Court of Appeals clarifies the deadline for filing a notice of appeal

This case is enough to give any litigator a heart attack. The Court of Appeals examines whether the plaintiff blew a deadline to proceed with the appeal after he filed the notice of appeal following the trial court's resolution of a motion for reconsideration.

The case is Malek v. Feigenbaum, issued on September 11. After the district court dismissed the case, plaintiff filed a motion for reconsideration. Under the rules, a timely notice for reconsideration tolls the deadline to file a notice of appeal until the motion for reconsideration is denied. The motion is timely when the plaintiff officially files the motion on the docket through the ECF system. In Weitzner v. Cynosure, Inc., 802 F.3d 307 (2d Cir. 2015), the Court of Appeals said it is not enough to simply serve the motion for reconsideration and then file it on the docket at a later time. The reason this became an issue is that some judges want attorneys to initially serve, but not file, the reconsideration motion, which would be filed after the parties have completed their briefing on the motion. The reason for this process, I believe, is that some judges do not want the motion on the docket right away because placement on the docket triggers the six-month recommended time period for judges to resolve their motions. Serving and then filing later on will delay the start of the six-month deadline. We call that "bundling" the motion.

In this case, after the trial court dismissed the case, plaintiff's counsel served the motion for reconsideration but did not file it until later on, which made the notice of appeal from the denial of the reconsideration motion untimely, depriving the Court of Appeals of jurisdiction to hear the appeal. The judge's rules cautioned attorneys about the Weitzner holding and said they should file motions on the docket right away if the delayed filing might violate the deadline for a notice of appeal.

Plaintiff argued that the Court of Appeals Walker, Menashi and Choudhury, D.J.]) was in fact able to hear the appeal based on an "equitable tolling" argument: that the deadline should be extended for equitable reasons, i.e., fairness. Weitzner said that was one way around the timeliness argument. The problem is that the Federal Rules of Appellate Procedure were amended in 2016, and the Supreme Court issued Nutraceutical Corp. v. Lambert, 586 U.S. 188 (2019). The Supreme Court ruling said that deadlines such as the one in this case may be extended if the defendant fails to object to timeliness. But the Court did not say in that case that equitable tolling was another argument for plaintiffs to invoke in extending the deadline. The Supreme Court ruling deprives plaintiff of this argument, and the notice of appeal was therefore untimely.

As for the 2016 amendment to the Federal Rules of Appellate Procedure, the relevant provision reads:

If a party files in the district court any of the following motions under the Federal Rules of Civil Procedure—and does so within the time allowed by those rules—the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion

Plaintiff argues that this provision helps his cause because it delegates control over the service and filing of the motion to the district court. But the Second Circuit does not see it that way and, following careful review of the amended rule and the Advisory Committee notes, holds that the 2016 amendment does not abrogate Weitzner. The notice of appeal in this case remains untimely and the case is over.

2d Circuit adds new gloss to FMLA statute

The Court of Appeals has placed a new gloss on the Family and Medical Leave Act, holding for the first time that an employer violates the FMLA if it discourages employees from seeking family or medical leave. Despite that holding, the plaintiff loses the appeal on statute of limitations grounds.

The case is Kemp v. Regeneron Pharmaceuticals, Inc., issued on September 9. I briefed and argued the appeal. Plaintiff needed leave to care for her disabled daughter. Her supervisor voiced concern about the amount of time that plaintiff had been away on a prior medical leave and said plaintiff needed to be in the office more often and attend meetings in-person, not by phone. Defendant gave plaintiff one day off per week for medical leave even though other workers regularly worked from home. While defendant ultimately gave plaintiff intermittent FMLA leave, management suggested that plaintiff consider a less demanding position. Defendant developed a new senior management position for plaintiff in October 2016, and she accepted it in November 2016. Plaintiff ultimately resigned in December 2016.

The Court of Appeals (Lohier, Lee and Perez) affirms the grant of summary judgment to the employer, holding as follows:

1. "We hold that an employer can violate the FMLA merely by interfering with the employee’s benefits under the FMLA without actually denying the employee’s request for those benefits. We thus agree with the United States Department of Labor as amicus curiae in this case that 'an employee is not required to demonstrate an actual denial of benefits to establish a violation of section 2615(a)(1) and that interference or restraint alone, which includes discouragement, is enough to establish such a violation.'”

2. While the record suggests that defendant might have interfered with plaintiff's FMLA rights, since she filed this lawsuit more than two years after the incident happened (the general statute of limitations under FMLA), she has to show the interference was willful. If so, then plaintiff can take advantage of the three-year statute of limitations. While "[a]n employer acts willfully under the FMLA when it knows 'or show[s] reckless disregard for the matter of whether its conduct was prohibited by the' FMLA," and plaintiff argues that defendant recklessly disregarded its obligations by limiting her remote work so that she would need to ration her FMLA leave, the Court holds that "Regeneron appears on this record to have tried to comply with rather than flout its obligations under the FMLA." Plaintiff cannot show that defendant intended to fire her if she took FMLA leave, and the FMLA "does not entitle employees to work remotely or make it unlawful for an employer to punish an employee who works remotely. Remote work may be another form of accommodation, but it is not 'leave' within the meaning of the statute." Interesting that the Court of Appeals resolves a willfulness issue on the summary judgment record. I argued this determination is for the jury, but the Court of Appeals says otherwise. I see this happen as well when a court finds that a plaintiff was not entitled to punitive damages even if the plaintiff can prove discriminatory intent.

