Supreme Court says complaints do not have to cite proper legal theory

Sometimes the Supreme Court issues brief rulings that no one seems to know about. But these rulings can govern our lives for years to come. If you litigate cases in federal court, this one is worth reading. It clarifies what the plaintiff can omit from the complaint.

The case is Johnson v,. City of Shelby, a per curium ruling issued on November 10. This case tells us about the new pleading standards set by the Supreme Court in the Iqbal ruling from 2009, which held that plaintiffs must plead a plausible claim in order to survive a motion to dismiss. In this case, two police officers sued the City for wrongful discharge, claiming their termination violated the Due Process Clause of the Fourteenth Amendment. Normally, these claims are brought under 42 USC sec. 1983, the federal civil rights statute that plaintiffs invoke to enforce constitutional rights. The problem is that the complaint does not actually say that plaintiffs are suing under Section 1983. So the district court dismissed the case outright.

Dismissing the case was wrong, the Supreme Court says. Federal pleading rules only require the plaintiff to provide "a short and plain statement of the claiming showing that the pleader is entitled to relief." The Court has said in the past that heightened pleading requirements do not govern civil rights cases. While Iqbal requires the plaintiff to allege a plausible claim, that is a factual requirement, in contrast to this case, where the plaintiff did not cite the proper statute.

You don't have to cite the statute governing your case. The complaint does not have to allege the proper legal theory, only the facts that entitle you to relief. As the Court tells us in this case, the federal rules "do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted." Various practice guides have always supported this position,and the Supreme Court now adopts it.

Supreme Court grants qualified immunity in "knock and talk" police case

Are you aware of the "knock and talk' principle under Section 1983? This case alleges that the police violated the knock and talk rule by entering private property without a warrant and questioning the homeowners away from an area where visitors are normally expected to go. The property owners prevailed in the Third Circuit, but the Supreme Court reverses and grants the police officers qualified immunity.

The case is Carroll v. Carmen, decided on November 10. The Supreme Court issued this ruling without oral argument. The police heard that some guy had stolen a car and two loaded guns. and that he was the Carmen household. So they ventured into the property and wound up near a shed, into the backyard, where they asked the Carmens about the suspected felon. Under the knock and talk rule, the police can knock on private property without a warrant to ask questions, just as a private citizen might. Ruling in the Carmens' favor, the Third Circuit held that "the 'knock and talk' exception requires that police officers begin their encounter at the front door, where they have an implied invitation to go."

Whatever joy the Carmens felt in prevailing at the Third Circuit has been stripped away from them like that ground ball through Bill Buckner's legs during the 1986 World Series. The Supreme Court grants the officers qualified immunity, and the Carmens lose.

Qualified immunity applies when the civil rights violation was not clearly-established at the time of the incident. The law in this area was not clearly-established when the Carmens suffered the indignity of the police stepping deep into their property. Third Circuit precedent does not provide much guidance in this area. One case, Marasco, "held that an unsuccessful 'knock and talk' at the front door does not automatically allow officers to go onto other parts of the property. It did not hold, however, that knocking on the front door is required before officers go onto other parts of the property that are open to visitors." So, Marasco (and rulings from around the country) is not on point, the Supreme Court says. And if the Third Circuit precedent is not on point, then the officers did not have notice that they were violating the Constitution when they ventured onto the Carmens' property. Qualified immunity attaches, and the police win.

Interesting side note to this case. The Supreme Court has never identified the body of case law that governs the qualified immunity inquiry. It declines to do so here. It decides the case by assuming "for the sake argument that a controlling circuit precedent could constitute clearly established federal law" in the qualified immunity context. Might the Court someday decide that only Supreme Court precedent is relevant in deciding if the law is clearly-established? If that happens, it will probably expand qualified immunity for defendants, as there are far fewer Supreme Court rulings to choose from than Circuit court precedents. Something to ponder.

Multi-faceted sexual harassment claim loses

Employers are supposed to take sexual harassment complaints seriously. In this case, the plaintiff claimed she was sexually assaulted at work. Management brought charges against the alleged harasser. The arbitrator sided with the alleged harasser. So what happens to plaintiff's case?

