First Amendment requires that Transit Authority open up its hearings to the public

The New York City Transit Authority holds a hearing to resolve whether someone allegedly violated TA rules. Those hearings were closed to the public if the defendant didn't want anyone in the hearing room. The Second Circuit holds that this policy is unconstitutional. I know that many of us can't wait to watch these hearings from gavel to gavel, one after another, until they throw us out of the building. Now we have that opportunity.

The case is New York Civil Liberties Union v. New York City Transit Authority, decided on July 20. The police can issue citations if you violate subway or other public transportation rules. You can contest the citation at a hearing. The City argued that the hearings should not be accessible to the public because alleged rules violators may forgo the hearing to avoid any invasions of privacy. But there is no evidence to back this up. This is really just an arbitrary policy of the Transit Authority to presume that these hearings should be closed to the public. Speculation is not a legitimate basis to get around the First Amendment.

The Second Circuit (Calabresi, Leval and Lynch) says that the First Amendment requires that these hearings be open to the public. Here's how the Court of Appeals sees it: it quotes a 63 year-old Supreme Court ruling to the effect that "Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account." The Supreme Court has also said that criminal trials are open to the public unless a good reason justifies closing the courtroom. The Second Circuit has taken that one step further. In 1984, it said that the First Amendment guarantees a qualified right of access to civil trials as well.

This logic extends to the the Transit Authority's administrative hearings. True, there were no administrative hearings when the First Amendment was adopted in the 18th Century. But, who cares? The hearings are trial-like, and that's enough. Since the Transit Authority's hearings are structured like the adversarial proceedings that the public is allowed to attend, these hearings cannot be off-limits. The Court of Appeals reasons that the "[Transit Adjudication Bureau] acts as an adjudicatory body, operates under procedures modeled on those of the courts, and 'imposes official and practical consequences upon members of society.'"

2d Circuit vacates low attorneys' fees award

If you represent plaintiffs in civil rights cases, you know that once the district court rules on your attorneys' fees motion, the "abuse of discretion" standard of appellate review makes it nearly impossible to overcome the initial fee award on appeal. The district court is where the action is on these motion, not the Court of Appeals. But that's not always the case.

The case is Vincent v. Commissioner of Social Security, decided on July 8. Thanks to her lawyer, Schneider, Vincent got her social security disability benefits. Vincent lost at the administrative level. Through his successful appeal to the federal court, Schneider persuaded the Northern District of New York to rule in Vincent's favor. Under the Equal Access to Justice Act, counsel sought about $8,200 in legal fees. The district court instead awarded him about $2,700, for several reasons. As the Court of Appeals (Walker, Calabresi and Wesley) puts it, "The district court held that Schneider’s failure to develop the record constituted 'special circumstances' that, under the Equal Access to Justice Act, would render a full award 'unjust.' In addition, the district court viewed the length of time Schneider billed for preparing the fee application as “clearly excessive and unreasonable.' The district court also expressed concern that Schneider’s billing records provided only 'conclusory explanations' for 'several lengthy increments of time' and improperly intermingled legal and clerical tasks."

That's a mouthful of reasons to sharply reduce Schneider's attorneys' fees. Since the Court of Appeals does like to wade into the muck in second-guessing the district court's nuanced analysis on attorneys' fees, the eye-opener here is that the Second Circuit overruled the district court's objections and then remanded the case to a different magistrate judge.

While the EAJA allows the courts to reduce attorneys' fees under "special circumstances," this case does not rise to that level. Under Circuit precedent, "A prevailing party can therefore be denied attorney’s fees under the EAJA for 'special circumstances' when his own misconduct created the circumstances that led to the litigation, and when that party’s contributions to the litigation’s success were 'marginal, duplicative and unnecessary.'” Does counsel's inadequate representation qualify as a special circumstance? The Court of Appeals decides this question for the first time.

The administrative law judge attacked Schneider's competence because, the ALJ said, his client had credibility problems, which is why the ALJ ruled against her. Judge Walker writes,

In the circumstances of this case, in which the ALJ gave Vincent no notice of his credibility concerns, it was the ALJ’s responsibility to develop the facts related to this collateral issue. ... The district court erred in concluding that Schneider shared responsibility with the ALJ for these omissions. In the district court’s view, Schneider should have identified the discrepancy in Vincent’s work history and preemptively addressed it, and also should have developed the record to explain Vincent’s noncompliance with treatment recommendations. The district court demanded too much of counsel. If we endorsed the district court’s position, counsel would have to anticipate and refute all conceivable credibility issues to be assured recovery of attorney’s fees after prevailing on appeal. This is not, nor should it be, the bar against which representation in Social Security matters is assessed for purposes of awarding EAJA fees.

