Inmate's religious freedom case fails over technical roadblocks

In this prisoner rights case, the plaintiff argues to the Second Circuit that a mandatory program that required him to accept responsibility for his sex crimes violates his statutory and constitutional religious rights because the program required him to tell a falsehood in violation of his religion, the falsehood being that he is guilty of the crimes. Plaintiff loses the case.

The case is Tripathy v. McCoy, issued on May 29. Since plaintiff says he never committed any sex crimes, the program, he says, would require him to lie. His religion prohibits such lying. 

The problem for plaintiff is that the Religious Land Use and Institutionalized Persons Act (RLUIPA), under which plaintiff brings this lawsuit, does not provide for compensatory damages, as it is a Spending Clause legislation and, for reasons too complicated to lay out here, such statutes do not provide for pain and suffering awards unless they expressly say so. The other problem for plaintiff is that he cannot recover injunctive relief against participation in the program because he is no longer in jail and any such application is moot. (Plaintiff is out of jail because a state court said he received ineffective assistance of counsel at his criminal trial). As the Second Circuit has already held that RLUIPA provides for no compensatory damages, plaintiff cannot assert otherwise, as one Second Panel has no authority to overrule a prior panel decision from a different case, and plaintiff cannot show that any intervening change in the law (such as through a U.S. Supreme Court ruling) undermines the reasoning of these prior adverse precedents. 

Plaintiff (or his lawyers who joined the case on appeal) is smart enough to argue that a different religious freedom statute, the Religious Freedom Restoration Act, does provide for pain and suffering damages, but the Second Circuit notes that cases under RFRA do not undermine the bad RLUIPA cases because RFRA is not a Spending Clause statute and is not useful in this analysis.

That brings us to plaintiff's First Amendment religious freedom claim. The First Amendment and Section 1983 (which enforces the First Amendment) has no damages caps, but plaintiff runs into a different procedural issue: qualified immunity, which shields public defendants from lawsuits when the case raises a novel issue of law. This is such a case, the Court of Appeals (Sullivan, Jacobs and Nardini) holds, because "no binding precedent establishes that a generally applicable program violates the Free Exercise Clause by requiring an inmate who is an incarcerated felon to accept responsibility for the conduct underlying his conviction."

Landmark malicious prosecution claim will go to trial

This case returns to the Second Circuit after a trip to the U.S. Supreme Court and a remand to the Eastern District of New York. It's a police misconduct case that the Supreme Court used as a vehicle to clarify when someone can sue the police for malicious prosecution. That ruling came down in 2022, and it's still being litigated. Since the plaintiff wins this appeal in the Second Circuit the case will continue, though the next step is probably trial.

The case is Thompson v. Clark, a summary order issued on May 28. It all started when the police came to plaintiff's house on a 911 call claiming plaintiff was abusing his newborn daughter. Plaintiff would not allow the police to enter his home without a warrant, and he was arrested for obstructing governmental administration and resisting arrest. These charges were eventually dismissed, and plaintiff sued the officers for malicious prosecution, among other claims. 

The case reached the Supreme Court, which held that you do not have to show the criminal charges "ended with some affirmative indication of innocence." You only have to show the charges ended without a conviction. This was good news for lawyers who represent police misconduct victims. So the case returned to the Eastern District of New York, which held that plaintiff must lose the case for a different reason: the police had probable cause to arrest him for obstructing. The Second Circuit (Calabresi, Park and Merriam) disagrees.

Plaintiff gets a trial on his malicious prosecution claim because the jury may find he did not actually obstruct any police activity. When plaintiff stood in his doorway, spoke peacefully with the officers and invoked his Fourth Amendment rights in demanding to see a warrant, he was not obstructing. He did not physically interfere with the police, and verbally refusing to allow the officers to enter his home is not enough to make the arrest. Nor did he engage in inappropriate or disruptive conduct at the scene. And the parties dispute whether plaintiff yelled or raised his voice. In addition, plaintiff has the right to invoke his constitutional rights to let the police enter the residence or demand to review the warrant. The jury will have to decide whether plaintiff deserves to win the malicious prosecution claim on the obstructing charge. The jury will also decide whether the police had probable cause to pursue a resisting arrest charge against plaintiff.

