Constitutional challenge to COVID-19 vaccine mandate fails in 2d Circuit

COVID-19 cases are still making their way through the federal courts. This one was filed by public sector employees in New York City who claim the vaccination mandates violate the U.S. Constitution. Plaintiffs lose their constitutional challenges on appeal.

The case is New Yorkers for Religious Liberty v. City of New York, issued on November 13, more than 1.5 years after the case was argued. These issues are complex, and prior to COVID-19, the federal courts had rare occasion to analyze the legality of vaccine mandates. We have a number of issues in this decision, which does not really break new ground and instead reiterates some of the holdings the Court of Appeals has handed down over the last few years on this issue.

1. Plaintiff's request to rescind the mandate is mooted because the City halted the mandate in February 2023, following oral argument in this case, and there is no reason to believe the mandate will ever return. Federal courts are not the forum for theoretical legal arguments, so without a live case or controversy, there is no argument that the mandate must be rescinded under the Constitution.

2. While plaintiffs want reinstatement to their old positions and backpay following the termination of their employment over noncompliance with the mandate, that argument fails, but not on mootness grounds. Even if the case were moot, prior harm may still yield compensation. But in this case, plaintiffs seek this relief through a preliminary injunction, which requires proof that they are likely to prevail on the merits and will suffer irreparable harm without obtaining the relief now. The problem for plaintiffs is that they filed their injunction motions after they were terminated, which means there is no specific present objective harm or a threat of any specific future harm. The damage has been done, and that means there is no irreparable harm. The damages due the plaintiffs will have to wait until the end of the case.

3. While plaintiffs claim the mandates violated the Free Exercise and Establishment Clauses (the two religious freedom provisions under the First Amendment), both challenges fail. The Free Exercise challenge fails because the vaccine mandate was facially-neutral and did not single out any religious practices. The Second Circuit held as such a few years ago in a related case, and that remains the law in this Circuit. As for the Establishment Clause challenge, the Court finds there is no evidence that any religious animus by statewide officials tainted the mandate process. 

En banc court directs criminal defense lawyers to advise natrualized citizens about certain risks of deportation

The Second Circuit normally hears cases in three-judge panels, drawn randomly from about 20-25 judges, about half of whom are full-time judges in active service. If the three-judge panel rules against you, the only remaining options are the U.S. Supreme Court or en banc review in the Second Circuit, where the dozen or so active judges hear the case as a whole. But that rarely happens. This Court of Appeals hears cases en banc maybe once every other year. This case was decided en banc, and the majority holds that a naturalized American citizen has a constitutional right to be told during their criminal sentencing that a guilty plea might jeopardize their citizenship. 

The case is Farhane v. United States issued on October 31. This issue is divisive enough that the en banc court decided to hear it, and the issue remains divisive, as eight Second Circuit judges held in favor of the plaintiff, and five ruled against him. This case may be on its way to the Supreme Court.

This case arose when the government decided that the plaintiff, a natrualized citizen, was not a person of "good moral character after determining that, among other things, he had lied on his citizenship application about whether he had ever committed any crime for which he had not been arrested. 

In 2010, the Supreme Court said that the Sixth Amendment requires criminal defense counsel to tell her client about the risk of deportation associated with such a plea. That case was Padilla v. Kentucky, 559 U.S. 356 (2010). In the case before the Second Circuit, the court, in a decision written by Judge Carney. holds that a naturalized U.S. citizen facing the risk of deportation following denaturalization proceedings has the same protection enjoyed by  a noncitizen facing the risk of deportation. If the lawyer fails to properly their client of this risk, then the client may argue that he was denied the effective assistance of counsel and avoid the consequences of their guilty plea.

In dissent, the judges state that the Court of Appeals got it "wrong" and that the decision departs from the rule that a decision announcing a new rule of criminal procedure ordinarily does not apply retroactively on federal collateral review. Even if the government did not raise that objection in prior proceedings in this case, that does not matter, the dissenters state, because courts have discretion to overlook a forfeiture generally.

We do not see much ideological voting on the Court of Appeals: Republican and Democratic appointees often vote together. That is not always the case in en banc cases, where the disputes may have an underlying political overtone or the disagreements on a particular issue are more profound. The ideological make up of this en banc ruling is as follows: voting for the plaintiff: seven Democratic appointees and one Republican appointee. Voting for the government: five Republican appointees.

Second Circuit upholds some, but not all, of NY's gun regulations.

Ever since the Supreme Court issued the Bruen decision in 2022, federal courts have struggled to comply with its mandate that the Constitution prohibits modern gun regulations that do not resemble the ones in place when the Second Amendment was adopted long ago. This case examines some of those rules.

The case is Antonyuk v. James, issued on October 24. I discussed portions of this ruling at this link. For anyone who wants a thorough examination of gun laws throughout American history, this opinion is for you. If nothing else, the Bruen decision has forced federal judges to become experts in reviewing all the old gun regulations to determine if current gun laws run afoul of the Second Amendment. They used to call this "law office history."

The first question is whether New York's rule against carrying a gun in a sensitive location, such as a treatment center that provides health, behavioral health, or chemical dependence care or services, is constitutional. It is. The state has traditionally outlawed guns in these locations where vulnerable populations congregate.

The Court of Appeals (Jacobs, Lynch and Lee) next determines whether the state law prohibiting guns in places of worship violates the Second Amendment. Yes, some people want to bring their firearms into church for self-defense purposes. The problem is that after the district court struck down this provision, the State Legislature eliminated this requirement. That moots out the case. The Court of Appeals cannot rule on a provision that no longer exists, and the courts presume that the vacated law or regulation will not return anytime soon. 

We next consider the prohibition against firearms in parks and zoos. The Court provides a lengthy analysis on similar regulations throughout American history on this issue and finds that this regulation is legal because it is consistent with age-old laws against carrying a gun in often-crowded public squares, including city parks. The same holds true for zoos, as there is a national tradition of barring firearms where children congregate. The Court of Appeals notes that 70 percent of zoo visitors are children.

What about bars and taverns? New York bars firearms in these locations. Guns and alcohol can be a lethal mix, but the Supreme Court's Second Amendment framework necessarily requires extended analysis on this issue, also. We have age-old laws against intoxicated people buying and carrying firearms. Those old statutes bring the current New York laws within our national tradition, which means they are legal under the Second Amendment.

You get the point. The Court of Appeals further upholds New York's law against carrying a firearm in theaters, conference centers, and banquet halls. But the Court of Appeals strikes down New York's provision against carrying firearms during First Amendment public assemblies. Such a prohibition does not fall within our national tradition, the Court holds.

Court of Appeals upholds some but not all of New York's gun licensing scheme

Gun cases under the Second Amendment are becoming more commonplace ever since the Supreme Court over the last 15 years or so breathed life into what had been a dormant constitutional provision and held that you have an individual right to arm yourself. That was the Heller decision. Things became more complicated in 2022, when the Supreme Court held in the Bruen decision that gun regulations that do not resemble the ones in place when the Second Amendment was adopted are unconstitutional. That leads to this case, in which the Second Circuit upholds most but not all the challenges to New York's gun rules.

The case is Antonyuk v. James, issued on October 24 after kicking around the courts for years, including a trip to the U.S. Supreme Court, which remanded the case to the Second Circuit for more analysis. This time around, the Second Circuit was assisted by numerous amicus briefs from a variety of interest groups, and I bet the Court read them all because this is a new area of constitutional law that requires extensive analysis. Here is what the Second Circuit (Jacobs, Lynch and Lee) did:

1. New York's requirement that the potential gun owner pass a "good moral character" test is constitutional because the state law makes it clear that character is a proxy for dangerousness to yourself or others. The U.S. has long had licensing rules like this in order to ensure that dangerous people do not own any firearms. Our society has also allowed for discretionary moral judgments by local officials in deciding whether to issue a gun permit. There may be some unconstitutional applications of the moral character clause, but since this lawsuit poses a facial challenge to the statute, and there are conceivable ways the statute serves a constitutional purpose, this provision cannot be struck down in this lawsuit. Other lawsuits may highlight flaws in the licensing scheme, but not this one.

2. New York's "catch-all" provision is also constitutional. Under that rule, the decisionmaker may consider other, unspecified, information in determining whether to issue a gun permit provided that information is relevant to the decision. While some information requests may be illegal under the Second Amendment, others would surely be relevant, so the facial challenge to this provision fails. 

3. New York also allows the decisionmaker to consider the gun applicant's co-habitants and minors in determining whether to issue a gun permit. This provision allows the decider to learn more about the applicant's moral character, like a character reference. All of this is consistent with the historical tradition of firearm regulation.

4. Plaintiffs win on one challenge, however: the social media requirement, which allows the decisionmaker to review the applicant's social media accounts for the past three years to learn more about their character and conduct. You do not have to provide passwords, just a list of social media accounts so the regulators can see what you've said online. The problem is you have to provide a list of pseudonymous social media handles; that would violate the First Amendment right to speak without revealing your true identity.

Man may sue upstate school district for sex discrimination arising from deficient sexual harassment investigation

The Court of Appeals has reinstated a lawsuit in which an agricultural educator was banished from providing seminars in certain public schools after a school district credited an allegation that he had sexually harassed a student during an agricultural presentation. This case provides some guidance on the principle that a public school may violate Title IX when it mishandles allegations like this.

