Second Circuit sustains FLSA verdict

The Court of Appeals has sustained a bench verdict in favor of FLSA wage-and-hour plaintiffs who claimed their employer denied them proper wages and then retaliated against them after they objected to this illegal treatment.

The case is Vazquez v. 142 Knickerbocker Enterprises, a summary order issued on July 8. I assisted in briefing the appeal. The case was brought by Catholic Migration Services and Main Street Legal Services, operated by CUNY Law School, my almer mater. 

The plaintiffs worked at a car wash in Queens. On the wages claim, the Court says, "During the relevant period—November 2007 through April 2014—the applicable minimum wage was $7.15 per hour. See NYLL § 652(1). On July 24, 2009, the minimum wage increased to $7.25 per hour. On December 31, 2013, it increased to $8.00 per hour. State law requires employers to pay employees one-and-one-half times the regular hourly rate for all hours exceeding 40 per week. The evidence at trial supported the conclusion of the district court that [defendant] Azoulay regularly underpaid the plaintiffs."

Plaintiffs proved their case in part through their own testimony, since Defendants' payroll records were incomplete. While management is required to maintain good records, when they don't the trial courts can look elsewhere to prove the plaintiff's earnings. The Court (Lynch, Menashi and Rakoff [D.J.]) further found that management appropriated the plaintiffs' tips. We call that tip-stealing.

We also have a retaliation claim, not uncommon in FLSA and State Labor Law claims. After the plaintiffs brought this lawsuit, Azoulay "wrote to the court indicating that he had reported the plaintiffs to the IRS, the [Social Security Administration], the FBI, and the New York Attorney General’s office for criminal violations. On appeal, Azoulay argues that his actions were not retaliatory but a 'reasonable attempt to meet legal obligations during litigation.'" You read that correctly, the defendant admitted this retaliation to the court, While defendant tried to explain away his actions, the trial court was not obligated to accept that defense, and the trial court's findings on whether defendants' actions were retaliatory will not be upset on appeal unless that finding is completely off-the-wall. Since federal judges issue rulings that usually find support in the record or resolve disputed factual inferences, the retaliation verdict is sustained.

What the Supreme Court did in the transgender athletics case

The Supreme Court has ruled that the states may prevent transgender girls from competing with other girls on the soccer, basketball and other teams. This ruling interprets Title IX (the educational discrimination statute) and the Equal Protection Clause of the U.S. Constitution.

The case is West Virginia v. BPJ, issued on June 30. The transgender/sports question has found its way into the culture wars. It used to be gay rights, but those issues -- at least in the marriage and employment context -- are settled. The Court ruled in 2015 that the Equal Protection Clause requires the states to recognize same-sex marriage, and it ruled in 2020 that Title VII of the Civil Rights Act of 1964 makes it illegal to fire gay and transgender employees. 

But Title IX sports is a different issue, the Court says, because when the statute was enacted in 1972 and then amended over the years, Congress intended that the sex assigned at birth is your sex for purposes of high school sports. In addition, says Justice Kavanaugh writing for the majority, regulations issued under Title IX recognize that biological differences between men and women will have an effect on competitiveness and safety if we are talking about contact sports. As for safety, consider the injury risks if we allow transgender girls compete in girls' sports. As for competitiveness, Kavanaugh says, consider how sports is a zero-sum game, where roster spots are finite and a biological male may take the place of someone else on the girls' soccer team.

The equal protection argument carries a different analysis, but the same result. Under equal protection principles, discrimination on the basis of sex is only legal if the government advances an important justification for the discrimination, and the policy in placed is substantially related to that legitimate interest. We call that "intermediate scrutiny." As opposed to "strict scrutiny" in reviewing racial distinctions created by statute or regulations. The Court says that student safety and competitive fairness principles represent important governmental interests, at least when it comes to high school sports. And the refusal to allow transgender girls to play on the girls' teams is substantially related to that governmental interest. May sex-based classifications fails under intermediate scrutiny, but not this one. Kavanaugh positions himself as an authority on youth sports, and recall he coached girls' basketball before he joined the Supreme Court. He recognizes the joys and anguish of high school sports and says that "anyone who thinks that [soccer, basketball, field hockey, lacrosse, and ice hockey] are not contact sports has not witnessed a game recently." Take it from Kavanaugh, these sports are not for the faint of heart.

A brief concurrence from Justice Thomas makes his clear his skepticism of all the issues relating to transgender status, stating that "'gender dysphoria' is a mutable mental state that is the object of psychiatric treatment," and that "Men and boys with gender dysphoria are not women or girls, even if they think they are." To play around with the definitions for boys and girls and man and woman is to "obscure reality" and to "lie to the public and cease to treat or fellow citizens 'as equals.'" It's a "no" from Justice Thomas on this issue.

Justice Sotomayer dissents on the equal protection issue, claiming the majority is jumping the gun and should have remanded this case for more fact-finding on the legal and factual issues. 

This litigation implicates deeply sensitive, contentious, and evolving issues. These circumstances demand exercising judicial restraint, not rushing to answer conclusively difficult questions without sufficient evidentiary development. In opting otherwise, the majority extends great sympathy to those it favors: the young cisgender girls and women who play sports. I share that sympathy. Playing sports can lead to benefits that are immeasurable, and many are understandably invested in ensuring that competition stays fair and safe. Because the majority, however, inflicts a hardship on those it disfavors without giving them the fair and full opportunity the Constitution requires to litigate their contentions, I respectfully dissent. 

 

What the Supreme Court did in the birthright citizenship case

The Supreme Court has ruled that the Fourteenth Amendment ensures that everyone born in the United States -- even if their parents are not authorized to be in this country -- are American citizens. This ruling resolves a contentious political and legal debate that accelerated when Donald Trump became President and said that the children of "illegal" immigrants are not citizens.

The case is Trump v. Barbara, issued on June 30. The Fourteenth Amendment, enacted following the Civil War, states as follows: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." What does this mean? For the longest time, it was assumed that if you are born here, no matter who your parents are (with few exceptions, such if your parents are diplomats), then you are a citizen. But many legal issues that we thought were settled are not settled. For instance, the Second Amendment lie dormant for decades until the Supreme Court clarified in 2008 that it protects an individual right of gun ownership. 

Chief Justice Roberts writes for the 6-3 majority, though bear in mind that Justice Kavanaugh rules in favor of citizenship but not based on his interpretation of the Fourteenth Amendment but a federal statute. So, on the constitutional issue, this is a 5-4 ruling, remarkably close for an issue that most of us took for granted until Trump issued an Executive Order on January 20, 2025, the first day of his second term, stating that the children of parents who are unlawfully or temporarily present in the United States do not qualify for citizenship.

Roberts reviews the historical record and finds that under English common law (including case law and related legal precedents), children "born within the [sovereign's] dominions owed a natural "allegiance" to the sovereign who protected them at birth. This was the case regardless of how "momentous and uncertain" their presence. These children were "natural born subjects" under the English crown. As Roberts sees it, "this view crossed the Atlantic with the colonists -- and was adopted with little fanfare after the [American] Revolution, as "subjects' of the sovereign became 'citizens' of the States." This was true in all 13 original states. Scholarship in 1838 held that by "the doctrine of natural allegiance," all "who were born within the jurisdiction of a State" were citizens. 

Moreover, Roberts observed, once immigrants started coming to the United States after its founding, emigres from the Old World were "assured that their children would be American citizens by birth alone." A seminal case from New York in 1844 held as such. This principle was colorblind, notwithstanding the Dred Scott decision in 1857 that said Blacks are not American citizens; that ruling was overturned by the Fourteenth Amendment. The Citizenship Clause, set forth in the Fourteenth Amendment, "mirrored the common law's criteria for citizenship." 

What about the "subject to the jurisdiction" language in the Citizenship Clause? That language is not clear on its face and provides an opening for opponents to argue that many foreigners, who came to the U.S. without authorization, cannot give birth to citizens here. As Roberts sees it, under Nineteenth Century dictionary definitions (a common source for the Supreme Court in divining the meaning of statutes and constitutional provisions), "to be 'subject to' the jurisdiction of the United States ... is to 'live under' its 'dominion.'" He adds, "The Citizenship Clause uses jurisdiction in its ordinary sense -- referring to the power of the United States to govern those within its territory." That would necessarily include so-called "illegal" immigrants and others here temporarily.   

