A tutorial on tort liability from Judge Calabresi

Judge Guido Calabresi is a pioneer legal theorist on American tort law. He also sits on the Second Circuit Court of Appeals. In this case, he puts his theoretical background to work in providing a tutorial on some basis torts concepts arising from a skiing accident that left a man badly injured in Vermont.

The case is Gemmink v. Jay Peak, Inc., decided on November 30. Plaintiff suffered injuries while skiing, and this lawsuit alleges that "Jay Peak negligently permitted dangerous jumps on its ski trails" and that as a consequence, he "suffered a collision with another skier." The problem is that plaintiff could not recall the incident at all, so he could not actually testify that another skier had hit him. His injuries were consistent with that theory of liability, though.

The Second Circuit (Calabresi, Straub and Pooler) notes that "a showing of cause-in-fact almost always involves circumstantial evidence." If the defendant does something risky or irresponsible, we can assume that the plaintiff's injuries resulted from that bad behavior. To avoid liability, the defendant has to show that something extraordinary happened to break the chain of causation.

For example, if a defendant proprietor has failed to install lights on its stairways after dark, and a person coming down the stairs in the dark of night falls and injures himself, one can fairly assume that the failure to illuminate the stairs caused the injury. And it will be up to the defendant to show that something extraordinary happened, say, that an animal scampered up the stairs and tripped the injured person instead. In essence, the greater the risk that the defendant’s conduct will result in the harm the plaintiff suffered, the more likely that a jury will be allowed to find that such conduct was the cause of that harm.

Other factors also affect liability. "Where one party has knowledge or access to information that renders that party better able than his adversary to explain what actually transpired, courts have tended to put the onus on that party to do so." Put another way, if the defendant is in a better position to explain what went wrong, then the plaintiff has a reduced burden in proving liability. Yet another factor in these cases is that "If an erroneous finding of causation is, in the law of the jurisdiction, more harmful than an erroneous finding of no causation, the requirements of circumstantial evidence and knowledge grow stronger. Conversely, where the law of the jurisdiction makes clear that an erroneous finding of no causation is more harmful, the requirements are diminished." In other words, we apply a balancing test: is it worth it to place a higher burden on the defendant in any particular case?

  This case boils down to that third factor. The Court writes:

Is this an area where, in Vermont, liability of ski operators to skiers is close to strict, so that whether negligence was the cause of the alleged injury is a matter that, in uncertainty, should be decided in favor of the skier? Or is this an area where the risk of injury, even in the presence of negligence on the part of the ski operator, is assumed primarily by the skier, so that the requirement of causation is fairly placed on the skier (unless either (a) the evidentiary link between the evidence of negligence and causation of the kind of harm that occurred is particularly strong, or (b) the defendant is in a distinctly better position to tell us what happened)? Or, finally, is Vermont relatively indifferent to error in one direction or the other, offering no reason to favor either the plaintiff or defendant?

The answer is bad for plaintiff in this case. "Vermont prefers to err on the side of finding no causation with respect to sport injuries like the one that here occurred. At the same time, however, the decision of whether the risk borne by the plaintiff in the sporting event was sufficiently 'obvious and necessary' as to be assumed generally forms a jury question under Vermont law." So it's a wash on this question. Which means "we are left to infer causation ... from only the placement of the ski jumps and the nature of Gemmink's injuries." Looking at things that way, plaintiff loses:

We cannot infer a causal link between Jay Peak’s assumed negligence in its maintenance of ski jumps and the injury incurred on the facts presented, and the plaintiff does not provide sufficient evidence to support a link  between his injuries and alleged theory of causation. Under these circumstances, the district court was clearly correct in its holding that the evidence adduced by Gemmink was not sufficient to raise a question for the jury.

Circuit declines en banc review in Turkmen detention case

A few months ago, the Court of Appeals said that a man could sue the United States Attorney General for constitutional violations resulting from his restrictive detention on account of his ethnic background. That 2-1 ruling is now the subject of a debate at the Court of Appeals, which has decided not to hear the case en banc.

The case is Turkmen v. Hasty. The order denying en banc review was issued on December 11. Turkmen is a case growing out of the government's response to the 9/11 attacks. As Judges Pooler and Wesley write in declining to the hear case again, "The Attorney General is alleged to have endorsed the restrictive detention of a number of men who were Arabs or Muslims or both—or those who appeared to fit those categories—that resulted from the fear and frenzy in greater New York following the 9/11 attacks in which suspicion was founded merely upon one’s faith, one’s appearance, or one’s native tongue."

En banc means the whole court. Three judges hear each case. Overall, 13 judges sit on the Court of Appeals (not including judges on senior status). If an issue is important enough, all 13 will re-hear a case. But that is a rare occurrence, usually happening maybe once per year. When en banc review is denied, the judges in dissent from that order usually complain that the Second Circuit does not grant en banc review enough.

Writing for the judges who want to take up this case again, Judge Jacobs says, "The panel decision raises questions of exceptional importance meriting further review. These concern our court’s faithful adherence to controlling Supreme Court precedent respecting (1) the narrow scope of Bivens actions, (2) the broad shield of qualified immunity, and (3) the pleading standard for plausible claims." The dissenters want the courts to defer more to the Executive Branch on matters of national security in a post-9/11 world, and question whether the Second Circuit in this case properly extended (the usually narrow) Bivens liability to this case. (Bivens says the federal government can be sued for constitutional violations in certain circumstances). The judges also want to reconsider whether the defendants are entitled to qualified immunity, which gets defendants off the hook if they are accused of violating rights that were not entirely clear at the time.

According to the dissenting judges, other Circuits have reach a contrary conclusion on whether Bivens can apply in a case like this. "The panel decision puts this court at odds not only with these sister circuits, but also with controlling Supreme Court precedent in the following three areas of law." This means the judge are inviting the government to seek Supreme Court review. And I sure they will do so.

The State and City law prohibits discrimination on the basis of perceived sexual orientation

The Court of Appeals rules that a plaintiff may have a claim under the New York State and New York City Human Rights Laws that his former employer discriminated against him because of his perceived sexual orientation. Co-workers thought plaintiff was gay, and they ridiculed him over this and subjected him to obscene and lewd remarks.

The case is Dingle v. Bimbo Bakeries, a summary order decided on December 16. Dingle handles this appeal pro se. The Court of Appeals (Pooler, Calabresi and Lynch) notes that while Title VII offers no such protections, the State and City laws "expressly protect against discrimination based on both perceived as well as actual sexual orientation." This means that "Dingle's actual sexual orientation is not at issue; he is protected by these provisions if he suffered abuse because others believed, even incorrectly, that he is gay." The Court of Appeals cites a Southern District of New York ruling for this proposition, which means the Second Circuit has yet to squarely address this issue. While it does so here, it's in an summary order with limited precedential value. Still, as the statutes protect plaintiff from this kind of discrimination, we don't need a Court of Appeals ruling to say this; the statutory language is good enough.

For some reason, the Second Circuit does not actually rule in Dingle's favor. After reviewing the allegations in plaintiff's complaint and summarizing the state of the law in this area, the Court sends the case back to the district court "to consider in the first instance whether Dingle alleged a plausible perceived sexual orientation hostile work environment claim and retaliation claim under the NYSHRL and NYCHRL. As part of its consideration of this issue, we urge the district court to appoint counsel for Dingle."

Dingle did a good enough job to win his appeal against a huge management-side law firm, and he will probably receive a lawyer to take on the case from this point forward. And, yes, that is not a typo. The name of the defendant is Bimbo Bakeries USA. They sell Entenmann's food products.

Free speech, kind of ...

This public employee First Amendment case is interesting because the plaintiff actually engaged in protected speech (most do not under the Supreme Court's Garcetti ruling) but the City of Buffalo was allowed to discipline him anyway because his free speech was too disruptive.

The case is Delano v. City of Buffalo, a summary order decided on December 17. If a public employee speaks as a citizen and not as a public employee, then the First Amendment protects him from retaliation. That's the rule in Garcetti v. Ceballos, which the Supreme Court decided nearly 10 years ago. That rule has killed off many a First Amendment retaliation claim, as it's hard to show that a public employee spoke as a citizen and not pursuant to his official job duties. Apart from Garcetti, the Supreme Court also recognizes that management can discipline free speech people if the speech had the potential to disrupt the workplace. That's the rule in Pickering v. Board of Education, a Supreme Court ruling from 1968.

Plaintiff is a highly-decorated police officer who spoke publicly about the police department's investigation into the killing of a child. This is a matter of great public interest. But plaintiff also violated workplace directives in speaking out. The Court of Appeals (Jacobs, Leval and Calabresi) notes that "the value in Delano’s speech is admittedly strong. He spoke out about what he believes is an injustice in the investigation of what may have been the murder of a young girl. But the defendant’s interest is stronger. [Police Commissioner] Gipson had his own duty to ensure that he maintained a 'significant degree of control over [his] employees’ words and actions; without it, there would be little chance for the efficient provision of public services.'”

