Keep it to yourself

Public employee Adreina Adams was not happy with how things were going at the State Division of Parole, where she worked as a parole officer in Manhattan. She took her grievances public and spoke out before the State Assembly. She suffered a variety of negative employment actions over this, and she then took her grievance to federal court, which says she did not speak out on a matter of public concern and therefore does not have a case.

The case is Adams v. Ellis, a summary order decided on October 23. Very little in the Constitution is more complicated than First Amendment litigation. There is a balancing test for every First Amendment problem; nothing is absolute. In the public employment context, it's not free speech (for which you cannot be punished) unless it addresses a matter of public concern, as shown by the content, form and context of the speech. There is no easy way to untangle a three-part balancing test. That is what depositions are for.

The district court ruling tells us what happened. New office procedures made life a hassle in the workplace. Employees had to adhere to strict attendance and accountability rules, and parole officers had to personally collect supervision fees that parolees used to send in by mail. A new computerized management system was also installed. Testifying on these procedures at the State Assembly, plaintiff said these new rules "negatively impacted their ability to do their jobs properly, thereby 'putting safety of the community at risk.'"

Speaking before a public body certainly makes the context of the speech a public affair, but that does not end the inquiry. The content of plaintiff's speech was strictly personal, the Court of Appeals (Parker, Hall and Livingston) says. "The Court gives consideration to the fact that plaintiff spoke at a hearing sponsored by the State Assembly, but ... forum is not determinative, and the public forum of plaintiff's remarks does not make them matters of public concern if they are essentially private complaints about office policies." These grievances were of no interest to anyone outside the workplace. While plaintiff said these new procedures put the public safety at risk, "a plaintiff does not transform her essentially personal grievances into matters of public concern by announcing that her grievances relate to broader issues." In other words, we can couch the speech as a matter of public concern, but the courts will see if that's really true. 

In the district court ruling, Judge Castel notes that the stated subject of the hearing, "The Policies and Practices of the Division of Parole as it Carries Out its Responsibilities in the Supervision on Persons Released from Prison" gives no hint that it would address traditional matters of public concern, "like discrimination, corruption, or even crime rates, staffing, budgets or equipment shortages." Now, I am sure the title of this public hearing did not cause the taxpayers to line up overnight for a front row seat. The policies of the Division of Parole must be of some interest to the public. But plaintiff's speech was not, and that's why her First Amendment claim is dismissed.

No right to settle a case

When the plaintiff settled a wrongful death lawsuit against Nassau County, she waited for the Legislature to approve the deal. That approval was delayed, which cost the plaintiff money because the interest rates changed and the value of the settlement diminished by $8 million. In this First Amendment case, plaintiff claimed the settlement was delayed because the Chairman of the County Legislature did not like plaintiff's civil rights lawyer and she got caught in the cross-fire.

The case is Dorsett v. County of Nassau, decided on October 18. I co-wrote the brief on appeal. The theory was that Dorsett's association with a civil rights lawyer is protected under the First Amendment. There is case law to support that theory of liability, but the Second Circuit (Wesley, Walker and Winter) focuses on plaintiff's standing to sue and whether you even have a right to settle a case.

Here is the sequence of events: while the settlement was pending, Dorsett's lawyer filed a Voting Rights Act case against the County, angering the legislative chairman, Schmitt, who publicly said the Dorsett settlement was not finalized by the Legislature because “I did not feel comfortable voting on a settlement that would put a couple million dollars into [Brewington’s] . . . pocket while we were being sued [in the Boone case], so I requested an opinion of the County Board of Ethics to see that there was no conflict there.” The Court of Appeals notes that, "[i]n fact, Schmitt had received the ethics opinion in September – two months before this interview – and the settlement was still not approved until January. Plaintiffs allege that Schmitt actually requested the ethics opinion to hold up the settlement in retaliation for their political activities."

