Wait A Second!

A Fourth Amendment for the modern age

2012-01-25T04:30:00.000-08:00

The Supreme Court finds that the Fourth Amendment is implicated when the police stick a GPS device on your car without your consent. This significant case requires the Justices to apply the Fourth Amendment -- adopted in the 18th Century -- to the modern age.

The case is U.S. v. Jones, decided on January 23. This case got a lot of attention because it seems to strike everyone as too intrusive for the police to stick a GPS on your car without a warrant and without your knowledge. Of course, cases like this usually nail people on drug-trafficking charges, but the Fourth Amendment is often developed from cases involving people we would not touch with a 10-foot pole. The Court unanimously sides with Fourth Amendment principles here and rejects lower court cases that essentially allowed the police to damned well do what they wanted. What makes the case confusing for Court junkies is that all the Justices find that GPS monitoring is a search under Fourth Amendment, but a 5-4 split disagrees on the reasoning, with a lone concurrence from Justice Sotomayor. Also, informed commentary says that the Court did not in this case actually say the government needs a warrant for these searches, only that the installation of the GPS was a Fourth Amendment “search.” But my guess is that, to be on the safe side, the government will probably try to get a warrant next time it tries this on people, and the lower courts might now require a warrant in these cases.

Justice Scalia writes for five Justices (including the conservative block) in noting that Fourth Amendment cases draw from two separate theories: the trespass theory (taken from 18th Century England) and the "reasonable expectation of privacy" theory (taken from a 1967 Supreme Court ruling). Both theories are alive and well, Scalia says. Both could apply here, in that the police have to trespass on your private property to stick a GPS under your car and you also have a reasonable expectation that your private comings and goings around town (and God knows where else) will remain private without a warrant. For now, the five-vote majority sticks with the trespass theory.

In siding with the defendant in this case, Scalia threads the needle by distinguishing two older Supreme Court cases that allowed the police to monitor (without a warrant) a beeper placed in a container being transported by the defendant. Beepers were the electronic gizmos of the 1980s. In one of those cases, the beeper was placed in the container when it belonged to someone else, and the original owner consented to the surveillance. In the other case, while the beeper was placed in a container that the defendant transported all over the place, the information seized by the police -- the defendant's itinerary -- "had been voluntarily conveyed to the public" as he had driven on public roads. The defendant in that case had no reasonable expectation of privacy in his public travel. The GPS case is different from the beeper cases because it involves an old-fashioned trespass, prohibited by the Fourth Amendment.

Writing for the four Justices who sided with the Fourth Amendment for different reasons, Justice Alito (and three liberals) says that the "reasonable expectation of privacy" theory is much more persuasive than the trespass theory. Alito says that short-term surveillance might not violate the Fourth Amendment, but long-term surveillance from GPS monitoring does implicate that Amendment because your privacy interests are placed in greater jeopardy. The general public is going to like Alito's privacy-related reasoning better than Scalia's relatively archaic trespass reasoning. While no one wants the police to touch your car without consent, most people would shudder at the thought that the government would closely monitor all of your whereabouts for a lengthy period of time without your knowledge.

Finally, a word about Justice Sotomayor, who concurs in Scalia's opinion but writes separately by articulating the real-world concerns about extended governmental surveillance in a way that normal people can understand, and by suggesting that the Court reconsider its precedents that give the police greater leeway when its monitors property owned by someone else. She writes, "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. ... This approach is ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. ... I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year." It's Justice Sotomayor who wants to bring the Fourth Amendment into the modern age.

Easy come, easy go, for habeas victory

2012-01-24T05:30:00.000-08:00

In August 2011, the Second Circuit granted a habeas petition filed by an inmate who shot his estranged wife in the head point-blank. The Court ruled that the criminal conviction violated the U.S. Constitution because the jury found him guilty of depraved indifference murder and not intentional murder. This may sound outrageous, but the Court of Appeals actually had a reason for doing this. That decision has now been taken back. The Second Circuit has reversed itself in that case and reinstated the conviction.

The case is Rivera v. Cuomo, decided on December 16. The prosecutor tried the case as an intentional murder case, that Rivera simply pointed the gun at her head and pulled the trigger. In 1997, the jury convicted Rivera of depraved indifference murder. Here's how I wrote up the decision when it came down in August 2011:

In 2003, the New York Court of Appeals decided that intentional murder cases cannot lead to a conviction for depraved indifference murder. As the Second Circuit notes, "certain murders are so 'quintessentially intentional' that they cannot properly be categorized as depraved indifference murder." Depraved indifference usually involves a conduct such as firing a gun into a crowd or throwing a cinder block off a building during lunch hour in New York City. Intentional murder is ... intentional murder: laying in wait and pointing the gun at the victim with intent to kill.

When Rivera was convicted in 1997, the New York Court of Appeals had not yet said that depraved indifference murders cannot support an intentional murder conviction. So while Rivera's conviction back then may have been solid under New York law, it became quite shaky in 2003, when the New York Court of Appeals reinterpreted the Penal Law. In 2004, when Rivera had exhausted (and lost) all his state court appeals, the New York Court of Appeals said that "defendant's act of shooting his victim at close range could not be depraved indifference murder." Instead, it's intentional murder. The Second Circuit adds, "under any reasonable view of the evidence adduced at trial, Rivera's point-blank shooting ... -- which was either undoubtedly intentional or accidental in the course of a struggle -- could not support a depraved indifference murder conviction."

As the Second Circuit says that we must apply the law as it stood in 2004 and not in 1997, this means that the Second Circuit grants Rivera's habeas corpus petition. The depraved indifference conviction is vacated.

See, there was a distinction between depraved indifference murder and intentional murder. You could not be convicted of depraved indifference murder when the only basis to convict was intentional murder. That was then, all those months ago in August 2011. After the State lost the appeal in this case, it asked the Second Circuit to rehear the case. Most of these petitions for rehearing are rejected without comment. Not this one. Fortunately for the State, the Supreme Court in 2011 decided Cavazos v. Smith, 132 S.Ct. 2 (2011), which reaffirms that under modern habeas law, federal courts have to give state courts great deference in interpreting the U.S. Constitution. Say what you want about the notion that state courts have latitude to interpret the Constitution as they please so long as those interpretation are not "unreasonable." On reconsideration, the Second Circuit (Pooler. McLaughlin and Parker) now upholds the conviction, though not in ringing terms:

After much reflection, we now reverse course. Applying the law as it existed after Rivera’s conviction became final in July 2004, we find that although evidence of “significantly heightened recklessness” was slim, at best, giving the state courts and the jury the utmost deference, we cannot find that the evidence was so completely lacking that no rational jury could have found Rivera guilty of depraved indifference murder. Therefore, we have no choice but to uphold the decision of the state court.

Inmate wins reasonable accommodation claim at the Court of Appeals

2012-01-20T06:30:00.000-08:00

An inmate wins his Second Circuit appeal claiming that a state correctional facility denied his rights under federal disability law. It looks like his lawyer won the case by writing a good brief.

The case is Shaw v. New York Department of Correctional Services, a summary order decided on December 15. Shaw is dyslexic. He wanted to take his GED exam. But he could not take the test because of his disability, so he asked the jail for assistance in proving that he has a cognizable disability so that he could get a reasonable accommodation in taking the exam. The jail denied the request.

The rule governing a case like this is that a demand for "reasonable accommodations to assure access to an existing program is cognizable, but a demand for additional or different substantive benefits is not." The district court denied Shaw's claim because it thought that he was requesting additional or different substantive benefits. Shaw is now represented by counsel on appeal, and the Second Circuit sees it differently. Folks, this is one reason why counseled cases fare better than pro se cases. Counsel told the Second Circuit (Newman, Hall and Gardephe [D.J.]) that the complaint, in referring to a failure to accommodate, can refer to "a number of possible accommodations, including oral examinations, recorded lectures, and providing Plaintiff lecture notes. Other possibilities that might be especially suitable for a person afflicted with dyslexia are additional time for test-taking and allowing the student to dictate answers to essay questions." Seen in this light, the case states a claim for relief after all. Would Shaw have been able to articulate this theory of the case on his own? Probably not. His lawyer was able to do so, saving the case.

The Court of Appeals says that the jail should more fully review Shaw's request for accommodation through the prison grievance system. Counsel for the State is expected to make sure that appropriate prison officials promptly review Shaw's administrative request at the jail.

Abortion clinic protester's sentence might violate First Amendment

2012-01-17T09:00:00.000-08:00

You don't see too much in the way of Seventh Amendment litigation these days. Here's one involving an anti-abortion protester who was convicted after a bench trial of violating the Freedom of Access to Clinic Entrances Act (FACE). He says that he deserved a jury trial. The Second Circuit disagrees. But it says the punishment might violate the First Amendment because the defendant has to stay 1,000 feet from abortion clinics.

The case is U.S. v. Dugan, decided on December 5. The Supreme Court says that under the Seventh Amendment, criminal cases get a jury trial if the defendant is charged with a "serious" and not a "petty" offense. The difference is that any offense that carries a maximum term of six months or less is presumed to be petty. You can overcome that presumption if additional penalties, such as a large fine, reflect a legislative determination that the offense is serious under the Seventh Amendment.

As the potential sentence for Dugan was six months, he can only win the appeal and get a jury trial if the fine is high enough under the Seventh Amendment. Although he faced a maximum penalty of $10,000, two other circuits hold that "FACE Act offenses like this one, i.e., nonviolent, first-time offenses, are not 'serious' and thus do not require a jury trial." The Court of Appeals agrees with those decisions and says that Dugan was not entitled to a jury trial.

For some reason, the Court of Appeals issues two decisions in this case. The jury trial issue gets a published opinion. The propriety of Dugan's sentence, though, gets a summary order. All the more strange since the summary order is a little more interesting, and the Court of Appeals says the punishment might violate the First Amendment. The district court ordered that Dugan cannot come within 1,000 feet of an abortion clinic. He was found guilty of blocking access to a clinic. "The testimony of the clinic’s security guard established that Puckett kneeled intentionally in front of the door to block it. ... The security guard testified that Puckett 'was kneeling directly in front of the door so the door could not have opened.' The security guard then indicated that the police arrested Puckett after he refused to move and that '[a]fter the police removed him . . . both staff and patients were able to enter into the clinic.'” OK, so Dugan is guilty. Is the penalty (stay away more than 1,000 feet from reproductive health facilities) excessive?

It might be. The Court wants the trial court to consider "whether the condition is narrowly tailored to serve a compelling government interest. Dugan had no prior notice that the condition might be imposed because it first was suggested in the government’s sentencing letter, submitted to the district court a day before the hearing and not copied to Dugan, who was proceeding pro se. On remand, the district court must determine whether the substantial limit on Dugan’s freedom of movement is 'reasonably related' to the government’s interest in deterring future violations of the FACE Act and in protecting the patients and staff of reproductive health facilities."

The Second Circuit also wants the district court to "consider Dugan’s history of protesting at reproductive health clinics, his First Amendment interests in free speech, as well as his statements that he has a 'duty' to prevent abortions. In addition, the district court must consider whether a stay-away distance of 1,000 feet (more than the length of three football fields) is narrowly tailored to the government interest where Dugan’s offense arose from the non-violent obstruction of a clinic entrance, and where, particularly in urban areas, the condition could significantly impede Dugan’s freedom of movement."

Supreme Court adopts "ministerial exception" to civil rights laws

2012-01-13T06:21:00.000-08:00

The Supreme Court had a choice. It could honor Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination and retaliation, or it could honor the First Amendment, which prohibits government interference in the management of religious institutions. The Court unanimously goes with the First Amendment, identifying for the first time a ministerial exception to Title VII which prevents courts from resolving certain lawsuits against religious organizations.

The case is Hosanna-Tabor Evangelical Lutheran Church v. EEOC, decided on January 11. The plaintiff taught at a school that offered Christian-centered education, but her responsibilities include certain ministerial functions. After a dispute with her superiors over whether she could work despite her disability (narcolepsy), she threatened to sue for retaliation under Title VII. The Supreme Court says she can't do it under the ministerial exception. (The Second Circuit in 2008 adopted this exception in Rweyemamu v. Cole, 520 F.3d 198 (2d Cir. 2008)).

The Supreme Court has never had a case like this before, so it looks to the original intent of the Establishment Clause by drawing from decisions made by James Madison when he was both Secretary of State and President. Madison said that the government cannot tell religious organizations how to run their internal affairs. Older Supreme Court cases also hint at this in the context of disputes over church property. Chief Judge Roberts says that "[o]ur decisions in that area confirm that it is impermissible for the government to contradict a church' determination of who can act as its ministers." So here is the Court's holding in this case:

The members of a religious group put their faith in the handsof their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

Now, the plaintiff in this case was not technically a minister, but she did take on some ministerial responsibilities, like "conveying the Church's message and carrying out its mission," i.e., "leading others toward Christian maturity and teaching faithfully the Word of God, the Sacred Scriptures, in its truth and purity and as set forth in all the symbolical books of the Evangelical Lutheran Church." She was also "held out as a minister, with a role distinct from that of most of [the Church's] members." As plaintiff is a minister as defined by the Court, her calls falls under the ministerial exception, and she cannot proceed with the case.

So where does this leave us? What about church employees who are not ministers? Can they sue? The Supreme Court does not tell us, though it seems to broadly define who is a "minister" in defining the plaintiff's role. But the holding in this case is narrow; the Court says:

The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.

Judge's private pow-wow with juror gets guilty defendant a new trial

2012-01-11T08:05:00.000-08:00

What do you get when you put eight strangers in the same room together? At the U.S. Courthouse during a criminal fraud trial, you get madness, and a judge's ex parte meeting with a juror who complained that another juror threatened him with violence. All this prompts the Court of Appeals to grant the defendant a new trial because of the ex parte meeting.

The case is U.S. v. Collins, decided on January 9. The trial lasted for weeks, with 22 days of testimony. Jury deliberations took a while, too. They were marked by threats and raised voices which led a court security officer to see what was going on. Jurors began writing Judge Patterson notes complaining about the lack of collegiality and the possibility of a hung jury, which no one wants (except maybe the defendant) because that means you have to start all over again.

The juror notes are recited in the opinion. The Court of Appeals (Chin, Calabresi and Carney) focuses on the foreman's note that said Juror 4 might have been trying to barter his vote and Jurors 4 and 9 almost had an altercation. The note also said Juror 4 preferred a hung jury rather than "do further evidence research." This led the trial court to meet privately with Juror 4. Without the lawyers and the parties present, the judge told Juror 4 that his behavior was "not conducive to getting this matter resolved, and it is important to both parties that the matter be resolved." The juror said he was trying to deliberate but that it was hard to do his job when other jurors were calling him a "jerk" and "having my skin tone made fun of." The judge then told the juror to keep an open mind and try his best to deliberate. The jury went on to enter a guilty verdict on some of the charges.

New trial for defendant. This ex parte meeting amounted to a supplemental jury instruction, and it resembled an Allen charge, where a judge tells a deadlocked jury that it's important to reach a verdict. Supplemental jury instructions cannot be given outside the presence of counsel and their clients. This was not harmful error. Here's why, says Judge Chin:

We cannot say, with "fair assurance," that the district court's errors in this case did not substantially affect the verdict. The court singled out a dissenting juror, and emphasized to him the importance of reaching a verdict. We cannot ignore the possibility that Juror 4 walked out of the ex parte conference with the impression that he should not stand in the way of a prompt resolution of the case. Had the court initially shared the Note with counsel and solicited counsel's input before responding, any mistaken impressions might have been avoided.

Budget hotels denied injunction for lack of irreparable harm

2012-01-10T10:00:00.000-08:00

The State of New York passed a law that makes it harder for property owners to rent hotel rooms for less than 30 days at a time. The idea was that building owners were circumventing strict fire safety standards applicable to hotels by renting out rooms for shorter periods of time under a loophole in the Multiple Dwellings Law. The state also wanted to prevent unfair competition to legitimate hotels and also to protect the rights of permanent occupants who have to live with short-term residents. A building owner challenged the law under the Takings Clause and sought an injunction. The district court denied the injunction, and the Court of Appeals agrees that the plaintiffs have not shown irreparable harm.

The case is Dexter 345, Inc. v. Cuomo, decided on December 5. Who knows if the plaintiffs have a legitimate Takings claim on the merits? The Court of Appeals does not address the merits. It finds that under the strict "irreparable harm" standard governing preliminary injunctions, the plaintiffs really only have monetary damages, which can be recouped at the end of the case. That's not irreparable harm. As the courts see it, monetary loss is not irreparable.

Plaintiff says it will suffer irreparable harm because it will lose goodwill with its customer base. The Second Circuit (Newman, Leval and Pooler) disagrees. The Dexter House has been operating since 1957 and Hotel Alexander since 2007. This is long enough for plaintiffs to calculate lost profits, based on previous rent figures. "The District Court correctly found that any loss of goodwill would result from the Appellants' inability to continue operating their budget hotel business as they had in the past. The long history of operation by both Appellants ensures that they will be able to calculate money damages for any loss of goodwill they may have suffered if a taking is found." This reasoning contrasts this case with those brought by less-established businesses who claim that calculating damages is too difficult and that the challenged regulation will destroy the business.

Plaintiffs also say that the new law will harm their reputation, as the law suggests that short-term budget hotels are unsafe and unwanted. But this kind of reputational harm is not irreparable, the Court of Appeals says. If plaintiffs are to get any damages, they have to endure discovery and a trial on the merits.

Circuit upholds $200k racial discrimination verdict under Section 1981

2012-01-06T06:00:00.000-08:00

Here's an interesting racial discrimination case that produced a $200,000 jury verdict against a former police officer who hurled racial slurs at a black motorist and then initiated a fight with him, landing the plaintiff in a hospital. The Court of Appeals upholds the verdict under 42 U.S.C. sec. 1981.

The case is Wong v. Mangone, a summary order decided on December 6. The evidence showed that Mangone, a large white man, saw Wong, a black man, driving his car in Mangone's neighborhood. Mangone stuck his head in the window of Wong's car and made some vile racist comments about drug use and promiscuous sex by racial minorities. He basically told Wong to get the hell out of his neighborhood. Wong and Mangone then got into a fight. "The exchange quickly escalated to a physical fight involving a range of impromptu weapons, including the driver's side mirror of Wong's car, a circular saw, a metal pipe, a wooden broom handle, and a baton." Wong ended up face down on the ground. The facts were sharply disputed by the parties, but the jury awarded Wong $183,000 in compensatory damages and $17,000 in punitives.

The Court of Appeals (Cabranes, Livingston and Carney) upholds the verdict because there was enough evidence for the jury to find that Mangone violated Wong's right to be free from racial discrimination. What makes the case interesting is that Wong sued under Section 1981, which most of us associate with the right to be free from racial discrimination in contracts. Section 1981 is also used as an employment discrimination statute. But it also provides relief if you are denied the right "to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens." Private individuals can violate Section 1981, which is how Mangone got sued. As the Second Circuit notes, "a section 1981 violation may occur when a private individual injures 'the security of persons and property' in violation of a state law, and does so with a racially discriminatory purpose.'" Wong can invoke Section 1981 because Mangone violated state laws prohibiting assault and battery, "which are clearly intended for the 'security of persons."

This is a little-known protection under Section 1981. The only cases cited in the Second Circuit ruling in this case are district court cases from the Southern, Eastern and Western Districts of New York. Normally, when the Court of Appeals stakes out new ground, it will publishe an opinion rather than issue a summary order. The Second Circuit obviously agrees with this interpretation of Section 1981. Although this is an "unpublished" ruling, the Court is giving the go-ahead for federalizing certain torts claims if they involve race and assault or battery.

First Department rejects pretext-plus in City HRL discrimination claims

2012-01-04T06:30:00.000-08:00

Lawyers who litigate under the New York City Human Rights Law know that this statute provides broader protection for plaintiffs than its federal counterparts, Title VII and the Age Discrimination in Employment Act. A recent decision by the Appellate Division, First Department drives that point home in squarely rejecting the pretext-plus model adopted by some federal courts, including the Second Circuit.

The case is Bennett v. Health Management Systems, decided on December 20. The facts in this case do not look good for Bennett. Management claimed it fired him for losing focus and drinking on the job. Bennett says he was fired because of his race (white) and age. The First Department uses this routine case as a vehicle to outline the burdens of proof in disparate treatment cases under the City Human Rights Law, ruling as follows:

1. The Court reiterates the oft-stated mandate "to ensure the liberal construction of the City HRL by requiring that all provisions of the City HRL be construed 'broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.'" Under that test, while the First Department approves of the Supreme Court's McDonnell-Douglas burden-shifting procedure, it emphasizes that the fourth prong of the prima facie inquiry -- whether the plaintiff was terminated under circumstances creating an inference of discrimination -- not require the plaintiff to prove his entire case. The First Department's approach invokes the Supreme Court's observation that the prima facie inquiry is not supposed to be onerous. Moreover, and more important, the Appellate Division says that if the employer comes forward with a neutral reason for terminating the plaintiff's employment, the prima facie inquiry is not necessary:

a court should ordinarily avoid the unnecessary and sometimes confusing effort of going back to the question of whether a prima facie case has been made out in the first place. Instead, the court should turn to the question of whether the defendant has sufficiently met its initial burden as the moving party of showing that there is no evidentiary route that could allow a jury to believe that discrimination played a role in the challenged action. We stop short of holding that there is never a circumstance under the City HRL where such an inquiry would be proper, but do conclude that such circumstances will be rare and unusual.

2. The Court rejects the pretext-plus model of proving discrimination. The Supreme Court says that if the employer comes forward with a false or pretextual reason why it fired the plaintiff, that does not compel the jury to find in the plaintiff's favor. The Supreme Court also said that the defendant can still get summary judgment in discrimination cases if the employer comes forward with a pretextual reason. (The First Department does not say this, but the Second Circuit usually looks for more than mere pretext for the plaintiff to win the case, usually evidence of disparate treatment or discriminatory remarks). But those Supreme Court cases interpreted Title VII, not the City HRL. The First Department says that under the City HRL,

Once there is some evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete, a host of determinations properly made only by a jury come into play, such as whether a false explanation constitutes evidence of consciousness of guilt, an attempt to coverup the alleged discriminatory conduct, or an improper discriminatory motive co-existing with other legitimate reasons. These will be jury questions except in the most extreme and unusual circumstances.

. . .

We recognize that there has been a growing emphasis on using summary judgment in discrimination cases to promote "judicial efficiency." But at least in the context of the City HRL, the Restoration Act provides a clear and unambiguous answer: a central purpose of the legislation was to resist efforts to ratchet down or devalue the means by which those intended to be protected by the City HRL could be most strongly protected. These concerns warrant the strongest possible safeguards against depriving an alleged victim of discrimination of a full and fair hearing before a jury of her peers by means of summary judgment. In short, evidence of pretext should in almost every case indicate to the court that a motion for summary judgment must be denied.

Ironically, after outlining a pro-plaintiff approach to reviewing summary judgment motions in discrimination claims brought under the City HRL, the First Department finds that Bennett cannot win before a jury. There was undisputed evidence that he slept and drank alcohol on the job and his work performance left something to be desired.

Bergstein & Ullrich strike down anti-leafleting law

2012-01-02T07:00:00.000-08:00

A federal judge in White Plains has held that a municipal law that forbids windshield leafleting violates the First Amendment in the absence of any evidence that the prohibition serves the government interest of avoiding litter. The trial court awards summary judgment to the plaintiff on his as-applied challenge against the Town and also orders a trial against two police officers who allegedly told the plaintiff he could not engage in face-to-face leafleting at a Community Day in Putnam County.

The case is Robinson v. Town of Kent, 2011 U.S. Dist. LEXIS 149255, decided by Southern District Judge Seibel on December 29. Bergstein & Ullrich, LLP, represents the plaintiff. It all started when Ernest Robinson showed up at Town of Kent Community Day on September 13, 2009 to hand out provocative leaflets that criticized a local judge. When Robinson placed these leaflets under the windshield wipers of parked cars in the parking lot, a police officer ordered him to cease and desist under a Town law that prohibited this kind of leafleting. Robinson did as he was told and removed the flyers from the vehicles. When Robinson next went into the park where the Community Day was situated for the purposes of leafleting members of the community, he testified that two police officers told him he could not do that, either. He sued under the First Amendment.

The district court ruling is in two parts. On the windshield leafleting claim, Judge Seibel adopts the reasoning of the Seventh, Eighth and Ninth Circuits, which hold that the "time, place and manner" test requires the government to prove that the windshield anti-leafleting law is justified by concrete littering concerns. (The Sixth Circuit went the other way on this issue). This makes Robinson v. Town of Kent the first case in the Second Circuit to strike down such a law, as the Town is only able to speculate that the need to prohibit littering outweighs the First Amendment right to leaflet. The Court states, "[t]he Town has not carried its burden. It has not shown either the reasons for the law's passage in 1973 or established a factual basis for concluding that leafleting on vehicles causes the problems the Town asserts. Although this Court can imagine an ordinance like Section 45-12 being justifiable, the Defendants in this case have not shown that the justifications apply here."As the law violates the First Amendment, the Town is liable because the police invoked it in telling Robinson to stop leafleting parked windshields. Robinson is granted summary judgment.

Robinson also claims that when he then went over to the public park where the Town was hosting Community Day, the police told him that he could not leaflet people face-to-face. Although the police deny that allegation, if the jury believes Robinson's testimony, then he wins that portion of his First Amendment case as well. That part of the case goes to trial.

Riddle me this

2011-12-30T07:00:00.000-08:00

A pro se plaintiff by the name of Riddle beats a large management-side law firm in persuading the Court of Appeals that the trial court should not have dismissed her Family and Medical Leave Act claim.

The case is Riddle v. Citigroup, a summary order decided on December 5. The district court evidently overlooked Riddle's FMLA claim completely when it threw out the complaint. The Court of Appeals finds that the complaint states a claim under Rule 12. According to Riddle, "human resources personnel prevented her from obtaining medical leave and did not allow her to fill out medical-leave applicants, and that she was given notice of her termination in April 2007, immediately after she attempted to obtain leave." These allegations state a claim under the FMLA. It looks like a textbook case, really. But that that does not end the inquiry.

Defendant says that Riddle blew the two-year statute of limitations. Riddle says that her case is governed by the three-year statute of limitations, which requires that the employer "willfully" denied the plaintiff her FMLA rights. Willful means reckless disregard of the plaintiff's rights. The Court of Appeals (Straub, Livingston and Cabranes) says that the allegations plausibly suggest that Citigroup willfully mistreated Riddle. "As such, whether the conduct was 'willful' (and thus, whether the three-year statute of limitations applied) is an issue that should be decided on remand, either by the District Court on summary judgment if there is no genuine issue of material fact, or by a jury if Riddle introduced evidence sufficient to support a finding of willfulness or if the issue turns on questions of credibility."

Citigroup has another defense here. It says that Riddle signed a release in a separation agreement that prevents her from bringing this action. The Second Circuit cannot resolve this defense. Riddle says the release was procured through fraudulent inducement, and that she did not receive adequate consideration in exchange for the agreement. These issues are more appropriately resolved on remand. Let the district court worry about it.

Circuit grants habeas petition in double rape case

2011-12-29T06:30:00.000-08:00

I am always amazed when the Second Circuit vacates a state court criminal conviction on constitutional grounds. Not only because Congress has made it harder for federal courts to do this (state courts get the benefit of the doubt when interpreting the Constitution, even if incorrectly), but because the state conviction has already gone through the appellate process in New York and the Appellate Division and maybe even the New York Court of Appeals has already upheld the conviction. The Second Circuit has vacated another conviction, this time on grounds that the defendant's lawyer was ineffective at trial.

The case is Cornell v. Kirkpatrick, decided on December 1. Cornell was convicted of two rapes at the same trial in Ontario County Court. One rape took place in Monroe County, the other in Ontario County, within days of each other. The Second Circuit says that "The Ontario County District Attorney alleged that, because the attack on Victim #2 occurred 'in an automobile that traversed through Ontario County,' he had jurisdiction to simultaneously prosecute both alleged rapes—the one that occurred in Ontario and the one that occurred in Monroe—under New York Criminal Procedure Law § 20.40(4)(g) (the “private vehicle exception”)." Cornell's lawyer did not object when the Monroe County rape went to trial in Ontario County. He should have.

A defendant in New York has a right to be tried in the county where the alleged crime was committed. The prosecution has to prove at trial that the crime took place in that county. This can be a question for the jury, but there was no dispute here; the prosecutor in his opening statement said the crime took place in Monroe County. Now the state is singing a different tune, saying on appeal that the prosecutor was mistaken in his opening statement. The Second Circuit (Newman, Cabranes and Straub) is not buying this nonsense, and it suspects the DA is changing his story because it realizes that a State Court of Appeals ruling (People v. Moore) is directly on point in favor of Cornell (a case, by the way, that everyone seemed to overlook as the criminal case wended through the state system). Judge Straub writes, "We remind the State that the prosecutor plays a special role in our society, unique from that of his adversary at the defendant’s table. The prosecutor is “the representative . . . of a sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done.” The Second Circuit is also withering in its criticism of Cornell's trial counsel: "Although Cornell’s trial counsel presented an opening and closing statement, cross examined witnesses, and presented a defense case with three witnesses, the fact remains that he was completely ignorant of the venue law in New York."

Anyway, "[h]ad Cornell’s counsel objected to venue on the basis of Moore, the trial court would have been required to submit the issue of venue to the jury and instruct it on the limitation imposed by Moore" at trial. This could not have been a strategic decision by Cornell's criminal lawyer; he simply blew it. The error could have made a difference at trial because "the record demonstrates that the jury, appropriately instructed as to venue, would have easily found by a preponderance of the evidence that the rape occurred in Monroe County." Cornell thus gets a new trial.

Airline exclusion means no private claim for disability discrimination

2011-12-23T08:00:00.000-08:00

A disabled woman was shafted by Jet Blue Airways when it did not provide her timely wheelchair assistance at Idlewild Airport in New York City and in Puerto Rico in July 2009, causing her physical and emotional injuries. She sues Jet Blue under the Air Carrier Access Act of 1986 and Title III of the Americans with Disabilities Act of 1990. She loses the case. There is no private right of action under the Air Carrier Access Act, and the complaint also fails to state a claim under the ADA.

The case is Lopez v. Jet Blue Airways, decided on December 1. Let's start with the Air Carrier Access Act, which prohibits airlines from discriminating against "an otherwise qualified individual" because she "has a physical or mental impairment that substantially limits one or more major life activities." This language mirrors the anti-discrimination provision under the ADA. The ACAA does not expressly allow people to sue for damages, so the Court of Appeals (Cabranes, Livingston and Chin) has to decide if the law implies a cause of action, no small task ever since the Supreme Court in 2001 made it harder for the courts to do this.

