Inmate wins religious discrimination appeal

The Court of Appeals had reinstated a lawsuit filed by an inmate who asserts the state prison violated the First Amendment in denying him a religious meal. The trial court granted summary judgment on this claim in favor of the State, but the Court of Appeals brings the case back, and unless the case settles, it looks like this case will proceed to trial.

The case is Brandon v. Royce, issued on May 15. Plaintiff is incarcerated at Sing Sing Correctional Facility. He celebrates an Islamic holiday called Eid al-Adha, a four-day religious celebration. The prison set up a full-day event to celebrate the holiday, which included a prayer service, a shared religious meal, fellowship activities, etc. Under the plan, inmates in keeplock would also receive a meal and in the Hospital. A second event, two days later, involved serving a religious meal to inmates in the mess hall. The second event gives rise to this case. According to plaintiff, the second event was overbooked, and the Imam assured the inmates who voluntarily withdrew from the second event to make room for other inmates. Those selfless inmates would then receive the religious meals in their cells. Plaintiff was supposed to be one of the latter inmates, as he did not attend the second event and expected a religious meal in his cell. But no meal was forthcoming. Hence, this religious discrimination lawsuit brought under the First Amendment.

Defendants argued in response that the second event was not really a religious event but a family event open to Muslim inmates and their guests, and they deny approving the Imam's offer to have meal trays sent to the inmates' cells in exchange for them withdrawing from the second event. But the Court of Appeals (Calabresi, Nathan and Nagala [D.J.]) holds that, under the summary judgment rules, we have to credit plaintiff's account and then determine whether his version of events gives rise to a claim. 

Defendants' legal argument is rejected on appeal. While the jury may find that the whole thing was an "unfortunate misunderstanding" between the Imam and plaintiff, and that there really was no official arrangement for inmates to have the meals in their cells, that is for the jury to decide. Nor do penological, or safety concerns, allow the State to win the case. Prison cases are difficult to win because the State can always argue that the rights restriction drew from safety concerns. Courts do not like to second-guess these safety concerns, but that does not mean the prison always wins. The State argued that it worried that inmates might hide food in their cells, creating theft or hygienic risks. But that defense rings hollow, since the prior religious event, also involving food, allowed inmates that eat in their cells. That kind of inconsistency can lose the case for the State. But this is all for the jury if the case proceeds to trial.

No compensatory damages under Title II of the Americans with Disabilities Act

The Court of Appeals in this case considers whether a former college student may recover damages for an Americans with Disabilities Act violation against a public college that issued no-contact orders against him following a situation that happened during freshman orientation. Plaintiff is not entitled to damages.

The case is Doherty v. Bice, issued on May 10. During freshman orientation at SUNY Purchase, plaintiff got into a dispute with someone else in the dormitory, which led to a no-contact order: plaintiff was to stay away from three students in particular. Plaintiff claims the no-contact orders constituted discrimination because of his disability. Plaintiff loses the case.

First, his challenge to the no-contact order is moot. He wanted a declaratory judgment and injunction against the order, but now that plaintiff has graduated, there is nothing to litigate on this issue. An injunction would be pointless. The college said the order is no longer in effect, and that is enough for the Court of Appeals (Sullivan, Lee and Carney) to find that this issue is moot. I guess one way around this might have been to seek an injunction at the outset of the case, when plaintiff was still a student. The Second Circuit ruling is silent as to this and my guess is there was no such application.

What about compensatory damages flowing from the no-contact order? Plaintiff says the campus found out about the order, causing him mental anguish. Here is where things get tricky. Normally, you might recover damages for this if the court determines the order violated the ADA. But not all civil rights violations will get you damages. In Cummings v. Premier Rehab Keller, 596 U.S. 212 (2022), the Supreme Court said that certain civil rights statutes, like Title IX, do not provide for compensatory damages because they were enacted pursuant to the Constitution's Spending Clause. Certain statutes, like Title VI, Title XI, the Rehabilitation Act, and the Affordable Care Act, the Supreme Court said, are silent as to such damages, and the only way we can infer that they provide for such damages is if the funding recipient is on notice that it may be on the hook for compensatory damages if it accepts federal funding and it exposes itself to liability. There is no such notice under these statutes, the Cummings Court said. This is a complex area of constitutional law, to be sure.

