Monday, September 29, 2014

Courts need to carefully consider whether to dismiss cases for failure to prosecute

Pro se plaintiffs often do not know what they are doing. In this case, the pro se inmate sued jail personnel for deliberate indifferent to his serious medical needs. The case was dismissed for failure to prosecute. The Court of Appeals gives plaintiff a break and reinstates the case.

The case is Baptiste v. Somers, decided on September 24. Plaintiff filed the case in February 2009. The district court threw out some of the claims in August 2010. Plaintiff filed a proposed amended complaint in January 2011. But his proposed amended complaint was not really a complaint but a legal brief that plaintiff intended to rebut the Answer. The Court told plaintiff to file a proper complaint. Plaintiff did not comply with this directive for 23 months, At that point, the Court issued an Order to Show Cause why the case should not be dismissed for failure to prosecute. Plaintiff then found a lawyer who filed two responses: (1) a letter in December 2012 explaining that plaintiff had just recently hired a lawyer and that plaintiff had been ill and unable to pursue his claims, (2) and a response in February 2013 stating the basis for plaintiff's claims and further claiming that, contrary to the district court's directive, discovery could not be completed in 60 days.

The district court dismissed despite these two submissions, stating that plaintiff did not offer a plan to complete proceedings within 60 days. The Court also said that plaintiff did not explain the nearly two-year delay in prosecuting the case. The Court did not make reference to the new lawyer's December 2012 letter explaining why the case lay dormant for so long.

The correct way to determine if plaintiff failed to prosecute the case is by considering the duration of the delay, whether plaintiff knew his failure to proceed would result in dismissal, whether defendants would be prejudiced by further delay, the court's interest in managing its docket, the plaintiff's interest in pursuing the case and whether a less-adequate sanction is appropriate. The judge in this case did not appear to consider those factors. And the plaintiff did provide a good reason for the delay: he was ill and did not have a lawyer. Once the Court threatened to dismiss the case, plaintiff hired a lawyer who mad ethe appropriate filings. In all, the district court blew it. The case is revived.  

Friday, September 26, 2014

Do not blow the gift of time

Lawsuits under Title VII and the Americans with Disabilities Act carry a short statute of limitations, 300 days to be exact. You can extend the 300 day period under the "continuing violations" theory, but that's unpredictable.

The case is Cohen v. City of New York, a summary order decided on September 10. Cohen was a corrections officer. He accepted defendants' retirement offer on July 16, 2008. Cohen then filed an EEOC charge on September 3, 2009, more than 300 days later. Cohen says his claim actually accrued on November 16, 2008, the date his retirement became effective, which would bring him within the 300 days. The Court of Appeals (Katzmann, Sack and Lynch) is not buying it.

Cohen invokes "continuing violations" because Department of Corrections ignored his requests for a reasonable accommodation. "He argues that ... the statute of limitations should run from his last day of work, which was the point at which (1) it became clear that DOC was not going to grant his request for a reasonable accommodation, and (2) the disciplinary charges [against him] were no longer pending." But even if the employer blew off plaintiff's reasonable accommodation request, it should have been apparent to him on the day the parties agreed he would retire, July 16, 2008, that the accommodation would never happen. That means the claim accrued at least on that date, more than 300 days from the EEOC charge. That claim is therefore time-barred.

As for the disciplinary charges against him, Cohen argues that the date to challenge them accrued on the date his retirement became effective, because DOCS refused to dismiss the charges against him once he agreed to retire. "These acts, in Cohen's view, are related because they functioned to prevent Cohen from objecting to unfairly-lodged disciplinary charges and ultimately force him out of the DOC workforce." The Court of Appeals is not buying this. "Even if the decision to leave the disciplinary proceedings pending was a separate act of discrimination, Cohen knew or should have known of this decision by July16, 2008, as well."

What do we learn from this? Don't blow the gift of time. Title VII and ADA do not give us a lot of time to ready a discrimination lawsuit, true, but 300 days should give you enough time to know you are the victim of discrimination and for a lawyer to put together an EEOC charge. Creative arguments in support of a continuing violation argument aside, it's best to get the charge filed now.

