En banc court takes up Title VII and sexual orientation

The Second Circuit this week heard argument in a rare en banc proceeding, asking whether sexual orientation discrimination is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. Along with Gregory Antollino, I represent the plaintiff.

The case is Zarda v. Altitude Express. The oral argument link is here. The panel decision from April 2017 is at this link. Zarda was a skydiver who was fired after he told a customer that he was gay. The lawsuit asserted claims under Title VII and the state human rights law, which explicitly prohibits discrimination on the basis of sexual orientation. The trial court dismissed the Title VII claim on the basis that the Second Circuit in 2000 held that this form of discrimination is not prohibited under Title VII. That case is Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000). The state law claim went to a jury, which rejected the claim and entered a defense verdict. The reason the Title VII issue survives is the trial court on the state law claim charged the jury under "determining factor" standard, which is more favorable to the defendant than the "motivating factor" test under Title VII.

A 13-judge panel of the Second Circuit -- all active judges plus two senior judges who sat on the panel decision -- heard argument on Sept. 26. Argument lasted two hours, with three lawyers arguing for plaintiff (including to amicus parties) and three lawyers arguing for defendant (including two amicus parties). The federal government argued both sides of the issue, with EEOC arguing for plaintiff and the Department of Justice arguing for defendant. Nearly every judge on the en banc court asked questions, and things got lively when the judges asked the Department of Justice lawyer how exactly it was determined that the federal government would oppose the plaintiff after the EEOC had already filed a brief in favor of the plaintiff.

What are the bases for claiming sexual orientation discrimination is a form of gender discrimination? As the EEOC said in an administrative ruling a few years ago, when a gay male is fired because of his sexual orientation, that's "but-for" discrimination because if the plaintiff were a female, she would not have been fired. In addition, plaintiffs have argued, sexual orientation discrimination derives from the ultimate sex stereotype: men are attracted to women and vice versa. Title VII already rejects gender stereotypes under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In addition, when a gay man is fired, he is being punished over his protected gender association. Other cases hold that Title VII prohibits the termination of a white man over his association with a female fiance. Defendants respond to these arguments by claiming, in part, that Congress did not have sexual orientation in mind when it enacted the Civil Rights Act of 1964 and that Congress had declined to extend protections under Title VII to gays and lesbians. We call this the "legislative inaction" argument.

The Seventh Circuit in 2017 reversed one of its prior cases in holding that Title VII prohibits sexual orientation discrimination. That case is Hively v. Ivy Tech., 853 F.3d 339 (7th Cir. 2017). The Eleventh Circuit this year stood by its older precedents that reject the new thinking. Evans v. Georga Regional Hospital, 850 F.3d 1248 (11th Cir. 2017). The Zarda Court will be the third appellate court to take up this issue since the EEOC decided in 2015 to expand Title VII protections. Someday,  this issue will reach the Supreme Court.

The New York Times covered this argument, reprinted below.

Discrimination Based on Sex Is Debated in Case of Gay Sky Diver

By JOSEPH GOLDSTEIN 

SEPT. 26, 2017

About seven years ago, Donald Zarda, a Long Island sky-diving instructor, shared a bit of personal information with a female student as they prepared for a jump. He was, he told the woman, “100 percent gay.”

He made the disclosure, he later explained, because the woman had seemed uncomfortable with the close physical contact. Her boyfriend was watching and a friend had been teasing her about being strapped in so tightly to another man.

After the woman’s boyfriend called the sky-diving school to complain about the encounter, Mr. Zarda was fired. He sued, setting in motion a legal case that has grown more consequential as it has worked its way through the courts over the past several years.

On Tuesday, Mr. Zarda’s firing was dissected before a panel of 13 federal appellate judges in Manhattan, who were wrestling with whether federal discrimination law provided protection for employees facing discrimination on the basis of their sexual orientation.

But the most curious division was not among the judges, but between lawyers for the federal government who, over two hours of arguments, staked out opposing positions on the reach of federal discrimination law.