See that language about efficient public services? That's what Pickering is all about. The speech has value, but there is also a value in the efficient management of a public office. This is why plaintiff loses the case. Again, the Court of Appeals:

Here we have little trouble deciding that it was reasonable for defendants to predict that Delano’s conduct would be disruptive. Delano violated direct orders from superiors and other rules and regulations. He was ordered not to speak to the media or to investigate the Girard case. Yet he continued to conduct an independent investigation outside his regularly assigned duties, and he spoke to the media, supplying departmental photographs and videos to the press in violation of regulations. As a result, defendants were reasonable in concluding that the disruption had or could have had “a detrimental impact on close working relationships,” “imped[ed] the performance” of Delano’s
duties, or “interfere[d] with the regular operation of the” police department.

Plaintiffs do not always win under the City Human Rights Law

The New York City Human Rights Law is regarded as a "pro-plaintiff" civil rights law, mostly because it reaches further than federal and state law. In the employment discrimination context, the First Department has been issuing rulings that make it clear that the City law should be liberally construed. But not everyone wins under the City law.

The case is Cadet-Legros v. New York University Hospital, issued on December 8. Plaintiff is a black woman who worked at the Hospital. Over time, she received a series of warnings, then final warnings, before management terminated her employment. Plaintiff then sued for racial discrimination, claiming the employer's articulated reasons for her termination were pretextual and that decisionmakers had made racially-coded statements. The First Department disagrees, and the case is dismissed. But along the way, the Court offers more guidance on how this law works, and how it differs from federal and state law.

In cases like this, "the court should focus on whether the defendant has sufficiently met its burden, as the moving party, of showing that, based on the evidence before the court and drawing all reasonable inferences in plaintiff's favor, no jury could find defendant liable under any of the evidentiary routes [applicable to discrimination cases]." One way for a plaintiff to defeat summary judgment is by offering some evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete." If the plaintiff can accomplish this, "such evidence of pretext should in almost every case indicate to the court that a motion for summary judgment must be denied."

The Court goes on: "This is because once a plaintiff introduces 'pretext' evidence, 'a host of determinations properly made only by a jury come into play, such as whether a false[, misleading, or incomplete] explanation constitutes evidence of consciousness of guilt, an attempt to cover up the alleged discriminatory conduct, or an improper discriminatory motive coexisting with other legitimate reasons.' This formulation, founded on the uniquely broad and remedial purposes of the City HRL, provides the framework for evaluating the sufficiency of evidence, and differs significantly from federal civil rights law (by assigning, for example, more weight to the possibility that a pretextual justification reflects consciousness of guilt)."

A few points. First, unlike the Second Circuit's interpretation of Title VII, the City law allows the plaintiff to reach a jury on pretext alone. In other words, if plaintiff belongs to a protected class and can show the employer offered a bogus reason for her discharge, that's enough to permit a finding of discriminatory intent. Also, even if the employer offers a variety of reasons, plaintiff's evidence that only one of those reasons is false is enough to win the case. This goes much further than most federal courts in Title VII cases.

In a footnote, the First Department also says that "animus" is not needed for plaintiff to win the case. Animus would take the form of hatred or general dislike of people in plaintiff's protected class, such as age. "An 'animus' requirement is not supported by [the City law's] statutory language or by legislative history. Whether a defendant is motivated by animus, or misguided benevolence, or some other consideration, the conduct in question is illegal so long as it was (at least in part) because of protected class status and operated to the disadvantage of the plaintiff. Thus, for example, a company vice president may think fondly of older employees even as that vice president is explaining that it is 'time for new blood'; that fondness does not take away from the fact that the phrase suggests that it is time for older workers to move on and that any decision to fire older workers may have been based on their age."

These broad principles don't help plaintiff in this case. It accepts that plaintiff's performance was deficient and that plaintiff could not poke holes in that factual argument:

Defendant submitted evidence -- essentially undisputed by plaintiff -- of a legitimate, nondiscriminatory reason for firing plaintiff. As the motion court explained, defendant had been warning plaintiff for years that her conduct was unacceptable. This conduct included "insubordination, disrespect of her supervisors, and failure to communicate." The record contains written documentation of multiple warnings to plaintiff about her conduct, and documentation, including emails from plaintiff, that illustrate an ongoing struggle, apparently unrelated to race, as to whether and from whom plaintiff was going to accept direction. Indeed, one of the most striking things about the record is that it conveys an unusual willingness on defendant's part to continue working with an employee who was repeatedly insubordinate and disruptive of the workplace. 

Plaintiff did argue that a supervisor made a racial comment in saying about her, 'A leopard does not change its spots." This phrase actually has a racist history, but it dates to 1902, and the First Department does not think it has that same meaning today. Today's meaning, the Court says, simply is that someone's pattern of behavior will not change. Plaintiff also argued that another word, "tirade," has a racial meaning. The Court rejects that argument, too, finding instead that it referred to plaintiff's outbursts.

Defamation claims must satisfy Iqbal pleading standards

The Iqbal pleading requirements that the Supreme Court set forth in 2009 affect every civil case. This case applies Iqbal to defamation actions. The Second Circuit says the plaintiff has not plead that defendants acted with actual malice in defaming him. This means the case is over before it starts.

The case is Biro v. Conde Nast, decided on December 8. The article in question is at this link. Here is how the Court of Appeals sets up the case:

This defamation suit involves a July 2010 article (the “Article”) written by journalist David Grann and published by The New Yorker. The Article focused on Biro, a controversial figure known in the art world for using fingerprint analysis to authenticate art in an effort to insert a measure of objectivity into a previously subjective process. The Article raised questions about the trustworthiness of Biro’s methods and his authentication of paintings. Among other things, the Article contained interviews of various individuals critical of Biro, and it suggested that Biro stood to profit from some of his more dubious authentications. To say the  least, we agree with the District Court’s observation that “[t]here is little question that a reader may walk away from the Article with a negative impression of Biro.”

Limited purpose public figure plaintiffs like this guy have to show the defamation was made with actual malice, or knowledge that the statements were false or with reckless disregard as to their falsity. The Supreme Court told us that in 1964. Malice must be alleged plausibly under Rule 8 of the Federal Rules of Civil Procedure. This is the first time the Second Circuit (Lohier, Jacobs and Crawford [D.J.]) has reached this holding. No longer can the plaintiff tell the court he can prove malice with discovery; now, he has to allege facts that plausibly point to actual malice. This makes it much harder for the case to break out of the gate.

Under these new rules, plaintiff has not met his burden. The Complaint does not "allege facts that would have prompted the New Yorker defendants to question the reliability of any of the named or unnamed sources at the time the Article was published." In addition, "The failure of the New Yorker defendants to correct a statement unrelated to the allegedly defamatory statements in light of events that occurred after publication is similarly insufficient to render the allegation of actual malice plausible." 

No qualified immunity in jail assault case

If you read this blog on a regular basis, you know that I write about qualified immunity all the time. Any case against a public official, including police officers, for money has a potential qualified immunity defense, which says the officer acted in good faith or did not violate clearly established law. If that motion in the district court is denied, the defendant take up an appeal to the Court of Appeals right away, an exception to the rule against piecemeal appeals. This is one of those cases, but the appeal fails.

The case is Hyman v. Abrams, a summary order decided on November 16. Plaintiff was in the County jail for God-knows-what. He claims that sheriff's deputies and officers assaulted him. Abrams filed a motion to dismiss on qualified immunity grounds. That motion was denied, and Abrams takes up an appeal. Here's the basic rule when defendants seek qualified immunity under Rule 12:

Although, “usually, the defense of qualified immunity cannot support the grant of a Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted,” a district court may grant a Rule 12(b)(6) motion on the ground of qualified immunity if “the facts supporting the defense appear on the face of the complaint.”

 Not here. The complaint alleges that Abrams assaulted plaintiff without provocation. Plaintiff alleges, "[W]ithout warning, Defendant Abrams grabbed the Plaintiff’s shoulder and shoved him. As the Plaintiff pulled away, he told the Defendant that he did not need to shove him. This apparently infuriated Defendant Abrams, who then attacked the handcuffed Plaintiff by punching him in his right eye.” There is no way that Abrams can get the case dismissed at this early stage, not with an allegation like this. If there is actually merit to the case and discovery shows that plaintiff was not assaulted without provocation, then Abrams can file a motion for summary judgment at the close of discovery. But that is months and months from now. For now, Abrams has to defend the case on the merits.

Court will not hear ADA accessibility appeal

You may not be aware of this, but there is a cottage industry of lawsuits alleging that retail establishments and restaurants are in violation of the Americans with Disabilities Act. Some of these cases are brought in good faith, and some represent an effort to obtain attorneys' fees on behalf of plaintiffs who may or may not have tried to enter these places. I don't know where this case falls in that equation, but remedial efforts by the defendant have prevented the case from proceeding any further, for now.

