A major loophole in constitutional law leaves this plaintiff without a remedy

This case exposes a major loophole in constitutional law. That loophole means that the plaintiff, who accuses federal agents of false arrest, malicious prosecution, and the fabrication of evidence, cannot maintain her lawsuit, and it was dismissed prior to trial.

The case is Sigalovskaya, v. Braden, issued on August 27. Plaintiff alleges that federal agents working for Department of Homeland Security conducted a warrantless entry and searched her home and falsely claimed she confessed to taking pornographic photos of her child. This resulted in plaintiff's arrest and the temporary loss of guardianship of her two children, as well as placement on the sex offender registry. If the allegations are true, this is a terrible thing. However, this is a Bivens action, not a case brought under Section 1983, which permits such lawsuits against state and local police. Since there is no federal counterpart to Section 1983, she pled this case under Bivens, a Supreme Court ruling from 1971 that said the Constitution provides for claims against federal officials who violate constitutional rights, but only in limited circumstances. On the eve of trial, after the Supreme Court issued Egbert v. Boule, 596 U.S. 482 (2022), which further scaled back the Bivens remedy, the district court dismissed the case in its entirety. The Court of Appeals affirms in an unsigned ruling that has three separate opinions.

The Supreme Court has allowed few claims under Bivens -- those involving search and seizure, due process , and employment discrimination. In nearly a dozen other cases, the Supreme Court has turned away other Bivens claims, holding that plaintiffs must satisfy a significant hurdle: if the case is meaningfully different from the claims already permitted under Supreme Court jurisprudence, then the court considers whether "special factors" indicate that the judiciary is less equipped than Congress to provide a remedy for the injured party. In other words, if the Court thinks Congress is better suited to deal with this, then there is no Bivens remedy. 

The problem for plaintiff is that while search and seizure claims are permitted under Bivens, this case involves a fabrication of evidence claim, the primary focus of this lawsuit. Judge Perez says this in her concurrence. Other Circuit courts have already held that fabrication claims are not permissible under Bivens, making this a "new context case." In a new context case, we ask whether there are any other avenues for relief beyond a lawsuit. Judge Lee notes there is an internal, administrative remedy available for violations like this, though that avenue for relief will not be the same as a lawsuit. That is enough to bring this case out of Bivens for good. Judge Perez also writes a concurrence, noting also that the Department of Homeland Security has a mechanism in place to handle grievances like this. Again, that will never be comparable to a full-blown lawsuit, but the Supreme Court says that is enough under Bivens to remove this case from the limited Bivens universe.

Judge Lynch dissents in part, agreeing that the malicious prosecution claim is barred under the Supreme Court's Bivens case law but also stating that Bivens allows plaintiff to sue for false arrest. He goes on to summarize the quandary created by the Supreme Court on Bivens, noting that four Justices have recognized that the Bivens "charade is untenable" in that some claims are permitted and others are not based on an incomprehensible legal standard. Judge Lynch states that the lower federal courts are doing the best they can on this issue in trying to comply with Supreme Court rules even though the Court "has not offered a coherent, intellectually honest basis for reflexively distinguishing case that are 'materially distinguishable' from Bivens itself." These are strong words.

The limited remedy under Bivens is one of the great loopholes in the American legal system. Section 1983 permits a plethora of civil rights lawsuits against state and local officials, but there is no federal counterpart to Section 1983, which is why the Supreme Court created Bivens in the first place. It would be easy for Congress to remedy this omission, but that will not happen in this political climate, and Congress has had 54 years to fix this. It has not. When you consider how the President is threatening to bring federal troops into American cities, any civil rights violations flowing from that maneuver may not have any court remedies under the line of cases that have narrowed the Bivens doctrine.

EEOC may continue investigating the charge after the plaintiff files a Title VII lawsuit

The Second Circuit holds that the Equal Employment Opportunity Commission has authority to continue investigating discrimination claims even after the agency issues a right-to-sue letter and the complainant becomes a plaintiff in court. 

The case is EEOC v. AAM Holding Corp., issued on August 25. The EEOC was created when Congress enacted the Civil Rights Act of 1964. The agency investigates employment discrimination claims, and a key provision under Title VII is that you cannot bring a Title VII claim in court without first filing a charge of discrimination with the EEOC, which will investigate and try to mediate the dispute but will ultimately close out the file when the plaintiff decides that court is a better option than an overworked federal agency that may or may not conduct a thorough investigation.