Prior to 2001, some Courts of Appeal said that you could sue for damages under the ACAA. That was before the Supreme Court in Alexander v. Sandoval, 532 U.S. 275 (2001), tightened the screws. Since 2001, the Tenth and Eleventh Circuits said that under Sandoval, there is no private claim under the ACAA because the language and structure of that statute manifests no congressional intent to create a private right of action in federal court. The Second Circuit agrees with the Tenth and Eleventh Circuits. Under the ACAA, aggrieved persons may go after the airlines for disability discrimination, but only through an "administrative enforcement scheme designed to vindicate fully the rights of disabled passengers." Since Congress did not explicitly provide for any relief in court, that alternative remedy means there is no lawsuit for Lopez. Congress is allowed to make those choices, and thanks to the Sandoval, there is nothing the courts can do about it.

What about Lopez's claim under Title III of the ADA? No dice here, either. The ADA simply doesn't cover a claim like this. Under Title III, "private entities that are primarily engaged in the business of transporting people" cannot discriminate on the basis of disability in providing "specified public transportation services." But "specified transportation services" is defined under the ADA to exclude aircraft. It does cover bus, rail and any other conveyance. But not aircraft.

The only claim left for Lopez is Title III's prohibition against disability discrimination in "any place of public accommodation," which includes "a terminal, depot, or other station used for specified public transportation," defined to include terminals, depots or other stations only if they are used for "transportation by bus, rail, or any other conveyance (other than by aircraft)." As the Court of Appeals sees it, in conjunction with the aircraft preclusion, "terminal, depot, or other station" must "exclude a facility in which surface or underground transportation is merely an auxiliary function and the facility is primarily devoted to air travel." As such a facility is not a "terminal, depot, or other station" under the ADA, these things are not public accommodations under the statute. I wonder how much the airlines pushed for an airline exclusion under the ADA? Whatever they paid their lobbyists, it looks like the airlines got their moneys' worth.

NYC's campaign finance rules satisfy the First Amendment

2011-12-22T06:30:00.000-08:00

Pushing aside recent Supreme Court cases that take a dim view of campaign finance legislation, the Second Circuit holds that the First Amendment does not prevent the New York City Council from regulating campaign contributions in order to avoid the appearance of public corruption flowing from possible "pay-to-play" contributions.

The case is Ognibene v. Parkes, decided on December 22. The Supreme Court has rewritten campaign finance law over the past few years under an expanded view of the First Amendment. These cases include Citizens United v. F.E.C., 130 S.Ct. 876 (2010), a decision that everyone hates because it allows in some instances for unlimited corporate contributions to political campaigns. But New York City forged ahead in regulating contributions, which do the following: (1) people who do business with the City, including lobbyists, are held to more strict campaign contributions than Johnny Average; (2) there are no matching funds for those who do business with the City; and (3) the existing prohibition on corporate contributions are now extended to partnerships, LLC's and LLP's. Are these restrictions constitutional? Yes.

Here's why. First, the Supreme Court distinguishes between limits on campaign expenditures and campaign contributions. Expenditures are hard to limit ("strict scrutiny" test), but the government has more leeway to limit contributions so long as they are "closely drawn to address a sufficiently important state interest." That interest may include the prevention of actual or perceived corruption. The "doing business" restriction is legal under the more lenient standard of review because "the perception of corruption, or of opportunities for corruption, threatens the public's faith in democracy." In enacting this law, the City Council may take into account the common-sense view that people doing business with the City are making contributions in order curry favor with policymakers and regulators. While the plaintiffs who challenge this law argue that the Council needs more concrete evidence of corruption to justify this law, "there is no reason to require the legislature to experience the very problem it fears before taking appropriate prophylactic measures. ... Appellees essentially propose giving every corruptor at least one chance to corrupt before anything can be done, but this dog is not entitled to one bite." (That's district judge Crotty, ladies and gentlemen. Judges Livingston [for the most part] and Calebresi join him in this opinion). In addition, there is some evidence that the largest donors are the ones doing the most business with the City. Donors with business dealings were less than 5.3 percent of the contributors, but they accounted for 21 to 25 percent of all dollars contributors. That's pretty good evidence that the public might perceive a pay-to-play mentality in City politics.

Second, the non-matching contributions are also constitutional. While non-matching does not prevent you from making a contribution, it does minimize the value of that contribution. Encouraging small, individual contributions, the public financing law matches contributions of up to $175 using tax dollars at the rate of 6 to 1. This also discourages the entrenchment of incumbent candidates. As the Court of Appeals interprets Supreme Court authority, these interests are enough to justify the non-matching funds rule for contributors doing business with the City.

Finally, the City law includes a ban on contributions by partnerships, LLC's and LLP's. The First Amendment allows for this prohibition, for two reasons: (1) anti-corruption and (2) to prevent those who run partnerships, etc., from circumventing contribution limits. The anti-corruption focus is obvious to anyone reading this decision. As for anti-circumvention, the government has an interest in preventing individuals from taking advantage of the minimal disclosure requirements such that entity contributions only have to be attributed to a partner or owner when they exceed $2,500. In a footnote, the Court of Appeals explains how you can circumvent contribution limits in the absence of the City's law:

The following examples demonstrate how easily campaign contribution can be bundled to circumvent limits: (1) a real estate developer, his wife, and two executives from his LLC all gave maximum contribution to the same incumbent candidate for City Council; (2) the same developer, his immediate family, his LLC, and officers of his LLC contributed nearly $100,000 in the 2001 and 2005 City election cycles, id. at 32; (3) two real estate developers and their newly-formed LLC gave nearly ten times the amount of donations they had given in the past after initiating a particular project; (4) the owner of a parent company of the construction company that received a contract to build a major transportation hub in Manhattan, his children, and the owner of the parent company’s marketing firm all gave significant contributions to an incumbent candidate for Borough President.

Back to the drawing board

2011-12-19T06:37:00.000-08:00

The Court of Appeals has reinstated a First Amendment retaliation lawsuit because the district court did not give plaintiff a fair opportunity to make certain arguments that could have saved the case from dismissal.

The case is Hughes v. Anderson, a summary order dated November 1. Plaintiff was a court officer working from the Unified Court System. He told the Chief Court of the Nassau County District Court that some court officers were leaving their posts early to work other jobs and falsified their time sheets to cover up their departure times. Cases like this are governed by Garcetti v. Ceballos, 547 U.S. 410 (2006), which holds that whistleblowing is not protected under the First Amendment if the speech is made pursuant to the plaintiff's official duties. Cases like this are now being routinely dismissed because most relevant work-related speech do grow out of the plaintiff's official duties.

Defendants' lawyers were probably licking their chops when they were assigned to handle this lawsuit, and they immediately began working on a Rule 12 motion to dismiss. The district court threw out the case "because, although Hughes’s alleged report of misconduct involved a matter of public concern, '[n]either the Complaint nor the proposed Amended Complaint adequately allege[d] facts to support the argument that the statement to the Chief Clerk was made outside Plaintiff’s official job duties.'”

There was a problem with the district court's ruling, which prompts the Second Circuit (Leval, Livingston and Lohier) to remand the case to the district court. "The district court erred in dismissing Hughes’s First Amendment claim with prejudice on a ground not raised by a defendant without giving him notice and opportunity to respond, and without affording him an opportunity to demonstrate that any deficiency in his complaint could be cured in an amended pleading. As a general matter (excepting clearly frivolous cases), it is improper for a district court to dismiss a complaint with prejudice for failure to state a claim without giving the plaintiff notice and an opportunity to be heard and to offer an amended pleading." Moral of the story is that the court has to give plaintiff a fair chance to save the complaint from dismissal. If not, the case returns to the trial court for round two.

Summary judgment reversed in First Amendment retaliation case

2011-12-16T04:00:00.000-08:00

What do you have to do to win a First Amendment claim around here? The Court of Appeals tells us. Yesterday, I summarized a Second Circuit case that held that a teacher in Westchester County engaged in free speech when she reported child abuse at a former teaching job in Virginia a few years before the Mamaroneck School District denied her tenure in 2007. This blog post will talk about the other issues in the case.

The case is Nagle v. Marron, decided on December 12. The discussion on Nagle's protected speech is here. Management said that it had good reason to deny Nagle tenure because her superiors were thinking about letting her go even before they learned about her free speech. That's a common defense in First Amendment and employment discrimination cases. The Court of Appeals provides guidance in this area, perhaps for the first time, as it cites no cases to support its holding. It is settled law that "an adverse employment action occurs on the date that a decision was formally reached." While "events leading up to a formal decision will, in many situations, be relevant to the analysis of causation," management "cannot insulate itself from liability at the summary judgment stage simply by asserting that an adverse employment decision had in fact already been made, without being memorialized or conveyed to anyone, before the employer learned of the protected conduct." Here, Nagle's superior said "he was leaning" toward letting her go. Judge Calabresi writes that "a jury would be entitled to find that the Virginia events convinced him to follow his inclinations, and thereby played a part in his ultimate decision." But that does not mean the school district gets summary judgment. That supervisors were thinking about letting Nagle go does not mean they had reached a final decision. The free speech could have been the tipping point. As the Court of Appeals says, the jury could find that "the Virginia events convinced [the decisionmaker] to follow his inclinations, and thereby played a part in his ultimate decision." But, again, that's for the jury. By the way, the six week gap between defendants' learning about the protected speech and Nagle's termination is close enough to infer a causal connection.

An interesting sideshow bobs to the surface in this case. The school district says that, to the extent that Nagle's speech in Virginia caused them to terminate Nagle, "it was not the content of the speech that mattered but what they took to be Nagle's violation of school rules in reporting the abuse to the police rather than to her principal." The Court of Appeals is not buying this.The Second Circuit says, "this 'counter,' if anything, is evidence against Appellees' position. Just what Appellees believed about Nagle's conduct in Virginia, and how, if at all, those beliefs influenced their actions may well be issues critical to resolving this case."

The school district also says it was justified in letting Nagle go because she chose a particular book to read to her class without first consulting with the school psychologist. But there is no evidence that school customs or protocols required such a consultation. So the jury may reject that defense. Similarly, the school district says that Nagle sent a child home without speaking to administrators. But a superior testified that Nagle did not violate the rules in doing this. A jury has to decide if these are good reasons to fire Nagle. Other defenses are also rejected in the Second Circuit. Not only is there no evidence that Nagle had ongoing performance problems before she was fired (her performance reviews were "fair to positive"), but a strange reason to justify her termination -- that she ran out of a conference room in tears after hearing from third parties that she was going to be denied tenure -- is not so egregious as to merit dismissal of her case in light of the paucity of evidence that she was a bad teacher.

Nagle did not just sue individuals; she sued the school district. That means she has a Monell claim, which requires proof that the school board fired her pursuant to a policy or custom. You can show a policy if the final decisionmaker pulled the trigger. The school district is the policymaker, but it was the superintendent who made the recommendation to fire Nagle. The school board does not usually override the superintendent's recommendation. The Court of Appeals has never resolved this issue, but it cites an 11 year-old district court case from Alabama that says that a the superintendent may be deemed the "final decisionmaker with respect to personnel appointments" since "his recommendations are essentially those of the government body." So, if the board of education's vote is a formality and a rubber stamp, then the superintendent was delegated policymaking authority under Monell. Other Circuit courts seem to agree with this "cat's paw" theory. The Second Circuit suggests that the district court give this some thought on remand.

Free speech never goes stale

2011-12-15T07:00:00.000-08:00

The Court of Appeals has reinstated a First Amendment retaliation suit that alleges that a Westchester County School District retaliated against a teacher who blew the whistle on child abuse a few years earlier, when she was teaching in Virginia. The case includes several important rulings of interest to attorneys who handle public employee retaliation claims. This blog post focuses on the Second Circuit's rulings on whether Nagle engaged in protected speech. The next installment will cover the remaining issues, including causation.

The case is Nagle v. Marron, decided on December 12. When Nagle was teaching in Virginia, she reported to the appropriate authorities that a fellow teacher was abusive to the students. That made the newspapers in Virginia. When Nagle was teaching in Mamaroneck in 2007, her superiors Googled her and learned about the Virginia whistleblowing. After Nagle then complained in a separate incident in Mamaroneck that someone forged her name on a teachers' evaluation, Nagle was then denied tenure. The Court of Appeals (Calabresi, Raggi and Gleeson [D.J.]) rules as follows:

1. Nagle received a less than satisfactory performance review, which she refused to sign. But someone else signed her name! The school investigated the alleged forgery, and figured out who probably did it. Nagle claims this report of the forgery is protected under the First Amendment, and that this report led to her termination. The forgery report is not free speech, the Court of Appeals holds. These cases are not easy to win in the Second Circuit, which held in Weintraub v. Board of Education (2010) that speech is unprotected if it is "part and parcel" of the plaintiff's ability to do her job. This flows from the Supreme Court's holding in Garcetti v. Ceballos (2006) that the First Amendment does not protect speech that is made pursuant to your official job duties. The Judge who writes the Nagle decision dissented in the Weintraub ruling, arguing that the Court of Appeals was too-narrowly interpreting Garcetti. But Judge Calabresi does not have the opportunity to develop that dissent in Nagle. That's because "the forgery incident did not implicate a matter of public concern," a threshold issue in these cases. "No authority supports Nagle's argument that reporting an alleged crime always implicates matters of public concern. The forgery of Nagle's signature, even if such conduct were criminal, had no practical significance to the general public." If the public would not care about the speech, then it's not a matter of public concern under the First Amendment.

2. Nagle does prevail on her other speech claim, the one involving the reported child abuse in Virginia. The district court said this was not a matter of public concern because the speech was four or five years old. The trial court said that while that speech may have implicated a matter of public concern way back when in Virginia, it lost its vitality under the First Amendment by the time Mamaroneck school officials found about it, i.e., it was "old news." The Court of Appeals is flummoxed by this reasoning. It looks like the trial court mixed up the "public concern" analysis with the question of whether that speech led to plaintiff's termination. Here's the reasoning:

Whether speech pertained to a matter of public concern and whether it was uttered in the speaker’s capacity as a private person are not facts that change over time. A teacher’s expressive conduct made in the course of working for a candidate’s political campaign, for instance, would constitute protected speech even if the candidate lost and his candidacy therefore ceased being a matter of immediate public concern. And the speech would remain protected if the teacher moved to an area where the candidate had not been on the ballot. The First Amendment protects precisely such public participation, both at the time it occurs and ever after.

Although there is no case on point that says that free speech does not wane over time, that does not entitle defendants to qualified immunity. You don't need a case on point to show that the law is clearly established such that management was on notice that it was violating the First Amendment in a retaliation case. An official "who violates clearly established law necessarily lacks an objectively reasonable belief that his conduct was lawful."

Finally, the trial court rejected Nagle's First Amendment claim relating to the child abuse because Nagle had violated protocol in reporting the abuse. Even assuming that Nagle did violated protocol in Virginia, that is no basis to reject her claim under the First Amendment. There is no binding authority for the proposition that the First Amendment only protects speech that the plaintiff utters in line with protocol. While the failure to comply with protocol may "give rise to an alternative, non-retaliatory ground for an adverse employment action" and therefore predicate a successful causation defense, that does not mean the speech is not protected under the Constitution.

In the end, Nagle will get a trial on her First Amendment claim from the alleged retaliation for her speech in Virginia. The remaining issues are the subject of tomorrow's blog post.

You cannot sue the prosecutor for lying to County Court

2011-12-14T03:30:00.000-08:00

We start with the proposition that you cannot sue the prosecutor, who has absolute immunity from suit so long as the misconduct took place in pursuit of his official duties. Doesn't matter what he does, doesn't matter what he says. You can't sue him, and if you don't like it, lump it.

The case is Flagler v. Trainor, decided on November 21. Flagler was a domestic violence victim who was the chief witness at trial her ex-boyfriend. Trainor was the assistant district attorney who was prosecuting the abuser. Trainor swore to the local court that he thought Flagler was going to leave the area to avoid testifying against her abuser and that Flagler was not returning his phone calls or cooperating with the case. Following the material witness hearing, the County Court decided to take Flagler into custody and held her overnight without bail. Her cell phone was also confiscated. Flagler says that Trainor misled the County Court about Flagler's alleged refusal to testify and that Flagler had every intention to appear at trial. According to the lawsuit, Trainor's lies cost Flagler her liberty, at least temporarily.

Flagler cannot Trainor under the absolute immunity prohibition. Flagler tries to get around this by arguing that Trainor was actually acting as a complaining witness and not as an advocate. This argument has some basis in Supreme Court authority, but it does not work here. The Court of Appeals (Wesley, Calabresi and Lynch) says that "seeking a material witness order is within the prosecutor's 'function' as an advocate. A prosecutor employs prosecutorial discretion when determining whether to seek such an order."

But Flagler may be able to go after Trainor in other ways. Absolute immunity does not shield prosecutors from suit if they defame someone. Trainor told the press that Flagler was "hiding out" before the trial. The defamation claim is reinstated. So is Flagler's claim that Trainor unlawfully accessed her voice mail when Flagler's cell phone was seized. That's because absolute immunity does not shield prosecutors from investigatory acts.

No false arrest claim in prostitution sting

2011-12-09T08:00:00.000-08:00

A gay male who flirted with an undercover police officer in an adult video store was arrested for prostitution after the undercover officer said they could engage in oral sex for money. The plaintiff agreed with this arrangement, kind of, but then he quietly decided against it as they walked out of the store together. The charge against plaintiff was dropped. He sued for false arrest. The district court said the case can go to trial, but the Court of Appeals reverses and says the officer has qualified immunity.

The case is Pinter v. City of New York, a summary order decided on November 18. The Second Circuit goes into detail about how these guys flirted with each other in the store, and in determining whether plaintiff has a false arrest claim, it analyzes the alleged agreement for oral sex with the precision of a business transaction. It seems that plaintiff was looking over some adult videos when the undercover cop smiled at him. They began talking and plaintiff mentioned that he liked oral sex. Undercover said his car was nearby. They left the store together and that's when undercover said he'd pay Pinter money for oral sex. Pinter by this point silently decides he wants nothing to do with the undercover cop but by coincidence they head in the same direction: Pinter to his apartment and undercover to his car.

Funny thing about false arrest. The police can get it wrong and you still can't sue. Even if the police miscalculated, if they did so in good faith and had reason to believe that a crime was underway, they cannot be sued under qualified immunity. Criminal charges were dropped against Pinter, but the Court of Appeals (Cabranes, Winter and McLaughlin) says the district court should have dismissed the false arrest and malicious prosecution claims.

Like I said, the Court of Appeals looks at the oral sex for money deal like a Wall Street transaction. That's because the district court said that Pinter may have a claim because he and the undercover began talking about sex before the undercover offered to pay Pinter. Here's part of the analysis (the undercover cop is referred to as UC31107):

We do not think the apparent existence of an “agreement for sex gratis” prior to UC 31107’s
offer of monetary compensation has nearly the impact that the District Court suggests. First, prior to UC 31107’s offer, neither party had yet explicitly stated an interest in engaging in sexual activity with the other. Second, and of more significance, when UC 31107 offered Pinter the cash, both Pinter and the undercover officer had already expressed to each other a specific desire to perform oral sex. Following UC 31107’s monetary offer and Pinter’s seeming compliance, UC 31107 could have reasonably believed that Pinter had agreed to be compensated in exchange for allowing UC 31107 to act on his desire to perform oral sex on Pinter.

Other evidence also supports qualified immunity for the officer. Read this closely. It tells us that false arrest claims are hard to pursue and that qualified immunity provides police officers with a generous standard in seeking summary judgment. The Court also makes an assumption about gay men and why they enter adult video stores.

it was not plainly irrational or incompetent for UC 31107 to assume that Pinter visited the adult section of Blue Door in search of sexual gratification of one kind or another. Second, Pinter left the store with UC 31107 and without having purchased any adult videos. Third, as they left the store, Pinter accompanied UC 31107 on a walk towards UC 31107’s car—the place where the sex act was to occur. At this point UC 31107 had no way of knowing that Pinter had privately decided not to pursue any sexual activity with UC 31107, and that he was merely headed in the same direction as UC 31107. Nothing in Pinter’s behavior or conversation could reasonably lead UC 31107 to conclude, in the circumstances presented, that Pinter was not interested in receiving money for sexual activity. Finally, on their brief walk together following the mention of money for sex, the pair continued to flirt with one another—even if at UC 31107’s instigation—and struck up an intimate sexual conversation. Putting all of these facts together, we do not think that it was unreasonable or incompetent for UC 31107 to have assumed that Pinter intended to engage in oral sex with him in return for financial compensation.

This is why lawyers don't represent prisoners

2011-12-08T07:00:00.000-08:00

Think this guy is going to take on any more pro bono cases? I doubt it. Poor fellow represented a prisoner in federal court, and he actually convinced the jury that a Rastafarian's religious freedom rights were violated when prison guards tussled with his dreadlocks. Jury gave his client $1.00 in damages. The lawyer recovers $1.50 in attorneys' fees. The Court of Appeals upholds the $1.50 fee award.

The case is Shepherd v. Goord, decided on November 15. In the mid-1990s, when it was open season on prisoners in the U.S. Congress, the Prison Litigation Reform Act was enacted. It was intended to reduce the number of inmate lawsuits. One way to do that was to make it more difficult for attorneys to recover attorneys' fees in successful cases. Take away the attorneys' fees, and the attorneys will take a pass.

Congress was so eager to enact the PLRA once the Republicans took over the House and Senate that no one bothered to make sure the statute was written clearly. (In fairness, President Clinton signed the PLRA into law, so this is a bi-partisan deal). Under the PLRA, if the inmate wins money at trial and is therefore a prevailing party, his lawyer gets attorneys' fees. But, "if the award of attorneys' fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant." This is not the clearest language in the world. What it really means is that if the prisoner wins the case, his lawyer's fees cannot exceed 150 percent of the judgment. That's because the defendant is not responsible for fees beyond 150 percent. Since only the defendant pays out the attorneys' fees award, this provision essentially sets a 150 percent cap on fees.

So, if the jury awards an inmate $50,000, counsel can get up to $75,000 in attorneys' fees. Not too shabby. But here, counsel prevailed at trial, but the jury only awarded his prisoner client a dollar. Counsel filed an attorneys' fees application in the amount of $99,000. But the trial court said -- and the Court of Appeals (Raggi, Miner and Sack) agrees -- that counsel may only recover $1.50 in attorneys' fees.The Court of Appeals knows this is a harsh result for the lawyer. But the Second Circuit says that "whatever arguments can be mounted for against the policy choice reflected in [the PLRA], particularly as applied to pro bono counsel, the proper forum for that debate is Congress, not the courts." If you don't like the result, the next train to Washington leaves in 15 minutes.

Ledbetter Act does not get plaintiff a new arbitration hearing

2011-12-06T06:00:00.000-08:00

The Court of Appeals rejects an effort to vacate an adverse arbitration award that the aggrieved employee says violated the Lilly Ledbetter Act of 2008, which retroactively allows courts to consider what the Supreme Court used to deem stale allegations of pay discrimination.

The case is Schwartz v. Merrill Lynch, decided on November 1. In Ledbetter v. Goodyear Tire, 550 U.S. 618 (2007), the Court said that pay discrimination claims begin to accrue when management puts in place the discriminatory pay scheme, and that the statute of limitations is not revived each time the female employee gets another paycheck arising from that scheme. In other words, the female employee cannot challenge the unfair paychecks more than 300 days after management set the discriminatory pay scale. Congress overturned the Ledbetter decision in the Lilly Ledbetter Fair Pay Act of 2008, which says that an unlawful employment practice occurs each time the employee gets the paycheck tainted by the discriminatory scheme, even if that scheme happened a few years ago. Unlike many laws that overturn Supreme Court rulings, the Ledbetter Act has retroactive application.

In this case, the plaintiff sued Merrill Lynch for pay discrimination. Her case went to arbitration. The arbitrators ruled that Schwartz did not prove her claims of discrimination. One of the reasons she lost was that the arbitration panel for the most part would not consider events that predated her April 2, 2001 settlement and release from prior claims of discrimination (unless the evidence predated that date by six months).

Schwartz next asked the federal court to vacate the arbitration award as clearly contrary to the Ledbetter Act, which has retroactive application and, according to her, required the arbitrators to consider evidence of discrimination predating April 2001. The district court denied this motion, and the Court of Appeals (Kearse, Sack and Katzmann) affirms. Any employment lawyer will tell you that it is very, very hard to overturn an arbitration decision. You can do so if the decision is in manifest disregard of the law, but that is a tough hurdle to climb. Here, the arbitrators simply interpreted the April 2001 settlement in limiting the introduction of evidence, and they extended some flexibility into the process by considering evidence of discrimination predating that release by six months. The settlement contained the usual language saying that plaintiff was waiving any claims accruing through that date. While Congress amended Title VII through the Ledbettter Act, the arbitrators did not plainly ignore that law, as it had not been passed at the time of Schwartz's arbitration. In making its evidentiary rulings, the arbitrators did not exceed their broad discretion to decide her case.

No police liability in neighborly dispute

2011-12-05T05:30:00.000-08:00

It's a fact of life these days for civil rights lawyers that false arrest claims are hard to win. In this case, a neighbor called the police on plaintiff for doing something wrong. In fact, plaintiff was doing something else wrong. The fact that plaintiff was doing anything wrong at all means he cannot sue for false arrest.

The case is Pacicca v. Stead, a summary order decided on November 14. It looks like Pacicca and Stead were neighbors who hated each other. Stead called the police on Pacicca when he saw Pacicca damaging the grass on his property. The police acted on that complaint. Pacicca said there was no probable cause because, in fact, the property belonged to the City of White Plains, not Stead. So it's not an arrest for damage to private property but an arrest for criminal tampering. The Court of Appeals says that "a reasonable officer could believe that a person repeatedly moving rocks from city property gives rise to probable cause to arrest and prosecute that person for criminal tampering." The Second Circuit (Jacobs, Sack and Raggi) does not say this in the opinion but the law has developed to the point that the police may arrest you so long as you were committing any crime at all, even if they are mistaken about the initial reason for the arrest.

The case did go to trial on the malicious prosecution claim. Pacicca challenges the jury charge, which says that you cannot sue the police if the prosecutor exercised independent judgment and played an active role in initiating the criminal prosecution. The charge also said that if the officer provides the prosecutor with false information about the charge, then the officer may be sued after all. This was the correct charge, the Court of Appeals says. That's because the prosecutor testified that he consulted with Stead and independently decided to prosecute Pacicca. So that even if the officers gave the prosecutor false information, the prosecutor's independent actions get them off the hook.

Stuck in the cubicle

2011-11-30T05:57:00.000-08:00

Retaliation claims under Title VII require the plaintiff to show that management's response to her complaints about discrimination would deter a reasonable person from against speaking out in the workplace. That's the rule under Burlington Northern v. White, 548 U.S. 53 (2006), and it's a generous one. But it won't get you a trial in every case.

The case is Roncallo v. Sikorsky Aircraft, a summary order decided on November 21. What does it take to shut up workers who complain about discrimination? And what does management have to do for plaintiffs to sue for retaliation? When the Supreme Court in the Burlington Northern case came up with the legal standard governing these cases, it created a separate "adverse employment action" from that utilized in the more traditional disparate treatment cases, which require a material change in job conditions (such as termination, demotion, loss of pay) in order to prove the plaintiff suffered discrimination. Retaliation claims became a little easier for plaintiffs to pursue under this standard. And Burlington Northern contradicted the view -- held by many -- that the Supreme Court is comprised of pro-corporate Justices.

Not every retaliation case proceeds to trial, though. In this case, the plaintiff said that he was a retaliation victim because he was temporarily moved from an office to a cubicle. No one wants to work in a cubicle if they can work in an office, and to use a baseball analogy, going from an office to the cubicle is like going from the major leagues to a AA minor league team in Duluth. To use a rock and roll analogy, it's like going from Madison Square Garden to Joe's Pub in rural Wyoming. But perhaps these analogies try too hard. These downshifts are substantial, but you get the point. Going from office to cubible is not considered a dramatic job change. The Second Circuit (Sack, Wesley and Katzmann) disposes of this argument in short order. The temporary move to a cubicle is not an adverse action.

Warrantless entry into house is legal under Fourth Amendment

2011-11-28T03:30:00.000-08:00

The Court of Appeals has granted summary judgment to police officers who entered someone's home without a warrant. The Second Circuit rules that the officers did this under exigent circumstances as they reasonably believed the plaintiff was inside the house and was armed and dangerous.

The case is Montanez v. Sharoh, a summary order decided on November 9. The Court of Appeals (Katzmann, Wesley and Walker) actually reversed the district court, which granted summary judgment to plaintiff Montanez in this case. That the Court reverses that ruling in favor of plaintiff and instead grants summary judgment to the officers on the basis of qualified immunity in an unpublished summary order only shows how routine rulings like this have become. Last year, Montanez was rejoicing in victory. Today, it's the agony of defeat.

So what happened? The warrantless entry was prompted by a "child welfare check" by the Department of Children and Families. Before they entered the house, the officers were told that Montanez was "armed and dangerous and a convicted felon wanted for weapons and narcotics violations. They were also told to use 'extreme caution' if they located Montanez." When they entered the house, the officers also reason to believe that Montanez was inside. (His presence inside the house creates an exigent circumstance). While plaintiff was a fugitive and no one answered when the police came-a-kocking and called him on the phone, the lights were on at 1:00 a.m. and a side door was unlocked. The police also reasonably thought a child was inside the house (she was at grandma's earlier that day) and that Montanez posed a risk to her. In fact, no one was home. No matter. When the cops entered, they found (and seized) an Uzi and some ammunition. Of course, that stuff was illegal. But the police were legally able to enter the house without a warrant under their objectively reasonable belief that Montanez was inside and posed a serious risk to his children, so the police win the case.

Ghostwriters in the sky

2011-11-23T06:29:00.000-08:00

The general view is that lawyers cannot ghostwrite legal pleadings and other documents for pro se litigants. That's because courts give pro se parties the benefit of the doubt in drafting inartful documents, and they will benefit from that leniency even if a lawyer is helping out behind the scenes. The Court of Appeals is now saying that lawyers who ghostwrite pro se documents are not violating the professional responsibility rules.

The case is In Re Liu, an attorney disciplinary action decided on November 22. This immigration lawyer was disciplined by the Second Circuit for various screw-ups. But the Second Circuit decided that counsel should not be sanctioned for helping to draft documents behind the scenes for pro se litigants.

District courts have been on the lookout for ghostwriters. Recently, one judge in the SDNY suspected that a lawyer was actually drafting the papers for a pro se litigant. The judge said, "The court remains convinced that plaintiff has had the assistance of an attorney in preparing the exceptionally detailed and very lawyerly pleading — utterly atypical of a pro se pleading — that is the subject of this motion. The original complaint also bore the hallmarks of a hidden attorney. If the court ever learns the identity of this attorney he or she will be reported to the relevant Departmental Disciplinary Committee and to the Grievance Committee of this Court." Ochei v. Mary Manning Walsh Nursing Home Co., 2011 U.S. Dist. LEXIS 20542, 20-21 (S.D.N.Y. Mar. 1, 2011)

Looking at this issue afresh, the Court of Appeals (Calabresi, Wesley and Sack) notes that "a number of other federal courts have found that attorneys who had ghostwritten briefs or other pleadings for ostensibly pro se litigants had engaged in misconduct. ... On the other hand, a number of bar association ethics committees have been more accepting of ghostwriting." Some bar associations require the ghostwriting attorney to disclose his role to the court and opposing counsel. Others say that the pro se litigant will not get the benefit of the doubt in these circumstances because her papers will read more professionally. The Second Circuit thus observes, "in light of the ABA's 2007 ethics opinion, and the other recent ethics opinions permitting various forms of ghostwriting, it is possible that the courts and bars that previously disapproved of attorney ghostwriting of pro se filing will modify their opinion of that practice."

