Federal abstention is no romp in the park

A slew of rules guide the relationship between the state and federal courts, specifically, when you can sue in federal court on state law matters, and when you can sue in federal court on issues that remain under review in state court. We call this the "abstention" doctrine, created by the courts and not the Constitution. These are not the most exciting rules in the world, but they exist to ensure that the federal courts are not stepping on the state courts.

The case is Gristina v. Merchan, issued on March 12. This case was argued in January 2023, demonstrating the complicated nature of federal abstention. Having handled abstention issues, I can tell you that abstention is not a romp in the park. Very few cases take more than two years to decide, but one reason for this is the lengthy dissent that challenges the majority's reasoning.

Plaintiff was convicted in state court in 2012 on prostitution-related offenses. Nearly 10 years after she pleaded guilty, she wanted the state court to unseal several transcripts and other materials related to her prosecution. She said the Sixth Amendment allowed her to make such a motion. The state court, for the most part, ruled against plaintiff, stating that some transcripts were already available (but should not have been made available in the first instance) and others had to remain under seal. 

Plaintiff then challenged the criminal court's ruling in an Article 78 proceeding, which is unique to state practice and allows for an expedited challenge to arbitrary and capricious rulings. The Article 78 challenge was denied, but plaintiff took an appeal to the Appellate Division and the New York State Court of Appeals. While those appeals were pending, however, she sued the criminal court judge in federal court, seeking an order that would release the transcripts and related materials. So plaintiff actually had simultaneous state and federal proceedings.

In the end, plaintiff lost her state appeals. But the federal case was dismissed as well, under the so-called Younger-abstention, named after a U.S. Supreme Court case that prohibits federal court interference with state court proceedings. Younger v. Harris was decided in 1971. While Younger is more than 50 years old, courts are still applying it in new situations. This is one such situation.

First, the Second Circuit (Lee and Merriam, with Menashi in dissent) says that the Article 78 petition qualifies as a state court proceeding under the Younger doctrine. This is so because the Article 78 deals with the state court's ability to govern itself. 

The other main issue is whether Younger abstention warrants dismissal of the federal case even if the state proceeding is over by the time the federal judge rules on the federal case. The Second Circuit holds that "our Court's case law . . . clearly indicates that the Younger abstention issue is evaluated at the time of filing, and it is not continuously re-evaluated throughout the pendency of the proceeding." The Court of Appeals stands behind these prior cases and says they serve to "create an incentive for plaintiffs to file duplicative proceedings in federal court before the end of their state court proceedings, hoping that by the time the district or circuit court ruled on the merits, the state proceedings would have ended." That would undermine one of the policies in Younger: to avoid duplicative state and federal court proceedings.

Administrative Law Judge is legally denied promotion over mask-related argument on public train

The plaintiff was an administrative law judge for the Workers' Compensation Board. He sued the WCB under the First Amendment after it rescinded his promotion for Senior Administrative Law Judge. The promotion rescission took place after the WCB saw a TikTok video depicting plaintiff of arguing with a New Jersey Transit conductor about wearing a mask on the train. Does plaintiff have a case?

The case is Cestaro v. Rodriguez, a summary order issued on March 12. Public employees have the right to free speech, but those rights are limited because the government has an interest in ensuring that the public workplace operates efficiently. The government can also win the case if it proves it would have disciplined the plaintiff for other reasons, separate and apart from the speech. The latter concern draws from the Supreme Court's Mt. Healthy ruling, issued in 1977.

Plaintiff says the speech was his objection to wearing a mask on the train. But the Court of Appeals (Park, Chin and Merriam) finds that "Defendants were entitled to summary judgment because they established as a matter of law that they revoked Cestaro’s promotion based on his unprotected conduct, rather than on any protected speech." One judge at oral argument noted the plaintiff's behavior was "rude and belligerent." Plaintiff's counsel noted that, during the argument, plaintiff was not wearing a suit and tie but "shorts and flip-flops." The mask requirements during COVID certainly raised passions, and generally, disagreement with public safety mandates might raise a matter of public concern. You can imagine what this argument looked and sounded like to the other passengers on the train, or to the people who viewed the argument on TikTok.

But it was not plaintiff's objection to the mask mandate that cost him the promotion. Defendants proved on the summary judgment motion that plaintiff's conduct "was a poor way to treat workers," he was not "fair to the transit staff," and he was "unprofessional and aggressive" towards the conductor. Defendants did not discuss the constitutionality of masking requirements on public transit, or plaintiff's views on that subject. Instead, the record shows that defendants expressed concern about "having a supervisor at the state who behaves in this manner, because he cannot be trusted to be fair with the staff or the public."

First Department dismisses high-profile SLAPP suit

A few years ago, New York amended its law prohibiting strategic lawsuits against public participation. These are known as SLAPP suits, filed against people who publicly disparage or criticize individuals in a public form. This lawsuit was filed by a wealthy businessman against a woman who publicly accused him of sexual abuse. The First Department says this is a SLAPP suit prohibited under New York law, and the case is dismissed.

The case is Black v. Gunieva, issued on March 6. In the interests of full disclosure, I represent Ganieva in a separate action against Black seeking to nullify a release that barred her from suing Black for sex abuse and defamation. That case was dismissed and the First Department affirmed that dismissal over a strong dissent. Gunieva is now trying to certify that case for review by the New York Court of Appeals. That lawsuit is the reason Black is suing Ganieva for malicious prosecution.

State Supreme Court summarizes the facts of the SLAPP suit this way:

In sum, plaintiff and Ganieva had a years-long intimate relationship, which ended with Ganieva’s signing of a non-disclosure agreement (NDA) in exchange for the sum of at least $9.5 million. In 2021, after years of silence, Ganieva spoke publicly about her relationship with plaintiff, thereby violating the NDA and causing plaintiff to cease making payments to her thereunder. In response, Ganieva sued plaintiff, with Wigdor as her legal counsel and the law firm that filed the lawsuit.

I would note that, apart from the "intimate relationship," Ganieva asserts the relationship was abusive. After Ganieva sued Black (the case in which I am involved), Black filed this malicious prosecution lawsuit, claiming Ganieva's lawsuit was meritless and barred by the NDA and was intended solely to harass Black. State Supreme Court allowed this lawsuit to proceed, but the First Department holds that Black's lawsuit is a SLAPP suit. "The claim, rooted in allegations involving defendants’ commencement and prosecution of a legal action, is a claim based upon communications made in a public forum and conduct in furtherance of the exercise of the constitutional rights of free speech and petition." The recently-amended SLAPP law is Civil Rights Law sec. 76-a. (Previously, the SLAPP law had little teeth).

Relatedly, under the SLAPP statute (see CPLR 3211(g)(1), the malicious prosecution claim is properly dismissed because he has failed to show the case has a "substantial basis," which means “'such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact', which is the same 'substantial evidence' standard that 'has been equated with the ordinary summary judgment standard,' and it requires the submission of evidence such as an affidavit rather than reliance on the mere allegations in the complaint." Since Black did not submit evidence showing that his claim against Gunieva had merit, he cannot show his case has a "substantial basis."


 

 

No attorneys' fees despite so-ordered civil rights stipulation in plaintiff's favor

The limits of the fee-shifting statute in civil rights cases are on display here. Plaintiff got the relief he wanted in this disability discrimination claim against Stony Brook University, but he does not recover his attorneys' fees, which I am sure were sizeable.

The case is Sampson v. Stony Brook University, a summary order issued on March 4. Plaintiff was a medical student at Stony Brook. In separate litigation, he won a injunction against the outside testing agency, NBME, entitling him to testing accommodations. But that injunction was vacated on appeal because plaintiff's alleged inability to progress in medical school  depended in part on whether he could obtain an extension of his graduation date from Stony Brook. In the litigation against Stony Brook, the parties then stipulated that plaintiff would have until August 12, 2024 to complete his medical education. The stipulation was memorialized in a court order. Plaintiff eventually passed the medical exam, prompting the district court to dismiss the case as moot.

The Second Circuit (Lynch, Robinson and Nathan) holds that plaintiff will recover no attorneys' fees even though he got the relief he wanted. Why? Because the court-ordered stipulation did not have the requisite "judicial imprimatur" required under Supreme Court cases interpreting the fee-shifting statutes. First, as the Supreme Court just recently stated in Lackey v. Stinnie, 2025 WL 594737 (2025), "a plaintiff who successfully secures interim relief in the form of a preliminary injunction, and then ultimately achieves the desired result due to extrinsic factors that moot the case, may not be a prevailing party." The other central case on this issue is Buckhannon v, West Virginia, 532 U.S. 598 (2001), which holds that a case mooted out by defendant by giving the plaintiff the relief he requested does not render the plaintiff a prevailing party under the fee-shifting statutes.

While settlement agreements attained through a consent decree, a stipulation memorialized in a court order is not enough to turn this agreement into a consent decree enforceable by a court. The Second Circuit has already held that a so-ordered stipulation of dismissal is not the same as a judgment or consent decree. Since the so-ordered stipulation neither retained jurisdiction with the court to enforce the underlying settlement, and the stipulation was not incorporated into the order of dismissal, plaintiff cannot recover his attorneys' fees.

New York's measles vaccination law does not violate the Free Exercise Clause

Apart from the COVID-19 issue, the other vaccine challenge these days involves the measles. The measles issue arise first, in 2019, when New York eliminated the religious exception to the policy that schoolchildren must take the measles vaccine. Litigation has been brewing ever since. This case upholds the state-wide elimination of the religious exemption.

