Second Circuit rejects Bivens case against Metropolitan Detention Center

These federal inmates sued the government over the conditions of their confinement. The claims fail under a limited Supreme Court doctrine created in 1971 to allow plaintiffs to sue federal officials under the Constitution.

The case is Crespo v. Carvajal, a summary order issued on February 27. In 1971, the Supreme Court said in the Bivens case that you can sue federal defendants for constitutional violations if our legal system provides no other remedy for the violation. You will lose a Bivens claim even if the other, available remedies are limited and do not provide the same relief as a full-blown constitutional claim. Bear in mind that, when we sue state and local officials under 42 U.S.C. 1983, that statute does not guide claims against federal defendants. There is no Section 1983 counterpart in the federal system, and the way things are going in our world, there probably never will be.

For this reason, most Bivens claims fail. There is usually some administrative or other remedy available to the victim of a violation at the hands of a federal official or employee. One way to win a Bivens claims is alleging employment discrimination. Certain actions against federal police officers are also available under Bivens. But the state of Bivens litigation over the last 40 years has been predictable. Lawyers are always trying to convince the courts that their particular case creates the proper exception to the general prohibition against Bivens claims, and the courts usually reject that argument. That is what happened here.

Plaintiffs, inmates that the Metropolitan Detention Center in Brooklyn, allege that inmates denied adequate air, sunlight, and food in violation of the Eighth Amendment, which requires that even convicted criminals must be afforded some dignity, even if the jails do not have to rise to the level of a Holiday Inn. The Court of Appeals (Cabranes, Lohier and Sullivan) holds that plaintiffs lose because relief is available outside the Eighth Amendment: they can file a grievance with the Bureau of Prisons, which has authority to deal with the problem.

I am sure there are law review articles that prove that the grievance process at most prisons and jails do not provide inmates with the relief they need. But that will not sway the courts into abandoning the Bivens analysis. The Supreme Court has been hinting over the years that it may dispense with the Bivens doctrine overall and require Congress to deal with its absence through legislation. My guess is that Bivens will no longer be with us within the decade, as the Court may already have the votes to overrule Bivens. If that happens, it will be up to Congress. Without a clear political movement to help plaintiffs sue federal officials (not just in the jail context, mind you), that may spell the end of certain constitutional litigation against federal officials.

Supreme Court said the government may regulate mail-order gun kits

The Supreme Court has taken its gun jurisprudence into the modern age, holding that a gun-control law from 1968 allowed the Biden administrate to regulate gun kits that you can receive in the mail. 

The case is Bondi v. Vanderstock issued on March 26, The Court rules 7-2 that these gun kits are covered under the 1968 law. That means the administration can regulate them. The Gun Control Act of 1968 requires those engaged in importing, manufacturing, or dealing in firearms to obtain federal licenses, keep sales records, conduct background checks, and mark their products with serial numbers. The Act defines “firearm” to include “(A) any weapon . . . which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; [and] (B) the frame or receiver of any such weapon.” 

You may ask, what is a gun kit? You get the gun parts in the mail. Then you put the gun together on your own. As the Supreme Court states:

Recent years, however, have witnessed profound changes in how guns are made and sold. When Congress adopted the GCA in 1968, “the milling equipment, materials needed, and designs were far too expensive for individuals to make firearms practically or reliably on their own.” With the introduction of new technologies like 3D printing and reinforced polymers, that is no longer true. Today, companies are able to make and sell weapon parts kits that individuals can assemble into functional firearms in their own homes.

These do-it-yourself guns are all over the place. The Court says, “[P]olice departments around the Nation have confronted an explosion of crimes” involving these 'ghost guns.' In 2017, law-enforcement agencies submitted about 1,600 ghost guns to the federal government for tracing. By 2021, that number jumped to more than 19,000. Efforts to trace the ownership of these weapons, the government represents, have proven 'almost entirely futile.'” This is why the last administration regulated the gun kits.

Over two dissents, Justice Gorsuch rejects the facial challenge to the Biden regulation and holds the gun kits may be regulated under the statute. The gun kit qualifies as a “weapon” under the 1968 law because: (1) artifact nouns like “weapon” often describe unfinished objects when their intended
function is clear, as with a disassembled rifle; (2) the statute treats starter guns as weapons though they require conversion work; and (3) the statute contemplates that items other operable firearms qualify as “weapons.” The kit also satisfies the statute’s second requirement, as it requires no more time, expertise, or specialized tools to complete than a starter gun, which the statute treats as readily convertible into a functioning firearm.