The attorney at issue in this misconduct proceeding will not be sanctioned for ghostwriting. The Court of Appeals defers to the experts in this area and suggests that the man behind the curtain can draft legal papers for unrepresented parties without any fear of discipline.

Under these circumstances, we conclude that Liu’s ghostwriting did not constitute misconduct and therefore permit that practice, we conclude that Liu could not have been aware of any general obligation to disclose her participation to this Court. We also conclude that there is no evidence suggesting that Liu knew, or should have known, that she was withholding material information from the Court or that she otherwise acted in bad faith. The petitions for review now at issue were fairly simple and unlikely to have caused any confusion or prejudice. Additionally, there is no indication that Liu sought, or was aware that she might obtain, any unfair advantage through her ghostwriting. Finally, Liu’s motive in preparing the petitions – to preserve the petitioners’ right of review by satisfying the thirty-day jurisdictional deadline – demonstrated concern for her clients rather than a desire to mislead this Court or opposing parties.

Apples and oranges do not make a Title VII claim

2011-11-21T03:30:00.000-08:00

Employment discrimination cases are harder to win the plaintiff has done something wrong. The plaintiff can say that she was singled out and that management looked the other way when male workers screwed up, but these disparate treatment cases face a high hurdle, and the Second Circuit is not too fond of them.

The case is Desir v. City of New York, a summary order decided on November 2. Desir was a probationary teacher who got unsatisfactory ratings for the 2004-05 school year and was relieved of his duties. The Second Circuit (Livingston, Walker and Straub) summarizes Desir's case: "Desir principally relies on the fact that he was both the only African-American teacher of the five who received unsatisfactory ratings for the 2004-2005 school year and the only one of those five who was fired." Now, if you are not that familiar with Title VII law, this might seems a good case. Desir was singled out, right? What about the teachers who got unsatisfactory ratings who weren't fired?

The problem with Desir's case is that the white teachers were not similarly-situated to Desir. They are not comparable because these other teachers were all tenured. Desir was a probationary teacher. He therefore was not subject to the same performance standards as the other teachers. In order to win a disparate-treatment case like this, you have to be "subject to the same performance evaluation and discipline standards and engaged in comparable conduct." Since Desir was a newer teacher still on probation, he is held to different standards to the tenured teachers who got unsatisfactory ratings. As far as the Court of Appeals is concerned, this is apples and oranges.

Desir also sued under the First Amendment. He cannot do so because the speech he claims prompted his retaliatory termination was not on a matter of public concern. It was a personal matter. "Although Desir argues he addressed organizational problems with the home instruction program and not just personal matters, his speech fundamentally concerned his own entitlement to privileges as a home instructor and therefore cannot be considered to have encompassed matters of public concern."

$1 million punitives award in discrimination case cut down to $50,000

2011-11-18T06:17:00.000-08:00

A federal judge has reduced a $1 million punitive damages award to $50,000 following a jury trial in which a black former employee of Memorial Sloan-Kettering Hospital proved that management retaliated against him for complaining about racial discrimination in the workplace.

The case is Chisholm v. Memorial Sloan Kettering Cancer Center, 2011 U.S. Dist. LEXIS 130089 (S.D.N.Y. Nov. 3, 2011). Chisholm convinced the jury that a supervisor, Adamec, punished him for speaking out about workplace discrimination. This led to Chisholm's termination. The jury awarded Chisholm more than $230,000 in back pay and authorized the judge to award him front pay, or future lost income. The jury also awarded plaintiff a million dollars in punitives under the New York City Human Rights Law. That million dollar award has been remitted to $50,000.

First, Judge Marrero awarded $102,000 in front pay, through 2014. Chisholm wanted front pay through 2020, when he turns 65. But the court said that awarding front pay for the next nine years would be speculative and that Chisholm probably would have been fired long before then because of performance deficiencies. Judge Marrero says:

While the Court does not contest the jury's finding that the April 2007 log-sheet incident was not the true reason for Chisholm's termination, Chisholm's behavior in connection with that incident is nonetheless relevant evidence of Chisholm's inappropriate workplace demeanor. That Chisholm had retained transportation department documents in his locked desk drawer and indicative Defendants could troubling justifiably regard as of behavior increasingly erratic. Under these circumstances, the Court concludes that it is unlikely that Chisholm would have remained employed by Sloan-Kettering through 2020.

So, while the jury said the log-sheet incident was not the real reason for plaintiff's termination (and that the real reason was retaliation), the court uses that incident as a means to limit Chisholm's front-pay award.

On punitive damages, the jury awarded them because of Adamec's reprehensible behavior. But the jury was also told that the hospital would pay out the award under the New York City Human Rights Law. The court says the award shocks the judicial conscience. Even though the hospital pays the award, the court cites cases holding that a punitive damages award cannot "be so high as to result in the financial ruin of the defendant." Of course, this award would not ruin the hospital, but it would certainly ruin Adamic were he to pay the award. He doesn't though. While Chisholm's lawyers argued that this large award would deter an institution such as Sloan-Kettering from doing this again, the district court rejects that argument as lacking any support in case law. The court concludes, "While Adamec's conduct was certainly reprehensible, as the jury found, it did not involve violence or the threat of violence. Nor did it involve racial slurs or other offensive language. Moreover, an award of $50,000 represents a significant financial hardship to an
individual defendant."

NYC wins Occupy Wall Street lawsuit. Protesters cannot re-enter Zuccotti Park with tents

2011-11-15T15:23:00.001-08:00

A State Supreme Court Justice has ruled that the City of New York may prevent the Occupy Wall Street protesters from bringing tents and sleeping bags and other things into Zuccotti Park, where the OWS protests have taken place since September 17, 2011. The ruling denies the OWS request for a temporary restraining order.

The case is Waller v. City of New York, decided on the afternoon of November 15. As everyone knows, the OWS protesters have camped out at Zuccotti Park in lower Manhattan to protest the vast inequality of wealth in this country and other deficiencies of the capitalist system. For many protesters, the park was a home away from home. I visited the park in mid-October and found a lively scene with hundreds of people holding signs, reading books, playing guitar, pounding on drums and generally hanging around. I don't know how these people planned on staying there through the winter, but it's been a mild Autumn and the place was wall-to-wall people with a lot of tourists peeking around as well.

After New York City kicked everyone out of the park in the early-morning hours of November 15, the protesters brought an Article 78 petition seeking to continue with the tents and other gear that made the park a permanent protest location. In rejecting the restraining order, Justice Stallman noted that the park is a privately-owned public access plaza that is open 24 hours a day, unlike other city parks, which close at 11:00 p.m. The Court also noted that the park remains open to the protesters so long as they don't bring in all their stuff. Summarizing the parties' positions, the Court said:

The owner of Zuccotti Park has represented that, after cleaning and restoration of Zuccotti Park, it will permit the Occupy Wall Street demonstrators to reenter the Park and to resume using it, in conformity with law and with the owner's rules. Petitioners contend that, under the First Amendment, Brookfield's rules are not valid. Petitioners assert that, given the enactment of the rules after the demonstrations began, the rules targeted Occupy Wall Street.

The Court adds that "the owner of Zuccotti Park had not previously published rules regulating its use by the public." This allows the plaintiffs to argue that the rules were made up on the fly to get rid of OWS in violation of the First Amendment. After assuming that the First Amendment applies to this park, the Court sides with the City of New York. Ultimately, this case turns on "time, place and manner," a branch of First Amendment case law that allows the government to regulate speech on public property so long as the rules are not intended to stifle the political message and the demonstrators have ample alternatives to promote that message.

Here, [plaintiffs] have not demonstrated that the rules adopted by the owners of the property, concededly after the demonstrations began, are not reasonable time, place, and manner restrictions permitted under the First Amendment. To the extent that City law prohibits the erection of structures, the use of gas or other combustible materials, and the accumulation of garbage and human waste in public places, enforcement of the law and the owner's rules appears reasonable to permit the owner to maintain its space in a hygienic, safe, and lawful condition, and to prevent it from being liable by the City or others for violations of law, or in tort. It also permits public access by those who live and work in the area who are the intended beneficiaries of this zoning bonus.

In short, "[t]he [plaintiffs] have not demonstrated that they have a First Amendment right to remain in Zuccotti Park, along with their tents, structures, generators, and other installations to the exclusion of the owner's reasonable rights and duties to maintain Zuccotti Park, or to the rights to public access of others who might wish to use the space safely."

This case does not go away, however. This ruling only addresses the temporary restraining order. The City has 30 days to further answer the petition so the Court may issue a final ruling on the merits.

First Amendment does not protect employee speech to newspaper and public board

2011-11-15T06:00:00.000-08:00

The Court of Appeals holds that a Vermont woman who suffered retaliation after speaking to the newspaper and testifying before a public board about job-related matters does not have a claim under the First Amendment because her speech was not protected under the Supreme Court's Garcetti decision, which holds that speech is unprotected if the plaintiff made it pursuant to her official job duties.

The case is Bearss v. Wilton, decided on November 3. This is a summary order, so the Court does not provide all the facts, but here is what happened: Debra Bearss made two statements: (1) she spoke to the newspaper "rebutting allegations that former city officials had deleted public documents in violation of state law," and (2) she gave testimony "at a Board of Civil Authority hearing regarding Bearss' job performance in which she rebutted allegations that employee benefits had been improperly made by the former city treasurer." Bearss was the City of Rutland's information technology coordinator.

As for the newspaper comment, the Second Circuit (Katzmann, Winter and Wesley) agrees with the district court that plaintiff's speech is not protected because she "was acting as an employee with first-hand knowledge of the City's computer use when she responded to the reporter's inquiries." It was her job to speak to the newspaper in that a city memo said that "any computer issues need to be addressed to Debra Bearss, IT Coordinator." This was comparable to an official communication and therefore not citizen speech.

As for the public hearing testimony, this issue is more complex. Bearss argues that her comments actually reflected her policy disagreements with the City regarding employee benefit decisions. She also says the speech addressed potential malfeasance by the former city treasurer and she therefore spoke as a private citizen. But the Second Circuit sees it differently: "the record supports the conclusion that Bearss' statements were motivated by personal interest in responding to criticism of her job performance and not motivated by a a desire to 'advance a public purpose.'" As there is no citizen analogue to Bearss' speech in that her statements "were made in a forum not available to citizens who are not employees of the City of Rutland," she did not engage in free speech, and the case is dismissed.

Sex-plus Fair Housing Act claim survives dismissal

2011-11-09T07:04:00.000-08:00

Here's what happened to the plaintiff: he went to look for an apartment in Queens. Plaintiff is an unmarried male. The Complaint says the Co-op Board has a policy of refusing to sell to "men who are single." According to the lawsuit, "this discriminatory conduct was a result of a bad experience with a previous male tenant who threw loud parties and smoked marijuana." Does this guy have a case under the Fair Housing Act?

The case is Lax v. 29 Woodmere Boulevard Owners, __ F. Supp. 2d ___, 2011 U.S. Dist. LEXIS 107546 (EDNY Sept 23, 2011). The Fair Housing Act prohibits discrimination on the basis of sex, among other things. This is a "sex-plus" claim, meaning the plaintiff seeks relief because the discrimination was based on his gender plus another characteristic, i.e., he is a single male. This seems to be a case of first impression. The district court says that Lax can bring the lawsuit. But it does so after reviewing Title VII cases involving "sex-plus" discrimination in employment. If Title VII recognizes sex-plus cases, why not the Fair Housing Act? Judge Bianco of the Eastern District of New York makes two observations:

First, "'sex-plus' discrimination claims are not solely limited to women and have been brought by men." Second, "gender plus marital status, the very sub-class alleged by Lax, has been recognized as a protected category in numerous discrimination cases. Although none of these cases were in the context of the Fair Housing Act, the Court finds that the Supreme Court and Second Circuit jurisprudence on 'sex-plus' claims under other discrimination statutes applies with equal force to the language of the FHA." One of the leading cases in this area is Back v. Hastings on Hudson School District, 365 F.3d 107 (2d Cir. 2004).

After Judge Bianco finds that the FHA recognizes this claim, he then holds that the Complaint states enough facts to survive a motion to dismiss. Lax did everything he was supposed to in trying to buy the apartment. It was then placed back on the market when the Co-op Board killed the deal. And, of course, someone on the board said that there was "discriminatory conduct again men who were single ... which was commonly known among building residents." Since the law does not require that Lax prove that the board denied any sale to comparable female applicants, the lawsuit may proceed.

Bergstein & Ullrich settle First Amendment public assembly case

2011-11-07T06:51:00.000-08:00

City of Kingston agrees to pay $25,000 to aggrieved activists

Kingston Times
October 20, 2011
By Jesse Smith

The City of Kingston will pay a locally based pro-Palestinian activist group $25,000 to settle a lawsuit alleging that police violated their First Amendment rights when they were turned away from a 2008 celebration of the founding of Israel in a public park.

According to Stephen Bergstein, attorney for the group Middle East Crisis Response, the agreement was worked out on October 11 just as jury selection was getting underway in U.S. District Court in Albany before Judge Mae D'Agostino. In addition to the $25,000 settlement, the terms of the deal call for a meeting between representatives from the group and incoming Kingston Police Chief Egidio Tinti to discuss how the department will handle similar issues going forward.

"It's one thing to give the plaintiffs some money," said Bergstein. "It's another to have the chief entertain feedback from the plaintiff to prevent this from happening again."

The lawsuit stems from a May 2008 incident at a rally organized by the Ulster County Jewish Federation to celebrate the 60th anniversary of the founding of the Jewish state. About a dozen members of MECR showed up at Gallo Park in downtown Kingston to stage a counter-demonstration. When a shouting match erupted between the two sides, Bergstein said, Kingston cops resolved the situation by removing the MECR contingent from the park and moving them to a spot between Mariner's Harbor restaurant -- out of sight of the pro-Israel faction. When a few of the counter-demonstrators tried to return to Gallo Park individually to pass out leaflets, they were escorted out by police. Bergstein added that the MECR supporters were misled by police to believe that the park was not open to the public for the duration of the rally.

Bergstein said that police overreacted to the heated verbal exchange between the factions and in so doing violated the activists' rights to make their views known.

"I really feel like the police jumped the gun," said Bergstein, who noted that most of the MECR contingent was over age 60. "There was no threat to physical safety."

WDNY gives green light to fees-only lawsuit under Title VI

2011-11-02T06:02:00.000-07:00

This case will be of interest mainly to employment lawyers. A federal judge in the Western District of New York finds that a plaintiff who won her State law discrimination claim in the State Division of Human Rights may bring a lawsuit in federal court in order to recover her attorneys' fees under Title VII. The attorneys' fees-only lawsuit is permissible.

The case is Ballard v. HSBC Bank, ___ F. Supp. 2d ___, 2011 U.S. Dist. LEXIS 123661 (WDNY Oct. 26, 2011). Title VII says that Federal courts have jurisdiction over any actions "brought under this subchapter." The court frames the issue as follows: "whether Ballard's claims solely for attorney's fees and costs are 'actions brought under this subchapter,' or, posed differently, whether Ballard can recover costs arising out of administrative and state proceedings." The answer is yes. Judge Skretny agrees with the Seventh, Eighth, Ninth and Tenth Circuits, which have already addressed this issue. (The Fourth Circuit went the other way on this issue). As the Second Circuit has not yet addressed this issue, this is an important case.

Cases brought solely for attorneys' fees are in fact actions brought under Title VII. Ballard could not seek attorneys' fees in the State Division of Human Rights, which ruled in her favor on the racial discrimination claim, awarding her $35,000 for pain and suffering. So there is no res judicata problem.

What makes this case unique is that Ballard prevailed in the State Division only on her New York State Human Rights Law claim, which does not provide for attorneys' fees. The State Division did not make reference to her Title VII claim, even though she did dual-file her discrimination charge with the State Division and the EEOC. Title VII, of course, does provide for attorneys' fees. The Western District of New York says that Ballard did what she was supposed to in filing in the State Division, and State and Federal discrimination claims are essentially the same animal. The Court concludes that "if a party is successful in the very action that Title VII referred her to and required her to invoke (i.e. the Division proceedings), she will accordingly be deemed a 'prevailing party' under that statute. This is true, in part, because the elements proving a discrimination claim are virtually identical under federal and state anti-discrimination law."

$500,000 Title VII verdict flies out the window

2011-11-01T05:17:00.000-07:00

The Court of Appeals has rejected as baseless a Title VII retaliation verdict that awarded a security officer at the Indian Point nuclear power plant $500,000 in punitive damages. In doing so, the Second Circuit provides guidance on the meaning of Title VII's requirement that a retaliation plaintiff prove that he suffered an "adverse employment action." While the Second Circuit has issued favorable rulings on the "adverse action" question over the last few years, this one goes the other way.

The case is Tepperwien v. Entergy Nuclear Operations, decided on October 31. Tepperwien was a security officer at Indian Point in Westchester County. A male co-worker made sexual advances toward Tepperwien, who complained about this to management. Following this complaint, Tepperwien found himself on the hot seat as management began questioning him about various work-related incidents and filed counseling letters, which Tepperwien claimed were adverse actions sufficient to dissuade any reasonable employee from complaining about sexual harassment again. Plaintiff ended up quitting his job over this retaliation.

Here's what management did to Tepperwien after he complained about the harassment: the facility issued a "factfinder" when someone thought that Tepperwien has not reported that a gas mask was missing. Factfinders are common Q and A sessions, but not quite counseling sessions. Tepperwien said he had done nothing wrong, but he got a counseling letter over this. Another factfinder concerned management's concern that Tepperwien allowed an intoxicated employee onto the site. A month later, when Indian Point needed additional security, Tepperwien was scheduled to work with his harasser; he agreed, however, to take a different shift. Then, at a meeting of the security force, Tepperwien's supervisor gave him the evil eye after announcing that he did not like some of the workers. Plaintiff was then slapped with another factfinder after he agreed to keep an eye on someone's truck parked on the property and then asked his successor to also monitor the vehicle. Plaintiff then quit his job because he could not take it anymore. But he did write in his exit survey that he would consider working for the company again and was satisfied with his job.

In the district court, Judge Seibel took away the jury verdict, wiping out the $500,000 punitive damages award. (The jury awarded no compensatory damages). The Court of Appeals (Katzmann and Chin) affirms, and Tepperwien once again watches half-a-million dollars fly out the window.

After providing a good summary of the state of Title VII retaliation law, the Circuit says that all the bad stuff that happened to plaintiff was too trivial to dissuade a reasonable employee from complaining about sexual harassment, and that these incidents were not even enough in the aggregate to create an adverse action. Not only were the "factfinders" nondisciplinary and common occurrences at Entergy, but Entergy had good reason to initiate the factfinders such that "even assuming Tepperwien acted perfectly appropriately in all three incidents, there certainly was good reason for Entergy management to at least look into these situations." And, while factfinders may lead to discipline, Tepperwien was not disciplined in connection with these incidents. Moreover, while plaintiff received a counseling over the gas mask incident, it was rescinded after he contacted the in-house Employee Concerns Program. The counseling also did not place Tepperwien in an "active disciplinary process" and it was less than a warning or reprimand. Rather, the Second Circuit says that counselings like this are "part of training and necessary to allow employees to develop, improve and avoid discipline." And, like plaintiff, other employees were also counseled for not checking certain equipment. In all, the Second Circuit says that all the negative treatment was not sufficiently adverse (including the evil stare from a supervisor and another supervisor's empty threat to walk plaintiff off the worksite after plaintiff facetiously threatened to kick the harasser in the groin) to support a Title VII retaliation claim.

In the aggregate, these various responses by management in the wake of plaintiff's sexual harassment complaint also would not deter anyone from complaining in the future. As Judge Chin writes, "zero plus zero is zero." Moreover, noting that context is crucial in assessing whether the plaintiff suffered an adverse action, the Court says that the high-security environment at Indian Point requires that management exhibit little tolerance for mistakes and rules violations, and "it is not surprising that Tepperwien was treated in a rough and tumble manner rather than with kid gloves or in a genteel fashion."

In dissent, district judge John Gleeson would reinstate the verdict. This lengthy dissent proves that there are truly two sides of every story. Among other things, plaintiff did not have factfinders until he complained about the harassment. Judge Gleeson fleshes out some of the evidence that the majority opinion omits, including the hassle and runaround that Tepperwien experienced after lodging his complaints. While plaintiff said in his exit survey that he liked his job, Judge Gleeson says that the jury could credit his testimony that he did not want to look like a disgruntled employee and that you can like your job and be reasonably dissuaded from complaining about discrimination at the same time. Judge Gleeson also objects to the majority's view that a high-security workplace might require security officers to put up with diluted antiretaliation rights under Title VII.

Officers violate Fourth Amendment in gun seizure

2011-10-31T05:24:00.000-07:00

Can the police just march into your house without a warrant? Sometimes they can. That does not mean they have the right to seize the gun in the bedroom, though.

The case is U.S. v. Simmons, decided on October 26. This case implicates the Fourth Amendment, which protects the sanctity of the home. Robert Simmons's roommate, Jamar Vaz, told the police that Simmons flashed a handgun during a dispute. The police accompanied Vaz into the apartment so that Vaz could retrieve his stuff. Once they got inside the apartment, the police conducted a protective sweep, making sure no one would jump out of nowhere with a gun. They saw Simmons lying in bed with a gun on the nightstand. They got Simmons out of bed and made him wait in the hallway. The police were now safe. They went into the bedroom and got the gun, and since he already had a felony record, Simmons was thus charged with unlawful possession.

The Court of Appeals (Parker and Pooler [Winter dissents]) says the gun seizure violated the Fourth Amendment. While the "public safety" exception to the Fourth Amendment allowed the police to ask Simmons about the gun without reading him any Miranda rights, the police had no right to then enter the bedroom to retrieve the gun. By this point, Simmons is standing in the hallway in his underwear, surrounded by police officers. The public safety threat is gone. If the police want to retrieve the gun, they can get a warrant. They did not do so, which means the gun is suppressed as evidence. Here's what Judge Parker writes:

Thus, before conducting the search, the officers had effectively allayed the safety concerns that justified their initial questioning of Simmons and had, by exercising control over a compliant occupant and the surrounding premises, neutralized any threat that Simmons or the gun may have initially posed. In doing so, the officers also eliminated the possibility of the destruction of evidence. Under these circumstances, there simply was no "urgent need" to further search the home for the gun without a warrant.

Anti-war protesters lose case against West Point

2011-10-20T03:43:00.000-07:00

Military installations like West Point are no-speech zones, even though West Point is also a college and cultural center. But even no-speech zones cannot allow for viewpoint discrimination. A case went to trial three years ago alleging that anti-war protesters were kicked out a West Point basketball game because of their T-shirts. The jury rejected that claim, and the Court of Appeals affirms.

The case is Dolman v. Horner, a summary order decided on October 18. The Second Circuit (Raggi, Pooler and McLaughlin) summarizes the case:

On February 28, 2004, the Plaintiffs attended a basketball game - open to the public - at West Point. When the national anthem played, they stood up, removing their jackets and revealing t-shirts spelling out “US OUT OF IRAQ.” Shortly after, John Spisso, the facilities manager, told Plaintiffs they could either remove their t-shirts or leave the arena. The Plaintiffs agreed to leave the arena. Garrison Commander Ann Horner sent each of the Plaintiffs a letter barring them from “all areas of West Point” for a period of five years, based on the incident.

You have to remember that this incident took place at the height of the Iraq war controversy. Showing up to a West Point event with anti-war T-shirts was no way to make friends. But if they were thrown out of the game because they were anti-war, then they win the case, because even military installations cannot discriminate based on viewpoint. The jury found for defendants. The Court of Appeals affirms, reasoning that the jury could find that the decisionmakers were not motivated to discriminate against the protesters but instead thought they were enforcing a legal no-demonstration policy:

The district court properly determined that the Plaintiffs failed to satisfy the high standards required to overturn a jury verdict. While the record does contain evidence in support of the Plaintiffs’ case, the record also contains ample evidence from which a reasonable jury could find in favor of defendants. Specifically, a reasonable jury could find that regardless of whether a specific written policy existed prohibiting organized demonstrations at West Point, both Spisso and Horner believed demonstrations were not permitted at West Point, and that belief - not viewpoint discrimination - motivated the removal of Plaintiffs and the subsequent barment order. Moreover, a reasonable jury could conclude that defendants considered the t-shirts as the vehicle for the demonstration, and barred Plaintiffs based on their group effort in conveying the message, rather than for the message itself.

Sanctioned!

2011-10-19T03:29:00.000-07:00

There is a time and a place for everything. For the 9/11 conspiracy theorist, it's the street corner or the Internet, not the Federal courts. There are no sanctions on the street corner. There are sanctions in the Federal courts.

The case is Gallop v. Cheney, decided on October 14. This case alleges that the U.S. government orchestrated the 9/11 attacks. As if the government actually had the coordination to pull something like this off. Anyway, the district court dismissed the case. The Court of Appeals affirmed, but then it threw in a sanctions order for good measure. Plaintiffs' counsel had to show cause why sanctions were not warranted. Then things got interesting.

Plaintiff immediately moved to disqualify the panel that decided the appeal. Counsel said that the judges on the case were too emotionally-affected by the 9/11 attacks to decide the case fairly. What is more, "[t]he affidavit was also peppered with disdainful and unsubstantiated conclusions about the panel members’ emotional stability and competence to serve objectively. See, e.g., Veale Aff. ¶¶ 3, 19 (alleging that the Court had engaged in a “rank, dishonest wielding of ordained power,” and that the participation of one member in particular was so egregious that it “would or should provoke a congressional investigation”)."

That did it. Counsel got sanctioned again, this time for attacking the judges this way. Not only does "the response presents only irrelevant information in a jarringly disorganized manner, united solely by its consistently patronizing tone," but it does not "provide a sufficient basis for pursuing an appeal of Gallop’s claims against defendants." In addition, the response "contains a robust collection of unsupported accusations of bias against the Court. For example, it accuses the Court of 'an untoward, actionably biased judicial response' to Gallop’s claims, 'angry pre-judgment,' and participation (or at least acquiescence) in the 'ongoing' government 'conspiracy' regarding the events of 9/11." The lawyers are hit with paying double the governments' costs in handling the appeal plus $15,000 in fines, to be paid jointly and severally.

Party Witness Rule does not violate First Amendment

2011-10-12T06:50:00.000-07:00

Election Law in New York is notorious for its crazy rules and requirements to get on the ballot. You sometimes hear about political careers that were destroyed because the nominating petitions used the wrong staple. Is that an urban legend? Maybe. But everybody knows you need an Election Law expert to get on the ballot, which is why some of these rules are unconstitutional. But some are legal.

The case is Maslow v. Board of Elections, decided on September 30. It took the Court of Appeals two years to issue this 11-page decision. Political candidates, among other candidates, asked the Court to decide whether the Party Witness Rule violates the Constitution. Under that rule, the guy who circulates petitions to get you on the party primary ballot has to be a notary public or commissioner of deeds. If you can't find a notary or commissioner of deeds, you can use instead "enrolled voter[s] of the same political party as the voters qualified to sign the petition.” The plaintiffs want to use petition witnesses from different political party. They lose the case.

This is a First Amendment case. The plaintiffs say the Party Witness rule violates their freedom of associational right to have non party members assist in party elections. But the Court of Appeals (Hall, Straub and Livingston) say this rule only minimally interferes with freedom of association.

The Court of Appeals notes that "A political party’s associational right to exclude forecloses the possibility that non-party members have an independent First Amendment right to participate in party affairs." Moreover, “As for the associational ‘interest’ in selecting the candidate of a group to which one does not belong, that falls far short of a constitutional right, if indeed it can even fairly be characterized as an interest.” The parties have the right to limit these activities to members of their own party. The Republicans don't need Democrats to gather signatures for Republican candidates, and vice-versa. The rights of the party exceed the rights of the candidates.

What further hurts the plaintiffs here is that there is some logic to the Party Witness rule. The rule was enacted in 1951. Under the Legislative history, New York enacted the Party Witness Rule "apparently in response to incidents of 'party raiding,' whereby members of one party would actively participate in the primary of a rival party in the hope of influencing that party’s candidate nomination and thus improving their own chances in the general election."

Sham affidavits doom plaintiff's sexual harassment case

2011-10-05T05:30:00.000-07:00

Not all factual disputes get you a trial. Sometimes, the plaintiff's many testimonial inconsistencies will convince the court that the plaintiff does not a deserve a trial. The Second Circuit first developed this approach to summary judgment in Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005), a police misconduct case. This time around, the Court of Appeals does this in an employment discrimination case.

The case is Rojas v. The Roman Catholic Diocese of Rochester, decided on October 4. This is a sexual harassment case. Plaintiff says she was harassed by Pastor Enyan-Boadu and that she told management about it, which did not remedy the hostile work environment. Except that her testimony on both whether Enyan-Boadu was her supervisor and whether she told management about the harassment was all over the place.

While plaintiff's summary judgment affidavit and deposition testimony said that the harasser, Enyan-Boadu, was her supervisor and that management knew or should have known about the harassment, the lawsuit itself and her sworn interrogatories said that Enyan-Boadu was only a co-worker. (If he was the harassser, she has a stronger case). Similarly, the EEOC charge and lawsuit (as well as the interrogatories) did not quite allege that she told management about the harassment, but "Rojas's story changed when she was deposed by the Diocese's attorney" when "for the first time, she stated that she complained to [another manager] during her annual performance evaluation ... that Enyan-Boadu was 'touching her.'" Also during deposition, she testified that she told this manager on a different occasion that Enyan-Boadu was "touching me and kissing me." On the other hand, the Second Circuit says, the Diocese sought summary judgment on the basis of affidavits and contemporaneous emails and meeting notes that "strongly suggest[ed] that it had no knowledge of the alleged harassment until after Rojas's employment ended."

So, we have a problem here. Rojas tries to repel summary judgment through an affidavit and deposition testimony that would support her claim. But other documents in the case, including the complaint itself, does not support this sworn testimony. The case is dismissed. Although witness credibility is for the jury, the Court of Appeals has previously held:

in the rare circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete, it will be impossible for a district court to determine whether ‘the jury could reasonably find for the plaintiff,’ ... and thus whether there are any ‘genuine’ issues of material fact, without making some assessment of the plaintiff’s account.

Does this rule make sense? It might. The courts might be doing plaintiffs' attorneys a favor in adopting this rule. With these kinds of inconsistencies, the plaintiff would get destroyed on cross-examination if the case ever went to trial. The Supreme Court has not adopted this approach to summary judgment, but it probably would if given the opportunity. Courts are sensitive to back-door efforts to force a trial through inconsistent summary judgment affidavits.