The case is Schiebel v. Schoharie Central School District, issued on November 1. The plaintiff denies sexually harassing anyone. When plaintiff met with school administrators about the allegation, the meeting lasted less than a half-hour, during which time the Title IX coordinator was hostile and accusatory toward plaintiff, and the district determined that, since he admitted reaching around a student for cups and supplies during the presentation, plaintiff was guilty of touching a female student even if his actions were not intentional. The superintendent of schools sustained this adverse finding against plaintiff on the basis that plaintiff did not deny that he may have reached around the student during the presentation and that plaintiff had ample time prior to the meeting to consider the accuracy of the allegations against him.

The Court of Appeals (Walker, Nardini and Menashi) reverses the trial court's determination under Rule 12 that this is not a gender discrimination case. These are complex cases. If you are the victim of sexual harassment in the public schools, you can sue for sex discrimination if the school is deliberately indifferent to the allegations, or if the investigatory process is so irregular that the process was a sham. If you are accused of sexual harassment, such as in this case, the same principles apply. Here, plaintiff has a case based on the deliberate indifference and sham theories, as cases hold that a false accusation of male-female sexual harassment case predicate a Title IX claim. An objectively deficient investigation, or an inexplicable result, leading to discipline against the alleged harasser can also violate Title IX.

The process leading to plaintiffs discipline was so deficient, and the result was so dubious, as to permit the inference under Rule 12 that plaintiff was the victim of the school district's gender discrimination. He did not receive due process during the investigation, such as timely notice of the charges against him, an opportunity to review or to present evidence, or a neutral decisionmaker. The Court of Appeals finds that plaintiff did not admit to sexual harassment when he said he may have reached around a female student to access supplies, and the district "also invoked a tendentious definition of sexual harassment -- that a single, accidental, trivial contact qualifies as sexual harassment under the district's policy -- that suggests [the district] was not impartially applying district policy."

Child Victim Act plaintiffs may challenge sex abuse that took place outside New York

This case is brought under the Child Victims Act, which the State Legislature recently adopted to re-open the statute of limitations for minor children who suffered sexual abuse years ago. The plaintiff alleges that, after she moved to New York City as a 16 year-old child model, the modeling agency sent her to Paris to love with one of its executives, who raped her. This happened in 1986. Here is the issue: can plaintiff bring this case even if the sexual abuse took place in Paris? The answer is yes.

The case is Sutton v. Tapscott, issued on November 4, more than a year after the court heard oral argument. The delay in issuing this ruling arises from the uncertainty whether CVA plaintiffs can sue in cases like this: where the abuse took place outside the State of New York. The district court held that the plain language of the CVA prohibits such cases from being filed unless the abuse took place in-state, reasoning that the statute only prohibits conduct "which would constitute a sexual offense" as defined under New York law, and that New York criminal law defines an "offense' as conduct occurring withing the boundaries of the State of New York.

That is not how other courts have interpreted the CVA, however, including intermediate appellate courts in New York. The First Department has ruled in favor of the plaintiff-victims in these cases, as have the Second and Fourth Departments. Here is what the First Department said:

In Samuel W. v. United Synagogue of Conservative Judaism, the First Department explained that “New York’s criminal statutes’ territorial limitations are . . . not a basis for excluding claims under the CVA” and that section 214-g’s “plain language revived ‘every’ covered ‘civil claim or cause of action’ that would have been properly brought in New York in the first instance,” including claims based on the out-of-state sexual abuse of a plaintiff who “was a New York resident at the time the cause of action accrued.” 194 N.Y.S.3d 25, 26–27 (1st Dep’t 2023).

The Court of Appeals (Sullivan, Lee and Carney) defers to the appellate division rulings. Normally, when the Second Circuit has a difficult issue of state law, it considers whether the certify the issue to the New York Court of Appeals for a definitive ruling. That was not necessary here because three of the four appellate divisions in New York have already agreed on a definitive interpretation.

You cannot sue state agencies for disability discrimination in federal court

 At first glace, of course, this looks like a routine case. The plaintiff argues that he suffered employment discrimination while employed at the New York State Department of Motor Vehicles, and he sues under the Americans with Disabilities Act. He names the DMV and individual defendants in the case. But this case runs into a huge problem.

The case is Yerdon v. Poitras, issued on November 5. (The oral argument was only a few days ago). Plaintiff alleges his supervisor removed his job tasks and limited his responsibilities after he told her about his disability. He also got a negative performance review and an "ultimatum." After plaintiff complained about all this internally, he was fired. While the case was dismissed under Rule 12, prior to any discovery, the Court of Appeals (Kearse, Sullivan and Robinson) does not consider whether plaintiff states a claim. That's because the state asserts a soverign immunity defense which would wipe out the case entirely,

The Eleventh Amendment, as interpreted by the Supreme Court, says you cannot sue the state in federal court unless you can shoehorn the case into one of the exceptions to that rule, which holds in sum and substance that the case can proceed in federal court if the case is consistent with Fourteenth Amendment principles. Disability discrimination cases, for the most part, do not involve that exception.

The Second Circuit has never held whether employment discrimination cases under Title I of the ADA may proceed in federal court when the plaintiff is suing the state.But other circuits have addressed this issue, finding that sovereign immunity prohibits such lawsuits because, as the Supreme Court has held, there is no evidence that, under the Fourteenth Amendment, Congress has identified a pattern of irrational state discrimination in employment against the disabled. That means Congress has no authority to abrogate this immunity for plaintiffs who want to the sue the state for these civil rights violations.

The Court further holds that individual defendants cannot be sued for disability discrimination under Title I of the ADA. Under the Second Circuit's statutory construction, only employers may be sued for compensatory and punitive damages. Six other circuits have reached the same conclusion.

Without any viable defendants to sue, plaintiff's case is dismissed. For those who want to proceed with their cases alleging disability discrimination against state agencies, the only recourse is to sue in state court. As this case tells us, federal courts cannot entertain such cases. 

Muslim informant/no-fly retaliation case is rejected on appeal

In this religious discrimination case, Muslim plaintiffs allege that federal agents retaliated against them after they refused to serve as informants against other American Muslims. The retaliation involved their placement on the no-fly list. This case has taken a long journey since it was originally filed a decade ago, involving events that transpired in 2007-2012. The Court of Appeals has put this case to rest for good, finding that the defendants are immune from suit because plaintiffs have not adequately alleged they knew the plaintiffs had religious objections to the informant request.

The case is Tanvir v. Tanzin, issued on October 29. This case is brought under the Religious Freedom Restoration Act, which makes it unlawful for the government to discriminate on the basis of religion. This is a complex case. The Court of Appeals has already passed judgment on this case, see 894 F.3d 449 (2d Cir. 2018), and the Supreme Court took the case for the purpose of holding that RFRA cases may give rise to a damages claim. See 592 U.S. 43 (2020). The case returns to the Second Circuit on a different issue: qualified immunity.

Qualified immunity allows governmental defendants to avoid litigation if they did not violate clearly-established law or had otherwise acted reasonably at an objective level. In this case, the Court of Appeals lays out the facts set forth in the complaint, demonstrating the sequence of events from the plaintiffs' standpoint. But the complaint has a problem, the Court of Appeals (Lynch, Park and Carney) says, and it dooms the case and entitles the defendants to qualified immunity. 

The complaint does not assert that the plaintiffs told the federal agents that they had religious objections to working as informants against other Muslims. What this means is that the federal agents could not have intentionally retaliated against plaintiffs based on their religion but did so on the basis that they objected to the informant request because they thought such a role would have been too dangerous. Retaliating against someone because the informant demand was too dangerous may be unfair and immoral, but it does not violate the RFRA.

That ends the case. As I mentioned, this case was brought a decade ago. No depositions were ever taken in this case, and no documents were exchanged that would have shed light on how the federal agents had asked plaintiffs to serve as informants and how they carried out the retaliation. To put things in lawyer-speak, after all these years, this case reaches the Court of Appeals this time around in a Rule 12 motion to dismiss posture. While plaintiffs won a few victories along the way, especially in the Supreme Court, they lose the final battle on a central issue: have plaintiffs plausibly asserted that the defendants retaliated against them on the basis religion.

Court of Appeals sustains $50,000 in pain and suffering for civil battery

This case went to trial, and the jury found for the plaintiff on her claim that a doctor-supervisor subjected her to sexual touching. The jury rejected her other claims, including that her employer, Sloan-Kettering Cancer Center, discriminated against her on the basis of sex and retaliated against her for objecting to such treatment. The jury awarded her $50,000 in compensatory damages and $200,000 in punitive damages. Her appeal seeks a new trial because the damages were not high enough. The Court of Appeals rejects the appeal.

The case is Singh v. Memorial Sloan-Kettering Cancer Center, a summary order issued on October 28. The supervisor who subjected plaintiff to battery was Dr. Pillarsetty. Plaintiff, a doctor, testified that Pillarsetty would hug her tightly, place his hand on her back, grab her buttock, placed his hands on her thighs, and touched her hand and shoulder. She also testified that the defendant placed his hand on her stomach area and slid his hand toward her breast. The jury agreed that plaintiff suffered a civil battery and awarded her $250,000 in damages. The jury did not find that plaintiff was sexually harassed, however, or that she suffered sexual assault. So the jury threaded the needle: it found unwanted touching but not sexual touching.