Sometimes the EEOC decides the case is worth investigating even after the plaintiff abandons the agency process and dives into court. What happens now? This case explores what the EEOC can do after it issues the right-to-sue letter.

The case involves dancers at adult entertainment clubs who allege widespread sexual harassment and a hostile work environment. They filed an EEOC charge to that effect. The EEOC then began investigating by issuing subpoenas to the clubs seeking employee pedigree information. Over the employers' objections, a federal court ruled the subpoenas were proper and sought relevant information. During this battle, the women got their right-to-sue letter and filed suit in federal court. The employers then argued that the subpoenas were moot because the plaintiffs were proceeding on their own. The Court of Appeals (Cabranes, Lohier and Sullivan) disagrees.

The Second Circuit reviews Title VII and the provisions that created the EEOC, holding that the agency's authority to investigate a discrimination charge does not expire when the plaintiff files her own lawsuit. The Fifth Circuit interprets Title VII that way, but the Second Circuit disagrees, creating a circuit split that the Supreme Court will have to untangle some day. For now, the law in the Second Circuit is that the right-to-sue letter does not terminate the EEOC's authority to continue the investigation. The Court reasons it this way:

The EEOC’s broad public interest and role in combating employment discrimination supports our view that its authority to investigate a charge extends beyond the issuance of a right-to-sue letter. A central component of the EEOC’s role is to pursue the public’s interest in enforcing employment discrimination laws even where that interest is distinct from, and may exceed, the private interest of the aggrieved charging party. Congress reinforced the agency’s mandate “to secure more effective enforcement of Title VII” by arming it with the tools necessary to do so: investigation, conciliation, mediation, civil enforcement, and intervention in charging parties’ civil actions.

Plaintiffs cannot sue the judge for denying them a gun license

Can you sue a state court judge under the civil rights laws because he denied you a firearms license? The plaintiffs in this case did so, but the Court of Appeals says the law does not provide for such lawsuits, and the case is dismissed.

The case is Kellogg v. Nichols, issued on August 18. We have two plaintiffs. Each had their gun license denied by Jonathan Nichols, a state court judge in Columbia County, just south of Albany. Judges have authority to grant or deny gun licenses under state law. The judge said one plaintiff cannot have a gun license because of his criminal arrest history and inadequate explanations for not disclosing that history in his application. The other plaintiff's criminal history also led the judge to believe he lacked the maturity to own a gun. Hence, this Section 1983 lawsuit against the judge under the Second and Fourth Amendments.

Ever since the Supreme Court gave life to the Second Amendment in 2008, we have seen an increase in gun rights litigation. Some of these cases succeed, as the Supreme Court is granting gun owners broad rights under the Constitution. But the law has held for years that you generally cannot sue judges for their judicial rulings.

The Court of Appeals (Raggi, Wesley and Lohier) holds the plaintiffs cannot sue the judge in his individual capacity because it is settled law that judges have immunity from lawsuits for decisions made in their judicial capacity. Acts arising from individual cases before the judge are deemed judicial in nature. Firearms licensing ruling fall into this equation. While the law is settled in this area, plaintiffs want the Second Circuit to overturn a key precedent on this issue, Libertarian Party of Erie County v. Cuomo, 970 F.3d 106 (2d Cir. 2020). But the Court of Appeals does not overturn its prior rulings without direction from the Supreme Court or an en banc sitting of the Second Circuit, where all the active judges convene for that purpose. That rarely happens, and for now, it has not happened here. A three-judge panel is not free to discard precedent so easily.

What about the lawsuit against the judge in his official capacity? In this branch of the lawsuit, plaintiffs want to enjoin enforcement of the state firearms licensing law and criminal statutes punishing gun possession for self defense, and they relatedly want a declaratory judgment that the judge violated the Second and Fourth Amendments. This portion of the ruling is more complicated than the individual capacity claim and explains why it took nearly a year for the court to issue a ruling. The Second Circuit holds there is no case because there is no live case or controversy under Article III of the U.S. Constitution. The holding is that "there is no live case or controversy between New York state court judges serving as firearms licensing officers and litigants challenging the State's licensing scheme." Since Judge Nichols acted as a judicial officer in denying the gun licenses here and the plaintiffs and Judge Nichols are not parties "having adverse legal interests with respect to the Plaintiffs' claims for declaratory and injunctive relief."

Standing and mootness takes center stage in this disability rights case against the State of New York

Suing under the disability discrimination laws, the disabled plaintiffs and a disability rights organization allege the New York State Department of Health waited too long to transfer disabled individuals from restrictive institutional facilities to community-based residential settings. The case was dismissed at the district court, but the Court of Appeals revives the claim for the individual plaintiffs but not the organization, which lacks standing to sue.

