggi and Lohier) says. I have no idea what happened to this guy at work that he risks violence if he works again with his supervisors, but working home alone is not a reasonable accommodation, even in the modern electronic era. The Court of Appeals concludes:

While there is no per se rule against a change in supervisor, “[t]here is a presumption ... that a request to change supervisors is unreasonable, and the burden of overcoming that presumption (i.e., of demonstrating that, within the particular context of the plaintiff’s workplace, the request was reasonable) therefore lies with the plaintiff.” Here, where Theilig requested to have no contact whatsoever with any co-worker or supervisor, we conclude that he has not carried his burden of “identifying an accommodation ‘the costs of which, facially, do not clearly exceed its benefits.’”

Taking the law into your own hands

There is such a thing as constructive discharge. It's when workplace conditions are so horrible that you have no choice but to quit. Easier said than done. The Second Circuit almost never recognizes a constructive discharge claim. It's like taking the law into your own hands.

The case is Borski v. Staten Island Transit, a summary order decided on March 16. Borski says he suffered retaliation for complaining about "sexually-charged cartoons posted in the workplace." You'd never know from reading this decision what those cartoons looked like. For that, go to Google Scholar, which publishes district court decisions for free. Judge Townes (Eastern District of New York) wrote:

Plaintiff attached the allegedly "vile and insulting materials" to his EEOC charge. These materials consist primarily of a series of cartoons. Some are sexual in nature and include advertisements for sexually explicit DVDs and phone sex services. Others include magazine photos altered to portray enlarged body parts. Several of the cartoons make fun of the way that Mr. Borski dresses, including some that insinuate he wears women's clothes. Other cartoons appear to be mocking Mr. Borski for being stupid, lazy and an office gossip, while others appear to mock him for his ethnicity (Polish).

If you complain about discrimination at work and then you're fired, that's retaliation. If you quit your job, that might constitute an "adverse employment action" comparable to termination if the employer "intentionally creates a work atmosphere so intolerable that the plaintiff is forced to quit involuntarily." Borski loses because the postings "had stopped years before Borski decided to retire," the Court of Appeals (Parker, Lynch and Lohier) says. The Court explains:

Sometime in the late 1990s, after Borski had endured nearly twenty years of offensive cartoons posted throughout the workplace, he complained to his supervisor. Soon after that complaint, the postings ceased, and there is no evidence that Borski encountered similarly offensive conduct between January 1, 2000 and May 6, 2003, when he gave notice of his intent to retire. Given the three-year gap between the final posting and Borski’s retirement, he cannot, and does not attempt to, argue that SIRT “ratcheted the harassment up to the breaking point” directly prior to his decision to retire. There is thus no evidence that Borski’s complaint was met with retaliatory harassment. Furthermore, no reasonable jury could conclude that a reasonable person would feel compelled to quit his job over conduct that had ceased years earlier. Borski makes no attempt to explain why he was able to withstand years of offensive behavior but suddenly felt compelled to retire three years after such behavior ceased. Without such an explanation, or any evidence of intolerable working conditions at the time that he decided to retire, no reasonable jury could conclude that Borski was constructively discharged from his position.

No speech claim where officers exposed police misconduct

The fallout from the Supreme Court's ruling in Garcetti v. Ceballos, 547 U.S. 410 (2006), continues. Garcetti holds that public employees who speak out on matters of importance cannot sue for workplace retaliation if their speech grew out of their official job duties. What used to be a lively First Amendment retaliation jurisprudence in the Second Circuit has been reduced to routine summary orders throwing out cases that would have gone to trial only six years ago. The reason for this is that the best whistleblowing necessarily grows out of the plaintiff's job duties. Another such summary order has come down the pike involving police misconduct.

The case is Carter v. Village of Ocean Beach, decided on March 18. Since this case is a non-binding summary order, the Court of Appeals (Winter, Sack and Livingston) does not tell us much of what happened, other than the following:

The district court found that, even if plaintiffs’ factual claims were credited in full, they established only that plaintiffs spoke “pursuant to their official duties” and thus “not . . . as citizens for First Amendment purposes.” Garcetti, 547 U.S. at 421. We agree. Plaintiffs’ allegations establish no more than that they reported what they believed to be misconduct by a supervisor up the chain of command—misconduct they knew of only by virtue of their jobs as police officers and which they reported as “part-and-parcel of [their] concerns about [their] ability to properly execute [their] duties.” Weintraub v. Bd. of Educ., 593 F.3d 196, 203 (2d Cir. 2010); see also Garcetti, 547 U.S. at 421 (“speech that owes its existence to a public employee’s professional responsibilities” is made “pursuant to” that employee’s “official duties”). As such, they were not engaging in constitutionally protected speech at any relevant time and cannot make out a First Amendment claim.

To learn more about the case, you have to look at the district court opinion, which outlines what the plaintiffs actually said on the job:

All of plaintiffs' complaints to their superiors at the OBPD related to their concerns about their ability to properly execute their duties as police officers, as they expressed concern, inter alia, that the assignment of officers to chauffeur intoxicated officers left the OBPD short-handed, that the hiring of uncertified officers and the retention of unqualified and/or corrupt officers affected their ability to perform their job assignments safely and that they were told not to issue summonses to certain individuals and businesses. Plaintiffs' speech in challenging the Ocean Beach defendants' alleged cover-ups of officer misconduct, including their complaints to the Suffolk County District Attorney's Office, was undertaken in the course of performing one of their core employment responsibilities of enforcing the law and, thus, was speech made pursuant to their official duties. Moreover, all of the relevant speech reflected plaintiffs' special knowledge about the Ocean Beach defendants which was gained as a result of plaintiffs' position as police officers for those defendants based upon what plaintiffs' observed or learned from their job. "Restricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen." Garcetti, 547 U.S. at 421-422.