Justice Thomas dissents, primarily arguing that the Citizenship Clause was only intended to benefit the newly-freed slaves. Justice Alito writes in dissent that "the Fourteenth Amendment confers citizenship on only those children who, at birth, owe allegiance solely to this country," Alito then offers an extensive history of "illegal" immigration in the United States, particularly from the 1970s onward, concluding that "the Court's interpretation preserves a powerful incentive to enter or remain in this country illegally," as "[i]mmigrants naturally prefer affluent countries where economic opportunities are available," and that other than Canada, "the United States will be the only affluent nation where birth alone is enough to establish citizenship." Alito concludes that the majority ruling is "a mistake that will seriously affect the country's future." 

National origin discrimination claim fails despite manager's impatience with plaintiff's accent

The Court of Appeals has held that an employee with a strong foreign accent cannot sue for wrongful termination after her supervisor angrily complained that he could not understand her and ultimately terminated her employment.

The case is Matthew v. JP Morgan Chase, a summary order issued on June 30. I briefed and argued the appeal. 

This case was dismissed on a Rule 12 motion, so the facts in the Complaint, along with the plaintiff's affidavit, stated as follows: "Matthew alleged that her supervisor, district manager John Wolf,
'complained that he couldn’t understand anything [Matthew] was saying because of [her] accent,' but that her other supervisors did not have similar complaints." Plaintiff alleged that Wolf “informed [her], in nearly every single conversation that [they] had, both in person and over the phone, that he could not understand [Matthew] because of [her] Trinidadian accent,” and that “Wolf expressed clear anger and annoyance to [Matthew] that [she] spoke with an accent.”

Since Wolf played a role in plaintiff's termination, she sued for national origin discrimination. The district court and the Court of Appeals (Lynch, Menashi and Bianco) affirms, and the case is over. We argued that Wolf's hostility was enough to assert a plausible discrimination claim, especially since other managers did not give plaintiff a hard time over had accent. The Court of Appeals disagrees, reasoning as follows:

While mistreatment related to accents can have “a nexus to” national-origin discrimination, Zheng-Smith v. Nassau Health Care Corp., 2021 WL 4097316, at *3 (2d Cir. Sept. 9, 2021) (summary order), allegations concerning the former must still “allow the court to draw the reasonable inference that” the alleged mistreatment was motivated by invidious discrimination. Construed liberally, the allegations here suggest, at best, that Wolf had difficulty understanding Matthew because of her accent on multiple occasions and was consequently angry or annoyed at Matthew due to that difficulty. As the district court noted, she does not allege that he mimicked or mocked her or that he used derogatory words or phrases during these conversations. Nor has Matthew “demonstrate[d] circumstances giving rise to an inference of discrimination by alleging that [s]he was treated less favorably than similarly situated employees.”

The Second Circuit has not yet published a precedential ruling on when hostility or anger toward the plaintiff's accent is enough to support a discrimination claim. This ruling suggests the plaintiff cannot simply allege that a manager fixated on the plaintiff's accent, even if other managers did not have a problem with it.

Threat to impose costs under arbitration clause may be retaliatory

The Appellate Division holds that an employer violates the New York State Human Rights Law when it threatens a discrimination plaintiff that his SDHR charge must be litigated in arbitration and that, if the plaintiff does not pursue that route, he may be subject to costs and attorneys' fees.

The case is In the Matter of Charter Communications v. Eisen, a Fourth Department ruling issued on June 26. This case went to an evidentiary hearing at the SDHR, which ruled in the plaintiff's favor, awarding him $7,500 for pain and suffering and imposing a $30,000 fine on the employer. Charter appealed this ruling to the Fourth Department, which sides with the SDHR and upholds the finding of liability and damages, as well as the fine.

Here are the facts:

After he was fired from his employment with petitioner, complainant filed a complaint with SDHR alleging age discrimination. Petitioner responded by sending a letter to complainant in September 2019 stating that, because of a binding arbitration agreement between the parties, complainant could not pursue his claim against petitioner through a court action. Petitioner advised complainant to "be aware" that the arbitration agreement entitled petitioner to costs and fees, including attorneys' fees, incurred if petitioner was forced to seek court action to compel complainant to resolve his dispute through arbitration instead of litigation. Petitioner then filed the instant complaint alleging age discrimination and retaliation. Thereafter, while the complaint was pending, petitioner sent complainant two additional letters in June 2020 and March 2021 asking complainant to withdraw his complaint with SDHR because of the arbitration agreement.

It is not uncommon for corporate defendants to tell the plaintiff that the claim falls within the arbitration clause. What probably made the difference was Charter's threat that plaintiff might have to pay costs and attorneys' fees if he did not proceed to arbitration. Under the legal standard, such threats "could have dissuaded a reasonable person from" pursuing the discrimination complaint.   

Supreme Court strikes down another gun regulation

The Supreme Court has issued another Second Amendment ruling, finding that Hawaii cannot enforce a law that prevents gun-owners from entering private property with their guns without the property owner's express authorization. 

The case is Wolford v. Lopez, issued on June 25. This is another 6-3 ruling that applies the Bruen decision, issued by the Court in 2022, and which makes it much more difficult to enact and enforce gun laws. Under Bruen, gun laws are unconstitutional under the Second Amendment unless the government can prove there is a historical analogue the law dating to the country's founding. This is a complex constitutional formula, and may be the most "originalist" interpretation of the Constitution we've seen from the Supreme Court. Bruen requires that lawyers and judges review laws dating to the Eighteenth Century in determining if today's laws comport with laws that were in place back in 1791.

Justice Alito says the Hawaii law "departs sharply from the standard common law rule on access to private property held open to the public. Under that rule, everyone, including those lawfully carrying firearms, may enter unless expressly prohibited from doing so. By contrast, under the new Hawaii law, no one carrying a firearm may enter without the property owner's express authorization. The effect of the new rule is to impose severe restrictions on the daily activities of residents who have satisfied the State's rigorous requirements for the issuance of a carry permit."

The majority considers the practical application of the Hawaii rule: when Johnny-citizen leaves the house in the morning, he must   

When these permit holders leave home in the morning, not only must they take care to avoid all the territory where the possession of a gun is prohibited outright, but they may also be barred from entering many places that people routinely visit in the course of their daily routines, such as gas stations, convenience stores, restaurants, coffee shops, drug stores, grocery stores, “big box” stores, home improvement stores, barber shops or hair salons, dry cleaners, and laundromats. This regime hobbles what the Second Amendment protects: the right of Americans to carry arms for self-defense as they go about their daily lives. 

In dissent, writing for the three Democratic-appointed Justices, Justice Jackson sees the case very differently. "To hear the majority tell it, Hawaii’s law is a blatant attempt to end-run our Second Amendment precedents. But the statute at issue does no such thing. Instead, it fairly applies a first principle of property law—the right to exclude—and does no harm to the Second Amendment." 

 

NY Court of Appeals upholds mandatory retirement age for state judges

The New York Court of Appeals holds that the state's mandatory retirement age for judges -- 70 years -- is constitutional. The argument was that the retirement age -- in place since 1777 -- gets the kibosh due tot the recently-enacted Equal Rights Amendment adopted in 2024. The Court of Appeals disagrees.

The case is Miller v. State of New York, issued on June 18. The Court observes that the ERA does not specifically address the mandatory retirement, which is a strike against the plaintiffs' argument. The Court concludes that the ERA was never intended to repeal the age-limit. We got some classic statutory construction in support of this holding. Here is the summary:

The voters have spoken clearly since 1777 that judges may serve until they reach the constitutional age of retirement. That age limit has never been eliminated. For more than two centuries, the voters only modified the age limit, first during the Reconstruction era by raising the age to 70, and again in 1961, when the voters approved a certification process for certain judges and justices to serve to age 76. That limit has been fixed since then, with no ballot initiative to eliminate it and a failed effort in 2013 to raise the age to 80. The retirement age is part of New York's constitutional design. The State's voters, Legislature, members of the bench, and judicial candidates have understood that judicial service is limited in this specific way. Article I, § 11, as amended by the ERA, did not repeal article VI, § 25 (b). The retirement mandate stands. 

Not that I would expect anything less from the New York Court of Appeals, but this ruling represents remarkable self-restraint. The judges on this Court are directly affected by the retirement age, and as they grow older, they must realize that 70 is no barrier to effective judging. There are federal judges who sit on the bench through their 80's and 90's. Seventy is not what it used to be.  

Second Department takes a strong stand on AI hallucinations

The Appellate Division has imposed $11,000 in sanctions against a lawyer and his firm for submitting an appellate brief containing fake case citations, what the legal world now calls hallucinations. This appears to be the Second Department's most extensive discussion thus far on the practice of using artificial intelligence for legal research without double-checking the ensure the AI-generated research is finding real or imagined cases.