The case is AH v. New York State Dept. of Health, issued on August 13. First, the organizational claim. Disability Rights New York is a plaintiff, and they obviously have an interest in the outcome of this case. SRNY claims it has standing because it would stand in the shoes of individuals with disabilities. The Court of Appeals holds that this "novel theory of congressionally authorized representational standing." SRNY argues that when Congress passed the relevant statute, it granted DSNY the right to bring suit in its own name on behalf of disabled individuals. But the Second Circuit says this has no basis in Supreme Court precedent. The Second Circuit holds that Congress cannot erase the constitutional standing rules (under Article III) "by statutorily granting the right to sue to a plaintiff who would not otherwise have standing."

Standing may not be a sexy issue, but it is an important issue. Organizations have standing to sue in certain instances, and when they can do so, they bring resources and expertise to the table and can advocate for their constituents in a way that perhaps their constituents cannot. But, as noted above, the rules for this are strict, and DRNY cannot satisfy them in this case.

As for the individual plaintiffs, the district court held their claims were moot based on pre-motion letters that convinced the trial judge that the claims were no longer justiciable. The state's letter said the plaintiffs had been moved out of their facilities and there was nothing left to sue over. The Court of Appeals (Park, Lee and Perez, dissenting in part) reverses, holding that letter briefs on this issue are not enough when the mootness rules require that the parties be afforded more due process to make their case, usually through full briefing, which allows the parties to develop the record. While a letter brief might sometimes do the trick, that is a rare occurrence, only applicable when the issues were primarily legal and the lawsuit had substantial deficiencies. Not the case here. It is simply not obvious the issues in this case are moot. The case returns to the district court for full briefing on this issue.

Judge Perez dissents from the standing portion of the ruling, starting that the majority has misread Supreme Court precedent and applied the standing rules too rigidly in ruling against DRNY. Judge Perez writes:

the majority opinion assumes, without analysis, that Congress has no role to play in articulating the relationships that can support representational standing, that the courts alone are the supreme federal lawmakers in this area, and that a few discrete doctrinal categories exclusively occupy the field. This view rests on a surface-level reading of precedent and fails to grapple with the complex interplay between the legislative and judicial powers throughout the Supreme Court’s standing cases. In fact, as explained below, the statutes at issue here fit comfortably within Congress’s limited, but nonetheless meaningful, power to shape the standing inquiry within the boundaries set by Article III.

NFL arbitration agreement is invalid

Professional football coaches sued that National Football League for racial discrimination, but the NFL moved to compel arbitration because the plaintiffs signed an arbitration agreement. Normally, the courts uphold arbitration agreements on the basis that the parties signed a contract and and deal is a deal and, let's face it, federal courts like arbitration because that's one less case to worry about and the understanding is that JAMS and AAA have good "neutrals" who can do the case justice. But there are exceptions, and this case highlights one of them.

The case is Flores v. New York Football Giants, issued on August 14. This is a putative class action, so the venue will determine if the plaintiffs recover a ton of money (thanks to a sympathetic jury) or a lesser amount (thanks to a single arbitrator). The venue may also dictate who wins or loses, as most plaintiffs want a jury of normal, everyday people, and not a stuffy arbitrator. 

The problem for the NFL is that the arbitration mechanism is not JAMS or AAA but the NFL Commissioner's office. Under the Federal Arbitration Act, arbitration agreements are legal and will be enforced against the plaintiff if the arbitration mechanism provides sufficient due process rights for the plaintiff. You'll get that in JAMS or AAA arbitrations, more or less, but enough to make it a fair fight. The Court of Appeals (Cabranes, Lynch and Lohier) notes, in an effort to be clever, that you can settle disputes in any number of ways, including playing ping pong or flipping a coin, but the FAA demands much more than that.

The problem for the NFL is that the arbitration clause sends the dispute to the NFL Commissioner, who has authority to rule for one party or the other. But that is not an independent forum under the FAA. The Commissioner works for the NFL and, really, the Commissioner is the NFL itself. That is not a fair fight. The other problem with the agreement is that it does not provide the procedure for resolving the dispute in arbitration. That means the Commissioner unilaterally dictates the arbitral procedure. The NFL constitutional procedure "bears virtually no resemblance to arbitration agreements as envisioned and as protected by the NFL."