Plaintiff loses the case under Rule 12 because she had no right to a settlement in the first instance, even if the informal agreement had been reached.Of course, the case eventually did settle, but it was delayed, costing Dorsett money. On the way to affirming the dismissal of the complaint, the Court of Appeals clarifies that First Amendment retaliation cases do not always require proof that the government's response to the speech chilled further speech. You can also win if the plaintiff suffered a concrete loss of some kind from the retaliation. However, the Court says in dismissing the case:

Eight million dollars is certainly concrete, but this does not tell the whole tale. Plaintiffs had no right to have the settlement approved by a date certain. The settlement did not include a time‐is‐of‐the‐essence clause, nor have Plaintiffs pointed to anything that required the legislature to act. The legislature's agenda is subject to its absolute discretion. It was not required to vote on the settlement – ever. Much less was it required to approve it.

Another public employee speech claim is dismissed

The plaintiff was fired from his job as a psychiatrist at the University of Connecticut Health Center. He claimed it was in retaliation for a prior lawsuit he filed against the Commissioner of the Department of Corrections. Plaintiff had done some work for DOCS inmates. The case is dismissed because the prior lawsuit was not protected First Amendment activity.

The case is Lakner v. Lantz, a summary order decided on October 10. Public employee speech is only protected when they speak on matters of public concern. Personal grievances don't count. Prior lawsuits may qualify as free speech, but only if they raised matters of public concern, that is, a matter of political, social or other concern to the community. Since many lawsuits concern the plaintiff's own grievances (lost promotion, mistreatment at work), they do not rise to the level of public concern speech.

How can a lawsuit be a matter of private concern, you ask. What about the Petition Clause of the First Amendment, which says you are allowed to petition the government for grievances? Lawsuits essentially are petitions. But the Supreme Court in 2011 said that the "public concern" test governing routine employee speech/retaliation claims also applies to cases brought under the Petition Clause. This means that some lawsuits are not protected speech. This one is not. The Court of Appeals (Lynch and Carney) says that plaintiff's prior litigation against DOCS -- alleging breach of contract -- was not of any concern to the community, only to plaintiff. This means that defendants could retaliate against him for the lawsuit.

The string of public employee/First Amendment dismissals continues. These plaintiffs have to squeeze through a narrow tunnel to prevail on a motion for summary judgment and even a motion to dismiss under Rule 12. The Supreme Court's 2006 ruling in Garcetti requires that, to make out a case, the plaintiff speak as a citizen and not pursuant to his job duties. The Petition Clause ruling in 2011 doesn't make it any easier.

Second Circuit stands firm on Judge Scheindlin recusal

Today's installment of the battle between the Court of Appeals and Judge Scheindlin finds the Second Circuit standing firm on its decision to reassign the stop and frisk cases to another judge because of appearance of Judge Scheindlin's partiality. The Court also says that Judge Scheindlin is not allowed to advocate for herself in the Court of Appeals on this issue.

The case is Floyd/Ligon v. City of New York, dated November 13. On October 31, the Second Circuit (Cabranes, Parker and Walker) stayed enforcement of Judge Scheindlin's order intended to rein in the City's stop and frisk practices, which she held violated the Fourth and Fourteenth Amendments. I guess this is the case of the year in the federal courts in New York, as an entire round of litigation has ensued in the Second Circuit even before the parties have argued the case on the merits.

The recusal order generated much controversy. The Court of Appeals has now elaborated on that decision. It denies plaintiffs' request to return Judge Scheindlin to the case. The Court details the process when Judge Scheindlin told the attorneys in a separate stop and frisk lawsuit to file a separate action in the Southern District of New York and that she would retain that case under the "related case" doctrine. Here is what the Court of Appeals says:

The appearance of partiality stems in the first instance from comments made by Judge Scheindlin that a reasonable observer could interpret as intimating her views on the merits of a case that had yet to be filed, and as seeking to have that case filed and to preside over it after it was filed. These comments were made in the earlier case of Daniels v. City of New York, No. 99-cv-1695, in which the City entered into a settlement agreement requiring it, inter alia, to establish policies that prohibited racial profiling. Ten days before Judge Scheindlin’s supervisory authority under the settlement agreement was set to expire, she heard argument on a motion brought by the Daniels plaintiffs to extend the settlement period. The transcript of the hearing indicates that the City had substantially complied with the relief required by the settlement and that the plaintiffs were seeking information from the City beyond that required to be furnished by the settlement agreement.

