Riddle me this

A pro se plaintiff by the name of Riddle beats a large management-side law firm in persuading the Court of Appeals that the trial court should not have dismissed her Family and Medical Leave Act claim.

The case is Riddle v. Citigroup, a summary order decided on December 5. The district court evidently overlooked Riddle's FMLA claim completely when it threw out the complaint. The Court of Appeals finds that the complaint states a claim under Rule 12. According to Riddle, "human resources personnel prevented her from obtaining medical leave and did not allow her to fill out medical-leave applicants, and that she was given notice of her termination in April 2007, immediately after she attempted to obtain leave." These allegations state a claim under the FMLA. It looks like a textbook case, really. But that that does not end the inquiry.

Defendant says that Riddle blew the two-year statute of limitations. Riddle says that her case is governed by the three-year statute of limitations, which requires that the employer "willfully" denied the plaintiff her FMLA rights. Willful means reckless disregard of the plaintiff's rights. The Court of Appeals (Straub, Livingston and Cabranes) says that the allegations plausibly suggest that Citigroup willfully mistreated Riddle. "As such, whether the conduct was 'willful' (and thus, whether the three-year statute of limitations applied) is an issue that should be decided on remand, either by the District Court on summary judgment if there is no genuine issue of material fact, or by a jury if Riddle introduced evidence sufficient to support a finding of willfulness or if the issue turns on questions of credibility."

Citigroup has another defense here. It says that Riddle signed a release in a separation agreement that prevents her from bringing this action. The Second Circuit cannot resolve this defense. Riddle says the release was procured through fraudulent inducement, and that she did not receive adequate consideration in exchange for the agreement. These issues are more appropriately resolved on remand. Let the district court worry about it.

Circuit grants habeas petition in double rape case

I am always amazed when the Second Circuit vacates a state court criminal conviction on constitutional grounds. Not only because Congress has made it harder for federal courts to do this (state courts get the benefit of the doubt when interpreting the Constitution, even if incorrectly), but because the state conviction has already gone through the appellate process in New York and the Appellate Division and maybe even the New York Court of Appeals has already upheld the conviction. The Second Circuit has vacated another conviction, this time on grounds that the defendant's lawyer was ineffective at trial.

The case is Cornell v. Kirkpatrick, decided on December 1. Cornell was convicted of two rapes at the same trial in Ontario County Court. One rape took place in Monroe County, the other in Ontario County, within days of each other. The Second Circuit says that "The Ontario County District Attorney alleged that, because the attack on Victim #2 occurred 'in an automobile that traversed through Ontario County,' he had jurisdiction to simultaneously prosecute both alleged rapes—the one that occurred in Ontario and the one that occurred in Monroe—under New York Criminal Procedure Law § 20.40(4)(g) (the “private vehicle exception”)." Cornell's lawyer did not object when the Monroe County rape went to trial in Ontario County. He should have.

A defendant in New York has a right to be tried in the county where the alleged crime was committed. The prosecution has to prove at trial that the crime took place in that county. This can be a question for the jury, but there was no dispute here; the prosecutor in his opening statement said the crime took place in Monroe County. Now the state is singing a different tune, saying on appeal that the prosecutor was mistaken in his opening statement. The Second Circuit (Newman, Cabranes and Straub) is not buying this nonsense, and it suspects the DA is changing his story because it realizes that a State Court of Appeals ruling (People v. Moore) is directly on point in favor of Cornell (a case, by the way, that everyone seemed to overlook as the criminal case wended through the state system). Judge Straub writes, "We remind the State that the prosecutor plays a special role in our society, unique from that of his adversary at the defendant’s table. The prosecutor is “the representative . . . of a sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done.” The Second Circuit is also withering in its criticism of Cornell's trial counsel: "Although Cornell’s trial counsel presented an opening and closing statement, cross examined witnesses, and presented a defense case with three witnesses, the fact remains that he was completely ignorant of the venue law in New York." 