The case is Landberg v. City of New York, issued on June 23. Every generation has its new problems. For lawyers, its AI, which can produce research results quickly and provide case citations. The problem is that AI may either make up a non-existent case or cite a real case with holdings that do not appear in the case. What we are seeing -- from the multitude of rulings like this one -- is that some lawyers are using AI for legal research without reading the cases and determining if they are accurate or even if the cases exist. The courts have had it with AI hallucinations, and decisions are issuing nearly every day condemning the practice. Take a look at this database, updated daily.

In this personal injury case, the brief had a number of fake case citations, and the Appellate Division asked counsel about it at oral argument, offering him a 15-minute recess to figure things out. Counsel declined the invitation and "initially confirmed that the authorities within the brief came from Lexis, Westlaw, or a book, or were 'cited from a previous case,'" though "he later hypothesized that the erroneous citations may have possibly been the product of him 'over-relying' on 'other briefs' or string cites." 

This is humiliating for the lawyer, so I will keep his name out of this discussion. I guess the Second Department wants to make a statement in this case, so it details counsel's response to the order to show cause on sanctions:

[Counsel] stated that in connection with his research, he recalled "utilizing traditional legal research resources, including Westlaw, appellate briefs, publicly available sources, and other secondary materials. However, [he] also recall[ed] utilizing artificial intelligence-assisted research tools but [did] not recall which exact tool [he] used, it was one of the free ones available to the public." [Counsel]  stated that after carefully reviewing the brief, it was his "belief that the non-existent citations identified by the Court originated during the AI-assisted portion of [his] supplemental research which [he] negligently failed to verify before filing [the plaintiff's] brief with this Court." [Counsel] stated that this was a violation of the policy of the law firm, which "had made known its policy that all AI generated citations to facts and the law required personal review and confirmation by the lawyers using artificial intelligence tools."

[Counsel] further stated in his affirmation that when he appeared for oral argument and the Court asked him where the fabricated cases came from, he "should have stated that they were hallucinated by artificial intelligence. [He] was genuinely scared at the time. It felt like [his] career was on the line, and [he] was afraid to even use the words 'AI.'"  [Counsel] went on to "expla[in], not justif[y]" that he was "confused and stunned at the questioning because [he] was prepared to address the nuance of the cases [he] cited for the central legal issue as to whether the location of the accident qualified as a 'tree well' within the meaning of Administrative Code § 7-210. The cases with the wrong citations were cited for the more simple, and [he] believed to be non-questionable basic principles of Administrative Code § 7-210."

[Counsel] stated that he was "deeply embarrassed" for his error and that he "can assure this Court with every fiber in [his] body that going forward, [he] will be extremely rigorous, to verify every citation in any paper [he] ever file[s] going forward."

That's a real mea culpa, but the Court still issues a sanction. It notes that we all know about the dangers of AI research, citing to a New York Times article on the issue. The Court then says that counsel's response to questioning at oral argument was inappropriate:

when confronted about the fabricated cases cited in his brief at oral argument, [Counsel] declined the opportunity to take a 15-minute recess to discern where he had found the cases, and maintained that he had found them either on Westlaw or Lexis or in a book, a previous case, or another brief. As [Counsel] later admitted in his affirmation, he was not being candid at the time of oral argument, as he should have said that the cases were hallucinated by artificial intelligence. [Counsel] "expla[ined]" that his decision to be dishonest with the Court was due to being "scared." This may be true.

However, [Counsel]'s decision not to be honest with the Court during oral argument also demonstrated his professional immaturity, arrogance, and profound lack of respect for the judicial system.

Even after being given the opportunity to respond to the Court's concerns in writing, it appears that [Counsel] was still not completely candid. In his affirmation, [Counsel] recalled using artificial intelligence research tools in connection with his supplemental legal research, which he blamed for the three fictitious cases that were cited for what he believed to be "non-questionable basic principles" of law. However, as outlined above, the brief that [Counsel] submitted did not merely contain fictitious case citations for non-questionable principles of law. The brief also contained fabricated quotations from the Court of Appeals, which said the opposite of what the Court of Appeals has actually said about whether Administrative Code § 7-210 is to be construed liberally or strictly. 

In addition, the brief completely misrepresented what was decided or discussed in two real cases cited therein. Since "fabricated quotations from actual cases" and "misstatements of law that are not representative of what a case actually decided" are well-recognized "pitfalls posed by the use of GenAI in drafting briefs" (Matter of Julien v Arthur, ___ AD3d at ___, 2026 NY Slip Op 03308, *1-2), it appears that GenAI was used to do more than simply conduct supplemental research, as suggested by [Counsel] in his affirmation.  [Counsel] wholly failed to fulfill his obligation to review the work of GenAI to prevent the submission to this Court of a brief containing significant misrepresentations of the law.

Counsel was sanctioned $8,500 and his law firm -- where Counsel is an associate -- was sanctioned $2,500 for the AI hallucinations. You should know that the lawyers on the other side of the appeal were also grilled by the Appellate Division panel on the fake citations, and they asked counsel why they did not flag this issue writing their own briefs. These lawyers were not sanctioned, by the oral argument makes it clear that all lawyers have a duty to tell the court when their adversary is citing hallucinations.

 

Court scales back religious freedom law

The Supreme Court has held that a prisoner cannot sue prison guards for cutting off his religiously-inspired Rastafarian hair. This decision narrowly interprets the Religious Land Use and Institutionalized Persons Act of 2000, a religious freedom law which generally allows you to sue the government when it violates your religious rights.

The case is  Landor v. Louisiana Dept. of Corrections, decided on June 23. The plaintiff wore long hair and carried around a court decision stating the prison cannot shave his head upon entry to the facility. That decision may have been good law at the time, but it does not help the plaintiff. Why? He sued under RLUIPA, which is not like other civil rights laws in that it says governmental institutions, upon accepting federal money (and most of them do) accept that money in return for consenting to answer lawsuits under the statute. If you take federal money, then you must allow for lawsuits against you. But that contract must be knowing and voluntary. 

Here is an example: in 1987, the Court said that Congress can distribute highway funds to municipalities on condition that they raise the drinking age to 21. This unusual equation arises from the statute's relationship to the Spending Clause under the Constitution. The federal government can spend money for the general welfare and may therefore attach conditions for the receipt of federal money. But, the Court rules in a 6-3 decision, that consent to lawsuits will not apply when the plaintiff is suing individual defendants, who, while working for an institution that accepts federal money, did not themselves consent to be sued. That is a narrow interpretation of RLUIPA Here is the crux of Justice Gorsuch's reasoning:

Under the Spending Clause, Congress lacks regulatory authority to impose liability on them directly and must depend instead on consent. And because they never agreed to answer suits like this one, Mr. Landor’s case cannot proceed against them any more than a breach of contract action might proceed against a defendant who never formed a contract. 

It is true that the modern Court is more receptive to religious freedom cases than ever before. But Spending Clause statutes like RLUIPA are not like other statutes that also protect religious freedom, like Title VII of the Civil Rights Act of 1964, which is not a Spending Clause statute. In recent years, the Court has been scaling back the protections of civil rights laws enacted under the Spending Clause, holding a few years ago that these statutes do not provide for pain and suffering damages.

The only way to change this is through a new law. But protecting religious freedom has been difficult in the federal world, ever since the Court scaled back the Free Exercise Clause in 1990 in Employment Division v. Smith. In response to that case, Congress passed a law to restore religious religious, but the Court struck it down and created an incomprehensible legal test to determine whether certain laws passed under the Fourteenth Amendment may survive constitutional review. These new laws ultimately led to RLUIPA, one of the few bipartisan statutes passed by our fractured Congresses in the last few decades. But the law only means what the Court says it does, and for plaintiff, it means he has no case. 

 

Supreme Court reinstates high profile child murder verdict

The Supreme Court has reinstated the criminal conviction of the man found guilty of the highly-publicized kidnapping and killing of a boy in New York City in 1979.

The case is McCarthy v. Hernandez, issued on June 22. We have a 6-3 vote, with Sotomayor, Kagan and Jackson dissenting.

The killing of Etan Patz shocked the world at a time when crime in New York City was reaching a peak; he stopped into a bodega on his way to school and no one ever saw him again. The crime was unsolved for decades until the police arrested Pedro Herhandez, who confessed to the crime to a relative and then to the police. The problem with the police confession was that the police began asking him questions without providing his Miranda warnings ("You have the right to remain silent ..."). Once they read him his rights, Hernandez waived them and made a second confession. He gave another confession at the DA's office after waiving his Miranda rights.

At the criminal trial, the jury wanted to know what to do if they thought the pre-Miranda confession was involuntary -- should they disregard the two later videotaped confessions, where he waived his Miranda? The trial court explained that although New York law requires a jury to disregard confessions that it finds were “involuntarily made," state law does not empower a jury to assess whether a later confession is fatally tainted by an earlier, “involuntary” confession. 