What to do when arbitration agreements have conflicting provisions?

This is another case that interprets the Federal Arbitration Act. Courts usually defer to management on arbitration disputes, as the national policy is to respect arbitration agreements unless there was deception on management's part or the employee can find a loophole that favors her position and allows her to keep the case in court rather than arbitration, where, let's face it, cases are less likely to succeed than in court. This case has a loophole.

The case is Coinbase, Inc. v. Suski, issued by the Supreme Court on May 23. In this case, there were two arbitration agreements. The first said that an arbitrator determines all disputes under the arbitration agreement, including whether a given dispute is even arbitrable or whether it needs to be decided in court. The second agreement says that all disputes related to the first contract must be decided in California courts. The Ninth Circuit said the second contract's forum selection clause superseded the prior agreement. Here is the question posed by this case: when two such contracts exist, who decides the arbitrabilty of a contract between the parties: -- an arbitrator or the court? (Another question, not resolved by this case, is how the parties wound up signing contradictory arbitration clauses).

This is a tricky case but it yields a unanimous ruling from the Supreme Court, which is probably spending most of its time dealing with blockbuster cases that will be decided by the end of June, such as whether the President enjoys immunity from criminal prosecution. But the mundane cases still must be decided. This is not mundane if you handle cases in arbitration, however, and the Court took this case because it wanted to clarify this legal issue.

The Court starts off this way: "In prior cases, we have addressed three layers of arbitration disputes: (1) merits, (2) arbitrability, and (3) who decides arbitrability. This case involves a fourth: What happens if
parties have multiple agreements that conflict as to the third-order question of who decides arbitrability? As always, traditional contract principles apply."

The short answer is that "before either the delegation provision or the forum selection clause can be enforced, a court needs to decide what the parties have agreed to — i.e., which contract controls." This holding draws from basic contract law principles. "When we home in on the conflict between the delegation clause in the first contract and forum selection clause in the second, the question is whether the parties agreed to send the given dispute to arbitration—and, per usual, that question must be answered by a court." What it means in plain English is that the lower courts have to decide what the parties actually agreed to.

Supreme Court holds federal courts cannot outright dismiss cases subject to arbitration

The Federal Arbitration Act creates a separate system of justice to resolve disputes outside of court. As many litigators know, courts have broadly interpreted the FAA to permit arbitration of nearly every dispute imaginable, including employment discrimination cases. This case before the Supreme Court asks what happens when someone files a motion to compel arbitration after the plaintiff filed suit in federal court. Is the federal action stayed pending resolution of the arbitration, or is the case dismissed?

The case is Smith v. Spizzirri, issued in May 16. Under the FAA, when a dispute is subject to arbitration, the court “shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.” The issue before the Court: whether this section "permits a court to dismiss the case instead of issuing a stay when the dispute is subject to arbitration and a party requests a stay pending arbitration." 

The case is stayed, not dismissed, a unanimous Supreme Court says. While the Ninth Circuit reached a different conclusion, the Supreme Court does not think this is a difficult issue. Justice Sotomayor writes that the language of the FAA, the structure of the statute, and the purpose of the statute all point in the same direction:

When a federal court finds that a dispute is subject to arbitration, and a party has requested a stay of the court proceeding pending arbitration, the court does not have discretion to dismiss the suit on the basis that all claims  are subject to arbitration.

While the Court thinks is not a complicated issue, the lower federal courts were in disagreement. Of interest to Second Circuit people, that Circuit had foreshadowed the holding in this case nearly a decade ago, in Katz v. Cellco Partnership, 794 F.3d 341 (2d Cir. 2015).