Anyway, "[h]ad Cornell’s counsel objected to venue on the basis of Moore, the trial court would have been required to submit the issue of venue to the jury and instruct it on the limitation imposed by Moore" at trial. This could not have been a strategic decision by Cornell's criminal lawyer; he simply blew it. The error could have made a difference at trial because "the record demonstrates that the jury, appropriately instructed as to venue, would have easily found by a preponderance of the evidence that the rape occurred in Monroe County." Cornell thus gets a new trial.

Airline exclusion means no private claim for disability discrimination

A disabled woman was shafted by Jet Blue Airways when it did not provide her timely wheelchair assistance at Idlewild Airport in New York City and in Puerto Rico in July 2009, causing her physical and emotional injuries. She sues Jet Blue under the Air Carrier Access Act of 1986 and Title III of the Americans with Disabilities Act of 1990. She loses the case. There is no private right of action under the Air Carrier Access Act, and the complaint also fails to state a claim under the ADA.

The case is Lopez v. Jet Blue Airways, decided on December 1. Let's start with the Air Carrier Access Act, which prohibits airlines from discriminating against "an otherwise qualified individual" because she "has a physical or mental impairment that substantially limits one or more major life activities." This language mirrors the anti-discrimination provision under the ADA. The ACAA does not expressly allow people to sue for damages, so the Court of Appeals (Cabranes, Livingston and Chin) has to decide if the law implies a cause of action, no small task ever since the Supreme Court in 2001 made it harder for the courts to do this.

Prior to 2001, some Courts of Appeal said that you could sue for damages under the ACAA. That was before the Supreme Court in Alexander v. Sandoval, 532 U.S. 275 (2001), tightened the screws. Since 2001, the Tenth and Eleventh Circuits said that under Sandoval, there is no private claim under the ACAA because the language and structure of that statute manifests no congressional intent to create a private right of action in federal court. The Second Circuit agrees with the Tenth and Eleventh Circuits. Under the ACAA, aggrieved persons may go after the airlines for disability discrimination, but only through an "administrative enforcement scheme designed to vindicate fully the rights of disabled passengers." Since Congress did not explicitly provide for any relief in court, that alternative remedy means there is no lawsuit for Lopez. Congress is allowed to make those choices, and thanks to the Sandoval, there is nothing the courts can do about it.

What about Lopez's claim under Title III of the ADA? No dice here, either. The ADA simply doesn't cover a claim like this. Under Title III, "private entities that are primarily engaged in the business of transporting people" cannot discriminate on the basis of disability in providing "specified public transportation services." But "specified transportation services" is defined under the ADA to exclude aircraft. It does cover bus, rail and any other conveyance. But not aircraft.

The only claim left for Lopez is Title III's prohibition against disability discrimination in "any place of public accommodation," which includes "a terminal, depot, or other station used for specified public transportation," defined to include terminals, depots or other stations only if they are used for "transportation by bus, rail, or any other conveyance (other than by aircraft)." As the Court of Appeals sees it, in conjunction with the aircraft preclusion, "terminal, depot, or other station" must "exclude a facility in which surface or underground transportation is merely an auxiliary function and the facility is primarily devoted to air travel." As such a facility is not a "terminal, depot, or other station" under the ADA, these things are not public accommodations under the statute. I wonder how much the airlines pushed for an airline exclusion under the ADA? Whatever they paid their lobbyists, it looks like the airlines got their moneys' worth.

NYC's campaign finance rules satisfy the First Amendment

Pushing aside recent Supreme Court cases that take a dim view of campaign finance legislation, the Second Circuit holds that the First Amendment does not prevent the New York City Council from regulating campaign contributions in order to avoid the appearance of public corruption flowing from possible "pay-to-play" contributions.

The case is Ognibene v. Parkes, decided on December 22. The Supreme Court has rewritten campaign finance law over the past few years under an expanded view of the First Amendment. These cases include Citizens United v. F.E.C., 130 S.Ct. 876 (2010), a decision that everyone hates because it allows in some instances for unlimited corporate contributions to political campaigns. But New York City forged ahead in regulating contributions, which do the following: (1) people who do business with the City, including lobbyists, are held to more strict campaign contributions than Johnny Average; (2) there are no matching funds for those who do business with the City; and (3) the existing prohibition on corporate contributions are now extended to partnerships, LLC's and LLP's. Are these restrictions constitutional? Yes.