The reasoning in Cummings, the Court of Appeals holds, applies to this action under the ADA. While the ADA is not Spending Clause legislation, Title II of the ADA, under which plaintiff brings this action, expressly links the remedies, procedures, and rights provided by Title II to the remedies under the Rehabilitation Act. Under the ADA, then, damages are similar to those available under the Rehabilitation Act, which also prohibits disability discrimination in certain contexts. Since the Rehabilitation Act is Spending Clause legislation, no damages are available under that law. That limitation on damages applies to cases brought under Title II of the ADA. What it means for plaintiff -- and other ADA plaintiffs who are suing under Title II, which prohibits discrimination in the provision of public services and governmental activities. 

When plaintiff brought this action in 2018, no one had the benefit of the Supreme Court's ruling in Cummings, so no one anticipated this holding. On appeal, plaintiff tries to get around Cummings by arguing that he is really suing for breach of contract. But that is not asserted in the complaint. He further argues that he is entitled to nominal damages, but the complaint does not expressly seek such relief. While plaintiff argues in his reply brief that he is not required to assert nominal damages in the complaint, since that argument was raised for the first time in the reply brief, the Court of Appeals deems that argument forfeited.

Important rule for the filing of notices of appeal in federal court

The rules of appellate procedure may not be exciting, but they are important. You have to follow them. Not following them can have important consequences. Consider this case.

The case is Hampton v. McDonough, a summary order issued on May 7. Plaintiff sued the Department of Veterans Affairs for employment discrimination. The jury ruled against him and entered a verdict for the Department. Judgment entered on February 2, 2023. Plaintiff then did two things. First, he timely filed a post-trial motion on February 27, 2023. Then, on March 7, 2023, he pro se filed a notice of appeal from the judgment entered on February 2. The district court ruled on -- and rejected plaintiff's post-trial motion -- on April 28, 2023. But plaintiff never filed a notice of appeal from the April 28, 2023 order. 

Without a notice of appeal from the April 28, 2023 order, what issues are legitimately before the Court of Appeals? Was it enough for plaintiff to file a notice of appeal on March 7, 2023? Does that filing give the Second Circuit jurisdiction to rule upon the trial court's April 28, 2023 decision denying the post-trial motions? The issue is crystalized by this fact: plaintiff only wants to appeal from the April 28, 2023 order, not the verdict itself, which the only notice of appeal in this case makes reference to.

The Court of Appeals has no jurisdiction to resolve this appeal because plaintiff did not file a notice of appeal from the April 28, 2023 ruling. Under the Federal Rules of Appellate Procedure, plaintiff had to file another notice of of appeal -- or an amended notice of appeal -- after the trial court issued the April 28, 2023 decision. That's Fed. R. App. P 4(a)(4)(A), if you care enough to look it up, but you probably won't.

Plaintiff seeks equitable relief in asking the Court of Appeals (Jacobs, Menashi and Nardini) to resolve the appeal anyway, in part because he was pro se during the initial stage of the appellate process. But, the Second Circuit says, there are no equitable reasons here. The Court writes:

Although Hampton was pro se when he filed his March 7 notice of appeal of the February 2 judgment, he had retained appellate counsel as of May 6. His counsel had until late June 2023 (60 days after the entry of the April 28 order denying his post-trial motions, see Fed. R. App. P. 4(a)(1)(B)) either to file a new notice of appeal of the April 28 order or to amend his existing notice of appeal. But Hampton’s appellate counsel did neither, and counsel’s failure to comply with the Rules cannot be attributed to, or excused by, Hampton’s earlier pro se status.

This is unpleasant to read. The Court of Appeals is saying that plaintiff's appellate lawyer failed to file the notice of appeal from the April 28, 2023 order. No lawyer wants to read something like this, be it the lawyer who failed to make the proper filing, or the lawyers who are reading the decision. The moral of the story is: when in doubt, file an amended notice of appeal. It will not cost you anything if the first notice of appeal has already been validly filed.