Plaintiff's appeal seeks a new trial on damages. Such relief on appeal is very difficult to win. We trust juries to set damages awards, and if the jury awards too much money and the amount "shocks the conscience," the trial court (and the Court of Appeals, if necessary) will reduce that amount. But if the jury awards too little, the trial court is usually powerless to increase the amount. Hence this appeal.

The Court of Appeals (Jacobs, Merriam and Cronan, D.J.) defers to the jury's damages assessment. It finds that the jury had various ways to award plaintiff this amount. trial. "The District Court carefully evaluated the evidence, identifying several plausible explanations for the jury’s decision to award $50,000 in compensatory damages. For example, the District Court noted that the jury might have credited Singh’s testimony about the unwanted touching, but not her uncorroborated claims about its sexual nature or extent." In other words, the jury did a credibility assessment and rejected the strongest allegations involving sexual touching. The trial court also stated in its post-trial ruling on this issue that the jury could have awarded only $50,000 for pain and suffering because it determined that other stressors in her life also caused her pain and suffering.

The Court of Appeals also holds that the damages award is comparable to similar cases. That also works against plaintiff's appeal. "The District Court also considered precedent, finding that the award in this case was 'comparable to the size of awards granted in cases involving very similar claims,' and that cases cited by Singh in which juries had awarded higher damages had generally involved “more harm than emotional distress alone.”

Supreme Court takes up Title VII discrimination case

The Supreme Court has agreed to hear case that determines how courts will resolve employment discrimination cases filed by "majority" members of the community, i.e., whites, men, etc., as opposed to the traditional victims of employment discrimination, i.e., Black employees, and women.

The case is Ames v. Ohio Dept. of Youth Services. The Court agreed to hear the case a few weeks ago. The issue before the Court is this: Whether, in addition to pleading the other elements of Title VII, a majority-group plaintiff must show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

Some appellate courts impose upon the plaintiffs in such cases to prove their employer is that rare entity that discriminates against majority members of society. Other courts, like the Second Circuit, treat all discrimination cases the same no matter who the plaintiff is. Title VII, the primary employment discrimination statute, does not speak to this issue at all. But courts have imposed the "unusual employer" requirement in certain cases. That added requirement affected the plaintiff's case, as she is a heterosexual woman who claims her employer denied her a promotion in favor of a lesbian and later discriminated against her in favor of a gay man. The certiorari petition says this:

the Sixth Circuit is not alone in imposing this additional element. The D.C., Seventh, Eighth, and Tenth Circuits also require majority-group  plaintiffs  to  show  background circumstances. Two circuits—the Third and Eleventh—“have expressly rejected this rule.” And five circuits “simply do not apply it.” Within this third group, the First and Fifth Circuits  have employed  language  that  conveys disapproval of the rule without explicitly rejecting it. The Second, Fourth, and Ninth Circuits, meanwhile, have each acknowledged the existence of the split but declined to take a side. That tack has left district courts in these circuits in disarray, with some judges in the same courthouse requiring background circumstances and others declining to do so.

As federal courts around the country cannot agree on how to resolve cases like this, Ames' case is a good candidate for Supreme Court review, which is why the Justices agreed to hear the case. Since Title VII does not speak to this issue, and the Supreme Court has been applying Title VII lately based on what the statute says and not how judges wish to amplify it (including Bostock v. Clayton County (2020) and Muldrow v. City of St. Louis (2024)), my guess is the Court will hold that all Title VII plaintiffs are held to the same evidentiary test and that it will not matter if the plaintiff is Black, a man, or heterosexual.

Where does the Second Circuit stand on this? The certiorari petition says:

In Aulicino v. N.Y.C. Department of Homeless Services, 580 F.3d 73 (2d Cir. 2009), the Second Circuit recognized that some courts, like the D.C. Circuit, require majority-group plaintiffs to “proffer evidence of background circumstances” while others, like the Third Circuit, have rejected the requirement. Id. at 80 n.5 But the court “d[id] not decide” whether parties in the Second Circuit must do so.

Inmate loses speech retaliation case

In this case, the plaintiff-inmate's First Amendment retaliation case was dismissed in the district court. The Court of Appeals agrees that he cannot win the case, so the free speech case is over..

The case is Baltas v. Maiga, a summary order issued on October 11. Plaintiff was locked up in a Connecticut prison. He was transferred to a prison in Virginia. He claims the transfer was in retaliation for filing internal grievances about the conditions of his confinement.

I know that many people do not want to hear this, but inmates have rights under the First Amendment to grieve their conditions of confinement without worrying about retaliation for the exercise of those rights. As it happens, these speech rights are not extensive, and there are many limitations for prisoners and inmates. But the fundamental right to file a grievance or complain about jail conditions is protected under the First Amendment. 

Here, plaintiff was transferred shortly after he filed the grievance. Normally, that would be enough to have a First Amendment claim, as we can assume the transfer was retaliatory since it took place soon after the speech act. But not for plaintiff. The Court of Appeals (Parker, Lohier and Nathan) finds that the prison was working on plaintiff's transfer months before he filed the grievance. That knocks out the causation element of his claim.

The causation problem in plaintiff's case is a common one. Many non-prisoner cases also allege retaliation, where the plaintiff engaged in protected activity (i.e., complaining about employment discrimination) and the defendant then subjected the plaintiff to an adverse action (i.e., demotion, termination, etc.). The employer in these cases will always try to show that the protected activity had nothing to do with the negative personnel action, and one way to show that is through evidence that the adverse decision would have taken place even without the protected activity. And the best way to do that is by showing that the termination, demotion, transfer, etc., was already in the planning stages prior to the protected activity.

Inmate wins one claim, loses another, on appeal

This case involves an inmate who was placed in administrative segregation after he was brutally attacked by other inmates. He remained in the special housing unit for quite some time, and he claims jail officials did not properly review the appropriateness of this assignment in violation of the due process clause. What complicates matters was that plaintiff was originally incarcerated in Connecticut but was transferred to Virginia. Plaintiff says that Connecticut failed to conduct this review while he was in Virginia's custody.

The case is Baltas v. Maiga, issued on October 11. As the Court of Appeals (Parker, Lohier and Nathan) notes, "Baltas was never confined in a Connecticut prison during the time that he alleges that [Connecticut prison officials] failed to review his Connecticut [Administrative Segregation] classification. In a due process case like this, the court determines whether the state afforded plaintiff a fair procedure, bearing in mind that prison officials have some flexibility in how they run their affairs.

The record shows that Connecticut conducted four regular classification reviews of plaintiff's status when he was in Virginia, analyzing such relevant factors as plaintiff's history as an inmate, severity or violence of his offense, etc. Connecticut's classification reviews satisfy minimal due process standards, the Court holds, as the reviews considered his potential for violence, etc., and accounted for any new information about plaintiff in determining whether to adjust his "risk scores." The due process claim fails.

But plaintiff's other claim succeeds on appeal. He argues that he endured bad jail conditions by Virginia prison officials. While plaintiff did not fully comply with the grievance process, a necessary step prior to any lawsuit, he claims that jail officials threatened him out of exhausting all his administrative remedies. If the trial court believes plaintiff's sworn testimony, it may find that he was dissuaded from fully complying with the grievance process because of these threats. In finding otherwise, the district court granted summary judgment in violation of the principle that trial courts "should not engage in searching, skeptical analyses of parties' testimony in opposition to summary judgment." The cite for that is Rivera v. Genesee Reg'l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014). As plaintiff's sworn account of these threats is enough to identify a disputed factual issue about possible dissuasion, summary judgment was improper on the issue of whether the Virginia grievance process was available to plaintiff.

State may sue upstate NY school district over widespread gender-based harassment and violence

The Court of Appeals holds that the State of New York may sue an upstate New York school district over its alleged failure to protect students from sexual harassment and assault. This ruling clarifies the state's authority to bring a case like this, holding that the state is not required to prove a "policy or practice" of discriminating against student victims of gender-based violence and harassment.

The case is State of New York v. Niagara Wheatfield Central School District, issued on October 15. The state has authority to sue municipalities over civil rights violations if it can show the lawsuit promotes the state's interest in the health and well-being, both physical and economic, of its residents in general. Otherwise, in a case like this, the students or their parents must bring suit, not the state.

The decision summarizes the school district's failure to properly respond to four individual students' complaints of sexual assault, harassment and gender-based violence. The allegations are jarring, though the Court of Appeals (Sack, Cabranes and Merriam) notes that, at the pleading stage, these allegations have not yet been proven. Still, we assume the allegations are true for purposes of deciding whether the state has the legal authority to bring this case.

The main event here is that the trial court dismissed the case, holding that the state merely alleges four distinct incidents that did not reveal a generalized policy or practice by the district not to protect students from this kind of gender-based abuse. But, the Court of Appeals notes, there is no legal authority for such a narrow holding. What matters instead is that the state show sufficient injury to an identifiable group of individuals and indirect effects of that injury beyond that group. This is a much more lenient test than the one applied by the district court.

The state is able to litigate this case because the four victims of violence and harassment constitute an identifiable group of individuals harmed by the school district's inaction, and the state alleges that dozens of other students also had their similar complaints ignored by the district. The indirect effects of the district's inaction extends to the community at large and the student's parents, who believed the district would not protect their children. And, this inaction allowed the harassing behavior to spread from a handful of perpetrators to a significant number. We have ourselves a lawsuit, and discovery will take years to complete.