Here's why. First, the Supreme Court distinguishes between limits on campaign expenditures and campaign contributions. Expenditures are hard to limit ("strict scrutiny" test), but the government has more leeway to limit contributions so long as they are "closely drawn to address a sufficiently important state interest." That interest may include the prevention of actual or perceived corruption. The "doing business" restriction is legal under the more lenient standard of review because "the perception of corruption, or of opportunities for corruption, threatens the public's faith in democracy." In enacting this law, the City Council may take into account the common-sense view that people doing business with the City are making contributions in order curry favor with policymakers and regulators. While the plaintiffs who challenge this law argue that the Council needs more concrete evidence of corruption to justify this law, "there is no reason to require the legislature to experience the very problem it fears before taking appropriate prophylactic measures. ... Appellees essentially propose giving every corruptor at least one chance to corrupt before anything can be done, but this dog is not entitled to one bite." (That's district judge Crotty, ladies and gentlemen. Judges Livingston [for the most part] and Calebresi join him in this opinion). In addition, there is some evidence that the largest donors are the ones doing the most business with the City. Donors with business dealings were less than 5.3 percent of the contributors, but they accounted for 21 to 25 percent of all dollars contributors. That's pretty good evidence that the public might perceive a pay-to-play mentality in City politics.

Second, the non-matching contributions are also constitutional. While non-matching does not prevent you from making a contribution, it does minimize the value of that contribution. Encouraging small, individual contributions, the public financing law matches contributions of up to $175 using tax dollars at the rate of 6 to 1. This also discourages the entrenchment of incumbent candidates. As the Court of Appeals interprets Supreme Court authority, these interests are enough to justify the non-matching funds rule for contributors doing business with the City.

Finally, the City law includes a ban on contributions by partnerships, LLC's and LLP's. The First Amendment allows for this prohibition, for two reasons: (1) anti-corruption and (2) to prevent those who run partnerships, etc., from circumventing contribution limits. The anti-corruption focus is obvious to anyone reading this decision. As for anti-circumvention, the government has an interest in preventing individuals from taking advantage of the minimal disclosure requirements such that entity contributions only have to be attributed to a partner or owner when they exceed $2,500. In a footnote, the Court of Appeals explains how you can circumvent contribution limits in the absence of the City's law:

The following examples demonstrate how easily campaign contribution can be bundled to circumvent limits: (1) a real estate developer, his wife, and two executives from his LLC all gave maximum contribution to the same incumbent candidate for City Council; (2) the same developer, his immediate family, his LLC, and officers of his LLC contributed nearly $100,000 in the 2001 and 2005 City election cycles, id. at 32; (3) two real estate developers and their newly-formed LLC gave nearly ten times the amount of donations they had given in the past after initiating a particular project; (4) the owner of a parent company of the construction company that received a contract to build a major transportation hub in Manhattan, his children, and the owner of the parent company’s marketing firm all gave significant contributions to an incumbent candidate for Borough President.

Back to the drawing board

The Court of Appeals has reinstated a First Amendment retaliation lawsuit because the district court did not give plaintiff a fair opportunity to make certain arguments that could have saved the case from dismissal.

The case is Hughes v. Anderson, a summary order dated November 1. Plaintiff was a court officer working from the Unified Court System. He told the Chief Court of the Nassau County District Court that some court officers were leaving their posts early to work other jobs and falsified their time sheets to cover up their departure times. Cases like this are governed by Garcetti v. Ceballos, 547 U.S. 410 (2006), which holds that whistleblowing is not protected under the First Amendment if the speech is made pursuant to the plaintiff's official duties. Cases like this are now being routinely dismissed because most relevant work-related speech do grow out of the plaintiff's official duties.