Grainy video and eyewitness testimony gets criminal defendant a new trial

 Eyewitness testimony. Do you trust it? In recent years, the courts have looked more carefully at eyewitness accounts, noting that such accounts are often unreliable. In this case, the New York Court of Appeals chips away a little further on eyewitness testimony and holds that the criminal conviction needs to be vacated.

The case is People v. Mosley, issued on April 23. Here is what happened: police cameras in Syracuse captured a grainy video of a man running through the street firing three shots into a van. No one saw the shooter. But again, it was hard to know who was captured on the video. So the police looked around for people who could identify the guy in the video. They found Detective Kilburn, who said Mosely was the guy in the video. Kilburn testified that knew Mosley and had sat in a room with him in the past (maybe in relation to other cases). 

Kilburn accordingly told the jury that he met Mosley about seven months after the video was captured during his routine “canvassing” of the Syracuse neighborhood where the shooting occurred, had known him for about a year and a half, and that he had “interacted” with Mosley, “walked” with him, and spoken with him on a “couple” of occasions. He testified that he was familiar with Mosley’s “body language,” “body type,” and “build.” He then viewed the video and identified the shooter as Mosley. He explained that though he did not know Mosley at the time of the shooting and did not know what Mosley had been wearing that day, he based his identification on his interactions with Mosley, his “build,” the “shape of his nose,” and “on previously viewing the video and being able to zoom in and stuff.” Though he referenced Mosley’s nose, he conceded when shown screenshots of the video “the face is a blur” and there was no nose apparent at all. Kilburn also opined that Mosley’s appearance had not changed, and that Mosley “as he sits there now is the same as when I first encountered him, which is the same as he appears in that video.”

This testimony was not admissible, the Court of Appeals holds under a "totality of the circumstances" test, as (1) "the People did not establish that Kilburn was sufficiently familiar with Mosley to render his identification helpful to the jury"; and (2) "Kilburn did not connect any distinctive traits of Mosley’s to the person depicted in the surveillance photo. Before the jury, Kilburn stated that he was familiar with Mosley’s 'build,' 'body language,' 'body type,' and the 'shape of his nose.'" Admitting this testimony was not harmless error, as it probably convinced the jury that Moseley was the man in the video. The case will have to be tried again. Whether the prosecution has enough evidence without Kilburn's testimony is not clear.
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Exam proctor can be fired for reporting Regents exam shenanigans

The plaintiff was a New York City exam grader and proctor who reported to the New York City Special Commissioner of Investigation that a high school principal tried to enlist plaintiff in a scheme to alter a student's Regent's exam. Plaintiff said no to this and reported the principal. Plaintiff brings this action, claiming he was terminated in retaliation for his whistleblowing. What result?

The case is Severin v. New York City Dept. of Educ., a summary order issued on May 1. Morally, plaintiff is in the right. You want whistleblowers like this working for the city. He was probably shocked to know that his case was dismissed because his whistleblowing does not count as First Amendment speech. Sure, it is speech. But it is not free speech under the First Amendment.

The reason for this is that the Supreme Court has held that public employees are not protected if they engage in work speech, only citizen speech. Work speech is pursuant to your job duties. Citizen speech is what the rest of us do. Employees can engage in citizen speech, but it must be unrelated to their job duties, for the most part. The Supreme Court said this in Garcetti v. Ceballos (2006). In 2010, the Second Circuit said it's work speech if the statements are "part and parcel" of the plaintiff's "concerns about his ability to properly execute his duties. That framework takes a lot of speech out of the First Amendment's protection, and ever since Garcetti, free speech retaliation cases by public employees have been dismissed with regularity.

Plaintiff's case fails because reporting testing irregularities, even fraud, are part and parcel of his capacity to perform his work. He was an exam grader and test proctor, after all. While his written job duties did not compel him to report this misconduct, that does not matter. Courts look beyond the job description in ruling on cases like this. Nor does it matter that plaintiff was not overseeing the specific exam at issue in this case, the Court of Appeals (Livingston, Calabresi and Perez) says, "because the proper administration of a system-wide exam, such as the Regents exam, requires the vigilance of those responsible for the exam throughout the system."