SDNY: online retailers are not covered under the Americans with Disabilities Act

An issue is brewing in the lower federal courts that will have to be resolved in the Second Circuit and then, eventually, in the Supreme Court. It has to do with the scope of the Americans with Disabilities Act and whether online retailers are covered under the statute, enacted in 1990 to prohibit discrimination in public accommodations.

The case is Mejia v. High Brew Coffee, Inc., 2024 WL 4350912, a Southern District ruling issued by Judge Swain on September 30. Plaintiff tried to buy coffee from defendant's website, but due to plaintiff's visual disability, she was unable to complete the transaction because the website's screen-reader was not working. Is this an ADA violation? 

The ADA does not define "place of public accommodation." But, as Judge Swain notes, "It provides that private entities are to be considered public accommodations if their operations affect commerce, and they fall within one of twelve enumerated categories, expressed in the statute as non-exclusive lists of different types of enterprises," including inns, hotels, restaurants, bars, movie theaters, bakeries, etc. But nothing about online retailers, which did not exist when the ADA was enacted 34 years ago. The court notes further that other Circuit Courts, including the Third, Sixth, Seventh, Ninth and Eleventh Circuits, have held that the ADA only covers brick-and-mortar stores and establishments, not virtual establishments. 

The Second Circuit has not yet resolved this issue, but some district courts in the Second Circuit have interpreted the statute to include standalone online retailers, consistent with cases from the First and Seventh Circuits. Judge Swain does not adopt the reasoning in these courts. Under Judge Swain's statutory analysis, the ADA does not cover a case like this. The analysis is complex. For now the plaintiff loses, but this case will be appealed, and due to the Circuit split, there is no doubt the Supreme Court will have to resolve this issue.

JOSE MEJIA, Plaintiff, v. HIGH BREW COFFEE INC., Defendant., No. 1:22-CV-03667-LTS, 2024 WL 4350912, at *2 (S.D.N.Y. Sept. 30, 2024)

it provides that private entities are to be considered public accommodations if their operations affect commerce, and they fall within one of twelve enumerated categories, expressed in the statute as non-exclusive lists of different types of enterprises.

JOSE MEJIA, Plaintiff, v. HIGH BREW COFFEE INC., Defendant., No. 1:22-CV-03667-LTS, 2024 WL 4350912, at *2 (S.D.N.Y. Sept. 30, 2024)

2d Circuit expands the scope of Title VI of the Civil Rights Act

In this case, the Second Circuit takes a close look at Title VI of the Civil Rights Act of 1964 and clarifies its scope and, in particular, when an employee can sue for retaliation under this statute, which prohibits racial discrimination by public schools.

The case is Bloomberg v. New York City Dept. of Educ., issued on Oct. 3. Plaintiff was a school principal in the New York City school system and complained about racially-segregated sports teams at her school. Shortly thereafter, the DOE investigated plaintiff for alleged misconduct: someone had accused her of trying to recruit students for a communist organization. The charges could not substantiated and were ultimately dropped. Plaintiff alleges the investigation was retaliatory.

Here are the issues:

1. Does Title VI allow for a private right of action? You would think this issue would have been squared away years ago, as Title VI discrimination lawsuits are commonplace. But the Second Circuit notes it has never conclusively held as such and that it has only assumed you can sue for discrimination under Title VI. The Court finally holds that Title VI authorizes such lawsuits. Other Circuit Courts have held the same. This means plaintiff can proceed with her lawsuit provided she survives the second issue.

2. Issue number two: can you sue under Title VI for retaliation? The statute prohibits discrimination but does not say you can sue for retaliation. But the Supreme Court and Second Circuit have held that retaliation is in fact discrimination, and that statutes that prohibit discrimination without referencing retaliation allow for such claims. The Fourth Circuit agrees with this analysis, though other Circuits have agreed in non-precedential summary rulings. 

3. The third issue is whether plaintiff's complaint about discrimination on the sports teams is actionable under Title VI. This statute, which conditions federal educational money on nondiscrimination in public education, says you cannot sue over racially-discriminatory employment practices unless "a primary objective of the federal financial assistance is to provide employment." No one in this case argues that a primary objective of the DOE's federal funds is to provide employment. The Court of Appeals holds that "a Title VI retaliation claim is an action 'with respect to an employment practice' only if the underlying protected activity concerns opposing unlawful employment discrimination." 

Plaintiff prevails on appeal with respect to the third issue. While the district court held that Bloomberg’s retaliation claim challenged an “employment practice” under Title VI because it arose from her employer’s investigation of her as an employee, the Second Circuit sees it differently:

We disagree that Bloomberg’s retaliation claim is an action “with respect to any employment practice” under Section 604. Bloomberg alleges retaliation for opposing race discrimination in the allocation of sports teams, not for opposing any employment practice. We therefore conclude that Bloomberg’s Title VI retaliation claim is not barred by Section 604.

Civil rights claim alleging discrimination against Asian-American high school students may proceed

 The Court of Appeals has reinstated a racial discrimination lawsuit filed by an Asian-American organization that challenges the admission policies of the specialized high schools in New York City. The plaintiff claims the policies discriminate against Asian-Americans. The Court of Appeals holds the plaintiff asserts enough allegations to allow this case to proceed to discovery.

The case is Chinese American Citizens Alliance of Greater New York v. Adams, issued on September 24. The specialized high schools in New York City are well-known, and admission to them can be the start of a productive academic and professional career. Plaintiff argues the admission policy for the Discovery Program at these high schools violates equal protection because they are intended to discriminate against Asian-Americans. As the Court of Appeals summarizes the case:

In June 2018, the New York City Department of Education (“DOE”) revised the admission policy at eight of its highly selective Specialized High Schools (“SHSs”), with the stated goal of creating a wider and more diverse pool of applicants for the SHSs.  In particular, the new policy made changes to the “Discovery Program”—a pre-existing path for admission to SHSs for high- performing, economically disadvantaged students who would not otherwise be admitted based solely on their scores on the standardized test for admission. The changes included:  (1) expanding of the number of SHS seats reserved for the Discovery Program from less than 5 percent to 20 percent of the overall SHS seats; and (2) adding a new admissions criterion for the Discovery Program, known as the “Economic Need Index” or “ENI,” that focused on the economic status of the student applicant’s community as a whole, rather than on an individual basis.

The Court of Appeals (Cabranes, Bianco and Reiss [D.J.]) states that there is no dispute that economically disadvantaged Asian-American students from certain middle schools would have been eligible for admission to the specialized high schools under the prior admissions program, but that they were ineligible under the new policy because their "Economic Needs Index" scores were too low. While the new policy is facially neutral, the parties dispute whether the City intended to discriminate against Asian-American student-candidates.While the district court held the disparate impact claim fails because plaintiffs have not alleged that the new policy negatively affects Asian-American students in the aggregate, that analysis was incorrect because the law actually holds that:

if the government enacts a law or policy with a proven discriminatory motive against a certain race (as we must assume here for purposes of this appeal given the bifurcation of discovery), a valid equal protection claim can be based on a showing that any individual has been negatively affected or harmed by that discriminatory law or policy based on race, even if there is no disparate impact to members of that racial class in the aggregate.

The Court of Appeals holds that the plaintiff-organization needs discovery to prove its claims. The case returns to the district court for that purpose.

Tight handcuff case will proceed to discovery

The first thing a civil defense lawyer does when their client is served with a lawsuit is to find a way to have the case dismissed prior to discovery. We call that a Rule 12 motion to dismiss. If that motion fails, since the federal system disallows appeals prior to final judgment, the parties proceed to depositions, document review, interrogatories, electronically-stored information, etc. Except that in Section 1983 cases, an unsuccessful motion to dismiss on qualified immunity grounds may be appealed immediately.

The case is Pal v. Canepari, a summary order issued on September 30. This is a police misconduct case in which plaintiff alleges the officer applied the handcuffs too tightly, causing physical pain. Such a tactic can constitute excessive force under the Fourth Amendment. The officer sought qualified immunity on the basis that he did not violate any clearly-established rights, as determined by prior Second Circuit or Supreme Court case law.

Defendant claims the law was not clearly-established in 2018, when the incident happened, and that the district court in denying qualified immunity relied on a Second Circuit case from 2019, Cugini v. City of New York, 941 F.3d 604 (2d Cir. 2019). Nice try, says the Court of Appeals  (Parker, Robinson and Oliver [D.J.]), but this argument will not cut it because Cugini recognized that, prior to 2019, it violated the Fourth Amendment to apply the cuffs too tightly when the plaintiff makes an explicit verbal complaint about the tightness. 