Defendants' lawyers were probably licking their chops when they were assigned to handle this lawsuit, and they immediately began working on a Rule 12 motion to dismiss. The district court threw out the case "because, although Hughes’s alleged report of misconduct involved a matter of public concern, '[n]either the Complaint nor the proposed Amended Complaint adequately allege[d] facts to support the argument that the statement to the Chief Clerk was made outside Plaintiff’s official job duties.'”

There was a problem with the district court's ruling, which prompts the Second Circuit (Leval, Livingston and Lohier) to remand the case to the district court. "The district court erred in dismissing Hughes’s First Amendment claim with prejudice on a ground not raised by a defendant without giving him notice and opportunity to respond, and without affording him an opportunity to demonstrate that any deficiency in his complaint could be cured in an amended pleading. As a general matter (excepting clearly frivolous cases), it is improper for a district court to dismiss a complaint with prejudice for failure to state a claim without giving the plaintiff notice and an opportunity to be heard and to offer an amended pleading." Moral of the story is that the court has to give plaintiff a fair chance to save the complaint from dismissal. If not, the case returns to the trial court for round two.

Summary judgment reversed in First Amendment retaliation case

What do you have to do to win a First Amendment claim around here? The Court of Appeals tells us. Yesterday, I summarized a Second Circuit case that held that a teacher in Westchester County engaged in free speech when she reported child abuse at a former teaching job in Virginia a few years before the Mamaroneck School District denied her tenure in 2007. This blog post will talk about the other issues in the case.

The case is Nagle v. Marron, decided on December 12. The discussion on Nagle's protected speech is here. Management said that it had good reason to deny Nagle tenure because her superiors were thinking about letting her go even before they learned about her free speech. That's a common defense in First Amendment and employment discrimination cases. The Court of Appeals provides guidance in this area, perhaps for the first time, as it cites no cases to support its holding. It is settled law that "an adverse employment action occurs on the date that a decision was formally reached." While "events leading up to a formal decision will, in many situations, be relevant to the analysis of causation," management "cannot insulate itself from liability at the summary judgment stage simply by asserting that an adverse employment decision had in fact already been made, without being memorialized or conveyed to anyone, before the employer learned of the protected conduct." Here, Nagle's superior said "he was leaning" toward letting her go. Judge Calabresi writes that "a jury would be entitled to find that the Virginia events convinced him to follow his inclinations, and thereby played a part in his ultimate decision." But that does not mean the school district gets summary judgment. That supervisors were thinking about letting Nagle go does not mean they had reached a final decision. The free speech could have been the tipping point. As the Court of Appeals says, the jury could find that "the Virginia events convinced [the decisionmaker] to follow his inclinations, and thereby played a part in his ultimate decision." But, again, that's for the jury. By the way, the six week gap between defendants' learning about the protected speech and Nagle's termination is close enough to infer a causal connection.

An interesting sideshow bobs to the surface in this case. The school district says that, to the extent that Nagle's speech in Virginia caused them to terminate Nagle, "it was not the content of the speech that mattered but what they took to be Nagle's violation of school rules in reporting the abuse to the police rather than to her principal." The Court of Appeals is not buying this.The Second Circuit says, "this 'counter,' if anything, is evidence against Appellees' position. Just what Appellees believed about Nagle's conduct in Virginia, and how, if at all, those beliefs influenced their actions may well be issues critical to resolving this case."

The school district also says it was justified in letting Nagle go because she chose a particular book to read to her class without first consulting with the school psychologist. But there is no evidence that school customs or protocols required such a consultation. So the jury may reject that defense. Similarly, the school district says that Nagle sent a child home without speaking to administrators. But a superior testified that Nagle did not violate the rules in doing this. A jury has to decide if these are good reasons to fire Nagle. Other defenses are also rejected in the Second Circuit. Not only is there no evidence that Nagle had ongoing performance problems before she was fired (her performance reviews were "fair to positive"), but a strange reason to justify her termination -- that she ran out of a conference room in tears after hearing from third parties that she was going to be denied tenure -- is not so egregious as to merit dismissal of her case in light of the paucity of evidence that she was a bad teacher.