A lawyer for the federal Equal Employment Opportunity Commission, Jeremy Horowitz, sided with the sky diver, arguing that federal law did prohibit employers from discriminating against employees because they are gay.

But a deputy assistant attorney general with the Justice Department, Hashim M. Mooppan, explained that, under federal law, employers were absolutely free “to regulate employees’ off-the-job sexual behavior,” meaning they could discriminate against employees for adultery, promiscuity or sexual orientation.

Even as the judges were struggling with the underlying legal question, they seemed unsure of what to make of the two government lawyers, each vigorously arguing opposite points.

The divide within the government emerged in July, when the Justice Department filed a brief in the case, breaking with the E.E.O.C. and telling the court that the commission was “not speaking for the United States.” Filed on the same day President Trump announced on Twitter that transgender people would be banned from serving in the military, the brief fueled concerns among civil rights activists that the Trump administration was trying to roll back lesbian, gay, bisexual and transgender rights secured under previous administrations.

“It’s a little awkward for us to have the federal government on both sides of a case,” one judge, Rosemary S. Pooler, noted, while other judges asked questions about how the rift had developed and whether the Justice Department had originally approved the E.E.O.C. brief. Mr. Mooppan refused to answer, saying, “I don’t believe it’s appropriate” to disclose.

Much of the debate on Tuesday afternoon, before the full United States Court of Appeals for the Second Circuit, revolved around a single word in Title VII of the 1964 Civil Rights Act, which generally prohibits employers from discriminating against employees on the basis of “race, color, religion, sex or national origin.” At issue was the word “sex,” which courts had long understood to mean it was illegal to discriminate against employees because they were male or female, or failed to conform to male or female stereotypes.

Most federal appeals courts in the country have long held that sex discrimination did not encompass discrimination based on sexual orientation. However, a single federal appeals court in Chicago ruled earlier this year that it did.

During the oral arguments on Tuesday, one judge, Reena Raggi, sounded skeptical of the more expansive reading of the law, wondering at one point what would have happened had Mr. Zarda been a lesbian rather than a gay man? If both scenarios would have resulted in a firing, “I’m having trouble understanding how that’s discrimination between men and women,” she said, as opposed to another type of discrimination that was not barred by Title VII protections.

A lawyer for Mr. Zarda, however, said that discrimination on the basis of sexual orientation inherently involved sex distinctions in a way that violated federal law.

“Sexual orientation cannot be extricated from sex, the two are one and the same,” said a lawyer for Mr. Zarda, Gregory Antollino. It was an argument that Mr. Horowitz, the E.E.O.C. lawyer developed further, explaining that “if you change the sex of the individual and the outcome would be different, that’s discrimination.” What he meant, he said, was that if Mr. Zarda had been a heterosexual female sky-diving instructor and had disclosed her sexual orientation, would she have been fired? If the answer was no, then Mr. Zarda had been the victim of sex discrimination.

Mr. Horowitz also argued that gay employees were protected under Title VII because discrimination they faced was for transgressing gender stereotypes, namely that people of one sex should be attracted to members of the opposite sex.

Mr. Mooppan, the Justice Department lawyer, dismissed the notion that sexual orientation was included in the meaning of sex, asking judges to engage in an exercise in name-calling.

If someone opposed interracial marriages, that person would be termed a racist, Mr. Mooppan said. But what about someone opposed to same sex-relationships? “You might call them a lot of things, but you would not call them a sexist,” he said.

New York state law outlaws discrimination on the basis of sexual orientation.

Mr. Zarda died in 2014 on a wingsuit BASE jumping trip in Europe. The lawsuit is being pushed forward by his sister and Bill Moore, a close friend and former partner of Mr. Zarda’s.

In a brief interview before the court hearing on Tuesday, Mr. Moore said that Mr. Zarda had been devastated when Skydive Long Island had fired him and that it led him to lose hope that he would be hired as a commercial pilot, a goal he had long been working toward. “Don always said he felt he had no purpose in the world,” Mr. Moore said. “He now has a major purpose.”