Court expands when you can bring a habeas action

This inmate was incarcerated at Sullivan Correction Facility. He claimed that his conditions of confinement were detrimental to his health because COVID-19 might have killed him without being released from jail due to his pre-existing health condition. He brought a habeas corpus petition, but the district court dismissed it because what plaintiff instead needed to bring a constitutional claim under Section 1983. The Court of Appeals reverses on that point of law but finds other reasons to dismiss the case.

The case is Diaz v. Kopp, issued July 30. If you care about habeas corpus and Section 1983, then this case is for you. The Court of Appeals took an interest in this case because the lower courts had disagreed on whether habeas is the right vehicle when the inmate seeks immediate from prison due to unconstitutional conditions of confinement, or whether the only procedural route is a Section 1983 claim. 

The Court of Appeals (Calabresi, Nathan and Lohier [in dissent]) notes that "the line between habeas and Section 1983 can be difficult to parse even for seasoned litigators." The Court holds that plaintiff does assert a habeas claim because he claimed it was impossible for inmates like him to practice safe COVID policies due to the nature of the statewide prison environment, and under those policies, he would therefore suffer cruel and unusual punishment in violation of the Constitution. As such, his release (attainable through a habeas petition) is necessary. Section 1983 is not the exclusive remedy for cases like this. "We hold only that a claim at the core of habeas does not cease being cognizable under habeas simply because the claim is based on unconstitutional conditions of confinement."

Despite clarifying the law in this area, plaintiff still loses the appeal on the merits: the Court holds that he has not alleged facts that would support his assertions that (1) he was severely at risk of death or long-term disability from COVID, (2) DOCCS was not capable of protecting him from COVID, and (3) the state had created unconstitutional conditions of confinement that can only be remedied by his immediate release from jail. This means the analysis in this case, expanding habeas rights, may not help plaintiff, but it will help other inmates.

Judge Lohier dissents, stating that the case is moot because plaintiff was transferred to a different facility after the state closed Sullivan Correctional Facility. Since plaintiff's claims were specific to Sullivan, where he was held when he filed the petition, and Sullivan is not longer in operation, the case is moot.

2d Circuit strikes down portion of New York's marijuana dispensary law

The dormant Commerce Clause may be the least interesting strand of constitutional law. But every few years, a case arises in the Second Circuit that invokes that provision. This time, we are dealing with New York State's mechanism for issuing licenses to sell legal marijuana. The state's procedure is stricken under the dormant Commerce Clause.

The case is Variscite NY Four v. New York State Cannabis Control Board, issued on August 12. When New York legalized marijuana, it adopted a method for issuing licenses to sell it. If you want a dispensary license, you stand a better chance if you or a close relative were convicted for a marijuana-related offense under New York law. The state argues this provision is merely restorative justice, not a constitutional violation nor economic protectionism, which would violate the Commerce Clause. The Second Circuit disagrees, granting the plaintiff organization a preliminary injunction against the state enforcing this provision.

The Commerce Clause says Congress has authority to regulate interstate commerce. The Constitution does not expressly provide for a "dormant" Commerce Clause. That is a creature of the Supreme Court, which holds the Commerce Clause is violated when the state practices "protectionism," favoring state entities without congressional authorization. The idea is that states cannot favor one state over another in regulating commerce. Hey, we are all Americans! 

The majority (Jacobs and Calabresi, with Livingston in dissent) holds that "Congress has given New York no clear permission to favor its residents over others whose businesses skirt the federal drug laws. Under traditional dormant Commerce Clause principles, New York’s prioritization of applicants with convictions under New York law is a protectionist measure that cannot stand." Plaintiffs convinced the Second Circuit to strike down this provision because they are from California and want a New York dispensary license. Since they were never convicted of any drug offenses under New York law, they are harmed by this statute simply because they are not New Yorkers and therefore lose priority in receiving a dispensary license. 

Case against Bob Dylan dropped, and the plaintiff's lawyers are sanctioned

A woman sued Robert Zimmerman in 2021, claiming that he sexually abused her in 1965, when she was 12 years-old. You know Robert Zimmerman as Bob Dylan, the famous singer. She was able to sue Dylan under recent statutes that re-opened the statute of limitations for sexual assault cases. The case was dismissed after the plaintiff voluntarily dropped the claim and failed to comply with court orders intended to manage discovery. 