The case is Miller v. McDonald, issued on March 3. The plaintiffs are three Amish community schools that were fined by New York for noncompliance with the immunization law. They want a religious exemption on the basis that the measles vaccination violates their religious principles, and their religion also requires education in a "group setting" and not home-schooling, which many parents have opted for to avoid the vaccine.

The vaccine law adopted in 2019 will be struck down unless it is a law of "general applicability," that is, if it applies to everyone and does not single out any particular religion. Plaintiffs, of course, argue that the 2019 law violates the Free Exercise Clause because it is not neutral. They argue that the language of the 2019 amendment, and comments from legislators who voted on the amendment, demonstrate religious hostility. 

 

The Court of Appeals (Cabranes, Wesley and Lee) says, the law is neutral on its face and does not target or affirmatively prohibit any religious practices; it applies to all schoolchildren in New York who do not qualify for the medical exemption. 

Nor does the legislative history reflect any religious bias. While plaintiff identifies some hostile comments from a few legislators, they have not alleged facts showing those remarks infected "a sizable portion of legislators' votes or otherwise influenced the law's enactment." One case from the Appellate Division holds that statement from three percent of the legislature did not "taint to actions of the whole" in enacting this provision. That case hurts the plaintiffs' case. Another case on this issue involving measles vaccines, M.A. v. Rockland County, 53 F.4th 29 (2d Cir. 2022), held that religious hostility from two governmental officials responsible for issuing a challenged emergency declaration on measles was enough to find liability against the county. But this case is not like the Rockland County case because we are talking about the actions of the State Legislature, not a smaller governmental body like county government.

Supreme Court turns away First Amendment challenge to university bias response teams

One of these days, the Supreme Court is going to decide whether public colleges and universities violate the First Amendment in maintaining bias response teams that investigate complaints that other students have engaged in offensive speech or conduct motivated by bias or prejudice and meant to intimidate, demean, mock or degrade an individual or group's identifies. That day has not arrived, but two Justices think this issue is ripe for Supreme Court review.

The case Speech First, Inc. v. Whitten (scroll down to the end).The Supreme Court denied certiorari on March 3. Justices Alito and Thomas wanted to take the case, and Thomas wrote a dissent from the denial of certiorari. It takes four Justices to hear the case. 

Under the policy at Indiana University, a bias complaint is reviewed by the bias response team which cannot impose discipline or conduct formal investigations but can assess whether anyone violated university policy or any criminal laws. The team an refer the matter to other campus offices with disciplinary power. The argument is that these policies violate the First Amendment because they might chill constitutionally-protected speech on campus. 

The plaintiffs are conservative students who hold "unpopular" views about gender identify, the Israeli-Palestine conflict, immigration, and affirmative action. The Seventh Circuit held the plaintiffs lack standing to sue because they have not shown the bias response policies will be enforced against them or that any student has faced an objectively reasonable chilling effect on their speech. But, Justice Thomas notes, three Circuits have held otherwise and fond that bias response policies "objectively chill" student speech, including the Fifth, Sixth and Eleventh Circuits. Circuit splits usually wind up in the Supreme Court, 

Justice Thomas believes the Seventh Circuit most likely got this issue wrong because 

It is well settled that plaintiffs may establish standing based on “the deterrent, or ‘chilling,’
effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights.” And, in assessing whether an “objective chill” exists in a particular case, courts must “look through forms to the substance” of the government’s “informal sanctions." The Seventh Circuit’s emphasis on the formal limits of a bias response team’s power seems hard to square with this Court’s framework.

He adds, "Given the number of schools with bias response teams, this Court eventually will need to resolve the split over a student’s right to challenge such programs. The Court’s refusal to intervene now leaves students subject to a 'patchwork of First Amendment rights,' with a student’s ability to challenge his university’s bias response policies varying depending on accidents of geography."

I guess the bias response teams fall under the DEI category. DEI is in the news these days because the President has objected to them. I wonder if the administration will threaten to withhold funds from colleges and universities that maintain such anti-bias rules and procedures.

 

Employers are not required to honor reasonable accommodations that violate state law

This is another COVID-19 reasonable accommodation case. This plaintiff did not want to take the vaccine, claiming it violated her religious convictions. She also objected to her employer's alternative to the vaccine: routine COVID testing. Plaintiff objected to that on religious grounds, also. Plaintiff's proposed accommodation would have her working remotely. Plaintiff loses.

The case is Russo v. Patchogue-Medford Sch. Dist., issued on February 26. The pandemic threw everyone for a loop. School teachers like plaintiff were teaching remotely for a while, but the districts eventually re-opened the building. That's when the accommodation requests started. In this case, the district said the accommodation -- continued remote working -- would be an undue hardship because it would violate a New York State regulation that requires routine COVID testing. The other undue hardship is this: the district requires teachers like plaintiff to be present in the building as an essential function of her employment. The district would incur significant expenses were the plaintiff to work remotely, requiring the district to pay someone to incur plaintiff's in-person duties.

The district court granted the school district's motion for summary judgment, and the Court of Appeals affirms. The Second Circuit has previously held that it's an undue hardship if the proposed accommodation would violate federal regulations. This case extends that logic to accommodation requests that would violate state law. The added district expense to pay plaintiff's in-person replacement is an undue hardship.

The other claim involved the Genetic Information Nondiscrimination Act. This may be the first published Second Circuit case involving GINA. Plaintiff said the school district violated GINA in soliciting and using her genetic information by inquiring about her and her child's vaccination histories during the religious exemption signatures. The Court of Appeals (Walker, Leval and Bianco) holds there is no GINA claim "because her family member's vaccine history does not constitute genetic information under the statute." Under the statute, "genetic information" involves an individual's genetic tests, the genetic tests of an individual's family members, and the manifestation of a disease or disorder in an individual's family members.

Supreme Court scales back civil rights attorneys' fees statute

This decision will be of great interest to civil rights lawyers. It will also be of interest to the municipalities that defend civil rights cases. The Supreme Court holds that a plaintiff who wins a preliminary injunction under Section 1983 is not a prevailing party for purposes of recovering an attorneys' fees award. 

The case is Lackey v. Stinnie, issued on February 25. Under 42 U.S.C. 1988, "prevailing parties" in civil rights cases, usually brought under 42 U.S.C. 1983 and the employment discrimination statutes, will recover attorneys' fees from the losing side. The statute provides for this to encourage lawyers to bring meritorious civil rights cases even if their clients have little if any money to finance these cases. Normally, the prevailing party recovers fees following a favorable jury verdict. But over the years, nearly all the federal circuits have said you can recover attorneys' fees even if you win a preliminary injunction, which is an early victory in the case because the judge thinks you have a strong case and the plaintiff will suffer irreparable harm without an injunction. The order granting the preliminary injunction would entitle you to fees. Those cases, including those in the Second Circuit, are now all overruled.

In this case, the plaintiffs won a preliminary injunction challenging a Department of Motor Vehicles rule allowing the State of Virginia to issue certain fines against people with suspended drivers' licenses. They won the case under the Due Process Clause. The Fourth Circuit said plaintiffs were prevailing parties and their lawyers could recover attorneys' fees for their efforts. The state took the case to the Supreme Court.

The fee-shifting statute does not squarely address this particular issue. Lawyers know, but the general public does not know, that much of constitutional law and even statutory analysis is judge-made. Judges will use precedent and logic to reach their conclusions, but any case that reaches the Supreme Court can go either way. This is one of those cases. As I mentioned, nearly all the Circuit Courts have sided with the plaintiffs on whether preliminary injunctions entitle you to "prevailing party" attorneys' fees. But in many instances, the Supreme Court does not defer to the 13 Circuit Courts, and the Supreme Court rarely employs the logic from lower courts to justify its conclusions. The Supreme Court usually decides cases from scratch and draws from whatever Supreme Court precedent that might speak to the issue, even if those cases do so on the periphery.

In this case, the Supreme Court, by a 7-2 vote, reverses the Fourth Circuit and interprets the phase "prevailing parties" to mean you have to prevail in the lawsuit overall, and not at the injunction stage, to recover attorneys' fees. The analysis draws from the statutory construction: what does "prevailing party" mean? The Chief Justice says that dictionary definitions in place when the fee-shifting statute was enacted in 1976 suggest that "prevail" means winning the case overall, not a huge win early in the case that produces a court order favoring the plaintiff on the merits. "Temporary success" early in the case is not enough to qualify as a "prevailing party."

This ruling also follows from prior Supreme Court rulings in attorneys' fees cases. In 2001, the Court held in Buckhannon v. West Virginia, that you are not a prevailing party if your lawsuit compels the government to change the challenged policy in your favor before the court has a chance to rule in the case. These were called "catalyst fees." You don't hear the phrase "catalyst fees" anymore because the Court in a 5-4 vote, said you need a court order to qualify for attorneys' fees, and if the government moots out the case by changing the challenged policy, there is no court order or judgment and the case withers away without fees for the lawyers who did all the work that led to the changed policy. Buckhannon also rejected the views of nearly all the Circuit Courts that held that Section 1988 recognizes catalyst fees. 