The case is Burns v. City of Utica, a summary order decided on November 7. Not all sexual harassment in the workplace is actionable. Not against the employer, anyway. The employer is only liable under Title VII if it ignores or mishandles the complaint. This means that even the most disgusting harassment imaginable will not give rise to a lawsuit if the employer has a good HR department or stops everything and deals with the problem right away.

This case does not get out of the starting gate. The district court dismissed the case under Rule 12, and the Court of Appeals (Winter, Walker and Cabranes) affirms. Plaintiff worked for the fire department. The employer suspended the harasser with pay, but he was reinstated after the arbitrator said the City had failed to prove its case against him. (The City also challenged her work-related disability claim and it prevailed against her at a separate administrative hearing).

Plaintiff tries to get around the arbitrator's ruling by alleging that the disciplinary hearing was irreparably flawed by various conflicts of interest, i.e., the City's representative at the disciplinary hearing had it in for her and had an incentive to lose that proceeding. This kind of conspiracy-theory will not usually work in federal court, and it does not work here. As the Court of Appeals says, ultimately, "both the disability and disciplinary proceedings were ultimately decided by neutral arbitrators." While "Burns alleges at length that the arbitrators disregarded the evidence in both cases, ... this action is not the forum in which to challenge arbitration decisions."

Burns also sues for retaliation under Title VII. That claim fails also, because plaintiff cannot show an adverse employment action. While she claims she was directed to return to work under unsuitable conditions, resulting in her taking unpaid leave from the Fire Department, she "was required to return to work at her previous position only after an independent arbitrator determined that she was not disabled. That decision was not an adverse employment action under Title VII."

Finally, plaintiff sues the harasser, Knapp, under Section 1983, which prohibits sexual harassment by government employees acting under color of state law. The problem here is that, while Knapp was a government employee, he did not abuse his government employment in harassing plaintiff. Rather, the "alleged sexual assault ... was palpably a personal pursuit entirely unrelated to his duties as a firefighter."

ADA plaintiff has standing to sue Amtrak

The Americans with Disabilities Act has a loophole: unless the government is filing the lawsuit, a litigant cannot sue a private entity for damages, only injunctive relief. The problem is that, to obtain an injunction, you have to show that you will be subjected to the ADA violation again. That is harder than it sounds. What if you have no intention of returning to the scene of your humiliation?

The case is Pincus v. National Railroad Transportation Corp, a summary order decided on October 28. Pincus took an Amtrak train from Florida, to New York. She sues over "Amtrak’s failure to have a wheelchair and attendant waiting for her despite her prior notification of the need for these provisions; supplying her with a wheelchair that was too small; and leaving her unattended in a wheelchair she could not operate." The Court of Appeals (Cabranes, Straub and Livingston) notes that "The injunctive relief sought would require Amtrak to provide wheelchairs and wheelchair assistance to passengers who have mobility-related disabilities."

The district court dismissed the case under Rule 12, holding that the Complaint does not show that she intended to use Amtrak again. Without that intent to use this service, plaintiff cannot seek an injunction. The Court of Appeals reinstates the case."Pincus’s professed intent to use Amtrak again is sufficient to establish standing. The second amended class action complaint alleges that Pincus 'desires to utilize Amtrak rail stations not only to avail herself of the goods and services available at the rail stations,' but also in the capacity of a tester 'to assure herself that Amtrak is in compliance with the Rehabilitation Act so that she and others similarly situated will have full and equal enjoyment of the property without fear of discrimination.' The complaint further alleges that Amtrak’s 'discriminatory practices also prevent Pincus from returning to the property to enjoy the goods and services available to the public.'"

As "deterrence [is] a cognizable injury on a disability claim," the Court says. Disability plaintifffs “'need not attempt to overcome an obvious barrier,' so long as she pleads sufficient facts to 'create a reasonable inference that [s]he would frequent the [public accommodation] were the violation remedied.'”

Police unions cannot intervene in now-settled stop-and-frisk litigation

The much-publicized stop-and-frisk case that raised questions about racial profiling and led to the removal of a federal judge from the case is still kicking around. While New York City has since settled the case, the police unions want to revive the case in the interests of protecting the reputation of its members who, the district court found, had stopped and frisked minority residents for no reason.