The case is Range v. 480-486 Broadway, decided on November 24. Plaintiff alleged that this place lacks a permanent ramp from the street to the entrance, and that some interior spaces are too narrow. Defense counsel smartly told the district court that the defendant would fix the problems. Courts like problem solvers, so the judge put the case on hold while the defendant worked on bringing the place into compliance with the ADA. But the court also said that plaintiff could ask the court to modify that order if it wished to do so. Instead, plaintiff filed an appeal, arguing that the stay order was an abuse of discretion. The Court of Appeals (Kearse, Walker and Cabranes) says there is no appellate jurisdiction to hear the case.

Much to the frustration of unhappy litigants who want to appeal any ruling that goes against them, you cannot appeal a ruling in federal court until the entire case is over. There are some exceptions to this, but for the most part, you have to live with bad rulings along the way until the case ends. Not only does this policy allow the Court of Appeals to take up all issues in the case at once and reduce piecemeal appeals, but it's possible that when the case ends, these bad rulings along the way became moot in light of the outcome of the case.

So you know where this case is going. The stay order was not a final ruling by the district court. "While a stay order may be a final order if it effectively cedes federal jurisdiction by refusing to proceed to a disposition on the merits or imposing lengthy or interminable delays, the stay order here is an ordinary delay in the interest of docket control over which we lack jurisdiction."

Adult establishment case falls on standing and mootness grounds

This case had a lot of promise: an adult-oriented establishment suing a Connecticut municipality under the First Amendment. It's been a few years since the Court of Appeals addressed when towns and villages can regulate places like this. But this case ends with a dud because the Court says the plaintiff lacks standing to bring the claim.

The case is Keepers, Inc. v. City of Milford, decided on November 20. The City passed a law that said these adult establishments have to publicly identify anyone who has an "influential interest" in the management or control of the adult-oriented establishment. As the Second Circuit puts it, "the 2007 ordinance required SOBs to publicly post the names of operators, managers, officers, and anyone owning at least thirty percent of the business." SOBs is shorthand for "sexually oriented businesses." The lawsuit alleges that the ordinance violates the right to anonymity enjoyed by the business owners, employees and others. It also alleges that the ordinance is too vague. The Second Circuit (Cabranes, Chin and Raggi) says the law is actually quite clear as to what it requires of these business owners, so that challenge fails.The Court then turns to the standing question.

While the plaintiff says the public posting requirement violates the First Amendment, there is no standing to bring this action. Standing takes the fun out of constitutional litigation. A great case in theory cannot be brought because the plaintiff does not have any real stake in the outcome of the case. That is what happened here. While Keepers brings the case, it has not shown why its owners and officers could not have filed the case. While these people are claiming the right to be anonymous, by the way, they have publicly identified themselves in the course of this litigation, and there is no proof they would suffer harassment or some other hardship in suing on their own behalf.

There is also no standing because there is no "injury-in-fact" caused by the law. At no point in this case has Keepers shown how "the alleged infringement of its officers' and owners' anonymity rights has caused it any harm." The case is also moot. While the law requires an SOB to publicly identify any passive owners of the business, there is no evidence that these people exist. A single owner runs Keepers. While there may have been a case when the case was filed, at this point, no one is affected by the challenged ordinance. There is nothing worth suing over.

Equitable tolling saves untimely habeas petition

This guy went to jail and hired a lawyer to file his habeas corpus petition. But, as the Court of Appeals dryly puts it, counsel "evidently showed a greater interest in collecting fee payments than in providing Martinez with adequate representation. The attorney missed the habeas petition deadline and was barely responsive to Martinez's case[.]" The district court chucked the habeas petition that Martinez finally submitted as time-barred. The Court of Appeals brings the habeas petition back, granting Martinez a rare exception to the blown-deadline rule.

The case is Martinez v. Superintendent of Eastern Correctional Facility, decided on November 10. You only have one year to file a habeas petition. As counsel did not do the work and only wanted to get paid, this one was filed much later. At least Martinez found a lawyer to handle the appeal. That lawyer knows something about equitable tolling, which allows you to bypass the statute of limitations if the blown deadline is not your fault and you acted with reasonable diligence to preserve your rights. Courts do not grant equitable tolling very often, but the Court of Appeals (Walker, Jacobs and Livingston) does so here.

Martinez acted with reasonable diligence here. He hired a lawyer to handle the case and that lawyer actively concealed his law firm's failure to do the work, writing him letters that suggested they were working on the case. Martinez was lulled into believing that someone was doing the work. He had no reason to suspect otherwise. While the district court said Martinez could have hired another lawyer, there is no basis to really know if that was true. And while the lower court said he could have drafted the petition himself, this capability was not clearly established on the record.

We have no idea if Martinez even has a meritorious habeas petition. But the Court of Appeals doesn't worry about that. By way, Martinez's first habeas lawyer got sanctioned by the grievance committee. And the Second Circuit opinion identifies him by name. It that does not motivate lawyers to do their job, then I don't know what will.

Union members prevail in retaliation appeal against labor union

Unions can be sued for discrimination, too. In this case, three journeymen wiremen who belonged to the International Brotherhood of Electrical Workers filed a charge of discrimination with the EEOC, claiming the union had engaged in age discrimination. (They also filed a claim with the National Labor Relations Board). Afterwards, they were denied certain work assignments. Thanks to a foolish statement by the union's business manager, the Court of Appeals says plaintiffs can sue the union for retaliation.

The case is Kazolias v. IBEW Local Union 363, decided on November 12. Five months after plaintiff filed the EEOC charge, the union's business manager, John Maraia complained about the charges. This is what he said at the union's monthly meeting:

I am tired of the 3 or 4 members trying to bring down this Local with their petty claims of workmanship on jobs we are doing. ..  You will be brought up on charges. I have fought too hard for these jobs that we are getting to have a few assholes screw it up. . . . We are in terrible times - no work, anti-union sentiment - and I am fighting all of these fights and will continue. And do not be mistaken, I will fight the few members who are trying to hurt this organization. I will use everything in the CBA, Constitution and By-Laws to stop this vendetta.

Is this statement relevant to show the union retaliated against plaintiff before the business manager publicly disparaged them for complaining? The Court of Appeals (Leval, Lynch and Droney) says yes.

"Maraia’s remarks constituted evidence that, at the time he spoke, he (and consequently the union) harbored retaliatory animus against Plaintiffs for their complaints. A jury could reasonably infer that Maraia’s resentment against Kazolias and Roxby was not born at the instant he expressed it, but had been brewing ever since they brought their age discrimination charges in September 2008." Normally, the employer loses a retaliation case because a decisionmaker makes retaliatory comments prior to the adverse actions. This case tells us that a decisionmaker's hostile comments about plaintiff's protected complaints constitute evidence of retaliatory intent even if they are made after the retaliatory acts are taken against plaintiff. This case also tells us there is no shortage of ways that a hiring official or decisionmaker can betray his retaliatory intent. Calling the plaintiffs "assholes" is one way to get sued for retaliation.

Plaintiffs also sue the union for the violation of union free speech rules. The Labor-Management Labor and Disclosure Act does contain a free speech provision: "Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions." This is not enough for plaintiffs to win.

While plaintiffs claim the union violated this provision by denying them job referrals in retaliation for their NLRB and EEOC charges, plaintiffs' speech is not protected under the LMRDA, which was enacted "to encourage democratic self-governance in unions" and "to correct widespread abuses of power and instances of corruption by union officials." The Court of Appeals has interpreted this law "to protect speech that concerns union governance and union affairs." After adopting the reasoning from other Circuit courts that hold that the LMRDA's protections "are limited to speech of significant concern to the union membership as a whole," the Second Circuit says plaintiffs have no speech claim because they "sought only redress for their personal grievances and made no attempt to publicize their grievances among the membership in an effort to change union practices." Instead, plaintiffs "sought only individualized personal relief. ... The LMRDA was designed to protect the integrity of union governance, not to turn 'nearly every criticism by a union member regarding an official's conduct ... into a federal case."

A primer on obstructing governmental administration

This plaintiff went to trial on a false arrest claim. He handled the trial and this appeal pro se. His position at trial was that the police lacked probable cause to arrest him for obstructing governmental administration. He lost the trial. But he gets a second trial because the judge did not properly charge the jury on the elements of the obstructing charge.

The case is Ozoukwu v. City of New York, decided on November 5. The police said they approached plaintiff in a park, who was sitting on the bench eating Jell-O. The park rules said you cannot enter the park without a child or a stroller. When the police asked plaintiff if he had any children with him, he refused to answer. One of the officers testified that, "to get his attention, I took his Jell-O and I threw it out." (You read that correctly). The police said plaintiff began yelling at them, so he was charged with disorderly conduct and obstructing.

At trial, the jury during deliberations asked the judge if you can be guilty of obstructing if you refuse to speak to a police officer. The judge told the jury that refusal to answer the questions, without more, is not obstructing governmental administration, but "whether refusal to acknowledge or respond to police questions is considered obstruction of governmental administration depends on the totality of the circumstances as you find them."