Justices Jackson and Sotomayor dissent. The third liberal on the Court, Kagan, voted with the six conservatives. The dissenters interpret the contemporary dictionary definitions of "prevailing party" quite differently from the majority. The dissenting opinion says the majority is missing the point of the fee-shifting statutes: to allow plaintiffs access to the courthouse by allowing their lawyers to recover attorneys' fees when they win the case and/or achieve a great result for their clients. When Justice Jackson joined the Court, people were excited that someone with her credentials and background would have a voice on the Court for the first time. I said that it would mostly mean that we would be reading good dissents like this one.

I wonder how this case will affect civil rights litigation in the future. Bear in mind that a permanent injunction will entitle you to fees, even if a preliminary injunction will not. Plaintiffs' lawyers, especially non-profits who bring these cases without charge, rely on Section 1988 to pay the bills when they win the case. Injunctions are sought with the understanding that the court will award attorneys' fees when the plaintiffs recover an early injunction due to the strength of the case. Justice Jackson cites an amicus brief that says that "losing the ability to recoup fees for securing interim relief will jeopardize their missions." She adds that "there is thus every reason to believe that the net result of today's decision will be less civil rights enforcement in the long run."

Court says conservative group may proceed with lawsuit challenging Pfizer's student fellowship program

The Court of Appeals has withdrawn a prior ruling involving a conservative group's challenge to a corporate fellowship intended to increase minority representation at Pfizer, the pharmaceutical company. In the first ruling, the Second Circuit held that the group, Do No Harm, could not sue because it lacked standing to seek a preliminary injunction in failing to identify any of the students who wanted to benefit from the fellowship. This time around, on a motion for reconsideration, the Court of Appeals says Do No Harm can bring the suit after all.

The case is Do No Harm v. Pfizer, issued on January 10. The original ruling issued in March 2024. Discussion on the original ruling is at this link.  The plaintiff organization claims the Pfizer program benefits Black, Latino, and Native American students at the expense of whites and Asian-Americans in violation of the civil rights laws. In support of its case, the plaintiff group filed anonymous declarations from two of its members who sought the fellowship. They claimed they met all the eligibility requirements for the fellowship, i.e., they were college students with good grades and took part in campus life. 

While Do No Harm did not have standing to seek a preliminary injunction against the program (on the basis that it did not identify the aggrieved students), that does not mean the case had to be dismissed at the district court level. That's the holding of the Court of Appeals (Jacobs, Robinson and Wesley in dissent), which reinstates the lawsuit. In seeking a preliminary injunction, the plaintiff's burden to establish standing is higher than their burden to prove standing at the outset of the lawsuit, when the plaintiffs are not seeking injunctive relief and are willing to litigate their claims the old-fashioned way, through depositions and other discovery. 

The D.C. Circuit Court of Appeals has already held that an inability to establish standing in seeking a preliminary injunction does not mean the plaintiff lacks standing to pursue the case. But if the lack of standing in seeking an injunction demonstrates that the plaintiff cannot prove standing going forward on the case, then the case may be dismissed. This is highly nuanced, as you can see. Here is the basis for the distinction:

if the failure to establish standing arises from the insufficiency of the plaintiff’s evidence of standing, and that insufficiency may be remediable, dismissal of a plaintiff’s claims because the plaintiff has failed to muster sufficient evidence to  establish standing for a preliminary injunction would be premature. A determination that the plaintiff hasn’t presented enough evidence to establish standing in the preliminary injunction context doesn’t mean the plaintiff won’t be able to do so at a later stage in the proceeding. The most obvious circumstance in which this may arise is when the plaintiff may require jurisdictional discovery to get the evidence needed to support the plaintiff’s standing.

However, the Court of Appeals states:

But even in cases where the plaintiff’s failure to muster sufficient evidence to establish standing to secure a preliminary injunction arises from the plaintiff’s failure to proffer sufficient evidence to establish standing, the consequence of that failure is that the plaintiff isn’t entitled to a preliminary injunction. We see nothing in the law or rules of procedure that requires plaintiffs who opt to seek a preliminary injunction on incomplete evidence to risk outright dismissal, even if their allegations are otherwise sufficient to establish standing at the pleading stage.

The district court adopted the wrong rule in dismissing the case outright. The case returns to the district court to determine if the plaintiff has sufficiently pled standing to bring this lawsuit.

 

 

 

 

This case is for federal practice junkies only

This case reviews the federal statute that allows you to bring state law claims in federal court. For a variety of reasons, many plaintiff's lawyers are more comfortable in federal court than in state court. Not this case. Plaintiff wanted the case to be handled in state court. 

The key statute in this area is 28 U.S.C. 1367. The issue here: what happens if the plaintiff sues in state court under state and federal law, the case is removed to federal court (because of the federal claim), and the plaintiff then drops the federal claim in order to return to state court?

The case is Royal Canin USA v. Wullschleger, issued by the Supreme Court on January 15. This case alleges the defendant engaged in deceptive marketing practices. The product is dog food. The lawsuit asserted claims under state and federal law. Since plaintiff filed this case in state court, defendant successfully removed the case to federal court. But plaintiff did not want her case in federal court; she wanted to return to state court, for whatever reason. In fact, plaintiff wants so badly to litigate the case in federal court that she is willing to litigate the case all the way to the Supreme Court. Had plaintiff been OK with federal court, the case might have been decided by now.

This is what plaintiff did: she amended the complaint to remove all mention of federal law. She argued that this maneuver would allow the case to return to state court. At least, that's the argument. After all, as the Court says, federal courts "are courts of limited jurisdiction." You can file in federal court if you assert a federal claim. You can also file in federal court if the parties are from different states and the amount in controversy exceeds $75,000. If the case asserts claims under state and federal law, the federal court can decide issues under state law, unless the issue is so esoteric that the federal court does not feel comfortable resolving state law issues without giving the state judges a chance to resolve these issues first. 

The federal statute on this issue, 28 U.S.C. 1367, was enacted in 1990, and it has its complexities, but it does not speak to the issue in this case. The Supreme Court holds without dissent that once the federal claim is dropped from the lawsuit, the case has to return to state court. 

You may think this is a simple issue, but simple issues do not reach the Supreme Court. The certiorari petition says that the Eighth Circuit's decision in favor of remanding this case to state court was an outlier, and that the other circuits had gone the other way on this issue. The petition states:

Only the Eighth Circuit has concluded that, in a properly removed action, the district court must look to an amended complaint to determine whether it possesses federal-question subject-matter jurisdiction.  Every other circuit has come to the opposite conclusion; namely that once an action is removed to federal court, the pleading on which removal was predicated is the source of the district court’s subject-matter jurisdiction, notwithstanding any subsequent amendment.

This is the rare case where the Supreme Court sides with the reasoning advanced by an outlier Circuit in resolving a legal issue.
 

New York's Chief Justice attacks criminal conviction of mentally-ill man

This criminal case is notable not for its holding but its dissenting opinion, where the Chief Judge of the State of New York wonders why a mentally-ill defendant was convicted of burglarizing a CVS store in Manhattan. The dissent (to which only Judge Halligan signed on) offers a rare sociological attack on the criminal justice system.

The case is People v. Williams, issued on February 18. Defendant was charged with burglary in the third degree based on his trespass on the premises of a CVS with intent to steal Red Bull energy drinks The majority holds the jury could have found that defendant knew his entry into the store was unlawful based on the trespass notice that defendant had signed, prohibiting his entry into any CVS location. What about the intent element? Surveillance footage depicted the defendant outside the CVS acting in a furtive manner. The store manager testified that defendant slammed the Red Bull items down and stormed out when the manager demanded that defendant turn over the Red Bull. Defendant later admitted to the police that he "fucked up," he "did it," and "all I took was a Red Bull."

Now for the dissent. This may seem like a routine case, but the Chief starts out with this:

Two cans of Red Bull cost about $6. Seven years of incarceration costs anywhere between $800,000 and $4 million, depending on the location within New York State. For attempting to take two cans of Red Bull from a CVS, Raymond Williams was convicted of third-degree burglary, a felony, and sentenced to three and a half to seven years in prison. Mr. Williams was a perpetual petty shoplifter with substance abuse and mental health problems, so perhaps this result makes sense to someone. It does not to me.

The Chief adds:

Mr. Williams's story is not uncommon. For much of his life, he has struggled with homelessness and drug addiction. Both factors disproportionately increase the risk of being caught up in the criminal justice system and sentenced to spend time in prison. Mr. Williams had previously been found guilty of many minor shoplifting offenses, including from other CVS stores. His problems were addressed by sentences of incarceration and probation, not treatment.

Mr. Williams's prosecution occurred in 2017. His appeal comes to us 8 years later, and the People's brief in our Court explains that what happened to Mr. Williams back then is not what would happen now:

"For retail-theft cases where a defendant does not present a serious public safety risk, the Office now typically pursues multiple alternatives to incarceration. Defendants charged with a retail-theft felony are frequently diverted to the problem-solving courts under CPL Article 216 or similar provisions, where, in place of incarceration, they can receive programming to address underlying problems of substance abuse, mental health, and more. Defendants charged with a retail-theft misdemeanor are also routinely directed to an array of behavioral health court parts and programs, including the Midtown Community Justice Center, Manhattan Justice Opportunities, and others."

Apart from the psychiatric and fiscal wisdom of charging and convicting defendant, the Chief states that the jury could not have reasonably convicted him of intending to steal the two Red Bulls. The surveillance video shows defendant entering the CVS with a bag. He took two cans from the beverage cooler but did not exit the store with them. Instead, he headed to the front of the store. Nor did he put the cans in his bag or pockets. A CVS recognized defendant as someone subject to a trespass notice, and when a manager confronted defendant, he handed over the Red Bulls and left the store.