Supreme Court rules in favor of federal age discrimination plaintiff

The Supreme Court in this case unanimously holds that an age discrimination plaintiff who is suing the federal government may challenge an adverse administrative determination even after missing the 60-day deadline to file a notice of appeal for review by the Court of Appeals for the Federal Circuit. Plaintiff wins in the Supreme Court because the deadline is not jurisdictional.

The case is Harrow v. Department of Defense, issued on May 16. This is one of those procedural disputes that the Supreme Court will not get tied up in knots about. For that, you'll have to wait until late June, when the Court issues its more controversial rulings. Still, this is an important case for lawyers who represent federal employees in discrimination cases.

After the Merit Systems Protection Board ruled against plaintiff's case (following a five-year wait), he was able to appeal to the U.S. Court of Appeals. But you only have 60 days from the MSPB's final order to do so. But plaintiff did not learn about the Board's final order until after the 60 days had expired. His appeal was therefore filed late. The Court of Appeals said the appeal was untimely because the notice of appeal deadline was jurisdictional, which means the deadline cannot be extended. Jurisdictional deadlines are the kiss of death in the federal system.

The Supreme Court reverses and holds the notice of appeal deadline is not jurisdictional. First, why the delay? The Supreme Court says the delay happened because during the five year wait for a ruling from the MSPB, plaintiff's email address had changed, which mean the MSPB ruling was sent to the wrong email address. Plaintiff found out about the adverse ruling by running a search on the MSPB's website. In other words, he learned about the ruling by accident.

While the deadline rule is strict and uses mandatory language, that does not mean it is jurisdictional. It is only jurisdictional if Congress says that it is. For this reason, most time-bars are not jurisdictional, including the ones with mandatory language. Nothing in the statute suggests Congress wanted a drop-dead rule on this particular deadline. Plaintiff thus wins his appeal in the Supreme Court and the case returns to the Court of Appeals for the Federal Circuit.

NY Court of Appeals says officer lacked probable cause to stop car over excessively tinted windows

Did you know that New York has a law that prohibits excessively tinted car windows? It does. Did you know that the police can pull you over for violating that law? They can. This case implicates both rules, but the New York Court of Appeals rules in favor of the driver.

The case is People v. Nektalov, issued on May 16. Under the Vehicle & Traffic Law, "[n]o person shall operate any motor vehicle upon any public highway, road[,] or street" with windows which have a light transmittance of less than 70%. An automobile stop may be lawfully effectuated where law enforcement has "probable cause that a driver has committed" a traffic violation. The officer needs probable cause to stop the car.

In this case, the detective said the windows were "excessively tinted." But window tints, by themselves, are not against the law. They are only illegal if they violate the 70% rule. Since the detective did not testify that the windows were so dark that he could not see inside the car, or that he had the training and experience to know a 70% violation when he saw one, or that he measured the tint to confirm the windows were illegal.

In the end, the detective's testimony was too conclusory to support a finding of probable cause. What it means is that the vehicle stop was illegal, and the contraband the officer allegedly found in the car (drugs) is not admissible.

Inmate wins religious discrimination appeal

The Court of Appeals had reinstated a lawsuit filed by an inmate who asserts the state prison violated the First Amendment in denying him a religious meal. The trial court granted summary judgment on this claim in favor of the State, but the Court of Appeals brings the case back, and unless the case settles, it looks like this case will proceed to trial.

The case is Brandon v. Royce, issued on May 15. Plaintiff is incarcerated at Sing Sing Correctional Facility. He celebrates an Islamic holiday called Eid al-Adha, a four-day religious celebration. The prison set up a full-day event to celebrate the holiday, which included a prayer service, a shared religious meal, fellowship activities, etc. Under the plan, inmates in keeplock would also receive a meal and in the Hospital. A second event, two days later, involved serving a religious meal to inmates in the mess hall. The second event gives rise to this case. According to plaintiff, the second event was overbooked, and the Imam assured the inmates who voluntarily withdrew from the second event to make room for other inmates. Those selfless inmates would then receive the religious meals in their cells. Plaintiff was supposed to be one of the latter inmates, as he did not attend the second event and expected a religious meal in his cell. But no meal was forthcoming. Hence, this religious discrimination lawsuit brought under the First Amendment.