The Second Circuit granted him habeas relief, determining that the state court criminal trial violated Hernandez's constitutional rights because the interrogation tactics violated Missouri v. Seibert, 542 U.S. 600 (2004), a splintered ruling that held that police questioning like this violates federal law. As the Supreme Court describes the Seibert ruling, "Writing for a four-Justice plurality, Justice Souter opined that the use of the tactic had undermined the protection that Miranda was designed to provide and that the confession given after the tardy Miranda warning was therefore inadmissible." 

That language from Seibert may seem to help Hernandez in this case, and as noted, the Second Circuit agreed, Not so, says a divided Supreme Court, which holds that Hernandez had no federal right to have the jury evaluate the lawfulness of his confessions after the trial court admitted them at trial. New York law may provide for that right, but the U.S. Constitution does not. Even if Seibert provides for the controlling legal standard -- and that proposition is debatable since it was a splintered ruling -- "that opinion established nothing about a jury's determination of a confession's legality," as Seibert's context was the trial court's ruling on a suppression motion, not a jury's assessment of attentuation" The Supreme Court has never applied Seibert in any other procedural context.

Since the trial court did not violate clearly-established federal law in guiding the jury on how to assess the confessions, there is no habeas corpus relief and the conviction is reinstated. 

Second Circuit reinstates racial discrimination case

The Court of Appeals has reinstated a racial discrimination lawsuit, holding that the plaintiff alleged enough facts in her complaint to plausibly assert that she was denied a promotion and then terminated from her position because of her race.

The case is Brooks v. Bright Horizons, a summary order issued on June 10. I represented the plaintiff on appeal. Keenan & Bhatia handled the case in the district court.

Plaintiff is Black, and her supervisor is white. Plaintiff alleges the white supervisor singled her out for mistreatment, as compared to her white co-workers. When plaintiff put in for a promotion for which she was qualified, someone else was chosen for the position; the selectee was not Black. According to the lawsuit, the selectee was not qualified for the position, as he lacked some of the prerequisites set forth in the job posting. When Plaintiff asked why she did not get the position, her supervisor said that she needed more experience supervising people who are "not like you." In explaining further, the supervisor mentioned an Asian-American director and another employee who is a non-Black Latina. Plaintiff was later fired. That same supervisor orchestrated her termination, claiming that plaintiff did not comply with COVID protocols, even though one of plaintiff's white subordinates who made the decision that broke the protocol was not disciplined. A white woman replaced plaintiff.

The Court of Appeals applies a settled rule in reinstating the failure-to-promote and termination claims: if the promotion is given to someone outside the protected class, and if you are fired and replaced by someone outside the protected class, that's a prima facie case, and if you plead a prima facie case, then the case cannot be dismissed. The Second Circuit more recently articulated this rule in Littlejohn v. City of New York (2015). The Court did not address whether the "not like you" comment carried a racial implication, though the Court did cite that allegation in the statement of facts.

If the cases are settled that plaintiff plead a prima facie case, then why was the case dismissed? Because some district courts, and a few Second Circuit summary orders (which are not precedential) are now holding that replacement by someone outside the protected class is not always enough to make out a prima facie case. No published Second Circuit holds as such. Here is how the Second Circuit (Nardini, Lee and Robinson) handled that issue:

The district court acknowledged our holding in Littlejohn, but relied on a subsequent summary order of this Court to conclude that we had “more recently cautioned that the succession of an employee by a person outside the protected class, standing alone, cannot give rise to a plausible inference of discrimination.” Joint App’x at 102 (citing Marcus v. Leviton Mfg. Co., Inc. 661 F. App’x 29, 32 (2d Cir. 2016) (“Without more, the mere fact that an older employee was replaced by a younger one does not plausibly indicate discriminatory motive.”)). But Marcus did not—indeed could not—undermine what we held in Littlejohn. Procedurally, a summary order is nonbinding, and even a published opinion of a later panel cannot override the published opinion of an earlier panel. In any event, we discern no tension between our two decisions. In Marcus, we were addressing what we described as “skeletal pleading” in a complaint that alleged simply on “information and belief” that the plaintiff had been replaced by a younger employee, without any supporting facts—not even the purported age of the new employee. 661 F. App’x at 32-33. Brooks’ amended complaint is far more detailed and alleges specifics about differential treatment that was accorded to her and a similarly situated employee of Bright Horizons.

What we see is a principle, still unavailable in any published case, that replacement by someone outside the protected class may not be enough to avoid Rule 12 dismissal, but only if there is skeletal pleading that does not otherwise suggest an inference of discrimination. The rule in  Marcus is still the exception. The general rule guiding Iqbal pleading is to write a detailed complaint no matter what. If you've got it, plead it. 

 

Bad court reporter! Bad!

During the criminal trial, the court reporter was unable to capture substantial portions of the trial proceedings. So the stenographer instead recorded, "blah, blah, blah," "blah blah," "omitted," or undecipherable characters instead of the words actually spoken. This is what you read if you were going through jury selection, portions of the trial, jury notes and the verdict. The problem is you need a real transcript for the appeal. 

The case is People v. Meyers, issued by the New York Court of Appeals on May 26. The half-elbowed transcripts surfaced when defendant -- who was convicted of orchestrating a house fire in order to win someone's life insurance -- took up an appeal. I am sure panic ensued when the appellate lawyer realized the transcripts contained all the nonsense. Here is a sample of what the transcript looked like, when the trial judge addressed the jury:

"A trial jury is composed of 12 people. In addition to the 12 jurors, we also, blah, blah, sworn in as a trial juror will serve as the jury's foreperson. You've heard reference to the fact that the defendant was indicted by a grand jury. This is not and must not be taken guilty you, blah, blah, trial jury must consider an indictment by, blah, blah, accused of a crime. Only you as members of the trial jury can determine guilt. A defendant is presumed innocent and until you (untranscribable) find him guilty." 

You can "yada yada yada" your way through a Seinfeld plot but you can't "blah, blah, blah" you way through a criminal trial.  

The trial court held a four-day reconstruction hearing, during which the court heard testimony from the trial judge who presided over the case, the judge's law clerk, all the lawyers who handled the case, and collected notes taken from judge during trial. The hope was that the court could reconstruct what actually happened at trial besides "blah, blah, blah." 

The case reached the New York Court of Appeals on the theory that defendant deserved a new trial because he did not have a proper trial record. But the Court holds that the reconstruction hearing was adequate and other, non-stenographic evidence, was preserved, including video of defendant and his wife visiting the home right before the fire and removing bags of materials from the home, presumably the stuff that defendant did not want burned into oblivion. As for the reconstructed trial record, defendant has not shown any appealable issues relating to those portions of the trial that were not adequately recorded by the court reporter. 

Second chance for murder defendant due to potential Batson violation

At this criminal trial, the prosecutor used his peremptory challenges to remove a series of Black jurors from the case. The criminal defendant was convicted of capital murder but challenged the fairness of the trial due to what he claimed was the racially-motivated jury selection process. He wins in the Supreme Court.

The case is  Pitchford v. Cain, issued on May 28. Never let anyone tell you that a conservative Supreme Court does not always rule in a liberal manner. This is a 5-4 decision, with Justices Kavanaugh and Roberts voting with the three liberals.

In this case, during jury selection, the prosecutor struck four potential jurors, all of them Black. The defendant's lawyer objected on Batson grounds. Under Batson, named after a Supreme Court ruling from 1986, upon such an objection, the prosecutor has to articulate a race-neutral reason for striking the Black jurors. The judge then has to decide -- on the spot -- if that justification is a pretext, or a knowingly false reason. The prosecutor does not have a heavy burden in defending his choices, but this procedure must be followed.

Although the jury convicted the defendant of murder, yielding a 20-year sentence, the Supreme Court grants the habeas corpus petition, holding that the state courts did not reasonably apply Court precedent on this issue. Remember that habeas petitions are not granted simply because the state court did something unconstitutional during trial. The criminal defendant has to show the state court did not reasonably apply Supreme Court precedent. As Justice Gorsuch writes in dissent, "showing legal error . . . isn't enough to satisfy [the habeas statute]. Instead, a petitioner must demonstrate that no fairminded jurist could reach the state court's conclusion under this Court's precedents." So a mere constitutional violation is not enough. The habeas equation, in my view, is one of the greatest anomalies in federal law. But that's a lecture for another day.