This evidence, Judge Wilson states, is not enough to convict defendant. Any suggestion that defendant entered the store with intent to steal the Red Bulls is conjecture. Nor did defendant's statements to the police a month later ("I fucked up") support a finding of guilt, as these "admissions" are taken out of context. He did not actually admit to taking any Red Bulls from the CVS.

The Chief returns to the broader social implications of a conviction like this. He writes:

Imprisoning someone for attempting to walk off with two cans of Red Bull—even a recidivist Red Bull shoplifter—for three and a half to seven years is very hard to justify to the public. Belatedly, one of the jurors in Mr. Williams case recognized that, and also explained that the jury convicted Mr. Williams based not on the evidence of his conduct that day, but on the trespass notice from a prior incident, thus underscoring the point that the evidence offered as proof of Mr. Williams's intent to steal was insufficient to persuade the jury. At trial, the court instructed the jury that the trespass notice could not be used to show that Mr. Williams intended to steal or had a propensity to steal, but could be used by the jury solely to establish that Mr. Williams's entry to the CVS was unlawful, which is a necessary element of burglary.

A juror wrote to the trial court about the case, stating that defendant did not deserve to be imprisoned for this offense. The juror adds that she tried to persuade the other jurors that defendant was innocent. While the juror herself voted to convict, she wrote, "I now have tremendous doubt about that decision, but I recognize that it's too late. I feel deep remorse[.]

The Chief then says:

A 2020 survey of more than 1000 Americans, conducted by the Associated Press-NORC Center for Public Affairs Research, showed that more than two-thirds of those surveyed believed the U.S. criminal justice system (including the police, prosecutors, defense counsel, courts and prisons) either needed reforms or a complete overhaul. More than four times as many thought a complete overhaul was required than those who thought no changes were needed. Those findings are in line with many other studies conducted over the past decade. A majority of Americans also support treating addiction as a health problem rather than a criminal problem, and support treatment over incarceration for people with drug addiction and mental illness.

Mr. Williams's case illustrates so many of the reasons for that lack of trust and confidence. Persistent recidivist shoplifting is a significant problem. It is constantly frustrating for shoppers, who have to wait to have displays unlocked, and for retailers, who lose countless items to theft. But charging the attempted theft of two Red Bulls as felony burglary reveals a different persistent problem: the prosecutorial overcharging of petty offenses. As explained by the current Manhattan District Attorney's office in its brief in this appeal, treating petty offenders with mental health and/or substance abuse problems as dangerous criminals is unhelpful, is a huge waste of taxpayer dollars that could be better spent on addressing those problems instead of incarceration, and is not now the paradigm used by that office.

 He adds, 

Punishing Mr. Williams for offenses growing out of his addiction and poverty is neither necessary nor fair—not just unnecessary and unfair to Mr. Williams, but to the community at large. People living with mental illness or addiction in New York are much more likely to encounter the criminal justice system—even though community-based treatment is cheaper and more effective than services in prison. Unhoused people are also much more likely—up to 11 times more likely—to be arrested than those who are housed^. But incarceration does nothing to address their health and housing needs. Misdemeanor convictions for offenses such as petty larceny reduce earning potential and deepen inequality. The resources we use to incarcerate those populations could be better spent on housing, job training and educational support. "Let's just be honest: there's nothing compassionate about letting people suffer without treatment on the streets."

 

 

Second Circuit vacates whistleblower verdict due to bad jury charge

The Court of Appeals vacates a $903,000 whistleblower verdict on the basis that the trial court did not properly charge the jury about the plaintiff's burden of proof. We have a strong dissent.

The case is Murray v. UBS Securities, LLC, issued on February 10. Plaintiff was fired after he reported to a supervisor that coworkers had violated Securities and Exchange Commission regulations. The case went to trial, plaintiff won, the Second Circuit took the verdict away, and the case went to the Supreme Court, which held that, contrary to the Second Circuit's analysis, plaintiff did not have to prove the employer acted with "retaliatory intent" because intent or "animus" is not an element of any retaliation claim under the Sarbanes-Oxley Act of 2002. On remand from the Supreme Court, the Second Circuit again erases the verdict and remands the case for new trial on the basis of defendant's other jury charge objections, which no appellate court has ruled upon until now.

Under the statute, the employer is liable if its whistleblowing was a contributing factor to the unfavorable personnel action, i.e., the plaintiff's termination. The trial court charged the jury as follows: a contributing factor is one that "tended to affect in any way UBS's decision to terminate plaintiff." The Court of Appeals, by a 2-1 vote, says this instruction was incorrect and a new trial is in order.

First, the Court holds, "tended in any way to affect" the decision to fire the plaintiff is wrong because the jury has to be told that the whistleblowing is at least "partly responsible for" the adverse action. But, the Court holds, this charge is bad because "[w]histleblowing may 'tend to affect' termination generally, without being partly responsible for a particular plaintiff's termination." Taken literally, this charge allows the jury to rule in the plaintiff's favor if the jury merely thinks that whistleblowing in general might tend to result in someone's termination, even if the whistleblowing did not affect this particular plaintiff's termination. In other words "the words 'tended to' 'increased the level of abstraction such that a jury might look beyond whether the whistleblowing activity caused the termination to whether it was the sort of behavior that would tend to affect a termination decision."

Second, the Court holds, the "in any way" language was misleading because it allowed the jury to consider effects that did not contribute to plaintiff's termination. The Court reasons that "in any way" might produce a plaintiff's victory even if the employer's reaction to the whistleblowing was not actually a contributing factor, such as if the whisteblowing caused the company to consult counsel to weigh the risk of a potential lawsuit before terminating the employee, as the "whistleblowing could be said to have 'affected' that termination by 'producing an . . . alteration' in how it came about, even if the decision to terminate was not 'based on whistleblowing -- not even a little bit."

In dissent, Judge Perez writes that the majority's reasoning "takes a pessimistic view of the jury's grasp of the trial proceedings (and of the English language) because no reasonable juror would be so myopic as to be knocked off course by six words in a charge comprising more than fifty-seven hundred," and the charge as a whole accurately conveyed plaintiff's burden of proof by variously stating that plaintiff must prove his whistleblowing "was a contributing factor in the termination of his employment." We usually examine jury charges as a whole and examine the offending language in context. Judge Perez says "'tended' to affect' is a reasonable, nontechnical way of conveying that burden -- that is, of conveying that Murray needed to show that his whistleblowing increased the probability that UBS would fire him but not that it was a but-for cause of him being fired" As for the "affect in any way" portion of the charge, that was proper because "surely a reasonable juror would know that Murray did not sue UBS because of the manner in which he was fired." Rather plaintiff sued "because he was fired."

A couple of observations here. First, Judge Park wrote the majority ruling, and Judge Menashi agreed with it. Judge Perez wrote the dissent. We have two Trump appointees in the majority and a Biden appointee in dissent. This case shows us the ideological divide on the Second Circuit, though not every case has this particular panel. Second, I wonder what the jury in this case would think of this ruling? The jury probably does not know this case is still going on, years after it rendered its verdict. Nor is the jury likely to know that the case went to the Supreme Court, or that the Court of Appeals just vacated the verdict because it thinks the jury could have been misled by the jury instructions. Jurors reach a verdict and then leave the courthouse to return to their lives. They never know that the case is far from over, or that judges and lawyers might spend the next several years picking through the case and evaluating how the jury might have analyzed the case.

Court clarifies when "adverse inference" charge results from lost ESI evidence

This case went to trial in federal court in White Plains. The plaintiff alleged that City of Yonkers police officers used excessive force in arresting him by activating their Taser. The plaintiff lost at trial, but he appeals on the basis that the jury should have been allowed to hold it against the City for not producing the Taser video. Plaintiff loses the appeal.

The case is Hoffer v. Tellone, issued on February 13. At trial, plaintiff testified that the police Tased him twice in the lower back while he was incapacitated, lying face down his hands under his stomach, and being kicked and punched by 8 to 10 officers. I have represented people who got Tased, and they will tell you it is the world's worst pain. The body is immobilized for five seconds, and during that five-second period, which feels like five hours, you feel like you are being electrocuted. The police will Tase people who resist arrest and there is no other way to get them under control. You cannot Tase someone merely to punish them.

The officers admitted that plaintiff was Tased, but they explained that they did so because after the first Tasing, plaintiff tried to get up and and run away. The tiebreaker would bre the video generated by the Taser gun. The officer said the second Tasing overrode the first video. But plaintiff's girlfriend, Goff, who was present at the scene, testified that she heard the officer tell a colleague that the USB drive in his hand "shows everything that we did and nothing that he did."

This all led plaintiff to ask the trial court to issue an adverse inference instruction, which allows the jury to assume that the police intentionally or negligently discarded the video and that the video, therefore, may have helped plaintiff's case. The trial court denied the charge and jury ruled in favor of the police after deliberating for two days. So this was a close case.

In 2015, the Federal Rules of Civil Procedure were amended to address what happens when a party does not produce electronically-stored information, or ESI. If the ESI is wrongfully lost, the court can take "measures no greater than necessary to cure the prejudice." Sanctions against the offending party may include issuing an adverse inference charge to the jury. Key to this rule is the offending party's "intent to deprive" the other side of relevant evidence. The Court of Appeals reaffirms that standard, which applies to this case and results in the appellate loss for plaintiff, who could not prove the police intended to misplace or destroy the USB drive. 