In Cugini, the events took place in 2014. The Second Circuit said in that case that "the consensus . . . among our sister circuits that unduly tight handcuffing can constitute excessive force in violation of the Fourth Amendment.” While Cugini said it was not clearly established in 2014 whether this general rule applies when the arrestee "exhibited only non-verbal aural and physical manifestations of her discomfort," the Court "expressly distinguished that scenario from the then-established caselaw that recognized an excessive force claim based on overly tight handcuffs in circumstances in which the individual made “an explicit verbal complaint.” In other words, Cugini clearly established for future cases that when the cuffs are too tight and the arrestee verbally complains about the pain, the officer has violated the Constitution. This is how the Court of Appeals wraps things up:

Accordingly, the law was clearly established at the time of the events at issue in this case that failing to loosen excessively tight handcuffs when an individual complains of pain can give rise to a Fourth Amendment excessive force claim. And for purposes of this appeal, in which we are required to accept the plaintiff’s version of the facts as true, we accept Pal’s assertions that the handcuffs were too tight and do not credit Officer Harris’s claim that he double-locked the handcuffs such that they could not tighten.

The case will now proceed to discovery and, unless the case settles or is dismissed on a later motion for summary judgment, the case will go to trial.

Disability discrimination case will proceed to trial

Employment discrimination cases are always winding through the state courts under the New York City Human Rights Law, which is more expansive than the federal anti-discrimination statute. The Appellate Division finds that Plaintiff has a case against her employer, Bloomberg, L.P., and that it will go to trial.

The case is Friedman v. Bloomberg, L.P., issued by the First Department on September 26. While plaintiff told management that her dyslexia made writing social media copy difficult for her and that she needed an accommodation for her disability, the jury may find that defendant considered such an accommodation, i.e., proving her with a proofreader or some other accommodation. A proofreader would not have caused an undue hardship for Bloomberg, L.P.

Plaintiff was also fired, and he brings a claim for wrongful discharge. That claim will also go to trial. She was fired only two days after requesting the accommodation. While defendant said plaintiff was fired for missing deadlines, being unresponsive, and using an inappropriate tone with colleagues, the issue of defendant's motive is for the jury. And, "Although there is evidence that defendant had already made the decision to terminate plaintiff when she submitted her written request, plaintiff's supervisor wrote that the decision was based in part on plaintiff's 'mandate around [her] responsibilities,' which a reasonable jury could interpret as referring to plaintiff's requests for an accommodation."

I am sure the defendant claimed the "mandate" statement had nothing to do with plaintiff's accommodation request. But it sounds close enough to an admission of unlawful motive that the First Department wants the jury to sort out its real meaning. This would constitute direct evidence of discriminatory intent, despite its possible vagueness. 

Civil rights appeal arising from 15-year criminal process is dismissed on technical grounds

This is a wild case. The police investigated a woman's disappearance and her husband was a key suspect, but for the longest time, they could not really find evidence linking to her disappearance and possible murder, so the investigation lasted several years before the husband was convicted of murder in part based on blood-spatter evidence. The husband was granted a second trial when evidence surfaced implicated someone else in the murder, but the husband was again found guilty. That conviction was later thrown out, and a third trial yielded a hung jury. At the fourth trial, the husband was acquitted. This whole process took 15 years.

The case is Harris v. Tioga County, a summary order issued on September 13. Harris is the husband. After a sequence of events like this one (four trials and an acquittal), you know there is going to be a lawsuit. 

This case generated much publicity, and there is a Wikipedia page about the wife's disappearance, which happened on September 11, 2001. Harris sued county officials for malicious prosecution and other constitutional violations. Following motion practice, a whole bunch of defendants were forced to stand trial in federal court on these charges. Those defendants take up this appeal, claiming entitlement to qualified and absolute immunity.

Public officials can invoke these immunities under judge-made doctrines intended to allow them to make decisions without fear of being sued by everyone unless they violate well-settled legal standards. If the trial judge denies the immunity motion, the defendant can take an early appeal to the Second Circuit, but only if they the appeal turns on an issue of law and not disputed facts.The Second Circuit adheres to this strict rule, which is why so many qualified immunity appeals are dismissed without any determination on the merits.

The appeal is dismissed because the Court of Appeals (Chin, Carney and Sullivan) is not ready to take up these immunity issues. There are too many factual disputes on the issues raised on appeal, which means the jury has to sort them out before the court can decide if, on the facts found by the jury, the defendants are still immune from liability.

Remember to object to a bad jury charge on the record before taking up an appeal

This claim went to trial in the Northern District of New York. The plaintiff-inmate claimed that a correction officer applied excessive force in violation of the Constitution, among other claims. The jury ruled for the CO, and the plaintiff appeals. The Court of Appeals (Walker, Newman and Lohier) declines to change the verdict, and the case is over.

The case is Ash v. Johnston, a summary order issued on September 16. It is quite difficult to appeal from an adverse jury verdict. The Court of Appeals will defer to the jury's credibility assessment, and let's face it, these cases usually turn on credibility disputes. The trial judge also has discretion in making evidentiary rulings that can make or break a case. But nobody likes to lose, and and some appeals are successful. Just not this one.

One way to appeal from a bad verdict is to challenge the jury charge. The trial judge has no discretion to mislead the jury about the legal standards. A three-week trial can be set aside on the basis of a faulty jury charge. 

Here is the issue: did the trial court properly charge the jury on the excessive force claim under the Eighth Amendment? The court told the jury that plaintiff had to prove the CO applied force "maliciously and sadistically for the very purpose of causing harm." That language is not found in the Eighth Amendment (which prohibits cruel and inhumane punishment) but the courts have come up with that language to help enforce the Eighth Amendment. Plaintiff says that was a bad instruction and therefore seeks a new trial. Plaintiff instead says the court had to only tell the jury that the CO acted in bad faith. That language could have yielded a victory for plaintiff at trial. But we have a problem: plaintiff did not object to the jury charge at trial. 

You have to object during the charge conference with the court or the Court of Appeals will deem the argument waived. The Second Circuit may still take up the waived issue if the jury charge was manifestly erroneous such that the trial was fundamentally altered and no timely objection is required. But that legal standard is very difficult to satisfy.

Moral of the story: make your objections at trial in a timely manner and put something on the record making it clear that you are giving the judge a chance to change her mind. If you do that, the Court of Appeals will entertain a post-verdict challenge to a bad jury charge.

No probable cause to detain motorist with lawful firearm in the car

In this case, the Fourth Amendment meets the Second Amendment. The Court of Appeals holds that a motorist who was searched by the police following a routine traffic stop can sue the police over the unlawful search, prompted by the officer's discovery during the stop that the driver had a legal firearm.

The case is Soukaneh v. Andrzejewski, issued on August 12, nearly two years after the Court of Appeals heard oral argument. The officer approached plaintiff's car, which was parked with the engine running as plaintiff tried to fix his GPS. The Court says this was a high-crime area in Connecticut. Plaintiff gave the officer his drivers license and his firearms permit and said he had a legal firearm in the car. The officer dragged plaintiff from the car, handcuffed and pat-searched him, threw him into the police vehicle, and searched the car. Plaintiff was eventually released.

The trial court denied the officers' qualified immunity motion, which brings this case to the Second Circuit  (Lynch, Lee and Robinson), which holds that the officer had subjected plaintiff to a de facto arrest in detaining him at the traffic stop but that the officer lacked probable cause to do so. We have a good discussion of when a Terry stop, requiring only reasonable suspicion, turns into to an arrest, which requires probable cause. 

The Court holds that the jury could find there was no probable cause because the presence of a lawful firearm in the car is not enough to detain someone for 30 minutes in handcuffs. Courts hold that you cannot assume reasonable suspicion solely on the basis of a lawful firearm in the car, and that logic extends to probable cause for arrest. 

What about qualified immunity? Many cases are dismissed on this basis when the plaintiff cannot find a precedent that resembles their case and therefore cannot show the officers violated clearly-established law. The lack of factually-similar precedent can entitle the defendant officer to qualified immunity. The Court of Appeals recognizes there is no case on all fours, but it states nonetheless that "the ubiquity of Fourth Amendment protections established in the plethora of traffic stop cases put [the officer] on notice of the protected rights at issue during the de facto arrest of [plaintiff] in the absence of probable cause." This is a broad qualified immunity holding in the plaintiff's favor, something we do not see very often.  

Court of Appeals clarifies the deadline for filing a notice of appeal

This case is enough to give any litigator a heart attack. The Court of Appeals examines whether the plaintiff blew a deadline to proceed with the appeal after he filed the notice of appeal following the trial court's resolution of a motion for reconsideration.

The case is Malek v. Feigenbaum, issued on September 11. After the district court dismissed the case, plaintiff filed a motion for reconsideration. Under the rules, a timely notice for reconsideration tolls the deadline to file a notice of appeal until the motion for reconsideration is denied. The motion is timely when the plaintiff officially files the motion on the docket through the ECF system. In Weitzner v. Cynosure, Inc., 802 F.3d 307 (2d Cir. 2015), the Court of Appeals said it is not enough to simply serve the motion for reconsideration and then file it on the docket at a later time. The reason this became an issue is that some judges want attorneys to initially serve, but not file, the reconsideration motion, which would be filed after the parties have completed their briefing on the motion. The reason for this process, I believe, is that some judges do not want the motion on the docket right away because placement on the docket triggers the six-month recommended time period for judges to resolve their motions. Serving and then filing later on will delay the start of the six-month deadline. We call that "bundling" the motion.

In this case, after the trial court dismissed the case, plaintiff's counsel served the motion for reconsideration but did not file it until later on, which made the notice of appeal from the denial of the reconsideration motion untimely, depriving the Court of Appeals of jurisdiction to hear the appeal. The judge's rules cautioned attorneys about the Weitzner holding and said they should file motions on the docket right away if the delayed filing might violate the deadline for a notice of appeal.

