Rehabilitation Act cannot be enforced through Section 1983

Section 1983 is the federal civil rights statute that allows you to enforce constitutional violations. In certain instances, you can also use Section 1983 to enforce other federal statutes. This is a good thing for plaintiffs' lawyers, as Section 1983 provides for nearly every level of damages, including pain and suffering, punitive damages, attorneys' fees, and injunctive relief. Section 1983 also provides for a longer statute of limitations than other federal statutes. But that courts regularly find that certain federal statutes cannot be enforced through 1983. This is one of those cases.

The case is Costabile v. New York Health and Hospitals Corp., issued on February 25. This is a disability discrimination case brought under the Rehabilitation Act of 1973, which prohibits this kind of discrimination by entities that receive federal money. (It was the precursor to the broader Americans with Disabilities Act of 1990, which covers more entities). I wrote about the main holding in this case at this link. But at the end of the ruling, the Second Circuit also addressed plaintiff's argument that he may enforce the Rehabilitation Act through Section 1983. The Court of Appeals says he cannot do so.

Section 1983 cannot be used to enforce other federal statutes if the other federal statutes have a comprehensive enforcement scheme. The Second Circuit has never taken up this issue with the Rehabilitation Act before, but it resolves it now, adopting the reasoning from other circuits that hold that "§ 1983 cannot be used to alter the categories of persons potentially liable in private actions under the Rehabilitation Act or the ADA." The Second Circuit (Lohier, Sack and Cabranes) is particularly enamored with A.W. v. Jersey City Public Schools, 486 F.3d 791 (3d Cir. 2007) (en banc), which held that "§ 1983 may not be used to enforce the rights provided in the Rehabilitation Act." The Second Circuit concludes:

We conclude that the comprehensive remedial scheme of the Rehabilitation Act suggests that Congress did not intend that § 1983 be an available remedy. Because nothing has been directed to our attention to challenge the “ordinary inference that the remedy provided in the statute is exclusive,” we hold that the rights established in the Rehabilitation Act may not be enforced through § 1983.

Plaintiff is not entitled to accommodation for his non-obvious disability

The Court of Appeals holds that, absent a formal reasonable accommodation request, an employer is not always expected to assume that a disabled employee needs a workplace accommodation under the Rehabilitation Act. This is the first time the Court of Appeals has applied its ruling from 2008 that held that employers have to offer a reasonable accommodation if the plaintiff's qualifying disability is "obvious" to management.

The case is Costabile v.  New York City Health & Hospitals Corp., issued on February 25. Twelve years ago, the Second Circuit issued a major ruling under the federal disability laws, Brady v. Walmart, 531 F.3d 127 (2d Cir. 2008), holding that where "the disability is obvious -- which is to say, if the employer knew or reasonably should have known that the employee was disabled,' the employer is obligated to engage in 'an interactive process with their employees and in that way work together to assess whether an employee's disability can be reasonably accommodated.'" Brady represents an exception to the general rule that disabled employees must affirmatively request an accommodation from their employers to trigger the interactive process, in which all sides try to find an accommodation for the employee. The plaintiff in Costabile uses Brady to advance his own case.

"After sustaining a work‐related injury in May 2014, Plaintiff remained on a leave of absence from his position as a permanent carpenter for over a year. During his leave, pursuant to NYCHHC policy, Plaintiff 'provided NYCHHC with regular updates from his doctor as to his condition and ability to work.'” He was fired after he did not respond to the employer's letter that he interpreted to mean that he could only return to work full duty if he could complete all the job functions. "He alleges that, although he could perform the job’s essential functions with or without accommodations, he could no longer perform certain functions, like climbing and descending ladders, that were 'marginal functions' of the carpenter job, even with an accommodation."

Here is the issue: was the employer on notice that plaintiff needed accommodation for his ndisability? Under Brady, "To trigger the duty to engage the interactive accommodations process, the employer must have known, or have had sufficient notice such that the employer reasonably should have known, that the employee has a disability within the meaning of the Act, as opposed to a mere impairment." The Complaint does not permit the inference that management knew. The Court writes:

Plaintiff does not allege that he ever requested an accommodation from Defendants, either formally or informally. It is undisputed that Defendants knew Plaintiff was on an extended disability leave from work‐related injuries. But this alone is insufficient to plausibly allege notice that those injuries constituted a disability under the Act. As Plaintiff alleged, he took work‐related disability leave on multiple prior occasions for conditions that did not prevent him from returning to work without any accommodations.