The Court of Appeals says that the ALJ did not give Schneider notice about his credibility concerns, and it was not Schneider's fault that the ALJ deemed her incredible. That ruling may be of interest only to lawyers who represent clients in social security cases. But the Court of Appeals also vacates the low attorneys' fees award on grounds that affect the civil rights bar. The district court reduced the fee entitlement because it thought that Schneider spent too much time on the fee application. But the fee petition raised a novel legal issue of whether the "special circumstances" exception applied here. This justified the nearly 23 hours that counsel spent on the fee petition. It was an abuse of discretion for the district court to find that Schneider wasted time in pursuing his fees. As Judge Walker writes:

It is therefore unsurprising that the EAJA briefing here would demand more attention and time than a standard fee application. Furthermore, by rebuking Schneider in the remand order, which preceded Vincent’s fee motion, the district court alerted Schneider that it viewed his entitlement to fees with skepticism. That alone made this an atypical EAJA application, one that required Schneider to concentrate more effort than usual in convincing the district court that he had earned the fees requested. The district court therefore appears to have underappreciated the degree of effort warranted by the EAJA motion.

Finally, the district court abused its discretion in reducing the attorneys' fees on the basis of its concerns about the adequacy of Schneider's billing records, which were allegedly too vague or sought compensation for clerical tasks. The district court got it wrong in ruling this way without giving counsel an opportunity to respond to the court's concerns about these records. The case is remanded to the district court to reconsider the fee application.

However, a different judge will review the fee petition on remand. The Court of Appeals notes that this same Magistrate Judge improperly ruled against Schneider's fee petition in a different case a few years ago. The Second Circuit decides that a different judge should get this case this time around.

Police officer's refusal to falsify report protected under the First Amendment

The Court of Appeals holds that the First Amendment prohibits the City of Middletown from terminating a probationary police officer in retaliation for refusing to falsify a police report that implicated a sergeant in police brutality.

The case is Jackler v. Byrne, decided on July 22. Bergstein & Ullrich, represented the plaintiff, along with the firm of Dupee & Monroe. In this case, the Second Circuit (Kearse, Katzmann and Sack) distinguishes Garcetti v. Ceballos, 547 U.S. 410 (2006) and Weintraub v. Board of Education, 593 F.3d 196 (2d Cir. 2010), which restricted the speech rights of public employees who speak out pursuant to their official duties. This case went into the Garcetti graveyard also, as the district court reluctantly held that Jackler's refusal to falsify the police report was sufficiently related to his official job duties as to bring his expression out of the First Amendment's protections.

The Second Circuit sees it differently. The Court notes that, in Garcetti, the Supreme Court said that two inquiries govern whether employee speech is protected under the First Amendment: "whether the subject of the employee's speech was a matter of public concern and whether the employee spoke 'as a citizen' rather than solely as an employee." Jackler spoke on a matter of concern to the public because "exposure of official misconduct, especially within the police department, is generally of great consequence to the public." Although Jackler did not make an affirmative statement about police misconduct, it is settled law that the refusal to speak is also protected under the First Amendment under certain circumstances. The Court adds, "Jackler had a strong First Amendment interest in refusing to make a report that was dishonest. We think it clear that his refusals to change his statement as to what he witnessed when Metakes struck Jones were directed at a matter of public concern, rather than an effort to further some private interest of Jackler personally. The use of excessive force by a police officer is a matter of serious public concern."

Defendants argued that this case fell within Garcetti's holding that speech relating to official duties falls outside the First Amendment's protections. Not so, the Court of Appeals says:

Although defendants argue that Jackler's refusals were part of his job and that Garcetti requires affirmance because otherwise any employee who simply files a truthful report could claim that his First Amendment rights were implicated because he did not file a false one, we reject that contention because it ignores the context of Jackler's refusals. Jackler's allegation -- which must be accepted as true in the context of judgment on the pleadings -- was that Rickard and Freeman, as directed by Chief Byrne, repeatedly attempted to force him to withdraw the truthful report he had filed and to submit one that was false. In the context of the demands that Jackler retract his truthful statements and make statements that were false, we conclude that his refusals to accede to those demands constituted speech activity that was significantly different from the mere filing of his initial Report.

Finally, the Court of Appeals holds that the interests of workplace efficiency (an interest that kills many a Garcetti case) do not outweigh Jackler's interest in refusing to falsify the police report. Likewise, while many Section 1983 cases die on the qualified immunity vine, this one does not. The Second Circuit says that the law in 2006, when Jackler was fired, was clear that exposing government malfeasance was clearly-established. And, "Any uncertainty introduced by Garcetti and Weintraub, which were not decided until after defendants' retaliation against Jackler (and which, for the reasons discussed above, do not deprive Jackler of First Amendment protection for his refusals to lie), would not entitle defendants to qualified immunity because the availability of that defense depends on whether the unlawfulness of their conduct was apparent in light of 'pre-existing law.' Wilson v. Layne, 526 U.S. 603, 615 (1999)."