Nagle did not just sue individuals; she sued the school district. That means she has a Monell claim, which requires proof that the school board fired her pursuant to a policy or custom. You can show a policy if the final decisionmaker pulled the trigger. The school district is the policymaker, but it was the superintendent who made the recommendation to fire Nagle. The school board does not usually override the superintendent's recommendation. The Court of Appeals has never resolved this issue, but it cites an 11 year-old district court case from Alabama that says that a the superintendent may be deemed the "final decisionmaker with respect to personnel appointments" since "his recommendations are essentially those of the government body." So, if the board of education's vote is a formality and a rubber stamp, then the superintendent was delegated policymaking authority under Monell. Other Circuit courts seem to agree with this "cat's paw" theory. The Second Circuit suggests that the district court give this some thought on remand.

Free speech never goes stale

The Court of Appeals has reinstated a First Amendment retaliation suit that alleges that a Westchester County School District retaliated against a teacher who blew the whistle on child abuse a few years earlier, when she was teaching in Virginia. The case includes several important rulings of interest to attorneys who handle public employee retaliation claims. This blog post focuses on the Second Circuit's rulings on whether Nagle engaged in protected speech. The next installment will cover the remaining issues, including causation.

The case is Nagle v. Marron, decided on December 12. When Nagle was teaching in Virginia, she reported to the appropriate authorities that a fellow teacher was abusive to the students. That made the newspapers in Virginia. When Nagle was teaching in Mamaroneck in 2007, her superiors Googled her and learned about the Virginia whistleblowing. After Nagle then complained in a separate incident in Mamaroneck that someone forged her name on a teachers' evaluation, Nagle was then denied tenure. The Court of Appeals (Calabresi, Raggi and Gleeson [D.J.]) rules as follows:

1. Nagle received a less than satisfactory performance review, which she refused to sign. But someone else signed her name! The school investigated the alleged forgery, and figured out who probably did it. Nagle claims this report of the forgery is protected under the First Amendment, and that this report led to her termination. The forgery report is not free speech, the Court of Appeals holds. These cases are not easy to win in the Second Circuit, which held in Weintraub v. Board of Education (2010) that speech is unprotected if it is "part and parcel" of the plaintiff's ability to do her job. This flows from the Supreme Court's holding in Garcetti v. Ceballos (2006) that the First Amendment does not protect speech that is made pursuant to your official job duties. The Judge who writes the Nagle decision dissented in the Weintraub ruling, arguing that the Court of Appeals was too-narrowly interpreting Garcetti. But Judge Calabresi does not have the opportunity to develop that dissent in Nagle. That's because "the forgery incident did not implicate a matter of public concern," a threshold issue in these cases. "No authority supports Nagle's argument that reporting an alleged crime always implicates matters of public concern. The forgery of Nagle's signature, even if such conduct were criminal, had no practical significance to the general public." If the public would not care about the speech, then it's not a matter of public concern under the First Amendment.

2. Nagle does prevail on her other speech claim, the one involving the reported child abuse in Virginia. The district court said this was not a matter of public concern because the speech was four or five years old. The trial court said that while that speech may have implicated a matter of public concern way back when in Virginia, it lost its vitality under the First Amendment by the time Mamaroneck school officials found about it, i.e., it was "old news." The Court of Appeals is flummoxed by this reasoning. It looks like the trial court mixed up the "public concern" analysis with the question of whether that speech led to plaintiff's termination. Here's the reasoning:

Whether speech pertained to a matter of public concern and whether it was uttered in the speaker’s capacity as a private person are not facts that change over time. A teacher’s expressive conduct made in the course of working for a candidate’s political campaign, for instance, would constitute protected speech even if the candidate lost and his candidacy therefore ceased being a matter of immediate public concern. And the speech would remain protected if the teacher moved to an area where the candidate had not been on the ballot. The First Amendment protects precisely such public participation, both at the time it occurs and ever after.

Although there is no case on point that says that free speech does not wane over time, that does not entitle defendants to qualified immunity. You don't need a case on point to show that the law is clearly established such that management was on notice that it was violating the First Amendment in a retaliation case. An official "who violates clearly established law necessarily lacks an objectively reasonable belief that his conduct was lawful."