Inmates win constitutional claim against State prison system

The Court of Appeals has upheld a permanent injunction against the New York State prison system, agreeing with the district court that DOCCS did not provide necessary medication to inmates in violation of the Constitution.

The case is Daniels v. Moores, a summary order issued on March 21. The plaintiffs, who obtained class certification, have chronic pain. Under DOCCS's old policy, strict rules guided administration of their medication, but a new policy was later implemented that eased up those restrictions to allow inmates to get their medication even though these pills can be subject to abuse; certain monitoring rules were put in place to prevent such abuse. But the preliminary injunction hearing revealed that the DOCCS was still following the older, more restrictive policy. The trial court ordered DOCCS to comply with the more recent policy.

Under these factual findings, the fact that DOCCS was still adhering to the prior policy did not render the case moot. The agency was not following the new policy. As for the Eighth Amendment issue of whether defendants were depriving plaintiff of access to necessary health care, the trial court found, and the Court of Appeals (Jacobs, Merriam and Calabresi) agrees, that plaintiff were suffering severe pain (a necessary element under the Fourteenth Amendment) and the defendants deprived plaintiffs of the necessary medication with the culpable state of mind, that is, they did so after ignoring plaintiff's complaints of debilitating pain. This kind of deliberate indifference, a legal standard created by the Supreme Court decades ago to give prison doctors and officials latitude to run their facilities without significant and potential meddlesome constitutional oversight, violates the Constitution.

Other procedural issues: the trial court properly granted plaintiffs' application for a class action, not an easy result to achieve with this many potential class plaintiffs. The Court of Appeals also finds the trial court had authority to award plaintiffs' lawyers attorneys' fees for successfully litigating this case. Winning a permanent injunction, as opposed to a mere preliminary injunction (due to a recent Supreme Court case) will get you those fees, as the plaintiffs have achieved an enforceable judgment on the merits, altering the legal relationship between the parties.

Lawyer properly convicted of threatening his former partners

When does the First Amendment allow you to make threats against other people? When do these threats become "true threats" that are not protected under the Constitution? A lawyer who threatened his former colleagues just found out.

The case is United States v. Dennis, issued on March 21. Defendant was charged with cyberstalking his former law firm partners. They had a falling out of some kind. The jury found him guilty. On appeal, he argues that his missives were not enough to convict because they were not a "serious expression of an intent to commit an act of unlawful violence," a legal standard clarified in Virginia v. Black, 538 U.S. 343 (2003). The Court of Appeals partially agrees with Dennis, but the overall guilty verdict remains.

After Dennis was ousted from the partnership in 2019, he sent electronic communications to his former partners: "u r going to get yours," "you are going to wish you never met me," he would "chase down" his former partner's minor children for the "sins of the father," and "people will be dying daily for the next year," and the children's school will "watch . . . daily along with me." He told another partner that she was "toast," he was "coming for" her, and she should "sleep with one eye open." There were many other such comments.

The Second Circuit (Raggi, Wesley and Khan) joins other circuits in stating that the cybercrime statute must be interpreted under the "true threats" principle to avoid any free speech intrusions. Under this principle, the conviction against Dennis for his communications for Bicks, a former partner, is sound. 

Some of the comments referenced above were sent to Bicks, among thousands that Dennis sent to him, as many as a hundred in a single day, sometimes late at night. The comments were just plain violent and threatening in a biblical way and made reference to mass shootings and Bick's children. These comments left Bicks terrified. Dennis's threats against another partner, Bostick, were similar, and also constituted true threats, the Court says. Some of the comments were racist. There is no way the federal courts are going to tolerate threats like this. 

Bad comments to another former partner, Cottle, however, were not enough to convict Dennis of cyberstalking because these comments, while distressing, were not a true threat in that, for example, Dennis accused Cottle of ingratitude and said, I cannot wait until the next time I hear you talking about brotherhood with someone."