"On the cover of the Rolling Stone" -- sometimes a bad thing

Rolling Stone used to be the leading pop culture magazine in the country, so much that someone wrote a song about making it to the cover. Times have changed. Now the magazine is facing a libel suit over a false campus rape article. The Court of Appeals finds the lawsuit plausibly claims Rolling Stone libeled two students whom the article implied had raped a female classmate.

The case is Elias v. Rolling Stone, LLC, decided on September 22. The article quoted a female student who said that university fraternity brothers had gang raped her in a frat house. The article did not identify the students by name, but the students claim the article was "of and concerning" them because it described the layout of the frat house and quoted a frat brother as suggesting the rape was part of a fraternity initiation process. The article also claimed that one of the rapists was a guy who rode his bike around on campus. Rolling Stone later retracted the story, stating that the female student was untrustworthy in light of discrepancies in her account. Hence, the defamation case.

A quick flip through any defamation treatise will show that libel and slander doctrine has nooks and crannies that can doom any case. One problem is when the defamation victim is not named in the article. He can still sue for libel if the article was "of and concerning" him. That alone has yielded volumes of case law. Count this case among those cases. The Court of Appeals (Cabranes and Forrest [D.J.]) says two of the three male plaintiffs have plausibly alleged in the complaint that the Rolling Stone article was about them. One, Elias, notes that he lived in the frat house and his bedroom where the incident arose was sufficiently described in the article. You and I would not know the article was about Elias, but anyone familiar with the frat house would identify the room as Elias's room. A similar analysis applies to a second plaintiff, Fowler, who was the rush chair during that academic year and was presumably the one who egged on the other "rapists." Drew also used the campus pool regularly, which is where the female "victim" was said to have met him prior to the incident.

The third plaintiff, Hadford, cannot proceed with his claim, however, even though the article said one of the rapists was an alum who rode his bike around campus. That does describe Hadford. But while it is "possible" the article referred to Hadford, it is not "plausible." That distinction arises from the Iqbal pleading case that the Supreme Court issued in 2009, making it more difficult to survive motions to dismiss under Rule 12. There is no allegation that it was unusual for an alum to bike through campus "such that a reasonable reader familiar with Hadford's biking habits would conclude that the Article plausibly referred to him."

We also have a "small group" defamation claim, which exists if the statement defames members of a small group. "An individual belonging to a small group may maintain an action for individual injury resulting from a defamatory comment about the group, by showing he is a member of the group." This fraternity -- with 53 members -- is not too large that it cannot bring this claim. The complaint plausibly asserts that "many or all fraternity members participated in alleged gang rape as an initiation ritual and all members knowingly turned a blind eye to the brutal crimes." The plaintiffs may proceed with this claim.

Judge Lohier dissents in part, stating that "publishers should beware" now that the Second Circuit has resolved the small group defamation claim against Rolling Stone. He says the article does not allege that all fraternity members were complicit in the rape. "To the extent that the article implicates 'some' or even 'many' rather than 'all' of the members as rapists, we suggested in Algarin v. Town of Wallkill, 421 F.3d 137 (2d Cir. 2005) [a case I argued and lost], that it not actionable under the small group defamation doctrine." Were it up to Judge Lohier, this case would be certified to the New York Court of Appeals to clarify this issue.

Another Garcetti case bites the dust

It's been a while since I've seen a Second Circuit ruling on a First Amendment Garectti issue. Garcetti issues raise public employee speech retaliation issues. The plaintiff usually loses these cases because only a narrow band of public employee speech is protected under the First Amendment. This case is a good example of that.

The case is Cohn v. Department of Education of the City of New York, a summary order decided on September 20. Under the First Amendment, public employees cannot suffer retaliation for speaking out as citizens on matters of public concern. The Supreme Court's Garcetti decision (2006) holds that public employee speech is not protected if the plaintiff uttered the speech pursuant to his job duties. This means the comptroller of a municipality has no First Amendment protection if he blows the whistle on embezzlement, as that whistleblowing is his job.

