2d Circuit upholds 70% reduction in attorneys' fees in successful civil rights case

A second round of litigation follows any jury verdict in a civil rights case. The plaintiff will file a motion to recover attorneys' fees from the losing party. This motion practice is not supposed to become a second major litigation, but sometimes it does, as the parties fight over the prevailing attorney's hourly rate and whether they spent too much time on the case. That happened in this case. 

The case is McDevitt v. County of Suffolk, a summary order issued on August 5. This police misconduct case yielded a jury verdict in the amount of $750,000, later reduced to $233,000. Plaintiff's counsel next sought nearly $800,000 in attorneys' fees, but the trial court only awarded $187,270, a steep reduction. Hence this appeal, relating solely to the attorneys' fees issue.

The reduction in attorneys' fees may seem excessive -- the trial reduced the amount by 70% -- but the Court of Appeals (Chin, Sullivan and Vacca [D.J.]) affirms. What you need to know is that the Court of Appeals rarely alters the district court's attorneys' fees rulings, which are reviewed under an abuse of discretion test. That test is deferential to the lower court, but the Supreme Court has said that appellate courts must be especially deferential to lower court attorneys' fees rulings on the basis that the trial court -- which presided over discovery and trial and motion practice -- is in a much better position to determine if the requested fees are too high, if trial court's claimed hourly rate is excessive, and whether any equitable considerations warrant a reduction in the fee award. The Court of Appeals does not have that intimate perspective on how the case proceeded below. That's why these appeals usually fail.

Here, plaintiff argued that the trial court unfairly reduced his hourly rate. Counsel requested $367.00 per hour but the district court assessed him at $300.00 per hour. Plaintiff's counsel arrived at the $367.00 amount by blending different hourly rates based on the tasks he was performing: $750 per hour for partner-level work, $450 for associate-level work, and $250 for paralegal work. But the Court of Appeals has never authorized such a calculation in setting an attorney's hourly rate, the Second Circuit holds. The better approach is to set your requested hourly rate at the attorney level and then seek a lower rate for tasks that a paralegal would normally do. In any event, hourly rates in the EDNY range from $300 to $450 for partner-level work. One judge in the EDNY last year raised the cap to $650 for partners, owing to inflation. The rate set by the district court in this case -- $300 per hour -- falls within the reasonable range, though at the lower end. That calculation is not an abuse of discretion.

What about the 70% reduction in hours? That was not an abuse of discretion, either, the Court of Appeals says. The reason is that plaintiff only prevailed on a few claims: excessive force and malicious prosecution against individual police officers and municipal liability against the County of Suffolk, though the latter claim yielded no damages. All of plaintiff's other claims failed. Under the Supreme Court's standards, courts may consider the overall degree of success in determining whether to modify the overall reduction. Altering the percentage reduction is not easy, even if the successful claim resulted in a large damages award. As plaintiff prevailed on only one of five federal claims in this case, against 12 police officers and two municipal entities, winning damages on only one claim, the Court of Appeals will not modify the reduction. On top of that, the trial court identified excessive and/or unnecessary billing entries, as well as vague time entries, which also warranted a reduction in attorneys' fees.

The Court of Appeals reassures us that a 70% reduction is not unheard of in the Second Circuit:

As for the 70% figure the district court settled on – which is an admittedly steep reduction – we note that such deductions are by no means unusual in this Circuit. For example, we affirmed a 50% across-the-board deduction in Matusick v. Erie County, 757 F.3d 31, 64 (2d Cir. 2014), due to a “lack of detail in the billing records” alone; a series of 50% deductions in In re Agent Orange Product Liability Litigation, 818 F.2d 226, 238 (2d Cir. 1987), due to “voluminous” billings on quasi-administrative items and travel time; and an 80% across-the-board deduction in Guardians Ass’n of Police Department of New York City v. City of New York, due to “facially excessive” hours and “vague[]” time records, 133 F. App’x 785, 786 (2d Cir. 2005). At the district level, courts in the Circuit also routinely apply deductions of 70% or more for suits with similar records of success and comparable billing defects.  

2d Circuit holds Supreme Court has changed the rules for reasonable accommodation cases

The Second Circuit holds that its prima facie test for failure-to-accommodate claims is no longer good law following the Supreme Court’s 2015 ruling in EEOC v. Abercrombie & Fitch Stores. The Circuit thus vacated summary judgment entered in favor of a court officer who was fired after refusing to comply with the Unified Court System's COVID-19 vaccine mandate.