What went wrong at the criminal trial was this: the criminal court judge said the prosecutor articulated a neutral reason for striking the Black jurors, but it did not afford defense counsel a chance to rebut the prosecutor's race-neutral reasons as pretextual. Nor did the criminal court make any findings regarding whether the prosecutor's reasons were a pretext for race discrimination. When jury selection ended, defense counsel again raised an objection, to no avail. The trial court cut him off. The defendant gets another shot at challenging the prosecutor's actions, potentially leading to a new trial with a fresh jury. Hey, everyone deserves a second chance, right?

 

 

Supreme Court narrowly interprets Federal Arbitration Act for intrastate bakery drivers

The Supreme Court last week narrowly interpreted the Federal Arbitration Clause -- which favors arbitration and usually produces court rulings for management, which does not want cases in court but instead through the private arbitration process -- to mean that certain bakery and junk food drivers cannot be forced into arbitration when management denies them a proper paycheck.

The case is Flowers Foods v. Brock, issued on May 28. Under the FAA, you cannot compel arbitration in disputes involving the "contracts of employment" of any class of workers "engaged in ... interstate commerce." Since Flowers distributes food all over the country, requiring its drivers to cross state lines, the question is whether the plaintiffs may pursue their claims in open court instead of arbitration -- which will grant you a ruling, albeit on an expedited basis with more limited discovery, no jury, and where the arbitrators' rates are often paid by the employer. See why plaintiffs don't like arbitration? They dislike arbitration so much that they will take this issue to the Supreme Court (an expensive and time-consuming process), which issues a ruling long after the arbitrator might have resolved the case once and for all.

What makes this case unique is that plaintiff did not actually cross state lines in delivering the baked goods. Instead, his "intrastate route formed a constituent part of the ... interstate journey of Flowers's goods from out-of-state bakeries to their intended destinations at retain stores." On these facts, can plaintiff still avoid arbitration under the statute? A unanimous court rules that, under the FAA, workers qualify as engaging in interstate commerce even if they never cross state lines and never interacts with vehicles who cross state lines. That's plaintiff Brock. He gets to litigate his wages claim in court, not arbitration.

The Supreme Court reaches this holding after analyzing, through dictionaries, what certain language in the FAA really means, words like "engage," which the dictionary interpreted to "take part in something or to be employed or involved in that thing." "Engage" has a broad definition, and we presume that Congress had that broad definition in mind when it enacted the FAA many years ago. 

Justice Gorsuch writes that "nothing in those terms requires an individual to cross state lines or to interact with a vehicle that does. "Interstate commerce includes transporting products between points in one state and points in another state. That involves not just crossing state lines, but intrastate activity too. Though a continuous carriage may begin in one State and end in another, much of the journey can take place within the limits of a single state. And at least sometimes, a person can take part, be employ[ed], or be involve[d] in that continuous journey without leaving a State or touching vehicles that do." No case law supports this holding, by the way. It all comes from what must be a hell of a dictionary collection at the U.S. Supreme Court library. I say this because the Court often reviews the dictionary -- including those published at or around the time a certain statute was enacted -- to understand what Congress must have intended in enacting certain statutes.

This case is the fourth in a recent like of cases narrowly interpreting the FAA to exempt certain transportation industry workers from mandatory arbitration. The Court writes:

In recent years, we have had occasion to address the scope of §1’s exemption no fewer than three times. In each case, we have rejected efforts to cabin its reach. First, in New Prime Inc. v. Oliveira, 586 U. S. 105 (2019), we held that the “contracts of employment” §1 embraces include contracts governing independent contractors, not just employees. Then, in Southwest Airlines Co. v. Saxon, 596 U. S. 450 (2022), we held an airline worker who loaded and unloaded cargo fit within §1’s exemption even though she did not fly planes or otherwise cross state lines. Finally, in Bissonnette v. LePage Bakeries Park St., 601 U.S. 246 (2024), we held that a worker can fall under §1 whether he is employed in  the “transportation industry” or some other, so long as his work “play[s] a direct and necessary role in the free flow of goods across borders.” Make this case the fourth.

$76,000 First Amendment verdict is taken away

This case has been kicking around for quite some time. The plaintiff argues that the Town of Babylon (on Long Island) accused him of violating the Town's rental permit requirements in violation of the First Amendment (he claimed the Town retaliated due to his free speech) and due process. The First Amendment claim survived pre-trial motion practice, and the case -- originally filed in 2012 -- went to trial in 2019. Plaintiff won the trial. But things did not end with that victory. Oh Lord, they did not.

The case is Mangino v. Town of Babylon, a summary order issued on May 29. The retaliation theory was that the Town denied approval of his rental permit and initiated civil enforcement proceedings against him because he had previously objected to the Town's fee practices and enforcement methods. So, the kinds of issues that normally play out in state court -- zoning, etc -- became a federal lawsuit due to plaintiff's First Amendment claim. The jury ruled in plaintiff's favor, awarding him approximately $76,000 in damages. 

But wait! The trial court set aside the verdict as agains the weight of the evidence and ordered a second trial. This time around, the Town won the case. Plaintiff now appeals from the earlier order throwing out the favorable verdict. He loses the appeal. 

The Court of Appeals (Walker, Lee and Robinson) reviews that order under the "abuse of discretion" theory, which is highly favorable to the trial court. Appellate courts give the trial judges the benefit of the doubt in making these rulings. The trial court is in the best position to know if the evidence really supports the verdict and whether the interests of justice warrant a new trial. This case is no different. The Second Circuit holds that the trial court "carefully reviewed both testimonial and documentary evidence and concluded that the first verdict could not be reconciled with the record." The trial court found that the verdict simply could not be supported by the trial evidence, which had serious holes in it, the Court of Appeals finds.

We tell juries that they are the ultimate arbiter of the case and that we trust their judgment. When the jury renders its verdict, it leaves the courthouse believing the case is over and they did their job. The jury has no idea the case continues while the judge and the attorneys -- and maybe even the Court of Appeals -- picks through the evidence to see if the jury got it right. This case is a good example of that. It is uncommon for the trial judge to set aside a plaintiff's verdict on these grounds, but it does happen. The lawyers may understand the trial court's reasoning in ordering a new trial after the plaintiff has already prevailed. My guess is that plaintiffs will always be confused about what happened: we won the trial, the trial judge took away the verdict, we had a second trial, and a new jury ruled against us. 

Disparate impact case for social workers' licensing exam is rejected on appeal

This race discrimination claim alleges that the licensing exam for certain social workers discriminates on the basis of race because Black and Hispanic test-takers perform significantly worse than white candidates but that the Association of Social Work Boards, which administers the tests, knew about these disparities but did not correct them, resulting the plaintiffs' failing test scores. The case loses even prior to the commencement of discovery.

The case is Alameda v. Association of Social Work Boards, a summary order issued on May 15. This is a disparate impact case, where the plaintiffs can win even if the testing board did not intend to discriminate on the basis of race. For a disparate impact case to succeed, however, the plaintiffs have to satisfy a demanding legal standard that employs statistics and particular formulas. But first we have a mundane legal issue under Title VII: can the plaintiffs even sue the testing company under this civil rights statute?

Under Title VII, you can only sue the employer for discrimination. The testing people were not plaintiffs' employers. Cases hold that you can hold a third-party liable under Title VII where your formal employer "has delegated one of its core duties to a third party." But the Second Circuit (Perez, Nathan and Katzmann [Court of Intern'l Trade]) finds the defendant here is not such a "third party" that would create an employee-employer relationship under Title VII. 

Plaintiffs also sue under Section 1981, which prohibits racial discrimination in making contracts. There is no employee-employer relationship requirement under Section 1981 in this case, but plaintiffs lose on a different ground relating to the merits of the case: they have not plausibly alleged a disparate impact claim.

Plaintiffs rely on statistics to assert their case, pointing to the disparate test results among white and Black and Latino/a test-takers. But under the cases, to assert such a claim based on statistics alone, you have to show the statistical disparity is "of a level that makes other plausible nondiscriminatory explanations very unlikely." In other words, you need a dramatic statistical disparity. The Court holds that the statistical disparities here do not satisfy that demanding test.

First Department reinstates sex discrimination case

The Appellate Division has reinstated a sex discrimination case against a securities firm on the basis that the case is not untimely and the plaintiff can argue that her termination was the product of a continuing violation. This is a useful ruling for employment discrimination plaintiffs under the New York City and State Human Rights Laws.

The case is Farmer v. Mizuho Securities, LLC, issued on May 12. Plaintiff claims the brokerage firm assigned her a smaller percentage of the market and a lower risk limit compared with male colleagues, and that a supervisor made disparaging comments about her appearance and suggested that she use her gender to gain favor with male colleagues. After plaintiff complained to HR about this, the supervisor vowed to get her fired, and he disparaged her job performance to others at the firm, calling her a cheater. She was forced to resign against her will. 