Bergstein & Ullrich prevail in public employee free speech appeal

By Larry Neumeister, Associated Press

July 22, 2011

NEW YORK — A federal appeals court Friday breathed new life into the claims by a probationary police officer in upstate New York that his First Amendment rights were violated when he was fired for refusing to lie about an excessive force claim against a fellow officer.

The 2nd U.S. Circuit Court of Appeals in Manhattan reinstated Jason Jackler's lawsuit against the police chief and others in the Middletown Police Department, reversing a lower court judge who had reluctantly rejected his arguments on the grounds that Jackler's speech was in his official capacity and not as a citizen.

"The government as an employer has broad discretion to manage its operations. But that discretion does not include authority to coerce or intimidate its employees to engage in criminal conduct by filing reports that are false in order to conceal wrongdoing by another employee or to conceal eyewitness corroboration of civilian complaints of such wrongdoing," the three-judge panel wrote.

The police department did not say in legal papers that it agreed with Jackler's claims that he was ordered to change his report but the department and the court had to accept the claims as fact at this stage of the court proceedings. As the case proceeds toward trial, interviews will be conducted and documents will be analyzed by both sides to clarify the facts.

In returning the case to U.S. District Judge Cathy Seibel in White Plains, the appeals court also indicated it disagreed with her when she said she believed that the defendants might win dismissal of the case on the grounds that they enjoy immunity from the lawsuit because of their government positions.

"Though a mere mistake in the performance of an official duty may not deprive the officer of the defense, the qualified immunity doctrine does not shield performance that either was in violation of clearly established law or was plainly incompetent," the appeals court said.

Jackler said he was fired in January 2006, days after refusing to alter a report in which he said another officer struck a disorderly conduct suspect in the face. He had been a probationary officer since January 2005. His lawsuit seeking unspecified damages named the Middletown police chief and other police lieutenants and administrators.

Brian Sokoloff, a lawyer for the police defendants, said of the ruling: "We need to digest it and consider what our options are."

Stephen Bergstein, a lawyer for Jackler, who now works elsewhere in Orange County as a police officer, predicted the ruling would make it easier nationwide for police officers to speak out against wrongdoing.

"Police officers shouldn't have to worry about losing their jobs for standing up for the right thing," he said. "This was a pretty resounding win for police officers like Jackler who normally would be afraid to speak out.

The 2nd Circuit said a series of court cases have made clear that a citizen who enters government service must accept certain limitations, but those limits narrow on issues of public concern.

"Police malfeasance consisting of the use of excessive force is plainly a matter of public concern," the court wrote. "In sum, it is clear that the First Amendment protects the rights of a citizen to refuse to retract a report to the police that he believes is true, to refuse to make a statement that he believes is false, and to refuse to engage in unlawful conduct by filing a false report with the police."

Jackler's actions, the court said, has a "clear civilian analogue and that Jackler was not simply doing his job in refusing to obey those orders from the department's top administrative officers and the chief of police."

Town violated anti-war protester's First Amendment rights

The Court of Appeals holds that an upstate New York town violated the First Amendment when it interfered with an anti-war protester's efforts to hold a rally on Town property where patriotic celebrations regularly take place there. This kind of viewpoint discrimination is unconstitutional.

The case is Coe v. Town of Blooming Grove, decided on July 20. Bergstein & Ullrich, LLP, represented the plaintiff, with help from Scott Korenbaum, Esq. It all started in 2006, when Rev. Coe wanted to hold a rally at Moffat lawn, which fronts the library in the center of town. She was dissuaded from applying for a permit because town law required all permit applicants to obtain a $1 million insurance policy, which she could not afford. She sued in federal court, and on the preliminary injunction application, the trial court ordered the town board to take up her permit application. It did so, and granted her permission to hold the rally. But since all this happened at the last minute, few people attended the rally. On the motion for summary judgment, the district court held that (1) contrary to the town's position, the lawn is a public forum, open to all protesters and (2) she was entitled to damages because the unconstitutional mandatory insurance requirement interfered with her efforts to hold a well-attended rally. These holdings were unique; few federal decisions in New York provide guidance on which properties constitute public forums. Even fewer decisions hold that mandatory insurance policies violate the First Amendment if the municipality does not provide any waivers for the indigent.

Adamant that Rev. Coe cannot hold rallies at this location, the town appealed. The Court of Appeals affirms, but on an alternate ground. Rev. Coe proved through photographs from the local newspaper archive that the Town had allowed VFW and other organizations to hold Memorial and Veterans Day celebrations at Moffat lawn for years, at least since the 1930s. In allowing these celebrations to take place year after year, the town created a limited public forum and therefore engaged in viewpoint discrimination, in violation of the First Amendment. Here's how the Second Circuit (Parker, Chin and Lohier) sees it:

The Town and Village opened the Lawn for expression on the subjects of war and military service when they permitted speakers from private groups, including the Veterans of Foreign Wars (“VFW”), to use it without obtaining liability insurance. The Town and Village argue that the VFW’s speech merely conveyed the government’s message and thus does not prove the Lawn was opened for private expression, but we find no evidence that the Town or Village authorized, approved, controlled, or ratified the VFW’s speech, cf. Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1134 (2009), or that the VFW communicated governmental messages when it addressed these subjects.