The case is Bergin v. New York State Unified Court System, issued on July 15. Plaintiff wanted a religious exemption from her employer’s vaccination requirement. She asserted religious objections relating to fetal cell lines used to create the vaccine and her own bodily integrity. We saw these kinds of objections on a regular basis during the COVID era. While the state gave plaintiff a questionnaire that would evaluate the sincerity of her religious beliefs, she declined to answer most of the questions on privacy grounds. The court system denied the exemption request and fired plaintiff because she would not accept the vaccine. After the vaccine mandate was rescinded in 2023, plaintiff was reinstated. She then sued under Title VII, claiming the state failed to accommodate her religion. The district court granted summary judgment for plaintiff, a rare occurrence in employment discrimination cases, finding that plaintiff made out a prima facie case as a matter of law and the court system did not prove any undue hardship.

Under the Second Circuit’s old rules, plaintiffs had to show they (1) held a bona fide religious belief conflicting with a work requirement, (2) informed the employer of that belief, and (3) suffered discipline for failing to comply with the requirement. But Abercrombie changes that framework. Now, the plaintiff must show (1) she actually required a religious accommodation, (2) the employer's desire to avoid providing that accommodation was a motivating factor, and (3) she suffered an adverse employment action. Under the new framework, an employer's knowledge of the need for an accommodation is no longer an independent element of the prima facie case. Knowledge may support an inference of discriminatory motive, but motive and not notice is key after Abercrombie.

Here is the reasoning (citing from Abercrombie), explaining that the Court of Appeals (Raggi, Nathan and Furman [D.J.[]) has to comply with Supreme Court authority even if Second Circuit precedent held otherwise for decades:

“An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive,” just as “an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”

The Supreme Court thus rejected one requirement of our old rule (that a plaintiff inform an employer of the need for an accommodation) and clarified that what a plaintiff must plead and, ultimately, prove (that the employer was motivated in part by the desire to avoid offering a religious accommodation). The Supreme Court explained that a “request for accommodation, or the employer’s certainty that the practice exists, may make it easier to infer motive,” but it “is not a necessary condition of liability.”

The Court further rejected plaintiff's argument that Abercrombie applies only to hiring decisions. Title VII's disparate-treatment provision governs both hiring and firing, and the Supreme Court's reasoning extends equally to termination cases.

The case returns to the Eastern District for reconsideration under the new legal standard. The trial court must determine whether the evidence would permit a reasonable jury to conclude the state denied Bergin's exemption because it sought to avoid providing a religious accommodation—not merely because it believed her application was incomplete or failed to establish sincerity.

Congestion toll program for NYC is legal

 The State of New York in 2019 implemented congestion pricing, where drivers have to pay a toll for each vehicle entering Manhattan below 60th Street (except for the FDR Drive and the West Side Highway). Suburban counties in upstate New York challenged this in court, arguing that it unfairly impacts residents from Orange and Rockland Counties. The Court of Appeals finds the congestion pricing thing is legal.

The case is County of Rockland v. Triborough Bridge and Tunnel Authority, issued on July 13. Orange County asserts a right to travel claim under the Constitution. Such a principle exists, though the Constitution does not explicitly say it. As the Second Circuit (Calabresi, Park and Merriam) notes, the source of this right "has proved elusive," but we infer it from various constitutional provisions, like the Privileges and Immunities Clause and the Due Process Clause. But in the end, "the right to migrate is firmly established."

That does not mean Orange County can proceed with the case, the Court of Appeals holds. Cases have long held that toll charges do not violate the right to travel if the toll is based on a fair approximation of state facilities (like a bridge or highways), it is not excessive, and it does not discriminate against interstate commerce. That test is from Northwest Airlines v. County of Kent, a Supreme Court case from 1994.

Orange County agrees the toll does not discriminate against interstate commerce, but its argument that the toll is not based on a fair approximation of the use of state facilities fails, as the toll proceeds are not required to be used in a specific way in order to benefit the toll-payers. The Court finds the toll "aims to benefit all toll payers by reducing traffic congestion" in that part of New York City. Nor is the toll excessive in relation to its benefits, as it does reduce traffic congestion. 