While the lower court dismissed the case on the pleadings, the First Department holds the plaintiff has a viable case, noting that pleading standards under the City law are lenient in discrimination cases, in contrast to the federal system, where cases are dismissed under a more exacting test thanks to the Supreme Court's dual rulings in the late 2000's, Twombly and Iqbal. "Given the allegations that defendant terminated plaintiff following months of consistently disparate treatment, plaintiff adequately pleads a causal connection between the disparate treatment and the termination. In addition, plaintiff's allegation that defendant falsely characterized its decision to end her employment, stating that it was a voluntary departure, further raises an inference of discrimination."

In emphasizing that federal pleading standards do not apply in state practice, the First Department says out loud what few state appellate rulings have overtly said on this topic, though the understanding that Iqbal pleading does not apply under the Civil Practice Law and Rules.  

The hostile work environment claim is also reinstated. While the lower court said this claim fell outside the statute-of-limitations, "the complaint, as pleaded, sufficiently alleges that the termination was the culmination of a single continuing pattern of discriminatory or retaliatory conduct extending into the limitations period, thus linking the wrongful conduct to the termination. It cannot be said as a matter of law that [the] alleged discriminatory and retaliatory acts . . . were not part of a single continuing pattern of unlawful conduct extending into the three-year period immediately before the filling of the complaint."

The First Department further holds that plaintiff's termination falls within the continuing violations rule, rejecting the trial court's ruling that her termination should be considered legally distinct from other kinds of gender-based treatment. The Court observes, "The City HRL focuses on unequal treatment regardless of whether or not the defendant has engaged in tangible conduct, such as hiring and firing. Thus, under the City HRL, the continuing violation doctrine can operate to link untimely allegations of unequal treatment to timely allegations of unequal treatment, such as plaintiff's termination."

Finally, have have further proof that the State and City HRL's should be interpreted identically. The City HRL, and its liberal proof requirements, has been on the books for several decades. When the State Legislature amended the State HRL in 2019, it was unclear if that law aligned with the City law. It does. Courts are now saying as such, and the First Department explicitly says so in this ruling, perhaps for the first time, though it cites Syeed v. Bloomberg LP, 41 N.Y.3d 446 (2024), a State Court of Appeals case, for that principle. 

Bergstein & Ullrich prevail in striking down speech rules at West Point

Judge Lifts West Point’s Restrictions on Civilian Professors’ Speech

A federal judge also said that the government had offered no real justification for limiting the ability of a professor who sued to express opinions in a Military Academy classroom.

The Military Academy at West Point cannot limit certain speech of its civilian faculty, a federal judge ruled.Credit...Nathan Howard/Reuters

By Benjamin Weiser

May 26, 2026

The Military Academy at West Point cannot require civilian faculty members to obtain approval before using their West Point affiliation to speak to outside audiences about their areas of expertise, a federal judge ruled on Tuesday.

The academy also cannot prevent a professor, Tim Bakken, from expressing his opinions to students in the classroom on subjects he teaches, Judge Cathy Seibel of U.S. District Court in White Plains, N.Y., said in the ruling.

Professor Bakken, who has taught at West Point since 2000, had sued the academy, saying that its policies had violated the First Amendment. He has spoken and written frequently and at times critically about the U.S. military, including West Point, his lawsuit notes.

Judge Seibel issued a preliminary injunction blocking both the approval requirement and the restrictions on Professor Bakken’s speech.

She said that the government had offered no real justification for limiting his ability to express opinions in the classroom. She said the rule was “nonsensical if the mission is to prepare the nation’s future military officers.”

“For genuine strength and leadership to result,” Judge Seibel wrote, “cadets must be exposed to a variety of viewpoints and trained to think critically about them.”

“West Point cadets are already, by definition, smart, tough and patriotic,” the judge added. “They are not snowflakes who will somehow be harmed by learning about controversial issues or competing viewpoints. They will not somehow be weakened in their future defense of our country if their classroom discussions are robust and open.”

The judge noted in her decision that the policies at West Point followed an executive order, “Restoring America’s Fighting Force,” signed by President Trump a week after he took office. It was aimed at Diversity, Equity and Inclusion programs within the military and also barred the military from promoting certain “un-American, divisive, discriminatory, radical, extremist and irrational theories,” the ruling noted.

Mr. Trump has targeted mostly private universities and their faculty since returning to office last year, often threatening to cut off funding, and accusing them of antisemitism and indoctrinating students with ideas that run contrary to his agenda. Many of the schools, including some of the most elite ones, have settled in order to avoid further investigations and restore funding.

At West Point, following the order from Mr. Trump, professors were asked to remove course materials that discussed race, gender or painful parts of American history, The New York Times reported in May of last year.

Professor Bakken, 68, who obtained his law degree from the University of Wisconsin Law School, is the longest-serving law professor in the military academy’s history, his suit says. He is also the author of a 2020 book, “The Cost of Loyalty: Dishonesty, Hubris and Failure in the U.S. Military.”

The requirement that faculty members obtain prior approval when using their West Point affiliation to speak to outside audiences lists examples like journal publications, media interviews, social media posts and podcasts, according to a copy of the policy attached to the lawsuit.

As for restrictions in classrooms, Professor Bakken said in court papers that before the directive, he routinely shared his views on topics he taught in class. He no longer does so, he says. In court papers, he cited questions he received from cadets during the fall 2025 semester seeking his opinion on whether the death penalty is effective or about the value of the movement for deinstitutionalization of mentally ill people.

“I would have provided the cadets with my opinions and views in response to their questions,” he said in court papers. He added that he refrained from doing so because of the new rules.

Judge Seibel also denied the government’s request to dismiss Professor Bakken’s lawsuit. The government had argued that a government employer was entitled to place certain restrictions on speech, as in Professor Bakken’s case, “where the agency in question is a military academy charged with training the nation’s future military officers.”

The professor was free to speak “however and to whomever he chooses,” the government wrote, “so long as he does not utilize his West Point affiliation.”

“When he seeks to invoke his status as a West Point professor,” the government said, “there is a risk that whatever message he is espousing becomes attributable to West Point or the Department of Defense.”

Professor Bakken said on Tuesday that he was grateful that he and his colleagues were “free again to search for truth, and not be subject to the censorship of the military and the government.”

“The most serious threat to free expression is a prior restraint,” he said, “and the U.S. Military Academy applied it to all of its civilian professors.”

Professor Bakken’s lawyers, Jonathan R. Goldman and Stephen Bergstein, said the lawsuit seeks class-action status on behalf of all civilian professors at West Point, and they will now seek a permanent injunction against the policies in question.

The military academy declined to comment, citing the pending litigation. The U.S. attorney’s office for the Southern District of New York did not immediately respond to requests for comment.

West Point’s faculty includes 188 civilians and 495 military officers, according to a declaration filed in the case.

Benjamin Weiser is a Times reporter covering the federal courts and U.S. attorney’s office in Manhattan, and the justice system more broadly.

Father wins constitutional appeal after the city seized his child due to mother's neglect

This case arose when the government determined to remove the child, KA, from the plaintiff-father, KW, on the basis that the child's mother was unsuitable to raise KA due to neglect and problems relating to her prior children. KW paid the price for the mother's neglect, as the government separated him from his son for nearly three years. KW, who was never accused of wrongdoing, brought this due process case.

The case is KW v. City of New York, issued on May 19. The government summarily removed the child from KW on the basis that there was no time to obtain a court order. That makes this a Fourth Amendment and due process case, which the district court dismissed on the pleadings. The Court of Appeals (Sack, Perez and Briccetti [D.J.]) notes that while cases allow the government to remove the child without a court order, it needs to prove an immediate risk of harm to the child that makes it impossible to seek court intervention prior to removal. The issue is whether the government has "reasonably sufficient time" to get a court order. On this record, the government had such time, as it did not proceed with the sense of urgency that would normally attend an emergency child removal: after reviewing KW's residence shortly after his son was born, authorities actually allowed KW to remain with his son for the night, though he was required to bring the baby into the offices of the Administration for Children's Services the following morning. The jury could find that the government did have time to get a court order before taking the child into state custody.

Plaintiffs also sufficiently alleges that the lengthy separation between KW and KA violated the Fourth Amendment because they plausibly claim that caseworkers made intentionally false statements about KW in order to obtain the removal order that separated father from son. While there was in fact a removal order, and that may support a probable cause finding against the father, that presumption is overcome by the allegations that authorities acted in bad faith in removing the child.

As for the due process claim, the Court of Appeals notes that the father has a liberty interest in not being separated from his son, one of the oldest constitutional rights in the American system. But the lawsuit plausibly asserts that KW was denied sufficient pre-deprivation notice of the child-seizure and he was further denied an adequate opportunity to defend himself against the allegations against him. 