Finally, the trial court rejected Nagle's First Amendment claim relating to the child abuse because Nagle had violated protocol in reporting the abuse. Even assuming that Nagle did violated protocol in Virginia, that is no basis to reject her claim under the First Amendment. There is no binding authority for the proposition that the First Amendment only protects speech that the plaintiff utters in line with protocol. While the failure to comply with protocol may "give rise to an alternative, non-retaliatory ground for an adverse employment action" and therefore predicate a successful causation defense, that does not mean the speech is not protected under the Constitution.

In the end, Nagle will get a trial on her First Amendment claim from the alleged retaliation for her speech in Virginia. The remaining issues are the subject of tomorrow's blog post.

You cannot sue the prosecutor for lying to County Court

We start with the proposition that you cannot sue the prosecutor, who has absolute immunity from suit so long as the misconduct took place in pursuit of his official duties. Doesn't matter what he does, doesn't matter what he says. You can't sue him, and if you don't like it, lump it.

The case is Flagler v. Trainor, decided on November 21. Flagler was a domestic violence victim who was the chief witness at trial her ex-boyfriend. Trainor was the assistant district attorney who was prosecuting the abuser. Trainor swore to the local court that he thought Flagler was going to leave the area to avoid testifying against her abuser and that Flagler was not returning his phone calls or cooperating with the case. Following the material witness hearing, the County Court decided to take Flagler into custody and held her overnight without bail. Her cell phone was also confiscated. Flagler says that Trainor misled the County Court about Flagler's alleged refusal to testify and that Flagler had every intention to appear at trial. According to the lawsuit, Trainor's lies cost Flagler her liberty, at least temporarily.

Flagler cannot Trainor under the absolute immunity prohibition. Flagler tries to get around this by arguing that Trainor was actually acting as a complaining witness and not as an advocate. This argument has some basis in Supreme Court authority, but it does not work here. The Court of Appeals (Wesley, Calabresi and Lynch) says that "seeking a material witness order is within the prosecutor's 'function' as an advocate. A prosecutor employs prosecutorial discretion when determining whether to seek such an order."

But Flagler may be able to go after Trainor in other ways. Absolute immunity does not shield prosecutors from suit if they defame someone. Trainor told the press that Flagler was "hiding out" before the trial. The defamation claim is reinstated. So is Flagler's claim that Trainor unlawfully accessed her voice mail when Flagler's cell phone was seized. That's because absolute immunity does not shield prosecutors from investigatory acts.

No false arrest claim in prostitution sting

A gay male who flirted with an undercover police officer in an adult video store was arrested for prostitution after the undercover officer said they could engage in oral sex for money. The plaintiff agreed with this arrangement, kind of, but then he quietly decided against it as they walked out of the store together. The charge against plaintiff was dropped. He sued for false arrest. The district court said the case can go to trial, but the Court of Appeals reverses and says the officer has qualified immunity.

The case is Pinter v. City of New York, a summary order decided on November 18. The Second Circuit goes into detail about how these guys flirted with each other in the store, and in determining whether plaintiff has a false arrest claim, it analyzes the alleged agreement for oral sex with the precision of a business transaction. It seems that plaintiff was looking over some adult videos when the undercover cop smiled at him. They began talking and plaintiff mentioned that he liked oral sex. Undercover said his car was nearby. They left the store together and that's when undercover said he'd pay Pinter money for oral sex. Pinter by this point  silently decides he wants nothing to do with the undercover cop but by coincidence they head in the same direction: Pinter to his apartment and undercover to his car.


Funny thing about false arrest. The police can get it wrong and you still can't sue. Even if the police miscalculated, if they did so in good faith and had reason to believe that a crime was underway, they cannot be sued under qualified immunity. Criminal charges were dropped against Pinter, but the Court of Appeals (Cabranes, Winter and McLaughlin) says the district court should have dismissed the false arrest and malicious prosecution claims.