The party desiring the adverse inference must show the offending party violated the ESI protocols by a preponderance of the evidence. The Court of Appeals (Walker, Park and Nathan) articulates this rule for the first time. The preponderance test is used in most other civil cases, so it makes sense to apply it here. This rule does not just apply to police cases. It will apply to your case, also, whether it involves employment discrimination or a civil fraud claim.

What it means for plaintiff is that the court, and not the jury, must determine whether the offending party deserves the adverse inference sanction. Rule 37 makes that clear, the Court of Appeals notes, and the trial court is usually responsible for determining an appropriate discovery sanction. The trial court in this case said the police did not intend to deprive plaintiff of the USB video. 

The astute reader can predict how the Court of Appeals resolves this issue in this case. Once we agree that the trial court makes the factual finding on "intent to deprive," and we know the trial court ruled against plaintiff on this issue, it is almost impossible for plaintiff to win the appeal. The standard of review in challenging the trial court's factual findings is "clearly erroneous," and standard is the kiss of death. Sure enough, that's what happened in this case. Here is the reasoning:

In  denying  Hoffer’s  request  for  an  adverse  inference instruction, the district court, applying the correct “intent to deprive” standard, concluded that the evidence was insufficient to establish that any defendant acted with the intent to deprive Hoffer of the use of the first taser video.  The district court reasoned that it did not “know what to make of” the taser report, which reflected only one use of the taser during the arrest, and that there was “just not enough evidence for [the court] to be even convinced” that there ever existed a video of the first taser deployment. The district court further observed that it was “not at all clear” what Officer Goff meant by  information  being  “overwritten,”  and  that  “nothing  about Sergeant  Goff’s  testimony  suggested  that  he  had  any  direct knowledge or experience with the document management system for these taser videos, let alone anything having do with this particular video.” These findings were not clearly erroneous.

Mootness can end a good lawsuit

Mootness can kill off a good lawsuit. That's what happened here. The plaintiff sued medical professionals after they blocked his readmission into a facility for the mentally ill. The John Doe plaintiff may have had a good case, but something happened on the way to the courthouse. The facility decided to readmit plaintiff to the facility. What happens now?

The case is Doe v. McDonald, issued on February 12. The court ruling says that Plaintiff is mentally ill. He was being treated at a transitional adult home. After the facility discharged him, he brought this lawsuit under the federal anti-discrimination laws. But then the facility readmitted him by determining not to enforce certain regulations against the plaintiff. And defendants then argued that this readmission renders the lawsuit moot because there is no longer anything worth suing over. The Northern District of New York denied the state's motion to dismiss on standing grounds, which brings the case to the Second Circuit.

Years ago, up until the 1990s, a government defendant was not able to have the case dismissed by mooting out the factual issues. The courts assumed that, post-lawsuit, the defendants might again violate the law and the plaintiff would be out of luck. But the Supreme Court, and then the Second Circuit, said that the case can be mooted out if there is no reason to believe the defendants will revert to their prior illegal behavior. One way for the government to take advantage of this was in lawsuits challenging the constitutionality of a statute or ordinance. In that circumstance, the Court of Appeals assumes that a legislative enactment will not be revoked willy-nilly after the fact. The leading case for this principle is Lamar Advertising v. Town of Orchard, 356 F.3d 365 (2d Cir. 2004). On the other hand, if the court thinks the defendants tried the moot the case under "suspicious circumstances," the case is not moot. The case for that rule is Mhany Mgt v. County of Nassau, 819 F.3d 581 (2d Cir. 2016).

In this case, the Court of Appeals (Walker, Jacobs and Merriam) finds this case does not involve standing but mootness. There is a difference. Plaintiff had standing to bring the case because, when he filed it, he was aggrieved. Mootness asks whether the case is still viable after the case was filed. 

The Second Circuit holds "there is no reasonable expectation that the alleged violation -- Doe's being denied readmission to Oceanview because of the Regulations -- will recur." There is no evidence to suggest the state will change its mind with regard to plaintiff, and the fact that the state decided to readmit him to the facility because of a separate ADA lawsuit is no basis to think otherwise. In short, "because Doe lacks any continuing personal stake in the outcome of this case, it is moot,"

Supreme Court throws out murder conviction tainted by female defendant's sex life

Yes, the modern Supreme Court is conservative, but no, it does not always issue conservative rulings. This decision came down a few weeks ago and got no national attention, to my knowledge. But the Court actually grants a habeas corpus petition because the murder defendant did not receive a fair trial.

The case is Andrew v. White, issued on January 21. This case is like something out of a movie. Brenda Andrew was charged with killing her husband for the insurance money. This happened nearly 25 years ago. Husband Rob was fatally shot in his garage, and Brenda was shot in the arm, She blamed it all on two armed assailants. Brenda by then was separated from Rob and was seeing someone else, Pavatt, who later admitted he and a friend were the shooters. Pavatt got the death penalty. Brenda, meanwhile, took her case to trial.

At trial, a lot of evidence came in that the jury never should have heard, The prosecutors put on evidence about Brenda's past sex life, including prior sex partners, the underwear she packed for vacation, how often she had sex in the car, what she wore to dinner and while grocery shopping. The jury also heard this:

At least two of the prosecution’s guilt-phase witnesses took the stand exclusively to testify about Andrew’s provocative clothing, and others were asked to comment on whether a good mother would dress or behave the way Andrew had. In its closing statement, the prosecution again invoked these themes, including by displaying Andrew’s “thong under- wear” to the jury, by reminding the jury of Andrew’s alleged affairs during college, and by emphasizing that Andrew “had sex on [her husband] over and over and over” while “keeping a boyfriend on the side.”

One judge who heard the case on the Tenth Circuit (which upheld the conviction) dissented and "condemned the State’s focus 'from start to finish on Ms. Andrew’s sex life,' a move he argued 'portrayed Ms. Andrew as a scarlet woman, a modern Jezebel, sparking distrust based on her loose morals . . . plucking away any realistic chance that the jury would seriously consider her version of events.'”

But we are getting ahead of ourselves. The jury convicted Brenda of murder and gave her the death penalty. She appealed the conviction and then filed a habeas corpus petition, claiming her conviction violated the U.S. Constitution. These efforts failed, as the lower courts said the Supreme Court has never squarely held the Due Process Clause bars criminal convictions on the basis of irrelevant evidence, and to be sure, the evidence was so irrelevant that the state of Oklahoma conceded along the way that all this was not relevant, but the state courts upheld the conviction anyway.

The Supreme Court grants the habeas petition, noting that it has in fact held that the Due Process Clause bars criminal convictions on the basis of irrelevant evidence. One case standing for this proposition was Payne v. Tennessee, from 1991. Payne was famous at the time because the Supreme Court in that case had overturned a criminal procedure precedent from 1987 and said that stare decisis, which is Latin for "we adhere to precedent" is not always decisive, which drew an angry precedent from Justice Thurgood Marshall. But the Court in this case cites Payne as a precedent that helps Brenda.

Justices Thomas and Gorsuch dissent. Thomas provides more lurid details about Rob and Brenda's marriage and how things fell apart between them. He concludes that the legal principles upon which the majority rely in this case were not sufficiently "clearly established" to favor Brenda, which is the standard guiding habeas corpus petitions. That legal standard is so difficult to meet that Thomas notes this is the first case the Court has ever "summarily set aside a lower curt decision for failing to find that a legal rule is clearly established" under the habeas corpus statute.

Inmate excessive force case provides guidance on how to resolve a motion to dismiss

You'd be surprised how often inmates win their appeals on constitutional claims against their jailers. The cases get dismissed in the district court, and then the Court of Appeals revives them and finds the plaintiff's allegations are enough to proceed to discovery or even trial. Here is another one. What makes this case notable is that the Court of Appeals clarifies when defendants can rely on outside records in support of a motion to dismiss the plaintiff's complaint. This ruling is good for plaintiffs.

The case is Pearson v. Gesner, issued on January 13, almost a year after oral argument. Plaintiff was locked up at the Orange County Jail on a parole violation. His complaint asserts that CO's beat him up in his cell, played with his food, sprayed chemicals in his eye (causing pain and impaired vision), and denied him medical care. The district court dismissed the Amended Complaint on a motion to dismiss, in part because the misbehavior report drafted by one of the CO defendants said that plaintiff had disobeyed orders, thus justifying the use of force. 

Here's the problem. It was not proper for the trial court to consider the misbehavior report in reviewing whether the Amended Complaint stated a claim. Sometimes, the district court can rely on outside documents on a motion to dismiss if they are integral to the complaint, such as if plaintiff is bringing a breach of contract claim, and the complaint makes reference to that contract but the contract itself is not attached to the complaint. The leading case on this issue is Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2001). But this rule has a number of quirks. The plaintiff might rely on parts of a document drafted by defendant but not all of the document's contents. "Rather than accepting as true every word in a unilateral writing by as defendant and attached by a plaintiff to a complaint, the court must consider why a plaintiff attached the documents." The Second Circuit (Kearse, Robinson and Park) cites a Seventh Circuit ruling for this proposition (along with a Fourth Circuit ruling) which means this is the first time the Second Circuit is saying this.

Put another way, "[t]reating the contents of such a document as true simply because it was attached to or relied upon in the complaint, even though the plaintiff relied on it for purposes other than truthfulness, would . . . enable parties to hide behind untested, self-serving assertions." Again, this is from the Fourth Circuit case, so the Second Circuit is really driving this home for the first time.