By contrast, when Coe asked to hold a peace rally at the Lawn to speak on the same general subjects, the Town informed her “that [she] needed to take out a [$1 million] liability insurance policy.” The Town also rejected her request for a waiver of this requirement based on her inability to afford it. In this context, a liability insurance requirement is a prior restraint on speech. ... Because Coe’s speech fell within the scope of prior uses of the Lawn, the selective enforcement of the liability insurance requirement against her constituted unlawful viewpoint discrimination. Even though Coe sought to speak on the same topics as the VFW (i.e., war and military service), apparently she alone was required to obtain $1 million of liability insurance before being allowed to speak.

What this means is that government speech stands alone under the First Amendment; the government does not unlawfully discriminate if it promotes its own message on government property. But that is not what happened here. The Memorial and Veterans Day celebrations were not government speech but community speech. If you open up the property for speakers expressing a certain point of view, then you have to lets others use that property also if they want to speak on the same subject matter. Rev. Coe wanted to hold a public assembly on war and peace just as VFW does. The Town cannot prevent her from doing so.

Three strikes and yer outta there!

Because inmate litigation is bringing down western civilization as we know it, Congress in the mid-1990s enacted the Prison Litigation Reform Act, which says among other things that inmates must pay their filing fees if they have already filed three frivolous lawsuits. This is the "three-strikes-you're-out" rule. It only affects inmates who want to proceed in forma pauperis, which lets the court waive the filing fees if the inmate has no money.

The case is Mills v. Fischer, decided on July 14. Congress may have the answer to some of our problems, but it doesn't have all the answers. In passing the PLRA, Congress tried to define what it means to file a frivolous lawsuit. But it did not say that a lawsuit against defendants with judicial immunity is a "strike" under the statute. This is where Mills comes in.

Mills has filed and lost a bunch of lawsuits and appeals against immune defendants. Some of those defendants enjoyed judicial immunity. Now, any lawyer who represents an inmate will refrain from suing judges or anyone else with judicial immunity. But Mills either did not know this or he did know this and filed his lawsuits anyway. In this case, he wants the Court of Appeals to grant his in forma pauperis motion. No dice. As Chief Judge Jacobs sums up the case:

In some instances, Mills’s litigation initiations were dismissed on the ground of judicial immunity. The IFP statute does not explicitly categorize as frivolous a claim dismissed by reason of judicial immunity, but we will: Any claim dismissed on the ground of absolute judicial immunity is “frivolous” for purposes of 28 U.S.C. § 1915(g). Mills’s (more than) three strikes therefore disqualify him from IFP status.

The Second Circuit thus fills in the blanks left open by the PLRA. If Mills does not find the money to pay for this litigation within 30 days, it will be dismissed.

The courtroom is not a schoolyard

Would you walk into court with a baseball hat and casual clothing? Most attorneys would not. If you did, would you claim a First Amendment right to do this? One attorney did. The Second Circuit says there is no such right.

The case is Bank v. Katz, a summary order decided on June 17. The Second Circuit (Hall, Miner and Sack) says, "Bank alleges that the defendants violated his constitutional rights under the First and Fourteenth Amendments by orally directing him not to wear a baseball hat when appearing in court and by admonishing him for wearing inappropriately casual attire."

The First Amendment can be complicated, but the Second Circuit is not going to accept Banks' argument. (Bank is a lawyer, by the way). The government, including trial courts, may restrict speech if those restrictions are consistent with the purpose of the forum, in this instance, the courtroom. The Court of Appeals says, "A courthouse serves to provide a locus in which civil and criminal disputes can be adjudicated. Within this staid environment, the presiding judge is charged with the responsibility of maintaining proper order and decorum. The restriction as alleged is therefore reasonable."

Banks also invokes his liberty interest in his personal appearance. Even assuming that such a right exists, Banks "identifies no legal basis for concluding that a lawyer's interest in dressing as he pleases when appearing in court rises to the level of a fundamental constitutional right, nor are we able to discern one. Accordingly, we apply rational-basis review to Bank's Fourteenth Amendment claim. We conclude that the defendants' instructions that Bank remove his baseball hat when appearing in court were rationally related to the legitimate governmental purpose of maintaining order and decorum in the courtroom." Hey, the courtroom is not a schoolyard.

ADA tester has standing to sue Nanuet Mall for disasbility violations

The Court of Appeals has reinstated a disability discrimination suit brought by a wheelchair-bound paraplegic who sued Nanuet Mall over public access violations and wants to return to the mall, in part, to test its compliance with the Americans with Disabilities Act.