Other issues: the jury charge was not perfect, but Dennis never objected to it, so the standard of review is plan error, a difficult standard to meet. No new trial is warranted because the court finds that even if the jury were properly charged, it still would have rendered a verdict against Dennis. While Dennis also makes evidentiary challenges, those fail under the "abuse of discretion test." While Dennis claims the judge made prejudicial comments about him at trial (having to do with Dennis representing himself pro se after firing his court-appointed lawyers and provoking the judge to correct some of Dennis's mid-trial comments to the jury), that argument is rejected as well under the difficult standard of review guiding such an appellate claim.

Two justices want to revisit McDonnell Douglas in Title VII cases

Two justices on the U.S. Supreme Court want to alter the 52-year-old framework for resolving employment discrimination claims, arguing that the so-called McDonnell Douglas model is unworkable and confusing.

The case is Hittle v. City of Stockton. On March 10, Justices Thomas and Gorsuch issued a decision dissenting from the Court's decision not to hear the case. Having lost their case in the lower courts, Hittle's lawyers filed a petition for Supreme Court review. But even the other conservative justices on the Court evidently do not want to revisit McDonnell Douglas. Still, the dissent provides insight into how two of the Justices approach this issue. When even one Justice wants to revisit or overrule a major precedent, it's important news.

Every employment discrimination lawyer knows about McDonnell Douglas v. Green, 411 U.S. 792 (1973). In cases involving circumstantial evidence, the plaintiff has to make out a minimal prima facie case, usually through proof they were qualified for the position and were terminated or demoted under circumstances creating an inference of discrimination, i.e., a Black employee was replaced by a white employee, or there was something fishy about the adverse action. If the prima facie case is made out, the employer has to articulate a reason for termination or demotion (or other adverse action). Employers almost always satisfy that minimal requirement, as well. The burden then shifts to the plaintiff to prove the real reason was discrimination, usually proven through evidence that the employer's articulated justification was a knowing falsehood. The pretext fight is usually where the action is.

Thomas and Gorsuch write that this framework "has been widely criticized" over the years as confusing and inefficient, having "taken on a life of its own" as it was originally designed for bench trials but now guides summary judgment motions and jury trials. They note that the Supreme Court devised this evidentiary framework "out of whole cloth," though to be fair to the McDonnell Douglas model, most Supreme Court doctrine is devised by the justices to help apply statutory and constitutional principles. Title VII, when enacted in 1964, said nothing about how courts and litigants were supposed to apply it in the real world. Maybe the thinking back then was that discrimination was often so blatant that you did not need a complex evidentiary model to determine if someone was really the victim of discrimination. By 1973, however, employers got wise and knew that direct evidence of discriminatory intent would doom their chances in court, and that more subtle means of discrimination were in order. McDonnell Douglas takes the latter approach into account.

Here are the problems with McDonnell Douglas, as Thomas and Gorsuch see it:

Because the McDonnell Douglas framework was designed for use in a bench trial, the language this Court has used to describe the framework does not neatly track the plaintiff ’s summary-judgment task. or example, the first step requires a plaintiff to “establis[h] a prima facie case.” And, the third step requires the plaintiff to show, “by a preponderance of the evidence,”  that the employer’s stated reason “was in fact pretext” for discrimination. But, a plaintiff need not establish or prove any elements—by a preponderance or otherwise—to survive summary judgment. At that stage, he need only offer enough evidence to create a genuine dispute of material fact.

In addition, 

Our precedent makes clear that the framework is, at most, a “procedural device, designed only to establish an order of proof and production” when evaluating circumstantial evidence. Put another way, it is “‘merely’” a “‘way to evaluate the evidence’” that bears on the ultimate finding of liability. Yet, some courts treat McDonnell Douglas as a substantive legal standard that a plaintiff must establish to survive summary judgment or to ultimately prove a claim.

There is more:

Some courts also fail to appreciate that McDonnell Douglas is necessarily underinclusive. The framework sets forth criteria that, if satisfied, will allow a plaintiff to prove a Title VII violation. But, satisfying McDonnell Douglas is not the only way or even the best way to prove a claim. The McDonnell Douglas Court itself explained that “[t]he facts necessarily will vary in Title VII cases” and the prima facie proof required in one case “is not necessarily applicable in every respect to differing factual situations.” Yet, some courts treat the McDonnell Douglas framework as the exclusive method for evaluating evidence at summary judgment.