The case is Floyd v. City of New York, decided on October 31, exactly one year after the Court of Appeals kicked Judge Scheindlin off the case, holding that her public comments and case-management practices conveyed possible bias against the police. In fact, she had written an extensive decision in finding that the City had violated the Constitution in frisking people without reasonable suspicion. The decision to remove Judge Scheindlin from the case triggered much controversy, but it was mooted when Mayor DiBlasio was sworn in and settled the case.

When that happened the public thought the case was over. But not for the police union, which objected to Judge Scheindlin's ruling. But the Court of Appeals (Parker, Cabranes and Walker) objects to the union's maneuvering. Not only is the unions' motion to intervene untimely, but they do not assert an interest that the law seeks to protect. The unions should have known when the case was unfolding that they had an interest in the case. They did not attempt to intervene until now. Beyond that, the motions to intervene do not satisfy Federal Rule 24. The unions' asserted interests in the case -- to protect officer reputations -- are too insubstantial and indirect to be legally protectable. In addition, the Court of Appeals says,

Whatever the merit of the unions’ claim that Judge Scheindlin’s rulings were incorrectly premised “upon statistical evidence purporting to place 4.4 million stops at issue,” allowing the unions to revive a now‐settled dispute by intervening at this late juncture would substantially prejudice the existing parties and unduly encroach upon the City’s inherent discretion to settle a dispute against it. In other words, granting the unions’ motions in the wake of the November 2013 mayoral election would essentially condone a collateral attack on the democratic process and could erode the legitimacy of decisions made by the democratically‐elected representatives of the people."

Gun search gone awry gets family a new trial

This case is a real eye-opener. The police entered someone's property looking for a gun that did not exist and shot and killed the family dog in front of a 12 year-old girl. The case went to trial and the police won. The family gets a new trial.

The case is Harris v. O'Hare, decided on October 30. The City of Hartford Police made it a priority to rid the neighborhood of guns. When they arrested a heroin user who had violated his parole for possessing drugs, the user (who was unknown to the police) told them they could find a gun in an abandoned car at a specific address. Of course, this tip would gain the heroin guy some leniency in his parole violation proceeding. But the police though the tip was reliable because the arrestee was unlikely to lie and make his bad situation worse by misleading the police. So the police entered the property described by this informer and found no drugs. But when the growling family dog was running around in this fenced-in property, the officer shot and killed it in front of a girl who loved the dog. At trial, the jury ruled for the police in the belief that exigent circumstances allowed them to enter the property without a warrant.

The Court of Appeals (Pooler, Parker and Wesley) issue two holdings here. First, the police had probable cause to believe there might be guns on the property. The informant belonged to a violent street gang in this dangerous neighborhood, so the police deemed him reliable on where they could find guns. The informant was also in a position of self-preservation such that "it would be detrimental for him to provide us false information." And, this is how the police often found illegal guns. It may sound counterintuitive, but this violent heroin user was more likely to tell the truth under the circumstances, the Court says.

But the Court also says the police had no right to enter the property without a warrant. The Second Circuit says the jury had no basis to find that exigent circumstances justified the warrantless entry. Exigent circumstances are a narrow exception to the warrant requirement. Here are some general guidelines:

(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause . . . to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; (5) a likelihood that the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry.

While the officers argued that Hartford is a violent, gun--ridden city, that justification is not sufficiently specific to this particular case to allow the police to enter the property without a warrant.The Court reasons:

Though genuinely held, the officers’ concerns about getting illegal guns off of the streets of Hartford are not pertinent to an exigency analysis. This is because testimony about how fast “guns move” in Hartford, or about the violent gangs in that part of the city, are not specific facts or evidence particular to this case. Rather, they are generalized facts about the city and about the nature of gun trafficking. Such general knowledge, without more, cannot support a finding of exigency. The exigency inquiry “turns on the district court’s examination of the totality of circumstances confronting law enforcement agents in the particular case.”

Contractor can sue City of New London for First Amendment retaliation

This First Amendment retaliation case explores when a City can retaliate against a contractor who filed a prior federal lawsuit against the City. From time to time, the Court of Appeals determines when the First Amendment prohibits the government from punishing someone for bringing a lawsuit. The plaintiffs in cases like that usually lose. This plaintiff wins.