The case is Harty v. Simon Property Group, a summary order decided on June 29. The Second Circuit (Miner, Raggi and Lynch) makes two rulings: Harty has standing to bring this action and he also states a claim for disability discrimination.

The Americans with Disabilities Act allows plaintiffs to sue for injunctive relief. But in order to get an injunction, the plaintiff has to show that he suffered an ADA violation at the public establishment and that he intends to return there in the future such that he will likely suffer another violation someday. The district court held that Harty had no standing to seek an injunction, but the Court of Appeals reverses because he plans to return as a patron "to avail himself of the goods and services offered to the public at the property" and also as a tester to make sure that the Nanuet Mall is complying with the ADA. He also travels to gun shows around the country, and in returning to the area for that purpose, he intends to shop at Nanuet Mall. On remand, the district court is free to conduct discovery and fact-finding to ensure that Harty truly intends to return to the Nanuet Mall in the future.

The case law in the area of ADA standing is sparse; this could have been a published opinion. The holding that Harty has standing, in part, because he wants to return as a tester seems innovative in light of the district court's ruling, as follows:

Plaintiff's status as a tester does not confer standing. See Judy v. Pingue, 2009 U.S. Dist. LEXIS 109990 (S.D.Ohio Nov. 25, 2009) (“Any tester status that [Plaintiff] might possess does not confer standing to seek prospective relief where he cannot show a reasonable likelihood of returning to [Defendant's] property.”) (collecting cases); Kelly Johnson, Note: Testers Standing Up for Title III of the ADA, 59 Case W. Res. 683, 698 (2009) (“The vast majority of courts that have dealt with the issue [of testers in the context of ADA litigation] have denied standing to plaintiffs.”) (collecting cases); see, e.g., Access 4 All, Inc. v. Thirty E. 30th St., LLC, 2006 U.S. Dist. LEXIS 96742, at *30-31, 2009 WL 4261389 (S.D.N.Y. Dec. 11, 2006) (intending to return to Property to assess compliance with ADA is not sufficient to establish standing).

The other question on appeal is whether Harty has a real claim under the ADA on the merits. The Second Circuit says that he does. You can read this decision until you are blue in the face and have no idea what actually happened to Harty to prompt this lawsuit. The district court opinion says that "Plaintiff, who 'is mobility impaired and is bound to ambulate in a wheelchair,' alleges that Defendant has discriminated [and is continuing to discriminate] against the Plaintiff by denying him access to, and full and equal enjoyment of, the goods, services, facilities, privileges, advantages, and/or accommodations of the subject property, as prohibited by [the ADA]. Defendant's alleged violations include, but are not limited to, lack of accessible routes, accessible public restrooms, and access to goods and services."

Good news for plaintiffs' lawyers who want to make a living

The Court of Appeals holds that a preliminary injunction in a civil rights case entitles the successful attorney to his counsel fees even if the case is mooted out on appeal. This decision distinguishes a recent Supreme Court case that held that a preliminary injunction that dissolves on the merits down the road leaves the attorney empty-handed.

The case is Kirk v. New York State Department of Education, decided on July 6. Kirk is a veterinarian who wanted to practice his trade in the United States. He could not do so because he was here on a visa and was not a citizen or lawful permanent resident. The district court struck down as unconstitutional the offending provision of the Education Law on Kirk's preliminary injunction application. Kirk thus gets a permanent license. The kicker here is that Kirk eventually got permanent resident status a few months after the preliminary injunction. The case was therefore mooted and the judgment was vacated.

Under older Second Circuit precedent, this successful maneuver entitled Kirk's lawyer to attorneys' fees. But in 2007, the Supreme Court held in Sole v. Wyner, 551 U.S. 74 (2007), that a preliminary injunction that dissolves at the end of the case on the merits does not entitle the lawyer to any attorneys' fees. Sole was the rare case where the district court granted preliminary relief because the plaintiff's case had a likelihood of success on the merits, but on further review, that same court rejected the case en toto.

Kirk's case is distinguished from Sole because, while Kirk's injunction was later vacated, that only happened because it was mooted once he got permanent resident status. Unlike the plaintiff in Sole, Kirk got the injunction on a fully-developed record, not in haste. Also, Kirk's injunction was vacated out of mootness, not on the merits. And, unlike Sole, Kirk got his permanent license, which is the reason he brought the lawsuit in the lawsuit in the first place. As the Court of Appeals (Parker, Feinberg and Wesley) notes, Kirk did not leave court "empty-handed." And, thanks to this decision, neither does his attorney.

For whom the statute of limitations tolls

Inmates are in jail for the long haul. This guy was in jail and filed an in-house grievance, a necessary prerequisite to a federal lawsuit over his prison conditions. The odds were against him, for any number of reasons. He prevails in the Court of Appeals.

