Esoteric statute of limitations issue under the Federal Tort Claims Act

This personal injury case arises from a workplace accident at Long Island MacArthur Airport in 2021 that injured the plaintiff, who sues under the Federal Tort Claims Act. Plaintiff sued in state court, but the government removed the case to federal court on the basis that federal court has exclusive jurisdiction over FTCA cases, and that any claims against federal employees also can only be filed in federal court. This interplay between state and federal court gives rise to an interesting statute of limitations issue for which there is a Circuit split that might someday reach the Supreme Court.

The case is Fiermonte v. Deonarain, a summary order issued on March 4. What injured the plaintiff was being electrocuted. A coworker died from that electrocution. Plaintiff filed suit on November 10, 2022 in state court. The following April, plaintiff submitted an administrative claim to the Federal Aviation Administration, which wrote back denying his claim and advising he could file suit in federal court under the FTCA no later than six months after this letter was mailed. Within that six-month window, on February 12, 2024, plaintiff amended the complaint in state court, naming Deonarain as a defendant and claiming that this defendant acted within the scope of his federal employment with the FAA. After the federal government removed the case to federal court, the district court dismissed the case on statute of limitations grounds, reasoning that the case reached federal court more than six months after he exhausted his administrative remedies.

The Court of Appeals (Walker, Sack and Lee) reinstates the case, as it might actually be timely. The district court will have to take a closer look at this issue.

Section 2401(b) of the FTCA requires that a plaintiff commence an 'action' within six months of exhausting their administrative remedies. 28 U.S.C. § 2401(b). However, the statute is silent on whether the action must be filed in federal court or, alternatively, whether a complaint initially filed in state court within the six-month time period and then later removed to federal court—as was the case here—may nonetheless satisfy Section 2401(b)." 

This is an esoteric statute of limitations question, and Courts of Appeal around the country have reached different holdings. The Fourth and Fifth Circuits hold that filing suit in state court does not toll the statute of limitations, requiring dismissal of the case if it reaches federal court after six months. The Seventh and Ninth Circuit have reached a contrary conclusion. Since we have divided authority on this issue, but limited briefing, the Court of Appeals returns the case to the district court to rule on this issue.  

"Ghost guns" case returns to trial court to decide whether New York can regulate them

The State of New York has sued certain gun manufacturers for selling materials that allow you to make "ghost guns," defined as homemade guns that lack serial numbers and are therefore untraceable. That led to a series of motion practice and appeals examining whether these ghost guns are legal or whether the State can enjoin their production. The case reaches the Court of Appeals again, which declines to issue a conclusive ruling.

The case is New York v. Arm or Ally, LLC, a summary order issued on February 26. While the trial court initially denied defendants' motion to dismiss the case, finding the State had asserted a claim against the manufacturers in that the materials qualified as "firearms" under the Gun Control Act, the Court of Appeals in 2024 heard oral argument but held the appeals in abeyance because the Supreme Court was deliberating on Bondi v. VanDerStok, 604 U.S. 458 (2025), which issued in March 2025.

The VanDerStok ruling said that at least some weapons parts kits and unfinished frames or receivers are “firearms” within the meaning of the GCA. The Court noted, however, that at some point a product may be “so incomplete or cumbersome to assemble” as to no longer constitute a weapon, or “so far from a finished frame or receiver that they cannot fairly be described using those terms,” thus bringing them outside the scope of the GCA.

The VanDerStok ruling is now the law of the land. The district court, however, did not have the benefit of that ruling in determining whether New York could bring this lawsuit. The Court of Appeals (Bianco, Menashi and Lee) returns this case to the district court for that purpose.  

Court of Appeals sidesteps separation-of-powers arguments relating to the NLRB and other federal agencies

Here is a case for the modern age: the National Labor Relations Board proceeded against certain health care facilities, claiming they were denying the labor rights of their employees. But the employers mounted a significant defense: in today's political climate, the NLRB had no power to proceed against them because (1) the NLRB lacks a quorum, a byproduct of the Trump administration's maneuverings, and (2) the rules in place that constrain the President's ability to fire members of the board are unconstitutional. 

The case is Care One LLC v. NLRB, issued on February 5. The NLRB is a federal agency that enforces the National Labor Relations Act and resides in the Executive Branch. The President appoints the five-member board to a five-year term and can only be removed by the President "for neglect of duty or malfeasance in office, but for no other cause." An administrative law judge rules on alleged NLRA violations, and the ALJ is also protected from political dismissals. The Merit Systems Protection Board, whose members can only be removed by the President on non-political grounds, determines whether the ALJ's may be terminated.

The employers argue that the NLRB was not properly constituted and that the removal procedures for NLRB and MSPB members unconstitutionally interfere with the President's authority to fire them. These arguments may not seem exciting, but they strike at the heart of the U.S. constitutional order, as the present administration is trying to exert unprecedented control over these agencies. If the employers are correct about this, then these agencies were not permitted to proceed against them because they are no longer independent actors but agents of the President. 