Cohn was an Earth Science teacher in the New York City school system. He was required to set up the laboratory portion of the Regents Examination and help grade it. After discovering that about a dozen students in another teacher's class had received perfect scores, and suspecting that the teacher had coached the kids prior to the test, Cohn raised his concerns to the principal and to the New York Department of Education. Afterward, Cohn got shafted at work.

To the uninitiated, Cohn has a case, right? He spoke on a matter of public concern -- a corrupt Regents process -- and was retaliated against for that speech. In the real world, Cohn has no  case. He did not speak out as a citizen. Speaking up about the corrupt testing process in his school was part and parcel of his job duties, that is, "ensuring the fair and proper administration of a test for which he he had some responsibility. The alert to school officials that another teacher may have helped students cheat was therefore 'pursuant to his official duties."

Plaintiff unlawfully fired for signing unlawful confidentiality document

In this case brought under the National Labor Relations Act, the employee wins his grievance because he was fired over his refusal to sign an unlawful employment document that prohibited him from discussing his salary with other employees.

The case is NLRB v. Acosta, decided on August 31. Early in his employment at Long Island Association for AIDS Care, Acosta had time management problems, and he even objected to completing a remedial time log, expressing his displeasure by "enter[ing] the ingredients of his lunch into his time log '80 percent to help himself'' with an eating disorder and '20 percent' to be 'snippy with his supervisor.'" I am not sure why the Court of Appeals emphasizes this incident in the opinion, but it sure is memorable. Anyway, Acosta's performance later improved. At some point, the local newspaper reported that the company's CEO had misappropriated public funds intended for employees. At some point, the company had everyone sign a confidentiality statement that precluded them from discussing wages. They also could not talk with the media. When Acosta signed it "under duress," he was fired on the spot.

Acosta filed his charge with the National Labor Relations Board, which found in his favor "because 'an employer unlawfully intrudes into its employees’ Section 7 rights when it prohibits employees, without justification, from discussing among themselves their wages and other terms and conditions of employment.'” Not only had Acosta discussed wages with co-workers, but his comments were protected because the confidentiality statement was facially invalid. The ALJ ordered management to reinstate and compensate Acosta.

The Court of Appeals (Newman, Leval and Pooler) affirms the NLRB. Here is the reasoning:

We hold that the NLRB was correct in deciding that an employer violates Section 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1), when an employer terminates an employee for refusing to agree to an unlawful confidentiality agreement. An employer may not require even one individual employee to agree to abide by unlawful restrictions as a condition of employment. That the employees have not  yet organized in order to protest the unlawful nature of the restriction at issue does not make it any less unlawful. The contrary rule urged by LIAAC, that an employee can be required to comply with an unlawful policy and the employee is only protected from the unlawful policy if he or she actively organizes with other employees against it, is illogical and untenable. An unchallenged unlawful document can cause the chilling effect that Section 8(a)(1) seeks to prevent just as much as one that has been challenged by concerted action.

Since the confidentiality statement was illegal and Acosta was fired for protesting it, his termination was unlawful. While the employer said the real reason for Acosta's termination was his poor job performance, the NLRB found -- and the Second Circuit affirms -- that job performance was not the real reason. Here, the Court of Appeals provides some useful pretext analysis for plaintiffs' lawyers handling Title VII cases. Acosta's job performance had improved over time, and on the day of his termination, he met with a supervisor to discuss "future events that Acosta would be participating in at LIAAC, "thus suggesting that [the supervisor] did not believe Acosta would be fired later that day based on his performance." And, at the final meeting, the supervisor told Acosta "that he had improved." On this evidence, the NLRB had an evidentiary basis to find that Acosta's job performance was not the real reason for his termination.

Drug search legal as probable cause did not dissipate

If you do not handle Fourth Amendment cases, you are probably unfamiliar with the notion that probable cause can "dissipate" over time. It can. This case -- a drug case out of Vermont -- raises that issue.