The serious inconsistencies between plaintiff's summary judgment submissions and her prior sworn statements and judicial admissions allow the Court of Appeals (Cabranes, Hall and Miner) to affirm the grant of summary judgment. The Court reminds us that district courts should not "routinely engage in searching, skeptical analyses of parties 'testimony' in opposition to summary judgment," particularly if there is a plausible reason for the inconsistencies. But in certain extraordinary cases, the trial court may dismiss the case if it thinks the summary judgment affidavits are sham. Otherwise, those affidavits "would license the mendacious to seek windfalls in the litigation lottery." As plaintiff in this case did not explain the discrepancies, summary judgment was proper.

Inmate gets a second chance at late grievance

2011-10-04T06:02:00.000-07:00

Congress has made it so hard for inmates to bring lawsuits that it's a wonder that they even win their cases anymore. But some do, and occasionally the federal courts find ways to minimize the rigid filing requirements that inmates must navigate.

The case is Hill v. Curcione, decided on September 15. This case shows the difficulties of winning an inmate case on the merits, but it also shows that he Court of Appeals will bend the rules a little for the inmates. Hill was at the Niagara County Jail. He suffered an injury when some guards put the handcuffs on too tight, causing some numbness and much pain. He was given Motrin, which didn't kill the pain, and Hill asked for a nerve conduction study. Under the jail's rules, he filed a grievance over the handcuffs. He sues over the excessive force and also challenges the medical treatment.

The medical treatment claim dies instantly. Inmates have to show deliberate indifference to their serious medical needs. This is a difficult standard to meet. Hill cannot satisfy it. The lawsuit says he was denied the right pain medication and the nerve study, but "there is no indication in the complaint that any medical provider recommended treatment different from the treatment that Hill was afforded," the Court of Appeals (Miner, Cabranes and Straub) says. Nor does Hill allege that the jail staff acted with the "culpable state of mind," i.e., deliberate indifference. As the courts see it, cases like this are actually challenging good-faith medical judgment in the jails, not deliberate indifference. The case fails.

But Hill does prevail on another issue. In order to bring a lawsuit for assault or anything else that happens in the jail, the Prison Litigation Reform Act (PLRA) requires inmates to bring an in-house grievance within a certain time frame: in this case, five days from the incident and, if the grievance is denied, you have two days to appeal to the jail's chief administrative officer. This of course is all academic, since inmates rarely win their grievances. But grieve they must. While Hill's grievance was untimely, the jail's grievance guy entertained it and denied it on the merits, not because it was untimely. The Second Circuit adopts the rule that other Circuit courts have followed: "a late filing that is accepted and decided on the merits fulfills the exhaustion requirement of the PLRA." This rule allows for the reality that some institutions waive their procedural defenses. Hill's assault claim in federal court is reinstated. A nice ruling by the Second Circuit, but you can bet that in the future, jails will not entertain untimely inmate grievances on the merits; they will reject them as untimely.

Technicality kills habeas challenge to criminal court exclusion

2011-09-29T08:51:00.000-07:00

The Court of Appeals has repelled a Habeas Corpus claim alleging that a state trial court judge improperly kicked a 12 year-old family member from the courtroom in violation of the Sixth Amendment. The convicted inmate loses on the ultimate technicality: the Court of Appeals find that his lawyer did not preserve his objection to the courtroom exclusion at trial.

The case is Downs v. Lape, decided on September 14. Is there anything worse than losing on a technicality? Making things worse for Downs, Judge Chin dissents from the Second Circuit ruling. This means that Downs had some legitimate arguments, but he could not win over the other two judges, Wesley and Lohier. When Hill went to trial on the charge that he robbed a body shop, the trial court excluded his 12 year-old brother from the courtroom. This is unconstitutional and entitles the defendant to a new trial unless there is a very good reason not to have a public trial. The problem is that a sparse record was made of this determination, giving the Second Circuit very little to work with in assessing whether the state trial judge did the right thing.

After the trial judge kicked out the 12 year-old boy, Downs' lawyer went on the record and said this:

I do want to note for the record that there was a young man who, a family member of the defendant who had been asked by the Court to leave because of his age. He is 12 years old and the Court is indicating that it sets a limit of approximately 16 or 17 years of age.

I informed the family of that and I’m sure they will comply. However, I do want to note, for the record, that I believe the young man is a suitable age and that he would not have been an obstruction to the proceedings.

But be that as it may, I have also spoken to the assistant district attorney earlier to apprise her of the following list of things that I believe that I am entitled to and have not yet received . . . .

The Second Circuit has its hands tied behind its back on this appeal because for Downs to win on his claim that the trial court violated the Constitution, he has to show that the Appellate Division "exorbitantly" applied settled state law rules in rejecting Downs' direct appeal. Judge Lohier says that Downs cannot meet that test. While Downs' lawyer offered a few words on the record after the trial court made its exclusion ruling, it is not clear that this was actually a particularized objection or whether instead counsel was simply telling the court that the family intended to comply with the ruling. These distinctions matter in these cases, and the Court of Appeals defers to the Appellate Division's ruling that counsel did not preserve the objection at trial.

This is a close case, though, as shown by Judge Chin's dissent, which says that counsel did make a proper objection in making his comments "for the record," which is lawyer-speak for saying something that he wants the appellate court to see on some future date in assessing the fairness of the trial. Judge Chin was a former trial judge. He writes, "as a trial judge, I certainly understood that a lawyer was objecting when she stood up and said 'for the record' before expressing disagreement with my ruling. To Judge Chin, it looks like counsel was objecting to the trial court's blanket rule of excluding all young people from criminal trials, a per se constitutional violation since particularized reasons must justify these exclusions. As this objection was timely, counsel did not waive his protest, and this case should be decided on the merits.

Discrimination plaintiffs can sue class-action lawyers for fraud

2011-09-27T05:35:00.000-07:00

The Court of Appeals reinstates a class action lawsuit filed by employment discrimination victims who claimed their attorneys sold them up the river by signing a separate $7.5 million deal with management as a means to settle the cases quickly.

The case is Johnson v. Nextel Communications, decided on September 26. Here's what happened: 587 Nextel employees wanted Leeds, Morelli & Brown, a Long Island law firm that specializes in employment discrimination cases, to represent them in their discrimination claims. The law firm then signed a $7.5 agreement with Nextel. In exchange for this money, Leeds Morelli would have to do the following: (1) persuade its clients en masse to abandon their legal and administrative proceedings against Nextel, abandon their right to a jury trial and accept an expedited mediation/arbitration and (2) allow Leeds Morelli to work as a Nextel consultant for the next two years once their clients' claims are resolved, a deal that would no doubt conflict out that law firm from representing any more Nextel clients. As the Second Circuit (Winter, Hall and Cederbaum [D.J.]) notes, "none of the payments were conditioned on recovery by any of [Leeds Morelli's] clients."

So Leeds Morelli is serving two masters: their discrimination clients and Nextel, who employed the clients. The clients sued Leeds Morelli for, among other things, fraud, legal malpractice and breach of fiduciary duty to its clients. The victims of this double-sided deal say that Leeds Morelli did not share all the details of its deal with Nextel. They also sue Nextel for aiding an abetting breach of fiduciary duty. The Court of Appeals says the plaintiffs state a claim, and the lawsuit thus moves forward to discovery.

The Second Circuit says this deal with Nextel stinks and creates a massive conflict of interest by inducing the law firm to settle its clients' cases in exchange for $7.5 million in an "irresistible incentive" from the very employer its clients were trying to sue. Judge Winter outlines the many ways that Leeds Morelli would collect all this money by getting its clients to sign over their rights against Nextel. "Leeds, Morelli & Brown was being paid by Nextel in effect to ignore its duty to represent clients as individuals with differing claims and interests that might require differing amounts of time and preparation vigorously to pursue a recovery." No doubt the Second Circuit thinks this deal with Leeds Morelli was unethical.

The Court says there cannot be informed consent here; the clients cannot "knowingly" waive their objections to any conflict of interest. The Circuit says that, in light of its relationship with Nextel, Leeds Morelli could not have given its clients independent advice as to whether to sign their settlement agreements with Nextel. For these clients to fully understand the multiple conflicts of interest such that they could waive the conflict, they would have to consult with another attorney to explain it all to them. By definition, the Court says, this cannot be informed consent.

En banc smackdown on phone surviellance lawsuit

2011-09-23T05:16:00.000-07:00

If you don't know how the Court of Appeals is structured, there are 12 active judges and another 12 judges on senior status. Three judges sit on any given case, and if you lose in the Second Circuit, you can ask the entire court to hear the case en banc, all 20 judges and all. The Second Circuit rarely hears a case en banc, but that does not mean these applications do not provide for some riveting reading as the individual judges trade barbs back and forth on whether to hear the case as a full court.

The case is ACLU v. Clapper. The series of individual en banc opinions was handed down on September 21. The Second Circuit originally decided Clapper on May 21. A summary of that decision is here. In that decision, the Court of Appeals said that various journalists, scholars and lawyers have standing to challenge recent amendments to the Foreign Intelligence Surveillance Act, which makes it easier for the government to eavesdrop on telephone conversations with non-Americans outside this country. As the plaintiffs make their living speaking and working with foreigners, they convinced the Court of Appeals that they had a legitimate stake in challenging the constitutionality of the law because this surveillance requires the plaintiffs to expend additional costs to travel abroad to speak to these targets in person rather than have their sensitive and/or confidential phone conversations recorded without their knowledge. In other words, the plaintiffs have standing to bring this lawsuit. Here's how I summarized the case in May:

In challenging the law, plaintiffs filed affidavits that said "the individuals with whom [they] communicate include 'people the U.S. Government believes or believed to be associated with terrorist organizations,' 'political and human rights activists who oppose governments that are supported economically or militarily by the U.S. government,' and 'people located in geographic areas that a special focus of the U.S. government's counterterrorism or diplomatic efforts.'" Their legal injuries stem from their fear of future government surveillance under the 2008 amendments to the wiretapping laws, which have "compromised their ability to locate witnesses, cultivate sources, gather information, communicate confidential information to their clients,and to engage in other legitimate and constitutionally protected communications." They also have to take costly and time-consuming measures to avoid the wiretapping, including traveling long distances to meet personally with individuals.

Unsatisfied with this ruling, the government filed an en banc petition. As usual, the Court of Appeals declines to grant that petition, so the original panel decision stands. The Second Circuit rejected en banc review by a 6-6 vote, more or less along Democratic-Republican lines. Judge Lynch writes an opinion explaining why the original panel decision was correctly decided under traditional standing principles, which hold that you can challenge government policy in court if you can show through affidavits that you will be directly affected by the policy. Judge Lynch is not sure the plaintiff can win the case on the merits, but that's something for the trial court to worry about. His sole rhetorical flourish here is that "the Constitution sets limits on the powers even of Congress. It is the glory of our system that even our elected leaders must defend the legality of their conduct when challenged."

Judges Raggi and Livingston each file lengthy dissents from the Court's refusal to hear the case en banc. Judge Raggi writes that "A rule that allows a plaintiff to establish standing simply by incurring costs in response to a not-irrational fear of challenged conduct is unprecedented. On that theory, even a mobster's girlfriend who pays for a cab to meet with him in person rather than converse by telephone would be acting on a not-irrational fear of Title III interception and, therefore, have standing to challenge that statute." Judge Livingston writes that the original panel decision is "in frank disregard of clear Supreme Court authority."

But Chief Judge Jacobs provides the real rhetorical fireworks. This is no surprise. The Chief is known for this. Here, Judge Jacobs calls this case a political stunt:

At the risk of sounding obvious, the purpose of this lawsuit is litigation for its own sake -- for these lawyers to claim a role in policy-making for which they were not appointed or elected, for which they are not fitted by experience, and for which they are not accountable. As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation. In short, counsel's and plaintiffs' only perceptible interest is to carve out for themselves influence over government policy -- an interest that the law of standing forecloses.

It's hard to win a prison medical indifference case

2011-09-22T06:28:00.000-07:00

An inmate at an upstate New York prison sued under 42 USC sec. 1983 claiming that he was denied access to medically-prescribed therapeutic diets. If the inmate is right, he has a claim under the Eighth Amendment. If he's wrong, then he has no case. The Second Circuit says he has no case.

The case is Collazo v. Pagano, decided on September 2. Inmates don't have it easy. Certainly in the world of litigation they don't have it easy. The rules are different, and the Supreme Court has set out legal standards that everyone else do not have to follow. For claims like this, the inmate cannot win unless the defendant was deliberately indifferent to his serious medical needs. The "serious medical needs" prong is hard enough to meet, but even if the inmate has a serious medical issue, he also has to show that the defendant subjectively intended to deny him appropriate medical attention, the "equivalent of criminal recklessness," the Second Circuit reminds us.

Why does Collazo lose the case? After a prison doctor said that Collazo needed a therapeutic diet low in saturated facts, the jail did provide him the right food. But then a corrections officer accused Collazo of throwing away his food for no good reason. In response, the jail cut off the special diet. That diet was restored after an in-house hearing officer said that Collazo was innocent of the charge. Then, Collazo was diagnosed with diabetes, but he missed a ton of meetings with the prison doctor. His special diet was revoked because of this. As it happened, it wasn't Collazo's fault that he missed the meetings. No one had told him that he was eligible for the special diet.

What we have here is negligence at the jail. But it's not deliberate indifference, the Court of Appeals (Cabranes, Winter and Straub) say. Negligence will get you a good medical malpractice claim. But the courts require deliberate indifference plaintiffs to prove a lot more: subjective or malicious intent. That's not this case. This case involves an "innocent misunderstanding." No Eighth Amendment case for Collazo.

Court reinstates enormous judgment in USERRA reinstatement case

2011-09-19T07:50:00.000-07:00

The Court of Appeals has sustained a nearly $800,000 judgment in a case alleging that a private employer discriminated against an Air Force reservist who was not given a comparable job after he returned from a post-September 11 commitment. This is a significant USERRA case that examines a number of unique statutory provisions on liability and damages. This is also a wipeout for Wachovia, which appears to lost on all the issues it raised on appeal.
The case is Serricchio v. Wachovia Securities, decided on September 13. Wachovia takes it on the chin in this case. Not only did the jury award plaintiff $389,000 in backpay, but it authorized a liquidated damages award in that same amount, and the trial court on top of that ordered plaintiff reinstated to a financial adviser position with certain financial benefits. All because Wachovia denied Serricchio the same or comparable position in violation of the Uniformed Services Employment and Reemployment Rights Act, or USERRA, which offers aggrieved plaintiffs quite a bit in the way of damages and relief for this statutory violation.

The Second Circuit (Pooler, Wesley and Koeltl (D.J.]), issues a series of rulings in this case:

1. The jury could find that Wachovia waited too long to offer plaintiff a position when he returned from military service. Under USERRA, if the plaintiff demands reinstatement, the company has to make prompt and best efforts to do so. The company says that Serricchio did not unconditionally request reinstatement and that his letter to Wachovia said the company was breaking the law and it threatened litigation. But as the Second Circuit notes, the letter also "plainly asked that Serricchio be reinstated, and the fact that it complained about other actions taken by Wachovia does not, under relevant law, negate the fact that it included a demand for reinstatement." These letters are not required to follow any format.

2. The jury could also find that the company did not offer plaintiff a comparable position. Yet, the company did not promptly reply to Serricchio's request for reinstatement, and it did not actually reemploy him for four months. This violates USERRA. As for the comparable position, this is a complicated inquiry. The employer has to predict what the plaintiff's position and duties and compensation would have been (as well as opportunities for advancement) had he not gone off to war. In this case, positions and duties were shifted around at the office, so that when plaintiff came back, he was given a much inferior position with a sharp cut in compensation. "here, the evidence indicated that prior to his activation, Serricchio was responsible for servicing in excess of 130 accounts, and, along with a partner, was responsible for managing in excess of $9 million dollars. By contrast, Wachovia's offer for reemployment consisted of providing Serricchio with a limited number of small accounts, a modest monthly draw that would be offset by any commissions earned, and opportunities for cold calling clients." This offer doesn't cut it under USERRA. The jury could rule in plaintiff's favor, the Court of Appeals says. As he was denied comparable commission-earning opportunities that existed before plaintiff marched off to war, that was also a USERRA violation.

3. The jury also finds that plaintiff was constructively discharged. Plaintiffs lawyers know this is a difficult claim to win at trial. You have to show the plaintiff's working conditions were so intolerable that any reasonable employee would have resigned. More constructive discharge claims wind up in the litigation graveyard than any other. But not here. What makes this case different from the losers is that "the employer had notice of the particular problems with the employment position and took no steps to ameliorate them." The Second Circuit cites an Eighth Circuit case for this proposition. Maybe this gives plaintiffs some additional ammunition in back pay claims. Or maybe instead this concept is unique to USERRA claims. In any event, the jury also could rule in plaintiff's favor on this claim because of (1) Wachovia's unexplained lengthy delay in offering to reinstate plaintiff and (2) he was offered an inferior position (including "cold calling" duties normally given to newcomers) on which he could not support his family. This is enough to show wrongful intent to show constructive discharge.

4. The liquidated damages award was not an abuse of discretion, despite defendant's argument that it acted reasonable and this case includes legal issues of first impression. The USERRA violation was willful in several respects, including the delay reinstatement offer and inferior compensation package, not to mention the constructive discharge. You get liquidated damages for this under USERRA. Nor did the district court abuse its discretion in ordering that Wachovia reinstate plaintiff. Reinstatement the favored remedy in employment cases, and the terms of employment and compensation for plaintiff that the district court ordered were also not an abuse of discretion.

Court of Appeals revives inmate sex abuse class action

2011-09-16T03:15:00.000-07:00

Three thousand inmates in New York sued the state corrections bureaucracy in claiming that female inmates are susceptible to rape and sexual abuse because the state does not properly screen, train and supervise its corrections officers. This class action was filed in 2003, and the Second Circuit heard argument on this appeal in 2009. For now, it rules in favor of the inmates, reversing the district court, which said the case was moot because the named plaintiffs were no longer in jail or did not comply with in-house procedures to challenge the misconduct.

The case is Amidor v. Andrews, decided on August 19. A case is moot if there is no longer a live dispute for the court to resolve. This can happen if you are challenging a policy that no longer will apply to you. In class actions, the case is moot if the policy no longer applies to the named plaintiffs. But mootness is a common-sense idea. A case is not moot if the case is capable of repetition but evading review. In other words, if the case moves to slowly for the court to strike down the policy which may arise again and again, then the courts will review the policy's legality even if it does not apply to the plaintiff when the case is decided.

Inmate cases are at risk for mootness because prisoners come and go and the policy remains in effect. Most of the named plaintiffs here are no longer in jail. The Second Circuit (Winter, Cabranes and Hall) says this is a close case, but it gives one to the inmates. It reasons:

This action is brought on behalf of all women inmates in DOCS custody, alleging constitutionally defective policies and procedures in failing to protect female inmates from sexual harassment, abuse, and assault by male staff. While the entire class may be exposed to the risks caused by the constitutionally defective policies and procedures alleged, as noted, the grievance procedure may be triggered only by an inmate who has been a victim of sexual misconduct. Because the number of inmates subjected to acts of misconduct can be a small fraction of the total inmates at risk, the odds of an inmate being able to complete the grievance procedure and litigate a class action while still incarcerated are rather small. All thirteen appellants were in DOCS custody when they commenced the action; only four remained incarcerated when the district court rendered its September 13, 2005 decision. Four appellants have been released and subsequently reincarcerated during the course of these proceedings, and of these, only two, remained in custody following the filing of the notice of appeal.

Accordingly, we conclude that it was error for the district court to dismiss as moot the claims of the individual plaintiffs who had been released from prison after the filing of the amended complaint.

But while some of the named plaintiffs are still in jail, the case is also at risk for dismissal because of the 13 inmates, only nine filed in-house grievances, and none of those nine raised concerns about the systemic problems with sexual abuse. The Prison Litigation Reform Act requires inmates to file grievances with the jail and follow through with the in-house appeals process before they proceed in court. The PLRA has killed a lot of prisoner lawsuits, and it almost kills this case. But it does not. If all 13 inmates screwed up in their grievances, then the case cannot proceed as a class action. So the Second Circuit goes through the inmates one by one to see who failed and who succeeded. One inmate did hint at systemic abuse, but her grievance was not good enough to preserve her issue in court because she did not follow through on that grievance through the in-house appeals process. Fortunately for the inmate class, three other inmates did file the proper grievance and exhausted the jail appeals process. Those three inmates are the heroes of this case for having successfully navigated the complex maze of in-house inmate grievance procedures that the PLRA has created. The case is remanded to the trial court.

Second Circuit rejects Supreme Court dicta in New Haven firefighters case

2011-09-14T05:45:00.000-07:00

Competing impulses drive Title VII litigation: disparate treatment and disparate impact. Disparate treatment is when the employer discriminates against you on purpose. Disparate impact is when a facially neutral test has a disparate impact against a protected class. This all played out in Ricci v. DeStefano, 129 S.Ct. 2658 (2009), when the Supreme Court took this up for the first time. Ricci is now rippling into the Second Circuit, where it all started.

The case is Briscoe v. City of New Haven, decided on August 15. This is the companion case to Ricci, which began when the City of New Haven canceled the firefighters test because it had a disparate impact on minority candidates. After the Second Circuit ruled in favor of the City, the Supreme Court ruled in favor of the firefighters, ruling that in cases like this, the City may only get away with scrapping eligibility exams if it has a "strong basis in evidence" to believe that certifying the test results would result in a disparate impact case. The Court ruled in favor of the white firefighters who said that the City disparately treated them in refusing to certify the test.

Briscoe is also from New Haven. He wants to be a firefighters. He argues that the test in issue in Ricci had a disparate impact against minority candidates in violation of Title VII. Once again on the defensive, the City argues that the Supreme Court in Ricci already foreclosed this suit because it's dicta in that case says, "If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability." For you non-lawyers out there, dicta is language in a court decision that is not necessary to the holding and is only there as background.

So does this language mean that Briscoe has no case? No. The Second Circuit (Jacobs, Winter and Cabranes) says the above-quoted language from Ricci is only dicta, and that while it resembles the Ricci holding that the City may avoid disparate treatment claims if it has a strong basis in evidence to believe the test results would result in disparate impact liability, the converse -- as set forth in the above-quoted language -- cannot really be true. First, Title VII itself already tells us when a real disparate impact case exists: when the test is job related and consistent with business necessity. Judge Jacobs thus writes: "there is no need to stretch Ricci to muddle that which is already clear." In addition, the dicta in Ricci cannot guide us because "it is difficult to see how a 'strong basis in evidence' can be established for a disparate-treatment claim" as "it is hard to see how one can adduce a 'strong basis in evidence' that oneself will later act with 'discriminatory intent or motive.'"

This is all very complicated. If you have to read all of this twice, don't blame me, and don't blame the Second Circuit. Judge Jacobs suggests we blame the Supreme Court for needlessly adding this dicta to the Ricci decision when it was not even necessary. What this means for Briscoe is that his case is revived (the district court dismissed it) and it gets remanded for the trial court to take up the City's other defenses.

Circuit reinstates inmate's $500,000 sexual assault verdict

2011-09-09T06:30:00.000-07:00

The Court of Appeals reinstates a $500,000 jury verdict in favor of a female jail inmate who was raped by a male corrections officer. The Court finds that the jury properly found Monell liability against the county on the basis that the sheriff was deliberately indifferent to the risk that Cash would be sexually assaulted by an unmonitored guard.

The case is Cash v. County of Erie, decided on August 18. The evidence showed that, at the start of each shift, male sheriff's deputies may walk around unannounced through the female housing units, when the women are undressing, showering or using the toilet. And no county policy prohibited a male deputy from being alone with female prisoners. There were also no monitoring devices to supervise one-on-one interactions. The evidence also showed that in 1999 (three years earlier), a male guard had prohibited sexual intercourse with an exhibitionist female inmate.

Any civil rights lawyer will tell you that it's tough to win a deliberate indifference claim against a county. So while the jury ruled in Cash's favor, the trial court threw out that verdict post-trial. The Second Circuit (Raggi, Jacobs [in dissent] and Rakoff [D.J.]) reinstates the verdict. The evidence suggested that defendants knew there was a risk that male guards might sexually exploit female inmates. The Court notes that, under New York law, "the moral certainty of guards confronting prisoners in sexually tempting circumstances" creates such a "frequent risk of harm to prisoners as to require a complete prohibition of any sexual activity." The 1999 sexual incident also alerted the sheriff that it was not enough to prohibit sexual contact between guards and inmates. The sheriff also knew about sexual assaults at other correctional facilities.

The Court of Appeals concludes, "even if [the sheriff] had no knowledge of prior sexual assaults, it was hardly speculative for a jury to conclude that, at least by 1999, he knew or should have known that guards at [Erie County] and other local correctional facilities were engaging in proscribed sexual contact with prisoners, and that continued reliance on penal proscriptions alone was insufficient to protect prisoners from the range of harms associated with such misconduct." So, while the jail issued a memo telling guards that sex with inmates was prohibited, that was not enough to protect the female inmates. The sheriff should have prevented male guards from hanging around the female housing units when the women are using the shower and otherwise potentially exposing themselves.

Judge Jacobs dissents, concluding that this ruling will effectively "impose strict liability on municipalities and policymakers for any incidents that arise in a prison." He criticizes the majority for casting the issue in general terms: "the 'risk of sexual exploitation posed by male deputies guarding female prisoners.'" It was not enough, Judge Jacobs says, that a female inmate filed a disputed (and potentially questionable) complaint about sexual contact with a male guard three years earlier. In contrast, the jail did take stringent measures to prohibit any future sexual contact. As for the jail's continued reliance on male officers patrolling female housing units, Judge Jacobs writes:

Among the absurdities here is that no guard can know when direct contact may become required; in prison, interventions are not always by appointment. And at the risk of being obvious, this policy would either impose enormous incremental costs or would halve the personnel available for supervision of the facility (and thereby increase the risk of prisoner-on-prisoner violence and abuse).

In any event, the risk associated with having men and women interact in a closed environment is bred in the bone; it means nothing to say that the prison authorities should anticipate it. Abating that risk is another matter. If the majority opinion is sound, the only effective solution would be to have no guards of the opposite sex in women’s or men’s prisons. The majority opinion does not take account of the considerable ramifications. Because male inmates greatly outnumber female inmates, the resulting curtailment of opportunity for female guards would likely trigger valid Title VII suits. People with known same-sex preferences may not be able to serve as guards in any prison. And in another sphere, since military officers are responsible for their subordinates, we could not have mixing of the sexes in the military, unless (I suppose) the officers are paired off.

No First Amendment retaliation claim for student's suicide essay

2011-09-06T06:09:00.000-07:00

The rules governing the free speech of public students are clear: students can say what they want to long as the speech does not materially and substantially disrupt the work and discipline of the school. But the rules governing when district officials can be sued for retaliation are not clear at all. The Second Circuit has now clarified the test of when the district's response constitutes an "adverse action."

The case is Cox v. Warwick Valley Central School District, decided on August 17. Cox was a middle school student. His class assignment asked what he would do if he had only 24 hours to live. The district is really asking for it when it hands out assignments like this. What the district got was Cox's essay stating that he would use the time "getting drunk, smoking, doing drugs, and breaking the law. It ends with Raphael taking cyanide and shooting himself in the head in front of his friends at the end of the 24 hours."

Is this free speech? The Second Circuit (Jacobs, Livingston and Rakoff [D.J.]) does not say. It instead resolves the case on the issue of whether the district's response to Cox's essay was retaliatory. When district officials became aware of the essay, they sent the boy to "in-school suspension" for two hours while they decided whether he was a danger to himself or others. (He was not a danger so they let him go). District officials also referred Cox's parents to Child and Family Services out of concern that they were neglecting their son for refusing to send him to a psychiatric evaluation. As background, the Court of Appeals tells us that Cox had other disciplinary problems on his record.

Strangely, the Court of Appeals has never decided when a school district's response to student speech is an adverse action. It uses the general constitutional test for this: whether the response would deter a reasonable person from speaking out again. Under that test, this is not retaliation. The ISS placement was brief, and district officials are obligated by law to refer any parent to Child and Family Services if they reasonably believe the parents are neglectful, and they are immune from liability for these referrals. In reaching this holding, the Court of Appeals is highly deferential to the obligations of school district officials to maintain order and generally run the school. The Court writes:

In their various roles, school administrators must distinguish empty boasts from serious threats, rough-housing from bullying, and an active imagination from a dangerous impulse. Making such distinctions often requires an investigation, and the investigation may result in discipline, but the investigation itself is not disciplinary--it is precautionary and protective. This is so even when a student is separated, interviewed, or temporarily sequestered to defuse a potentially volatile or dangerous situation. As in this case, a school administrator must be able to react to ambiguous student speech by temporarily removing the student from potential danger (to himself and others) until it can be determined whether the speech represents a real threat to school safety and student learning. Such acts deserve “unusual deference” from the judiciary.

Point-blank shooting is not depraved indifference murder

2011-09-01T06:13:00.000-07:00

There is a difference between depraved indifference murder and intentional murder. That may sound logical, but this distinction has thrown a monkey wrench into many state-court criminal convictions. It prompts the Court of Appeals to grant a habeas petition on behalf of a guy who shot his estranged wife point-blank.

The case is Rivera v. Cuomo, decided on August 9. Rivera was charged with both depraved indifference murder and intentional murder. He argued at trial that his estranged wife had actually committed suicide and that he was not responsible for her death. The prosecutor tried the case as an intentional murder case, that Rivera simply pointed the gun at her head and pulled the trigger. In 1997, the jury convicted Rivera of depraved indifference murder.

Here's how the depraved indifference murder and intentional murder dichotomy plays out. In 2003, the New York Court of Appeals decided that intentional murder cases cannot lead to a conviction for depraved indifference murder. As the Second Circuit notes, "certain murders are so 'quintessentially intentional' that they cannot properly be categorized as depraved indifference murder." Depraved indifference usually involves a conduct such as firing a gun into a crowd or throwing a cinder block off a building during lunch hour in New York City. Intentional murder is ... intentional murder: laying in wait and pointing the gun at the victim with intent to kill.

When Rivera was convicted in 1997, the New York Court of Appeals had not yet said that depraved indifference murders cannot support an intentional murder conviction. So while Rivera's conviction back then may have been solid under New York law, it became quite shaky in 2003, when the New York Court of Appeals reinterpreted the Penal Law. In 2004, when Rivera had exhausted (and lost) all his state court appeals, the New York Court of Appeals said that "defendant's act of shooting his victim at close range could not be depraved indifference murder." Instead, it's intentional murder. The Second Circuit adds, "under any reasonable view of the evidence adduced at trial, Rivera's point-blank shooting ... -- which was either undoubtedly intentional or accidental in the course of a struggle -- could not support a depraved indifference murder conviction."

As the Second Circuit says that we must apply the law as it stood in 2004 and not in 1997, this means that the Second Circuit grants Rivera's habeas corpus petition. The depraved indifference conviction is vacated. The Second Circuit (McLaughlin, Parker and Pooler) says, "the New York Court of Appeals has made sufficiently clear by the time Rivera's conviction became final in July 2004 could not support a conviction for depraved indifference murder." Maybe Rivera is a bad guy, but what he did is not depraved indifference murder under New York Penal Law. Since the jury did not find him guilty of depraved indifference, only intentional murder, he is not criminally responsible for the victim's death. Rivera is one lucky guy.