The City asserted a qualified immunity defense, arguing that they acted in good faith and therefore did not objectively know they were violating the law. But this appeal arises in a Rule 12 motion-to-dismiss context. Courts frown upon such early qualified immunity rulings without adequate discovery. Moreover, the complaint, if true, suggests the government did violate clearly-established case law in proceeding against the father.

Union's case against Trump administration's funding requirements is moot

Here is another case that originates from the current political environment: a teachers' union sued the U.S. Department of Justice, the Attorney General, and other high-ranking federal officials, challenging the Trump administration's termination of approximately $400 million in federal funding to Columbia University and its demand that the University agree to certain programmatic changes that would align with the conservative administration's policies. But then Columbia and the government struck a deal to restore the majority of the funding and Columbia agreed to implement certain reforms. Is the case now moot?

The case is American Association of University Professors v. U.S. Department of Justice, issued on May 14. The case is moot, says the majority (Chin and Kahn [Menashi dissents]), because the requested relief is no longer needed; the parties agreed to resolve the case on their own without court intervention. 

In the district court, the judge held the union lacked standing to even bring the case, and it thus denied the motion for preliminary injunction. The union appealed to the Second Circuit. While the case started out as an exciting attack on the Trump administration and its effort to force universities to adopt its policies, the case ends in a whimper, as the Second Circuit explores whether the case is moot and, if so, whether to vacate the lower court ruling in favor of the union. 

The question is what to do about the district court ruling that denied the preliminary injunction on standing grounds. The default rule is to vacate, or do away with, the ruling, which "clears the path for future relitigation of the issues between the parties" and ensures that unreviewable judgments do not "spawn any legal consequences." We have special rules guiding whether to vacate the lower court ruling, including whether the appellant is at fault for causing the mootness. For instance, if the appellant acts in a manner intending to moot the appeal, then we don't vacate the lower court ruling. But if the appeal becomes moot because of the appellant's good faith actions, then we have vacatur. In this case, the majority opts to vacate the lower court ruling because Columbia and the government took steps to mooting the case by reaching an out-of court resolution. 

Supreme Court to deterimine if Title IX authorizes employment discrimination lawsuits

The Supreme Court is going to decide whether sex discrimination victims may sue schools and universities under Title IX, which prohibits sex discrimination in federally-funded educational institutions. This case will resolve a split in the lower federal circuits, many of which (including the Second Circuit) hold that Title IX does authorize such cases, even if you can also bring these claims under Title VII.

The case is Crowther v. Board of Regents of the University System of Georgia. The case arises in the Eleventh Circuit, which said that Title IX does not authorize such lawsuits. Title IX is a close relation to Title VII, the general employment discrimination statute that allows plaintiffs to sue for sex discrimination against their employers. But Title IX is also a sex discrimination law, though it does not expressly reference employment cases; rather, it allows you to sue educational institutions for sex discrimination, which may encompass discrimination in high school sports or college programs.

Although Title IX does not explicitly state that it prohibits employment discrimination in the educational setting, according to the certiorari petition filed in Crowther, eight Circuit Courts have interpreted Title IX to permit private claims for sex discrimination in employment. The Second Circuit is one of those circuits, ruling in Vengalattore v. Cornell Univ., 36 F.4th 87 (2d Cir. 2022), that "Title IX allows a private right of action for a university's intentional gender-based discrimination against a faculty member." Citing prior Supreme Court authority, including Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), the Court in Vengalattore held that it is "now well settled that . . . a private right of action is implied" for employees under Title IX. In 2022, the Sixth Circuit held in Snyder-Hill v. Ohio State Univ., 48 F.4th 686 (6th Cir. 2022), that Title IX's implied right of action is not limited to students, and can also be invoked by employees, in that case, school-contracted referees. 

As I wrote in summarizing the Vengalattore ruling four years ago:

[Title IX] is often invoked in cases involving college sports, discrimination against students, and sexual harassment. Can you also sue for employment discrimination under Title IX (which does not require an EEOC charge and therefore has a longer statute of limitations?) In dismissing this claim, the district court stated that "[a]lthough the Second Circuit has not ruled on whether a private right of action exists under Title IX for claims of employment discrimination, '[a]n overwhelming majority of district courts in this Circuit have found that an implied private right of action does not exist[] under Title IX for employees alleging gender discrimination in the terms and conditions of their employment.'" The Court of Appeals disagrees and interprets Supreme Court authority to allow such claims, noting that the Court said in New Haven Board of Educ. v. Bell, 426 U.S. 512 (1982), that "employment discrimination comes within the prohibition of Title IX." Despite that language from Bell, courts were in disagreement about the scope of Title IX, but the Second Circuit notes that most of the other circuits are in agreement that employees may involve Title IX in employment discrimination cases. 

Three Circuits disagree with the Second Circuit and the other courts that permit employment discrimination cases under Title IX: the Eleventh Circuit, the Fifth Circuit, and the Seventh Circuit. But post-Jackson, the Eleventh Circuit is the only Circuit Court to hold as such; the other cases pre-date Jackson. So the Crowther case will focus on what the Supreme Court did in Jackson and what Jackson really means. The Supreme Court has a way of re-interpreting prior cases years later. The only Justice on the Jackson case who sits on the Supreme Court today is Clarence Thomas, and he dissented in Jackson. So we can't predict what will happen in Crowther.

Why sue under Title IX and not Title VII? For one thing, if you sue under Title VII, you have to file a charge of discrimination with the EEOC and then wait six months before you can file the lawsuit. Under Title IX, you can go straight to court without bothering with the EEOC, which may or may not investigate or try to mediate or do much of anything. Also, Title VII has a shorter deadline than Title IX. 

Wage-and-hour verdict is upheld on appeal

This wage-and-hour case went to trial in the Eastern District of New York. At the non-jury trial, the judge ruled for the plaintiff, holding that she was denied overtime pay, awarding damages in the amount of approximately $23,000 and about $70,000 in attorneys' fees. The Court of Appeals upholds the verdict.

The case is Heras v. Metropolitan Learning Institute, a summary order issued on May 18. It is very difficult to overturn a jury verdict, as the trial court has discretion to assess credibility and to determine the facts and draw reasonable inferences from those facts. Still, nobody likes to lose, which is why we have the Court of Appeals.

The employer claimed that plaintiff was exempt from the overtime pay rules because she was an "outside salesman." There is such an exemption, but the employer has the burden of proving that the plaintiff regularly works away from the employer's business and has the primary job of making sales or to obtain orders or contracts for services. I guess the rationale is that this work takes time and the plaintiff may spend more than 40 hours a week in this capacity, and she may also recover commissions from these sales that will make the extra work worthwhile.

The Court of Appeals (Lohier, Robinson and Nathan) rules that defendant did not prove that plaintiff fell within this exception. It was not plaintiff's job to make sales, which involves obtaining a commitment from customers. Instead she was a recruiter, "merely stimulating interest in the school but not obtaining a commitment." A fine line, but a line nonetheless. While defendants noted that those who recruited more students earned more money, "they cannot point to any record evidence that Heras received a commission or was otherwise compensated for her successful recruitment efforts." As such, making sales was not her "primary duty."

Racial stereotypes prompt First Department to reinstate lawsuit

The First Department has reinstated a racial discrimination lawsuit against the City of New York and a police department supervisor based on explicit and implicit racial comments made by the supervisor in the context of the plaintiff's employment.

The case is Taylor v. The City of New York, issued on May 19. Plaintiff is a Black man who worked for the NYPD. He sues under the New York City Human Rights Law, which the City Council intended to reach further than federal law, deemed insufficiently protective of plaintiffs' rights when the City HRL was amended in 2006. This ruling is far-reaching and provides some interesting holdings that plaintiff-side attorneys will embrace.

First, the supervisor, Toczek, made numerous comments disparaging Black NFL football players, including Colin Kaepernick, who engaged in public racial justice protests. When plaintiff told Toczek that these football players had a constitutional right to protest, Toczek said, "it's my right . . . if I want to like Black people." I am sure the NYPD claimed this comment was too vague to support a discrimination case, but the jury may find that Toczek was disparaging Black Americans. He also shared articles about Black NFL players committing crimes and described them as "perps." Toczek's comments lead the First Department to find that plaintiff suffered discrimination based on his race, as the lawsuit asserts this supervisor's subsequent actions against plaintiff were racially motivated. As the First Department says, Toczek's comment to plaintiff about his right whether to like Black people was facially discriminatory, "and is alone sufficient to defeat summary judgment." Under City HRL parlance, this was not an insubstantial comment or a "petty slight or trivial inconvenience." 