Litigation relating to these issues is now raging throughout the federal system, and once the Supreme Courts gets its hands on these cases, we may be living under a very different administrative state than the one we have grown accustomed to over the last few decades. But we are not there yet.

The Court of Appeals (Raggi, Perez and Kahn) sidesteps these issues, and resolves the case in a different way: there is no irreparable harm to the employers, which means there can be no preliminary injunction that would allow the courts to halt the proceedings against them. Upon a finding of irreparable harm flowing from a likely constitutional violation, you'll get an injunction. But while constitutional violations (like free speech) often support a finding of irreparable harm (in that the harm cannot be undone years later following full litigation), that principle does not guide all constitutional violations. The Court finds that no irreparable harm can result from the violation of separation-of-powers principles such as that asserted here. The legal arguments here, relating to the legitimacy of the agency-member removal requirements, "do not cause cognizable harm in all instances," as "removal violations cause cognizable separation-of-powers injury only when the person afforded removal protection engages in action that he would not have taken but for the President's inability to remove him." Since the ALJ in this case -- potentially protected under unconstitutional removal rules -- is no longer on the case due to his retirement, and Care One's case is now before a full NLRB, there is no risk of legal injury from the ALJ and therefore no irreparable harm. 

Judge Perez concurs in the result and offers a lengthy discussion that the Court is also able to find the employers in this case cannot prevail on the merits because the removal procedures governing the NLRB are constitutional 

New York Court of Appeals finds search may have violated Fourth Amendment

The rules under the Fourth Amendment's prohibition against unreasonable searches and seizure are so complex and nuanced that only lawyers and judges understand them and, even then, judges sometimes do not understand them, which is why God created the New York Court of Appeals. This case asks whether the defendant was properly arrested following a search of the apartment where he was staying overnight. The Court of Appeals returns the case to the Appellate Division to reconsider the gun charge.

The case is People v. Shaw, issued on February 19. The defendant was charged with murder, attempted murder and other horrible crimes that left dead and paralyzed bodies in his wake. When the police arrived at the apartment where defendant was staying, they ordered defendant to exit the building and then ordered the tenant and her cousin to come out with their hands up and lie face down on the ground, all the while pointing guns at them. At this point, the tenant consented to a search of the apartment, where the police found an illegal weapon. The Appellate Division said the search was legal under the Fourth Amendment because, while  the police were wearing SWAT gear and their manner of entry constituted coercive circumstances, the tenant's consent ultimately was voluntary and suppression of the gun was thus unwarranted.

The Court of Appeals finds that the circumstances surrounding defendant's arrest violated the Fourth Amendment, as interpreted by Payton v. New York, 445 U.S. 573 (1980), because the sanctity of the home, a prominent concern under the Fourth Amendment, was invaded when the SWAT team displayed their authority in such a manner and induced the defendant to exit the home under this coercion. No reasonable person would have felt free to ignore the officer's command to leave the home. 

 

Here is where things get tricky. While the Appellate Division said the police actions in forcing defendant to exit the building were coercive and therefore violated the Fourth Amendment, it also said the search that followed was legal because the tenants who were also drawn out of the building validly consented to the search. The Court of Appeals says that holdings like this might incentivize officers to violate Payton without repercussions simply by seeking consent from a third party. But while the dissent wants a categorical rule that a defendant's unlawful arrest can never taint the consent of a third party, the majority follows the rulings from around the country that hold that a third party's consent may not be enough to make the defendant's arrest a legal one. The Court writes, "allowing police to coerce a defendant out of the home in violation of Payton and then, in the absence, of counsel, seek consent to search the home, could sure put the police in a better position than they would have been if no illegality had transpired. That the consent was provided by a third party does not obviate these concerns."

The case returns to the Fourth Department to assess whether the tenant's consent to search the building is too attenuated from the coercive tactics that drew the defendant from the building in the first instance. If so, then the search was illegal. If not, the search was legal and the police may use the gun against the defendant at trial.

No disparate impact liability against third-party criminal screening company servicing apartment building

This Fair Housing Act case alleges that a third-party vendor that screens the criminal records of applicants who want to live in residential apartments is liable for disparate impact against Hispanic residents. The trial court, following a lengthy trial, ruled against the plaintiff. The Court of Appeals agrees and says the vendor did not cause the denial of the housing application simply by providing that report highlighting the applicant's criminal record.

The case is Connecticut Fair Housing Center, Inc., v. CoreLogic Rental Property, issued in February 20. CoreLogic is the screener, using the CrimSAFE screening platform. Plaintiff's application to move from a one-bedroom to a two-bedroom apartment was rejected after screening found that her son, who lived with her, had a pending shoplifting charge that was ultimately dropped. 

The argument is that screening procedures like this have a disparate impact on Hispanics, who are arrested at a higher rate than white applicants. That disparate impact would violate the Fair Housing Act, which holds defendants liable if they do not intend to subjectively discriminate against racial minorities if the process by which applications are denied bears no reasonable relationship to the application itself, i.e., the desire to live in the apartment. 