What it means in this case is that the district court improperly adopted as true many of the allegations in the misbehavior report in dismissing the case and finding that the CO's had reason to use force against plaintiff. The case returns to the district court for further review.

Inmate may have a claim for deliberate indifference to medical needs

In this case, the Court of Appeals has to decide if the inmate-plaintiff timely filed his constitutional claim alleging that prison doctors failed to properly treat his prostate cancer. A divided court says that, for now, it looks like plaintiff may have filed this case in time. That may change once the parties start discovery, for the lawsuit alleges facts that plausibly suggest plaintiff did not wait too long to bring suit.

The case is Mallet v. New York State Dept. of Corrections, issued on January 13. While in jail, plaintiff began to feel discomfort and experience urinary problems. A urologist examined him and confirmed that plaintiff was in fact experiencing prostate problems, but he did not think it was cancerous or perform a biopsy. Instead, the urologist gave him a prescription for pills that would help with urinary dysfunction. After plaintiff left prison, he was diagnosed with prostate cancer after his bloodwork showed a high PSA count. 

Here is the problem, plaintiff sued within three years of the cancer diagnosis, but the initial medical work, which showed urinary problems but without any diagnosis took place more than three years before plaintiff filed suit. The statute of limitations for these cases is three years. If the prison-medical work was enough to put him on notice that he had cancer, then the case is not timely. If the clock began running after plaintiff left jail and got the formal cancer diagnosis, then the case is timely. For the court, the question is when the clock began running.

Judge Calabresi writes for the majority and says, on the face of the lawsuit, using Iqbal plausibility standard, we can say plaintiff might have a case. He writes:

Taken together, then, Mallet’s deliberate indifference claim could not have accrued until he either knew or had reason to know both (1) that he suffered from an objectively serious medical condition while he was incarcerated and (2) that Defendants-Appellees  failed  to  provide  adequate  treatment  because  they consciously disregarded a substantial risk to his health and safety. Put differently, Mallet could not have brought his deliberate indifference claim before he knew or should have known these facts because he would not yet have had a complete and present cause of action.

During his incarceration, the majority writes, plaintiff could have reasonably assumed he was enduring uncomfortable and annoying urinary problems but not cancerous conditions. Since he did not learn that until after he was released from prison, and he filed the lawsuit within three years of learning he had cancer, the case is timely,

The factual analysis is drawn from the Complaint, not a summary judgment record. Discovery will focus on whether the facts in the Complaint are accurate. The state will try to show that plaintiff knew about or suspected prostate cancer while he was in jail. So, while plaintiff generates a good ruling for statute of limitations purposes in deliberate indifference cases, the case is far from over.

The rules are different in habeas corpus cases

In this habeas corpus case, the State of New York did not raise a defense in opposing the habeas petition. Normally, that's a waiver, and the courts will not consider waived arguments. But in habeas proceedings, the rules are different. While the inmate won his habeas petition in the trial court, the Court of Appeals takes it away.

The case is Whitehead v. LaManna, a summary order issued on December 30. Whitehead was convicted of drug-related crimes. After the convictions were affirmed on appeal, Whitehead filed a petition for habeas corpus, arguing that his trial counsel was ineffective in not filing a motion to dismiss the indictment. The argument that trial counsel could have raised related to the fact that some of the crimes took place in Orange County, not Albany County, where he was indicted and convicted. Whitehead's appellate counsel did not raise that argument either, so appellate counsel was also named in the habeas petition as an ineffective lawyer.

Here is what happened next: in opposing the habeas petition, the State of New York did not raise a particular defense: that since some of the crimes were committed in Albany County, crimes committed in an outside county (such as Orange County) may be included in the conspiracy indictment. Without the benefit of that argument, the federal court in Albany granted Whitehead's habeas petition. The State then filed a motion for reconsideration, asserting that defense for the first time. The federal judge said this argument was waived, and Whitehead sustained his victory.

Off to the Court of Appeals, which reinstates the conviction and discards the habeas win. Under the habeas rules, which require the courts to defer to the state courts in how they handle criminal prosecutions, the federal court is supposed to consider arguments that might sustain the criminal conviction, including hypothetical arguments, even if they were waived by the government in opposing the habeas petition. The Court of Appeals (Bianco, Lee and Menashi) says:

in its effort to search for any hypothetical argument that might support the Appellate Division’s rejection of Whitehead’s venue argument and related ineffective assistance claim, as required under Lynch, the district court apparently did not identify or consider on its own that venue on the substantive counts was proper due to the conspiracy charge and thus Whitehead suffered no prejudice by his appellate counsel’s failure to raise the venue issue.

The hypothetical argument that might have sustained the conviction in the face of Whitehead's habeas challenge may have been waived, but under the habeas rules, the trial court was still required to consider it. This rule does not apply in other cases, but it does in cases like this. The Court of Appeals says the federal court abused its discretion in not considering the State's belated argument, and that this argument is actually meritorious on the basis that the deficiency in the indictment did not prejudice Whitehead, and the case was properly venued in Albany County, after all.

EDNY judge adjusts hourly rates for prevailing parties

 A judge in the Eastern District of New York has increased the top rate for attorneys' fees in cases, typically civil rights matters, where the losing party is statutorily required to pay the plaintiff's lawyers who won the case. The top rate was $450 per hour. Now it's $650 for partners.

The case is Rubin v. HSBC Bank, issued on January 21 (scroll down that link for the PDF). This is a Fair Credit Reporting Act case involving alleged credit card fraud. After the parties settled the case, they litigated the attorneys' fees. Judge Block uses this case to examine the case law guiding attorneys' fees and asks hard questions about how the EDNY has settled on the rates that have been in place since 2012, when partners got $300-$450/hour. 

Judge Block wonders why this rate has stayed the same ever since, despite years of inflation. (While he does not discuss this, the Second Circuit has held that EDNY rates may be lower than SDNY rates even though both districts include New York City and sit right next to each other). And he wonders how courts are expected to apply the Second Circuit's framework for resolving attorneys' fees; that framework asks what a hypothetical, reasonable paying client would pay to win the case. The Second Circuit developed that test in Arbor Hill v. County of Albany, 522 F.3d 182 (2d Cir. 2008). He notes further that EDNY judges "have been making reasonability determinations for decades out of whole cloth," and that this ad hoc approach is usually based on indeterminate factors, such as inflation. In addition, the hourly rates are usually identical no matter what case the parties are litigating, be it an employment discrimination or intellectual property case.

After reciting a poem about "the pitfalls of following the calf's path," and admitting that he has recently followed the calf's path himself in setting hourly rates (despite reading this poem to his law clerks each year), Judge Block says the top hourly rate in the EDNY for at least the next five years should be $450-$650 for partners, $300-$450 for senior associates, $150-$300 for junior associates, and $100-$150 for paralegals, more in line with Southern District rates.

Fair housing verdict based on renters' income is affirmed.

This case went to trial on the plaintiff's claim that a private property management company was discriminating against renters based on disability and income. The Fair Housing Act prohibits discrimination on the basis of a renter's disability. The City Human Rights Law bars housing discrimination on the basis of income. The trial judge ruled in plaintiff's favor. The defendant appeals to the Second Circuit, which affirms. The plaintiffs emerge victorious.

The case is Fair Housing Justice Center v. Pelican Management, Inc., a summary order issued on January 21. 

FHJC asserted that in 2015 [Defendant] Goldfarb adopted a minimum income policy for prospective renters, requiring, among other things, that all prospective renters earn a gross annual income of at least 43 times their total monthly rent (the “2015 Policy”).  FHJC claimed that the 2015 Policy excluded virtually all renters who received certain rental subsidies, a large percentage of whom have disabilities.

The policy was amended in 2019. Under that revision,

with respect to applicants with no rental subsidy, the criteria under the 2019 Policy that prospective renters earn an annual income of at least 43 times their total monthly rent remained the same as before. Second, as to applicants with a full subsidy (i.e., 100 percent of the rent is paid by a government program), the 2019 Policy eliminated all income-related requirements.  Finally, with respect to applicants with a partial subsidy (i.e., a portion, but not all, of the rent is paid by a government program), the 2019 Policy, among other things, required that prospective renters earn 40 times their share of the monthly rent, rather than 43 times the full rent.

The NYCHRL prohibits housing discrimination “because of any lawful source of income.” A disparate impact claim can be brought under the NYCHRL when “a facially neutral policy or practice has a disparate impact on a protected group.”

The trial court ruled both policies were illegal. They had a disparate impact based on disability and source of income. Defendant appeals from the 2019 ruling, which held, based on the analysis from plaintiff's expert witness, that the rules had an unlawful disparate impact on applicants with partial subsidies on the basis of their source of income. The Court of Appeals (Carney, Bianco and Nardini) affirms. After holding that plaintiff's expert used a sound methodology in reaching his conclusions, the Second Circuit holds that the factual record supports the district court's ruling on the merits.

Supreme Court clarifies how management can prove that plaintiff-employees are not entitled to overtime

The Supreme Court is starting to issue rulings for the 2024-2025 term. Cases that were argued in the fall are now being resolved. This one concerns how to interpret the Fair Labor Standards Act. The Court makes it easier for employers to prove that the plaintiff is exempt from overtime.