Plaintiff gets a new trial on his false arrest claim because this jury charge was wrong and could have affected the outcome of the trial. The Court of Appeals (Winter, Pooler and Sack) tells us more than we ever wanted to know about what makes up an obstruction charge. And this will probably be the go-to case on false arrest cases arising from obstructing arrests. After noting that cases in New York say that obstruction arrests require proof that the defendant interfered with police activity through either intimidation, physical force or violence or any independently unlawful act, the Court holds as follows:

Under New York law, it is clearly established that Uzoukwu’s constitutionally protected silence could not constitute any element of the crime of obstructing governmental administration, even if such silence interfered with the officers’ attempt to investigate whether Uzoukwu was violating park rules. Therefore, the district court should have simply answered "no.”

The basis for this ruling is that you have the right to remain silent. Your silence cannot form the basis of an obstructing charge. You can even walk or run away if the police question you without fear of an obstructing charge. "For this reason, refusal to answer police questions ... cannot satisfy the 'independently unlawful act' prong." Relatedly, "obstruction of governmental administration cannot rest upon refusal to provide identification."

Habeas challenge fails to upset murder conviction

This case was big news in Orange County in the late 1990s, involving a marijuana dealer who was accused of killing someone who had ratted him out to the police. The body was never found. The case has gone through many appeals, first through the state system and then in federal court, where the defendant brought a habeas corpus action. The Court of Appeals rejects the habeas petition, and that's probably the end of the line for this guy.

The case is Chrysler v. Guiney, decided on November 19. The facts represent your typical murder case. Chrysler vowed revenge against the snitch, and the murder victim disappeared one morning. But Chrysler's car had the victim's blood in it and his glasses were found at the victim's house, where he was last seen. The victim's DNA was found in Chrysler's car, and so on. There was quite a bit of other circumstantial evidence that linked Chrysler to the murder. The prosecution called witnesses who had implicated Chrysler in one way or another.

There was a second defendant, Weygant, who testified in the Grand Jury and offered testimony that did not help Chrysler. But Chrysler agreed to a consolidated criminal trial with Weygant, and his trial lawyer did not object when the prosecution read Weygant's Grand Jury testimony to the jury, even though Chrysler's lawyer was not able to cross examine this testimony. Although that created a Confrontation Clause problem, Chrysler's appellate lawyers did  not raise that issue on appeal from the conviction. So Chrysler brings this habeas petition challenging the ineffective assistance of appellate counsel, which is a recognized basis to challenge your conviction and to demand a new trial.

At first glance, appellate counsel should have raised the Confrontation Clause issue on appeal. At the Supreme Court had just issued the Crawford ruling, and as the Second Circuit says in this case, "we assume that the admission of [the Grand Jury testimony] implicated Chrysler's Confrontation Clause rights." But the analysis goes beyond that. First, this issue was not preserved for appeal because trial counsel did not object to the Grand Jury testimony. Second, while the appellate courts in New York can still take up an unpreserved issue, it probably would not have done so unless the trial errors were quite egregious and deprived the defendant of a fair trial. In this case, the evidence of Chrysler's guilt was overwhelming, and a fairminded jurist on the Appellate Division could have thought the Grand Jury evidence merely corroborated the remaining evidence of Chrysler's guilt. As appellate counsel was entitled to proceed with the strongest arguments on appeal and not clutter up their brief with weaker arguments, the Second Circuit (Livingston, Kearse and Carney) finds they were not ineffective as Chrysler's lawyers.

What do we learn from this case? We learn that some constitutional errors are not enough to win the appeal. If the defendant is so guilty that the constitutional error would not have made a difference, then the habeas petition will fail. This case also reminds us that state courts have some leeway in interpreting the Constitution as it sees fit, and that it is not enough for the Second Circuit to disagree with the state courts. A habeas petition must only be granted if the state courts unreasonably interpreted the Constitution; a mere violation is not enough.

Ethics alert: the lawyer cannot always make decisions for the client

Normally, the client must live with his lawyer's choices. But not always. In this case, the client says his lawyer made decisions about the case without his knowledge. In particular, the lawyer agreed to drop certain claims. The client found out about this and asked the judge for help. The judge refused to do so. The Court of Appeals says the judge has to convene a hearing to see if the lawyer lacked authority to dismiss these claims.

The case is Gomez v. City of New York, decided on November 5. This is a civil rights case alleging plaintiff was falsely arrested. As Gomez was a City police officer, he was fired as a consequence of that arrest. He sues over his termination also. Gomez hired Reid as his lawyer, who stipulated to dismiss nearly all of Gomez's claims except for the employment claims. When Gomez learned that Reid had dismissed most of his claims, he asked the judge to declare the stipulation null and void because "my lawyer did not have my permission to dismiss all claims." The trial court denied Gomez's request.

The Court of Appeals (Katzmann, Pooler and Chin) says the district court got it wrong. True, the Second Circuit said, "that courts are generally reluctant to recognize attorney error as a basis for relief from an order or judgment." Also, clients are bound by their attorneys' acts. But that rule is not absolute. "Unlike many other acts that an attorney undertakes on a client's behalf, the decision to settle or otherwise dismiss claims 'rests with the client' and is 'not automatically bestowed ... on retained counsel." Here is how the Court of Appeals reasons it out:

The circumstances of this case clearly raised a factual dispute concerning Reid’s authority to dismiss Gomez’s claims. Within days of the stipulation’s signing, Gomez filed a pro se motion for relief from the stipulation and a detailed letter setting forth his assertion that Reid lacked the authority to dismiss his claims. Because the presumption that an attorney‐of‐record has authority to settle a case is rebuttable, the district court should not have denied Gomez’s motion without holding an evidentiary hearing to address Reid’s authority to dismiss Gomez’s claims. And contrary to the City’s contention that Gomez should have come forward on appeal with additional evidence supporting his assertions, Gomez’s detailed letter to the district court below is sufficient to warrant a remand for further development of the record.

Arguable probable cause attaches in gun case

The law says prohibits the unlawful possession of a loaded weapon. This law has some exceptions for police officers, military servicemembers and persons "voluntarily surrendering such weapon ... provided that such surrender shall be made ... in accordance with such terms and conditions as may be established by the superintendent, sheriff, police force or department" to whom the weapon is surrendered." This false arrest case implicates that law.

The case is Markman v. City of New York, a summary order decided on November 2. Plaintiff was arrested for possessing a loaded weapon after he called the police to his car to report a possible explosive underneath his vehicle and a gun and ammunition in the trunk. He says he is entitled to the innocent possession exemption under the statute. It is true, the Court of Appeals (Chin, Katzmann and Castel [D.J.]) says, that "an officer would lack probable cause if the arrestee's entitlement to a statutory exemption were so plain that no reasonable officer could think otherwise."

But that exemption does not help plaintiff. The Court of Appeals says things were not so clear-cut for Markman:

Here, reasonable officers could disagree about whether Markman was entitled to the statutory exemption. When the officers arrived at his vehicle, they found no explosive underneath it, no evidence of tampering, and a gun and ammunition in a closed trunk to which only Markman had access. In short, Markman’s claim that others had left or planted the gun in his trunk was subject to objectively reasonable skepticism. Because the elements of the crime of unlawful possession were met and the exemption was not undebatably applicable, the arresting officers had at least arguable probable cause to arrest Markman and initiate prosecution. They are therefore entitled to qualified immunity for his claims for false arrest and malicious prosecution.

For those of you who do not handle cases like this, arguable probable cause gives the police the benefit of the doubt in close cases. Arguable probable cause falls under the qualified immunity umbrella, which protects public officials and employees from suit if their actions were objectively reasonable at the time of the alleged civil rights violation.

Supreme Court says officer not liable in wrongful death case

The Supreme Court has quietly held that a police officer who shot at a fleeing motorist during a high-speed chase is immune from suit because the state of the law at the time of the shooting did not make it clear that he violated the Fourth Amendment in firing the shots.

The case is Mullenix v. Luna, decided on November 9 in the form of a per curiam opinion without oral argument. In other words, the Court thinks this was an easy case. Only Justice Sotomayor dissents. It all started when some lunatic led the police on an 18-minute chase at speeds between 85 and 100 miles per hour. The motorist claimed to  have a gun and said he would shoot the officers if they did not leave him alone. The police laid down spike strips to disable the vehicle, but one officer, Mullenix, decided to shoot at the car from an overpass. Mullenix had no training for this maneuver. Before waiting for his superior officer to sign off on this approach, and before waiting to see if the strip spikes would work, Mullenix aimed his gun at the car and fired, killing the driver. After the driver was hit, the car engaged the spike strip, causing the car to roll over.