The equal protection challenge also fails, under the "rational basis" test, which says a government program that distinguishes between different people is legal if there is any rational justification for it. Really, anything goes under the rational basis test. The rational basis is that the money goes toward capital funding for mass transit, including subways, and to protect public health, presumably from too much traffic and pollution. As these are legitimate government interests, the equal protection challenge is rejected. 

Union worker wins disability discrimination appeal

The Second Circuit has reinstated a disability discrimination claim, holding the jury may find that an employer denied the plaintiff a reasonable accommodation necessitated by a serious vein condition that made it painful for him to complete his driving assignments without a modification to his work schedule. This ruling highlights a little-known principle under the ADA: the plaintiff's accommodation may entail placing him into someone else's position if that remedy aligns with the usual company practice.

The case is Raymond v. 1199WEIU National Benefit Fund, issued on July 23. Plaintiff worked for a labor union, driving around the New York City metropolitan area educating union members about union pensions and benefits. But due to his vein condition, plaintiff's doctor said he could not sit for more than 30 minutes at a time, prompting defendant to remove from his service area the four facilities that were furthest away from plaintiff's home, but still requiring plaintiff to drive more than 30 minutes to other facilities. The district court dismissed the case on summary judgment. The Court of Appeals (Sack, Perez and Preska [D.J.]) brings the case back.

The Second Circuit notes that an accommodation must be "effective" even if it is not perfect. While the district court held in granting summary judgment for the union that its response to the doctor's note sufficed under the ADA because the union took action to reduce the plaintiff's workload, the Second Circuit says this was the wrong analysis. It is not enough that the employer took some action to assist the plaintiff; the employer must take effective action. In the end, the accommodation must allow the plaintiff to perform his essential job functions. The Circuit notes that it is often up to the jury to decide if the employer's accommodation was sufficiently effect to satisfy the ADA. 

Plaintiff's case is reinstated on this issue for several reasons. First, while the district court held the driving assignment requested by plaintiff to accommodate his disability -- known as Area J -- was not plausible because it was not materially different from the employer's accommodation of removing the four farthest facilities from plaintiff's assignment, "there is evidence in the record supporting an inference that Area J requires less driving," at least based on the maps in the record. This is the kind of factual detail that may get you a trial in an ADA claim. 

Moreover, despite defendant's claim that plaintiff was actually requesting that the union create a new position to accommodate his disability (the law generally does not require the employer to create a new position for that purpose), the jury may find that plaintiff was not actually asking management to do that. Instead, the record supports the inference that he was instead only requesting an new assignment while keeping his old job title. The ADA does not even define "position" or "assignment." 

More interestingly, the Court holds that even the position that plaintiff requested was already filled (the ADA does not normally require the employer to bump someone out of their position to accommodate the plaintiff), if company practice allowed for this kind of personnel management, then the accommodation may be reasonable. In other words, "if NBF frequently shuffles employees into non-vacant positions, then Raymond's reassignment might be a plausible accommodation." The only authority for this holding is a Supreme Court ruling, U.S. Airways v. Barnett, 535 U.S. 391 (2002), which held that while a requested accommodation may be unreasonable where it requires an employer to bypass its seniority system, that same accommodation may be reasonable if the employer frequently ignores the seniority system such that “one more departure . . . will not likely make a difference.”

Disability discrimination case is reinstated on appeal

The Court of Appeals has reinstated a disability discrimination claim against a New York City agency, holding that the plaintiff sufficiently alleges the City failed to accommodate his disability. But plaintiff loses his appeal to the extent he asserted a retaliation claim under federal and city law.

The case is Cangro v. New York City Department of Finance, issued on July 24. I will start with the retaliation claim. 

Plaintiff alleges that, after he complained to the EEOC about disability discrimination, the City retaliated by telling him that he was being investigated over his requests for disability discrimination and by denying him a promotion. The problem with the first allegation -- being advised that the City was investigating him -- is that there was no actual investigation and a City official apologized for telling him otherwise, and that it was apparently just a "rumor." While plaintiff claimed the phantom investigation was distressing and that it was intended to intimidate him, the Second Circuit says this was not an adverse action under the Supreme Court's recent decision in Muldrow v. City of St. Louis, which relaxed the adverse action test in holding the plaintiff need only assert "some harm" as opposed to a "material" harm, which was the Second Circuit's test for decades. But even under Muldrow, reporting a rumor to the plaintiff about an investigation is not enough to proceed with the lawsuit.