Similarly, while Plaintiff alleged that Defendants received notice of his multiple sclerosis diagnosis in April 2010, his multiple sclerosis was not a qualifying disability at that time, as he continued working without any accommodations until his 2014 leave. Finally, although Plaintiff alleged that Defendants received “regular updates from his doctor on his condition and ability to work,” he alleged no facts about the content of those updates from which it could plausibly be inferred that Plaintiff’s disability was “obvious” to Defendants.

While this case only involved the Rehabilitation Act of 1973, the reasoning will also apply to the Americans with Disabilities Act of 1990, as both federal disability discrimination statutes generally apply the same legal standards.

Justice Thomas wants to bury Chevron deference

My guess is that most non-lawyers don't know how administrative law works. But lawyers who deal with federal regulations know all about it, and if you walk up to them and say "Chevron deference," they know exactly what you're talking about. Chevron is the name of an important Supreme Court ruling from 1984 that says the courts must defer to how regulatory agencies interpret federal statutes. Justice Thomas has announced he wants to do away with Chevron deference.

The case is Baldwin v. United States. The Supreme Court declined to the hear the case on February 24. Thomas agrees the case is not appropriate for Supreme Court review, but he takes that opportunity to explain his objections to the Chevron ruling. If the Court ever adopts Thomas's view, it will represent a major change in how courts interpret regulations, which affect every aspect of our lives, from product safety to environmental protection to civil rights to you name it.

Here is how Chevron deference works. When Congress passes a law, it often makes the language vague or fails to cover every problem or issue that the statute was intended to address. The regulatory agencies, which are part of the Executive Branch, then issue regulations that provide the details that Congress omitted. This means that federal regulations are often more detailed than statutes. These agencies include the Environmental Protection Agency and the Department of Energy. If someone does not like the regulation, they can file a lawsuit asking the court to reject the agency interpretation. The interpretation will stand if the court thinks the regulation is consistent with the statutory intent or purpose. The idea is that the agencies have experts who know the subject matter and are therefore qualified to issue definitive regulations. Chevron deference gives the agencies the benefit of the doubt in interpreting federal statutes, though from time to time the courts will reject an agency regulation.

Justice Thomas argues that Chevron deference is not consistent with the Constitution because our nation's founding charter gives the courts and only the courts the authority to interpret the laws. The Constitution says nothing about federal agencies or regulations. Both are a creation of the administrative state, which began to flourish in the 20th Century and modern life got too complicated, the country grew and we needed bureaucrats and policy experts to supervise the details of federal policy. The Court cannot delegate the judicial power to federal agencies, Thomas writes. While Thomas himself endorsed Chevron deference in a 2005 Supreme Court ruling, National Cable & Telecommunications Assn v. Brand X, he now repudiates that ruling and says it was wrongly decided.

Justice Thomas often advocates in favor of jettisoning Supreme Court precedents that he believes were wrongly decided. The other justices just as often decline to sign onto his views. No one signed onto his statement in the Baldwin case. That does not mean the others are not in agreement with him. The legal community has been speculating for a few years now that the conservative Supreme Court majority may do away with Chevron deference. None of the justices have advanced that argument as explicitly as Thomas. 

Cavity search verdict is affirmed after the Circuit initially took it away

This case went to trial in the Northern District of New York. Plaintiff alleged that a police officer violated the Constitution in subjecting him to an unlawful manual body cavity search. The jury found in plaintiff's favor but it only awarded him one dollar. That may sound like a hollow victory for plaintiff, but no police officer wants an adverse verdict on his record, and even a one dollar verdict may produce a large attorneys' fees award for plaintiff's lawyer. So the officer moved post-trial for judgment as a matter of law, claiming entitlement to qualified immunity because the law was not clearly established at the time of the violation to put the officer on notice that he was breaking the law. The trial court denied that motion, but the Court of Appeals agreed with the officer, which means the officer ultimately won the case. But then the unexpected happened, and plaintiff is again the winner.

The case is Sanchez v. Bonacchi, a summary order issued on February 21. This case first reached the Court of Appeals last year. In October 2019, after the district court denied the officer qualified immunity and upheld plaintiff's verdict, the Second Circuit found that the officer is entitled to qualified immunity because the law was not clear at the time of the body cavity search that this maneuver was illegal. The Court (Lynch, Lohier and Sullivan) said that Gonzalez v. City of Schenectady, 728 F.3d 149 (2d Cir. 2013), had muddied the waters in this area because the Court in Gonzalez stated that controlling authority in the Second Circuit and the Supreme Court had not yet held that the rule against suspicionless strip or body cavity searches in misdemeanor cases also applied to felony drug arrests. This  meant that Sanchez could not sue Bonacchi for damages, and the verdict was gone.