The Second Circuit giveth and taketh away

2011-08-25T06:09:00.000-07:00

In 2009, the Second Circuit held that a criminal suspect's custodial admissions had to be suppressed because he properly invoked his right to remain silent and could not be questioned about his alleged child pornography without an attorney present. The Court of Appeals in 2011 reverses itself in that same case because the Supreme Court changed the ground rules governing the right to remain silent and the right to counsel. Them's the breaks in a world of closely-divided Supreme Court rulings.

The case is United States v. Plugh, decided on August 8. When the police took Plugh into custody, he refused to sign the waiver form that says he would waive the Miranda rights to remain silent and insist on a lawyer. But he told the police, "I am not sure if I should be talking to you" and "I don't know if I need a lawyer." En route to the FBI office, he asked the agents "for advice on what to do." In 2009, the Second Circuit said that these facts compelled the trial court to grant Plugh's suppression motion, which would prevent the jury from hearing Plugh's incriminating statements. The Court of Appeals reasoned that while Plugh's statements were ambiguous about whether to waive his rights under Miranda, his refusal to sign the waiver form was unequivocal. The police should not have continued questioning him after he made it clear that he did not want to talk. This was good news for Plugh!

Then Plugh got some bad news. In 2010, the Supreme Court took up a nearly identical case, ruling in Berghuis v. Thomkins, 130 S.Ct. 2250 (2010), that criminal suspects must make an unequivocal statement to the effect that they do not want to talk and wish to invoke their rights under Miranda. This interpretation of Miranda was intended to allow for clear-cut rules to guide police behavior.

What this means for Plugh is that the Court of Appeals now reverses itself in this case, vacating its 2009 decision. First, "Plugh did not expressly state that wanted to remain silent or that he wanted to consult with an attorney." Moreover, his only statements on issue were ambiguous. He did not insist on the right to an attorney. He instead said he was not sure he needed a lawyer. While Plugh said that he unequivocally refused to sign the Miranda waiver form, that is not enough to suppress his incriminating statements made afterward. The Court of Appeals (Livingston, Jacobs and Rakoff [D.J.]) says that "a refusal to waive rights, however unequivocal, is not necessarily equivalent to an unambiguous decision to invoke them. Indeed, the Supreme Court has made clear that 'invocation and waiver are entirely distinct inquiries, and the two must not be blurred by merging them together." In a hair-splitting analysis that I am sure Plugh will be reading over and over in the wake of this decision, the Court of Appeals writes:

While his refusal to sign the form presented to him upon arrest may have unequivocally established that he did not wish to waive his rights at that time, his concurrent statements made equally clear he was also not seeking to invoke his rights and thus cut off all further questioning at this point. Those statements ... bespoke indecision -- i.e., 'I am not sure if I should be talking to you' -- and contemplation, i.e., 'I don't know if I need a lawyer.' Plugh then continued to express uncertainty about how he wished to proceed by repeatedly asking the agents, during the drive to the FBI field office, for advice on what to do. Critically, at no point did Plugh unambiguously inform the custodial officers that he wished to invoke his right to remain silent or his right to speak with an attorney, nor was his course of conduct such that the officers should reasonably have been put on notice that ... no further questioning should occur.

The right to be vulgar

2011-08-23T05:54:00.000-07:00

A case arising from Nassau County reminds us that the First Amendment prohibits the government from arresting people who use mindless vulgarities, so long as the foul language does not rise to the level of "fighting words" or create imminent danger of violence.

The case is People v. Louis, decided by the District Court of Nassau County on July 25. The defendant called the district attorney's office and directed his obscene tirade toward a lawyer there. The accusatory instrument prepared by the assistant district attorney states:

On or about and between February 22, 2010 and April 11, 2010, while employed at the Nassau County District Attorney's Office ... as an Assistant District Attorney, I received a series of telephone voice mail recordings from defendant, Nicolas Pierre–Louis․ In the voice mails, Nicolas Pierre–Louis yells, screams and uses profanity, stating in part, “I'm coming at you with fury,” and, “piece of shit faggot fucking cock sucking cock,” and “bitch, you will lose your fucking job,” and “I got all the juice enough to make sure that you're holding a can in the fucking street,” and “and I will keep calling until you arrest Jessy Pierre–Louis, so do your fucking job” and “when you lose your job bitch, don't say I didn't warn you,” and “I will rain hell on your office and make sure heads roll,” you racist bitch” and “you assholes” and “you motherfuckers.” Nicolas Pierre–Louis says many other profane and offensive comments left recorded on my office voice mail that are alarming and annoying. The repeated calls left by Nicolas Pierre–Louis caused me to fear for my safety and the safety of [another] Assistant District Attorney ... because of the screaming outbursts of rage and anger directed toward [the other ADA] ... and I [sic] and the content of what he was saying during his many calls.

This is pretty obscene, and you can understand why the Assistant District Attorney got worried. Probably more government employees than you think live in fear that someone from the public will follow through on threats like this. The question here is whether this phone message violates the Aggravated Harassment law in New York, which prohibits any telephonic or other electronic communication that is "likely to cause annoyance or alarm." This is tricky language. The Supreme Court has held that, under the First Amendment, vulgar or offensive speech cannot be restricted unless it presents "a clear and present danger" of imminent harm. The New York Court of Appeals has similarly held that

Speech is often “abusive”—even vulgar, derisive, and provocative—and yet it is still protected under the State and Federal constitutional guarantees of free expression unless it is much more than that. Casual conversation may well be “abusive” and intended to “annoy”; so, too, may be light-hearted banter or the earnest expression of personal opinion or emotion. But unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized.

More broadly, citing Supreme Court authority, the Nassau County court says, "A criminal prohibition on communicating in an alloying or alarming way is facially unconstitutional." Under these legal standards, Louis's telephone message is free speech, not aggravated harassment. They are not "fighting words" or a "true threat" of violence. The Court says, "In spite of the fact that the defendant uses a number of derisive terms in reference to the ADA, his statements seem confined to threats to have the ADA fired. Even the worst of the alleged statements, 'I'm coming at you with fury,' is too vague to be considered a true threat, but is more properly understood in context with the defendant's other statements." As applied to this case, the Aggravated Harassment law is unconstitutional.

Let the New York Court of Appeals worry about it

2011-08-19T06:24:00.000-07:00

A res judicata curveball finds its way to the Court of Appeals in this employment discrimination case, where the pro se plaintiff brought suit in federal court after a state court dismissed as untimely her appeal from an adverse State Division of Human Rights finding. The Court of Appeals decides that this is a job for the state Court of Appeals, and the case is now at the doorstep of the state's highest court.

The case is Joseph v. HDMJ Restaurant, decided on August 5. Joseph says her colleagues subjected her to some horrible sexual harassment. She went to the State Division of Human Rights, which rejected her claim following a hearing. She then appealed to State Supreme Court, which rejected her claim because she filed the Article 78 appeal too late. She next filed a lawsuit in federal court.

If you are not well-versed in Title VII law, your instinct will say that the federal claim should be dismissed because Joseph lost her claim in State Supreme Court on statute of limitations grounds. But it's not so easy. In University of Tennessee v. Elliott, 478 U.S. 788 (1986), the Supreme Court said that plaintiffs may proceed in federal court on employment discrimination cases so long as they did not appeal the adverse administrative findings in state court. But Joseph did take up that adverse administrative appeal in State Supreme Court, and lost on timeliness grounds.

Two Second Circuit rulings address this problem. In Bray v. New York Life Insurance, 851 F.2d 60 (2d Cir. 1988), the Court said that res judicata attaches when the federal court Title VII plaintiff previously lost her untimely appeal in state court from an adverse administrative determination. Bray is identical to the Joseph case. But in Cloverleaf Realty v. Town of Wawayanda, 572 F.3d 93 (2d Cir. 2009), a municipal due process case that had nothing to do with employment discrimination, the Court of Appeals said that the plaintiff could bring a federal civil rights action after losing on timeliness grounds an Article 78 in state court. The Cloverleaf court said that Bray was no longer good law because the New York Court of Appeals held in Tanges v. Heidelberg North America, 710 N.E.2d 250 (1999), that "the expiration of the time period enumerated in a statute of limitations would not bar an otherwise available federal remedy."

So which is it? Joseph can win the appeal under Cloverleaf, but she loses under Bray. Cloverleaf is the more recent decision, and it is therefore more useful. But Bray is closer to Joseph in its facts. The mid-level appeals courts in New York have not provided enough guidance on this problem, either. The Second Circuit (Katzmann, Hall and Jones [D.J.]) judges looked at each other and said, "what are we going to do?" Here is what they do. Since res judicata is a creature of state law, the Court of Appeals certifies the case to the New York Court of Appeals, which has authority to resolve state-law puzzles like this. So for now, the case sits in limbo until the state's highest court picks up the pieces.

Court reinstates racial discrimination lawsuit

2011-08-18T06:51:00.000-07:00

The Second Circuit has reinstated a lawsuit alleging that the plaintiff was discriminated against because she is white. This case reminds us that it does not take much to survive a motion to dismiss employment discrimination cases.

The case is Schwab v. Smalls, a summary order decided on July 27. The district court threw out the case after over-analyzing it under the McDonnell-Douglas standard. But the McDonnell-Douglas test is an evidentiary standard, not a pleading requirement. The Supreme Court said that in Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), which relaxed pleading standards in employment cases. The Court of Appeals (Jacobs, Calabresi and Sack) notes that "questions have been raised" as to whether more recent Supreme Court pleading cases, like Ashcroft v. Iqbal, 129 S.Ct. 1939 (2009), which impose a plausibility test in reviewing complaints, have undercut Swierkiewicz's vitality.

The Court of Appeals sidesteps this scintillating debate. It says that whatever the legal standards are, Schwab has plead a legitimate employment discrimination claim. Here's why:

The plaintiff's complaint alleges that (1) she is white and Smalls and Chakar are African-American and "Arab-Lebanese," respectively; (2) she held her position without incident for many years; and (3) her employment was terminated after Smalls refused to recommend her reappointment; and (4) the circumstances of her termination are suggestive of discrimination.

With regard to the fourth point -- the final element of a prima facie case of discrimination under McDonnell Douglas and the only element that the defendants contest for the purposes of this appeal -- the complaint provides the approximate date and substance of the defendants' meeting at which they agreed to their "plan"; alleges that their aim was to force Schwab out of her position so that they could appoint a less qualified African-American woman in her place; and details the allegedly pretextual requests for data that Schwab had never been asked or required to maintain. We think this satisfies Schwab's burden at this early stage of the litigation under either of the two arguably applicable pleading standards.

No preliminary jury trials in federal court

2011-08-15T06:22:00.000-07:00

Inmates have to jump through hoops if they want to bring a federal lawsuit over their ill-treatment in jail. They have to file a grievance with jail authorities. Of course, if the jail authorities deny they even received the grievance, then the inmate has a problem.

The case is Messa v. Goord, decided on July 26, 2011. What often happens in these cases is that the jail authorities say they never got the grievance, and the inmate says otherwise. Without a grievance, there's no lawsuit. In this case, the inmate says he did not file the grievance because the guards threatened him if he did file one. Prison staff also refused him assistance on this, though they deny the allegation. Who resolves this dispute? Judge or jury? The Court of Appeals says the judge does.

Messa says the Seventh Amendment entitles him to a jury trial to resolve the administrative exhaustion requirement. Not so fast, the Court of Appeals (Parker, Chin and Korman [D.J.]), says. The Seventh Amendment does provide for jury trials in certain instances. But, "[m]atters of judicial administration often require district judges to decide factual disputes that are not bound up with the merits of the underlying dispute. In such case, the Seventh Amendment is not violated." While ultimate factual determinations are for the jury, "here, the factual disputes relating to exhaustion are not intertwined with the merits of Messa's underlying excessive force claim."

That's not the only reason why the Second Circuit rules against plaintiff. In passing the grievance requirement in the Prison Litigation Reform Act, Congress wanted to let prisons decide on these matters before they reach the courts, and to reduce the quantity and improve the quality of inmate lawsuits. "To require a jury trial before it is certain that an inmate is entitled to to be in federal court would seriously undercut these goals," the Second Circuit reasons. In other words, Congress was sick and tired of inmate lawsuits. To empanel a jury to see if the inmate is allowed to even walk in the door with his case would undercut Congressional intent.

2d Circuit vacates $204 attorneys' fees award

2011-08-11T05:56:00.000-07:00

It's awfully tough to challenge attorneys' fees awards in the Court of Appeals, which applies a deferential "abuse of discretion" standard in reviewing the district court's order. But in this FMLA retaliation case where the trial court awarded only $204 in attorneys' fees, the plaintiff overcomes that hurdle, producing a Second Circuit ruling that serves as a good primer on how to assess fees in cases where the plaintiff recovers a small damages award.

The case is Millea v. Metro-North Railroad, decided on August 8. You read it right. The plaintiff won his FMLA claim and counsel only got $204 in attorneys' fees (his lawyer petitioned the court for over $144,000 in fees). The district court ruled this way because plaintiff only recovered $612.50 in damages after proving that management interfered with his FMLA rights in requiring him to comply with an in-house leave notification rule that conflicted with the FMLA. On that claim, his rights were violated, but his damages were low.

Prior to 2008, the Second Circuit (like the other circuits) said that in calculating an attorneys' fees award, you multiply the attorneys' hours expended on the case by the hourly rate. After performing this calculation, you can adjust the award accordingly, usually downward if the plaintiff did not succeed on all his claims. This is the lodestar model. In Arbor Hill v. County of Albany, 522 F.3d 182 (2d Cir. 2008), the Second Circuit rejected the lodestar model for something more complicated: the "presumptively reasonable fee" as calculated through 12 separate factors. But in Perdue v. Kenny A., 130 S.Ct. 1662 (2010), the Supreme Court seemed to endorse the lodestar test anew, undercutting the Arbor Hill analysis.

Under the lodestar model, the district court abused its discretion in sharply reducing the attorneys' fees because it thought that Millea's case was not complicated and did not involve any novel issues. This is no basis, in itself, to reduce the fees. If the case is that simple, then counsel will have spent fewer hours on the case, which will reduce the lodestar amount. But a relatively simple case is no basis to reduce the overall attorneys' fees entitlement across-the-board. Millea's attorneys will get a lot more money under the Second Circuit's reasoning in this case.

The district court also blew it when it held that the low attorneys' fees award was appropriate because the case had no public policy significance. This was wrong. This case was not lucrative, but it was important. The Court of Appeals (Jacobs, Hall and Scheindlin [D.J.]), says that "Congress has already made the policy determination that FMLA claims serve an important public purpose disproportionate to their cash value. We cannot second-guess this legislative policy decision." This is a significant holding. In the past, the Second Circuit drastically reduced attorneys' fees awards in civil rights cases when the plaintiff won a nominal or modest damages award. The Court of Appeals applied this rule in Carroll v. Blinken, 105 F.3d 79 (2d Cir. 1997), one of the leading cases in this area. The Second Circuit now says that Purdue v. Kenny A. undercuts Carroll in stating that the lodestar is the "guiding light of our fee-shifting jurisprudence" that should be deviated from only in "rare" and "exceptional circumstances."

Relatedly, the district court justified the low attorneys' fees award because this was a "de minimus" victory. But the Court of Appeals says the $612.50 damages award actually was not de minimus; it represents more than 100 percent of the damages that Millea sought on his FMLA interference claim. This was no derisive jury award. The jury gave Millea what he asked for. As the Second Circuit says, "FMLA claims are often small-ticket items, and small damages awards should be expected without raising the inference that the victory was technical or de minimus. If an expense of time is required to obtain an award that is not available by voluntary compliance or offer of settlement, the expense advances the purposes of the statute." The Court adds, "especially for claims where the financial recovery is likely to be small, calculating attorneys' fees as a proportion of damages runs directly contrary to the purpose of fee-shifting statutes: assuring that civil rights claims of modest cash value can attract competent counsel. The whole purpose of fee-shifting statutes is to generate attorneys' fees that are disproportionate to the plaintiff's recovery."

FMLA plaintiff gets new trial on retaliation claim

2011-08-10T05:25:00.000-07:00

The Court of Appeals holds that Metro-North violated the Family and Medical Leave Act in requiring an employee to comply with an in-house leave procedure that is inconsistent with the FMLA. The Court further says that, on the FMLA retaliation claim, the trial court must charge the jury consistent the Burlington Northern standard, which asks if the employer's reaction to the plaintiff's protected activity would dissuade a reasonable employee from asserting his rights again.

The case is Millea v. Metro-North Railroad, decided on August 8. Millea suffered from post-traumatic stress disorder and, due to a confrontation with his supervisor, had a panic attack at work that forced him to miss work. He wanted to take FMLA leave. Metro-North policy said that you have to notify your immediate supervisor for this. Technically, Millea did not comply with the policy. Instead, he told another supervisor about the FMLA leave who, in turn, notified Millea's immediate supervisor. Metro-North actually disciplined Millea for violating company rules. The jury ruled in Millea's favor, awarding him $612.50 in damages. Metro-North challenges the verdict.

The challenge fails. As the company policy that Millea technically violated is inconsistent with the FMLA, which allows for indirect notification to a supervisor in emergency circumstances, he could not be disciplined for violating company policy, and the jury properly ruled in Millea's favor on the FMLA interference claim.

Millea himself takes up an appeal in this case, arguing that the trial court did not properly charge the jury on the elements of his FMLA retaliation claim. If you handle retaliation claims, you are familiar with the test in Burlington Northern v. White, 547 U.S. 53 (2006), which says an adverse employment action occurs when management's response to the protected activity (such as asserting your rights under the employment discrimination laws) would dissuade a reasonable employee from asserting his rights in the future. That is not the charge that the trial court read to the jury. The trial court used a different "adverse employment action test," which asks whether the plaintiff suffered a "material adverse change in the terms and conditions of employment," such as demotion, pay cut, demotion or significantly diminished responsibilities. Courts don't use the latter test in retaliation cases; it applies in trying to make out a prima face case for disparate treatment. For this reason, since retaliation plaintiffs don't have to prove a materially adverse change in the terms and conditions of employment, retaliation cases are easier to prove than general disparate treatment cases.

The Burlington Northern case was a Title VII retaliation case. The Court of Appeals says there's no reason why Burlington Northern cannot apply in FMLA retaliation cases, also. Other Circuits have already ruled this way, and the Second Circuit follows suit. Millea suffered retaliation when management placed a formal reprimand in his personnel file. While "petty slights" are not enough to make out a retaliation claim, this is not a trivial sanction, the Second Circuit says. It would in fact dissuade workers from asserting their rights in the future because

it can reduce an employee’s likelihood of receiving future bonuses, raises, and promotions, and it may lead the employee to believe (correctly or not) that his job is in jeopardy. A reasonable jury could conclude as much even when, as here, the letter does not directly or immediately result in any loss of wages or benefits, and does not remain in the employment file permanently.

Since the jury may find that the formal warning in Millea's personnel file is an adverse employment action, he gets a new trial on this claim under the proper jury instruction. The Court of Appeals also ruled in Millea's favor on his attorneys' fees appeal. That is a blog posting for another day, folks.

NYC police sergeants are entitled to overtime pay

2011-08-08T05:47:00.000-07:00

Under the Fair Labor Standards Act, you are entitled to overtime pay if you work more than 40 hours per week. This rule has its exceptions. A "bona-fide executive" is exempt from the overtime entitlement. Do police sergeants fall within this exemption?

The case is Mullins v. City of New York, decided on August 5. The case went to trial, and the City won the case. The district court rejected plaintiffs' motion against the verdict because it said the police sergeants essentially held managerial positions and therefore were not entitled to overtime. As the plaintiffs represent 4,000 officers, there is a lot of money to go around in this case.

The limited group of plaintiffs (known as test plaintiffs) in this case include Housing Patrol Unit Sergeants, Bike Unit Sergeants and Anti-Crime Unit Sergeants and Street Narcotic Enforcement Unit Sergeants. As the Court of Appeals says, "These categories of sergeants perform general law enforcement activities as well as specialized law enforcement activities undertaken only by sergeants as opposed to lower-ranked police officers; sergeants are the second-lowest ranked officers in the NYPD. For example, sergeants are responsible for responding to incidents involving felonies, firearm discharges, and emotionally disturbed individuals." In addition, "While their specific duties vary according to unit, sergeants are generally involved in activities that include pursuing, restraining, and apprehending suspects."

The district court said that the sergeants' primary handle managerial duties. The U.S. Department of Labor weighs in on this issue, arguing that the plaintiffs are not exempt from the overtime rules because their primary duty is not management or supervision, but rather “front line law enforcement.” The Court of Appeals (Newman, Calabresi and Katzmann) defers to the Secretary of Labor's interpretation of the FLSA. The Secretary argues that “[T]he fact that the sergeants direct police officers while they perform field law enforcement activities does not transform the field law enforcement into management.” The Secretary adds, "giving direction and exercising discretion while performing field law enforcement work do not transform [sergeants’] non-management primary duty in a management primary duty.” In entering judgment for the plaintiffs and directing that they receive overtime pay for a three-year period ending in 2004, the Second Circuit concludes:

In light of the Secretary’s controlling interpretation of the first responder regulation, the fact that plaintiffs spend the majority of their time performing non-exempt work in the field, leads to the conclusion that the sergeants’ primary duty is not management but field law enforcement.

The 2d Circuit gives one to the inmates

2011-08-05T06:01:00.000-07:00

Allen Harper wanted to file a habeas corpus petition to challenge the constitutionality of his criminal conviction. He had a year to file the petition. He could not do so because he went to the hospital with a serious medical medical condition. The district court dismissed the petition as untimely.

The case is Harper v. Ercole, decided on July 26. The Court of Appeals reinstates the petition on the basis of equitable tolling, an escape hatch that allows the court to extend the statute of limitations in an act of mercy. You need a scorecard to follow the court's reasoning in these cases, so here goes:

Harper's state court conviction became final on May 14, 2007. He had until May 14, 2008 to file the petition. But 78 days before the deadline, he went to the hospital for 65 days, from February 27, 2008 through June 3, 2008. The petition was filed on August 7, 2008, after the deadline. While hospitalization will get you some equitable tolling, and the district court thus decided that Harper got an extra 65 days to file his case, it threw out the petition because Harper did not diligently pursue his rights in the 65 days after he got out out of the hospital.

Giving one to the inmates, the Court of Appeals (Raggi, McLaughlin and Calabresi) reverses, clarifying when the calendar stops and re-starts in equitable tolling cases where the inmate otherwise pursued his rights diligently and did not dilly-dally in the face of a ticking clock:

we conclude that, in this case, where the existence of extraordinary circumstances causing Harper to miss the AEDPA filing deadline is undisputed for the period from February 27, 2008, when Harper was hospitalized, to June 3, 2008, when he was discharged, and where there is no question as to Harper’s diligence in pursuing his claim throughout that period, equity tolled the one-year limitations period to stop on the first date and to resume on the latter date. The timeliness of Harper’s § 2254 filing thus depended on it being within one year of the total untolled time after his conviction became final. Because seventy-eight days remained on the statute of limitations at the start of the tolling period, Harper’s filing of his § 2254 petition on August 17, 2008, sixty-five days after tolling ended, should have been deemed timely without requiring a further showing of diligence in that untolled period.

You cannot sweep lost wages under the carpet

2011-08-02T03:15:00.000-07:00

Christine Bergerson won her sexual harassment trial against a state agency. The jury awarded her $580,000 in damages for pain and suffering. The jury also found that she was wrongfully terminated because of her gender. After the trial court reduced the pain and suffering award to $300,000 in keeping with the cap on such damages under Title VII, it decided she was not entitled to any back pay because the $300,000 award for pain and suffering was enough to make her whole under the statute. The Court of Appeals reverses.

The case is Bergerson v. New York State Office of Mental Health, decided on July 21. For practitioners, this case is a good primer on back and front pay under Title VII. The Court of Appeals has to provide this background in explaining why the trial court got it wrong in limiting the plaintiff's damages. In doing so, the district court said:

[Bergerson’s] substantial damages award satisfied both of the objectives of Title VII. Instead of merely having to comply with an injunctive order prohibiting racial discrimination and hostility in the work environment, [CNYPC] must pay [Bergerson] $300,000 in compensatory damages as a result of its unlawful employment practices. . . . Additionally, the magnitude of the jury’s award ensures that [Bergerson] will be made whole for her injuries, including any lost wages, pain, suffering, or emotional distress.

True, damages awards under Title VII have to make the plaintiff whole. But that does not mean that a large award for pain and suffering will cover any other damages to which the plaintiff might be entitled. All these damages awards serve a different purpose. Damages for pain and suffering are self-explanatory: "emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses," as Congress wrote into Title VII in 1991. But back pay is a separate area of damages entirely, compensating the plaintiff for "what the employee himself would have earned had he not been discharged." The Second Circuit (Miner, Kearse and Chin) thus reasons, "[b]ecause a backpay award requires a separate inquest, a district court may not deny an award of backpay because it believes that an award of compensatory damages is sufficient."

First Amendment requires that Transit Authority open up its hearings to the public

2011-07-29T05:35:00.000-07:00

The New York City Transit Authority holds a hearing to resolve whether someone allegedly violated TA rules. Those hearings were closed to the public if the defendant didn't want anyone in the hearing room. The Second Circuit holds that this policy is unconstitutional. I know that many of us can't wait to watch these hearings from gavel to gavel, one after another, until they throw us out of the building. Now we have that opportunity.

The case is New York Civil Liberties Union v. New York City Transit Authority, decided on July 20. The police can issue citations if you violate subway or other public transportation rules. You can contest the citation at a hearing. The City argued that the hearings should not be accessible to the public because alleged rules violators may forgo the hearing to avoid any invasions of privacy. But there is no evidence to back this up. This is really just an arbitrary policy of the Transit Authority to presume that these hearings should be closed to the public. Speculation is not a legitimate basis to get around the First Amendment.

The Second Circuit (Calabresi, Leval and Lynch) says that the First Amendment requires that these hearings be open to the public. Here's how the Court of Appeals sees it: it quotes a 63 year-old Supreme Court ruling to the effect that "Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account." The Supreme Court has also said that criminal trials are open to the public unless a good reason justifies closing the courtroom. The Second Circuit has taken that one step further. In 1984, it said that the First Amendment guarantees a qualified right of access to civil trials as well.

This logic extends to the the Transit Authority's administrative hearings. True, there were no administrative hearings when the First Amendment was adopted in the 18th Century. But, who cares? The hearings are trial-like, and that's enough. Since the Transit Authority's hearings are structured like the adversarial proceedings that the public is allowed to attend, these hearings cannot be off-limits. The Court of Appeals reasons that the "[Transit Adjudication Bureau] acts as an adjudicatory body, operates under procedures modeled on those of the courts, and 'imposes official and practical consequences upon members of society.'"

2d Circuit vacates low attorneys' fees award

2011-07-28T12:46:00.000-07:00

If you represent plaintiffs in civil rights cases, you know that once the district court rules on your attorneys' fees motion, the "abuse of discretion" standard of appellate review makes it nearly impossible to overcome the initial fee award on appeal. The district court is where the action is on these motion, not the Court of Appeals. But that's not always the case.

The case is Vincent v. Commissioner of Social Security, decided on July 8. Thanks to her lawyer, Schneider, Vincent got her social security disability benefits. Vincent lost at the administrative level. Through his successful appeal to the federal court, Schneider persuaded the Northern District of New York to rule in Vincent's favor. Under the Equal Access to Justice Act, counsel sought about $8,200 in legal fees. The district court instead awarded him about $2,700, for several reasons. As the Court of Appeals (Walker, Calabresi and Wesley) puts it, "The district court held that Schneider’s failure to develop the record constituted 'special circumstances' that, under the Equal Access to Justice Act, would render a full award 'unjust.' In addition, the district court viewed the length of time Schneider billed for preparing the fee application as “clearly excessive and unreasonable.' The district court also expressed concern that Schneider’s billing records provided only 'conclusory explanations' for 'several lengthy increments of time' and improperly intermingled legal and clerical tasks."

That's a mouthful of reasons to sharply reduce Schneider's attorneys' fees. Since the Court of Appeals does like to wade into the muck in second-guessing the district court's nuanced analysis on attorneys' fees, the eye-opener here is that the Second Circuit overruled the district court's objections and then remanded the case to a different magistrate judge.

While the EAJA allows the courts to reduce attorneys' fees under "special circumstances," this case does not rise to that level. Under Circuit precedent, "A prevailing party can therefore be denied attorney’s fees under the EAJA for 'special circumstances' when his own misconduct created the circumstances that led to the litigation, and when that party’s contributions to the litigation’s success were 'marginal, duplicative and unnecessary.'” Does counsel's inadequate representation qualify as a special circumstance? The Court of Appeals decides this question for the first time.

The administrative law judge attacked Schneider's competence because, the ALJ said, his client had credibility problems, which is why the ALJ ruled against her. Judge Walker writes,

In the circumstances of this case, in which the ALJ gave Vincent no notice of his credibility concerns, it was the ALJ’s responsibility to develop the facts related to this collateral issue. ... The district court erred in concluding that Schneider shared responsibility with the ALJ for these omissions. In the district court’s view, Schneider should have identified the discrepancy in Vincent’s work history and preemptively addressed it, and also should have developed the record to explain Vincent’s noncompliance with treatment recommendations. The district court demanded too much of counsel. If we endorsed the district court’s position, counsel would have to anticipate and refute all conceivable credibility issues to be assured recovery of attorney’s fees after prevailing on appeal. This is not, nor should it be, the bar against which representation in Social Security matters is assessed for purposes of awarding EAJA fees.

The Court of Appeals says that the ALJ did not give Schneider notice about his credibility concerns, and it was not Schneider's fault that the ALJ deemed her incredible. That ruling may be of interest only to lawyers who represent clients in social security cases. But the Court of Appeals also vacates the low attorneys' fees award on grounds that affect the civil rights bar. The district court reduced the fee entitlement because it thought that Schneider spent too much time on the fee application. But the fee petition raised a novel legal issue of whether the "special circumstances" exception applied here. This justified the nearly 23 hours that counsel spent on the fee petition. It was an abuse of discretion for the district court to find that Schneider wasted time in pursuing his fees. As Judge Walker writes:

It is therefore unsurprising that the EAJA briefing here would demand more attention and time than a standard fee application. Furthermore, by rebuking Schneider in the remand order, which preceded Vincent’s fee motion, the district court alerted Schneider that it viewed his entitlement to fees with skepticism. That alone made this an atypical EAJA application, one that required Schneider to concentrate more effort than usual in convincing the district court that he had earned the fees requested. The district court therefore appears to have underappreciated the degree of effort warranted by the EAJA motion.

Finally, the district court abused its discretion in reducing the attorneys' fees on the basis of its concerns about the adequacy of Schneider's billing records, which were allegedly too vague or sought compensation for clerical tasks. The district court got it wrong in ruling this way without giving counsel an opportunity to respond to the court's concerns about these records. The case is remanded to the district court to reconsider the fee application.