Observing that the settlement agreement did not entitle the plaintiffs to the relief they sought, Judge Scheindlin counseled:

THE COURT: [. . .] why don’t you file a lawsuit

Mr. COSTELLO: We did, we are here.

THE COURT: No, you are struggling with the December 31, 2007 deadline in a 1999 case. And if you got proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit? You can certainly mark it as related. How could it not be related to this whole long seven or eight years we have lived together in this case? Because you are trying to put a square peg in a round hole. And trying to force yourselves to argue what the settlement means, that it doesn’t mean if you have a timely lawsuit -- you seem to have compiled interesting arguments[.] Ms. Grossman [attorney for the City] has not rebutted -- maybe she did, that’s why we didn’t do something, because we didn’t want them to write this letter, she -- let’s just say she hasn’t substantially responded to your letter. If one had only your letter, it would look like you have a lawsuit. So instead of struggling to telling [sic] me about a stipulation of settlement, why don’t you craft a lawsuit?
(TR 10-11).

She returned to the idea of bringing a suit alleging that the City had violated their racial profiling policies and suggested a basis for the suit:

THE COURT: what I am trying to say - - I am sure I am going to get in trouble for saying it, for $65 you can bring that lawsuit. You can simply - -

MR. MOORE: $350

THE COURT: I knew I had it wrong. The [C]ity violates its own written policy, the City has a policy that violates -- they have violated their policy, here is the proof of it, please give us the remedy. Injunction or damages, or whatever lawyers ask for in compliance. So for $350 you can bring that lawsuit and it is timely.
(TR 14, 15).

And again:

THE COURT: I don’t understand why we have to potentially have, you know, months of briefing when it does fit under this stipulation or it doesn’t, that Raffo applies or it doesn’t that the court has the power to extend the supervision, that we want our immediate appeal to the circuit. Why do you need that if you have a lawsuit? Bring it. They have a written policy, right?

MR. GROSSMAN: Yes, your Honor.

THE COURT: If you think they are violating their written policy, sue them.
(TR 15).

Judge Scheindlin then advised the plaintiffs that if they filed such a suit, they would successfully obtain relevant documents produced by the government:

THE COURT: . . . There is enough in the public record to craft the suit. And then in that suit simply say, we want produced all that was produced in the 1999 lawsuit. I don't know how you could lose getting it. It may be a question of whether it is still going to be under protective order or not. But I can hardly imagine not getting it. You know what I am saying? It is so obvious to me that any Judge would require them to reproduce it to you in the same format that you have it, that you will have it again. Whether or not it remains confidential.
(TR 18).

After the plaintiffs indicated their willingness to bring the new suit, she repeated her earlier suggestion that the cases were related and indicated her willingness to keep the newly filed case:

MR. MOORE: To the extent that some of the materials have already been made public.

THE COURT: what’s public is public, -- If you cite to the Rand study, publicly, nobody can criticize you for that. If they do, they weren’t acting in good faith. If I can get the Rand study on the internet, it is public --

MR. MOORE: you can go to the NYPD website, your Honor.

THE COURT: There you go, that’s public. You can use that. And as I said before, I would accept it as a related case, which the plaintiff has the power to designate. I think this current motion is withdrawn. Thank you.
(TR 42).