Wednesday, September 24, 2014

Reduction-in-force termination was not age discrimination

Plaintiff sues his former employer for age discrimination. He was fired in a reduction-in-force (RIF) after management thinned the herd by selecting underperforming employees. While plaintiff (56 years-old) was the oldest person in his sales group to be fired, the Second Circuit paints a dismal picture of his performance, noting that he ranked 136th among sales personnel at Bank of America in 2010. The case is dismissed on summary judgment, and the Second Circuit affirms.

The case is Delaney v. Bank of America, decided on September 5. RIF cases are hard to win because under a RIF, many employees are usually fired at once, and it is therefore hard to prove that employees were let go because of their age. These cases can be won, but my sense is that courts presume that RIF's are legitimate and require the plaintiff to overcome that presumption. Delaney cannot do so here. The Court (Winter, Wesley and Hall) says that plaintiff cannot show that the articulated reasons for his termination -- that management merely got rid of its underperforming employes in the RIF -- are not false or pretext for discrimination. Delaney was among 418 employees who were terminated "and had the worst performance of employees in his group at his level."

A few points of interest here for employment lawyers. First, the Court of Appeals applies the "but for" test articulated by the Supreme Court a few years ago in interpreting the ADEA. Citing an EDNY case for this proposition, the Second Circuit says that, under this new rule, "the condition that a plaintiff's age must be the 'but for' cause of the adverse employment action is not equivalent to a requirement that age was the employer's only consideration, but rather that the adverse employment action would not have occurred without it."

Second, plaintiff's age-related evidence in support of his claim is a draft EEOC charge by an older co-worker, which says he was fired six months after plaintiff was. The draft charge "alleges that he was terminated on the basis of his age and that colleagues and managers made repeated comments concerning his age." This will not cut it. The Court of Appeals says the draft charge is hearsay and therefore inadmissible. "Even assuming, however, that Delaney could present the evidence from the EEOC charge in admissible form at trial by calling C.G. as a witness, the evidence would not call into doubt the nondiscriminatory reason BoA has proffered for Delaney’s termination. Comments about another employee’s age, removed from any context suggesting that they influenced decisions regarding Delaney’s own employment, do not suffice to create a genuine issue of fact as to whether age was the but-for cause of Delaney’s termination."

Monday, September 22, 2014

Corporations have free speech rights, too

The State of Connecticut passed a law that prevented insurance adjusters from telling broken auto glass customers where to repair their glass. The Court of Appeals holds that this law violates the First Amendment.

The case is Safelite Group v. Jepsen, decided on September 4. The plaintiffs are an insurance claims management company and its affiliate, which operates an auto-glass repair and replacement business in Connecticut. Safelite recommends its affiliate for the repair jobs. This was improper under Connecticut law. The Second Circuit (Winter, Walker and Cabranes) says this law is improper under the First Amendment.

The national dialogue has focused on the First Amendment rights of corporations to give money to political candidates. But corporate speech rights are not a new concept. The Supreme Court has held that corporations have some rights to speak in the non-political context. "Commercial speech that is not false or deceptive and does not concern unlawful activities ... may be restricted only through means that directly advance that interest." In other words, the government needs a good reason to prohibit honest commercial speech.

There is some confusion about the standard of review in cases like this, and a case can be made that the government can win if it advances a rational basis (or any reason at all) for the restriction. After some analysis, the Second Circuit, though, says intermediate-level review applies because this case involves speech that "compels speech that goes beyond the speaker's own product or service." This case does not involve the government's efforts to restrict dishonest speech. Instead, the challenged law requires companies to either stay silent or to give a free advertisement to a competitor who might fix the auto glass. The state's justification for this law -- "protecting consumer choice, preventing steering, and combating the undue influence of self-interested insurance claims adjusters" -- is not good enough to save the law. This justification seems post hoc to the Court of Appeals, and upon careful scrutiny it does not appear that the law would save customers any money since insurance companies pay everything over a deductible. The Second Circuit therefore orders the district court to enter a preliminary injunction against enforcement of the law.

Tuesday, September 16, 2014

Court of Appeals wants to further cut attorneys' fees in student speech case

Victorious plaintiffs in civil rights case are entitled to attorneys' fees from the losing defendants. This allows plaintiffs without money to hire a lawyer who can pursue the case in the understanding that the attorney will recover fees for his successful effort. The process is not always so simple, however.