Thomas and Gorsuch rely heavily on a Ninth Circuit concurring opinion from December 2023 that questions the McDonnell Douglas framework. Concurrences like this will often find their way into Supreme Court rulings and dissents, and the judges write them as a message to the Supreme Court and other circuit courts to reevaluate some legal principle. 

Another issue that Thomas does not reference, which I have observed, is that the prima facie portion of the three-part framework is "not onerous" and "de minimus" under settled case law. But courts do not so instruct the jury, which may rule against the plaintiff for not having a preponderance of the evidence in support of one of the prima facie elements even though the cases hold the plaintiff to a lower standard. Relatedly, the Second Circuit has said that you should not charge the jury with the prima facie elements, but that rule is not settled; some cases say you have to do it. Yet another quandary is this: the circuit courts have not settled upon how to resolve when pretext alone is enough to prove discrimination. Some circuits, including the Second Circuit want more than just pretext; we call that pretext-plus. Other circuits say evidence of pretext alone is enough to support a jury verdict.

In the 1990's, some federal judges began to question to McDonnell Douglas framework, abandoning the prima facie analysis and turning directly to examining the evidence as a whole to see if there is enough evidence to support the plaintiff's case. That is how juries do it; trial judges charge them on pretext, but I wonder if jurors go beyond the step-by-step instructions and just ask themselves if there is enough to prove discrimination. I have not seen trial judges lately abandon the prima facie test.

I don't know what alternatives the Court may adopt in place of McDonnell Douglas. While the ultimate question for the plaintiff is whether the defendant discriminated against her, the jury probably needs some kind of framework to facilitate its deliberations. For one, thing resolving cases involving circumstantial evidence are not easy and forcing the employer to articulate a reason, and allowing the plaintiff an opportunity to prove that articulated reason is a knowing falsehood certainly focuses the jury's attention on the main issues in the case. Juries may rationally find that if the employer's reason for the plaintiff's termination is a knowing falsehood, that deception may very well prove discrimination. Why else would the employer lie in court?

If the Supreme Court abandons the McDonnell Douglas framework, that will be a major event in the lives of employment discrimination attorneys, sort of like when the Court revised the employer liability standards in sexual harassment cases in 1998, when it issued the the Faragher and Ellerth rulings that upended the case law through the circuit courts. That only two Justices want to revisit McDonnell Douglas means the framework is safe for now. Both Thomas and Gorsuch are outside-the-box thinkers. But Supreme Court case law has been changing very quickly over the last 10 years. Litigants will continue to ask the Court to review this issue, I am sure.

Employer cannot publicly attack plaintiff who won her prior lawsuit

The Court of Appeals holds that an employer, in the course of a long-running lawsuit, must be enjoined from further publishing identifying information about a wage-and-hour plaintiff after she won her case. Publishing such information is unlawful retaliation.

The case is Williams v. Harry's Nurses Registry, Inc., a summary order published on March 18. After plaintiff won her initial FLSA case, the defendant repeatedly challenged the judgment by, among other things, trying to reopen the case, taking up a frivolous appeal, and trying to get the Judicial Panel on Multidistrict Litigation to transfer the case to a federal court in Missouri. The employer also attacked the plaintiff, her lawyer, and the judge online, calling the plaintiff a scammer and a criminal. Defendant also posted plaintiff's date of birth and Social Security number online. The Court refers to this as personal identifying information, or PII. Hence, this retaliation lawsuit.

Retaliation may include adverse actions that post-date the plaintiff's employment. The district court ordered the defendant to remove the identifying information. The Court of Appeals finds the posting of such information was a retaliatory act, as “An employment action disadvantages an employee if it well might have dissuaded a reasonable worker from making or supporting similar charges.” That is black-letter retaliation law under the FLSA and other employment laws. While the employer said he did not post plaintiff's identifying information, plaintiff was able to prove otherwise in the district court.

The trial court also found, and the Second Circuit (Bianco, Park and Nardini) agrees, that defendant intended to retaliate against plaintiff. "The sequence, timing and nature of events surrounding the publication of the information reinforces that its predominant purpose was to get back at Williams. More specifically, the district court found that 'sufficient evidence based on defendant[s’] own words in the postings, [their] rantings about having lost at the district court and Court of Appeals level, and [their] railing against all of the participants in that process, even the judges . . . makes it so clear that . . . at least the primary purpose was to get back at everybody involved in this,' including Williams." While defendant argued that he posted this information to prevent other people from committing identity fraud to obtain employment, the court disagrees and finds :there is no reason [defendant] has to use this forum in this way to police who applies to [defendant] and whether they provide [defendant] with truthful information," as the employer can privately verity the employment information it receives.