Defendants argued in response that the second event was not really a religious event but a family event open to Muslim inmates and their guests, and they deny approving the Imam's offer to have meal trays sent to the inmates' cells in exchange for them withdrawing from the second event. But the Court of Appeals (Calabresi, Nathan and Nagala [D.J.]) holds that, under the summary judgment rules, we have to credit plaintiff's account and then determine whether his version of events gives rise to a claim. 

Defendants' legal argument is rejected on appeal. While the jury may find that the whole thing was an "unfortunate misunderstanding" between the Imam and plaintiff, and that there really was no official arrangement for inmates to have the meals in their cells, that is for the jury to decide. Nor do penological, or safety concerns, allow the State to win the case. Prison cases are difficult to win because the State can always argue that the rights restriction drew from safety concerns. Courts do not like to second-guess these safety concerns, but that does not mean the prison always wins. The State argued that it worried that inmates might hide food in their cells, creating theft or hygienic risks. But that defense rings hollow, since the prior religious event, also involving food, allowed inmates that eat in their cells. That kind of inconsistency can lose the case for the State. But this is all for the jury if the case proceeds to trial.

No compensatory damages under Title II of the Americans with Disabilities Act

The Court of Appeals in this case considers whether a former college student may recover damages for an Americans with Disabilities Act violation against a public college that issued no-contact orders against him following a situation that happened during freshman orientation. Plaintiff is not entitled to damages.

The case is Doherty v. Bice, issued on May 10. During freshman orientation at SUNY Purchase, plaintiff got into a dispute with someone else in the dormitory, which led to a no-contact order: plaintiff was to stay away from three students in particular. Plaintiff claims the no-contact orders constituted discrimination because of his disability. Plaintiff loses the case.

First, his challenge to the no-contact order is moot. He wanted a declaratory judgment and injunction against the order, but now that plaintiff has graduated, there is nothing to litigate on this issue. An injunction would be pointless. The college said the order is no longer in effect, and that is enough for the Court of Appeals (Sullivan, Lee and Carney) to find that this issue is moot. I guess one way around this might have been to seek an injunction at the outset of the case, when plaintiff was still a student. The Second Circuit ruling is silent as to this and my guess is there was no such application.

What about compensatory damages flowing from the no-contact order? Plaintiff says the campus found out about the order, causing him mental anguish. Here is where things get tricky. Normally, you might recover damages for this if the court determines the order violated the ADA. But not all civil rights violations will get you damages. In Cummings v. Premier Rehab Keller, 596 U.S. 212 (2022), the Supreme Court said that certain civil rights statutes, like Title IX, do not provide for compensatory damages because they were enacted pursuant to the Constitution's Spending Clause. Certain statutes, like Title VI, Title XI, the Rehabilitation Act, and the Affordable Care Act, the Supreme Court said, are silent as to such damages, and the only way we can infer that they provide for such damages is if the funding recipient is on notice that it may be on the hook for compensatory damages if it accepts federal funding and it exposes itself to liability. There is no such notice under these statutes, the Cummings Court said. This is a complex area of constitutional law, to be sure.

The reasoning in Cummings, the Court of Appeals holds, applies to this action under the ADA. While the ADA is not Spending Clause legislation, Title II of the ADA, under which plaintiff brings this action, expressly links the remedies, procedures, and rights provided by Title II to the remedies under the Rehabilitation Act. Under the ADA, then, damages are similar to those available under the Rehabilitation Act, which also prohibits disability discrimination in certain contexts. Since the Rehabilitation Act is Spending Clause legislation, no damages are available under that law. That limitation on damages applies to cases brought under Title II of the ADA. What it means for plaintiff -- and other ADA plaintiffs who are suing under Title II, which prohibits discrimination in the provision of public services and governmental activities. 