The case is Husain v. Springer, a summary order decided on August 29. This case was filed in 1997. CUNY students -- editors of the student newspaper -- sued the college under the First Amendment after defendants retaliated against them for their editorial content. The retaliation took the form of the College's decision to void student government elections because the newspaper had endorsed student candidates in violation of College rules. The Second Circuit's decision in 2007 was so interesting and controversial that it prompted me to start writing this blog in the first instance. Interesting because the 2-1 majority said that voiding the student government election results was a form of retaliation, and controversial because Judge Jacobs dissented from the ruling and said the case was so trivial and silly that he did not even bother to read the majority decision.

Since plaintiffs won the case, their lawyer moved for attorneys' fees. What complicates matters is that plaintiffs each won a dollar in damages. In some civil rights cases, a low damages award disentitles the plaintiff from winning any attorneys' fees. But First Amendment cases often do not result in large damages awards, so fees are available if the plaintiffs as a practical matter did  not merely win a nominal victory. Here, plaintiffs did not win a trivial victory because they defendants' conduct chilled plaintiffs' speech, and they agreed to repeal the offending student election rules that prompted plaintiffs to bring the lawsuit in the first instance. So the district court properly awarded plaintiffs their attorneys' fees.

What the district court got wrong, the Second Circuit (Jacobs, Calabresi and Livingston) says, was awarding plaintiffs approximately $233,000 in fees and costs. Plaintiffs requested more than $800,000 in fees, so the actual award was much less than what they wanted. The Court of Appeals says plaintiffs should recover even less than $233,000 because (1) plaintiffs sought but did not receive any punitive damages against defendants, (2) they abandoned many claims in the course of the litigation and (3) they lost many of the claims on the merits. Also, the case established no new principle of law, calling into question the huge number of hours plaintiffs' lawyer spent on the case. For these reasons, the case is sent back to the district court to reduce the fees award even further.

Friday, September 12, 2014

Pro se excessive force victim wins appeal

It is too early in the case to know if any of this is true, but the plaintiff alleges that police officers yanked his arms without cause, smashed his face into the ground and stood on his hands when he was handcuffed. Other officers watched it happen but did not intervene. The plaintiff sued the officers and the trial court dismissed the case. The Court of Appeals revives the excessive force claim.

The case is Simcoe v. Gray, a summary order decided on August 27. Simcoe represents himself on appeal, by the way, and he appears to be in jail at the moment, which makes his appellate victory even more impressive. While the district court granted the officers qualified immunity upon finding that plaintiff resisted arrest, the Court of Appeals (Walker, Wesley and Livingston) says this was faulty reasoning. The trial court "did not address Simcoe's statements that defendants assaulted him after he was handcuffed." Plaintiff also testified that he did not resist arrest. That testimony is enough to create an issue of fact for trial.

Plaintiff also did enough legal research in the prison law library to learn that you can sue a police officer for failure to intervene when a fellow officer is breaking the law. That claim survives as well. Officers may look out for each other, but they cannot look the other way when someone is beating up someone for no reason. If there is a realistic opportunity for the officer to intervene, he must do so.

What reads like a routine decision gets more interesting when we see that defendants argue that they deserve summary judgment because plaintiff testified at his criminal trial that he remembered being handcuffed and Tasered "and that was about it." He also testified that he was "out of his mind" and lost control that evening. He also did not mention excessive force in an apology letter he wrote to the police department. These are credibility arguments, not conclusive facts that would justify summary judgment for the officers. At best, the criminal trial testimony was ambiguous and it "was not dispositive because it was not necessary to the verdict." The "lost control" testimony is also too ambiguous to establish as a matter of law that the police had no choice but to use force. While he did not mention excessive force in the apology letter, that is not sufficiently contradictory to throw out his civil suit.

Wednesday, September 10, 2014

Habeas petition granted because someone else may have pulled the trigger

The habeas corpus law that Congress enacted in the mid-1990s makes it harder to challenge the constitutionality of a state court criminal conviction. Even if a federal court finds in hindsight that a conviction violated constitutional standards, the inmate will not win the habeas petition unless the state court violated clearly-established constitutional law. In this case, the inmate overcomes that hurdle.