The case is JC v. Zimmerman, issued on August 13. Under the rules of civil procedure, you have to follow court orders on discovery, which includes exchanging documents, witnesses, etc. But when Dylan's lawyer served JC with demands, her lawyer did not respond, prompting Dylan's lawyer to file a motion to compel discovery. JC's lawyer then promised to provide discovery in short order. By now the district court was getting impatient and warned JC's lawyer to keep their eye on the deadlines. But the discovery violations continued, and the judge warned that it would take "appropriate action" if these derelictions continued. When JC finally produced records, they were paltry but did not include relevant emails or texts that Dylan deemed relevant to the case. The judge again warned JC's lawyer about this and threatened to entertain a sanctions motion for the deficient discovery. The judge ultimately said this to JC's lawyer:

I don’t know, Mr. Isaacs, how to tell you more strongly and more honestly that I am disappointed and dissatisfied with the productions that have been made and with your and your client’s conduct in discovery. I leave it at that. You’ve had every warning. You’ve had it oral, you’ve had it written, you don’t need me to repeat it again. For the love of God, produce these materials because you understand the consequences if you don’t.

These are strong words. JC ultimately agreed to dismiss the case. JC fired her lawyer, when appeared before the judge for a status conference. They told the judge that JC gave them three boxes of papers but would not allow them to take the boxes with them. When counsel told JC this was unacceptable, she fired her lawyers. In court, when the judge again read counsel the riot act about the discovery violations, JC -- who was present  in court -- agreed to dismiss the case outright.

Even though the case was dismissed, the judge sanctioned counsel anyway on the basis that they had not complied with discovery orders.The trial court blamed counsel for these discovery violations. The sanctions were $5,000 against one lawyer, and $3,000 against another. Dylan's lawyers wanted a $50,000 sanction.

Trial courts have discretion to sanction lawyers for violating discovery orders. The Court of Appeals (Livingston, Calabresi and Merriam) sustains the sanctions. While counsel argued that they did not violate any discovery orders, the Second Circuit disagrees, providing a detailed analysis in affirming the punishment. The Court borrows this principle from the Seventh Circuit: "in determining whether Rule 37 sanctions are warranted, the district court may “weigh not only the straw that finally broke the camel’s back, but all the straws that the recalcitrant party piled on over the course of the lawsuit.”

Trump waived his right to have the U.S. appear as a party in the Jean Carroll defamation case

Waiver is a scary word in the legal profession. It means the lawyer did not timely raise an argument and the court therefore will not entertain it. In this case, a jury found a man liable for defaming a woman by calling her a liar when she accused him of sexual assault; the jury awarded her $17.5 million in compensatory damages and $65 million in punitive damages. The question is whether the defendant, who made these defamatory statements as a federal employee, can substitute the United States as a party, a maneuver that presumably would require the government to pay out the damages.

The defamatory words came from the the President of the United States, who, according to the jury, rammed his fingers into the vagina of a woman in a Bergdorf-Goodman dressing room against her will. The victim is E. Jean Carroll, and the defendant is Donald J. Trump. The case is Carroll v. Trump, issued on August 8.

There were two trials. The first, for sexual assault and the first round of defamation, yielded a huge verdict. This round of defamation arose post-trial, when Trump verbally attacked Carroll from the White House on June 21-22, 2019. That led to a second trial for defamation. The second trial is the subject of this appeal, which does not resolve whether the jury got it right in ruling against Trump but whether the United States should be added as a party. The theory is that since Trump defamed Carroll from the White House when he was President, he was acting withing the scope of his employment in committing this actionable tort.

The substantive issue -- whether Trump was acting in the scope of his employment -- is unresolved. The District of Columbia Circuit Court of Appeals, which took on this issue at the Second Circuit's request a few years ago, did not resolve it, leaving this task to the district court. But at the district court level, the government declined to brief whether Trump was acting within the scope of his office. The case then went to trial, and the jury ruled in Carroll's favor.

In the Court of Appeals, Trump, and his Justice Department, revives this issue and wants the Second Circuit (Chin, Merriam and Kahn) to rule that, under the Westfall Act, he did act within the scope of his employment in defaming Carroll. Too late, says the Court of Appeals. The Westfall Act allows the United States to be substituted as a party in a lawsuit against a federal employee who acts within the scope of his employment, which would mean the plaintiff can only sue under the Federal Tort Claims Act, an entirely different legal scheme than the one invoked by Carroll in her defamation suit. 

Under the Westfall Act, this motion to name the U.S. as a party is untimely; Trump's lawyers should have done it prior to trial, not when the case is on appeal. Other Circuit Courts have similarly ruled in other cases, and this holding is now the law in the Second Circuit. In addition, the Court holds, even if the Westfall Act allowed Trump to seek this relief now, we have a waiver problem. He could have raised this issue previously but failed to do so.