The case is United States v. Pabon, decided on September 11. The police had information that Pabon was smuggling drugs from Vermont to Connecticut by using rental cars at certain times of day. When they stopped him on the road for a traffic violation (after having trailed him), Pabon would not identify himself, and he gave vague answers as to his travel itinerary. The police searched the car and found nothing, and at the barracks, Pabon would not give a clear answer on whether he would consent to a search. The police then got a search warrant to more closely search the rental vehicle and to search Pabon's clothing and to x-ray his lower abdomen. The drug-sniffing dog got suspicious when it went into Pabon's cell and his vehicle. Meanwhile, at the hospital, where Pabon would be x-rayed, he went to use the bathroom, but was told he could not flush as the police suspected he had swallowed drug packets for later distribution. He tried to flush the toilet anyway, but the officers would not allow him to, though they found nothing incriminating in the toilet. The x-ray showed no drug packets. Later on, when Pabon returned to the hospital after hurting himself at the holding cell, the police got a warrant for a CT scan, which revealed materials in Pabon's body that suggested he was in fact packing drugs.After taking oral laxatives, Pabon passed all the drugs, nearly 100 grams of cocaine and heroin.

So what's it all about? Pabon does not really contest the police had probable cause to initially detain him. He does argue that the probable cause dissipated over time and that the search that produced the drugs was illegal. The Court of Appeals (Livingston, Cabranes and Pauly [D.J.]) disagrees and upholds Pabon's conviction. The police may not disregard facts tending to dissipate probable cause when confronted with such facts before the arrest is made. In this case, the Court considers for the first time "dissipation in the context of new information emerging after a warrantless arrest based on probable cause." Without squarely addressing that issue, however, the Court holds that "it is clear from an assessment of the record that police at all times possessed a reasonable basis for concluding that Pabon had committed -- indeed, was committing -- a crime."

The Court says things had remained suspicious even after Pabon was taken to the police station. While the police initially saw nothing in his body during the initial x-rays, doctors did note that x-rays provided limited insight into what's really going on.

In such circumstances, the probable cause to believe that Pabon was transporting narcotics had not dissipated, even taking into account the x‐ray examination results. By the time Pabon was discharged from the hospital, the state police not only had the information they had collected prior to Pabon’s arrest, but they were also privy to Pabon’s objectively suspicious behavior, canine alerts to places where Pabon was either sitting or had been held, and Dr. Rademacher’s explanation of the import of the x‐ray images and the relative effectiveness of that search method. The officers continued to have a reasonable basis for detaining Pabon, such that, even assuming arguendo that an obligation to release a suspect could, in some circumstances, arise, it did not do so here. Properly framed, the central question in this case is thus the one Gerstein and further elaborated on this view in his written assessment, Dr. Rademacher explained that he felt it was unnecessary because he had already conveyed the relevant information to Hatch. probable cause to detain.

Defamation case involving extortion allegations can proceed

Defamation cases are a way to reclaim your reputation. The problem is that the court system is an unwieldy way to accomplish that, and defamation cases are often met with motion practice that will prolong the agony and cost you money and even more anguish.

The case is Friedman v. Bloomberg LP, decided on September 13. Friedman was recruited to work as "head of risk" for a purported hedge fund and moved to the Netherlands, where the company was based. He then came to believe the company had fraudulently induced him to work there and that the company was actually a "kickback and money laundering operation" for Libyan dictator, Ghaddafi. Friedman says he was inexplicably fired shortly after he voiced concerns about the company's practices. He then sued the company for fraudulent inducement, seeking $499,401,000 in damages, back pay and bonuses. Bloomberg, LP, then published a story about the lawsuit, and Friedman next sued Bloomberg for defamation because (1) the article said he was suing for $500 million and (2) the article quoted his former employer stating that Friedman had repeatedly tried to extort money from the company and that he was fired for gross misconduct.