I used to guest teach a class at a local college where I would give the students a fact pattern and ask them to predict how the Supreme Court would decide the case. I would then explain the Court's reasoning. My guess is the students in this case would say the officer was liable for the driver's unlawful death. That's because students are unaware of qualified immunity, which says the police are immune from suit if they did not violate clearly-established law at the time of the incident. Clearly-established law means the case law was specific enough that any public official was on notice that he was violating the Constitution. Although thousands of court rulings have come down over the years on police conduct, judges still have not contemplated every factual scenario. Like this one. Here is how the Court frames the issue:

In this case, Mullenix confronted a reportedly intoxicated fugitive, set on avoiding capture through high-speed vehicular flight, who twice during his flight had threatened to shoot police officers, and who was moments away from encountering an officer at Cemetery Road. The relevant inquiry is whether existing precedent placed the conclusion that Mullenix acted unreasonably in these circumstances “beyond debate.” The general principle that deadly force requires a sufficient threat hardly settles this matter.

The Court says the legal backdrop for these cases has always been hazy. "The Court has ... never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment, let alone to be a basis for denying qualified immunity." Since there is no case quite like this one, the officer is given the benefit of the doubt and the plaintiff loses.

Justice Scalia concurs, stating that "It does not assist analysis to refer to all use of force that happens to kill the arrestee as the application of deadly force. The police might, for example, attempt to stop a fleeing felon’s car by felling a large tree across the road; if they drop the tree too late, so that it crushes the car and its occupant, I would not call that the application of deadly force. Though it was force sufficient to kill, it was not applied with the object of harming the body of the felon."

Justice Sotomayor sees things differently, but no one else on the Court signs onto her dissent. She writes:

Balancing a particular governmental interest in the use of deadly force against the intrusion occasioned by the use of that force is inherently a fact-specific inquiry, not susceptible to bright lines. But it is clearly established that the government must have some interest in using deadly force over other kinds of force.

Here, then, the clearly established legal question—the question a reasonable officer would have asked—is whether,under all the circumstances as known to Mullenix, there was a governmental interest in shooting at the car rather than waiting for it to run over spike strips.

The majority does not point to any such interest here. It claims that Mullenix’s goal was not merely to stop the car,but to stop the car “in a manner that avoided the risks” of relying on spike strips.

Circuit reverses summary judgment in racial discrimination case

The Court of Appeals reverses summary judgment in this racial discrimination case, holding that the jury may find the employer's reasons for denying the plaintiff tenure a pretext, even though the district court did not find  independent evidence of discrimination.

The case is Sands v. Rice, a summary order decided on October 16. This case has particular interest for me, for several reasons. First, the case arose at the high school not far from where I am writing this. Also, the Court provides some guidance on when pretext alone is enough to survive summary judgment in Title VII cases.

Plaintiff was the guidance counselor at the high school. In dismissing her racial discrimination claim, the district court assumed she made out a prima facie case. But the district court granted the school's motion for summary judgment, reasoning that "although plaintiff had 'attempt[ed] to manufacture a question of fact with respect to some of the deficiencies noted in her ‘unsatisfactory’ performance evaluations, many of the deficiencies [were] unrefuted by plaintiff,' and regardless, 'any such question of fact [was] immaterial,' as plaintiff 'ha[d] critically failed to come forth with any evidence that the decision to deny her tenure was based on her race or a discriminatory animus on the part of defendants.'”

In Reeves v. Sanderson Plumbing (2000), the Supreme Court told us when summary judgment is appropriate in discrimination cases, stating:

“[A] plaintiff’s prima facie case,” ... when “combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Of course, “[t]his is not to say that such a showing by the plaintiff will always be adequate to sustain a jury’s finding of liability.” Indeed, “there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant’s explanation, no rational factfinder could conclude that the action was discriminatory.” But it is “err[or] [to] proceed[ ] from the premise that a plaintiff must always introduce additional, independent evidence of discrimination.”

In other words, prima facie case plus pretext may -- but does not always -- support a finding of discrimination. The problem is the Supreme Court has provided no guidance on how much pretext is enough to win the case in the absence of independent evidence of discrimination, such as a racist comment from a decisionmaker. The Second Circuit is a pretext-plus court, in my view, often requiring that the plaintiff offer more than just pretext to support a discrimination claim. As the Court tells us in this case, "Reeves prevents courts from imposing a per se rule requiring in all instances that a claimant offer more than a prima facie case and evidence of pretext" (citing Cross v. NYC Transit Auth., 417 F.3d 241 (2d Cir. 2005)). But the last time this Court in a published opinion denied summary judgment solely on the basis of pretext was in D'Cunha v. Genevese, 479 F.3d 193 (2d Cir. 2007).

In this case, the Second Circuit (Cabranes, Raggi and Pooler) reverses summary judgment, stating, "the District Court erred in holding that plaintiff’s proof that defendants’ explanation was false was 'immaterial' because she had not introduced additional, independent evidence of discrimination. The District Court also erred in failing to consider 'the probative value of [that] proof,' as well as 'the strength of ... plaintiff’s prima facie case.'” The Court of Appeals also says plaintiff has proffered enough evidence to support a finding that defendants discriminated against her because of race. But the Court does not discuss the evidence. So we don't learn much from this reasoning unless we read the district court ruling. That ruling gives us some insight, but the district court rejected plaintiff's factual arguments, and if there is additional evidence of racial animus it is not in any court ruling. This is what the district court wrote:

Sands refers to several incidents which she appears to argue would demonstrate animus towards her race on the part of defendants. By way of example, Sands claims that she "began a Step [Dance] Team," and that "[a]fter one year of providing [Sands] with a stipend for advising this club, . . . Clinton and Rice ended this stipend and proposed that [she] advise the club without charge," but she does not directly posit a reason why this occurred. Although Sands appears to imply that this was done because of her race, or because the "majority [of students] participating on [the team] were African-American," what the record indicates, however, is that Sands was not paid because she failed to submit the required claim form in order to receive payment as an advisor; Sands cites to no record evidence that would indicate that this decision was racially motivated. In fact, the year prior, when Sands did submit the claim form, she was paid a stipend for her services as advisor to the club.

Similarly, Sands argues that Clinton "initially strongly opposed [her] hiring but was convinced to hire her," and that from this, "[a] reasonable jury could easily conclude that Clinton harbored a bias against [Sands] and that this tainted the entire tenure review process." However, what Sands neglects to mention in her argument is that the only evidence of record on this issue indicates that Clinton's initial hesitancy in hiring Sands stemmed from a reference she had received from a former employer of Sands regarding a "communication issue" that Sands had with that employer, and there is nothing to indicate that this hesitancy was due to Sands' race. The only allusion to potential race discrimination in Sands' own affidavit, points to the statement of Edgar Rodriguez, a member of the board of education who, at the time of Sands' tenure decision, "strongly favored grant[ing] tenure and believed that nefarious motivations alone could explain a contrary decision." However, Rodriguez himself stated that he could "only speculate nefarious reasons, including racism, for denying . . . Sands tenure." It is well settled that "'conclusory allegations or unsubstantiated speculation' [are in]sufficient to raise a triable issue of fact as to whether . . . discriminatory animus" played a role in an adverse employment action.

Further damaging to Sands' argument is her admission that during her years of employment at New Paltz High School, she was never called any racial names or racial epithets by Rice or Clinton. 

Inmate wins religious freedom appeal

This prisoners' rights case alleges that the jail denied plaintiff kosher food and the religious head covering of his choice. Much to the dismay of the tough-on-crime crowd, I'm sure, he wins the appeal. And he does it pro se, without a lawyer.

The case is Barnes v. Furman, a summary order decided on October 22. Plaintiff says in 2004 he was denied kosher meals for a three to four month period because he identified as a Hebrew Israelite and not Jewish. He also says that in 2007, he was denied religious head covering because he then identified as Jewish and not Rastafarian.

Once again, an appeal turns on the issue of qualified immunity, which is legal-speak for the noption that public officials cannot be sued over constitutional violations that were not clearly-established at the time of the violation. If the case law was fuzzy at the time, the plaintiff loses, even if 20-20 hindsight says his rights were actually violated.

Plaintiff loses the kosher meals claim. Prisoners do have a right to a diet consistent with their religious beliefs. But in this case, it was objectively reasonable for defendants to think that their denial of kosher meals to an inmate who identified as a Hebrew Israelite did not violate his rights. Not only did prison officials rely on prison policy in this regard, but they relied on plaintiff's registered religious designation in making its kosher meal determination.

But plaintiff wins the religious head covering part of the appeal. The jail officials do not deny that plaintiff's rights were violated in the abstract. But they argue, under qualified immunity principles, that there was no clearly-established law allowing inmates to wear "head coverings of their choice." While the Court of Appeals has never held that prison officials must provide inmates with head coverings of their choice, it is clear that the jails cannot violate inmate rights without asserting a legitimate reason for doing so. The jail provides no good reason why they followed a policy that limited Jewish inmates' head coverings to yarmulkes only. Nor do they explain why they relied solely on the opinion of the New York State Board of Rabbis where the sincerity of plaintiff's religious belief is not in question.