When plaintiff brought this action in 2018, no one had the benefit of the Supreme Court's ruling in Cummings, so no one anticipated this holding. On appeal, plaintiff tries to get around Cummings by arguing that he is really suing for breach of contract. But that is not asserted in the complaint. He further argues that he is entitled to nominal damages, but the complaint does not expressly seek such relief. While plaintiff argues in his reply brief that he is not required to assert nominal damages in the complaint, since that argument was raised for the first time in the reply brief, the Court of Appeals deems that argument forfeited.

Important rule for the filing of notices of appeal in federal court

The rules of appellate procedure may not be exciting, but they are important. You have to follow them. Not following them can have important consequences. Consider this case.

The case is Hampton v. McDonough, a summary order issued on May 7. Plaintiff sued the Department of Veterans Affairs for employment discrimination. The jury ruled against him and entered a verdict for the Department. Judgment entered on February 2, 2023. Plaintiff then did two things. First, he timely filed a post-trial motion on February 27, 2023. Then, on March 7, 2023, he pro se filed a notice of appeal from the judgment entered on February 2. The district court ruled on -- and rejected plaintiff's post-trial motion -- on April 28, 2023. But plaintiff never filed a notice of appeal from the April 28, 2023 order. 

Without a notice of appeal from the April 28, 2023 order, what issues are legitimately before the Court of Appeals? Was it enough for plaintiff to file a notice of appeal on March 7, 2023? Does that filing give the Second Circuit jurisdiction to rule upon the trial court's April 28, 2023 decision denying the post-trial motions? The issue is crystalized by this fact: plaintiff only wants to appeal from the April 28, 2023 order, not the verdict itself, which the only notice of appeal in this case makes reference to.

The Court of Appeals has no jurisdiction to resolve this appeal because plaintiff did not file a notice of appeal from the April 28, 2023 ruling. Under the Federal Rules of Appellate Procedure, plaintiff had to file another notice of of appeal -- or an amended notice of appeal -- after the trial court issued the April 28, 2023 decision. That's Fed. R. App. P 4(a)(4)(A), if you care enough to look it up, but you probably won't.

Plaintiff seeks equitable relief in asking the Court of Appeals (Jacobs, Menashi and Nardini) to resolve the appeal anyway, in part because he was pro se during the initial stage of the appellate process. But, the Second Circuit says, there are no equitable reasons here. The Court writes:

Although Hampton was pro se when he filed his March 7 notice of appeal of the February 2 judgment, he had retained appellate counsel as of May 6. His counsel had until late June 2023 (60 days after the entry of the April 28 order denying his post-trial motions, see Fed. R. App. P. 4(a)(1)(B)) either to file a new notice of appeal of the April 28 order or to amend his existing notice of appeal. But Hampton’s appellate counsel did neither, and counsel’s failure to comply with the Rules cannot be attributed to, or excused by, Hampton’s earlier pro se status.

This is unpleasant to read. The Court of Appeals is saying that plaintiff's appellate lawyer failed to file the notice of appeal from the April 28, 2023 order. No lawyer wants to read something like this, be it the lawyer who failed to make the proper filing, or the lawyers who are reading the decision. The moral of the story is: when in doubt, file an amended notice of appeal. It will not cost you anything if the first notice of appeal has already been validly filed.

Grainy video and eyewitness testimony gets criminal defendant a new trial

 Eyewitness testimony. Do you trust it? In recent years, the courts have looked more carefully at eyewitness accounts, noting that such accounts are often unreliable. In this case, the New York Court of Appeals chips away a little further on eyewitness testimony and holds that the criminal conviction needs to be vacated.