Here are the issues. First, Connecticut allows plaintiffs to sue nonresidents and foreign companies in Connecticut if the lawsuit has some connection to that state, except for defamation cases. This means plaintiff cannot sue the foreign company in this case. Friedman says the defamation exception violates the First Amendment's right to petition the government for grievances. The Court of Appeals (Walker, Hall and Chin) says:

A plaintiff’s right of access to courts is not violated when, as here, a state’s long‐arm statute does not provide for jurisdiction over certain out‐of‐state defendants. Indeed, “[t]here is nothing to compel a state to exercise jurisdiction over a foreign [defendant] unless it chooses to do so, and the extent to which it so chooses is a matter for the law of the state as made by its legislature.”

Nor is there an equal protection violation. New York has a similar law. The Second Circuit has already blessed that law. "One rational basis for excluding defamation actions against out‐of‐state defendants is “to avoid unnecessary inhibitions on freedom of speech” and that '[t]hese important civil liberties are entitled to special protections lest procedural burdens shackle them.'” In addition, the New York exception for defamation actions was initially intended, at least in part, to ensure that “newspapers published in other states [would not be forced] to defend themselves in states where they had no substantial interests.”

The Court does have authority to decide the case against Bloomberg, however. Friedman does not state a claim that Bloomberg had defamed him in stating he was suing his former employer for "as much as $500 million," as the lawsuit pretty much seeks that amount in damages/relief. As for the statement in the article that plaintiff had repeatedly tried to extort money from his former employer, that statement is actionable because it suggests plaintiff had committed a crime. This is not rhetorical hyperbole. A reasonable reader could also think that Friedman's "gross misconduct" consisted of those multiple extortion attempts.

Lethal police shooting case met with qualified immunity

The facts here do no bode well for the wrongful death claim brought by the decedent's family. The decedent (Jaquez), came after the police with a knife even after they Tased him upon showing up at a domestic dispute at his home. More Tasers ensured, to no avail. Jaquez continued to attack the officers until they shot and him with rubber bullets, which did not stop Jaquez. Eventually, they killed him with live bullets, knife still in hand.

The case is Estate of Jaquez v. City of New York, a summary order issued on September 8. So, on these facts, what case is available to the Jaquez estate? He sues under Section 1983, which prohibits the unlawful use of excessive force. Plaintiff's expert says "Jaquez was in a psychotic state and that when the officers entered the apartment with weapons and body armor, this escalated Jaquez’s reactions." The assistant medical examiner contradicted the officers' version of events, stating that "because the autopsy report indicated that the bullets entered Jaquez’s body from above, the bullets’ trajectory indicated that the officers were above Jaquez when he was shot, which Appellants contend would contradict the officers’ claim that Jaquez was standing and attacking them at the time they deployed live ammunition." The examiner also "proposed to testify that it would have been impossible, based on the injuries suffered, for Jaquez to push himself off the floor and continue attacking the officers after the first gunshot wounds."

The trial court dismissed some of the claims on qualified immunity grounds. On appeal, the Second Circuit (Hall, Lynch and Droney) affirms the grant of qualified immunity, which shields officers from suit when they did not violate clearly-established law. Even if Jaquez did not have a knife in his hand, the officers said they did not see his hand at that time and could not determine if he was unarmed when they shot the Taser. "Thus, in the moments that Jaquez was walking down the hallway 'officers of reasonable competence could disagree' as to whether Jaquez was a threat because the officers knew Jaquez had easy access to a fillet knife, was acting erratically, and was refusing to obey the officers’ commands."

As for Jaquez's other claims, again, qualified immunity. While the estate says there was an issue for the jury as to whether he was attacking the officers when they later used lethal and non-lethal force following the first deployment of the Taser, the Court says there is no real dispute whether he was attacking the officers with a knife. "Moreover, because of Jaquez’s refusal to follow commands, his close proximity to a lethal weapon, and his behavior up to that point, the arresting officers reasonably could have believed that Jaquez posed a threat." A similar analysis follows on the estate's claim that the initial use of force was a jury-worthy incident. Any disputes about the trajectory of the bullets and whether Jaquez was physically able to reach for a knife are not trialworthy because "the limited circumstantial evidence indicating the possible positions of the officers and Jaquez at the time that they initially fired live ammunition is insufficient to defeat summary judgment on qualified immunity. There is no dispute that immediately prior to the officers’ use of lethal force Jaquez
threatened the officers with a knife—thus engaging in the use of lethal force himself."