The case is Golodner v. Berliner, decided on October 27. Plaintiff contracted with the City to provide security in several buildings. At the same time, he sued the City because its police officers had arrested him without probable cause. His lawsuit alleged that, under a "dual arrest" policy, officers were improperly trained in neighbor disputes to arrest the complainant and the offender. His lawsuit also alleged that the City officers hated him and ignored his complaints against his neighbors. After the lawsuit was filed, the City contracted with someone else for the security services. He claims in the present lawsuit that the City changed contractors in retaliation for the first lawsuit.

Plaintiff can win the case if the first lawsuit raised a matter of public concern. If the first lawsuit raised a matter entirely personal to plaintiff, then it was not protected activity. But the first case raised issues surrounding systemic police misconduct in executing bad police arrest policies which might violate the Constitution. For that reason, the first lawsuit raised a matter of public concern. Not only does the dual-arrest policy look questionable, but plaintiff alleged in the first lawsuit that the City officers made his life a living hell because he had complained about a City officer.

Defendants raise a novel argument. Noting that the Supreme Court's principal case on First Amendment retaliation, Connick v. Myers, requires courts to consider the whole record in determining if the plaintiff engaged in protected speech, defendants say that, in viewing the entire record, the first lawsuit did not raise a matter of public concern because that case was ultimately dismissed on summary judgment, and in that case plaintiff did not challenge the dual-arrest policy in post-complaint filings. That does not matter, the Second Circuit (Hall, Straub and Droney) says. When the City allegedly retaliated against plaintiff, the only speech that plaintiff had engaged in was the lawsuit, which on its face did raise matters of public concern. "The practical effect of adopting defendants' position ... would be to impute to government actors -- retroactively -- knowledge of developments bearing on the characterization of speech that postdate the actors' alleged retaliation. Neither the law nor common sense supports such an approach[.]" The Second Circuit adds, "Courts properly determine whether the speech at issue touches on a matter of public concern by reviewing only the speech cognizable by the alleged offenders prior to and at the moment of the alleged violation."

No qualified immunity for the City defendants in light of clearly-established law that the government cannot retaliate against someone, including contractors, for engaging in free speech. For the qualified immunity junkies out there, this case offers a nice discussion (including a reference to Goldilocks) of how much specificity prior cases need on the facts to place government officials on notice that they are violating clearly-established law in subjecting someone to an adverse action.

Plaintiffs can sue for employment discrimination under Section 1981

Most employment discrimination cases are brought under Title VII of the Civil Rights Act of 1964, which Congress undoubtedly intended to cover these cases. But Section 1981, which prohibits racial discrimination in the making and enforcement of contracts, can also predicate an employment discrimination case.

The case is Leung v. New York University, a summary order decided on October 14. Back in the late 1990s, some federal judges began ruling that plaintiffs cannot bring employment discrimination claims under Section 1981 unless they had an employment contract. The Second Circuit put that argument to rest in 2000, ruling in Lauture v. IBM (a case that I briefed) that even at-will employees have a contract (albeit unwritten) and can sue under that statute.

It is 2014, and the Court of Appeals reminds us that employment plaintiffs may sue under Section 1981. The district court ruled that "Section 1981 is not a substitute for an employment discrimination claim." That was wrong. The Court of Appeals (Pooler, Raggi and Hall) says that "Congress intended Section 1981 to apply to employment discrimination and Section 1981 provides a vehicle for every employee to remedy racial discrimination in the workplace." That fact that plaintiff lacks a written contract does not prevents him from bringing a case.

So here are the options for a racial discrimination plaintiff who wants to sue in federal court. You can sue under Section 1981 and proceed directly to court. You can also sue under Title VII, the principle employment discrimination statute, which requires that you first proceed in the EEOC and allow them to investigate for six months before you get a "right to sue" letter that lets you then sue in court. The advantage under Title VII is that the EEOC process gives you a glimpse of what the employer will say in court, as it must file a position paper that will typically contain exhibits in support of the employer's decision. If you want to sue right away but also want to take advantage of EEOC process, then file the Section 1981 and EEOC charge simultaneously. When the right-to-sue letter arrives six months later, then amend the Complaint to assert a Title VII action also.