That's a lot of speech there. Pre-Garcetti, this was a good case. Post-Garcetti, everyone goes home. The officers spoke up about corruption and malfeasance at their police department. The plaintiffs tried to get around Garcetti and Weintraub by arguing that they went outside the chain of command. The district court shoots down that argument: "Although plaintiffs allege that they also complained of misconduct within the OBPD to the Village Board of Trustees, that is the entity with the authority to hire and fire police officers of the OBPD and, thus, was an upper echelon of plaintiffs' 'chain of command.'"

Fool's gold?

I have written a lot about the Second Circuit's Title VII pretext jurisprudence over the years. In short, the Supreme Court says that plaintiff has to show that management's reason for firing him was false, or a pretext. The Second Circuit usually requires something more than just pretext, i.e., independent evidence of racial or gender animus. But the Court sometimes (without explanation) retreats from that model, as it did in D'Cunha v. Genovese/Eckert Corp., 479 F.3d 193 (2d Cir. 2007).

D'Cunha's second appeal was decided by the Second Circuit on March 8. The Court of Appeals had D'Cunha's case in 2007, reversing summary judgment because the store rejected D'Cunha's application in favor of two younger women, and the reason that defendant gave for this decision was questionable. Nothing in the 2007 decision suggested anything particularly ageist about all of this, other than the age of plaintiff and the employees who instead got the job. So that was not a pretext-plus case.

After winning in the Court of Appeals in 2007, the case went to trial on remand, and D'Cunha lost. The jury did not find age discrimination. He does not win the appeal this time around. It's very difficult to win your appeal after the jury rejected your claims, and this case is no different. As the Second Circuit (Walker, Parker and Hall) summarizes the case at trial:

viewing the evidence in the light most favorable to the Appellee, a reasonable jury could conclude that age was not the “but for” cause of the Appellee’s failure to hire D’Cunha in either August 2001 or February 2002. The Appellee presented evidence that, in August 2001, D’Cunha requested a full-time position in New Jersey, close to New York and accessible by public transportation, and that it did not have such a position available. It also presented evidence that D’Cunha stated that he was not interested in the Sussex opening in February 2002. Although D’Cunha argues that the jury erroneously credited the testimony of the Appellee’s witnesses instead of his, in ruling on a motion for judgment as a matter of law, a court may not make credibility determinations and “must disregard all evidence favorable to the moving party that the jury is not required to believe.”

When the Second Circuit in 1997 adopted the pretext-plus formula in Fisher v. Vassar College, 114 F.3d 1332, the New York Law Journal ran an article on the implications of this new landscape. A lawyer who represented employers said that it was just as well, since pretext alone was not going to win trials, and that mere pretext was "fool's gold" without additional evidence of discrimination. That is not always true, but it's worth remembering as plaintiffs' lawyers devote thousands of dollars into cases that may not prevail at trial. The real lesson here is that a good case on paper may not pan out at trial.

But if you got a warrant, I guess you're gonna come in

The title refers to a Grateful Dead song. Warrants are the hallmark of the Fourth Amendment. They must be particular, a requirement placed by the Founders who reviled the use of general warrants by English Crown officials who "search[ed] where they pleased," the Supreme Court wrote in 1965. But even defective warrants can pass constitutional muster.

The case is U.S. v. Clark, decided on March 8. The warrant in this case allowed the police to search the entire premises of a particular multi-family dwelling. An informant of "unknown reliability" told the police that Clark was selling drugs from the building, over which he had "full control." The police found drugs during the search, and Clark was arrested, but the trial court suppressed the evidence because the warrant was defective.

The Court of Appeals (Raggi, Sack and Lynch) reverses, and Clark is therefore back in trouble. The Second Circuit agrees that something is wrong with this warrant because "we cannot identify a 'substantial basis' for the issuing judge to have authorized a search of the entire multi-family dwelling ... and all persons in it." While courts require that warrants "for a multiple-occupancy building be supported by a showing of probable cause as to each unit," that didn't happen here, and it is not enough for the informant to say in a conclusory manner that Clark had "control" over the building.

What saves the arrest is the "good faith" exception to the Fourth Amendment. That's right: the Fourth Amendment has an asterisk, placed there by the Supreme Court in U.S. v. Leon (1984). The good faith exception ensures that the police are not punished for the judge's error in issuing the bad warrant. It applies here because the judge did not abandon his judicial role and serve as a rubber stamp for the police. In order for that to happen, the judge has to effectively allow himself to become a member of the search party. No evidence of that here. The good faith exception also applies because, while the warrant was problematic, it was not facially deficient as that term has been defined by the courts. Since the warrant identified the place to be searched and the items to be seized (drugs and paraphernalia), it's good enough. And the affidavit in support of the warrant was not so bare-boned as to suggest the police were playing games with the system in order to search as they pleased.