Blind man may have standing to sue NYC over Central Park's ADA violation

I wonder why this case did not get more attention. A blind man sues the City of New York alleging that it violates the Americans with Disabilities Act because it does not allow equal or reasonable access to Central Park, i.e., the City does not provide proper signage at all inaccessible entrances to its facilities. The Court of Appeals says he may have a case.

The case is Bernstein v. City of New York, a summary order decided on October 26. The question is whether plaintiff has standing to sue. This issue arises more often than you think. Many ADA violations are attacked by plaintiffs challenging structural and other deficiencies. But they cannot sue establishments and public areas for the hell of it. They have to show they have a stake in the lawsuit. We call it standing.

To have standing in an ADA claim, a plaintiff must show he (1) alleged past injury under the ADA; (2) it was reasonable to infer the discriminatory treatment would continue; (3) it was reasonable to infer, based on the frequency of prior visits and proximity of defendant's services to the plaintiff's home; and (4) plaintiff intended to return to the location.

For the most part, plaintiff satisfies these standards. He has visited the Park in the past, and points out that the missing detectable warnings at crosswalks make it impossible for him to know that he is nearing a roadway with moving traffic. He cannot cross streets in the Park without the assistance from strangers. But the Complaint has a deficiency in regard to plaintiff's intent to return to the Park. He says he has visited the park hundreds of times and has been to New York 30 times per year for ten years. But the Complaint says nothing about his intent to return to the Park in the future. On remand, the district court must undertake further factfinding on this issue. 

Inmate wins civil rights appeal

The jailhouse is no picnic, which is why it's the house of punishment. But too much punishment violates the Constitution. The inmate wins his appeal.

I am always amazed when an inmate wins an appeal. Many people hate inmates and do not think they should have any rights. But if you think about it, many of the first ten Amendments to the Constitution (the Bill of Rights) have to do with criminal procedure and the rights of convicted persons, including the Eighth Amendment. It is true that some inmates are litigation machines who file lawsuit after lawsuit,with nothing to lose. But some of them do have a case, at least on paper. This is one of them.

The case is Lewis v. Swicki, a aummary order decided on October 27. The case was dismissed for failure to state a claim, which means the judge threw it out before the parties could take depositions and other discovery. But the complaint actually alleges a civil rights violation. Plaintiff says the correction officers did not prevent another inmate from assaulting him. Plaintiff was stabbed by an inmate who had slipped out of his handcuffs. According to Lewis, defendants knew the stabber had threatened to harm plaintiff "in the near future."

The Court of Appeals (Sack, Droney and Stanceu [D.J.]) says it does not matter that plaintiff was stabbed a few months after the attacker had threatened him. The Supreme Court said in Farmer v. Brennan (1994) that the plaintiff only needs to show that the jailers failed to act despite a substantial risk of serious harm to the inmate.The case returns to the district court to give plaintiff a chance to re-plead his Complaint to further develop his claim.

Court security officer cannot bring a Bivens claim

Civil rights cases against the federal government are harder to win than cases against state and local governments. The reason for this is while the Supreme Court said in the Bivins case in 1971 that you can sue the federal government for certain constitutional claims, the Court has actually recognized only a handful of ways you can bring these cases.

The case is Atterbury v. United States Marshalls Service, decided on November 3. Plaintiff was a court security officer in Rochester who went home sick one day after telling a senior employee that he wasn't feeling well. Under the rules, you have to get clearance from a supervisor to go home early. Plaintiff was ultimately fired over this, and she sues the government under the Due Process Clause.

When we think about constitutional lawsuits, Section 1983 comes to mind, shorthand for 42 U.S.C. §  1983. But Section 1983 only applies to the states. The Supreme Court said in Bivens that you can bring some constitutional claims against the federal government. But here is the legal test governing the courts will identify a new right under Bivens.

The analysis of whether to extend Bivens to a new context proceeds in two steps. First, a court must determine “whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Second, even in the absence of such an alternative process, a court “must make the kind of remedial determination that is appropriate for a common‐law tribunal, paying particular heed, however, to any special factors counseling hesitation before authorizing a new kind of federal litigation.”

In other words, don't count on it, especially if there is another way the plaintiff can recover some relief, even if it is not all the relief he might otherwise recover. There is no Bivens claim here. Factors counseling hesitation against identifying a new right include the fact that Congress enacted the Contract Disputes Act of 1978, which provides final resolution of all disputes arising from government contracts. While plaintiff would not be able to sue under this Act, that does not mean he can sue the government under Bivens. In passing the Act, Congress declined to provide a remedy for subcontractors or employees of subcontractors. This makes the court gun-shy about giving plaintiff a remedy in this case; to do otherwise would step on the shoes of Congress.

Plaintiff also cannot sue the government for constitutional violations under Bivens because he has a potential claim under the Administrative Procedure Act, which “permits a party to bring an equitable claim challenging arbitrary and capricious action of an administrative agency in federal district court and waives the government’s sovereign immunity with respect to such claims in that forum.” The Second Circuit "leave[s] it to the district court to determine, in the first instance, whether Atterbury has properly alleged that USMS acted arbitrarily and capriciously, or in a manner 'contrary to constitutional right, power, privilege, or immunity,' 5 U.S.C. § 706(2)(A), (B), in removing him from the Court Security Program."

Notice of Appeal is dollar short and one day late

If you are doing a Google search on notices of appeal and come upon this blog post, and if you ignore everything else that I say, please know this: the deadlines for filing a notice of appeal are jurisdictional and for the most part will not be extended and if you blow the deadline your case is over and that is that. This case drives that point home.

The case is Franklin v. McHugh, decided on October 30. This appears to be an employment case. But the Court of Appeals does not reach the merits; it focuses on the notice of appeal deadline. Plaintiff had until October 27, 2014 to file that notice. He tried to do so on October 23, using the ECF electronic filing system used by the federal courts. So far, so good. Plaintiff does this a week before the deadline runs out. But something went wrong with the ECF system. Although he got a receipt for timely paying the filing fee, the notice of appeal was not docketed. On October 28, the EDNY clerk's office told plaintiff's lawyer to refile the documents and pay the fee again. He did so on October 28, one day after the deadline.

It may seem unfair for plaintiff to lose this appeal on a technical defect stemming from the non-filing of his notice of appeal that was not his fault but the ECF system's fault. But the Court of Appeals (Kearse, Livingston and Carney) notes the EDNY electronic filing User's Guide "plainly implies" that an electronic filing is not complete until the last screen, called "Notice of Electronic Filing" appears on the user's computer.  Yet, while counsel intended to timely file a notice of appeal, he did not actually do so because he did not follow through on the electronic filing process. Here is how the Second Circuit sees it:

 Here, although Franklin’s counsel undoubtedly intended to file a notice of appeal electronically on October 23, 2014, his efforts fell short of the mark. His account of his attempt to file electronically a notice of appeal on October 23 suggests strongly that counsel simply overlooked the last step of the process: he appears to have followed the electronic filing process through the fee‐paying stage only, stopping upon receiving the receipt for payment. He does not represent that he proceeded past that point or that he received the critical Notice of Electronic Filing screen; and he appears to have failed at the time to notice the shortcoming.

As described in the User’s Guide, only the appearance of the Notice of Electronic Filing screen would have confirmed that the notice of appeal was actually filed and docketed. The notice of appeal therefore was not “filed” with the Eastern District’s Clerk’s Office on October 23, and our Court is not at liberty to treat it as having been filed then. Rather, the record is plain that the notice was filed—untimely—on October 28, 2014.

 The Court of Appeals recognizes that the ECF system may present challenges for counsel, "but counsel have long been charged with becoming familiar and complying with the various local rules of our courts. The clerk's offices willingly make themselves available to answer questions and to assist counsel in meeting deadlines and filing documents that comport with applicable rules, and the courts offer training" on ECF procedures. While a true ECF malfunction may be overlooked in excusing a late filing if the party files a motion for a late filing under Federal Appellate Rule 4(a)(5)(A) under the "excusable neglect or good cause" rule, plaintiff's counsel did not seek that relief in this case.

So what have we learned in this case? That 30-day filing rule for notices of appeal will normally not be extended. Don't wait until the last minute to file it, and don't wait too long to ensure the filing was registered in the system. And if something goes afoul, file a motion under Fed. R. App. Proc. 4(a)(5)(A). If the plaintiff cannot get a break under these circumstances, then no one can.

Chen v. City College, Part II (the dissent)

In this Title VII retaliation case, the Court of Appeals ruled 2-1 that an Asian Studies professor at City College did not have a retaliation case stemming from her termination that closely followed her internal discrimination charge. I wrote about the majority decision here. Now it's time for the dissent, which sees the case very differently.