The case is EMD Sales v. Carrera, issued on January 15. The FLSA guarantees that employees will earn at least the minimum wage. Most employees will also recover overtime pay if they work more than 40 hours per week. Notice I said "most." That's because the FLSA has a zillion exceptions to this rule, depending on the nature of the employee's job. Management workers don't get overtime. Certain professionals don't get overtime. In this case, plaintiffs were sales representatives. Plaintiffs sued for unpaid overtime. The trial court said plaintiffs are entitled to overtime because the employer did not prove by clear and convincing evidence that plaintiffs were exempt from the overtime rules (management said plaintiffs were exempt under the outside-salesman exemption. 

The issue for the Supreme Court: is "clear and convincing" the appropriate test, or is it "preponderance of the evidence," a lower burden of proof, which simply means "more likely than not." In contrast, "clear and convincing" is not the same as "proof beyond a reasonable doubt" (the government's burden of proof in criminal cases) but it's somewhere in between 51% more likely and near-certainty.

The Supreme Court has never addressed this issue before. The Fourth Circuit is the only federal appellate court to use the "clear and convincing" test. The rest use the more lenient "preponderance" test, including the Second Circuit. Since the FLSA does not tell us management's  burden of proof, the Court looks to the common-law. While some constitutional cases require a heightened burden of proof in civil cases, such as defamation cases involving public figures and some other "uncommon" cases, such as when the government wants to revoke someone's citizenship, most civil cases use the preponderance test, so the fallback is that test. While the plaintiffs want the Court to employ "clear and convincing" because these cases implicate the public interest, and the employer controls much of the evidence in these cases, these justifications are not enough to deviate from the fallback test, as the preponderance test also applies in Title VII discrimination cases. Title VII and FLSA principles are usually interchangeable.

The case now returns to the district court, for the judge to revisit the issue of plaintiffs' entitlement to overtime under the preponderance burden of proof.

It's hard to win involuntary mental health confinement cases

You can sue the government if it places you in a psychiatric facility against your will, but you have to show the government did not have good reason to do this. That makes these cases hard to win, and the plaintiff in this case loses even if he can prove that one officer lied about the reason for his confinement.

The case is Accardi v. County of Suffolk, a summary order issued on January 14. Plaintiff was hospitalized involuntarily for five days in a psychiatric facility after a series of domestic incidents. Here is the legal framework, from the Mental Health Law:

Under New York law, police officers “may take into custody any person who appears to be mentally ill and is conducting himself or herself in a manner which is likely to result in serious harm to the person or others.” 

Officers may also “direct the removal  of such person or remove him or her to . . . any comprehensive psychiatric emergency program . . . Similarly, officers may take an individual “who appears to be incapacitated by alcohol and/or substances to the degree that there is a likelihood to result in harm to the person or to others . . . to a treatment facility for purposes of receiving emergency services.”

Plaintiff says the County violated the Due Process Clause of the U.S. Constitution (which recognizes such claims) because its officers deliberately misrepresented the facts that influenced the probable cause determination that allowed them to take him to the facility. While plaintiff argued that Defendant Manfredonia told healthcare providers that he had barricaded himself in his home and did not surrender until they completed a four hour negotiation, any such misrepresentation does not matter. Why? Because, the Second Circuit holds, the medical records show plaintiff would have been taken to the facility against his will in any event. The Court of Appeals (Calabresi, Park and Nathan) states

Evidence from Accardi’s medical records confirms that healthcare providers would have decided to involuntarily commit Accardi even without Manfredonia’s alleged statements about a “barricade.” For example, Dr. Narayan wrote that Accardi “has multiple risk factors for completing suicide and homicide, and requires inpatient admission at this time.”  Dr. Narayan also categorized Accardi’s illness as “severe.” Dr. Bonvino noted that Accardi “initially told nursing staff his last drink was about 8 weeks although utox is positive for alcohol”; that Accardi himself reported “he had an argument with his wife, was throwing things, and made the comment that if she left the house he’d kill himself”; and that Accardi was not compliant with his antidepressant medication.

See how hard it is to win cases like this? I think courts will give law enforcement the benefit of the doubt, and the law, through qualified immunity, actually provides a legal framework for that deference, though the Court of Appeals does not reference such immunity in this ruling.

New York can force religious organization to include choice-related employee protections in employee handbook

Several years ago, the State of New York enacted a law requiring employers to include something in the employee handbook: a promise that the employer will not discriminate against its workers over their reproductive choices. The religious organization in this case sued to enjoin this portion of the law, claiming it compels them to advocate for behavior that contradicts its religious principles. The religious organization won in the district court, but loses in the Court of Appeals, finding the notice requirement is not compelled speech in violation of the First Amendment.

The case is CompassCare v. Hochul, issued on January 2. The other holding in this case is discussed here. The district court granted summary judgment to the plaintiff on the basis that the handbook rule was "compelled speech" that did not survive strict scrutiny (the most difficult level of constitutional review for the government to navigate) because there are other ways to notify employees of their rights, such as posters for display in the workplace.

The Second Circuit (Parker, Perez and Merriam) reverses and holds that strict scrutiny is not the correct standard of review because the notice requirement is a form of commercial speech which enjoys reduced constitutional protections. Yes, the notice requirement is content-based (which would normally be problematic), but this is not the kind of speech normally struck down in the compelled speech cases, as it does not force employers to adopt certain political or religious opinions. Under rational basis review, the most deferential test guiding governmental actions, the notice provision is legal, as it promotes "purely factual and uncontroversial information about the terms under which services will be available." The notice provision is comparable to other government-mandated speech rules in the workplace, such as posters displaying health, safety, and civil rights protections. In sum,

We conclude that the required notification does not interfere with Plaintiffs’ greater message and mission. The Notice Provision does not require alterations of other portions of the handbook, nor does it require any statement regarding the merits of the Act. Plaintiffs remain free to share with their employees, in the handbooks or elsewhere, their moral, political, and religious views, their expectations for employees, and even their disagreement with the Act.

Court outlines when private religious organization may challenge state laws against contraception-based discrimination

This religious freedom case asks whether the State of New York can prevent anti-abortion organizations from discriminating against employees based on their reproductive health decision-making, i.e., employees who have used contraception or have had an abortion.

The case is CompassCare v. Hochul, issued on January 2. New York Labor Law, prohibits “discrimination based on an employee’s or a dependent’s reproductive health decision making.” Specifically, the Act prohibits an employer from “accessing an employee’s personal information regarding the employee’s . . . reproductive health decision making, including but not limited to, the decision to use or access a particular drug, device or medical service.” The Act also prohibits employers from discriminating or retaliating against employees and from requiring an employee to waive these rights. In addition, the Act requires an employer who chooses to issue an employee handbook to “include in the handbook notice of employee rights and remedies under this section.”

Plaintiffs are "pro-life" religious organizations who claim the Act violates the First Amendment, which protects the right to free speech and the religious clauses, the Free Exercise Clause and the Establishment Clause. Plaintiffs advocate against those practices. The district court dismissed the case as to plaintiff's argument that the Act violates the First Amendment, but it struck the notice provision as unconstitutional.

In 2023, while this case was pending, the Second Circuit held in Slattery v. Hochul, 61 F.4th 278 (2d Cir. 2023), that an employer may have an associational-rights claim if the Act “forces [the employer] to employ individuals who act or have acted against the very mission of its organization.” After reviewing the holding in Slattery and the Supreme Court's ruling on the associational rights of private organizations, the Court of Appeals remands the case to the Northern District of New York to further review this case in light of these principles, largely centering on whether the state's mandatory rules would threaten the very mission of the organization:

To sustain their challenge to the Act, each Plaintiff must adequately allege (and eventually prove) that the Act threatens “the very mission of its organization.” It is not enough for an employer to claim that it holds particular views or interests, or even that it expresses such views through its work. In the workplace, expressive association rights are not unlimited; the right to expressive association does not permit an employer generally to discriminate in its employment practices – potentially violating the statutory or constitutional rights of employees and applicants. “There is no constitutional right, for example, to discriminate in the selection of who may attend a private school or join a labor union.” Rather, the right to expressive association is implicated only when the employment decision at issue “goes to the structure and identity of the association as an association.” 

For an employer to make the showing required by Slattery, it must show that the Act threatens its very mission not only in a vague and generalized sense, but in the context of a specific employment decision.

This would presumably require assessment of (1) the responsibilities of the position at issue, including whether it is client-facing and whether it involves expressly or implicitly speaking for the organization, and (2) the particular conduct or attribute of the employee that renders the employment of that person, in that position, a threat to the employer’s mission. In short, an employer must plausibly allege that the Act’s impact on the specific employment decision “will impede the organization’s ability to engage in . . . protected activities or to disseminate its preferred views.”

Another round of briefing in the NDNY will ensue. More briefing, more fun, as the attorneys navigate this changing landscape involving the First Amendment, the rights of employees, and the state's interest in protecting employees from termination (or failure-to-hire) based on their reproductive choices.

2d Circuit sustains sexual assault verdict against Trump

The Second Circuit has sustained the sexual assault verdict against Donald Trump, ruling that the trial court did not abuse its discretion in certain evidentiary rulings that bolstered the plaintiff's case. Recall that a Southern District jury found that Trump violated E. Jean Carroll in the dressing room at a Bergdorf Goodman in New York City in 1996, a claim made possible by the Adult Survivor's Act, which revived the statute of limitations. The ruling focuses on the federal rules of evidence and whether the trial judge abused his discretion in allowing the jury to hear about Trump's other sexual abuse victims and the Access Hollywood tape in which Trump talked about grabbing women by the genitals.