The Second Circuit "believe[s] that a reasonable observer viewing this colloquy would conclude that the appearance of impartiality had been compromised." This is so in light of Judge Scheindlin's public statements, which exacerbated this appearance of partiality. The articles that quoted Judge Scheindlin are appended to the decision. While judges are allowed to speak with the media, in context, these comments create an appearance of partiality. "While nothing prohibits a judge from giving an interview to the media, and while one who gives an interview cannot predict with certainty what the writer will say, judges who affiliate themselves with news stories by participating in interviews run the risk that the resulting stories may contribute to the appearance of partiality. It is perhaps illustrative of how such situations can get out of the control of the judge that, later in The New Yorker piece, the article quotes a former law clerk of Judge Scheindlin: “As one of her former law clerks put it, ‘What you have to remember about the judge is that she thinks cops lie.’”  The Second Circuit adds,

[I]n those two articles, as well as the New York Law Journal article, Judge Scheindlin describes herself as a jurist who is skeptical of law enforcement, in contrast to certain of her colleagues, whom she characterizes as inclined to favor the government. Given the heightened and sensitive public scrutiny of these cases, interviews in which the presiding judge draws such distinctions between herself and her colleagues might lead a reasonable observer to question the judge’s impartiality.

The Court goes on to say that it does not believe that Judge Scheindlin violated the Judicial Code of Conduct. The Court adds that it has authority to recuse the judge even if neither party requested that relief. And in a separate ruling, the Court further says that Judge Scheindlin has no authority to intervene as a party on appeal for the purposes of retaining her authority on the case.

No Iqbal plausibility in educational discrimination case

The Supreme Court changed the game in 2009 when it decided the Iqbal case, which says that federal complaints have to allege plausible allegations. Plausibility (and not simply possibility) is the new standard, and it makes it more difficult to survive a motion to dismiss. The issue raised here is one that will receive more attention over the next few years, I am sure: what if the defendant's explanation for the plaintiff's plight is more plausible than the plaintiff's theory of liability?

The case is Kajoshaj v. New York City Department of Education, a summary order decided on October 15. The plaintiffs sued the school system, claiming that it failed to promote their son to sixth grade because of national origin discrimination.They advance a variety of reasons in alleging discrimination, i.e., meritless reports of child abuse/neglect in 2003 and 2010, the child's suspension in 2004 for failure to receive vaccinations, the school's promotion of non-Muslim students from families of non-Albanian origin who had similar test scores and grades to plaintiffs' son and defendants' failure to meet with plaintiffs about the failure to promote their son.

The Second Circuit (Sack, Parker and Raggi) says these allegations may be consistent with a Title VI violation, but they "stop short of the line between possibility and plausibility." So here we have a real-life example of the possibility-plausibility distinction.There is not enough to make the claim plausible. For instance, no decisionnmakers made biased statements or made reference to plaintiffs' national origin, and their "naked allegation" that they were treated differently than non-Muslim, non-Albanian students is silent on the details.

The defendants have a more plausible explanation for not promoting plaintiffs' son. The complaint alleges that defendants gave them reports of the student's poor ELA scores. "These reports provide a more plausible explanation for the Academy's decision not to promote Abedin than animus based upon national origin and religion."

The Second Circuit has held in other cases that the fact that defendants have a more plausible reason for the adverse decision than the plaintiff is not enough to support dismissal under Iqbal. In this case, that rule does not apply because the Court of Appeals says there is nothing plausible about the plaintiffs' claim.

This is how stop-and-frisk cases work

Debating stop and frisk is the latest craze. Ever since the Second Circuit's Halloween rebuke of District Judge Shira Scheindlin's handling of the NYC stop and frisk case, and the mayoral election of Bill DeBasio -- who said he will rein in stop and frisk in NYC -- the question now arises: what is stop and frisk, and how does it work? With exquisite timing, the Court of Appeals lays it out for us.

The case is United States v. Freeman, decided on November 7. In the middle of the night, the police received an anonymous tip in the form of two phone calls that said a Hispanic male, wearing a black hat and a white t-shirt, might have a gun near the Chase bank on East Gun Hill Road in the Bronx. The police did not know the identity of the tipster, and they did not learn her identity afterwards. When the police found a man who matched this description, he did not run away, and they seized him and found a gun on his person. Freeman was later convicted of unlawfully possessing a firearm.