However, a different judge will review the fee petition on remand. The Court of Appeals notes that this same Magistrate Judge improperly ruled against Schneider's fee petition in a different case a few years ago. The Second Circuit decides that a different judge should get this case this time around.

Police officer's refusal to falsify report protected under the First Amendment

2011-07-25T03:37:00.000-07:00

The Court of Appeals holds that the First Amendment prohibits the City of Middletown from terminating a probationary police officer in retaliation for refusing to falsify a police report that implicated a sergeant in police brutality.

The case is Jackler v. Byrne, decided on July 22. Bergstein & Ullrich, represented the plaintiff, along with the firm of Dupee & Monroe. In this case, the Second Circuit (Kearse, Katzmann and Sack) distinguishes Garcetti v. Ceballos, 547 U.S. 410 (2006) and Weintraub v. Board of Education, 593 F.3d 196 (2d Cir. 2010), which restricted the speech rights of public employees who speak out pursuant to their official duties. This case went into the Garcetti graveyard also, as the district court reluctantly held that Jackler's refusal to falsify the police report was sufficiently related to his official job duties as to bring his expression out of the First Amendment's protections.

The Second Circuit sees it differently. The Court notes that, in Garcetti, the Supreme Court said that two inquiries govern whether employee speech is protected under the First Amendment: "whether the subject of the employee's speech was a matter of public concern and whether the employee spoke 'as a citizen' rather than solely as an employee." Jackler spoke on a matter of concern to the public because "exposure of official misconduct, especially within the police department, is generally of great consequence to the public." Although Jackler did not make an affirmative statement about police misconduct, it is settled law that the refusal to speak is also protected under the First Amendment under certain circumstances. The Court adds, "Jackler had a strong First Amendment interest in refusing to make a report that was dishonest. We think it clear that his refusals to change his statement as to what he witnessed when Metakes struck Jones were directed at a matter of public concern, rather than an effort to further some private interest of Jackler personally. The use of excessive force by a police officer is a matter of serious public concern."

Defendants argued that this case fell within Garcetti's holding that speech relating to official duties falls outside the First Amendment's protections. Not so, the Court of Appeals says:

Although defendants argue that Jackler's refusals were part of his job and that Garcetti requires affirmance because otherwise any employee who simply files a truthful report could claim that his First Amendment rights were implicated because he did not file a false one, we reject that contention because it ignores the context of Jackler's refusals. Jackler's allegation -- which must be accepted as true in the context of judgment on the pleadings -- was that Rickard and Freeman, as directed by Chief Byrne, repeatedly attempted to force him to withdraw the truthful report he had filed and to submit one that was false. In the context of the demands that Jackler retract his truthful statements and make statements that were false, we conclude that his refusals to accede to those demands constituted speech activity that was significantly different from the mere filing of his initial Report.

Finally, the Court of Appeals holds that the interests of workplace efficiency (an interest that kills many a Garcetti case) do not outweigh Jackler's interest in refusing to falsify the police report. Likewise, while many Section 1983 cases die on the qualified immunity vine, this one does not. The Second Circuit says that the law in 2006, when Jackler was fired, was clear that exposing government malfeasance was clearly-established. And, "Any uncertainty introduced by Garcetti and Weintraub, which were not decided until after defendants' retaliation against Jackler (and which, for the reasons discussed above, do not deprive Jackler of First Amendment protection for his refusals to lie), would not entitle defendants to qualified immunity because the availability of that defense depends on whether the unlawfulness of their conduct was apparent in light of 'pre-existing law.' Wilson v. Layne, 526 U.S. 603, 615 (1999)."

Bergstein & Ullrich prevail in public employee free speech appeal

2011-07-23T15:16:00.000-07:00

By Larry Neumeister, Associated Press

July 22, 2011

NEW YORK — A federal appeals court Friday breathed new life into the claims by a probationary police officer in upstate New York that his First Amendment rights were violated when he was fired for refusing to lie about an excessive force claim against a fellow officer.

The 2nd U.S. Circuit Court of Appeals in Manhattan reinstated Jason Jackler's lawsuit against the police chief and others in the Middletown Police Department, reversing a lower court judge who had reluctantly rejected his arguments on the grounds that Jackler's speech was in his official capacity and not as a citizen.

"The government as an employer has broad discretion to manage its operations. But that discretion does not include authority to coerce or intimidate its employees to engage in criminal conduct by filing reports that are false in order to conceal wrongdoing by another employee or to conceal eyewitness corroboration of civilian complaints of such wrongdoing," the three-judge panel wrote.

The police department did not say in legal papers that it agreed with Jackler's claims that he was ordered to change his report but the department and the court had to accept the claims as fact at this stage of the court proceedings. As the case proceeds toward trial, interviews will be conducted and documents will be analyzed by both sides to clarify the facts.

In returning the case to U.S. District Judge Cathy Seibel in White Plains, the appeals court also indicated it disagreed with her when she said she believed that the defendants might win dismissal of the case on the grounds that they enjoy immunity from the lawsuit because of their government positions.

"Though a mere mistake in the performance of an official duty may not deprive the officer of the defense, the qualified immunity doctrine does not shield performance that either was in violation of clearly established law or was plainly incompetent," the appeals court said.

Jackler said he was fired in January 2006, days after refusing to alter a report in which he said another officer struck a disorderly conduct suspect in the face. He had been a probationary officer since January 2005. His lawsuit seeking unspecified damages named the Middletown police chief and other police lieutenants and administrators.

Brian Sokoloff, a lawyer for the police defendants, said of the ruling: "We need to digest it and consider what our options are."

Stephen Bergstein, a lawyer for Jackler, who now works elsewhere in Orange County as a police officer, predicted the ruling would make it easier nationwide for police officers to speak out against wrongdoing.

"Police officers shouldn't have to worry about losing their jobs for standing up for the right thing," he said. "This was a pretty resounding win for police officers like Jackler who normally would be afraid to speak out.

The 2nd Circuit said a series of court cases have made clear that a citizen who enters government service must accept certain limitations, but those limits narrow on issues of public concern.

"Police malfeasance consisting of the use of excessive force is plainly a matter of public concern," the court wrote. "In sum, it is clear that the First Amendment protects the rights of a citizen to refuse to retract a report to the police that he believes is true, to refuse to make a statement that he believes is false, and to refuse to engage in unlawful conduct by filing a false report with the police."

Jackler's actions, the court said, has a "clear civilian analogue and that Jackler was not simply doing his job in refusing to obey those orders from the department's top administrative officers and the chief of police."

Town violated anti-war protester's First Amendment rights

2011-07-22T05:54:00.000-07:00

The Court of Appeals holds that an upstate New York town violated the First Amendment when it interfered with an anti-war protester's efforts to hold a rally on Town property where patriotic celebrations regularly take place there. This kind of viewpoint discrimination is unconstitutional.

The case is Coe v. Town of Blooming Grove, decided on July 20. Bergstein & Ullrich, LLP, represented the plaintiff, with help from Scott Korenbaum, Esq. It all started in 2006, when Rev. Coe wanted to hold a rally at Moffat lawn, which fronts the library in the center of town. She was dissuaded from applying for a permit because town law required all permit applicants to obtain a $1 million insurance policy, which she could not afford. She sued in federal court, and on the preliminary injunction application, the trial court ordered the town board to take up her permit application. It did so, and granted her permission to hold the rally. But since all this happened at the last minute, few people attended the rally. On the motion for summary judgment, the district court held that (1) contrary to the town's position, the lawn is a public forum, open to all protesters and (2) she was entitled to damages because the unconstitutional mandatory insurance requirement interfered with her efforts to hold a well-attended rally. These holdings were unique; few federal decisions in New York provide guidance on which properties constitute public forums. Even fewer decisions hold that mandatory insurance policies violate the First Amendment if the municipality does not provide any waivers for the indigent.

Adamant that Rev. Coe cannot hold rallies at this location, the town appealed. The Court of Appeals affirms, but on an alternate ground. Rev. Coe proved through photographs from the local newspaper archive that the Town had allowed VFW and other organizations to hold Memorial and Veterans Day celebrations at Moffat lawn for years, at least since the 1930s. In allowing these celebrations to take place year after year, the town created a limited public forum and therefore engaged in viewpoint discrimination, in violation of the First Amendment. Here's how the Second Circuit (Parker, Chin and Lohier) sees it:

The Town and Village opened the Lawn for expression on the subjects of war and military service when they permitted speakers from private groups, including the Veterans of Foreign Wars (“VFW”), to use it without obtaining liability insurance. The Town and Village argue that the VFW’s speech merely conveyed the government’s message and thus does not prove the Lawn was opened for private expression, but we find no evidence that the Town or Village authorized, approved, controlled, or ratified the VFW’s speech, cf. Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1134 (2009), or that the VFW communicated governmental messages when it addressed these subjects.

By contrast, when Coe asked to hold a peace rally at the Lawn to speak on the same general subjects, the Town informed her “that [she] needed to take out a [$1 million] liability insurance policy.” The Town also rejected her request for a waiver of this requirement based on her inability to afford it. In this context, a liability insurance requirement is a prior restraint on speech. ... Because Coe’s speech fell within the scope of prior uses of the Lawn, the selective enforcement of the liability insurance requirement against her constituted unlawful viewpoint discrimination. Even though Coe sought to speak on the same topics as the VFW (i.e., war and military service), apparently she alone was required to obtain $1 million of liability insurance before being allowed to speak.

What this means is that government speech stands alone under the First Amendment; the government does not unlawfully discriminate if it promotes its own message on government property. But that is not what happened here. The Memorial and Veterans Day celebrations were not government speech but community speech. If you open up the property for speakers expressing a certain point of view, then you have to lets others use that property also if they want to speak on the same subject matter. Rev. Coe wanted to hold a public assembly on war and peace just as VFW does. The Town cannot prevent her from doing so.

Three strikes and yer outta there!

2011-07-21T05:31:00.000-07:00

Because inmate litigation is bringing down western civilization as we know it, Congress in the mid-1990s enacted the Prison Litigation Reform Act, which says among other things that inmates must pay their filing fees if they have already filed three frivolous lawsuits. This is the "three-strikes-you're-out" rule. It only affects inmates who want to proceed in forma pauperis, which lets the court waive the filing fees if the inmate has no money.

The case is Mills v. Fischer, decided on July 14. Congress may have the answer to some of our problems, but it doesn't have all the answers. In passing the PLRA, Congress tried to define what it means to file a frivolous lawsuit. But it did not say that a lawsuit against defendants with judicial immunity is a "strike" under the statute. This is where Mills comes in.

Mills has filed and lost a bunch of lawsuits and appeals against immune defendants. Some of those defendants enjoyed judicial immunity. Now, any lawyer who represents an inmate will refrain from suing judges or anyone else with judicial immunity. But Mills either did not know this or he did know this and filed his lawsuits anyway. In this case, he wants the Court of Appeals to grant his in forma pauperis motion. No dice. As Chief Judge Jacobs sums up the case:

In some instances, Mills’s litigation initiations were dismissed on the ground of judicial immunity. The IFP statute does not explicitly categorize as frivolous a claim dismissed by reason of judicial immunity, but we will: Any claim dismissed on the ground of absolute judicial immunity is “frivolous” for purposes of 28 U.S.C. § 1915(g). Mills’s (more than) three strikes therefore disqualify him from IFP status.

The Second Circuit thus fills in the blanks left open by the PLRA. If Mills does not find the money to pay for this litigation within 30 days, it will be dismissed.

The courtroom is not a schoolyard

2011-07-19T06:15:00.000-07:00

Would you walk into court with a baseball hat and casual clothing? Most attorneys would not. If you did, would you claim a First Amendment right to do this? One attorney did. The Second Circuit says there is no such right.

The case is Bank v. Katz, a summary order decided on June 17. The Second Circuit (Hall, Miner and Sack) says, "Bank alleges that the defendants violated his constitutional rights under the First and Fourteenth Amendments by orally directing him not to wear a baseball hat when appearing in court and by admonishing him for wearing inappropriately casual attire."

The First Amendment can be complicated, but the Second Circuit is not going to accept Banks' argument. (Bank is a lawyer, by the way). The government, including trial courts, may restrict speech if those restrictions are consistent with the purpose of the forum, in this instance, the courtroom. The Court of Appeals says, "A courthouse serves to provide a locus in which civil and criminal disputes can be adjudicated. Within this staid environment, the presiding judge is charged with the responsibility of maintaining proper order and decorum. The restriction as alleged is therefore reasonable."

Banks also invokes his liberty interest in his personal appearance. Even assuming that such a right exists, Banks "identifies no legal basis for concluding that a lawyer's interest in dressing as he pleases when appearing in court rises to the level of a fundamental constitutional right, nor are we able to discern one. Accordingly, we apply rational-basis review to Bank's Fourteenth Amendment claim. We conclude that the defendants' instructions that Bank remove his baseball hat when appearing in court were rationally related to the legitimate governmental purpose of maintaining order and decorum in the courtroom." Hey, the courtroom is not a schoolyard.

ADA tester has standing to sue Nanuet Mall for disasbility violations

2011-07-18T07:05:00.000-07:00

The Court of Appeals has reinstated a disability discrimination suit brought by a wheelchair-bound paraplegic who sued Nanuet Mall over public access violations and wants to return to the mall, in part, to test its compliance with the Americans with Disabilities Act.

The case is Harty v. Simon Property Group, a summary order decided on June 29. The Second Circuit (Miner, Raggi and Lynch) makes two rulings: Harty has standing to bring this action and he also states a claim for disability discrimination.

The Americans with Disabilities Act allows plaintiffs to sue for injunctive relief. But in order to get an injunction, the plaintiff has to show that he suffered an ADA violation at the public establishment and that he intends to return there in the future such that he will likely suffer another violation someday. The district court held that Harty had no standing to seek an injunction, but the Court of Appeals reverses because he plans to return as a patron "to avail himself of the goods and services offered to the public at the property" and also as a tester to make sure that the Nanuet Mall is complying with the ADA. He also travels to gun shows around the country, and in returning to the area for that purpose, he intends to shop at Nanuet Mall. On remand, the district court is free to conduct discovery and fact-finding to ensure that Harty truly intends to return to the Nanuet Mall in the future.

The case law in the area of ADA standing is sparse; this could have been a published opinion. The holding that Harty has standing, in part, because he wants to return as a tester seems innovative in light of the district court's ruling, as follows:

Plaintiff's status as a tester does not confer standing. See Judy v. Pingue, 2009 U.S. Dist. LEXIS 109990 (S.D.Ohio Nov. 25, 2009) (“Any tester status that [Plaintiff] might possess does not confer standing to seek prospective relief where he cannot show a reasonable likelihood of returning to [Defendant's] property.”) (collecting cases); Kelly Johnson, Note: Testers Standing Up for Title III of the ADA, 59 Case W. Res. 683, 698 (2009) (“The vast majority of courts that have dealt with the issue [of testers in the context of ADA litigation] have denied standing to plaintiffs.”) (collecting cases); see, e.g., Access 4 All, Inc. v. Thirty E. 30th St., LLC, 2006 U.S. Dist. LEXIS 96742, at *30-31, 2009 WL 4261389 (S.D.N.Y. Dec. 11, 2006) (intending to return to Property to assess compliance with ADA is not sufficient to establish standing).

The other question on appeal is whether Harty has a real claim under the ADA on the merits. The Second Circuit says that he does. You can read this decision until you are blue in the face and have no idea what actually happened to Harty to prompt this lawsuit. The district court opinion says that "Plaintiff, who 'is mobility impaired and is bound to ambulate in a wheelchair,' alleges that Defendant has discriminated [and is continuing to discriminate] against the Plaintiff by denying him access to, and full and equal enjoyment of, the goods, services, facilities, privileges, advantages, and/or accommodations of the subject property, as prohibited by [the ADA]. Defendant's alleged violations include, but are not limited to, lack of accessible routes, accessible public restrooms, and access to goods and services."

Good news for plaintiffs' lawyers who want to make a living

2011-07-15T06:04:00.000-07:00

The Court of Appeals holds that a preliminary injunction in a civil rights case entitles the successful attorney to his counsel fees even if the case is mooted out on appeal. This decision distinguishes a recent Supreme Court case that held that a preliminary injunction that dissolves on the merits down the road leaves the attorney empty-handed.

The case is Kirk v. New York State Department of Education, decided on July 6. Kirk is a veterinarian who wanted to practice his trade in the United States. He could not do so because he was here on a visa and was not a citizen or lawful permanent resident. The district court struck down as unconstitutional the offending provision of the Education Law on Kirk's preliminary injunction application. Kirk thus gets a permanent license. The kicker here is that Kirk eventually got permanent resident status a few months after the preliminary injunction. The case was therefore mooted and the judgment was vacated.

Under older Second Circuit precedent, this successful maneuver entitled Kirk's lawyer to attorneys' fees. But in 2007, the Supreme Court held in Sole v. Wyner, 551 U.S. 74 (2007), that a preliminary injunction that dissolves at the end of the case on the merits does not entitle the lawyer to any attorneys' fees. Sole was the rare case where the district court granted preliminary relief because the plaintiff's case had a likelihood of success on the merits, but on further review, that same court rejected the case en toto.

Kirk's case is distinguished from Sole because, while Kirk's injunction was later vacated, that only happened because it was mooted once he got permanent resident status. Unlike the plaintiff in Sole, Kirk got the injunction on a fully-developed record, not in haste. Also, Kirk's injunction was vacated out of mootness, not on the merits. And, unlike Sole, Kirk got his permanent license, which is the reason he brought the lawsuit in the lawsuit in the first place. As the Court of Appeals (Parker, Feinberg and Wesley) notes, Kirk did not leave court "empty-handed." And, thanks to this decision, neither does his attorney.

For whom the statute of limitations tolls

2011-07-13T06:56:00.000-07:00

Inmates are in jail for the long haul. This guy was in jail and filed an in-house grievance, a necessary prerequisite to a federal lawsuit over his prison conditions. The odds were against him, for any number of reasons. He prevails in the Court of Appeals.

The case is Gonzalez v. Hasty, decided on June 22. Under the Prison Litigation Reform Act, inmates cannot bring suit in federal court without first grieving their disputes in the jail. These grievances are often futile, as jail officials are not keen to side with the inmate. Still, that's what Congress put in place in 1996, when it passed the PLRA to reduce inmate lawsuits. If Gonzalez knew that his grievance, filed in 2001 or 2002, would take this long to wind its way through administrative and judicial processes, he might not have bothered. But he did.

Gonzalez was confined in solitary for nearly 1100 consecutive days. He says this confinement was for no good reason. After waiting out the administrative process triggered by his grievance, Gonzalez filed suit in federal court in May 2005. Since you have three years to bring a civil rights case, the government argued that the case was time-barred, since the solitary confinement ended more than three years earlier. (The operative date in determining the timeliness of this lawsuit is July 24, 2001). The district court threw out the case under Rule 12. Gonzalez's lawsuit did not even get out of the starting gate.

The Court of Appeals (Hall, Jacobs and Pooler) reinstates the lawsuit. It took two years for the Second Circuit to issue a decision, which means that once discovery begins, Gonzalez will be litigating issues that happened ten years ago. The case is revived under the doctrine of "equitable tolling." The statute of limitations was tolled until Gonzalez fully exhausted his PLRA administrative remedies in August 2002. Other federal appeals courts have already resolved this issue. The Second Circuit notes, "our sister circuits that have squarely confronted the question presented here is applicable" have held that "tolling is applicable during the time period in which an inmate is actively exhausting his administrative remedies." This may seem like common-sense, but looming over this case, I'm sure, was Congress's desire to cut off these cases at the knees. Equitable tolling is bigger than the PLRA, and it's bigger than all of us.

What complicates this case further is the Second Circuit's determination that "the applicable three-year statute of limitations is tolled only during that exhaustion period and not during the period in between the accrual of those claims and when Gonzalez began the administrative remedy process." In other words, if plaintiff waited too long to file the grievance, this case may be time-barred after all. No one seems to know when Gonzalez could have filed the grievance. The case is remanded to the district court to figure that out.

How to get sanctioned by the Court of Appeals, part 2

2011-07-12T06:18:00.000-07:00

A few weeks ago, the Second Circuit sanctioned a lawyer for bringing a lawsuit claiming that the Bush administration orchestrated the 9/11 attacks. Not in a million years would the Court of Appeals, or any other court, rule in this guy's favor. But the Court of Appeals took things a step further: it sanctioned the lawyer for bringing frivolous litigation. A summary of that case is here. It gets worse for this lawyer.

The case is Gallop v. Cheney, decided on July 7. Summarizing the opinion in Gallop I, the Second Circuit writes:

In our opinion, we determined, as the District Court had, that Gallop’s complaint — which alleged that former senior government officials caused the September 11, 2001 attacks against the United States in order to (1) create a political atmosphere in which they could pursue domestic and international policy objectives and (2) conceal the misallocation of $2.3 trillion in congressional appropriations to the Department of Defense—was frivolous. We also ordered Gallop and her counsel to show cause why they should not be sanctioned for filing a frivolous appeal under Federal Rule of Appellate Procedure 38, 28 U.S.C. § 1927, and the inherent power of this Court.

Now the lawyer wants the Court of Appeals to either re-hear the appeal or hear it en banc. En banc involves having all the judges on the Court hear the case, beyond the three judges who actually heard the appeal the first time around. Those three judges are known as "the panel." The Second Circuit rarely hears cases en banc, but there's no harm in trying. What hurts the lawyer this time around is his request "to disqualify the panel from consideration of that petition and any other aspect of her appeal, including the imposition of sanctions. Gallop argues that this Court’s opinion demonstrates an 'evident severe bias' arising from the panel’s 'active personal emotions' associated with the attacks of September 11, 2001, which merits disqualification."

In particular, the Court says, "In his affidavit in support of Gallop’s motion for disqualification, William Veale — one of Gallop’s counsel of record — 'demand[s]' not only that the panel, but 'any other members of the bench of this Circuit who share their feelings[,] be recused.'" Why kick an angry dog? The Second Circuit was angry enough about this case. Why insult the court even further with this recusal request? The Court of Appeals (Cabranes, Winter and Walker) has had enough, ruling that this request is as frivolous as the lawsuit itself, stating, "rather than pursuing his client’s interests, Veale’s actions appear to be malicious — intended, in bad faith, to use his position as an attorney of record to harass and disparage the court." The lawyer is again sanctioned for making this request.

Here's a flavor of the attorney's affidavit which offended the Second Circuit:

Plaintiff-Appellants thus assert, respectfully, that the panel members, living and working in the vortex of still-fresh emotions and patriotic fervor arising from the attack, appear to be altogether prejudiced and full of hard feelings against any accusation of complicity among U.S. officials, let alone a claim of outright, murderous conspiracy by commanders of the highest rank; and thus they were unable to be objective and impartial in judging the merits of such a charge, and the facts put forth in support. This animus led them to ignore even so striking and sensational an item of proof as the testimony of Secretary Mineta — a perennial Democrat member of the House of Representatives, and winner of the Medal of Freedom, then serving in the Republican Cabinet, a man so eminent that a major international airport is named after him — about Cheney‘s standdown orders, for example.

They even go so far as to eschew completely any reference whatsoever to the evidence — including defendants‘ own fishy and contradictory statements — concerning where the defendants were and what they were doing at the time of the crime. It is as if, in reviewing the case of a liquor store robbery, you ignored a report that the suspect was seen entering the store with a mask on and a gun in his hand.

And Judge Walker, as we urged, clearly was separately disqualified under 28 U.S.C. 455(b)(5)(iii) by virtue of his family connection to then-President Bush, and to his cousin Wirt Walker, then a principal in the firm providing security at the Twin Towers, each of whom surely has ― an interest that could be substantially affected by the outcome‖ of this case, as the statute provides.

Anti-prostitution policy requirement violates the First Amendment

2011-07-08T06:39:00.000-07:00

The Court of Appeals has held that recipients of government money to fight AIDS and other diseases around the world cannot be forced to affirmatively take a public stand against prostitution. This case strikes down that requirement under the First Amendment, which prohibits viewpoint discrimination.

The case is Alliance for Open Society International v. U.S. Agency for International Development, decided on June 6. The viewpoint discrimination doctrine is confused and difficult, borne out by a few Supreme Court rulings over the years, including Rust v. Sullivan, which held in 1991 that the First Amendment did not prohibit the government from requiring family planning offices to refrain from encouraging or promoting abortion as a method of family planning if they wanted to receive government money.

But first, the question most of us may have is, "why can't these aid recipients just take a stand against international prostitution?" There is an answer to this question, as Judge Parker points out for the 2-1 majority:

the WHO and UNAIDS have taken a public position at odds with the Policy Requirement, recognizing the reduction of penalties for prostitution as a best practice in the fight against HIV/AIDS. Defendants attempt to distinguish these exempted recipients on the ground that they are “public international organizations,” such that forcing them to adopt an anti-prostitution policy would require “multilateral negotiations.” But if anti-prostitution advocacy were central to the government’s program, it could, of course, simply choose not to fund these organizations. In short, the Agencies’ suggestion that requiring Plaintiffs to adopt an anti-prostitution policy statement is integral to the Leadership Act program is undermined by the fact that the government has chosen to fund high-profile, global organizations that remain free to express—and indeed openly express—a contrary policy, or no policy at all.

Anyway, the Policy Requirement to take a stand against prostitution violates the First Amendment in a couple of ways. While the government may impose conditions on the receipt of public money, this case pushes things "considerably further and mandates that recipients affirmatively say something — that they are 'opposed to the practice[] of prostitution,' The Policy Requirement is viewpoint-based, and it compels recipients, as a condition of funding, to espouse the government’s position."

The Court adds, "Although viewpoint-based funding conditions that target speech are not necessarily unconstitutional, such conditions are constitutionally troublesome." As "the targeted speech, concerning prostitution in the context of the international HIV/AIDS-prevention effort, is a subject of international debate," the government cannot impose its viewpoint in order to receive money to fight AIDS and other diseases around the world.

The anti-prostitution requirement also represents compelled speech, a doctrine known to most of us through the cases holding that children cannot be forced to recite the Pledge of Allegiance. The Court of Appeals says, "where, as here, the government seeks to affirmatively require government-preferred speech, its efforts raise serious First Amendment concerns." Compelled speech is a separate doctrine from viewpoint discrimination, but it's also prohibited under the Constitution.

The Second Circuit is nothing if not cautious. It outlines the limits of this decision in stating that the government may, in other cases, force its viewpoints on others if that viewpoint is central to the policy for which it is distributing government money. The Court says:

We do not mean to imply that the government may never require affirmative, viewpoint specific speech as a condition of participating in a federal program. ... [I]f the government were to fund a campaign urging children to “Just Say No” to drugs, we do not doubt that it could require grantees to state that they oppose drug use by children. But in that scenario, the government’s program is, in effect, its message. That is not so here. The stated purpose of the Leadership Act is to fight HIV/AIDS, as well as tuberculosis, and malaria. Defendants cannot now recast the Leadership Act’s global HIV/AIDS-prevention program as an anti-prostitution messaging campaign.

Some constitutional violations are too trivial to matter

2011-07-07T06:35:00.000-07:00

The Sixth Amendment ensures the right to a public trial. We don't think about the Sixth Amendment much; it gets overshadowed by free speech, search and seizure and cruel and inhuman punishment. But did you know that a judge who excludes people from the trial without sufficient justification is handing the criminal defendant a great issue on appeal?

The case is U.S. v. Gupta, decided on June 17. During jury selection, Gupta's brother and girlfriend were excluded from the courtroom. In explaining what happened, the courtroom deputy testified:

At the Court’s direction, in order to accommodate the large number of jurors in the venire panel, and to protect the panel from hearing anything about the case from any member of the public present, I requested that individuals who were not venire panel members leave the courtroom during the jury selection. I conveyed to those individuals that once the jury selection was complete, and there was again space in the public area of the courtroom, they were more than welcome to attend the
proceedings.

This was wrong. But is it a Sixth Amendment violation? The Second Circuit majority (Hall and Walker) says No. In dissent, Judge Parker says this was an easy case for reversal and he wants the Supreme Court to take a look, as the majority "insults the values inherent in the Sixth Amendment." What makes this case unusual is that the government in this case says that the justification offered by the courtroom deputy is not good enough. (Even more unusual is the fact that no one was aware of the closure at the time and it came to light two years later). But the Second Circuit finds that this was a trivial Sixth Amendment violation. Yes, there is such a thing under the case law. This was only voir dire, and nothing of significance happened, the majority says:

The district court gave prospective jurors general information about Gupta’s case, described the charging indictment, and presented jurors with a written questionnaire listing possible grounds for ineligibility. The court also conducted a short sidebar discussion with each prospective juror concerning their responses to the written questionnaire (a process that would not have been audible to members of the public), and then posed general questions to the jurors in open court about their background and interests. Finally, the court and counsel for both parties adjourned to the jury room to exercise peremptory challenges; no objections were made to any of the challenges, and no jurors were dismissed without the consent of both parties.

Then the Court expands on its analysis in explaining why it reaches the right decision. It notes that nonpublic trials are bad because the public cannot exercise any oversight over this most important government function. But, in this case, voir dire was inherently public because John Q. Public was sitting in the courtroom waiting for his name to be called and otherwise watching the judge question potential jurors. Judge Hall writes, "even where a trial court unjustifiably excludes spectators from the courtroom during voir dire, the presence of the venire lessens the extent to which that closure implicates the defendant’s public trial right because the venire, derived from and representative of the public, guarantees that the voir dire proceedings will be subject to a substantial degree of continued public review."

Second Circuit revives parental rights claims

2011-07-05T05:08:00.000-07:00

Here's a civil rights case that's unusual for a couple of reasons. First, the Second Circuit, for now, rules against the government in a child abuse case, even finding that the government caseworker who sent the kids to foster care is not entitled to qualified immunity, which normally gives defendants the benefit of the doubt. Second, it took the Court of Appeals two years to decide this case, which was filed in the district court in 1999.

The case is Southerland v. City of New York, decided on June 10. Investigator Woo was assigned to the case after one of the Southerland daughters, Ciara, was behaving strangely in school. Woo came to the house and claimed that the Southerland's children were living in squalor; Southerland strongly disputed this characterization. Concluding that their safety was threatened, Woo removed the children from their home and sent them to foster care. While Kings County Family Court concluded that Southerland had abused and neglected his children and sexually abused Ciara, none of this damning information was in Woo's possession when he entered the home and took away the kids. For that reason, the Second Circuit (Sack, Kearse and Hall) disregards the Family Court's findings in determining whether Woo violated the Constitution. That's unusual, as federal courts like to defer to the evidentiary findings of state courts. Except that qualified immunity cases ask what the government defendants knew and when they knew it.

The district court granted Woo's motion for summary judgment on qualified immunity grounds. Again, this kind of immunity gives government officials the benefit of the doubt in close cases. But the Court of Appeals reverses and remands the case for trial on Southerland's substantive due process claim that Woo violated his parental rights, and on the childrens' Fourth Amendment search and seizure claim.