The case is Carroll v. Trump, issued on December 23. The jury awarded plaintiff $5 million in damages for the sexual assault and Trump's defamatory comments about plaintiff after she publicized the allegation.

Years ago, you could not bring in evidence of the defendant's prior bad acts to prove your case. We call that propensity evidence. The concern was that you would find a party liable or guilty (in a criminal case) because of what he did in some other case. But Congress amended the Federal Rule of Evidence 415 to permit the jury in sex abuse cases to hear about the civil defendant's prior sex abuse. That evidence is admissible if it survives the balancing test under Rule 403: if its relevance is not substantially outweighed by unfair prejudice. The trial judge's evidentiary rulings are usually affirmed on appeal under the "abuse of discretion" test, and this case is no exception.

The Court of Appeals summarizes the trial testimony this way:

In 1996, Ms. Carroll encountered Mr. Trump at the Bergdorf Goodman department store in Manhattan. At the time, Ms. Carroll was an advice columnist for Elle Magazine and hosted a daily advice talk show called "Ask E. Jean." Mr. Trump recognized Ms. Carroll and asked her to stay and help him pick a gift for a girl. Describing this as a "funny New York scene" and a "wonderful prospect" for a "born advice columnist" to give advice to Mr. Trump on buying a gift, Ms. Carroll said yes.

After Ms. Carroll suggested that Mr. Trump purchase a handbag or a hat, Mr. Trump proposed that they go to the lingerie department instead. Ms. Carroll and Mr. Trump went to the lingerie department on the sixth floor. Mr. Trump selected a piece of lingerie and insisted that Ms. Carroll try it on. Ms. Carroll jokingly responded, "You put it on. It's your color." After some playful banter, Mr. Trump took Ms. Carroll's arm and motioned for her to go to the dressing room with him. Because Mr. Trump was being "very light" and "pleasant" and "funny," Ms. Carroll walked with Mr. Trump into the open dressing room, which she described as "sort of an open area." But as soon as she entered, Mr. Trump "immediately shut the door" and "shoved [her] against the wall . . . so hard [that] [her] head banged."

Ms. Carroll pushed Mr. Trump back, but "he thrust [her] back against the wall again," causing her to "bang[] [her] head again." With his shoulder and the whole weight of his body against her, Mr. Trump held her against the wall, kissed her, pulled down her tights, and stuck his fingers into her vagina -- until Ms. Carroll managed to get a knee up and push him back off of her. She immediately "exited the room" and left the store "as quickly as [she] could." The encounter lasted just a few minutes.

One witness, Leeds, told the jury that Trump assaulted her on an airplane in 1978 or 1979. That conduct was admissible because it arguably constituted a sex crime under the U.S. Code. Another witness, Stoynoff, testified that, as a reporter for People magazine, Trump sexually assaulted her behind closed doors at Mar-a-Lago in 2005. As for the Access Hollywood tape, we all know what Trump said on camera, that "when you're a star," you can grab women by the genitals. That tape, from 2005, nearly upended the 2016 presidential election. The trial court admitted this tape in evidence because it suggests that Trump has had contact with women's genitalia without their consent, or has attempted to do so. The tape was also admissible because it shows a pattern of sexual assault, or a recurring modus operandi.

Other evidentiary rulings are also discussed in this decision. Trump challenged the trial court's order excluding evidence challenging Carroll's credibility, such as that a third-party helped to fund her litigation against Trump. But courts have held such funding is not relevant to credibility. The trial court also acted within its discretion in excluding evidence that, according to Trump, suggested that Carroll was trying to influence Stoynoff's testimony. Nor did the district court abuse its discretion in precluding any argument that Carroll had allegedly falsely claimed that Trump's DNA was on her dress from the dressing room incident.

As described in this ruling, the evidence at trial certainly makes Trump look terrible. The Court of Appeals (Chin, Carney and Perez) notes that Trump did not testify nor even appear at trial, and the Court adds that Trump has denied the allegations. I guess that reference is a courtesy to the next President of the United States. However, as all litigators know, if the jury said it happened, the denials fall away on appeal and the court accepts the evidence in the light most favorable to the winning party.

Connecticut educator cannot win disparate treatment claim

In this disparate treatment case under Title VII, plaintiff argued that she could not be terminated for the same misconduct that her co-workers had also committed. The Court of Appeals affirms the grant of summary judgment, holding that, whatever her co-workers did wrong, they were not comparable to plaintiff. This dooms the disparate treatment claim, and the case is over.

The case is Laiscell v Board of Education, City of Hartford, a summary order issued on December 20.

The Board’s letter terminating Laiscell’s employment cited her “fraudulent and unprofessional conduct, including but not limited to” maintaining her ex- husband as an eligible dependent on her healthcare plan, costing the school district approximately $6,691; deleting a sentence from an email she forwarded to school superintendents, purportedly minimizing the significance of the ongoing dependent verification audit; and improperly storing certain budget-related files on her laptop. The letter further stated that “[s]uch conduct is particularly egregious given [her] stature and position . . . as the Executive Director of Financial Management.”

Plaintiff claims she was fired in retaliation for exercising her rights under Title VII. But the only way she can claim retaliation is if other coworkers did the same thing but were not fired. The question is whether the coworkers were similarly-situated, or comparable, to plaintiff under Title VII. They are not. 

The other workers who allegedly committed similar misconduct held lower-level positions than plaintiff or belonged to the union. Under case law from the Second Circuit (and presumably all the federal courts around the country), the employer may treat people differently depending on their job title and whether they are subjected to certain protections under the collective bargaining agreement. 

Continued post-complaint sexual harassment does not always permit employer liability

A hostile work environment will not result in any damages, or even a jury trial, if the plaintiff cannot connect that work environment to the employer. This case is a good example of how it all works. In the end, plaintiff loses the case because the Court of Appeals determines the employer, the Veterans' Administration, acted reasonably after it learned that plaintiff was being harassed by a coworker who would not leave her alone.

The case is Cain v. McDonough, a summary order issued on December 19. Coworker White made sexual overtures toward plaintiff, but she rebuffed him. White then falsely wrote plaintiff up for misconduct (he was her temporary supervisor for one day). When plaintiff complained to management about White's harassment, the VA's police chief began an investigation almost immediately, and White was given a warning and they changed his shift to keep him away from plaintiff. The VA also took away his service weapon and had him work somewhere else in the building, warning him to stay away from plaintiff. 

The VA's swift response to plaintiff's harassment claim would normally be enough for the agency to defend this lawsuit. So plaintiff focuses on what happened next:

Three times, White came into the office area near Cain’s desk after the stay-away order. In the first two instances, White came to the administrative area near Cain’s cubicle, and either shuffled papers or lingered near her. He did not speak to, touch, or attempt to touch Cain. Cain did not report his conduct. On the third occasion, White came to the same area, shuffled papers, and remained for a shorter period of time. Cain reported these incidents to the police chief. In response, the chief had another conversation with White and told him that he could not spend time in the area near Cain’s desk. If he had something to drop off in the administrative office, he should “drop it off and go.” The chief told Cain that on occasion White may have to come to the administrative office near Cain’s work area, but he would not need to stay near Cain’s desk for any length of time. After that, Cain had no further problems; White only came to her office area a few times, and each visit was very brief.

On this record, the employer is not liable for negligently handling plaintiff's harassment complaint. Here is how the Court of Appeals puts it:

The VA instituted a formal investigation within one business day after Cain reported the harassment. The VA took the allegations seriously. And the VA’s response was multifaceted and included steps to prevent Cain and White from working overlapping shifts, relocating White to a different wing of the building, taking away White’s service weapon, and requiring White to stay away from Cain’s work area. As soon as Cain notified her supervisors that White had stood near her desk following the stay-away order, they took effective action to ensure that it didn’t happen again. Moreover, at the conclusion of its investigation the VA placed White on a last chance agreement, which included a demotion from lieutenant to line officer.

Plaintiff argued that, in light of White's violation of the stay-away order, her case is comparable to another coworker harassment case, Whidbee v. Garzarelli Food Specialities, 232 F.3d 62 (2d Cir. 2000), a case that I argued 25 years ago. In that case, the harassment continued even after the plaintiffs complained about a coworker's racial comments. Summary judgment for the employer was reversed in that case because the manager did not speak to the offending employee for several days, during which time the harassing comments continued. After the manager gave the coworker a warning, he made further racially-harassing comments, and the manager told the plaintiffs he was unable to control the coworker's mouth and he did not know how to deal with the problem. While the manager then gave the coworker a written warning, the harassment continued, prompting the plaintiffs to quit their job. Whidbee stands for the proposition that the continued harassment after the plaintiffs' repeated complaints permits the inference that management's response was inadequate. 

Cain's case is not Whidbee, the Court of Appeals (Robinson, Nathan and Briccetti [D.J.]) holds, because "it is undisputed that White did not speak to or contact Cain after her initial complaint, that Cain did not report White’s coming near her desk the first two times he came to the administrative office area, and that once she reported these incidents, the police chief effectively ensured that White stayed away from Cain."

This Whidbee distinction may be the first time the Court of Appeals has held that continued harassment following management's attempts to stop the harassment does not always permit a finding of employer liability in coworker harassment cases. Every precedent has its limits, and the presidential reach of Whidbee is no exception.