Plaintiff argued that the Court of Appeals Walker, Menashi and Choudhury, D.J.]) was in fact able to hear the appeal based on an "equitable tolling" argument: that the deadline should be extended for equitable reasons, i.e., fairness. Weitzner said that was one way around the timeliness argument. The problem is that the Federal Rules of Appellate Procedure were amended in 2016, and the Supreme Court issued Nutraceutical Corp. v. Lambert, 586 U.S. 188 (2019). The Supreme Court ruling said that deadlines such as the one in this case may be extended if the defendant fails to object to timeliness. But the Court did not say in that case that equitable tolling was another argument for plaintiffs to invoke in extending the deadline. The Supreme Court ruling deprives plaintiff of this argument, and the notice of appeal was therefore untimely.

As for the 2016 amendment to the Federal Rules of Appellate Procedure, the relevant provision reads:

If a party files in the district court any of the following motions under the Federal Rules of Civil Procedure—and does so within the time allowed by those rules—the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion

Plaintiff argues that this provision helps his cause because it delegates control over the service and filing of the motion to the district court. But the Second Circuit does not see it that way and, following careful review of the amended rule and the Advisory Committee notes, holds that the 2016 amendment does not abrogate Weitzner. The notice of appeal in this case remains untimely and the case is over.

2d Circuit adds new gloss to FMLA statute

The Court of Appeals has placed a new gloss on the Family and Medical Leave Act, holding for the first time that an employer violates the FMLA if it discourages employees from seeking family or medical leave. Despite that holding, the plaintiff loses the appeal on statute of limitations grounds.

The case is Kemp v. Regeneron Pharmaceuticals, Inc., issued on September 9. I briefed and argued the appeal. Plaintiff needed leave to care for her disabled daughter. Her supervisor voiced concern about the amount of time that plaintiff had been away on a prior medical leave and said plaintiff needed to be in the office more often and attend meetings in-person, not by phone. Defendant gave plaintiff one day off per week for medical leave even though other workers regularly worked from home. While defendant ultimately gave plaintiff intermittent FMLA leave, management suggested that plaintiff consider a less demanding position. Defendant developed a new senior management position for plaintiff in October 2016, and she accepted it in November 2016. Plaintiff ultimately resigned in December 2016.

The Court of Appeals (Lohier, Lee and Perez) affirms the grant of summary judgment to the employer, holding as follows:

1. "We hold that an employer can violate the FMLA merely by interfering with the employee’s benefits under the FMLA without actually denying the employee’s request for those benefits. We thus agree with the United States Department of Labor as amicus curiae in this case that 'an employee is not required to demonstrate an actual denial of benefits to establish a violation of section 2615(a)(1) and that interference or restraint alone, which includes discouragement, is enough to establish such a violation.'”

2. While the record suggests that defendant might have interfered with plaintiff's FMLA rights, since she filed this lawsuit more than two years after the incident happened (the general statute of limitations under FMLA), she has to show the interference was willful. If so, then plaintiff can take advantage of the three-year statute of limitations. While "[a]n employer acts willfully under the FMLA when it knows 'or show[s] reckless disregard for the matter of whether its conduct was prohibited by the' FMLA," and plaintiff argues that defendant recklessly disregarded its obligations by limiting her remote work so that she would need to ration her FMLA leave, the Court holds that "Regeneron appears on this record to have tried to comply with rather than flout its obligations under the FMLA." Plaintiff cannot show that defendant intended to fire her if she took FMLA leave, and the FMLA "does not entitle employees to work remotely or make it unlawful for an employer to punish an employee who works remotely. Remote work may be another form of accommodation, but it is not 'leave' within the meaning of the statute." Interesting that the Court of Appeals resolves a willfulness issue on the summary judgment record. I argued this determination is for the jury, but the Court of Appeals says otherwise. I see this happen as well when a court finds that a plaintiff was not entitled to punitive damages even if the plaintiff can prove discriminatory intent.

3. Plaintiff also sued under the New York Human Rights Law, which carries a three-year statute of limitation, over associational discrimination, based on plaintiff's association with her disabled daughter. While the parties dispute the evidence on this claim, the Court of Appeals instead focuses on the statute of limitations. Plaintiff received definite notice of the adverse action in July 2016, within the three year SOL, but she did not bring the lawsuit until November 2019, after the SOL expired. Plaintiff argued that the terms of the new assignment were not clear until later that year. The Court of Appeals says otherwise, that things were clear enough in July 2016, and that filing in November 2019 was too late.

The holding on FMLA discouragement is significant, as it adds a new wrinkle to the statute. This analysis does not help plaintiff, but it helps other employees who want to take FMLA leave but were discouraged from doing so.

2d Circuit makes it more difficult to sue over Labor Law wage notice violations

Under the New York Labor Law, management must issue their employees a wage notice that describes the rate of pay for regular and overtime hours, makes reference to health care benefits, and discusses tips and meals allowance. The Labor Law provides for damages up to $10,000 if the employer does not provide the wage notice. When can the plaintiff sue over the employer's failure to provide the wage notice?

The case is Guthrie v. Rainbow Fencing Inc., issued on August 30. The State Legislature adopted the wage notice requirement in 2010, and since that time, the district courts have grappled with the issue of when an employee can sue over the failure to provide these notices. The Court of Appeals definitively resolves that issue, making it difficult for employees to bring a lawsuit unless the can show the employer's dereliction caused the employee to suffer real damages.

The Second Circuit (Menashi, Nathan and Kahn) frames this as a standing case, governed by the constitutional requirement that each plaintiff must have an actual case-or-controversy. In 2022, the Second Circuit said, “a plaintiff has standing to bring a claim for monetary damages following a statutory violation only when he can show a current or past harm beyond the statutory violation itself.” 

Drawing from the body of district court case law on this issue, the Circuit notes that some trial judges hold that the statutory violation allows plaintiffs to sue because the Labor Law "provides not only an avenue for employees to recover wages owed them by their employer but also a means to empower them—namely, through the provision of written notices with respect to employers’ legal obligations—to advocate for themselves.”

That is all well and good, the Court of Appeals says, but it adopts the following rule: 

a plaintiff must show some causal connection between the lack of accurate notices and the downstream harm. The legislature may have intended to empower employees to advocate for themselves, but unless the plaintiff-employee can show that he or she would have undertaken such advocacy and plausibly would have avoided some actual harm or obtained some actual benefit if accurate notices had been provided, the plaintiff-employee has not established a concrete injury-in-fact sufficient to confer standing to seek statutory damages under § 195.

Inmate assault case cannot be litigated in court

In this case, the plaintiff-inmate alleges that, while in federal custody, the guards did not protect him from another inmate, who assaulted him. Plaintiff alleges that, when he arrived at this federal facility, he told authorities that he had been assaulted at other federal correctional facilities, and that several inmates had threatened to assault him because he was a convicted sex offender. The case is dismissed on appeal because there is no such claim available to plaintiff, at least not in court.

The case is Ballard v. Dutton, a summary order issued on September 4. Had all this happened in the state prison system, there would be a claim under state law, pursuant to Section 1983, which allows you to sue state and local officials for constitutional violations. But there is no federal counterpart to Section 1983 other than the Bivens claim, created by the Supreme Court in 1971 to permit damages claims if there is no other way for the civil rights victim to obtain any redress. Permissible Bivens claims are rare, and the Supreme Court and the federal courts routinely hold that any given Bivens claim must be dismissed. 

The trial court held that plaintiff could pursue this claim. The ruling was in error, the Second Circuit (Sack, Lohier and Kahn) holds.

The Supreme Court has expressly recognized only three contexts in which a Bivens remedy is available: unreasonable search and seizure by federal officials in violation of the Fourth Amendment, Bivens, 403 U.S. 388; gender-based employment discrimination by a United States Congressman in violation of the Fifth Amendment, Davis v. Passman, 442 U.S. 228 (1979); and federal prison officials’ deliberate indifference to an inmate’s serious medical needs in violation of the Eighth Amendment, Carlson v. Green, 446 U.S. 14 (1980).

Nor will courts recognize any Bivens claims that "present[] a new Bivens context." The Supreme Court will not permit such claims. A sobering summary of the law. In theory, someone could submit legislation to create a federal counterpart to Section 1983, but in this political climate, that bill would be moping around the Capitol like the bill in Schoolhouse Rock.

The Second Circuit reasons it this way: "While we are sympathetic to Ballard’s claim, we conclude that Congress is better equipped to create a damages remedy here. Ballard’s Eighth Amendment failure-to-protect claim is meaningfully different from the Eighth Amendment claim in Carlson and therefore 'presents a new Bivens context.'” 

What requires dismissal is that Congress had already provided a grievance process for inmates like plaintiff who can lodge their complaints with prison management. That process is found in the Prison Litigation Reform Act of 1995. "This grievance process, which did not exist at the time Carlson was decided, is the type of 'alternative remedial structure[]' that prevents us from fashioning a Bivens cause of action here." The PLRA does not provide remedies that you might obtain in federal court, but that is no basis to rule in favor of a Bivens plaintiff. Nor may the grievance process under the PLRA secure plaintiff any relief. Since it may win the plaintiff some relief in theory, that is enough to dismiss this case.