Plaintiff also asserts retaliation in the form of a promotion denial. If true, that's an adverse action under Muldrow. But not for plaintiff. The problem is the timing of the promotion denial. The Court of Appeals reasons it this way: "the intervals between the 2024denial of a promotion for Cangro and the two acts of Cangro for which the PSAC asserts NYCDOF was retaliating -- i.e., 11 months after his receipt of a right-to-sue letter and more than 22 months after his request for an accommodation--were too long to support any reasonable inference that Cangro was denied a promotion in retaliation for either of his acts." Timing may support a retaliation claim, but the plaintiff needs a tighter fit in a circumstantial evidence case like this. And, while plaintiff argues that defendant's reason for the promotion denial -- the lack of financial resources -- cannot be the real reason, that factual argument is unsubstantiated.  

The good news for plaintiff is the Court of Appeals (Lohier, Kearse and Park) finds he asserts a claim for failure to accommodate his disability, multiple respiratory conditions that informed his request to work remotely from home, as the commute to and from work through public transportation affected his breathing even when he wore a mask, and because his office did not have proper ventilation.  Ultimately, plaintiff's request was denied and he asserts the City did not participate in the necessary interactive process intended to work out an acceptable accommodation.

The district court held that plaintiff fails to assert a claim because he did not sufficiently argue that his proposed accommodation would allow him to perform his essential job functions. If the accommodation still does not allow the plaintiff to perform essential job duties, then it is not a reasonable accommodation. The Second Circuit reverses, and the case will proceed to discovery, for three reasons:

First, the complaint asserts that plaintiff was able to perform essential job duties while working from home over a two year period from 2020 through 2022, the Covid-19 era. Also, even after other workers were required to return to the office when the pandemic subsided, plaintiff was still able to work from home two days per week. And third, "when Cangro requested the accommodation of working some days from his him and some days in [the agency's] Staten Island office, 'Mr. Cangro's request was supported by his manager.'" That support helps plaintiff's claim. The Court explains it this way:

the word "supported" itself, in this context, is somewhat conclusory rather than factually descriptive. But at this early stage in the litigation, drawing all inferences in Cangro's favor, a manifestation of support by Cangro's manager for the requested accommodation supports the assertion that Cangro could, with that accommodation, perform the requirements of his job. 

This holding is good for plaintiffs. The Court of Appeals held the trial court held the plaintiff to stringent pleading requirements that fall outside the Iqbal/Twombly particularly test. And, the allegation that plaintiff was able to work from home for two years without incident suggests his subsequent accommodation request may have been reasonable, especially since his manager was on board with that request. 

Fourth Department sustains $500,000 retaliation verdict

The Appellate Division, Fourth Department, has sustained a retaliation verdict in favor of a state corrections employee who was disciplined and sent off to work in Siberia after he spoke out on malfeasance at the department.

The case is Montgtari v. State of New York, issued on July 24. I briefed the appeal. A.J. Bosman, who also tried the case, argued the appeal. 

Plaintiff was a Captain of the New York State Department of Corrections and Community Supervision and a Deputy Chief of the Sex Crimes Unit (SCU) of the Office of Special Investigations. When plaintiff became the Deputy Chief, he reported overtime abuses and failure to properly investigate allegations concerning sex crimes and/or harassment. He claimed that, in retaliation for this speech, he next suffered harassment, including an administrative suspension, disciplinary charges based on false and manufactured charges, and a disciplinary suspension. After a Civil Service Law § 75 hearing, a hearing officer found that plaintiff was responsible for speeding on the Thruway, but otherwise found that all remaining charges were not sustained. Others in the department would also speed on the Thruway on company time but suffered no punishment.

Although the Hearing Officer recommended that plaintiff be restored to his position of Deputy Chief of the SCU, Annucci reassigned plaintiff to a correction facility that was more than three hours from plaintiff's residence. 