The case is Chen v. City University of New York, decided on October 28. Plaintiff filed an internal discrimination complaint in connection with a strange student who took up her time and became a pest. Plaintiff consulted with a College administrator, Lesen, who advised plaintiff on how to deal with the student. At the time of the meeting, the student was no longer in plaintiff's class, but he intended to enroll in one of her courses the following semester. Lesen and another College actor, Calichman, did not like how plaintiff handled her meeting with the student (they were surprised that she met with the student right away and she wanted him to agree to certain behaviors). After Lesen and Calichman placed those concerns in writing, plaintiff accused them of discrimination, alleging in part that Lesen had engaged in ethnically degrading behavior during the counseling meeting with plaintiff. Shortly thereafter, plaintiff was terminated. The College defended this decision based on her inability to get along with others. As fully discussed here, the majority says plaintiff has no case because the College was concerned about plaintiff's collegiality even prior to her discrimination complaint.

Judge Chin dissents, and it's quite lengthy. Bear in mind that, in private practice, Judge Chin represented plaintiffs in Title VII cases. So he has seen these cases from the plaintiff's side. He was also a trial judge before rising to the Court of Appeals, so he knows what inferences juries may draw in cases like this. Here are his main points:

1. The district court and appellate majority resolved disputed fact issues in finding that plaintiff failed to handle the student according to Lesen's instructions. "Chen contends that Lesen instructed her to
confront the Student and set up boundaries even though he was not then enrolled in her class, and that Lesen suggested that Chen do so immediately, that is, before the end of the semester. In contrast, Lesen denies that she suggested that Chen should interact with the Student before the end of the semester and contends specifically that she told Chen 'not to deal with these behaviors before they actually occurred.'"

2. Judge Chin also noted that the district court said ʺ[d]efendantsʹ actions, contrary to constituting evidence of retaliation for Chenʹs complaints, are entirely consistent as a progressive response to Chenʹs ʹdisturbing incidentʹ with the Student.ʺ That finding in favor of the College may be true, Judge Chin says, but "while the actions might have been 'entirely consistent' with the concept of progressive discipline, they also could have been found by a reasonable jury to be retaliatory."

3. The timeline suggests defendants retaliated against plaintiff. The meeting with the student happened on May 13, 2009. Chen met with College officials a week later to discuss that incident. Only 18 days later, Calichman recommends that Chen be removed as Director of the Asian Studies Program. On August 25, 2009, plaintiff files an internal discrimination complaint. Two months later, Chen is denied reappointment. A few weeks after filing a complaint with the State Division of Human Rights, she learns she is permanently terminated. "While defendants removed Chen as Director of the Asian Studies Program before she filed with the Affirmative Action Office, this occurred after she had already complained to Calichman and Murphy about the incident. Further, the decision to not reappoint her came after the Affirmative Action Office filing. Accordingly, the timeline of events supports an inference that Chen was dismissed for complaining about the incident and then complaining of discrimination against her."

4. Her positive performance reviews permits the inference of retaliation, as they praised her scholarship and other achievements. She was also promoted as Interim Director of the Asian Studies program in her three years at City College. Second Circuit law -- Stratton v. Department of the Aging, 132 F.3d 869 (2d Cir. 1997), a decision written by Judge Chin -- holds that a history of positive evaluations can support the plaintiff's discrimination claims, as they rebut management's claim that plaintiff does not deserve to work there.

5. The jury could find Calichman tainted the reappointment process because he knew about her internal discrimination complaint and actively advocated against her reappointment. The other seven professors who were up for reappointment that year all received it unanimously, but plaintiff did not any receive any favorable votes.

6. Plaintiff's punishment was disproportionate to her alleged misconduct. A SDNY case -- Nembhard v. Memorial Sloan-Kettering, 918 F. Supp. 784 (SDNY 1996), another decision written by Judge Chin -- supports this reasoning. As plaintiff was well-regarded for three years and reappointed twice, the jury could find she deserved a less severe punishment than termination.

7. Moving right along, Judge Chin further funds that the College offered shifting explanations to explain plaintiff's termination. Shifting explanations often point to pretext, because it suggests the employer is dissembling, coming up with new justifications to either bolster its case or to abandon weaker defenses that did not quite work. At first, in letting plaintiff go, the College said nothing about collegiality problems. It only referenced plaintiff's handling of the incident with the student. But in litigation, the College argued that it got rid of her because of "her longstanding inability to work in a colliegial manner with other faculty members, and her inappropriate conduct with respect to the student."

To Judge Chin, this is a lot of pretext, creating a "mosaic of facts" supporting her retaliation claim. The majority (Winter and Livingston) is not buying it. This is a close case, for sure, highlighting the fault line in retaliation cases. When does the plaintiff's prior performance problems knock out her retaliation claims attacking a later adverse action? When do shifting explanations establish pretext, and what exactly is a shifting explanation? Must the explanations be radically different from each other, or is it enough that the explanations have slight variations? And can you show pretext when the employer arguably goes too far in terminating the plaintiff's employment? There may never be a case that conclusively answers these questions.     

How to find pretext in retaliation cases: Chen v. City College Part I

Question: if judges on the Court of Appeals disagree on whether the jury can interpret the evidence to support a retaliation claim under Title VII, does it mean that the case is necessarily for the jury? That's a good question for a law review article. But in the real world, the jury does not hear the case if the plaintiff loses the appeal by a 2-1 vote. Which is what happened in this case.

The case is Chen v. City University of New York, decided on October 28. Plaintiff taught at City College in the Asian Studies Program. She had good reviews and scholarly credentials, but did not yet have tenure. Things went sour when a strange middle-aged male student took one of her classes and made persistent demands on her time and attention. Later on, the student planned to register for another of plaintiff's classes. This led plaintiff to meet with a CCNY administrator, Lesen, who advised plaintiff on how to deal with the student (who is nameless in the opinion and is referred to as "the Student"). Following this meeting, Lesen emailed plaintiff asking her to "let me know how things go with that student" and assuring her that "if the situation does not improve after you have created some boundaries" she will be able to help. Plaintiff met with the student right away (before he actually enrolled in the class) and asked him to sign off on a list of appropriate student behaviors, i.e., respecting plaintiff's office hours and maintaining "harmony with classmates and respect for the instructor." The student objected and complained to Lesen about this. Lesen then met with plaintiff about the student meeting. Plaintiff testified that Lesen treated her like a child and engaged in ethnically insulting behavior during the meeting. In contrast, Lesen testified that plaintiff would not listen to her and that the meeting was "one of the most frustrating meetings I have ever had with a professor." Plaintiff then met with Lesen and the department chair, Calichman, who wrote plaintiff a memo that criticized how she dealt with the student.

Next thing plaintiff knows, Calichman recommends that CCNY deny her reappointment to another term as Interim Director of the Asian Studies Program. Plaintiff then filed an internal discrimination complaint against Lesen and Calichman, claiming they denied her equal treatment in employment arising from the student incident. Afterwards, Calichman, who sat on an executive committee that determined which professors to reappoint, voted with the rest of the committee to deny plaintiff reappointment. This ended plaintiff's career with City College.

The Court of Appeals (Livingston and Winter) agrees with the district court that no jury can find that defendants retaliated against plaintiff. While she engaged in protected activity in filing her internal discrimination complaint and she was denied these positions shortly thereafter, she cannot show the College's articulated reason for not reappointing her as Interim Director or as a professor -- "overaggressiveness and a lack of tact" with colleagues and with the student -- was pretext for retaliation. "Significantly, it is undisputed that members of the Department of Foreign Languages and Literatures took issue with Chen's collegiality long before she filed her Affirmative Action complaint." Not only did decisionmakers "develop these opinions about Chen's conduct before she filed her Affirmative Action Complaint, they also maintained a consistent perspective afterwards," as evidenced by their continued belief that she had acted inappropriately with the student. While plaintiff had positive evaluations, that does not show pretext. The College's bylaws require that reappointment decisions consider whether the candidate has "satisfactory qualities of personalities and character and a willingness to cooperate with others for the good of the institution."

Interesting holding in that management was able to exploit prior concerns about plaintiff's performance to show that its reason for ending her employment was legitimate and not retaliatory. Employers often seek out this tactic in defending against discrimination claims. "If we had problems with plaintiff before she engaged in protected activity, then that activity could not been the reason she fired the plaintiff." The law is a little more nuanced than that, but the College succeeds in that argument here.

The majority also finds that plaintiff does not have a discrimination case. Her claims "revolve around the argument that she followed Lesen's instructions about setting boundaries with the Student," so defendants "must have had discriminatory motives for reacting as they did." But the Court finds this is "nothing more than a difference of opinion about [plaintiff's] actions." The Court says the jury cannot find defendants were insincere in their beliefs that plaintiff had engaged in poor judgment.

The Court split 2-1 on the retaliation claim. All three judges (including Judge Chin) agree plaintiff has no discrimination claim. I will address Judge Chin's lengthy and interesting dissent in a follow-up post. This dissent, written by one of the few federal judges in New York who represented plaintiffs in Title VII cases, runs through the many ways a plaintiff can show pretext in a discrimination case, suggesting that the College offered shifting explanations for plaintiff's termination and that it overreacted to the episode with the student.  