 

 

 

New defamation trial for Sarah Palin against the New York Times

After identifying  a series of trial errors, the Court of Appeals has ordered that former Vice Presidential candidate Sarah Palin is entitled to a new trial on her defamation claim against the New York Times, which ran an editorial in 2017 that linked Palin to a mass shooting that took place in 2011.

The case is Palin v. New York Times, issued on August 29. After a gunman shot four people, including a Congressman, at a congressional baseball game practice in 2017, the Times published an editorial that said there was a "clear" and "direct" "link" between a Palin campaign advertisement in March 2010 and a separate shooting that took place in 2011, seriously injuring Congresswoman Gabby Giffords.That advertisement highlighted contested congressional districts, including Giffords', with graphics that looked like shotgun cross-hairs. Since there is no evidence that the Giffords shooter, Jared Loughner, pulled the trigger based on the cross-hair advertisements, Palin sued the New York Times and the editorial writer, James Bennet. 

The case went to trial before Judge Rakoff in in 2020, and the jury entered a verdict in favor of the New York Times. There will be a retrial based on the following trial errors:

1. The trial court granted the NYT and Bennet judgment as a matter of law in finding Palin cannot prove malice. Although Palin, as a public figure, must show the editorial constituted malicious defamation, the jury may find that Bennet's testimony that he did not think the cross-hairs map caused Loughner to shoot anyone in 2011. In holding otherwise, the district court held that Bennet's testimony in Palin's favor was inconsistent with his overall contrary testimony, but that call is for the jury, not the trial court.

2. While internal NYT discussions about Bennet's editorial, as he was drafting it, hyperlinked to ABC News articles that said Loughner was not motivated to fire his gun based on the cross-hairs map, in granting the NYT relief under Rule 50, the trial court credited Bennet's testimony that he did not read the ABC News articles. That was wrong, the Court of Appeals says, because circumstantial evidence permits a contrary inference, in part because the fact-checking process would compel the editorial writer to click through the link to read the article.

3. The trial judge also granted the NYT judgment as a matter of law in discounting the importance of prior NYT articles that said the Loughner shooting had nothing to do with the cross-hair map. The Second Circuit holds the prior articles could be read to cast doubt on any link between Loighner and the cross-hairs map.

There are other trial court errors that informed the Rule 50 order granting the NYT judgment as a matter of law relating to how the court viewed the evidence. You get the picture, though. The Second Circuit (Walker, Raggi and Sullivan) reminds us that jurors, and not the trial court, interpret the evidence and that granting Rule 50 relief during trial poses the risk of an appellate reversal if the Court of Appeals thinks the trial court took the case out of the jury's hands, risking a second trial. This case has some good language for litigators who are fighting off Rule 50 motions in federal court, about the need to respect the jury's view of the evidence and to draw all inferences in favor of the plaintiff when Rule 50 motions are on the table. The Court of Appeals also identified problems with the jury charges that compelled a new trial, as well.

The Court of Appeals wraps up with the most interesting issue on appeal, at least from my perspective. As the jury was deliberating, the trial court heard oral argument from counsel on the NYT's motion for judgment as a matter of law. The court granted the Rule 50 motion but decided to allow the jury to issue a verdict anyway. The court did not tell the jury that the court had already dismissed the case, but the media was present when the Rule 50 order was issued in open court, and their news articles on this went online and, through "push notifications," in which news turns up on your cell phone automatically, the jury learned during deliberations that the judge had already dismissed the case. The jury nonetheless entered a verdict for the NYT and told the court that the push notifications had no bearing on their verdict.

The Court of Appeals holds that the verdict may not be reliable since the court publicly announced its view of the case (dismissing the case entirely) as the jury was deliberating. This was not deliberate on the trial court's part, but it still casts doubt on the verdict, as the jury is not supposed to know what the trial judge thinks about the case. 

Most trial judges reserve judgment on the Rule 50 motion until after the jury renders its verdict, on the theory that if the jury rejects the plaintiff's case, then it does not matter if the defendant is entitled to judgment as a matter of law. Other judges are more decisive and will grant Rule 50 relief then and there if they really believe the defendant is entitled to that relief. The problem here was the trial court's decisiveness combined with the modern technology that found its way into the jury room and allowed the jury to know that the case was already dismissed as the jury was deliberating on whether the plaintiff had a case

District court mistakenly treated summary judgment motion as a Rule 12 motion to dismiss

The district court threw out this case under an unusual procedural twist. The plaintiffs alleged that the City of Troy was not maintaining its sidewalks in a manner that allowed disabled residents to maneuver the City in their wheelchairs. The parties litigated the case for several years and each side moved for summary judgment. The district court said plaintiffs could not proceed with the case because they lacked standing to sue. But the court did so under Rule 12, which guides motions to dismiss the complaint, not Rule 56, the summary judgment provision. 

The case is Lugo v. City of Troy, issued on August 27. No court has yet to determine if the City of Troy in fact violated federal disability law in failing to maintain the sidewalks for disabled residents. Instead, the parties got tangled in a standing argument: the City said plaintiffs were not in a position to bring this lawsuit their allegations were too conclusory to litigate the case. The district court agreed, and dismissed the case.

What makes the case unusual is that the district court rejected the case under Rule 12. As noted above, Rule 12 guides motions to dismiss, and Rule 12 motions are usually filed right after the plaintiff files the complaint, requiring the trial court to review the allegations to determine if the plaintiff has a case. Rule 56 motions are filed after the parties complete discovery and they have a full record, and the trial court has to decide if the plaintiff has enough evidence to win at trial. Sometimes, a trial court will convert a Rule 12 motion into a summary judgment if it looks like the court is able to consider materials outside the complaint in determining if the plaintiff has a case. But what happened here was the opposite: the trial court, despite having a summary judgment motion on the table, determined if the complaint stated a cause of action. That was wrong, the Court of Appeals says.

As two of our sister circuits have observed, the Federal Rules of Civil Procedure “offer no support” for the sort of reverse Rule 12(d) conversion that the district court undertook here. There are good reasons for this. When a district court resolves a summary-judgment motion as a pleadings motion, it “disregard[s] the more robust procedural device the parties have invoked to frame the issue” and thus “unjustifiably ignores the fuller evidentiary record assembled by the parties.” Id. And in practice, a reverse Rule 12(d) conversion “will rarely (if ever) help to ‘secure the just, speedy, and inexpensive determination’ of the action.”

The case returns to the district court to resolve the summary judgment motion and to forget about the motion to dismiss under Rule 12.

 

$75,000 in attorneys' fees for $1 in damages may be too much

This is the kind of case that drives plaintiffs nuts. The plaintiff in this case won his trial, and the trial court awarded $75,000 in attorneys' fees, determining that plaintiff was the prevailing party in a civil rights case. The case returns to the district court to reconsider the fee award. Defendants will almost certainly argue that plaintiff should get nothing in attorneys' fees.

The case is Knights v. City University of New York, a summary order issued on August 23. The jury said plaintiff was entitled to a name-clearing hearing following CUNY's allegedly defamatory comments about his professionalism. This "stigma-plus" claim under the due process is an obscure claim under Section 1983. Cases like this may not yield much in the way of damages, but the civil rights laws allow the prevailing party to recover their attorneys' fees; that provision attracts good lawyers to litigate these cases even if the damages are not large.

But there is an exception to the attorneys' fees statute, as determined by the Supreme Court in Farrar v. Hobby (1992), which said that nominal damages may not entitle the plaintiff to a fully attorneys' fees award, and might only yield no attorneys' fees at all. This is what I meant when I said this case can drive plaintiffs nuts. The Court of Appeals vacates the attorneys' fees award and directs the trial court to start over. The Court of Appeals (Bianco, Perez, and Merriam) says:

Although the District Court provided a detailed recitation of the history of the litigation, it ultimately offered no concrete basis for its determination that a fee award – particularly a substantial fee award – was warranted in this case in which Knights did not succeed on the vast majority of his claims, prevailing only on a single claim for nominal damages of $1 after demanding $45 million in his Complaint and over $4 million at the jury trial.

. . . 

We therefore remand for the District Court to reconsider its award of fees in light of the relevant standards and considerations and, if it again finds that an award of fees is appropriate, to articulate its basis for such a finding.

I have seen plaintiffs recover no fees at all after winning $1 in damages. I have also seen them recover a fraction of their attorneys' fees because they did not recover anything close to the amount of damages requested in their initial lawsuit. This is one reason why plaintiffs should not sue for a million dollars; the complaint does not have to articulate a requested damages award, and such a large number can come back to haunt the plaintiff's attorney when it comes time to move for attorneys' fees. I can assure the City of New York will argue that plaintiff in this case should recover no attorneys' fees at all, which will make the renewed district court fee motion an unpleasant experience for counsel.

 

 

Inmate wins retaliation appeal

This case involved a New York state inmate who claimed that correction officers beat the hell out of him in retaliation for filing a series of internal grievances about being manhandled and pat-frisked unnecessarily. One grievance contained language that threatened the officers if the mistreatment occurred again. Some officers then approached plaintiff in his cell to interview him about the grievances and undertook a pat frisk. According to plaintiff, this turned into an altercation in which plaintiff was punched without justification, they banged his head into a metal desk, and shoved an object into his rectum, stating, "this is what happens when you send letters up front threatening officers." The case went to trial and the jury found in plaintiff's favor on the retaliation claim but not the excessive force claim. The Court of Appeals sustains the verdict.