Plaintiff also has to prove irreparable harm to win the injunction. She can do so, and therefore recover relief right now and not at the end of the case, the Court of Appeals holds, because "so long as Williams’s PII remains publicly displayed on HNR’s website, she suffers  an ongoing harm that cannot be adequately remedied by a retrospective award of monetary damages, especially when it exposes Williams to 'identity theft and misuse of personal information.'”

There is now way any court is going to put up with this kind of retaliation against a plaintiff who won her lawsuit against a prior employer. For this reason, the Court holds, the balance of hardships and the public interest favor plaintiff's position and not defendant's position. These factors are also relevant to the preliminary injunction analysis. As the trial court held, "the district court found that HNR has no 'real or genuine or . . . non-delusional reason' to post Williams’s PII on its website."

Complex search and seizure case will go to trial in Syracuse

This is a police misconduct case against the Syracuse Police Department. The police raided the plaintiff's house and searched the place up and down, all without a warrant. Plaintiff was ultimately arrested. So we have a claim for unlawful search and seizure, false arrest, and malicious prosecution under the Fourteenth Amendment. The district court granted summary judgment on all claims, but the Court of Appeals reverses on most of the claims, which will go to trial.

The case is Alexander v. City of Syracuse, issued on March 14. This is a complex case: the ruling is 85 pages long, and the case was argued in October 2023. The facts are ugly. According the decision, a young woman suffered a brutal sexual assault at the plaintiff's house the night before. The police barged into the house and stayed there for 12.5 hours. Then after later getting a warrant, the police returned and found drugs in the house, prompting plaintiff's arrest. 

Plaintiff has a case because the police had a chance to obtain a warrant before they entered the house but did not do so. The Court of Appeals (Lee and Robinson, with Judge Newman in dissent) holds there were no exigent circumstances that permit police entry into the house without obtaining a warrant. There may have been a brutal sexual assault the night before, but that does not mean violent activity was taking place when the police decided to enter the house, or that someone was in the process of destroying evidence. The warrants rules, especially under settled law, hold police to a strict framework when they want to enter your house with a warrant. Under the law, a man's home is his castle. The Second Circuit says the police never explained why they did not get a warrant that night.

We have an interesting dissent. Judge Newman views the case from an entirely different angle, stating that plaintiff was operating a prostitution business from his house and sold narcotics, and a 19 year-old was brutally raped the night before the police showed up. Plaintiff was apparently her pimp. You do not want to read the details of what happened to this women, but the dissent's point is that the police reasonably believed they had to enter the house right away after what had happened to this woman. Here is how Judge Newman wraps up his dissent: 

Alexander’s house was a den of prostitution, a base for selling narcotics, and the scene of a brutal rape committed against a teenager, for whom Alexander was the pimp, when he was in the living room while the rape was being committed in the basement. The prospect that Alexander will have an opportunity to require a conscientious police detective to pay him money damages is a bizarre result that even Kafka could not have imagined.

Dissents like this -- decrying the possibility that an undeserving plaintiff may recover money from a public defendant -- are rare, but they are not uncommon. I recall a decision from 1999 when another Second Circuit judge bemoaned how a Section 1983 plaintiff who suffered little damages was able to force a municipality to a costly trial. That case was Amato v. City of Saratoga Springs. 

The concurrence in Amato was written by a conservative judge, but a liberal judge wrote the dissent in Alexander. These judges are not always predictable. What I draw from the dissent is that there is no official way to resolve any case, particularly one brought under the Constitution, where the legal standards are judge-made and therefore draw from case law, which may have different interpretations. Think about it: a different judicial panel could have ruled for the City in this appeal. Even a liberal judge who might ordinarily sympathize with the plaintiff will rule against the plaintiff if they feel strongly about it. 

Inmate wins First Amendment retaliation appeal

You'd be surprised how often inmates win their appeals in the Second Circuit. This case alleges that correction officers threatened and then assaulted the plaintiff after they learned he wanted to file a grievance challenging prison conditions. The case was dismissed under Rule 12, and other portions of the case were dismissed on summary judgment, but the Court of Appeals finds plaintiff has a case, in part.