First, the district court analyzed the childrens' claim under the wrong law, applying instead the amended version that did not apply at the time. Under the correct law, Woo could only get a search warrant if he believed that an abused child lived at the premises. At the time, Woo knew that Ciara did not live with her father. He went to the house anyway and seized the other kids. Another problem was the search warrant affidavit erroneously listed the children of Southerland's wife, who did not live there; they lived with their mother. The search warrant affidavit had other factual errors that further allowed Woo to take the children. Since the Court of Appeals says that a jury may find that Woo intentionally made these search warrant affidavit errors, he does not get qualified immunity. This overcomes the presumption that court-issued search warrants support a finding of probable cause, which normally kills off any civil rights lawsuit. Not this one.

The due process claims are also revived. Although Woo removed the children from their home without a court order, he was not faced with exigent circumstances, the only basis upon which could proceed without an order. Since the law was clear in this area, Woo does not get qualified immunity. As for Southerland's substantive due process claim under the Fourteenth Amendment, on the theory that Woo's actions were shocking and outrageous, while caseworkers may temporarily remove children from the home if there is a prompt and adequate judicial confirmation proceeding, the record is not clear that such a proceeding took place. The Second Circuit is not clear as to "the nature of the proceeding in terms of its timeliness and adequacy." In addition, the jury may find that Woo's conduct was not objectively reasonable under the circumstances, since the parties dispute whether Southerland's children were living in squalor. As the law in this area of constitutional parental rights was clear in 1997, Woo also cannot claim that vague constitutional standards at the time entitled him to qualified immunity.

Justice Thomas wants to sharply restrict the First Amendment rights of young people

2011-06-28T06:32:00.000-07:00

The issue before the Supreme Court was whether the State of California could make it illegal to sell or rent violent video games to children. The Supreme Court, consistent with its near-absolutist approach to free speech issues, says that while some of these video games are violent and quite vile, the government cannot restrict this form of speech without a compelling interest. Since it is almost impossible to advance a compelling interest in First Amendment cases, California loses. That is not a remarkable holding, as the Court reached this conclusion on the basis of a bi-partisan vote. The remarkable thing about this ruling is Justice Thomas's dissenting opinion.

The case is Brown v. Education Merchants Assn, decided on July 27. You can understand why California tried to make these games illegal. Justice Alito's concurrence describes what these games are about:

In some of these games, the violence is astounding. Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown. In some games, points are awarded based, not only on the number of victims killed, but on the killing technique employed. It also appears that there is no antisocial theme too base for some in the video-game industry to exploit. There are games in which a player can take on the identity and reenact the killings carried out by the perpetrators of the murders at Columbine High School and Virginia Tech.

The objective of one game is to rape a mother and her daughters; in another, the goal is to rape Native American women. There is a game in which players engage in “ethnic cleansing” and can choose to gun down African-Americans, Latinos, or Jews. In still another game, players attempt to fire a rifle shot into the head of President Kennedy as his motorcade passes by the Texas School Book Depository.

OK, so we know the games are bad. But Justice Scalia, writing for the majority, notes there is no historic tradition to shield minors from violent literature and other forms of mass media. He notes that childrens' books, including the Grimm's Fairy Tales, are violent, as are high school reading lists. We put up with all sorts of offensive speech, from flag burning to racist speech, none of which can be regulated by the government. Years ago, we put up with offensive comic books and movies. As The Court majority notes, people cries wolf back then, but the "anything goes" mentality will always seem to govern these cases. Last year, the Supreme Court held that the government cannot outlaw videos showing people crushing animals to death. This time around, violent video games are equally protected.

In dissent, Justice Thomas takes an originalist approach to the First Amendment that no one else on the Court agrees with. Through exhaustive research, he argues that when the First Amendment was adopted in the Eighteenth Century, it was understood that parents were able to control what their minor children could see and hear. He writes:

The practices and beliefs of the founding generation establish that “the freedom of speech,” as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.

...

In my view, the “practices and beliefs held by the Founders” reveal another category of excluded speech: speech to minor children bypassing their parents. The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society understood “the freedom of speech” to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors’ parents. The founding generation would not have considered it an abridgment of “the freedom of speech” to support parental authority by restricting speech that bypasses minors’ parents.

Justice Thomas's scholarship on this issue is all very interesting, but no one else is buying this. A few years ago, he argued in Morse v. Fredericks, 551 U.S. 393 (2007), that the Supreme Court's seminal case in favor of high school students' First Amendment rights (Tinker v. Des Moines School District, 391 U.S. 503 (1969)) should be overruled because the original understanding of the First Amendment in the Eighteenth Century did not recognize that school children had any First Amendment rights at all. No one else on the Supreme Court joined in that analysis, either.

Military reservist loses USERRA case

2011-06-27T06:55:00.000-07:00

Evan Hart was a dentist who fought in Iraq. When he returned to work, his boss told him that he would be terminated in 60 days. That 60 days' notice became 30 days' notice when Hart protested. After Hart filed a USERRA complaint with the Department of Labor, the Department told Hart's employer that he could not be fired for 180 days. Management complied with that directive. So, does Hart have a case? No, and it was dismissed during trial in Connecticut. The Court of Appeals affirms.

The case is Hart v. Family Dental Group, decided on May 31. USERRA is the Uniformed Services Employment and Reemployment Act, which grants military reservists certain employment rights. One USERRA provision is quite generous to reservists: upon the employee's return from his military obligations, the employer cannot fire him for 180 days without cause. Apart from the 180 day rule, the employer must re-employ the reservist as if he had never left. As the Second Circuit (Miner, Cabranes and Straub) puts it, "the only question before us is whether [management's] January 20 letter providing Hart with 60-days notice (later amended to 30 days and thereafter amended again to 180 days) and Hart's subsequent termination in accordance with the terms of that letter violated [USERRA]. It did not."

Hart loses the case. When Hart returned from Iraq on January 17, 2005, he got his job back. All was good with the world, until January 20, only three days later, when his boss gave him a letter stating he would be fired in 60 days. There is no showing that Hart was fired for cause, and his ultimate termination after 180 days was legal under USERRA. The Court writes, "the evidence is clear that Dr. Hart was re-employed on his return from his leave for 180 days, with the same seniority and other rights and benefits that he had ... before he left on his tour. That is all [USERRA] requires." Not the most complicated case in the world, decided by the Second Circuit in a published opinion only two weeks after it was argued.

The Harvey Note doesn't support a Habeas petition

2011-06-24T06:58:00.000-07:00

I would imagine that all inmates dream about winning their habeas petitions in federal court. They get to one-up the state court judges who convicted them and, of course, the charges are dropped or a new trial is ordered. That's what happened to this guy, but the Court of Appeals reinstates the conviction.

The case is Watson v. Greene, decided on May 17. Watson was convicted of first-degree murder for shooting Morris. Watson admitted participating in the robbery in which Morris was shot, but he claimed that someone else, Harvey, pulled the trigger. The jury said that Watson shot Morris. The jury didn't know that something happened that was a defense lawyer's dream: he got his hands on a note that suggested that Harvey and not Watson shot Morris. For some reason, defense counsel got the note during the second day of jury selection, but the trial court said it could not come in at trial because it was hearsay.

The note was written by a police officer, Pierce, who was not involved in the murder investigation. Pierce happened to know Harvey's family and she overheard them talking about the case, that Harvey had a gun the night of the killing and it went off accidentally. What were the odds that a police officer would know Harvey's family? Anyway, the detective on the case did not follow up on this lead, and the trial court would not let Watson's lawyer exploit this note at trial, i.e., he could not cross-examine the detective, Bond, about his failure to further investigate the information in the note which may have exonerated Watson.

Habeas petitions are hard to win. There are too many barriers. Harmless error is one problem when convicts try to argue that the excluded evidence would have made a difference. A 1996 federal law also gives state courts some leeway in interpreting the U.S. Constitution, so long as their erroneous interpretations are not unreasonable. You read that right. In some cases, state courts are allowed to get it wrong and the convicted defendant still does not get a new trial.

The federal trial court granted the habeas petition because the precluded cross-examination went to the thoroughness of the police investigation. Great news for Watson. I would imagine Watson's attorney would have a field day with this note at trial, had he been able to put Detective Bond on the stand and quizzed him about his shoddy investigation. That cross-examination, however, will not happen.

The Court of Appeals (Lynch, Chin and Korman [D.J.], reverses, and the conviction stands. While the Confrontation Clause guarantees defendants to cross-examine their accusers, a trial court has "broad discretion" to restrict cross-examination. While the Harvey Note had some relevancy, the restriction on cross-examination does not entitle Watson to a new trial. The Note contained multiple hearsay, "and the jury reasonably could have determine that Bond's decision not to follow up on unreliable information that Harvey was the shooter -- particularly in light of the strength of the evidence then available to Bond -- did not reflect a serious lack of thoroughness of the police investigation." Also, the trial court could have found that the hearsay note would confuse and mislead the jury. In light of the broad discretion that criminal court judges have in managing their trials, exclusion of this note was not an unreasonable application of settled Supreme Court Confrontation Clause doctrine.

Officers get qualified immunity in excessive force case

2011-06-22T10:14:00.000-07:00

The Court of Appeals has dismissed an excessive force claim against the City of Long Beach on the basis that the police officers reasonably believed they were complying with the Constitution when they restrained a suspect in the course of a possible domestic violence incident.

The case is Hodge v. City of Long Beach, a summary order decided on June 20. The district court denied the officers' motion for summary judgment. Normally, that means the case goes to trial to resolve disputed factual issues. But in Section 1983 cases, the defendants can appeal right away if they claim qualified immunity from liability. In excessive force cases, these defendants often find a sympathetic ear in the Second Circuit. That's what happened here.

As the Second Circuit summarizes the case,

The plaintiff claims that the officers spun him around with a forearm, grabbed his neck, put him in a bear hug, and pulled his arms behind his back as they attempted to handcuff him, causing “injuries and bruises to his back, and abrasion on his arms and neck, and [rendering him] unable to swallow.” He concedes that the incident “happened quickly” and that he was never forced to the ground.

In assessing excessive force claims, courts consider the severity of the crimes that brought the police into contact with the plaintiff in the first instance. As this was a domestic dispute which "tend[s] to be 'combustible'" (as shown by broken glass and a bloody shirt), the police had some leeway in controlling the situation. Courts also consider whether the plaintiff posed an immediate threat to the officers, another factor that weighs in the City's favor, as plaintiff would not take his hands from his pockets. We also ask whether suspect was actively resisting arrest. Here, plaintiff "displayed defiant resistance, abruptly turning and walking away from the officers." Under the circumstances, Hodge cannot win the case because the officers have qualified immunity. The Court of Appeals (Jacobs, Winter and McLaughlin) reasons that "because of the plaintiff’s defiance and the indicia of a potential incident of domestic violence, it would not be 'clear to a reasonable officer that his conduct was unlawful in the situation he confronted.'”

Supreme Court scales back First Amendment's Petition Clause

2011-06-21T06:09:00.000-07:00

Justice Kennedy opens up the Supreme Court's Petition Clause ruling with the following language: "Among other rights essential to freedom, the First Amendment protects 'the right of the people ... to petition the Government for redress of grievances.'" Nice language, but it's all downhill from there for public employees.

The case is Borough of Duryea v. Guarnieri, decided on June 20. The Court does not issue many Petition Clause cases. This one asks whether a public employee who files a grievance and then a lawsuit is protected from retaliation under the Petition Clause. After all, in-house grievances and lawsuits constitute "petitions" under the Constitution, right? The answer is, sort of. The petition must address a matter of public concern. Otherwise, management is free to retaliate against the employee, even if he won the grievance and brought suit in federal court.

If you follow public employee free speech cases, some of this language may sound familiar. The Supreme Court said in Connick v. Myers (1983) that public employee speech is protected from retaliation if the employee spoke out on a matter of public concern. This standard ensures that the federal courts are not embroiled in disputes over whether the plaintiff got the right air conditioning or enough paper clips. In contrast, speech alleging corruption or misuse of public money is public concern speech, so long as the speech does not grow out of the plaintiff's official duties. What the Supreme Court does in this case is to fold the free speech clause's "public concern" test into the Petition Clause.

Although the jury found in Guarnieri's favor after the municipality jerked him around for filing a successful grievance and challenging his mistreatment in court, the Supreme Court vacates plaintiff's lucrative jury award. It is true, the Supreme Court has held in the past, that "the right of access to courts for redress of wrongs is an aspect of the First Amendment right to petition the government." But the Petition Clause should not grant employees broader rights than the free speech clause, the Court says. Under either clause, the plaintiff must grieve or speak out on matters of public concern. Since many grievances and lawsuits raise personal matters and not broader issues of concern to the public, there is no solace in the Petition Clause. The practical effect of this case is known to Section 1983 lawyers in the Second Circuit: if the plaintiff files and wins a First Amendment retaliation lawsuit, for example, management may then fire the plaintiff in retaliation for that very lawsuit (unless the lawsuit somehow raised broader issues of public concern beyond the plaintiff's own personal grievance).

The Court's reasoning grants substantial deference to governmental authority, repeatedly reminding us that government offices have important objectives and therefore need to be managed efficiently. "Petitions, no less than speech, can interfere with the efficient and effective operation of government," Justice Kennedy says. Moreover, "when a petition takes the form of a lawsuit against the government employer, it may be particularly disruptive." And, these cases will require the jury to delve into trivial matters about the underlying grievance, i.e., overtime matters, personnel decisions and budget priorities. This raises federalism and separation of powers concerns. The Court worries that different legal standards for free speech and Petition Clause cases "would add to the complexity and expense of compliance with the Constitution."

I thought for sure the Court's liberals would dissent in this case. They did not. The Supreme Court has never had a case like this before, which means the Justices are writing on a clean slate. If the political science considerations that inform Justice Kennedy's decision are not firmly rooted in Supreme Court precedent, and if the Petition Clause is weakened such that even successful lawsuits in federal court do not constitute protected activity, where are the liberals who vigorously dissented the last time the Court scaled back public employee speech claims, in Garcetti v. Ceballos (2006)? I can't say. Maybe Justice Kennedy issued the decision without circulating it to his colleagues!

What would Abe Fortas think of this?

2011-06-20T06:32:00.000-07:00

Abe Fortas only sat on the Supreme Court for a few years in the 1960's before he resigned in disgrace, but he did write a few memorable opinions, including Tinker v. Des Moines School District (1969), recognizing that students have First Amendment rights so long as their speech does not materially and substantially disrupt the work and discipline of the school. In that case, Justice Fortas said that high school students could not be punished for wearing anti-Vietnam War armbands to school. Tinker is still good law.

The case is R.O. v. Ithaca City School District, decided on May 18. The plaintiffs staffed the high school newspaper. They wanted to publish a cartoon showing stick figures having sex with each other. The cartoon was in the context of an article about sex education in the high school. The principal and superintendent nixed the cartoon as inappropriate and "patently offensive." They also said the cartoon makes a "mockery of sexual intercourse" and would "raise inappropriate questions in the minds of many immature students and interfere with what is being taught in the health curriculum regarding both responsibility and abstinence." District officials also prevented plaintiffs from running the cartoon in an independent newspaper that they wanted to distribute on campus.

The funny thing about Tinker is that it was the first and last time the Supreme Court upheld a student speech case. People like the Tinker case because of Justice Fortas's famous line: "[i]t can hardly be argued that either students or teachers shed their constitutional rights of freedom of speech or expression at the schoolhouse gate.” In the Ithaca stick figure case, Judge Cabranes describes that phrase as "portentous and quotable." It sure is. But there is no way the Second Circuit (Cabranes, Chin and Korman [D.J.]) is going to second-guess district officials in a case like this. (The cartoon is found here at page 18 of the PDF file).

The plaintiffs in this case argued that this case was governed by the lenient Tinker standard. The Court of Appeals sees it differently. Two Supreme Court precedents are in play here: the Hazelwood decision from 1988 and the Fraser case from 1986. Hazelwood says that the principal may edit school-sponsored publications in the name of good taste. Fraser says that schools can punish kids for vulgarities at school. This case implicates both precedents. The stick figures having sex with each other are "unquestionably lewd," the Court of Appeals says. While Fraser involved a lewd student assembly speech, the Second Circuit sees no reason why that precedent cannot govern the written word. In addition, the censorship was "reasonably related to legitimate pedagogical concerns" because, "[a]mong other things, in the weeks during and just prior to the period in which students sought to publish the objectionable cartoon, school authorities became aware that an increasing number of students were engaging in risky sexual behavior." The cartoon would have undercut the school's efforts to stress the seriousness of sexual behavior.

Tinker gets distinguished all the time as the Supreme Court finds ways to make it easier for school officials to regulate student speech in the context of student newspapers (Hazelwood), drug-related speech (Morse v. Frederick [2007]) and vulgarities (Frasier). Tinker is still good law, but its application is limited on a regular basis. What would Abe Fortas think?

Let's hear it for rough justice!

2011-06-15T06:06:00.000-07:00

Some Supreme Court decisions are unremarkable, but they contain language that guides the courts in follow-up cases. I wonder if that is the case in the Court's recent attorneys' fees ruling, which notes in passing that trial courts in ruling on fee motions need only provide "rough justice."

The case is Fox v. Vice, decided on June 6. The issue was whether a prevailing defendant in a civil rights case may recover attorneys' fees for all work expended in a case that included a frivolous issue. While prevailing plaintiffs routinely recover attorneys' fees under 42 U.S.C. sec. 1988, prevailing defendants only recover fees if the case was totally frivolous. So the issue here was, can the defendant in that circumstance get all his fees even if only one issue was frivolous?

Here's how the Justice Kagan writes for a unanimous court: "a court may grant reasonable fees to the defendant in this circumstance, but only for costs that the defendant would not have incurred but for the frivolous claims." As a former law professor, Justice Kagan was probably sick and tired of vague Supreme Court holdings that created more questions than answers, so she provides some examples of how this ruling would apply in the real-world:

Section 1988 allows a defendant to recover reasonable attorney’s fees incurred because of, but only because of, a frivolous claim. Or what is the same thing stated as a but-for test: Section 1988 permits the defendant to receive only the portion of his fees that he would not have paid but for the frivolous claim. Recall that the relevant purpose of §1988 is to relieve defendants of the burdens associated with fending off frivolous litigation. So if a frivolous claim occasioned the attorney’s fees at issue, a court may decide that the defendant should not have to pay them. But if the defendant would have incurred those fees anyway, to defend against non-frivolous claims, then a court has no basis for transferring the expense to the plaintiff. Suppose, for example, that a defendant’s attorney conducts a deposition on matters relevant to both a frivolous and a non-frivolous claim—and more, that the lawyer would have taken and committed the same time to this deposition even if the case had involved only the non-frivolous allegation. In that circumstance, the work does not implicate Congress’s reason for allowing defendants to collect fees. The defendant would have incurred the expense in any event; he has suffered no incremental harm from the frivolous claim. In short, the defendant has never shouldered the burden that Congress, in enacting §1988, wanted to relieve.

This is not the end of Justice Kagan's analysis. She comes up with more examples of how the new fee-shifting rule works, much like a practice treatise would, except that these examples have the force of law and expert commentaries do not. The Court explains how the "but for" standard might require the plaintiff to pay all of the defendants' fees even if there were non-frivolous claims:

Suppose, for example, that a plaintiff asserts one frivolous and one non-frivolous claim, but that only the frivolous allegation can legally result in a damages award. If an attorney performs work useful to defending against both, but did so only because of the defendant’s monetary exposure on the frivolous charge, a court may decide to shift fees. Or similarly, imagine that the frivolous claim enables removal of the case to federal court, which in turn drives up litigation expenses. Here too, our standard would permit awarding fees for work relevant to both claims in order to reflect the increased costs (if any) of the federal forum. And frivolous claims may increase the cost of defending a suit in ways that are not reflected in the number of hours billed. If a defendant could prove, for example, that a frivolous claim involved a specialized area that reasonably caused him to hire more expensive counsel for the entire case, then the court may reimburse the defendant for the increased marginal cost. As all these examples show, the dispositive question is not whether attorney costs at all relate to a non-frivolous claim, but whether the costs would have been incurred in the absence of the frivolous allegation. The answers to those inquiries will usually track each other, but when they diverge, it is the second that matters.

What is remarkable about this decision is that the Court issues a new rule for the lower courts to follow, and then it provides examples of how that rule would shake out. This will save the lower courts years of agonizing litigation and conflicting rulings. Instead, federal judges will know what to do if confronted with a case where the defendant is entitled to attorneys' fees.

Federal litigators know that defendants rarely recover fees from a losing plaintiff. The Supreme Court decided a long time ago that fee-shifting is really a one-way street. The winning plaintiff gets them, but the defendant only gets fees if the case is frivolous. So the practical application of this ruling may be limited. But in summarizing how federal judges should apply the fee-shifting statute in general, Justice Kagan does suggest that the trial courts do not have to issue precise attorneys' fees awards. This is important language that will apply in all attorneys' fees cases and make life easier for trial courts that want to issue a ruling without bean-counting. It's worth reprinting here, as the Court uses some colorful language about "rough justice" that hits the nail on the head:

The fee applicant (whether a plaintiff or a defendant) must, of course, submit appropriate documentation to meet “the burden of establishing entitlement to an award.” But trial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time.

Pro se plaintiff wins battle of the wills in Second Circuit

2011-06-09T06:53:00.000-07:00

In this case, the Second Circuit sides with a pro se litigant who was caught up in a battle of wills with a federal judge in Connecticut, who dismissed his racial discrimination case because plaintiff could not find a lawyer before time ran out.

The case is Leftridge v Connecticut State Trooper, decided on May 12. Leftridge sued the police, claiming that he was pulled over on the highway because of his race. The district court denied his motion for appointment of counsel, since you have not right to counsel in civil cases, only criminal cases. Then, plaintiff kept renewing his motion for the appointment of counsel, but the judge kept denying that motion, even after plaintiff's doctor wrote a letter to the court stating that the stress of litigation was affecting plaintiff's mental health and that he should not be representing himself. Again, the trial court has no duty to follow the doctor's wishes.

But then the district court went too far. After the doctor wrote his letter, the judge entered an order stating that the case would be dismissed if he did not hire counsel by June 29, 2009, and that "given the present circumstances, this case should be administratively closed without prejudice to reopening by an attorney for the plaintiff." When plaintiff on June 22, 2009 asked for more time to hire a lawyer because he was trying to raise money for attorneys' fees, the court denied that application. The court a few days later denied plaintiff's motion to reopen the case. June 29, 2009 came and went, and that was the end of the case.

The Court of Appeals (Kearse, Calabresi and Wesley) revives the case. Leftridge wins the appeal pro se. It was legal for the trial court to deny plaintiff's request for the appointment of counsel, but there was no legal basis for the court threaten to dismiss the case if plaintiff could not find a lawyer. The Court concludes, "If an adult individual wishes to conduct his case pro se, an order requiring him instead to retain counsel to represent him violates § 1654 [the statute that allows individuals to represent themselves pro se]. An order dismissing the action of such a pro se plaintiff for failure to retain counsel is a legal error and cannot be located within the range of permissible decisions. Accordingly, in the present case, the district court's July 2 Order refusing to reopen the case solely because Leftridge had not obtained counsel, thereby precluding him from pursuing his case pro se, constituted an abuse of discretion." Wrapping things up, the Second Circuit provides guidance to district courts in case this ever happens again:

Clearly the court did not abuse its discretion by giving Leftridge time to retain counsel, although it would have been preferable for the court to have said that the action was stayed, rather than closed; and the court should have specified that if Leftridge did not retain counsel (by such deadline as the court imposed) he nonetheless had the option of proceeding pro se. And once Leftridge was unable to retain counsel before the June 29 deadline and asked that the case be reopened in order to allow him to proceed pro se, he should have been allowed to proceed pro se. The inability of an individual litigant to obtain counsel is not a basis for denying him his statutory right to pursue his case pro se.

New York City may exclude certain religious groups from public buildings

2011-06-06T07:22:00.000-07:00

This could be the most complicated civil rights case in the Second Circuit this year. The Court of Appeals decides whether New York City's prohibition against groups using public school buildings after hours for religious worship services violates the Establishment Clause. In a 2-1 vote, the Second Circuit upholds the rule and says there is no constitutional violation.

The case is Bronx Household of Faith v. City of New York, decided on June 2. This case has reached the Court of Appeals a few times before, gaining new life thanks to recent Supreme Court rulings that gave religious groups equal rights under the First Amendment to use school buildings in certain circumstances. Those Supreme Court rulings prompted the district court to issue an injunction prohibiting the City from enforcing the rule. While noting that the Supreme Court has not provided clear guidance on this issue (which is why the Second Circuit spent 1.5 years deliberating on this case), the Court of Appeals (Leval, Calabresi in the majority, Walker in dissent) vacates the injunction.

Rule 5.11 prohibits the use of public schools for "religious worship services." Plaintiff wanted to use the school after hours for "Christian worship services." As other organizations get to use the schools for their own purposes, Bronx Household of Faith brought this lawsuit. The Court of Appeals says the rule is not unconstitutional. While the Supreme Court has held in recent years that religious organizations can use public buildings to promote their point of view (placing them on equal ground with non-religious organizations who also use the buildings), Judge Leval says those cases do not apply because plaintiff wants to use the building for "worship services." This is a subtle distinction, one that does not persuade Judge Walker and will probably send this case to the Supreme Court. Here is why the Court of Appeals sided with the City:

The prohibition against using school facilities for the conduct of religious worship services bars a type of activity. It does not discriminate against any point of view. The conduct of religious worship services, which the rule excludes, is something quite different from free expression of a religious point of view, which the Board does not prohibit. The conduct of services is the performance of an event or activity. While the conduct of religious services undoubtedly includes expressions of a religious point of view, it is not the expression of that point of view that is prohibited by the rule.

...

What is prohibited by this clause is solely the conduct of a particular type of event: a collective activity characteristically done according to an order prescribed by and under the auspices of an organized religion, typically but not necessarily conducted by an ordained official of the religion. The conduct of a “religious worship service” has the effect of placing centrally, and perhaps even of establishing, the religion in the school.

In other words, it's the "worship services" angle that rubs the Court of Appeals the wrong way. A religious meeting for purposes of expressing religious devotion through prayer and singing is one thing. Religious services are quite another. Again, this is a fine line. Judge Leval tries to explain it in everyday terms: "There is an important difference between excluding the conduct of an event or activity that includes expression of a point of view, and excluding the expression of that point of view. Under rules consistent with the purposes of the forum, schools may exclude from their facilities all sorts of activities, such as martial arts matches, livestock shows, and horseback riding, even though, by participating in and viewing such events, participants and spectators may express their love of them. The basis for the lawful exclusion of such activities is not viewpoint discrimination, but rather the objective of avoiding either harm to persons or property, or liability, or a mess, which those activities may produce."

The Court then determines that the exclusion is reasonable under the Establishment Clause. The reasonableness analysis is deferential to governmental authorities, but the City is held to this easy standard because the Court of Appeals found that the City's rule does not otherwise violate the First Amendment. The exclusion is reasonable because the City has a "strong basis" to believe that the rule was necessary to avoid an Establishment Clause violation. Among other reasons, the Court finds, "the performance of worship services is a core event in organized religion. ... When worship services are performed in a place, the nature of the site changes. The site is no longer simply a room in a school being used temporarily for some activity. The church has made the school a place for the performance of its rites, and might well appear to have established itself there. The place has, at least for a time, become the church."

Ricci returns to the Second Circuit

2011-06-03T05:16:00.000-07:00

After the district court in a reverse-discrimination suit approved a settlement that provided retroactive seniority benefits to 63 black, hispanic and female New York City Department of Education employees, the Supreme Court issued its well-known ruling in Ricci v. DeStefano, which made it much more difficult for municipalities to resolve disparate impact claims without a "strong basis in evidence" to believe it will be subject to disparate impact liability without this remedy. Ricci originated in the Second Circuit, and now it comes back as binding precedent in another case.

The case is U.S. v. New York City Department of Education, decided on May 5. The decision is over 100 pages long, owing to the new and complex standard outlined by the Supreme Court in Ricci (the New Haven firefighters case) and the equally complex puzzle of resolving disparate impact claims where the remedy impacts the employment rights of others not before the court.

In Ricci, the Supreme Court said that, “under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.” In the case before the Second Circuit, the Court throws out the settlement.

The City was originally sued for allegedly using civil service exams that allegedly led to a disparate impact against blacks and Hispanics and also used discriminatory recruiting practices. The case settled in 1999, over the objections of white employees who "objected to four paragraphs that provided permanent appointments and retroactive competitive seniority to 63 black, Hispanic, Asian, or female individuals." In 2001, the Second Circuit vacated the settlement because the white employees should have been allowed to intervene in the lawsuit. They then brought two reverse-discrimination lawsuits against the City. Among other rulings, the district court held that some of the retroactive seniority provided by the settlement agreement was lawful.

The case now returns to the district court. The extensive and painstaking litigation that produced the settlement must be reviewed anew under Ricci. Judge Calabresi writes:

Where, as here, the employer instead provides individualized race- or gender-conscious benefits as a remedy for previous disparate impact, the employer must satisfy the requirements of Ricci, not Johnson and Weber [two prior Supreme Court affirmative action cases], in order to avoid disparate-treatment liability. Under Ricci, the employer must show a strong basis in evidence that, at the time the race- or gender-conscious action was taken, the employer was faced with disparate-impact liability and that the race- or gender-conscious action was necessary to avoid or remedy that liability.

That's life under our appellate system. The trial court works his fingers to the bone applying Supreme Court precedent before new cases come down that change the analysis. The Second Circuit says this is not really an affirmative action case, which is why Johnson and Weber do not apply. This is a Ricci case, where the City tries to avoid a disparate impact judgment and, in so doing, might have handed a disparate treatment case to someone else burdened by the remedy under the settlement. The district court has to look at the case again under Ricci.

Plaintiffs cannot sue to enforce housing regulation

2011-05-31T04:47:00.000-07:00

Disabled plaintiffs in New Haven sued the Housing Authority of New Haven for instituting and failing to correct policies that violated their right to certain reasonable accommodations. The Court of Appeals affirms the district court's order dismissing the case because the regulations under which plaintiffs bring this action cannot be enforced under 42 U.S.C. sec. 1983.

The case is Taylor v. New Haven Housing Authority, decided on May 4. The Second Circuit's ruling is quite short, particularly for a published opinion. The Court of Appeals (Kearse, Miner and Chin) is so impressed with the district court's thorough reasoning that the Second Circuit simply adopts Judge Arterton's reasoning in pinpoint fashion, stating, "We adopt the district court's carefully considered and thorough discussion of these issues. See, Taylor v. Housing Authority of New Haven, 267 F.R.D. 36, 40-47, 52-54 (D. Conn. 2010)." Why reinvent the wheel?

The district court ruling tells the story. Plaintiff claimed that the housing authority failed to provide them reasonable accommodations under a regulation that requires private landlords to, i.e., encourage families to locate an available accessible dwelling unit and approve a family request for certain rent exceptions. Plaintiffs' claim draws from a regulation, not an actual statute. There is a difference. You may have to go to law school and take an administrative law class to really understand this, but regulations cannot give rise to a private claim distinct from that conferred by the statute itself. In addition, under Alexander v. Sandoval, 532 U.S. 275 (2001), "language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not crate a right that Congress has not." In other words, agencies that create the regulations intended to enforce statutes "may play the sorcerer's apprentice but not the sorcerer itself."