The case is Hundley v. Frunzi, a summary order issued on August 21. The case went to trial in the Western District of New York. The jury awarded plaintiff $20,000 for pain and suffering and $80,000 in punitive damages. The state argues the retaliation verdict is bad because it conflicts with the excessive force verdict. As the Court of Appeals puts it:

On appeal, Defendants challenge only the district court’s denial of their motion for a new trial on the retaliation claim. They argue that they are entitled to a new trial because the jury’s split verdicts on the excessive force and retaliation claims are “ineluctably inconsistent.” Specifically, Defendants assert that a jury finding that they did not use excessive force during the incident is equivalent to a finding that they acted in good faith in their use of force, and, therefore, that their actions during the incident could not have been retaliatory in nature.

The Second Circuit (Bianco, Perez and Nathan) says the verdicts were not inconsistent. There are two ways the jury could have threaded this needle. 

"First, the jury instructions did not limit the alleged 'adverse action' underlying Hundley’s retaliation claim to the alleged assault by Defendants that resulted in his broken rib, but rather included any conduct by Defendants during the December 20 incident with Hundley that met the applicable legal standard." This means that even if the use of force was not really excessive, the jury could have found that other aspects of the incident were retaliatory, such as the pat-frisk (which took place just prior to the use of force) that did not result in any injuries.

Second, the jury was able to find that the use of force was not malicious (which is why the jury did not enter a plaintiff's verdict on the excessive force claim) but was still retaliatory. "The jury could have found that defendants did use some degree of unnecessary force against Hundley during the cell visit to retaliate against him for filing a grievance, but did not intend to 'inflict injury' and did not commit 'a wrongful act with extreme or excessive cruelty,' and that Hundley’s rib was broken when the retaliatory plan unintentionally got out of control and Hundley fell to the ground. If the jury made those factual findings, it could have rationally concluded under the instructions that Defendants were liable for retaliation, but not excessive force."

This is as nuanced a holding as you can get. It tells us that the Court of Appeals strives to respect jury verdicts and will examine the evidence in a manner that attempts (reasonably) to reconcile competing verdicts.

New York City's racial justice protest curfew did not violate the Constitution

The Court of Appeals holds that the City of New York was legally able to impose a week-long nighttime curfew that curtailed the racial justice protests that followed the murder of George Floyd in 2020. This case highlights the complexities of constitutional law, as the plaintiffs framed their case under the constitutional right to travel, not the First Amendment.

The case is Jeffries v. City of New York, issued on August 16. The curfew lasted from June 1 through June 7, 2020. Floyd was murdered on May 25, 2020. It is not clear to me why the plaintiffs (on behalf of a proposed class) abandoned their First Amendment claim; it might be because the curfew affected everyone in the City, not just the protesters. What makes this case unique is not only the right to travel angle (few cases actually clarify the scope of this right) but that the district court dismissed the case under Rule 12(b)(6), prior to any discovery. Cases with complex balancing tests normally are not dismissed on the face of the complaint and have to await a full record following discovery, when the parties then move for summary judgment.

You probably did not know the Constitution protects the right to travel. But it does. The ruling provides a lengthy review of the right to travel, which appears nowhere in the Constitution, though such a right is implied and is therefore judge-made. This right covers both interstate (state to state) and intrastate (neighborhood to neighborhood or city to city) travel. The Second Circuit recognizes the right to intrastate travel, but it has not "sharply defined" the parameters of such a right, though it recognizes that a municipal curfew implicates the right to intrastate travel. The Second Circuit (Raggi, Lohier and Carney) sidesteps whether this case requires strict scrutiny or heightened scrutiny (the standards of review in many constitutional cases) but instead holds that even under strict scrutiny, the plaintiffs lose, and the case is over.

Plaintiffs lose because, first, the City had a compelling governmental interest in preventing crime and maintaining civil order. The Court takes judicial notice that the racial justice protests in 2020 were marred by violence and arson in New York City; though not everyone engaged in lawless behavior, it was widespread enough for the government to impose the night-time curfew. Once the government shows its restrictions were necessitated by a compelling interest, to win, it must then show the restrictions were narrowly tailored to meet that compelling interest. 

This balancing test is quite difficult for the government to satisfy, but it can do so here because (1) the City imposed the curfew only after contemplating alternative courses of action (such as traditional policing) following a "tumultuous and confrontational moment in the City's history"; (2) the scope of the curfew was narrow (night-time to early in the morning, when most law-abiding people are likely to be at home); and (3) there were exceptions for people who have to be out at night (police officers, firefighters, etc.).

2d Circuit gives the Fair Housing Act a ringing endorsement

The Court of Appeals has sustained a jury verdict in favor of a Fair Housing Act plaintiff, holding that the jury had an evidentiary basis to find that a town in Connecticut violated the Act in rejecting a group home for discriminatory reasons. In sustaining the verdict, the Court rejects the Town's efforts to scale back the scope of the FHA, enacted in 1968 to prohibits discriminatory housing and rental practices.

The case is Gilead Community Services v. Town of Cromwell, issued on August 12. The Town appears to have done all it could to reject the group home, which would have served people with mental disabilities. A community outcry greeted the proposal, and public officials made the approval process more difficult for the plaintiffs. To put it mildly, this case does not give us confidence about the people who run the Town of Cromwell. The jury certainly felt that way, awarding the plaintiffs $181,000 in compensatory damages and $5 million in punitive damages.

The Court of Appeals (Parker, Lynch and Nathan) resolves a number of issues:

1. While the Supreme Court has imposed a more defendant-friendly "but-for" causation test for other civil rights statutes, including Sections 1981 and 1983, the more plaintiff-friendly "motivating factor" test still governs the Fair Housing Act. The Court reasons:

by its plain text, Section 804(c) is violated even absent any discriminatory transactions or conduct. To be liable, a defendant must simply “make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on . . . handicap,” whether or not the defendant proceeds to carry out that discriminatory preference. Id. § 3604(c). The question under Section 804(c), as this Circuit has long held, is not what caused or motivated any conduct by a defendant but whether a defendant’s statement “suggests to an ordinary reader that a particular [protected status or identity] is preferred or dispreferred[.]”

Second Circuit cases have long applied the motivating factor test to FHA cases, and the Court of Appeals stands firm on that causation test. Defendants though they could exploit recent Supreme Court cases that applied the but-for causation test, but the Court of Appeals says those cases involved different statutes that employ different liability language. So long as retaliatory motive plays a part in the discriminatory action, the FHA plaintiff wins the case.

 2. The Town may be held vicariously liable under the FHA. While Section 1983 cases require the plaintiffs to prove the municipality had a custom or practice of discrimination in order to hold the municipality liable, that is not the case under the FHA. "It is clear and undisputed that the FHA generally allows for vicarious liability, and we reject Cromwell’s invitation to create a judicial carve-out from that liability for local governments when Congress itself has declined to do so." Section 1983 cases force the plaintiffs to meet a high standard for municipal liability. But the FHA is not Section 1983.

3. The Town argues that punitive damages are not available against municipalities under the FHA. While the FHA does provide for such damages, it does not expressly state that you can recover them against municipalities. The Town argues, therefore, that the principle under Section 1983 against slapping municipalities with punitive damages should apply under the FHA. The Court of Appeals once again rejects the Town's creative arguments to scale back the FHA.

4. The jury exceeded its authority in awarding $5 million in punitive damages against the Town. First, there was evidence of reprehensible conduct by Town officials, and this set of facts favors plaintiff:

there was ample evidence of highly reprehensible conduct by the town of Cromwell. The town engaged in a deliberate and sustained campaign of discrimination and retaliation, reflecting “repeated actions” rather than “an isolated incident” and resulting from “intentional malice” rather than “mere accident.” The town also “evinced an indifference to or reckless disregard of the health or safety of others,” when its police officers leaked sensitive medical information about a Gilead resident to the public and failed to investigate an episode of vandalism of Gilead’s group home. And the ultimate targets of the town’s conduct, the residents with disabilities who relied on Gilead’s housing, “had financial vulnerability.” Finally, it bears remembering that Cromwell officials not only violated the FHA but also publicly celebrated when their discriminatory efforts succeeded in keeping Gilead’s residents out of town. This is a case where “further sanctions” beyond compensatory damages are warranted “to achieve punishment [and] deterrence.”

But to sustain a high punitive damages award, they must also be proportional to the compensatory damages. The Supreme Court requires such proportionality. Here, we have a 27.6 to 1 ratio. The Supreme Court "has cautioned that 'few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.'” This ratio is too high, and the Court of Appeals reduces the punitives to $2 million, still a healthy deterrent against illegal and discriminatory behavior. The Court says:

The high degree of reprehensibility of Cromwell’s conduct supports a significant award of punitive damages. And the fact that Cromwell’s discrimination inflicted non-economic harms that may not be easily quantifiable likewise suggests that even a relatively high ratio of punitive to compensatory damages can survive constitutional scrutiny in this case. But the 27.6 to 1 ratio here is simply too high, as confirmed by the much lower civil penalties available for comparable conduct. 

We conclude that the jury’s award of punitive damages is unconstitutionally excessive and that the maximum sustainable amount of punitive damages is $2 million.