Discretionary bonus denial can equal adverse action

If employers in New York and most other states are able to treat people badly for any reason or no reason at all, does that mean an employer's discretionary judgment about employee bonuses cannot be challenged under the employment discrimination laws?

The case is Davis v. New York City Department of Education, decided on October 19. Plaintiff was a teacher in New York City. The City gave her school money to distribute to its teachers as part of a discretionary bonus program, rewarding the school for its academic achievements. Plaintiff sued for discrimination after she claimed she did not receive the same bonus as everyone else. The district court dismissed her case, reasoning that the bonus reduction was not an adverse employment action under the Americans with Disabilities Act because the school had discretion to decide on bonus amounts. The Court of Appeals (Leval, Straub and Droney) says this reasoning is incorrect.

"Adverse employment action" is a clunky phrase. I wish the courts had a better way of describing when an employer's ill-treatment of the plaintiff is worth suing over. But here we are. The Second Circuit says that it does not matter that the school had discretionary authority to decide on bonuses. The fact that this decisionmaking is otherwise nonreviewable under the "at-will" employment rule (another clunky legal phrase that really means management can do what it wants without fear of any lawsuit unless it violates a specific statute) does not mean that plaintiffs cannot sue under the employment discrimination laws if the employer exercises its discretion in a discriminatory manner. Otherwise, half or even most of the decisions that employers make on an everyday basis would not qualify as an adverse employment action. As the Court of Appeals puts it:

We do not agree that an employer’s discretion to withhold or reduce a bonus entitles the employer to allocate the bonus on the basis of prohibited discrimination. It seems unlikely, to say the least, that employers covered by the discrimination statutes could freely decide to award substantial discretionary bonuses to all employees except those of a disfavored race, religion, national origin or disability. As most employees work “at will,” most aspects of their conditions of employment are within the employer’s discretion. Deciding which applicant to hire, which employee-at-will to promote, which one should receive additional responsibilities or which one should be fired—all these, being the traditional fare of discrimination suits—are within the employer’s discretion. Rarely does the employee who sues for illegal employment discrimination have a legal right to the benefit she claims (apart from the law of unlawful discrimination). (Indeed, if such an entitlement were required, the discrimination statutes would be unneeded and superfluous, as the plaintiff would have a valid claim based on  contract or some other statute.)

This rule may make sense, but the Second Circuit notes that the Seventh Circuit has gone the other way on this issue, in Hunt v. City of Markham, 219 F.3d 649 (2d Cir. 2000). So it looks like we have a Circuit split that may one day be decided by the Supreme Court.

Davis wins on the issue of adverse employment actions, which helps all plaintiffs, but she loses the war. The Court of Appeals sustains the grant of summary judgment because she cannot show she was denied the full bonus on account of her disability. The Second Circuit notes that she is not able to second-guess the employer's justification for the reduced bonus, i.e., she missed a lot of work and the school decided to share her bonus with the substitute teacher who filled in for her and contributed to the academic achievements that merited the bonuses from the City in the first instance. 

If you've got it plead it

A badly written complaint can come back and bite you in the tuchus. This police misconduct case did not plead an excessive force claim, only a false arrest claim. The Court of Appeals says the plaintiff has no claim for false arrest, but he does have a claim for excessive force. Huh?

The case is Shamir v. City of New York, decided on October 22. Plaintiff went to an Occupy Wall Street demonstration in 2012 when he partook in civil disobedience by sleeping on the sidewalk in a sleeping bag. The police told him to disperse, and he did so. Shortly afterwards, having put his sleeping bag on a bench a few feet away, the police began to crowd around the people who stayed on the ground. Plaintiff called one of the police officers a "thug." An officer then placed plaintiff in too-tight handcuffs, which hurt like the devil and resulted in a hospital visit that left him with a splint on his hand. The lawsuit plead claims for false arrest and "freedom from unreasonable searches and seizures of his person, under the Fourth and Fourteenth Amendments."

Plaintiff did not explicitly set forth a claim for excessive force, and the Court of Appeals (Newman, Walker and Jacobs) is not happy about, repeatedly chastising plaintiff's lawyer over this omission. But it says the complaint could be read to assert an excessive force claim, as the "search and seizure" language suggests that is what the lawyer intended, and that language has some connection to Supreme Court language on excessive force claims. Or course, things could have been much clearer. The Court "reluctantly infer[s]" such a claim.

And such a claim for too-tight handcuffs does exist under the Fourth Amendment. The Second Circuit cites rulings from other circuits in stating that "several decisions have recognized that excessively tight handcuffing that causes injury can constitute excessive force in violation of the Fourth Amendment." The excessive force claims survives.

But there is no false arrest claim. Plaintiff was arrested for ignoring an order to disperse. As plaintiff "'went up to one of the police officers' and called him a thug," that is "the antithesis of complying with an order to disperse. Even if, as Shamir suspects, the motivation for the arrest was his remark to the officer, the violation of the order to disperse provided probable cause to arrest."

Here is how arguable probable cause works

You can say this without actually harboring a bias against police officers: the courts do give the police the benefit of the doubt in civil rights cases. We call it qualified immunity and arguable probable case.

The case is Arrington v. City of New York, a summary order decided on October 15. Qualified immunity means the police cannot be sued for damages if the case law was not clearly established at the time of the incident, or if the police actions were objectively reasonable under the circumstances. Bearing in mind that probable cause is a defense to any false arrest case, this means the police can avoid the lawsuit if they had arguable probable cause, which exists when "either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met."

Plaintiff sues for false arrest after he was arrested for shooting someone. He says it was in self-defense, just like the Bob Marley song. Since he admitted to the shooting, that admission would normally constitute probable cause in the absence of his self-defense claim. But "the extent to which a police officer must credit a self-defense claim is not clearly established, and depends on the facts and circumstances of each arrest. While the police cannot disregard plainly exculpatory evidence when establishing probable cause, if he as a reasonable basis for believing there is probable cause, he is not required to consider plausible defenses offered by a suspect prior to making an arrest."

So, while plaintiff's self-defense claim was plausible, "on the facts alleged in the complaint, including the absence of witnesses to corroborate the self-defense claim," the Court of Appeals (Sack, Chin and Droney) says "officers of reasonable competence could disagree on whether the probable cause test was met." In other words, plaintiff may be right that he had a self-defense claim to the shooting. But since a reasonable officer could disagree on this, plaintiff has no case.

SAFE Act does not violate the Second Amendment

After the gun slaughter in Newtown, the State of New York and the Commonwealth of Connecticut enacted gun-control legislation, including the SAFE Act, which among other things prohibits possession of semi-automatic assault weapons and large-capacity magazines. The Court of Appeals holds that these restrictions do not violate the Second Amendment.

The case is New York State Rifle & Pistol Association v. Cuomo, decided on October 19. The Second Amendment was a dormant constitutional provision until the Supreme Court in 2008 decided the Heller case, which said the Second Amendment confers an individual right to own guns. But the Court in Heller did not say you have an unrestricted right. The Second Circuit now applies Heller and fleshes out what the Second Amendment really means.

The two-part test governing Second Amendment claims is as follows. The Amendment only protects weapons that are in common use and are typically possessed by law-abiding citizens for lawful purposes. The Court of Appeals says large-capacity magazines are in common use, as 25 million of them were available in 1995 (when Congress outlawed them) and nearly 50 million of them were approved for import by 2000. In addition, there are millions of assault weapons in circulation in the United States, including many that are just lying around the house. As for whether these weapons are typically possessed by law-abiding citizens for lawful reasons, the Court cannot decide that difficult issue. But it does not have to, because even if they are, the Court finds, New York and Connecticut are still able to prohibit them.

The next analytical test the Court must work through is what is the appropriate level of constitutional scrutiny in reviewing the legality of these laws. The Second Circuit (Cabranes, Lohier and Droney) goes with heightened scrutiny, which means the laws will satisfy constitutional requirements if they do not substantially burden the ability of law-abiding citizens to use guns for legal purposes. For you non-lawyers out there, the Constitution of course does not have language like this, but courts create these tests and legal standards to help apply otherwise vague constitutional provisions. Under this test, these gun restrictions are legal.

First, deferring to the states' legislative policy judgements about public safety, the Court says semiautomatic assault weapons are designed to kill many people at once, and are mostly used in committing crimes and often kill police officers.The prohibition is also intended to prevent mass-shootings like the one that took place in Newtown and happen regularly in the U.S. So this prohibition is legal. And for these reason, the ban on large-capacity magazines is also legal. The states are able to find as a matter of public policy that these restrictions are necessary to prevent mass shootings.

The Court does, however, rule that the prohibition against  seven-round load limits violates the Second Amendment. New York has nor produced enough evidence that the seven-round load limit is necessary to protect public safety.