But after the Court of Appeals issued the first Sanchez summary order, in December 2019, another panel of the Court of Appeals (Newman, Pooler and Jacobs [in dissent]]) issued Sloley v. VanBramer, 945 F.3d 30 (2d Cir. 2019), which held that, as of 2013, when the search in Sanchez's case took place, it was clearly established that a "visual body cavity search conducted as an incident to a lawful arrest for any offense must be supported by a specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee secreted evidence inside a body cavity." This means that a manual body cavity search, which is more intrusive than a visual cavity search, "must at a minimum be supported by the same reasonable suspicion as a visual cavity search." Sloley is a binding, precedential ruling, which takes precedence over summary orders like Sanchez.

The Sloley ruling was a terrific turn of events for Sanchez. In January 2020, the Court of Appeals (Lynch, Lohier and Sullivan) in Sanchez's case sua sponte recalled the mandate in the Sanchez summary order, vacating that ruling in light of the Sloley decision. The Court ordered the parties in this case to brief the issue of how the Slolely ruling affects the Sanchez case. On February 21, the Court of Appeals formally vacated the October 2019 ruling in Sanchez's case and reinstated the verdict, holding that Slolely demonstrates the law law governing plaintiff's case was in fact clearly established, the officer does not get qualified immunity, and the verdict should stand after all. Sanchez only gets one dollar, but hey, a win is a win, right?

Graffiti art may be protected under the Visual Artists Rights Act

You wouldn't know it from reading from reading the opening paragraphs of this decision, but this case involves the rights of graffiti artists. The Court of Appeals alludes to this by referring to "aerosol art" and "creative destruction" that filled the walls of "a series of dilapidated warehouse buildings" in Long Island City. Bottom line: graffiti artists have prevailed in a lawsuit against a property owner who destroyed the warehouses that featured their artwork. The Court of Appeals agrees that the plaintiffs are entitled to $6,750,000 in damages. This may be the most significant federal ruling ever issued on the rights of graffiti artists.

The case is Castillo v. G&M Realty, LP, issued on February 20. The artwork was located at the 5Pointz site, where some graffiti had permanence but others were painted over quickly. Over time, the site displayed more than 10,000 works of art. When plaintiffs learned the landlord wanted to raze the building to build luxury apartments, the district court denied their application for a preliminary injunction under the Visual Artists Rights Act of 1990, which prevents the destruction of artwork that carries "recognized stature." Although the preliminary injunction denial did not end the case (it only denied plaintiffs immediate relief), the landlord next began to destroy the artwork and banned the artists from the site, refusing them permission to recover the work. The art was then whitewashed. The pre-whitewashed artwork is below.

At trial, the district court found that 45 of the works had achieved recognized stature, and that "the works 'reflected striking technical and artistic mastery and vision worthy of display in prominent museums if not on the walls of 5Pointz.'" The Court of Appeals (Parker, Raggi and Lohier) affirms, finding that that the trial court properly found the landlord willfully destroyed this artwork, protected under the VARA because they have "recognized stature." There is little case law in this area, and the Circuit cites a district court ruling and a Seventh Circuit decision, stating, "We conclude that a work is of a recognized stature when it is one of high quality, status, or caliber that has been acknowledged as such by a relevant community." Artistic quality is the most important factor. The idea is that the VARA protects "the public interest in preserving the nation's culture," so that even a "poor" work by a highly regarded artist, "anything by Monet," merits protection. At trial, plaintiffs proved the graffiti "had achieved recognized stature" through exhibits, credible testimony, and an expert witness."

The Court rejects defendants' arguments that the artwork is not protected when it is temporary. The statute contains no such limitation. And, the Court points out, in 2005, temporary artwork in New York City achieved recognized stature when "Christo" displayed 7,500 orange draped gates in Central Park, known as "The Gates." The Court adds that, in recent years, "street art," much of which is temporary, has emerged as a major category of contemporary art.

As for damages, the district court properly held that the decision to immediately whitewash the artwork after the district court denied the injunction the artwork was willful, triggering enhanced statutory damages. The $6.5 million is the maximum amount under the statute, and the trial court has wide discretion in setting a damages award. Defendants' state of mind is relevant here. The trial court noted that the whitewashing did not completely obscure the artwork, making it easily visible under layers of cheap paint, "reminding the artists on a daily basis of what had happened to them." This half-elbowed effort was also visible to the public.