Appellate Division strikes down $1,000 penalty against state court judges who deny certain habeas corpus petitions

Did you know that the CPLR provided a way for state court habeas corpus losers to personally sue the judge for a $1,000 fine if the judge got their decision wrong? CPLR 7003(c) allows for this, and if you don't believe me, here it is: 

For a violation of this section in refusing to issue the writ, a judge, or, if the petition was made to a court, each member of the court who assents to the violation, forfeits to the person detained one thousand dollars, to be recovered by an action in his name or in the name of the petitioner to his use.

No one else knew about this provision, either. According to the Appellate Division, Second Department, which recently struck down this provision as unconstitutional, no judge has ever been personally assessed a $1,000 fine in the more than 200 years and the four centuries that prior iterations of the statute has existed, and litigants in New York have only invoked it seven times over the years. No one ever won their $1,000 payout, and the lower court denied that relief to the plaintiff in this case, which is how it reached the Appellate Division.

The case is Poltorak v. Clarke, issued by the Second Department on July 30. The plaintiff lost his habeas petition in Kings County Family Court, but the Appellate Division reversed in concluding the defendant, Justice Clarke, got it wrong. Plaintiff then sued Justice Clark to recover the $1,000, pursuant to CPLR 7003(c). State Supreme Court held the statute was unconstitutional, so plaintiff got nothing, and the Appellate Division affirms and says the statute violates constitutional separation of powers and the compensation clause of the New York Constitution.

Something in the American legal tradition authorized penalties against judges for denying habeas corpus. That is in part because of the value the legal system places on habeas corpus. The Appellate Division reviews cases from around the country where this issue has arisen. This rule has been struck down in other states, and now it has been stricken in New York. Somebody worked their tail off in writing this decision, as it is quite lengthy and provides extensive background on statutory penalties against judges who deny habeas petitions.

The Second Department issues two holdings: first, the $1,000 penalty against the judge violates the judicial compensation clause of the New York Constitution because paying out the penalty to a litigant will naturally reduce the judge's salary. The clause promotes judicial independence and ensures that judges can make a living after leaving private practice or other legal positions in order to ascend to the bench. That concern goes down the drain if the judge has to pay litigants upon ruling against them in certain cases, and not for nothing, I would think the prospect of paying such a financial penalty would create a conflict of interest. Not that judges will rule one way or the other for the money, but the public at large might think the judge ruled the way they did to avoid paying $1,000 out of pocket. The separation of powers principle is also implicated here, as this penalty would incentivize a specific outcome, i.e., issuance of the writ of habeas corpus, to avoid paying the penalty. This would impair judicial discretion and judgment.

If a $1,000 fine was available to disappointed habeas litigants under the CPLR, why did no one ever invoke this entitlement? How did everyone miss this opportunity? I cannot answer that question. 

Another observation: this case has a 2020 Appellate Division docket number. The decision came down last week. The Second Department has been slower than molasses lately, but five years is an awfully long time. The case was argued in September 2024, so that delay is understandable since this issue is complex, but the four-year wait prior to argument is, for those of you who don't practice in the Second Department, par for the course.

Gun-speech case fails on qualified immunity

A gun rights advocacy group sued the State of New York after it directed insurance companies to consider the reputational risks arising from their association with the National Rifle Association and similar organizations. When the Department of Financial Services (a state agency) met with Lloyd's of London (a prominent insurance company) to express concern about insurance policies circulating in the gun world that would provide coverage for intentional and reckless shootings, Lloyds announced it had directed its underwriters to terminate all insurance policies related to the NRA and related organizations and to stop providing insurance to the NRA in the future. 

The Second Circuit, a few years ago, said the NRA did not have a First Amendment case against the state arising from this sequence of events, but the Supreme Court reversed and said the NRA had a case. The case returned to the Second Circuit to see if the individual defendant is protected by qualified immunity.

The case is NRA v. Vullo, issued on July 17. The NRA argues that the state is punishing it over its pro-gun advocacy. The concern was that these insurance policies violated state law because they protected gun owners from intentional or reckless shootings. Originally, the Second Circuit said the lawsuit must fail because the NRA failed to plausibly allege that the DFS official, Vullo, had unconstitutionally threatened or coerced Lloyds to stifle the NRA's speech because Vullo was simply doing her job at DFS in enforcing the law. But the Supreme Court disagreed, finding that the NRA did state a claim because the government cannot coerce a private party to punish or suppress someone else's disfavored speech.