The question here relates to causation: did CoreLogic's screening process proximately cause the housing application denial? We are not talking factual causation but legal causation sufficient to hold this entity liable under the FHA. That's a legal inquiry that scholars and judges have been grappling with for decades. The district court's finding -- that CoreLogic cannot be held legally responsible for the application denial   -- is affirmed on appeal. 

The Second Circuit (Wesley, Menashi and Cabranes) finds that, apart from the screening process, "it was the housing provider that controlled every other aspect of the application process" and made the final decision after reviewing the background report and deciding what to do with the report's findings. In other words, CoreLogic's screening procedures were too attenuated from the housing provider's decision to deny the application. The legal system will not hold such a third-party vendor liable even if the layperson might partially blame the application denial on CoreLogic's investigation that, in the end, penalizes one race for conduct based on disparate impact. 

What the Supreme Court did in the tariffs case

The Supreme Court has struck down the far-reaching tariffs imposed by the Trump administration, finding that the statute invoked by Trump does not authorize them, and that ruling otherwise would allow the Executive Branch (the Presidency) to take on the functions that the Constitution solely affords to the Legislative Branch (Congress).

The case is Learning Resources v. Trump, issued on February 20. After taking office, Trump imposed tariffs against countries all over the world. He did so under the authority of the International Emergency Economic Powers Act, enacted in 1977 to allow the President to address significant international threats by declaring a national emergency. In this case, Trump said the national emergency was international drug trafficking and the economic crisis. Under Trump's order, the tariffs would essentially tax imports and therefore favor American businesses, though economists believe the tariffs would raise prices on the consumer, who would essentially absorb the extra financial penalties in the marketplace.

By a six-three vote, the Supreme Court finds that the Act does not authorize the tariffs. The Act does give the President authority to regulate the exportations of any property in which any foreign country has any interest. Does this language include the power to unilaterally impose tariffs? No, says the Court, which reviews the definition of "regulate" and explains that, under a constitutional doctrine that the Court has previously articulated, the "major questions doctrine," we cannot interpret ambiguous statutes to grant the President authority to take on extraordinary powers normally delegated to Congress under the Constitution. This principle respects the separation of powers enshrined in the Constitution. 

In this case, we know that the Constitution gives Congress power to impose a tax, which is essentially how we define a tariff, as it raises revenue by governmental directive. The Court is unwilling to assume that Congress, in passing the emergency powers act, intended to delegate taxing authority to the President without the ability for Congress to pass judgment on such a measure simply because the President declares an emergency.

Adding to the Court's analysis is that no President has previously tried to impose any tariffs without congressional authorization, much less tariffs of this size and scope, which reach around the world and would amount to trillions of dollars. In the end, without clear congressional authority to impose these tariffs unilaterally and with congressional authorization, the Court will not allow the President to impose these tariffs under the emergency act. 

If you are keeping score, Chief Justice Roberts wrote the majority opinion, joined by Justices Barrett, Gorsuch, Sotomayor, Kagan and Jackson. Roberts is a Republican who rules with the liberals on an infrequent basis, and Trump appointed Barrett and Gorsuch. The other three Justices in the majority were appointed by Democratic presidents. So this is a bi-partisan ruling. Justices Thomas, Alito and Kavanaugh dissented. 

Title VII retaliation fails on summary judgment

This case arises from the plaintiff's prior settlement agreement with the City University of New York, which stated that she would remain in her faculty position for two years, during which time she would work toward her reappointment or tenure, i.e., completing her doctorate. The settlement grew out of a prior grievance. Plaintiff then sued CUNY, claiming that it gave her a class schedule that interfered with her reappointment or tenure, and that CUNY did so in retaliation for her prior protected activity: complaining about discrimination. The plaintiff loses on summary judgment.

The case is Brown v. CUNY, a summary order issued on February 18. Plaintiff claimed that, as a result of CUNY's alleged interference with her efforts to obtain a doctrine, she was denied tenure and terminated. The Court of Appeals holds that no jury can find that CUNY knowingly offered a false reason for her termination, that is, there is no pretext. 

Plaintiff loses, the Court of Appeals (Bianco, Perez and Kahn) holds, because she does not dispute that the settlement agreement governed her tenure application process, and that she did not complete her doctoral program, as the agreement had required. But she cannot prove that the scheduling conflicts which she claimed interfered with her doctoral programs were intentionally created by CUNY. Rather, the Court says, the evidence shows that CUNY tried on multiple occasions to accommodate her scheduling conflicts; CUNY would fix the problem when plaintiff brought it to their attention.

The Court also finds a "mismatch" between who designed plaintiff's schedule and who knew about her prior protected activity. While plaintiff complained to the Dean and HR, the one who worked on the schedule was not aware of her discrimination complaint. "The lack of knowledge on the part of particular individual agents is admissible as some evidence of a lack of a causal connection." That language derives from Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111 (2d Cir. 2000). While the Gordon case is famous for the "general corporate knowledge" rule -- that everyone in management is presumed to know about the plaintiff's protected activity, that does not get plaintiff off the hook if an individual actor was not aware of the protected activity and that lack of knowledge therefore cuts off the causal link between the protected activity and the adverse action, such as termination.