Student discrimination case is dismissed

When you file a lawsuit, all things are possible. Some plaintiffs feel like the lawsuit will start the healing process. Some even take solace in knowing their enemies will soon be served with legal process. The lawyer tries to tell his client that lawsuits are not all fun and games, and that the defendant's lawyer will get to take a seven-hour deposition and explore the plaintiff's work record and even his medical records. Then comes the post-discovery motion practice, which will delay the trial for a year. Of course, this assumes the case will make it out of the gate. Some cases do not.

The case is Johnson v. New York University, a summary order issued on January 31. Clients think they will have their "day in court," but your day in court is really the day you file the lawsuit. A trial is not guaranteed. Neither is pre-trial discovery. If the trial court thinks the case does not state a plausible claim, then the case will be dismissed at the outset, and the fun stops.

In this case, plaintiff alleged that NYU discriminated against him on the basis of gender in violation of Title IX of the Civil Rights Act. As the Second Circuit (Hall, Bianco and Sullivan) summarizes his claims, "Johnson alleged that NYU discriminated against him based on his race and gender when they expelled him in 2007 after he was criminally charged with (but acquitted of) grand larceny, and then refused to readmit him in 2017." The Court says the 2007 claim is untimely, as it falls outside the three-year statute of limitations. Focusing on the 2017 claim, the Court says the complaint does not assert a claim for racial discrimination. Plaintiff argues that NYU disciplined three white students differently after they were accused (or convicted) of crimes. Plaintiff's instincts were correct. You can assert a discrimination case if others were more favorably treated. That permits you to argue the unfair treatment was racially-motivated.

But the rules guiding motions to dismiss require the plaintiff to assert specific facts in support of his claim. Conclusory allegations will not survive a motion to dismiss. The Supreme Court said this in Ashcroft v. Iqbal, its seminal 2009 decision that changed how the lower courts handle motions to dismiss under Rule 12. The plaintiff must also show the favored comparators had similar facts. "While  a  plaintiff  may  'raise[]  an  inference  of  discrimination  by showing that he was subjected to disparate treatment' in comparison to others, the comparators must be 'similarly situated' to the plaintiff 'in all material respects.'”

This is a difficult standard. Plaintiff loses. "We agree with the district court that the white comparators Johnson cited did not meet this standard since none of the comparators had sought (let alone been granted) readmission after being expelled. It is true that comparators need not be identical, but there must be at least a 'reasonably close resemblance of the facts and circumstances,' which was not the case here."

Inmate's medical indifference case fails

Inmates do have constitutional rights, you know. Under the Eighth and Fourteenth Amendments, correctional facilities must provide inmates with proper medical care, no matter what crimes the inmates were convicted of. However, the legal burden of proof in winning these civil claims is high, and most of these claims fail. This is one of the failed claims.

The case is Roice v. County of Fulton, a summary order issued on February 6. Plaintiff was a pre-trial detainee, which means he was not yet convicted of anything and was incarcerated the county jail. That means Roice proceeds under the Fourteenth Amendment, which provides a more generous legal standard. Under Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017), a case that I briefed on appeal, the Court of Appeals interpreted recent Supreme Court precedent to allow pre-trial detainees to win if they show the defendants knew or should have known about the excessive risk to the inmate's health or safety but did not provide proper medical treatment.

Plaintiff says the Fulton County jail did not properly respond to his complaints about abdominal pain and nausea, and that this led to hospitalization and surgery for severe pancreatitis. But while plaintiff says he began complaining prior to May 28, 2014, and that the jail ignored those complaints, the record tells another story. The Court of Appeals (Leval, Raggi and Livingston) says that the "overwhelming evidence" shows that, prior to May 29, plaintiff had not complained to staff about symptoms that might indicate pancreatitis. He did submit many handwritten medical request forms prior to that date, but none mentioned abdominal pain or vomiting. At deposition, plaintiff testified that he "may not have" complained about nausea and vomiting to the jail's medical providers, and that he "[could not] remember but he thought [he] did." That kind of testimony will not get you a trial on a constitutional claim alleging deliberate indifference to serious medical needs. 

Also hurting plaintiff's case is evidence that jail employees appeared to provide plaintiff extensive and consistent medical care for three weeks before he went to the hospital for surgery. While plaintiff claims the jail should have known he was in a medical emergency, "symptoms such nausea [and] abdominal pain" may be consistent with a diagnosis of gallstones or developing pancreatitis, but they are also consistent with many other medical conditions which do not require hospitalization. That appears to be the heart of this case. Plaintiff was in distress, but that distress could have resulted from other causes, and since the jail did provide him with consistent medical treatment all along, he cannot win his case under the Fourteenth Amendment.