The case is Alvarez v. Ercole, decided on August 18. Alvarez was convicted of manslaughter resulting from a drive-by shooting in The Bronx in which a drug-dealer died. The criminal case was not open-shut: eyewitness accounts were sketchy. But the police had other leads on who might have pulled the trigger. The police did not develop those leads, and Alvarez's lawyer tried to prove at the criminal trial that the police investigation was shoddy and that someone else was guilty of the crime. The criminal court judge prevented counsel from exploring this defense at trial, ruling that evidence of other leads into the killing was hearsay.

The Court of Appeals (Calabresi, Livingston and Jacobs) disagrees and finds that the habeas petition should have been granted. Alvarez had a clearly-established right to effectively cross-examine the detective whose notes showed that he possessed the names of other possible suspects. As the Second Circuit puts it, the trial court's restriction on cross-examining the detective prevented Alvarez from pursing his best defense: "that the police investigation into the murder was flawed and had improperly disregarded a promising alternate suspect." This was especially damaging to Alvarez's case because the prosecutor told the jury in summation that the police did a good job and that defendant was merely speculating about the police investigation.

Habeas petitions are hard to win, in part, because of the legal standard that Congress adopted 20 years ago when it amended the habeas laws after Republicans took over Congress. I recall that the argument in support of deferring to state-court judgments was that federal courts were infringing on state's rights in second-guessing criminal convictions. The solution was to require federal courts to defer to state court judgments. Even if the conviction is found to be unconstitutional, the conviction stands unless the state court unreasonably applied Supreme Court authority. As I see it, this creates a two-tiered constitutional system. State courts are allowed to get it wrong (even on constitutional matters) so long as they don't totally blow it. As the Second Circuit notes, “[A]n unreasonable application of [Supreme Court law] must be objectively unreasonable, [and] not merely wrong.” In this case, Alvarez still wins the habeas action despite these stringent standards.

Monday, September 8, 2014

Circuit says Erie County jail compliance records are open to the public

The U.S. Department of Justice sued Erie County, New York, because its jails were unconstitutional rat's nests. When that case settled, the parties agreed that periodic compliance reports would be filed with the court to ensure that the County lived up to its end of the deal. The New York Civil Liberties Union seeks  access to those compliance reports. The district court said no. The Court of Appeals says yes. NYCLU gets the reports.

The case is United States v. County of Erie, decided on August 18. Judges love First Amendment cases, and this is a classic First Amendment case. The principal question, though is more mundane: are the reports judicial documents and, if so, does the public have the right to them? The Court of Appeals finds they are judicial documents because they play a significant role in allowing the trial court  to know if the County is in compliance with its obligations under the settlement.

We then apply the usual balancing test to decide if the pubic has a right to review these documents. "To determine whether this First Amendment right attaches in circumstances such as the one before us, we look, first, to whether 'experience and logic' support making the document available to the public. That is, we consider (a) whether the documents 'have historically been open to the press and general public' (experience) and (b) whether 'public access plays a significant positive role in the functioning of the particular process in question' (logic). Once a First Amendment right of access to judicial documents is found, the documents 'may be sealed [only] if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.' And, '[b]road and general findings by the trial court . . . are not sufficient to justify closure.'”

The Second Circuit (Calabresi, Parker and Lynch) says NYCLU can review the reports. We know the Court will rule this way even before it applies the complicated balancing test above. That's because the Court prefaces the decision with language extolling the virtues of public access to court records. It says:

The notion that the public should have access to the proceedings and documents of courts is integral to our system of government. To ensure that ours is indeed a government of the people, by the people, and for the people, it is essential that the people themselves have the ability to learn of, monitor, and respond to the actions of their representatives and their representative institutions. This principle, as it applies to courts, has a long history.
With language like this, do you really think the Second Circuit will allow the documents to remain under seal? The County does not offer compelling reasons to deny public access to these records. The County "posits a supervening need for frank, and hence confidential, discussions among the parties. In doing so, it analogizes this case to ones involving settlement negotiations. But that argument ignores the crucial fact that, in the case before us, a settlement has already been reached." Moreover, the Court says, the issues raised by these documents raise matters of high public interest. "As the Supreme Court succinctly put it, the 'conditions in this Nation’s prisons are a matter that is both newsworthy and of great importance.'”