The case is Walker v Senecal, issued on March 6. Senecal is the CO. According to plaintiff, he ripped up plaintiff's grievance and said plaintiff would wind up "dead" or "in the box" if plaintiff pursued the grievance. The box is the special housing unit and, really, the last place any inmate wants to find himself. The next day, two other CO's slapped plaintiff around and roughed him up and asked plaintiff "if you saw how easily he could get killed for filing grievances against Officer Senecal" and said that any such grievance would land plaintiff in the box. Plaintiff also alleged that Senecal recruited another CO, Benware to retaliate against plaintiff by filing a false misbehavior report against him and firing plaintiff from his job in the prison law library.

Here are the holdings:

1. Plaintiff cannot show a connection between his First Amendment speech (filing a grievance) and Benware's actions. It is not enough for plaintiff to note that these two CO's hung out in the same area at the jail, and plaintiff's other attempts to prove this connection are conclusory.

2. But plaintiff has a case against Senecal, The Court of Appeals (Livingston, Jacobs and Menashi) rejects the trial court's finding that destroying plaintiff's grievance and threatening to throw him into the box were not adverse actions. They were. What also factors into this holding are the officers who slapped and threatened plaintiff over the grievance, making reference to Senecal in doing so. (There was also a retaliatory pat frisk against plaintiff; while cases hold that such pat frisks can also constitute an adverse action in the prison context, the pat frisk in this case does not rise to that level because it took place more than five months after the last retaliatory action, and pat frisks are common in the prison system).

 This does not seem a remarkable holding. The standard is whether the CO's actions would dissuade an inmate from again asserting his speech rights. In addition, the Court of Appeals has held that "a combination of seemingly minor incidents [may] form the basis of a constitutional retaliation claim once they reach a critical mass." The case for that is Tripathy v. McKoy, 103 F.4th 106 (2d Cir. 2024). Ripping up the grievance and threatening the box would convince the inmate that it was not in his interests to speak out again.

The lesson here is that the district court has to aggregate the minor actions to determine if the plaintiff has a retaliation case. That is also the rule in employment discrimination cases. Such an approach provides a realistic view of what the plaintiff really endured. For now, due to the extended discussion on what constitutes an adverse action, this is the definitive cases involving retaliation against prison inmates who seek relief under the First Amendment. 

Vermont's lawsuit screening process violated the First Amendment

The Court of Appeals holds that state court system in Vermont violated the First Amendment in delaying public and media review of new lawsuits. The reason for the delay was that the clerk's office needed time to review the complaints to ensure they did not include Social Security numbers and identifying information.

The case is Courthouse New Service v. Corsones, issued on March 11. I guess the clerk's office in Vermont meant well; the pre-screening was intended to prevent fraud associated with the inadvertent release of personal information. Once that information was removed or redacted, then the media could review the new lawsuits. The trial court held, following an evidentiary hearing, that this process violated the First Amendment right of access to judicial documents. However, in affirming this ruling, the Court of Appeals adds a nuance: the State of Vermont is still legally able to forbid some review of complaints before they are released to the public, depending on the sensitivity of the information in the complaint.

The Court of Appeals (Leval and Chin, with Sullivan in dissent) reminds us that the First Amendment protects the right of access to complaints filed in court. While the Court holds that guarding against the release of sensitive information protects a "higher value" under the First Amendment, the problem is how Vermont went about doing things. The process in Vermont is not narrowly tailored, the Second Circuit holds. Narrow tailoring is a First Amendment concept. It ensures that governmental practices that have potential to infringe First Amendment rights requires careful application, or what we call "narrowly tailoring." 

The Second Circuit holds that, on the evidentiary record developed at trial, that "Vermont has failed to demonstrate that the delays it imposed . . . could not have been reasonably shortened to a significant degree without impairing the higher value sought to to be protected." For one thing, some complaints were not made available to the public right away not because they contained Social Security numbers but because they did not comply with the technical requirements imposed by the clerk's office. Another reason for some of the delays is the clerk's office was looking for attorney notes that somehow found their way into the filed complaints; these notes would not contain confidential information but just careless notes the lawyer forgot to omit from the final version. Put another way, the delay in publicly releasing the complaints sometimes flowed from considerations that do not rise to the level of the "higher values" that might justify a brief delay.

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.