The Second Circuit (Chin, Carney and Robinson) must now determine whether Vullo can invoke qualified immunity, which applies when the constitutional violation was not clearly-established. If the case law was fuzzy or unclear or nonexistent, then the government defendant cannot be expected to know she is violating the law. If the theory of liability is too novel, then the individual defendant cannot be liable. 

The bottom line: while the Supreme Court said the NRA plausibly asserted a viable First Amendment claim, prior law was not clear on this issue. While there have been cases holding that you cannot coerce someone over their expressive speech activity, the law was not clear that such coercion arising from an entity's non-expressive conduct would violate the First Amendment. Since this case involves non-expressive conduct on the NRA's part, Vullo gets qualified immunity. As the Second Circuit states, "we can surmise only that a reasonable officer in Vullo's position likely would have thought that her conduct -- which targeted regulated entities for concededly illegal, nonexpressive activities and only indirectly affected the NRA -- was permissible." At least against Vullo, the case is over. 

Court clerk has speech claim against Town Justice

This is an important First Amendment retaliation case brought by a public official against her municipal employer. The Court of Appeals holds that a former small-town court clerk may sue the Town and the Town Justice for retaliation after she cooperated with state investigators into possible misconduct at the Town Court. This is a rare victory for plaintiffs like this, as the Supreme Court has curtailed these lawsuits in holding that speech that falls within the scope of the plaintiff's official job duties is not protected by the First Amendment and therefore may legitimately motivate retaliation by a thin-skinned supervisor.

The case is Long v. Byrne, issued on July 30. Long worked as a court clerk for the Town of New Lebanon, and Byrne was the Town Justice. When the State Commission on Judicial Conduct asked for certain records in the course of an ethics investigation into the Town Court, Long, who had previously earned stellar performance reviews, turned over the records in an effort to comply with the laws, rules and regulations of the Commission, much the consternation of Justice Byrne. Long was eventually fired after she refused to answer Byrne's questions about her interactions with the Commission. Not for nothing, but Justice Byrne eventually resigned from the Town Court due to a Commission investigation; it is unclear if that resignation resulted from the investigation that gave rise to this case.

The district court dismissed the case on authority of Garcetti v. Ceballos, a 2006 Supreme Court ruling that says you do not speak as a "citizen" (and you do not engage in protected speech) if your speech was pursuant to your official job duties. The First Amendment only protects citizen speech, not work speech. This means that speech relating to politics in general or whistleblowing that does not directly relate to your duties is free speech or, as the Court of Appeals puts it, the "speech fell outside of her official responsibilities." The comptroller who blows the whistle on bad budgeting or missing money may be fired even if he was just doing his job. It sounds unfair, and the cases that have followed Garcetti over the last 20 years have led to some inequitable results, but the idea is that the government has the right to manage its employees to ensure workplace efficiency.

Long has a case, the Second Circuit (Lynch, Park and Robinson) holds, because cooperating with the Commission on Judicial Conduct was not among her official job duties. She was not employed by the Commission and had no duty to report to it. Bear in mind that this ruling falls within a Rule 12 motion to dismiss posture, the Court of Appeals emphasizes, and discovery might yield evidence that would support a contrary result on summary judgment. For now, Long is the victor. Here is why the Court of Appeals rules in Long's favor:

1. Long's refusal to answer Byrne's questions about the investigation was protected speech, and she therefore cannot fired over this. The First Amendment protects your right not to speak -- or to avoid coerced speech -- a principle that the Second Circuit recognized 14 years ago in Jackler v. Byrne, a case that I argued involving a police officer who was unlawfully fired after he refused to lie about a sergeant's misconduct. The fact that Long declined to speak while physically in the workplace does not cut against her case.

2. Long's speech was not among her official job duties. "Long alleges it was not within the scope of her job duties to advise a Town Justice as to the requirements of the Commission," an independent entity that did not employ Long. "There is no clear reason why it would be within Long's job duties to provide Byrne with information related to an independent third-party's investigation into Byrne's suspected misconduct. Even if it were within Long's job duties to tell Byrne who had requested the court files, it would not follow that it was also within Long's duties to give Byrne the information that she sought: the identity of the person who had filed complaints with the Commission.

3. Long asserts that she did not answer Byrne's questions because the Commission advised her that it would be unlawful to do so. This permits the inference that Long acted as a private citizen in not answering Byrne's questions about her interactions with the Commission. While the Second Circuit notes there is no case law in support of this holding, the Court identifies another civilian analogue to Long's refusal to answer Byrne's questions: "the right to reject governmental efforts to require her to make statements that would violate the law." The authority for that is Jackler. 