Thursday, September 4, 2014

NYC rule against Orthodox circumcision ritual may violate Free Exercise Clause

This case acquaints us with a religious ritual that few of us know about. During the circumcision ceremony, some Orthodox Jews "perform direct oral suction of the circumcision wound in a ritual act known as metzitzah b' peh." Since it determined that this ritual poses a health risk (the spread of herpes simplex virus), New York City issued a regulation that prohibits anyone from performing this ritual without obtaining written permission from the parents. The consent form says that New York City "advises parents that direct oral suction should not be performed." That regulation may be stricken from the books.

The case is Central Rabbinical Congress v. New York City Department of Health & Mental Hygiene, decided on August 15. The religious plaintiffs sought a preliminary injunction against enforcement of this regulation, claiming it constitutes coerced speech and also violates their freedom of religion. The district court denied the motion but, according to the Second Circuit (Livingston, Lohier and Carney), that court applied the wrong legal standard. Since this regulation targets a specific religious practice, the district court must evaluate its constitutionality under the "strict scrutiny" test, which is usually the death-knell in reviewing statutes and regulations.

The decision provides an interesting summary of the ritual. It also tells us that most adults have some form of Herpes Simplex Virus, though we do not show any symptoms. But HSV in newborns can be serious and life-threatening. The virus can be passed through oral contact with an open wound. Plaintiffs say there is no DNA proof that HSV has ever been transmitted through this ritual.

Under the Free Exercise Clause of the Constitution (which provides for "freedom of religion"), the government cannot pass a law or regulation that targets a religion or religious conduct. The Court of Appeals finds that the regulation here does in fact target such conduct, as it "purposefully singles out religious conduct performed by a subset of Orthodox Jews. And the Regulation applies exclusively to the religious conduct performed by this religious group." Even if the rule is facially neutral, it is not neutral in operation. "The religious ritual it regulates is the only conduct subject to the Regulation," the Court says. In other words, the regulation does not apply to any other religious practice.

This means that the government cannot defend the rule simply by showing a rational, or reasonable, basis for it. Under the rational basis test, the government usually wins by articulating any reason that is not totally off-the-wall. In this case, the government has to satisfy the "strict scrutiny" test, which is a much narrower window to crawl through. The Court of Appeals will let the district court worry about whether the regulation satisfies that test.

Wednesday, September 3, 2014

Dodd-Frank does not apply overseas

Under the Dodd-Frank Act, employers cannot retaliate against employees who blow the whistle on certain improprieties. This case examines the territorial reach of that statute.

The case is Meng-Lin v. Siemens AG, decided on August 14. Plaintiff worked as a compliance officer in the health care division of Siemens China, Ltd. The New York connection to this firm was that Siemens China is a wholly owned subsidiary of Siemens AG, a German corporation with shares listed on the New York Stock Exchange. Plaintiff was shown the door after he reported that "Siemens employees were indirectly making improper payments to officials in North Korea and China in connection with the sale of medical equipment in those countries." Plaintiff sued in federal court to challenge his termination, but the case was dismissed under Rule 12. The Court of Appeals affirms, and the case is over.

The Court of Appeals (Lynch, Raggi and Lohier) says that what happened to plaintiff was a foreign event, not a domestic event, and that Dodd-Frank therefore does not provide him any redress. We presume that laws passed by Congress apply domestically. The Court quickly finds that plaintiff's retaliation was not a domestic event. Everything happened abroad. Plaintiff is a resident of Taiwan and reported the corruption to superiors in China and Germany. Superiors in China and/or Germany decided to fire him. The Court says it doesn't matter that the company had a class of securities listed on New York Stock Exchange.

The question then becomes whether plaintiff may still invoke the statute. He cannot. "There is absolutely nothing in the [statute], or in the legislative history of the Dodd-Frank Act, that suggests that Congress intended the antiretaliation provision to regulate the relationships between foreign employers and their foreign employees working outside the United States." While plaintiff's lawyer offers various arguments to get around this, the Court is not buying it, prefacing its analysis as follows: "Liu's effort to cobble together indirect, circumstantial suggestions of extraterritorial application faces powerful headwinds."