Like I said, the Court of Appeals looks at the oral sex for money deal like a Wall Street transaction. That's because the district court said that Pinter may have a claim because he and the undercover began talking about sex before the undercover offered to pay Pinter. Here's part of the analysis (the undercover cop is referred to as UC31107):

We do not think the apparent existence of an “agreement for sex gratis” prior to UC 31107’s
offer of monetary compensation has nearly the impact that the District Court suggests. First, prior to UC 31107’s offer, neither party had yet explicitly stated an interest in engaging in sexual activity with the other. Second, and of more significance, when UC 31107 offered Pinter the cash, both Pinter and the undercover officer had already expressed to each other a specific desire to perform oral sex. Following UC 31107’s monetary offer and Pinter’s seeming compliance, UC 31107 could have reasonably believed that Pinter had agreed to be compensated in exchange for allowing UC 31107 to act on his desire to perform oral sex on Pinter.

Other evidence also supports qualified immunity for the officer. Read this closely. It tells us that false arrest claims are hard to pursue and that qualified immunity provides police officers with a generous standard in seeking summary judgment. The Court also makes an assumption about gay men and why they enter adult video stores.

it was not plainly irrational or incompetent for UC 31107 to assume that Pinter visited the adult section of Blue Door in search of sexual gratification of one kind or another. Second, Pinter left the store with UC 31107 and without having purchased any adult videos. Third, as they left the store, Pinter accompanied UC 31107 on a walk towards UC 31107’s car—the place where the sex act was to occur. At this point UC 31107 had no way of knowing that Pinter had privately decided not to pursue any sexual activity with UC 31107, and that he was merely headed in the same direction as UC 31107. Nothing in Pinter’s behavior or conversation could reasonably lead UC 31107 to conclude, in the circumstances presented, that Pinter was not interested in receiving money for sexual activity. Finally, on their brief walk together following the mention of money for sex, the pair continued to flirt with one another—even if at UC 31107’s instigation—and struck up an intimate sexual conversation. Putting all of these facts together, we do not think that it was unreasonable or incompetent for UC 31107 to have assumed that Pinter intended to engage in oral sex with him in return for financial compensation.

This is why lawyers don't represent prisoners

Think this guy is going to take on any more pro bono cases? I doubt it. Poor fellow represented a prisoner in federal court, and he actually convinced the jury that a Rastafarian's religious freedom rights were violated when prison guards tussled with his dreadlocks. Jury gave his client $1.00 in damages. The lawyer recovers $1.50 in attorneys' fees. The Court of Appeals upholds the $1.50 fee award.

The case is Shepherd v. Goord, decided on November 15. In the mid-1990s, when it was open season on prisoners in the U.S. Congress, the Prison Litigation Reform Act was enacted. It was intended to reduce the number of inmate lawsuits. One way to do that was to make it more difficult for attorneys to recover attorneys' fees in successful cases. Take away the attorneys' fees, and the attorneys will take a pass.

Congress was so eager to enact the PLRA once the Republicans took over the House and Senate that no one bothered to make sure the statute was written clearly. (In fairness, President Clinton signed the PLRA into law, so this is a bi-partisan deal). Under the PLRA, if the inmate wins money at trial and is therefore a prevailing party, his lawyer gets attorneys' fees. But, "if the award of attorneys' fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant." This is not the clearest language in the world. What it really means is that if the prisoner wins the case, his lawyer's fees cannot exceed 150 percent of the judgment. That's because the defendant is not responsible for fees beyond 150 percent. Since only the defendant pays out the attorneys' fees award, this provision essentially sets a 150 percent cap on fees.

So, if the jury awards an inmate $50,000, counsel can get up to $75,000 in attorneys' fees. Not too shabby. But here, counsel prevailed at trial, but the jury only awarded his prisoner client a dollar. Counsel filed an attorneys' fees application in the amount of $99,000. But the trial court said -- and the Court of Appeals (Raggi, Miner and Sack) agrees -- that counsel may only recover $1.50 in attorneys' fees.The Court of Appeals knows this is a harsh result for the lawyer. But the Second Circuit says that "whatever arguments can be mounted for against the policy choice reflected in [the PLRA], particularly as applied to pro bono counsel, the proper forum for that debate is Congress, not the courts." If you don't like the result, the next train to Washington leaves in 15 minutes.