The trial court should have suppressed the gun as the result of an illegal seizure, the Court of Appeals (Pooler and Droney) says, with Judge Wesley dissenting. In Terry v. Ohio, the Supreme Court said in 1968 that the Fourth Amendment authorizes stop and frisks if the police have reasonable suspicion to believe that someone is committing a crime. Hunches are not reasonable suspicion. And, as the Second Circuit says, "anonymous tips, without further corroboration by the police to demonstrate that the tip has sufficient indicia of reliability, are insufficient to provide the reasonable suspicion necessary for a valid Terry stop." It is not enough that the 911 call was recorded and the police had the phone number of the tipster. Nor is it enough that the police found a guy who fit the description from the anonymous call or that they guy actually had a gun. The Court concludes:

[E]ven though the call was recorded, the two factors that distinguish tips from known and unknown sources are both still operative in this case—the caller’s credibility cannot be assessed and there is no risk of consequences for a false report in this instance.

This decision accounts for the fact that anyone can implicate anyone for a crime at any time. The police need to know that the tipster is reliable and that the phone call is made in the understanding that an intentionally false tip will get the tipster in trouble. There was no risk of that here because no one knows the identity of the caller, and the police had no corroboration.

Judge Wesley dissents, stating that the calls were reliable enough for the police to take action, particularly since the caller's number was known the police and she knew the police were recording the calls. Judge Wesley reasons, in part:

the police officers who made the reasonable suspicion determination were confronted with multiple recorded phone calls from a woman who provided accurate descriptive information and a discernible call‐back number that yielded a voicemail message. This is not a case where a stranger in a muffled voice made a call from a payphone, or where someone dropped off an anonymous note. The officers reasonably presumed that the caller could be identified. They requested that the dispatcher call the tipster back to verify whether she actually saw a gun; the dispatcher in fact did call back on the officer’s request, albeit to no avail. The officers’ belief – the relevant focus in a reasonable suspicion inquiry – was that the tipster was a reachable individual, tied to a particular phone number and location.

The City of New York wants instant vacatur of Judge Scheindlin's stop and frisk ruling

The City of New York is asking the Second Circuit to vacate Judge Scheindlin's stop and frisk rulings immediately, without the benefit of full briefing or oral argument, claiming that her judicial bias tainted the entire proceedings and has "unfairly and improperly ... cloud[ed] the public’s perception of the NYPD."

The case is Floyd/Ligon v. City of New York. On October 31, the Second Circuit stayed Judge Scheindlin's remedial orders pending appeal, including her directive that a neutral monitor oversee the NYPD. The Circuit Court said that Judge Scheindlin had violated the Judicial Code of Conduct by steering the case into her courtroom and in making public comments during trial. A few days ago, Judge Scheindlin filed a motion asking the Court of Appeals to restore her to the case, arguing that she did nothing wrong in applying the "related case" rule and that she did not publicly talk about the stop and frisk case but, more broadly, her judicial philosophy and approach to judging.

Judge Scheindlin's motion turned this into a dogfight. I appreciate her spunk in filing the motion, but I can't imagine the Court of Appeals reversing itself on a high profile issue like this, acknowledging that it had wrongly humiliated a district court judge. But the City of New York has now one-upped Judge Scheindlin: it wants the Second Circuit to throw out her lengthy rulings altogether, right now, this instant.

The Corporation Counsel signed the brief in support of this motion. In 1988, the Supreme Court said that an appellate court has authority under Federal Rule 60(b) to vacate a district court ruling if the trial judge violated rules governing judicial impartiality. The City cites that case in support of this motion. In Liljeberg v. Health Services Acquisition, the Court said "[t]he Rule does not particularize the factors that justify relief, but we have previously noted that it provides courts with authority 'adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice,' while also cautioning that it should only be applied in 'extraordinary circumstances.'" This case is sufficiently extraordinary, Corporation Counsel Michael Cardozo says, for the following reasons:

1. "The District Judge’s improper extrajudicial comments during and after the bench trial confirm that the taint of partiality, or appearance of a lack of impartiality, carried through the entire Floyd
and Ligon proceedings."