Other claims went to trial but were met with a defendants' verdict. The trial court did not abuse its discretion on the evidentiary rulings that the estate challenges on appeal. For example, as for expert testimony about Jaquez's psychological state and the propriety of the police officers' actions, that was properly excluded because the doctor was not shown to have expertise in psychiatric diagnosis or in police practices.

West Point rape case is dismissed

This case teaches us two lessons: first, courts are loathe to impose Bivens liability against federal defendants, and second, courts are loathe to impose any liability against military institutions. This case arises from a rape and sexual harassment at the U.S. Military Academy at West Point.

The case is Doe v. Hagenbeck, decided on August 30. The plaintiff was a West Point cadet, training to become a military officer. That means she was enrolled at West Point, which is also a college, albeit one with a military emphasis. If you go to West Point, you are a member of the army. She claims the culture at West Point was misogynistic and male-oriented, with constant sexism not only among the male students but its faculty. The examples of this sexism as set forth in the opinion are not pleasant. One night, Doe was raped by a male student. The health clinic on campus did not properly respond to the sexual assault. She claims that West Point leadership mishandled the incident as well. She sues them under Bivens over the equal protection violations.

Two constitutional principles are at stake here. First, you can sue federal defendants under Bivens (named after a Supreme Court case from 1971), but -- as courts repeatedly tell us -- Bivens claims are far and few in between and almost non-existent these days, though Bivens is not dead yet. The other principle, which we call the Feres doctrine -- named after a Supreme Court case from many years ago -- says the courts should not entertain lawsuits that would challenge military discipline. Constitutional claims, in other words, are quite difficult to bring against places like West Point, which I learned 10 years ago when I represented anti-war protesters who wanted to assemble on the campus. What it all means is that Doe cannot bring this lawsuit. The majority (Livingston and Wesley) states:

This Supreme Court precedent frames our inquiry and leads ineluctably to the conclusion that Doe cannot maintain her Bivens claim. Doe was a member of the military at the time the events giving rise to her claim occurred, and the claim concerns superior officers. Further, her claim calls into question "basic choices about the discipline, supervision, and control" of service personnel and would "require[ ] the civilian court to second-guess military decisions," thus triggering the incident-to-service rule. United States v. Shearer, 473 U.S. 52, 57-58 (1985) (noting that allegations "go[ing] directly to the `management' of the military" that "might impair essential military discipline" lie at the "core" of rule's concerns). In such circumstances, her Bivens claim must be dismissed.

In dissent, Judge Chin provides further detail into the sexist culture at West Point. He notes that while West Point is a military facility, "it is quintessentially an educational institution." There are two sides to the Feres and Bivens doctrine, Judge Chin suggests, summarizing his analysis this way:

In my view, the Feres doctrine does not bar Doe's Bivens claim that she was denied her constitutional right to equal access to education, for her injuries did not arise "incident to service." First, as to the activities immediately preceding Doe's rape, her ultimate injury, she was engaged in purely recreational activity: she was out for an evening walk on a college campus, after curfew, with another student who was a friend. Second, as to her broader activities at West Point, she was a student attending college: she was taking classes, participating in extracurricular activities, and learning to grow up and to be a self-sufficient and healthy individual. She was not a soldier on a battlefield or military base. She was not traveling in a military car or boat or plane or pursuant to military orders. She was not being treated by military doctors. She was not on duty or in active service or on active status, and she was not yet obliged to enter into military service. There was "nothing characteristically military" about what she was doing, and her injuries did not arise out of military employment.