The case is Gonzalez v. Hasty, decided on June 22. Under the Prison Litigation Reform Act, inmates cannot bring suit in federal court without first grieving their disputes in the jail. These grievances are often futile, as jail officials are not keen to side with the inmate. Still, that's what Congress put in place in 1996, when it passed the PLRA to reduce inmate lawsuits. If Gonzalez knew that his grievance, filed in 2001 or 2002, would take this long to wind its way through administrative and judicial processes, he might not have bothered. But he did.

Gonzalez was confined in solitary for nearly 1100 consecutive days. He says this confinement was for no good reason. After waiting out the administrative process triggered by his grievance, Gonzalez filed suit in federal court in May 2005. Since you have three years to bring a civil rights case, the government argued that the case was time-barred, since the solitary confinement ended more than three years earlier. (The operative date in determining the timeliness of this lawsuit is July 24, 2001). The district court threw out the case under Rule 12. Gonzalez's lawsuit did not even get out of the starting gate.

The Court of Appeals (Hall, Jacobs and Pooler) reinstates the lawsuit. It took two years for the Second Circuit to issue a decision, which means that once discovery begins, Gonzalez will be litigating issues that happened ten years ago. The case is revived under the doctrine of "equitable tolling." The statute of limitations was tolled until Gonzalez fully exhausted his PLRA administrative remedies in August 2002. Other federal appeals courts have already resolved this issue. The Second Circuit notes, "our sister circuits that have squarely confronted the question presented here is applicable" have held that "tolling is applicable during the time period in which an inmate is actively exhausting his administrative remedies." This may seem like common-sense, but looming over this case, I'm sure, was Congress's desire to cut off these cases at the knees. Equitable tolling is bigger than the PLRA, and it's bigger than all of us.

What complicates this case further is the Second Circuit's determination that "the applicable three-year statute of limitations is tolled only during that exhaustion period and not during the period in between the accrual of those claims and when Gonzalez began the administrative remedy process." In other words, if plaintiff waited too long to file the grievance, this case may be time-barred after all. No one seems to know when Gonzalez could have filed the grievance. The case is remanded to the district court to figure that out.

How to get sanctioned by the Court of Appeals, part 2

A few weeks ago, the Second Circuit sanctioned a lawyer for bringing a lawsuit claiming that the Bush administration orchestrated the 9/11 attacks. Not in a million years would the Court of Appeals, or any other court, rule in this guy's favor. But the Court of Appeals took things a step further: it sanctioned the lawyer for bringing frivolous litigation. A summary of that case is here. It gets worse for this lawyer.

The case is Gallop v. Cheney, decided on July 7. Summarizing the opinion in Gallop I, the Second Circuit writes:

In our opinion, we determined, as the District Court had, that Gallop’s complaint — which alleged that former senior government officials caused the September 11, 2001 attacks against the United States in order to (1) create a political atmosphere in which they could pursue domestic and international policy objectives and (2) conceal the misallocation of $2.3 trillion in congressional appropriations to the Department of Defense—was frivolous. We also ordered Gallop and her counsel to show cause why they should not be sanctioned for filing a frivolous appeal under Federal Rule of Appellate Procedure 38, 28 U.S.C. § 1927, and the inherent power of this Court.

Now the lawyer wants the Court of Appeals to either re-hear the appeal or hear it en banc. En banc involves having all the judges on the Court hear the case, beyond the three judges who actually heard the appeal the first time around. Those three judges are known as "the panel." The Second Circuit rarely hears cases en banc, but there's no harm in trying. What hurts the lawyer this time around is his request "to disqualify the panel from consideration of that petition and any other aspect of her appeal, including the imposition of sanctions. Gallop argues that this Court’s opinion demonstrates an 'evident severe bias' arising from the panel’s 'active personal emotions' associated with the attacks of September 11, 2001, which merits disqualification."

In particular, the Court says, "In his affidavit in support of Gallop’s motion for disqualification, William Veale — one of Gallop’s counsel of record — 'demand[s]' not only that the panel, but 'any other members of the bench of this Circuit who share their feelings[,] be recused.'" Why kick an angry dog? The Second Circuit was angry enough about this case. Why insult the court even further with this recusal request? The Court of Appeals (Cabranes, Winter and Walker) has had enough, ruling that this request is as frivolous as the lawsuit itself, stating, "rather than pursuing his client’s interests, Veale’s actions appear to be malicious — intended, in bad faith, to use his position as an attorney of record to harass and disparage the court." The lawyer is again sanctioned for making this request.

Here's a flavor of the attorney's affidavit which offended the Second Circuit:

Plaintiff-Appellants thus assert, respectfully, that the panel members, living and working in the vortex of still-fresh emotions and patriotic fervor arising from the attack, appear to be altogether prejudiced and full of hard feelings against any accusation of complicity among U.S. officials, let alone a claim of outright, murderous conspiracy by commanders of the highest rank; and thus they were unable to be objective and impartial in judging the merits of such a charge, and the facts put forth in support. This animus led them to ignore even so striking and sensational an item of proof as the testimony of Secretary Mineta — a perennial Democrat member of the House of Representatives, and winner of the Medal of Freedom, then serving in the Republican Cabinet, a man so eminent that a major international airport is named after him — about Cheney‘s standdown orders, for example.