Ledbetter Act does not get plaintiff a new arbitration hearing

The Court of Appeals rejects an effort to vacate an adverse arbitration award that the aggrieved employee says violated the Lilly Ledbetter Act of 2008, which retroactively allows courts to consider what the Supreme Court used to deem stale allegations of pay discrimination.

The case is Schwartz v. Merrill Lynch, decided on November 1. In Ledbetter v. Goodyear Tire, 550 U.S. 618 (2007), the Court said that pay discrimination claims begin to accrue when management puts in place the discriminatory pay scheme, and that the statute of limitations is not revived each time the female employee gets another paycheck arising from that scheme. In other words, the female employee cannot challenge the unfair paychecks more than 300 days after management set the discriminatory pay scale. Congress overturned the Ledbetter decision in the Lilly Ledbetter Fair Pay Act of 2008, which says that an unlawful employment practice occurs each time the employee gets the paycheck tainted by the discriminatory scheme, even if that scheme happened a few years ago. Unlike many laws that overturn Supreme Court rulings, the Ledbetter Act has retroactive application.

In this case, the plaintiff sued Merrill Lynch for pay discrimination. Her case went to arbitration. The arbitrators ruled that Schwartz did not prove her claims of discrimination. One of the reasons she lost was that the arbitration panel for the most part would not consider events that predated her April 2, 2001 settlement and release from prior claims of discrimination (unless the evidence predated that date by six months).

Schwartz next asked the federal court to vacate the arbitration award as clearly contrary to the Ledbetter Act, which has retroactive application and, according to her, required the arbitrators to consider evidence of discrimination predating April 2001. The district court denied this motion, and the Court of Appeals (Kearse, Sack and Katzmann) affirms. Any employment lawyer will tell you that it is very, very hard to overturn an arbitration decision. You can do so if the decision is in manifest disregard of the law, but that is a tough hurdle to climb. Here, the arbitrators simply interpreted the April 2001 settlement in limiting the introduction of evidence, and they extended some flexibility into the process by considering evidence of discrimination predating that release by six months. The settlement contained the usual language saying that plaintiff was waiving any claims accruing through that date. While Congress amended Title VII through the Ledbettter Act, the arbitrators did not plainly ignore that law, as it had not been passed at the time of Schwartz's arbitration. In making its evidentiary rulings, the arbitrators did not exceed their broad discretion to decide her case.

No police liability in neighborly dispute

It's a fact of life these days for civil rights lawyers that false arrest claims are hard to win. In this case, a neighbor called the police on plaintiff for doing something wrong. In fact, plaintiff was doing something else wrong. The fact that plaintiff was doing anything wrong at all means he cannot sue for false arrest.

The case is Pacicca v. Stead, a summary order decided on November 14. It looks like Pacicca and Stead were neighbors who hated each other. Stead called the police on Pacicca when he saw Pacicca damaging the grass on his property. The police acted on that complaint. Pacicca said there was no probable cause because, in fact, the property belonged to the City of White Plains, not Stead. So it's not an arrest for damage to private property but an arrest for criminal tampering. The Court of Appeals says that "a reasonable officer could believe that a person repeatedly moving rocks from city property gives rise to probable cause to arrest and prosecute that person for criminal tampering." The Second Circuit (Jacobs, Sack and Raggi) does not say this in the opinion but the law has developed to the point that the police may arrest you so long as you were committing any crime at all, even if they are mistaken about the initial reason for the arrest.

The case did go to trial on the malicious prosecution claim. Pacicca challenges the jury charge, which says that you cannot sue the police if the prosecutor exercised independent judgment and played an active role in initiating the criminal prosecution. The charge also said that if the officer provides the prosecutor with false information about the charge, then the officer may be sued after all. This was the correct charge, the Court of Appeals says. That's because the prosecutor testified that he consulted with Stead and independently decided to prosecute Pacicca. So that even if the officers gave the prosecutor false information, the prosecutor's independent actions get them off the hook.