That brings us to an incident where Toczek had plaintiff accompany him to apprehend an arrestee who had previously assaulted police officers. Toczek told plaintiff, who is 6'7" and 260 pounds, that the arrestee will take one look at plaintiff and decline to fight, stating, "look how big you are." Plaintiff next suffered a serious physical injury in accompanying Toczek. Plaintiff sufficiently asserts a discrimination claim arising from this episode because "[a] reasonable juror could interpret Toczek's statements commending on plaintiff's physical appearance -- as compared with more slight white coworkers who were injured by the arrestee -- could have been racially-motivated and "communicated a decision-maker's explicit bias," and not a mere stray remark which would be nonactionable under the City HRL.

Moreover, "a reasonable juror could interpret Toczek's assertion that plaintiff's appearance, including his size, would deter violence from the arrestee, as an attempt to invoke the 'classic and common racist trope that Black men are inherently threatening or dangerous.'" The jury has to determine whether this was "coded racial language" or a permissible reference to plaintiff's size. That holding cites to a non-employment case, Matter of Putorti, in which a Justice of the Peace was disciplined for making a similar comment to a litigant who came before him. In that case, the New York Court of Appeals in turn cited to a law review article that addressed racial stereotypes, That makes this case the first employment discrimination case, to my knowledge, advancing this holding about racial stereotypes in the workplace through comments about the plaintiff's physical appearance.

Guns in public spaces, yes. Guns in public parks, no.

New York enacted a comprehensive gun control law in 2022, the same year the Supreme Court issued the Bruen ruling that made it much more difficult for the states to regulate guns, holding that any current gun regulations must have a historical analogue that was in place when the Bill of Rights was enacted in 1791, or when the Fourteenth Amendment was enacted in 1868. The '"historical analogue" framework requires judges to become historians as they try to determine what the gun laws looked like two centuries ago before comparing them to modern statutes. The entire process is uncertain, and some cases both uphold and strike down today's gun laws. This case is one of them.

The case is Christian v. James, issued on May 18. We have two challenges here. First, the plaintiffs, which include gun rights organizations, argue that a New York law prohibiting you from bringing a gun onto private property unless the property owner posts a conspicuous sign stating that guns are allowed. We call this the Private Property Provision. 

The plaintiffs argue that the Private Property Provision violates the Second Amendment as it applies to private property that is open to the public, like a gas station or grocery store. To win the case, the state has to show that a historical tradition supports this statute. But while the state presents a series of old laws from around the country that appear to prohibit weapons on private property without permission, the Court of Appeals holds these old laws are not sufficiently comparable to the New York law because the old laws were enacted for a different reason than the reasons motivating the modern New York law, that is, the old laws were in place to prohibit unauthorized hunting or drew from racial stereotypes. But barring unauthorized hunting and racial stereotyping is not what motivated New York to enact the gun control law in 2022. Rather, New York enacted the gun control law in 2022 to prevent school shootings and other gun disasters. A worthy goal, but there does not appear to be a historical analogue for such laws. This provision New York's gun law is therefore unconstitutional, as it does not overcome a principle goal of the Second Amendment: the right to self defense.

The other provision under challenge relates to public parks, a "sensitive location" under the gun control law where guns are disallowed. The state defends this provision by identifying more than 100 historical laws that are relevantly similar. The research in support of this argument, by the way, is impressive: the state finds laws from small to mid-size U.S. cities from the late 1800's and early 1900's. Where are they finding these old statutes? The research was time well-spent, as the Second Circuit (Bianco and Lee,  over Judge Menashi's dissent) finds these old laws proves a tradition of regulating firearms in crowded public forums. 

 

Abuse of process verdict is overturned post-trial

 This false arrest case went to trial in the Eastern District of New York. The plaintiff also asserted an abuse-of-process claim against the police. The case arose when plaintiff was arrested for trespass even thopugh he believed he had a legitimate lease to live in this house on Long Island; actually, he was fooled into thinking the lease was legitimate. When the police came, they threw him out of the house but did not arrest him for trespass until he called his lawyer, who told the police the arrest was illegitimate. The jury returned a verdict for the plaintiff on the abuse-of-process claim on the basis that the arrest was in retribution for plaintiff calling his lawyer. But the case was not over.

The case is Smith v. County of Nassau, a summary order issued on May 12. While the jury ruled in plaintiff's favor on the abuse-of-process claim, awarding him $251,000 in damages, it also said the police had probable cause to arrest him for trespass. So the trial court granted the County's post-trial motion for qualified immunity on the basis that the law is not clear whether probable cause is a full defense to an abuse-of-process claim. The Court of Appeals sustains the dismissal order, and the abuse-of-process verdict is gone for good. I briefed and argued the appeal.

Courts used to hold that false arrest and abuse-of-process claims are separate claims and that probable cause -- which is a full defense to a false arrest claim -- is not necessarily a full defense to an abuse-of-process claim, which requires a showing of malice in arresting someone, along with arresting someone for reasons having nothing to do with the legitimate criminal process, such as retribution. But then, over the years, the distinctions between these claims grew muddy. By 2016, the Second Circuit the law was no longer clear whether probable cause was not a defense to an abuse-of-process claim. That was the Mangano case. The law remains muddy such that the officers in this case are able to avoid liability because a police officer would not know that he cannot initiate legal proceedings against someone in a case like this.

Some trial courts in the Second Circuit got around the Mangano case by stating that probable cause is no defense to an abuse-of-process case if the malice element of the abuse-of-process claim does not solely turn on the lack of probable cause but instead some other illegitimate basis for the arrest, like retribution. We relied on those cases in trying to reinstate the verdict in this case. But after a spirited oral argument in January 2026, the Court of Appeals (Leval, Lynch and Sullivan) silently rejects that theory and stands firm in holding that the distinctions between false arrest and abuse-of-process claims are still too muddy to allow plaintiffs to sue the police when they have probable cause to make the arrest, even if the police also had ulterior motives to make the arrest.

Habeas petition denied where man shot and killed daughter's boyfriend

The plaintiff in this case challenges his criminal conviction on the ground that the state trial court did not properly apply the law governing when you are justified in causing someone's death. This case has a long road behind it, including an early favorable ruling from the Appellate Division, but in the end, the conviction is sustained and the plaintiff will have to serve his sentence for first-degree manslaughter,

The case is Brown v. James, issued on May 7. The facts are unpleasant. Plaintiff shot his daughter's boyfriend during an altercation in the lobby of his apartment building. The victim, Cabbagestalk, was also the father of plaintiff's grandchild. The daughter witnessed the shooting, which transpired after plaintiff and Cabbagestalk got into plaintiff's face during an argument and swung at plaintiff. When plaintiff pulled out his gun, Cabbagestalk said, "you going to pull a gun out, you better use it." When the gun was fired, plaintiff was leaning back and two feet from Cabbagestalk. The criminal court did not charge the jury on plaintiff's "justification" defense, asserted when the criminal defendant claims he had no choice but to defend himself with deadly force. Following the guilty verdict, plaintiff took up his appeals, ultimately losing in the New York Court of Appeals before filing this habeas petition in federal court.

Under New York law, the jury may consider your justification defense if the defendant reasonably believed he had to use deadly force. But you cannot have a justification charge at trial if you were the initial aggressor, i.e., if you started it all. An initial aggressor is someone who uses or threatens the imminent use of physical force. Under the case law, even when mere physical force is used against the defendant, the initial aggressor is someone who uses deadly force in the encounter. Even someone who threatens to use physical force may be the initial aggressor under state law.

After the First Department ruled in plaintiff's favor and said the criminal court should have allowed the jury to decide if he could invoke a justification defense, the New York Court of Appeals disagreed and reinstated the conviction, reasoning that plaintiff was the initial aggressor in initially drawing his gun, and further that there was no evidence that plaintiff withdrew after pulling out his gun.

The habeas petition in federal court would provide plaintiff a new trial despite the New York Court of Appeals' ruling. But plaintiff loses in the Second Circuit (Nardini, Cabranes and Kahn) because the state court ruling did not violate his due process rights in allegedly denying him the right jury charge. Habeas petitions must show the state court ruling was an unreasonable application of U.S. constitutional law. That's a tough standard to meet, but that's what Congress intended when it amended the habeas law in the 1990s. The Second Circuit finds the New York Court did not get it wrong in reviewing the evidentiary record as to who was the initial aggressor, as the record shows that plaintiff had his gun by his side during the argument. Displaying the gun was a threat to imminently use deadly force. As the New York Court of Appeals' analysis was not unreasonable, plaintiff is denied habeas relief in federal court.