2. The City adds that "[t]he risk of injustice to Appellant if the District Court Orders are allowed to stand is incomparably acute and unique. The District Court’s Orders lend credence to the notion that the NYPD unfairly targets minorities for stops and frisks, undermining its ability to carry out its mission effectively. ... Public perception of the NYPD has been clouded by the District Court’s condemnatory ruling and the immense attention paid to it, compromising confidence in the integrity of law enforcement. As the Corrected Mandate has now revealed the partiality of all of the Floyd and Ligon proceedings and the resulting orders, vacatur is appropriate to stem the tide of diluted trust and confidence in the NYPD that the mere existence of the District Court Orders fosters, even with the stay currently in effect. Wrongly labeling the NYPD – and the City – a racial profiling entity and flouter of the Fourth Amendment should be sufficient injustice to vacate the Orders now, but add to that the injustice that would be produced by the potential collateral estoppel effect of the Liability Order on future cases, and the onerous burden on the taxpayers in following the Remedies Order. It will also send the clear message to all district court judges to apply the related case rule properly in future cases. Moreover, vacating the District Court Orders will send a necessary message to the bar that 'judge-shopping' by exploiting the improper application of the related case rule will not be countenanced.'"

3. Public commentary on this controversy has raised questions about whether Judge Scheindlin really talked about this case during her media interviews. The City recognizes this, arguing that "[t]o be sure, reasonable minds may differ as to whether those statements directly pertained to the Floyd case. Still, the comments must be considered 'in the context in which they were issued.' It cannot be denied that, under a headline directing the public’s attention to the stop-and-frisk litigation, the District Judge characterized herself as unique among Southern District judges because she is 'not afraid to rule against the government.'” The motion adds that "the District Judge’s choice to grant such interviews during the trial would likely cause a reasonable person to question her impartiality. Such comments, during a highly publicized case involving a matter of great national concern, as well as recent public statements in response to the Corrected Mandate, are not so different from those which have resulted in the removal of judges in other cases of violations of 28 U.S.C §455(a)." (They cite the Microsoft case in support of this proposition, though that case involved only the removal of the judge, not vacatur of his ruling).

4. The City also argues that instant vacatur is warranted because Judge Scheindlin's rulings are just plain wrong. "The District Court certainly made unorthodox rulings against the City, which, fly in the face of established precedent and are now even more questionable when viewed in light of this Court’s findings." The City goes on to attack the merits of the stop and frisk ruling, giving the plaintiff's lawyers a preview of what to expect when the City files its merits briefs. I seriously doubt there is any precedent for immediate vacatur based on the alleged wrongness of the district court's rulings, but the City probably figures, "what the hell, we're filing this motion anyway, let's go all the way."

I try to keep my opinions away from this blog, but this motion will not be granted. The Court of Appeals will not throw out a lengthy and thorough district court ruling on an important constitutional issue without the benefit of full briefing and oral argument. The Supreme Court said a remedy like this should be applied in rare instances. Is this one of those rare instances? I doubt it. I also wonder what this is all going to lead to. The New York Times says this may all be moot in a few months. "Mayor-elect Bill de Blasio has promised that on Day 1 of his administration, he would withdraw New York City’s appeal of sweeping reforms ordered by a federal judge in the Police Department’s stop-and-frisk practices."

Judge Scheindlin fights back

On October 31, the Court of Appeals stayed (but did not overrule) Judge Scheindlin's ruling on stop and frisks in New York City and also removed her from the case, concluding that she had "run afoul" of the Judicial Code of Conduct in steering the case into her courtroom and also in speaking publicly about the case.

The case is Ligon/Floyd v. City of New York. That sua sponte ruling from the Second Circuit generated much attention. The stop and frisk case is a big deal in that Judge Scheindlin held that the City had violated the Fourth and Fourteenth Amendments in frisking people without reasonable suspicion of any criminal activity, and that the practices amounted to racial profiling. (Hat tip to the Constitutional Law Prof Blog, written by one of my favorite law professors, Ruthann Robson).