This case failed in the district court because the Rehabilitation Act of 1973 -- a federal statute -- speaks broadly in terms of access to benefits but does not speak in terms of specific components of a benefit, program or activity. So, even though the regulations that enforce that statute, may provide that level of specificity, they do not create a private cause of action. The regulations are certainly there for a reason, to provide guidance in the provision of Section 8 benefits, and they certainly may help the disabled in their public housing. But the regulations at issue here, 24 C.F.R. sec. 8.28(a), cannot give rise to this lawsuit.

How not to write a Rule 68 offer

2011-05-25T06:10:00.000-07:00

All federal litigators should know about Offers of Judgment under Rule 68. The defendant offers to settle the case, and if plaintiff wins the case but recovers less than the Rule 68 offer, then plaintiff pays the defendants' costs and forfeits certain attorneys' fees. A shrewd Rule 68 offer makes the plaintiff think twice about litigating the case any further. Of course, this all requires that the defendant's lawyer serve a proper Rule 68 offer.

The case is Barbour v. City of White Plains, 07 Civ. 3014 (RPP), 2011 WL 2022884, decided by district judge Patterson on May 24. Three plaintiffs sued police officers under 42 U.S.C. sec. 1983 for civil rights abuses. Shortly before trial, defense counsel served on plaintiffs a Rule 68 offer, amounting to $10,000 for each plaintiff. Plaintiffs took the money, and their attorneys moved for attorneys' fees as prevailing parties. They recover nearly $300,000 in fees. How did this happen?

Most Rule 68 offers state that the settlement offer includes attorneys' fees. Not this one. The offer also did not specify that it included costs. It should have, if that was the defendants' intent. Citing Marek v. Chesny, 473 U.S. 1 (1985), Judge Patterson writes, "if defendants had intended its offers to include costs and attorneys fees, it offers of judgment should have so stated." Not only that, but the judgment signed by Judge Patterson said that judgment was entered in each plaintiffs' favor, "with the costs accrued, including reasonable attorneys' fees, in an amount to be determined by the Court."

Defendants' counsel claimed to be surprised when plaintiffs next moved for attorneys' fees. He argued that the Rule 68 offer was not intended to compensate plaintiffs for all their time expended on the case, and that, at best, the attorneys' fees should have come out of the $10,000 judgment for each plaintiff. No dice, Judge Patterson says. That's an unreasonable interpretation of the Rule 68 offer, all the more so because defendants' counsel drafted the offer. He should have been more careful. Judge Patterson cites a SDNY case from 1989 that's on all fours: "Defendant's counsel simply erred in failing to protect against an acceptance of the offer followed by a request for costs, including attorneys' fees."

This amounts to a poorly-drafted Rule 68 offer that costs the defendants nearly $300,000, in part due to the huge expenditure of time that plaintiffs' counsel reasonably spent in litigating the case and preparing for trial that was only weeks away from the offer. What should have been a $30,000 settlement costs defendants nearly ten times that amount. If defense lawyers are reading this, let this be a lesson to ya. Be careful in writing up those Rule 68 offers.

Circuit remands attorneys' fees case yet again

2011-05-24T06:09:00.000-07:00

In December 2010, the Court of Appeals resolved an attorneys' fees appeal, remanding the case to the district court to reconsider the fee application because the prevailing attorney did not provide the court with contemporaneous time records, a requirement under Second Circuit precedent.

In that case, Scott v. City of New York, the Second Circuit noted that, in New York State Association for Retarded Children v. Carey, 711 F.2d 1136 (2d Cir. 1983), it held that "all applications for attorneys' fees ... should normally be disallowed unless accompanied by contemporaneous time records indicating, for each attorney, the date, the hours expended, and the nature of the work done." This language was a problem for Thomas Puccio, Esq., the attorney in Scott, who was entitled to more than $500,000 in fees for his work on a collective action case under the Fair Labor Standards Act. For some reason, his time records were not contemporaneously maintained, and in remanding the case to the district court, you wondered if counsel would get no money at all. The Court of Appeals in December 2010 provided the governing standard for the district court:

While we can imagine rare circumstances where an award of fees might be warranted even in the total absence of contemporaneous records — such as where the records were consumed by fire or rendered irretrievable by a computer malfunction before counsel had an opportunity to prepare his application — the circumstances justifying such an exception would have to be found by the awarding court and laid out in sufficient detail to permit review of the justification on appeal.

This is a tough standard to meet. Did counsel's office burn down? Did his computer malfunction? No. I thought counsel would get no attorneys' fees, and that $515,000 would fly out the window, but district judge Scheindlin again awarded counsel his attorney's fees on remand. In Scott v. City of New York, 2011 WL 867242 (SDNY March 9, 2011), the district court stated that "there must be an exception under Carey based on my personal observation of Puccio and his contribution to this extraordinarily lengthy and complex litigation." Here is the crux of Judge Scheindlin's reasoning:

Puccio, who is primarily a criminal defense attorney, is a highly respected member of the bar. Puccio, and his outstanding reputation as a skilled litigator and effective advocate, are well known to this Court. It would be fundamentally unfair and inequitable to deprive Puccio of an already deeply discounted fee award where this Court personally observed the vital and integral role he played in this protracted FLSA action.

I personally observed Puccio function as lead trial counsel in a trial that lasted sixteen days, from 10:00 a.m. to 4:30 p.m. each day. Puccio was present for the entire trial and he gave the closing argument. When a modest travel allowance is added, the trial alone accounts for approximately 120 hours of in-court work. In addition, Puccio was present for most of the numerous in-person and telephone conferences that preceded the trial. I also received many letters and faxes from Puccio throughout the course of the litigation.

While Puccio has not presented this Court with the type of exception noted by the Second Circuit - e.g., a fire or a computer malfunction - fundamental concepts of fairness mitigate against the denial of any fee under the circumstances presented here. I surely appreciate the need for a bright line rule requiring the submission of contemporaneous time records. And I am loathe to create a “personal observation” exception. Nonetheless, given Puccio's extensive involvement in the case for more than six years, his severely reduced fee award, his predominantly criminal practice, and his role as lead trial counsel, no fee would be fundamentally unfair. In sum, despite the fact that Puccio did not submit contemporaneous time records in support of his fee application, I conclude that the deeply discounted original fee award of $515,179.28 is reasonably supported by the record in this case and my personal observation of Puccio's efforts throughout this litigation.

This is common sense, but is it appropriate under the Second Circuit's test in this very case? Not really, the Second Circuit held on May 24, taking up the case again. The Court of Appeals reminds us that the failure to provide contemporaneous time records may be excused only in extreme cases. The district court's equitable ruling in counsel's favor will not cut it, as that kind of judgment is not fair to lawyers who are not well-known to the court or do not otherwise have stellar reputations.

On the other hand, the Second Circuit (Miner, Katzmann and Hall) finds that the district court may award fees in a case like this if it is clear from the record that counsel did try the case and also attended court conferences. To that end, while the "personal observation" exception does not work under the Second Circuit's stringent standard, Judge Scheindlin was in the right ballpark. The Second Circuit says, "an award based entirely on the district court judge's personal observation and opinions of the applying attorney ... is contrary to Carey and must be vacated." Yet, we know the lawyer did try the case. So, the Court of Appeals says, "entries in the official court records (e.g., the docket, minute entries, and transcriptions of proceedings) may serve as reliable documentation of an attorney's compensable hours in court at hearings and at trial and in conferences with the judge or other court personnel. Where the court's docket reflects that Puccio was in the courtroom participating in trial or was in chambers in conference with the judge and other counsel, these entries, comparable to contemporaneous time records, may be effective substitutes for Puccio's own contemporaneous records." But the Second Circuit says it does not want an attorneys' fees award based on the kind of conjecture that the district court engaged in, i.e., awarding fees based on 120 hours of trial time.

The case is remanded once again to the district court to recalculate counsel's attorneys' fees. It looks like counsel will not get the $515,000 in attorneys fees that the district court had originally awarded him. The award will be limited to counsel's work that is reflected in the district court's docket entries. But he will get something out of this case, and something is always better than nothing.

Second Circuit revives age discrimination claim

2011-05-23T05:54:00.000-07:00

The Court of Appeals will vacate summary judgment in an employment discrimination case if the employer's reasons for firing the plaintiff are pretextual (or knowingly false) and there is something discriminatory about the case. In this case, an age discrimination case is revived because there was pretext all over the place, along with some ageist jokes.

The case is O'Reilly v. Marina Dodge, a summary order decided on May 19. O'Reilly was a salesman in the service department for Marina Dodge. This 58 year-old was replaced by a 36 year-old. Management said that "Mr. Kaiser would be a better option than [O’Reilly] as a result of its prior experiences with Mr. Kaiser and Plaintiff O’Reilly’s continued disorganization, lackadaisical approach to his job performance, failure and refusal to embrace new initiatives to increase profitability, and his negative attitude about the workplace.” Here is why O'Reilly wins the appeal:

1. There is no contemporaneous evidence of plaintiff's poor job performance. No negative performance reviews or write-ups and, instead, management praised his performance and gave him performance bonuses. The only evidence of poor performance comes in the form of affidavits submitted by management in support of the summary judgment motion.

2. Defendant said that plaintiff had a negative and lackadaisical attitude, but the evidence suggests that he was always a good worker for many years despite his disorganization. The Second Circuit (Parker, Pooler and Lohier) says, "Supervisor Lootens stated that “profitability expectations” became greater in 2006 and 2007, and that a more 'organized' worker would be better, but Lootens does not explain why O’Reilly was able to meet the previous profitability goals but not the new goals. Indeed, there is no evidence that O’Reilly ever was disciplined for not bringing in enough work or for being disorganized, nor is there evidence that he was spoken to about these matters. A reasonable jury could find that these post hoc explanations were pretextual."

In the context of O'Reilly's alleged bad attitude, the Court of Appeals takes into account the ageist jokes in the workplace that suggested co-workers thought he was senile and forgetful and made fun of his bald head. The Court writes, "Although it may be a close factual call, a reasonable jury could find that the employees – including President Gabriele and Supervisor Lootens, who participated directly in the decision to fire O’Reilly – were relying on stereotypes of older people when they 'teased' O’Reilly."

3. And speaking of ageist stereotypes, defendant said it fired plaintiff because he resisted new initiatives. In fact, the evidence suggests that O'Reilly did take the lead on some new initiatives and, in any event, this critique may be stereotypical. The Court writes, "Marina Dodge’s claim that O’Reilly resisted 'new initiatives' while at Marina Dodge must be evaluated in light of the arguably ageist jokes O’Reilly suffered at Marina Dodge. A common stereotype of elderly people is that they resist change and new approaches. A reasonable jury could find that Marina Dodge’s claim that O’Reilly resisted 'new initiatives' was a pretext for Marina Dodge’s desire for a younger employee to interact with customers and was based on Marina Dodge’s unfounded assumption that a younger (36-year old) employee would better implement 'new initiatives' than an older (almost-59-year old) employee."

Finally, defendant raised an argument that is common to these cases: that it did not engage in age discrimination because older people still worked there after plaintiff was fired. The Court of Appeals is not buying it. "Although people above age 59 worked at Marina Dodge after O’Reilly was fired, none worked in the Service Department. A reasonable jury could find that Marina Dodge did not (and does not) believe that older people are unsuited for all work at Marina Dodge – but that Marina Dodge believed that such people are unsuited for high-pressure sales work in the Service Department, including convincing customers to pay for more (and more expensive) maintenance or repairs. Age discrimination is illegal, regardless of whether it is targeted at certain jobs."

Court of Appeals grants habeas petition, grants defendant a new trial

2011-05-19T06:31:00.000-07:00

Ellis Wood was charged with hiring someone to kill the guy who owned a travel agency. When the police took Wood into custody, they began asking him questions, before he said, "I think I should get a lawyer." The police a few minutes later resumed questioning Wood on video, when he made some incriminating statements that he probably would not have made had an attorney been present to tell Wood to shut his mouth. The jury convicted Wood, and the state appellate courts affirmed. Hence the habeas corpus petition in federal court.

The case is Wood v. Ercole, decided on May 4. This case presents a battle of the titans. Judge Lynch wrote the majority opinion. Judge Livingston wrote the dissent. Both were former Assistant U.S. Attorneys who taught at Columbia Law School. Lynch wins out because district judge Sessions signs onto his opinion. Wood gets a new trial because the police should have stopped questioning Wood after he said he wanted a lawyer, prompting Judge Lynch to write a lengthy footnote about the linguistic meaning of the word "think" and whether it is too ambiguous to place the police on notice that they they had to honor the Sixth Amendment.

While the police violated the Sixth Amendment in ignoring Wood's request for counsel, the question is whether this was harmless error. It was not. The admissions that Wood made on video most likely got him convicted, the Court of Appeals says, because the two corroborating witnesses at trial were shaky and had serious credibility problems. One witness, the triggerman, was "the archetypal miscreant" with a long criminal record who lied to the investigators in this very case and committed perjury in a prior case. He also escaped life in prison for his testimony against Wood. His testimony about his agreement with Wood to kill the victim was therefore shaky. The other corroborator was Wood's ex-girlfriend, who claimed that Wood told her he played a role in the killing. She also had credibility problems; she testified to avoid prosecution for her role in a criminal dispute that allegedly motivated Wood to kill the travel agency owner in the first instance. She also faced deportation as a nonlegal resident and she lacked direct knowledge of the murder and did not even think Wood had a role in the killing.

So, it was Wood's confession that got him convicted, not the corroborators who were easy targets on cross-examination. While the Court of Appeals does not even think Wood's confession is that convincing to start with, it did bolster the prosecution's case, and the prosecutor highlighted the video confession in summation. On this record, the Sixth Amendment violation was not harmless at all, and the habeas petition is granted.

For ADA regulatory mavens only

2011-05-16T06:04:00.000-07:00

Under the Americans With Disabilities Act, municipalities have to provide special transportation services to the disabled, particularly for those who need to be picked up and dropped off at home. In Nassau County, this is done through "Able-Ride," which provided door-to-door transportation services. When the County in 2010 modified this service to deal with the budgetary crisis, it got sued for not consulting the public on these cutbacks.

The case is Abrahams v. MTA Long Island Bus, decided on May 5. ADA regulations say that the Department of Transportation has to allow for public participation in the ongoing "development and assessment" of paratransit services. Suing under 42 U.S.C. sec. 1983, plaintiffs argue that defendants violated this mandate. They cannot do so.

Section 1983 allows you to sue if the government has violated a federal civil right. There are limits to this. Under Alexander v. Sandoval, 532 U.S. 275 (2001), the Court said that Congress must intend that federal statutes allow for a private legal claim. In addition, plaintiffs may sue to enforce regulations created to enforce the statute, but to do so, the regulation must merely apply and not expand the statute. This is a subtle but important (and very complicated) distinction that dooms this case.

While the portion of the ADA that gave rise to the regulation may be enforced in a private right of action, the regulation at issue here cannot. The regulation that requires ongoing public participation in the management of paratransit services does not merely enforce that portion of the ADA but, instead, imposes obligations not found in the statute. The Court notes, "the statute requires public participation in connection with the development and submission of a public entity’s initial paratransit plan and annual plan updates. But that is all § 12143 requires in terms of public participation; it does not require any other ongoing form of public participation." Moreover, "the 'ongoing requirement' of 49 C.F.R. § 37.137(c) has a broader application than the implementation of an initial plan or the submission of annual updates." The regulation expands upon the ADA and does not merely enforce it. This means the regulation cannot be enforced under Section 1983.

Win some, lose some under FLSA

2011-05-11T07:40:00.000-07:00

The Second Circuit splits the baby in a FLSA case where the plaintiff worked for Black and Decker and was denied certain overtime pay in connection with his work at Home Depot.

The case is Kuebel v. Black & Decker, decided on May 5. Keubel was responsible for setting up Black & Decker displays at Home Depo. He frequently worked overtime because he could not get all the work done in a 40 hour week. Since he worked out in the field, he had to use a Personal Digital Assistant to let management know when he came and went from Home Depot stores. You had to synch the PDA which bounced that information off satellites over to his superiors. He did that at home after work, along with other work-related matters that took up about 30 minutes to an hour each night.

Since Keubel did all this work at home, he wants compensation for his commute. He argues that these tasks were indispensable to his principal job activities, and his workday therefore began and ended at home and encompassed his morning and evening drives to the Home Depot outlets. Good try, but no cigar, the Court of Appeals (Parker, Livingston and Lynch) says. It is true, under Second Circuit precedent, that "periods of time between the commencement of the employee's first principal activity and the completion of his last principle activity on any workday must be included in the computation of hours" to which he is entitled to compensation. But ordinary commutes are not compensable under the FLSA, and "the fact that Kuebel performs some administrative tasks at home, on his own schedule, does not make his commute time compensable any more than it makes his sleep time or his dinner time compensable." Since plaintiff had flexibility in deciding when to complete his daily administrative responsibilities of checking email and voicemail and synching his PDA, among other tasks, he could have done this right before leaving work, as opposed to at night, when he got home. As company policy did not require him to do this immediately after returning home, he does not get any compensation for the commute.

On the other hand, Kuebel's complaint is reinstated on his claim that he was denied overtime for hours that he did not record on his time sheets. The district court rejected plaintiff's claim because he falsified his records to reflect that he did not work overtime and therefore could not prove his damages with precision. The problem with this reasoning is that, according to Keubel, his superiors told him to omit the overtime hours from his time sheets because the company did not want to pay overtime. They told him "you're only supposed to mark forty on your timecard because we can't afford overtime." Acknowledging the realities of life, in addition to the fact that companies cannot delegate their obligation under the FLSA to maintain accurate records of their employees' hours, the Second Circuit says:

At least where the employee’s falsifications were carried out at the instruction of the employer or the employer’s agents, the employer cannot be exonerated by the fact that the employee physically entered the erroneous hours into the timesheets. As the district court emphasized, Kuebel admits that it was he who falsified his timesheets, notwithstanding B&D’s official policy requiring accurate recordkeeping. But his testimony — which must be credited at the summary judgement stage — was that he did so because his managers instructed him not to record more than forty hours per week. He specifically testified that at company meetings and during discussions with one of his supervisors, it was conveyed to him that he was not to record overtime no matter how many hours he actually worked. In other words, Kuebel has testified that it was B&D, through its managers, that caused the inaccuracies in his timesheets.

Rule 404(b) errors get defendant a new trial

2011-05-10T06:41:00.000-07:00

Prosecutors like propensity evidence. Defense lawyers do not. Propensity evidence is excluded under Federal Rules of Evidence 404(b), but there are enough exceptions to drive a truck through. The real battleground for this is the district court, which has discretion to admit or deny the defendant's prior bad acts. But sometimes, the Court of Appeals overrules the district court. This is one of those cases.

The case is United States v. Curley, decided on April 25. This case provides a nice summary of Rule 404(b) standards and reminds us how tricky these issues can be. The Court of Appeals does not grant criminal defendants a new trial very often, yet the errors here were made by a trial judge who used to be the United States Attorney, so he knew the rules of evidence. But, like I said, those rules are not always easy to apply.

Curley was convicted of stalking and harassing his wife. Curley had a lot of prior bad acts, and so did his brother. The district court allowed the jury to hear this evidence, and the jury threw the book at Curley. Here's the evidence that came before the Second Circuit (Chin, Wesley and Jacobs):

In January 2008, the police discovered in Curley's car three black powder rifles, ammunition, a bulletproof vest, a ski mask and a last will and testament that would leave all his belongings to his children and asked his sister to take care of his children.

In August 2006, Curley grabbed his wife while she was holding their infant son and would not let go.

In 2005, he pushed his wife into a wall while she was pregnant.

In 2001 or 2002, he shoved his wife and banged her head against the floor.

Also, in 1990, Curley's brother beat up Curley's wife, and Curley pressured her not to call the police.

The trial judge allowed the jury to hear all of this evidence. No wonder Curley was convicted. Curley gets a new trial, because the trial court abused its discretion on some of this evidence.

While you cannot admit evidence to show that the defendant is a bad person and is likely to commit crimes again, it may come in for nearly any other purpose so long as it does not unfairly sway the jury. The jury was allowed to hear that Curley was abusive to his wife in 1991, 2001/02 and 2005 because "Curley's abuse of Linda in August 2006 was part of or inextricably intertwined with the charged conduct" as it "was directly relevant to his intent and her fear." The Court adds, "where the charged conduct involves domestic abuse, a spouse's history of domestic violence is relevant to show intent to harass or intimidate his partner ... Although the incidents pre-dated the charged conduct by as much as fifteen years, collectively they demonstrate a patter of activity that continued up to the time of the charged conduct." Not quite propensity evidence, but close, but not too close to render it inadmissible.

Here is where the district court got it wrong: Curley's brother's bad interactions with Linda, i.e., beating Linda before Curley pressured her to lie about it in court, was inadmissible because it "was not sufficiently similar to the charged crimes to allow the jury to reasonable infer Linda's fear." Also, the brother's conduct "did not parallel any of the underlying conduct and this evidence would unduly sway the jury and serve "no real purpose other than to show that Michael -- not Curley -- had a bad character," allowing the jury to speculate that "the 'Curley clan' was coming after Linda."

So what about the stuff in the car during the traffic stop? The government argued that it allowed the jury to believe that Curley was going to pull off a murder-suicide and kill his wife. This is too speculative, the Court of Appeals says, and it does not meet the high admissibility standard for bad acts that post-date the charged crimes. "The record contained insufficient evidence to permit the jury to reasonably infer that Curley expected Linda to be dead when he wrote the will" and "the jury had no reason to determine that Curley planned for Linda to die before him." As the trial court's errors are not harmless, in part because the government highlighted this evidence during summation, Curley gets a new trial.

Second Circuit affirms large attorneys' fees award

2011-05-06T11:51:00.000-07:00

There are two days of reckoning for a defendant that loses a civil rights trial. The first day of reckoning is the amount of the jury verdict, usually read by the jury foreman at the close of trial when the judge asks how much money the plaintiff gets. The other shoe drops a few weeks later, in the form of motion papers filed by the plaintiff's attorney. This is the attorneys' fees motion.

The case is Manzo v. Sovereign Motor Cars, Ltd., a summary order decided on April 15. This is a Title VII case where plaintiff alleged that she was sexually harassed and then retaliated against for complaining about it. The jury awarded her $50,000 in compensatory damages and $200,000 in punitives. The trial court awarded Manzo's attorneys $314,534.00 in attorneys' fees. So Sovereign Motor Cars loses twice.

When someone loses at trial, you often read in the newspaper that they are going to appeal. Appeals are not easy to win, however. It's all about the standard of review. Once the jury weighs in, the Court of Appeals is loathe to second guess its credibility assessments. But challenging the jury's findings is a romp in the park compared with appealing from an award of attorneys' fees. The Court of Appeals reviews fee awards for an "abuse of discretion," a standard that is particularly deferential to the trial court's judgment, owing to the judge's intimate familiarity with the case.

I guess Sovereign Motors couldn't bear the thought of paying more than $300,000 in attorneys' fees on top of the quarter million dollars in damages. The appeal fails. With limited analysis beyond reminding us about the deferential standard of appellate review, the Court of Appeals affirms the attorneys' fees award. For details, you have to read the district court opinion, which provides some insight into how these motions are decided.

As the case was tried in the Eastern District of New York, hourly rates are lower than cases handled in the Southern District. Still, Judge Gleeson awarded lead counsel in this case (with 30 years' experience) $480 per hour. The court notes this is "at the upper end of the range typically awarded in this district," but Judge Gleeson notes that attorney Moskowitz "was brought in to try the case, his trial skills may well be the reason for the favorable jury award, and I conclude that reasonable paying clients would be willing to pay $480 per hour for an attorney of his caliber." Nice words for the prevailing attorney. The other partner who tried the case (with 19 years' experience) was awarded $360 per hour. A lengthy footnote in the district court ruling gives a good summary of recent hourly rates in EDNY cases.

The district court also rejected defendants' challenge to the number of hours expended in litigating the case (987 hours) and allegedly vague billing entries. The trial court also rejected the argument that counsel was not entitled to any fees for litigating unsuccessful claims. These objections are commonplace, and each judge seems to have his or own view on how to resolve them. By way of example, Judge Gleeson upholds the following time entry as sufficiently precise: 12.0 hours for "editing cross examinations of all potential witnesses; editing opening statements; begin work on summation." While one claim did not succeed at trial (involving an overtime violation), it was sufficiently related to the successful harassment claim that counsel could recover for that work. Defendant faces a third penalty: plaintiff's counsel gets fees for work expended on the successful appeal.

Court of Appeals affirms verdict in jail suicide case

2011-05-04T05:58:00.000-07:00

This case arises from a suicide at the Putnam County Jail. The inmate's family sued Americor, Inc., which had responsibility for the inmates, on the basis that Americor disregarded an excessive risk to Spencer Sinkov's safety, causing him to hang himself in his jail cell. The Court of Appeals affirms the verdict.

The case is Sinkov v. Americor, Inc., a summary order decided on April 13. Spencer entered the County Jail as a suicide risk. An officer found Spencer hanging from the cell bars by his sweatshirt. A State Corrections Commission report stated that Spencer "had tied the shirt at the top of the front cell bars and sat down." The jury found that he struggled after hanging himself and was alive for a period of time as he tried to alleviate the pressure from the hanging by placing his foot on the bed to raise himself up." This maneuver did not work; Spencer died. Finding that Americor was deliberately indifferent to knowledge that Spencer was a suicide risk, the jury awarded his family $750,000 in damages; as one of the defendants, Americor had to pay $264,000 in damages.

There are few primary issues on appeal. First, Americor says that the jury had no basis to find that it disregarded the suicide risk. But the evidence shows that Spencer answered "yes" to ten questions on the suicide screening form at intake, enough to trigger constant monitoring. The failure to monitor Spencer resulted in his suicide. As Americor knew about New York's minimum standards for detainees who present signs that they are suicide risks, the jury was able to find in favor of Spencer's family. The Second Circuit precedent governing this case is Caiozzo v. Koreman, 581 F.3d 63 (2d Cir. 2009).

Americor also argued that the jury should not have awarded plaintiff $300,000 for conscious pain and suffering. The Court of Appeals (Straub, Sack and Lynch) disagrees. "The jury was entitled to rely on common sense and common experience to conclude that an amateur, improvised hanging is likely to produce a painful death by asphyxiation, and reasonably could have concluded that Sinkov struggled and suffered in the period between when he placed his homemade noose around his neck and when he lost consciousness." As for the $300,000, it does not shock the conscience. Looking at other cases for guidance, the Second Circuit says:

based on the facts of the present case and on a review of pain and suffering awards in other cases, we are satisfied that the jury’s $300,000 award for Sinkov’s conscious pain and suffering was not excessive. See Gonzalez v. N.Y.C. Hous. Auth., 555 N.Y.S.2d 107, 108 (1st Dep’t 1990) (“Asphyxiation by gagging, whether it occurred within minutes or within an hour of the initial assault, is a particularly slow and terrifying way to die and, under the circumstances, we do not find the [$350,000] award for conscious pain and suffering ... to be excessive.”); Rodd v. Luxfer USA Ltd., 709 N.Y.S.2d 93, 94 (2d Dep’t 2000) ($300,000 award for pain and suffering where decedent “suffered severe and massive injuries” from any exploding oxygen tank, but the “period of consciousness was limited in duration”); Filipinas v. Action Auto Leasing, 851 N.Y.S.2d 550, 550 (1st Dep’t 2008) ($750,000 award where decedent was struck in the head by a van’s side mirror, and sustained serious head injuries, but “was heavily medicated and/or sedated” within an hour of the accident).

No First Amendment claim for student's offensive blog post

2011-05-02T07:09:00.000-07:00

The Court of Appeals has ruled against a Connecticut high school student who sued under the First Amendment after she was denied the opportunity to run for student government after she protested a "battle-of-the-bands" cancellation by calling school administrators "douchebags" in off-campus blog post.

The case is Doninger v. Neihoff, decided on April 25. Doninger was a high-achiever in school, but the JamFest cancellation was enough to send her over the edge. On her blog, she referred to school officials by a most derogatory term and encouraged community members to bombard the district with phone call protests. These calls pulled administrators away from their normal job duties.

Students have the right to speak out so long as the speech does not "materially and substantially disrupt the work and discipline of the school," under a 1969 Supreme Court ruling, Tinker v. Des Moines School District. All public officials, moreover, are immune from suit if they reasonably believe they are not violating the law (even if, in hindsight, they did in fact violate the Constitution). This gives public officials the benefit of the doubt in close cases.

Doninger loses the case on qualified immunity grounds. While she created the blog post off-campus, school officials had an objective basis to find that it actually disrupted the campus. As the Court of Appeals (Livingston, Kearse and Cabranes) puts it:

The undisputed facts — that Doninger’s blog post directly pertained to an event at [the high school], that it invited other students to read and respond to it by contacting school officials, that students did in fact post comments on the post, and that school administrators eventually became aware of it — demonstrate that it was reasonably foreseeable that Doninger’s post would reach school property and have disruptive consequences there. ... [T]wo additional facts [show] that Doninger’s blog post portended foreseeable disruption to the school’s work and discipline: namely, (1) that the language Doninger employed (asking others to call the “douchebags” in the central office to “piss [them] off more”) was “potentially disruptive of efforts to resolve the ongoing controversy,” and (2) that in the midst of this controversy, Doninger’s blog post conveyed the “‘at best misleading and at wors[t] false’ information that Jamfest had been cancelled in [Doninger’s] effort to solicit more calls and emails to Schwartz.”

Moral of the story: if you want to protest the decision of your high school administrators, don't call them "douchebags."

There was another claim here. The school prohibited Doninger from entering a school election assembly with a T-shirt promoting her candidacy, which the school halted as punishment for the offensive blog post. Even if Doninger had the right to wear the T-shirt, school officials reasonably believed that it would disrupt the assembly, which gets them off the hook. This is the qualified immunity defense that I talked about earlier. Showing considerable deference to the judgment of school officials, the Second Circuit reasons:

Doninger and her supporters were clearly upset about the decision to remove her from the ballot, and were eager to speak out publicly concerning their views. Doninger had appeared on a local news show with her mother to talk about her blog posting and her resulting punishment. She attempted to discuss the news interview in class on the day preceding the election assembly, provoking another student to shout out apparent support in sufficiently disruptive terms that the student was sent to Niehoff’s office. By at least the early morning hours of the day of the election, Niehoff was aware of a plan by students specifically to bring t-shirts supportive of Doninger into an election assembly at which other students, including the two candidates for Senior Class Secretary, were scheduled to speak. Niehoff may not have known with certainty that permitting the t-shirts into the assembly would cause students to disrupt those speeches. But she could not responsibly have ignored the fact that Doninger herself, in her blog post of the previous month, had already demonstrated some willingness to incite confrontation with school officials. And we note further that Niehoff’s concern about the potential disruption of the assembly was partially borne out even in the absence of the t-shirts, when students shouted “Vote for Avery” and had to be warned to be respectful.