4. The complaint alleges that Long cooperated with the Commission out of her sense of civil duty. "Her desire to be a law-abiding citizen is not an employment-related motivation" that would kill the case under Garcetti.

5. While Long claimed she acted as a citizen when she turned over the documents at the Commission's request, the lawsuit says little about the nature of her job duties, "making it difficult to discern whether her decision to provide the Commission with the files it requested falls within the scope of those duties." We are going to have to explore this in discovery. 

The Garcetti holding was notable in scaling back free-speech retaliation claims by public employees. This happened after Justice Alito replaced Justice O'Connor in the mid-2000's. Prior to Garcetti, these cases were common in federal court. Since then, many such cases have been thrown out because the speech in question was closely related to the plaintiff's job duties. In this ruling, Judge Lynch outlines the rationales in support of the Garcetti analysis: (1) its holding would not deprive the plaintiff-speaker of any rights that the citizen speaker would enjoy since the plaintiff-speaker owes her speech to the government employment; (2) a contrary rule would create a free speech claim "for every statement public employees make in the course of doing their job," (3) state law claims are still available to such plaintiffs even if they cannot sue under the First Amendment, and (4) there are limitations to Garcetti, as speech that is not ordinarily within the scope of the plaintiff's employment is still protected under the First Amendment. Plaintiffs' lawyers may question these justifications, and I certainly have, but Long's case shows that these claims can still proceed to discovery in limited instances.

Some guidance on attorneys' fees in student disability cases

Civil rights lawyers are well aware that, upon winning the case, they will recover attorneys' fees from the losing side. That it true in cases brought under Title VII and the other employment discrimination statutes, as well as constitutional claims under 42 U.S.C. 1983. Not so true for student disability claims brought under the Individuals with Disabilities in Education Act (IDEA). The victorious lawyer has to jump through a hurdle in order to recover fees.

The case is NGB v. New York City Department of Education, decided on July 24. In IDEA cases, the plaintiff's lawyer can only recover fees if the plaintiff was "substantially justified" in rejecting the school district's settlement offer. If not, then no attorneys' fees for any work incurred post-rejection. This rule puts the plaintiff and their lawyers in a tough spot, as they have to carefully analyze the settlement offer, much like a Rule 68 offer in other cases.

In this case, a hearing officer ruled in favor of the plaintiff, who claimed their child was denied a free appropriate public education due to disability. After plaintiff filed this federal lawsuit seeking attorneys' fees, the City offered $17,000. Plaintiff rejected the offer. The district court eventually ruled on the attorneys' fees petition, awarding plaintiff approximately $14,500, about $2,500 less than the City's offer. However, the district court also said plaintiff was "substantially justified" in rejecting the $14,500 offer, as recovering less money than the defendant offered does not always mean the plaintiff was not justified in accepting the offer. As plaintiff had sought more money in the fee motion than $14,500, and had a good faith belief that the district court would have awarded plaintiff that additional money, the plaintiff acted reasonably in proceeding with the fee motion in the first instance.

The Court of Appeals (Calabresi, Lohier and Karas [D.J.]), affirms this reasoning, deciding for the first time "what standard applies in evaluating substantial justification under the IDEA's fee-shifting provision." So the Court looks to Supreme Court cases under the Equal Access to Justice Act, which also has a substantial justification test when it comes to attorneys' fees settlement offers. The Supreme Court holds the standard for substantial justification is "justified to a degree that could satisfy a reasonable person." This is a "reasonableness" test. Following the reasoning of a Third Circuit case that has already explored this issue, the Second Circuit holds that "it is inimical to the purpose of the IDEA to force prevailing parents to accept an offer that they reasonably and in good faith belief faith to provide adequate compensation." In other words, if the parent acted reasonably in saying No to the offer, they may recover fees through an attorneys' fees petition in the district court.

The Second Circuit finds the district court did not abuse its discretion in ruling on the attorneys' fees motion and finding the parent had substantial justification to reject the settlement offer, thus allowing the parent to recover fees incurred post-rejection. This is so even though the trial court awarded plaintiff less money than the settlement offer. The district court's careful analysis on the plaintiff's good faith was not an abuse of discretion, the general rule guiding attorneys' fees motions in federal court. As the Second Circuit often defers to the trial court's judgment on attorneys' fees, plaintiff wins this appeal.