The case is People v. Mosley, issued on April 23. Here is what happened: police cameras in Syracuse captured a grainy video of a man running through the street firing three shots into a van. No one saw the shooter. But again, it was hard to know who was captured on the video. So the police looked around for people who could identify the guy in the video. They found Detective Kilburn, who said Mosely was the guy in the video. Kilburn testified that knew Mosley and had sat in a room with him in the past (maybe in relation to other cases). 

Kilburn accordingly told the jury that he met Mosley about seven months after the video was captured during his routine “canvassing” of the Syracuse neighborhood where the shooting occurred, had known him for about a year and a half, and that he had “interacted” with Mosley, “walked” with him, and spoken with him on a “couple” of occasions. He testified that he was familiar with Mosley’s “body language,” “body type,” and “build.” He then viewed the video and identified the shooter as Mosley. He explained that though he did not know Mosley at the time of the shooting and did not know what Mosley had been wearing that day, he based his identification on his interactions with Mosley, his “build,” the “shape of his nose,” and “on previously viewing the video and being able to zoom in and stuff.” Though he referenced Mosley’s nose, he conceded when shown screenshots of the video “the face is a blur” and there was no nose apparent at all. Kilburn also opined that Mosley’s appearance had not changed, and that Mosley “as he sits there now is the same as when I first encountered him, which is the same as he appears in that video.”

This testimony was not admissible, the Court of Appeals holds under a "totality of the circumstances" test, as (1) "the People did not establish that Kilburn was sufficiently familiar with Mosley to render his identification helpful to the jury"; and (2) "Kilburn did not connect any distinctive traits of Mosley’s to the person depicted in the surveillance photo. Before the jury, Kilburn stated that he was familiar with Mosley’s 'build,' 'body language,' 'body type,' and the 'shape of his nose.'" Admitting this testimony was not harmless error, as it probably convinced the jury that Moseley was the man in the video. The case will have to be tried again. Whether the prosecution has enough evidence without Kilburn's testimony is not clear.
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Exam proctor can be fired for reporting Regents exam shenanigans

The plaintiff was a New York City exam grader and proctor who reported to the New York City Special Commissioner of Investigation that a high school principal tried to enlist plaintiff in a scheme to alter a student's Regent's exam. Plaintiff said no to this and reported the principal. Plaintiff brings this action, claiming he was terminated in retaliation for his whistleblowing. What result?

The case is Severin v. New York City Dept. of Educ., a summary order issued on May 1. Morally, plaintiff is in the right. You want whistleblowers like this working for the city. He was probably shocked to know that his case was dismissed because his whistleblowing does not count as First Amendment speech. Sure, it is speech. But it is not free speech under the First Amendment.

The reason for this is that the Supreme Court has held that public employees are not protected if they engage in work speech, only citizen speech. Work speech is pursuant to your job duties. Citizen speech is what the rest of us do. Employees can engage in citizen speech, but it must be unrelated to their job duties, for the most part. The Supreme Court said this in Garcetti v. Ceballos (2006). In 2010, the Second Circuit said it's work speech if the statements are "part and parcel" of the plaintiff's "concerns about his ability to properly execute his duties. That framework takes a lot of speech out of the First Amendment's protection, and ever since Garcetti, free speech retaliation cases by public employees have been dismissed with regularity.

Plaintiff's case fails because reporting testing irregularities, even fraud, are part and parcel of his capacity to perform his work. He was an exam grader and test proctor, after all. While his written job duties did not compel him to report this misconduct, that does not matter. Courts look beyond the job description in ruling on cases like this. Nor does it matter that plaintiff was not overseeing the specific exam at issue in this case, the Court of Appeals (Livingston, Calabresi and Perez) says, "because the proper administration of a system-wide exam, such as the Regents exam, requires the vigilance of those responsible for the exam throughout the system."