Now Judge Scheindlin is fighting back, and she wants the Court of Appeals to reinstate her to the case. She is using some well-known lawyers, including Burt Neuborne, Norman Dorsen and Frederick A.O. Schwartz, Jr., in filing a "request for leave to file motion to address order of disqualification." I have never seen this before, and I don't know if the Court of Appeals has ever reversed itself on a disqualification ruling.

Through her lawyers, Judge Scheindlin notes that she has served with distinction since 1994 and presided over an extensive trial in Floyd v. City of New York, the stop and frisk case, and also presided over a hearing on a motion for a preliminary injunction in Ligon v, City of New York, which also involved the City's stop and frisk practices. At no point in this case did anyone seek Judge Scheindlin's disqualification.

Judge Scheindlin argues that the disqualification order was procedurally deficient because Federal Rule of Appellate Procedure 21 requires that judges will receive notice of any allegations of misbehavior when they are charged with misconduct, and an opportunity to be heard. That did not happen here, Judge Scheindlin says, which violates due process. She also argues that the Court of Appeals got it wrong in concluding that Judge Scheindlin had violated the Code of Conduct in suggesting that the lawyers file the Floyd action and mark it as a related case to another stop and frisk matter that she was handling, Daniels v. City of New York.  In Daniels, the lawyers wanted to "raise newly discovered evidence concerning the allegedly racially discriminatory nature of the NYPD's 'stop and frisk' practices." According to Judge Scheindlin's motion, as the Daniels case had settled, that was not the time to discuss the new evidence, hence the suggestion that the lawyers file a new case. (For the non-lawyers, cases are sometimes filed as related cases if they involve similar legal issues or parties to another case before the same judge). Here is the transcript from that fateful conference.

The motion further challenges the Second Circuit's finding that Judge Scheindlin violated the rules in speaking publicly about the stop and frisk cases. The motion attaches the press articles in which she had allegedly violated neutrality. In the articles, she refused to discuss the legal issues in those cases, and discussed constitutional law and the judicial process in general. The motion adds that "discussion of important legal issues by members of the judiciary enriches the dialogue that is crucial to public understanding of the rule of law, and is consistent with the values underlying the First Amendment."   

Disability discrimination complaint does not contradict itself

The general rule in drafting a federal complaint is that the allegations cannot contradict each other. If that happens, you are asking for a motion to dismiss. In this disability discrimination case, the district court dismissed the case on that basis, but the Court of Appeals reinstates the case.

The case is Grant v. County of Erie, a summary order decided on October 17. Plaintiff was injured but claimed she was able to work. The complaint said that a "fourth doctor ... cleared her to return to work." The district court disregarded that allegation because the complaint alleged that the same doctor said plaintiff could not return to full duty at a youth detention facility without restriction in that she could not restrain physically strong people.

Are these allegations mutually exclusive? The Court of Appeals (Hall, Leval and Lohier) says they are not. The doctor said that plaintiff could return to regular work "from an orthopedic stand point." The doctor questioned whether it was reasonable for her to return to work in the face of possible physical injury on the job, but that does not mean she was not qualified to do the work. The Court of Appeals sums it up:

Dr. Bergeron’s report, accordingly, does not support the district court’s conclusion of Grant’s lack of qualification to perform her work duties. Because Dr. Bergeron’s report states that Grant is able to perform the essential functions of her job, it cannot serve as the basis for dismissing her claim of discrimination at this stage in the litigation. We thus vacate that portion of the judgment that dismisses the complaint on the ground that Grant is no longer qualified to return to her job.

Plaintiff also raises a state law discrimination claim. The district court sua sponte chucked that claim because plaintiff did not file a proper notice of claim. This was not fair to plaintiff; she did not have a chance to show that the notice of claim was legitimate. In 1991, the Second Circuit said that while the district court has authority to dismiss a complaint sua sponte, it must give the plaintiff a chance to be heard. That rule is applied here, and that claim is reinstated.