We all love baseball

The Sherman Antitrust Act makes it illegal for businesses to conspire with each other to fix prices and to otherwise control the market. But in 1922, the Supreme Court ruled that the Act does not apply to Major League Baseball. I believe that MLB is the only major industry that is exempt from the antitrust laws. This case asks the Second Circuit to get around that exemption, but the Circuit will not do so.

The case is Wyckoff v. Office of the Commissioner of Baseball, a summary order issued on August 31. When the Supreme Court in 1922 said MLB was exempt from the antitrust laws, it supported that reasoning with some hackneyed analysis having to do with baseball as entertainment and not really an industry. Of course, MLB is in fact an industry, so the Supreme Court's reasoning has been criticized ever since. My sense is the Court did this because we all love baseball and it's a way of life and not merely an money-making enterprise. Anyone who ever played catch with his dad or remembers seeing a major league baseball field for the first time can relate to this.

In 1972, the Court reaffirmed the principle that MLB is exempt from the Sherman Antitrust Act, in a case brought by Curt Flood, an outfielder who did not want to be traded from St. Louis to Philadelphia and claimed the trade was against his will and allowed to happen because the teams were able to make unreviewable decisions among themselves about the players that no other industry could ever get away with. Think about it. Could IBM "trade" one of its employees to Microsoft and blackball the employee from the industry if he does not want to relocate to the State of Washington? What make the Curt Flood case even worse was Justice Blackman's opening paragraph, in which he extolled the beauty of baseball by listing his favorite all-time players. This stunt only further confirmed that emotions were getting in the way of rational legal analysis.

This case is brought by major league scouts who claim that MLB conspired to decrease competition in the labor market for professional baseball scouts. As it happens, in 1998, Congress passed the Curt Flood Act, which created an exception to baseball's antitrust exemption for MLB players. But that Act does not apply to scouts.

This one is pretty nasty

I am sure this would change were this ever put up for a popular vote, but inmates -- even those convicted of felonies -- have rights to a dignified existence. The Constitution says so in the Eighth Amendment,which prohibits cruel and inhumane treatment. This case tells us how it all works.

The case is Garraway v. Griffin, a summary order decided on August 31. Garraway is in the care, custody and control of the New York State Department of Correctional Services, housed in its facility in Malone, New York. In July 2011, he complained in writing that his mattress was soiled with human feces. Nobody did anything about it until he filed a formal grievance in October 2011. The Court of Appeals (Raggi, Leval and Lohier) says plaintiff has a case.

As with all provisions of the Bill of Rights, we have multi-part balancing tests governing these disputes. To win a conditions-of-confinement case under the Eighth Amendment, the inmate must show his living conditions were "sufficiently serious that he was denied the minimal civilized measure of life's necessities" and that the defendants "acted with a sufficiently culpable state of mind, such as deliberate indifference to inmate health or safety." In other words, the inmate has to show his living conditions were completely uncivilized and that no one at the jail gave a damn. These cases are not easy to win. Oftentimes the inmate's objections are not serious enough or he cannot prove deliberate indifference.

The Court says the feces-soiled mattress is disgusting enough to show that plaintiff's living conditions violated the Constitution. He was also able to show that jail officials looked the other way when he complained. Not only was the cell's previous occupant disciplined for throwing feces the day before plaintiff was moved into the cell, but, as set forth below, plaintiff's complaints fell on deaf ears:

Garraway asserts that he verbally informed each of defendants Shumaker, Edger, Brink, Erway, Belz, and Pulsifer about the condition of his mattress at least once and that he informed defendant Smith of the problem several times, both in writing and verbally. Shumaker and Edger, who initially placed Garraway in the cell with the obviously soiled mattress, allegedly mockingly told him “good luck,” and then failed to follow the protocol for having the cell cleaned. Other defendants told Garraway that they would look into his complaint but failed to do so. Still others told Garraway to direct his
request elsewhere.1 In short, no defendant advised of the mattress condition took any action until October 2011, when Garraway filed his formal grievance.

In the end, summary judgment in favor of the state is reversed and this case is remanded. Plaintiff, for now, does not have a lawyer. He handled this appeal pro se.