3. Plaintiff also sued under the New York Human Rights Law, which carries a three-year statute of limitation, over associational discrimination, based on plaintiff's association with her disabled daughter. While the parties dispute the evidence on this claim, the Court of Appeals instead focuses on the statute of limitations. Plaintiff received definite notice of the adverse action in July 2016, within the three year SOL, but she did not bring the lawsuit until November 2019, after the SOL expired. Plaintiff argued that the terms of the new assignment were not clear until later that year. The Court of Appeals says otherwise, that things were clear enough in July 2016, and that filing in November 2019 was too late.

The holding on FMLA discouragement is significant, as it adds a new wrinkle to the statute. This analysis does not help plaintiff, but it helps other employees who want to take FMLA leave but were discouraged from doing so.

2d Circuit makes it more difficult to sue over Labor Law wage notice violations

Under the New York Labor Law, management must issue their employees a wage notice that describes the rate of pay for regular and overtime hours, makes reference to health care benefits, and discusses tips and meals allowance. The Labor Law provides for damages up to $10,000 if the employer does not provide the wage notice. When can the plaintiff sue over the employer's failure to provide the wage notice?

The case is Guthrie v. Rainbow Fencing Inc., issued on August 30. The State Legislature adopted the wage notice requirement in 2010, and since that time, the district courts have grappled with the issue of when an employee can sue over the failure to provide these notices. The Court of Appeals definitively resolves that issue, making it difficult for employees to bring a lawsuit unless the can show the employer's dereliction caused the employee to suffer real damages.

The Second Circuit (Menashi, Nathan and Kahn) frames this as a standing case, governed by the constitutional requirement that each plaintiff must have an actual case-or-controversy. In 2022, the Second Circuit said, “a plaintiff has standing to bring a claim for monetary damages following a statutory violation only when he can show a current or past harm beyond the statutory violation itself.” 

Drawing from the body of district court case law on this issue, the Circuit notes that some trial judges hold that the statutory violation allows plaintiffs to sue because the Labor Law "provides not only an avenue for employees to recover wages owed them by their employer but also a means to empower them—namely, through the provision of written notices with respect to employers’ legal obligations—to advocate for themselves.”

That is all well and good, the Court of Appeals says, but it adopts the following rule: 

a plaintiff must show some causal connection between the lack of accurate notices and the downstream harm. The legislature may have intended to empower employees to advocate for themselves, but unless the plaintiff-employee can show that he or she would have undertaken such advocacy and plausibly would have avoided some actual harm or obtained some actual benefit if accurate notices had been provided, the plaintiff-employee has not established a concrete injury-in-fact sufficient to confer standing to seek statutory damages under § 195.

Inmate assault case cannot be litigated in court

In this case, the plaintiff-inmate alleges that, while in federal custody, the guards did not protect him from another inmate, who assaulted him. Plaintiff alleges that, when he arrived at this federal facility, he told authorities that he had been assaulted at other federal correctional facilities, and that several inmates had threatened to assault him because he was a convicted sex offender. The case is dismissed on appeal because there is no such claim available to plaintiff, at least not in court.

The case is Ballard v. Dutton, a summary order issued on September 4. Had all this happened in the state prison system, there would be a claim under state law, pursuant to Section 1983, which allows you to sue state and local officials for constitutional violations. But there is no federal counterpart to Section 1983 other than the Bivens claim, created by the Supreme Court in 1971 to permit damages claims if there is no other way for the civil rights victim to obtain any redress. Permissible Bivens claims are rare, and the Supreme Court and the federal courts routinely hold that any given Bivens claim must be dismissed. 

The trial court held that plaintiff could pursue this claim. The ruling was in error, the Second Circuit (Sack, Lohier and Kahn) holds.

The Supreme Court has expressly recognized only three contexts in which a Bivens remedy is available: unreasonable search and seizure by federal officials in violation of the Fourth Amendment, Bivens, 403 U.S. 388; gender-based employment discrimination by a United States Congressman in violation of the Fifth Amendment, Davis v. Passman, 442 U.S. 228 (1979); and federal prison officials’ deliberate indifference to an inmate’s serious medical needs in violation of the Eighth Amendment, Carlson v. Green, 446 U.S. 14 (1980).

Nor will courts recognize any Bivens claims that "present[] a new Bivens context." The Supreme Court will not permit such claims. A sobering summary of the law. In theory, someone could submit legislation to create a federal counterpart to Section 1983, but in this political climate, that bill would be moping around the Capitol like the bill in Schoolhouse Rock.

The Second Circuit reasons it this way: "While we are sympathetic to Ballard’s claim, we conclude that Congress is better equipped to create a damages remedy here. Ballard’s Eighth Amendment failure-to-protect claim is meaningfully different from the Eighth Amendment claim in Carlson and therefore 'presents a new Bivens context.'” 

What requires dismissal is that Congress had already provided a grievance process for inmates like plaintiff who can lodge their complaints with prison management. That process is found in the Prison Litigation Reform Act of 1995. "This grievance process, which did not exist at the time Carlson was decided, is the type of 'alternative remedial structure[]' that prevents us from fashioning a Bivens cause of action here." The PLRA does not provide remedies that you might obtain in federal court, but that is no basis to rule in favor of a Bivens plaintiff. Nor may the grievance process under the PLRA secure plaintiff any relief. Since it may win the plaintiff some relief in theory, that is enough to dismiss this case.