Thew jury returned verdicts in plaintiff's favor on the equal protection and First Amendment claims. The First Amendment verdict is sustained because the complaint asserts that plaintiff spoke on matters of public concern. The equal protection rationale is more complicated. The Fourth Department notes that the U.S. Supreme Court has held that government employees cannot bring "class-of-one" plaintiffs in the equal protection contest. That was the Engquist case from 2008. Class-of-one claims involve the plaintiff arguing they suffered governmental abuse or misconduct so awful that the plaintiff does not need to show he belongs to a protected class of individuals; hence the class-of-one. But there is a split in the Second Circuit on whether government employees can pursue selective enforcement claims, where you are singled out while the government looks the way for other wrongdoers. The Fourth Department adopts the reasoning in cases holding that you can bring such a lawsuit, reasoning:

We note that the Second Circuit has left open that question (see Hu v City of New York, 927 F3d 81, 100 n 5 [2d Cir 2019]) and that there is a split of authority in the district courts, as the parties here recognize (see Alaei v State Univ. of New York at Albany, 2024 WL 2941735, *15 [ND NY, June 11, 2024, No. 1:21-cv-00377(BKS/TWD)]). We are persuaded by the reasoning in Airday v City of New York (2020 WL 4015770, *2-6 [SD NY, July 16, 2020, No. 14-CV-8065 (VEC)]) that selective-enforcement claims survive after Engquist.

Defendants -- some of them the highest ranking officials in the New York correctional system -- also invoked qualified immunity. While they waived that (and other) arguments by not asserting them at trial, even if preserved, that objection fails because the Second Circuit held in 1980 that malice-based selective enforcement claims may be brought under the Equal Protection Clause making this principle clearly-established for qualified immunity purposes. 

 

Circuit reaffirms no appeal from the denial of a Rule 59 "weight of the evidence" motion

This disability discrimination case went to trial, but the plaintiff lost and his former employer won. Post-trial, plaintiff filed a motion for a new trial pursuant to Rule 59, arguing that the verdict in defendant's favor was against the weight of the evidence. The trial court denied that motion, so plaintiff appeals. Except that plaintiff has a problem: the Second Circuit, at least in this instance, is the problem.

The case is Raymond v. 1199 SEIU, issued on July 23. There are many ways to challenge an adverse verdict. The most common method is to argue post-trial that the evidence is so overwhelming that the case should not have even reached the jury. Defendants often make that argument in challenging the verdict as a whole. That's a motion under Rule 50 for judgment as a matter of law. The losing side can also move for a new trial under Rule 59, claiming the verdict was agains the weight of the evidence. That motion is rarely granted and turns on the trial court''s judgment that there just was not enough evidence for the winning side to prevail and we are going to have a do-over.

If the trial court denies the Rule 59 "weight of the evidence" motion, the next stop is the Court of Appeals. But here is the problem. Under Second Circuit law, if the trial court sets aside the verdict under Rule 59, that order can be appealed. If the trial court denies the Rule 59 "weight of the evidence" motion, that ruling cannot be appealed. 

All the other circuit courts allow you to appeal from the denial of a such a motion. But not the Second Circuit. Judge Sack notes the anomaly posed by this distinction:

the reviewability of a Rule 59(a) weight-of-the-evidence decision depends on the outcome of the district judge’s decision: If the district judge overturns the jury verdict on weight-of-the-evidence grounds, it is reviewable; if the judge upholds a jury verdict over a losing party’s motion that the verdict contravenes the weight of the evidence, that decision is not reviewable. That is, if a district court denies a Rule 59(a) motion to vacate a verdict, we cannot review that denial.

Every so often, however, the Second Circuit says that such motions under Rule 59 are appealable. But then a different panel will hold otherwise. Judge Sack notes that anomaly as well:

Our caselaw on this issue is somewhat confounding. Just last year, we concluded that there is “ambiguity in our precedents” regarding whether a district court’s denial of a Rule 59(a) motion for a new trial on weight-of-the-evidence grounds is reviewable. See Ortiz v. Stambach, 137 F.4th 48, 71 (2d Cir. 2025) (collecting cases). We doubt, though, that our precedents can be viewed that way. Instead, we conclude that our precedents firmly establish that such a denial is not reviewable on appeal. 

In this ruling, the panel (Sack, Perez and Preska [D.J.]) holds firm on the rule that you cannot appeal from the denial of a Rule 59 "weight of the evidence" motion, holding that the Court therefore has no appellate jurisdiction over this portion of plaintiff's appeal. Judge Sack says that's the rule in the Second Circuit, and the only way it's going to change is if the Supreme Court or an en band panel of the Second Circuit directs otherwise. The verdict on the disability discrimination verdict stands.