They even go so far as to eschew completely any reference whatsoever to the evidence — including defendants‘ own fishy and contradictory statements — concerning where the defendants were and what they were doing at the time of the crime. It is as if, in reviewing the case of a liquor store robbery, you ignored a report that the suspect was seen entering the store with a mask on and a gun in his hand.

And Judge Walker, as we urged, clearly was separately disqualified under 28 U.S.C. 455(b)(5)(iii) by virtue of his family connection to then-President Bush, and to his cousin Wirt Walker, then a principal in the firm providing security at the Twin Towers, each of whom surely has ― an interest that could be substantially affected by the outcome‖ of this case, as the statute provides.

Anti-prostitution policy requirement violates the First Amendment

The Court of Appeals has held that recipients of government money to fight AIDS and other diseases around the world cannot be forced to affirmatively take a public stand against prostitution. This case strikes down that requirement under the First Amendment, which prohibits viewpoint discrimination.

The case is Alliance for Open Society International v. U.S. Agency for International Development, decided on June 6. The viewpoint discrimination doctrine is confused and difficult, borne out by a few Supreme Court rulings over the years, including Rust v. Sullivan, which held in 1991 that the First Amendment did not prohibit the government from requiring family planning offices to refrain from encouraging or promoting abortion as a method of family planning if they wanted to receive government money.

But first, the question most of us may have is, "why can't these aid recipients just take a stand against international prostitution?" There is an answer to this question, as Judge Parker points out for the 2-1 majority:

the WHO and UNAIDS have taken a public position at odds with the Policy Requirement, recognizing the reduction of penalties for prostitution as a best practice in the fight against HIV/AIDS. Defendants attempt to distinguish these exempted recipients on the ground that they are “public international organizations,” such that forcing them to adopt an anti-prostitution policy would require “multilateral negotiations.” But if anti-prostitution advocacy were central to the government’s program, it could, of course, simply choose not to fund these organizations. In short, the Agencies’ suggestion that requiring Plaintiffs to adopt an anti-prostitution policy statement is integral to the Leadership Act program is undermined by the fact that the government has chosen to fund high-profile, global organizations that remain free to express—and indeed openly express—a contrary policy, or no policy at all.

Anyway, the Policy Requirement to take a stand against prostitution violates the First Amendment in a couple of ways. While the government may impose conditions on the receipt of public money, this case pushes things "considerably further and mandates that recipients affirmatively say something — that they are 'opposed to the practice[] of prostitution,' The Policy Requirement is viewpoint-based, and it compels recipients, as a condition of funding, to espouse the government’s position."

The Court adds, "Although viewpoint-based funding conditions that target speech are not necessarily unconstitutional, such conditions are constitutionally troublesome." As "the targeted speech, concerning prostitution in the context of the international HIV/AIDS-prevention effort, is a subject of international debate," the government cannot impose its viewpoint in order to receive money to fight AIDS and other diseases around the world.

The anti-prostitution requirement also represents compelled speech, a doctrine known to most of us through the cases holding that children cannot be forced to recite the Pledge of Allegiance. The Court of Appeals says, "where, as here, the government seeks to affirmatively require government-preferred speech, its efforts raise serious First Amendment concerns." Compelled speech is a separate doctrine from viewpoint discrimination, but it's also prohibited under the Constitution.

The Second Circuit is nothing if not cautious. It outlines the limits of this decision in stating that the government may, in other cases, force its viewpoints on others if that viewpoint is central to the policy for which it is distributing government money. The Court says:

We do not mean to imply that the government may never require affirmative, viewpoint specific speech as a condition of participating in a federal program. ... [I]f the government were to fund a campaign urging children to “Just Say No” to drugs, we do not doubt that it could require grantees to state that they oppose drug use by children. But in that scenario, the government’s program is, in effect, its message. That is not so here. The stated purpose of the Leadership Act is to fight HIV/AIDS, as well as tuberculosis, and malaria. Defendants cannot now recast the Leadership Act’s global HIV/AIDS-prevention program as an anti-prostitution messaging campaign.

Some constitutional violations are too trivial to matter

The Sixth Amendment ensures the right to a public trial. We don't think about the Sixth Amendment much; it gets overshadowed by free speech, search and seizure and cruel and inhuman punishment. But did you know that a judge who excludes people from the trial without sufficient justification is handing the criminal defendant a great issue on appeal?

The case is U.S. v. Gupta, decided on June 17. During jury selection, Gupta's brother and girlfriend were excluded from the courtroom. In explaining what happened, the courtroom deputy testified:

At the Court’s direction, in order to accommodate the large number of jurors in the venire panel, and to protect the panel from hearing anything about the case from any member of the public present, I requested that individuals who were not venire panel members leave the courtroom during the jury selection. I conveyed to those individuals that once the jury selection was complete, and there was again space in the public area of the courtroom, they were more than welcome to attend the
proceedings.

This was wrong. But is it a Sixth Amendment violation? The Second Circuit majority (Hall and Walker) says No. In dissent, Judge Parker says this was an easy case for reversal and he wants the Supreme Court to take a look, as the majority "insults the values inherent in the Sixth Amendment." What makes this case unusual is that the government in this case says that the justification offered by the courtroom deputy is not good enough. (Even more unusual is the fact that no one was aware of the closure at the time and it came to light two years later). But the Second Circuit finds that this was a trivial Sixth Amendment violation. Yes, there is such a thing under the case law. This was only voir dire, and nothing of significance happened, the majority says:

The district court gave prospective jurors general information about Gupta’s case, described the charging indictment, and presented jurors with a written questionnaire listing possible grounds for ineligibility. The court also conducted a short sidebar discussion with each prospective juror concerning their responses to the written questionnaire (a process that would not have been audible to members of the public), and then posed general questions to the jurors in open court about their background and interests. Finally, the court and counsel for both parties adjourned to the jury room to exercise peremptory challenges; no objections were made to any of the challenges, and no jurors were dismissed without the consent of both parties.

Then the Court expands on its analysis in explaining why it reaches the right decision. It notes that nonpublic trials are bad because the public cannot exercise any oversight over this most important government function. But, in this case, voir dire was inherently public because John Q. Public was sitting in the courtroom waiting for his name to be called and otherwise watching the judge question potential jurors. Judge Hall writes, "even where a trial court unjustifiably excludes spectators from the courtroom during voir dire, the presence of the venire lessens the extent to which that closure implicates the defendant’s public trial right because the venire, derived from and representative of the public, guarantees that the voir dire proceedings will be subject to a substantial degree of continued public review."

Second Circuit revives parental rights claims

Here's a civil rights case that's unusual for a couple of reasons. First, the Second Circuit, for now, rules against the government in a child abuse case, even finding that the government caseworker who sent the kids to foster care is not entitled to qualified immunity, which normally gives defendants the benefit of the doubt. Second, it took the Court of Appeals two years to decide this case, which was filed in the district court in 1999.

The case is Southerland v. City of New York, decided on June 10. Investigator Woo was assigned to the case after one of the Southerland daughters, Ciara, was behaving strangely in school. Woo came to the house and claimed that the Southerland's children were living in squalor; Southerland strongly disputed this characterization. Concluding that their safety was threatened, Woo removed the children from their home and sent them to foster care. While Kings County Family Court concluded that Southerland had abused and neglected his children and sexually abused Ciara, none of this damning information was in Woo's possession when he entered the home and took away the kids. For that reason, the Second Circuit (Sack, Kearse and Hall) disregards the Family Court's findings in determining whether Woo violated the Constitution. That's unusual, as federal courts like to defer to the evidentiary findings of state courts. Except that qualified immunity cases ask what the government defendants knew and when they knew it.

The district court granted Woo's motion for summary judgment on qualified immunity grounds. Again, this kind of immunity gives government officials the benefit of the doubt in close cases. But the Court of Appeals reverses and remands the case for trial on Southerland's substantive due process claim that Woo violated his parental rights, and on the childrens' Fourth Amendment search and seizure claim.

First, the district court analyzed the childrens' claim under the wrong law, applying instead the amended version that did not apply at the time. Under the correct law, Woo could only get a search warrant if he believed that an abused child lived at the premises. At the time, Woo knew that Ciara did not live with her father. He went to the house anyway and seized the other kids. Another problem was the search warrant affidavit erroneously listed the children of Southerland's wife, who did not live there; they lived with their mother. The search warrant affidavit had other factual errors that further allowed Woo to take the children. Since the Court of Appeals says that a jury may find that Woo intentionally made these search warrant affidavit errors, he does not get qualified immunity. This overcomes the presumption that court-issued search warrants support a finding of probable cause, which normally kills off any civil rights lawsuit. Not this one.

The due process claims are also revived. Although Woo removed the children from their home without a court order, he was not faced with exigent circumstances, the only basis upon which could proceed without an order. Since the law was clear in this area, Woo does not get qualified immunity. As for Southerland's substantive due process claim under the Fourteenth Amendment, on the theory that Woo's actions were shocking and outrageous, while caseworkers may temporarily remove children from the home if there is a prompt and adequate judicial confirmation proceeding, the record is not clear that such a proceeding took place. The Second Circuit is not clear as to "the nature of the proceeding in terms of its timeliness and adequacy." In addition, the jury may find that Woo's conduct was not objectively reasonable under the circumstances, since the parties dispute whether Southerland's children were living in squalor. As the law in this area of constitutional parental rights was clear in 1997, Woo also cannot claim that vague constitutional standards at the time entitled him to qualified immunity.