2d Circuit issues rare habeas corpus victory

In a rare decision that grants a prisoner's habeas corpus motion on the ground that the state court conviction violated the U.S. Constitution, the Second Circuit rules that the defendant never should have been convicted of felony assault, even though a police officer was shot in the course of a botched gun transaction.

The case is Langston v. Smith, decided on January 7. Not that Langston is a good guy, or anything. What happened is that the trial court, including the prosecutor, got confused about what it takes to convict someone for felony assault, which criminalizes actions taken "in the course of and in furtherance of the commission ... of a felony" that cause "serious physical injury" to a non-participant.

The statute seems easy enough, but I guess it isn't. Langston helped two confidential informants (they were law enforcement officers) purchase an illegal gun. At the apartment building where the sale was supposed to happen, rather then sell the weapons, the sellers shot one of the officers, Marquez, causing serious injuries. Langston testified that he did not know the shooters. He was convicted of felony assault.

If you are not well-versed in criminal law, you are probably wondering why the habeas petition was granted. The Constitution requires that criminal defendants be convicted beyond a reasonable doubt. In this criminal proceeding, the state courts (including the appellate division, which sustained the conviction) got it all confused. This case was tried as a botched robbery, not as a botched gun sale, but the jury was charged that they could convict Langston if the officers' injuries were in furtherance of criminal possession of a weapon. Langston could not be convicted for this, however, because there was no evidence that he had anything to do with the crime of criminal possession of any weapons. The Second Circuit (Lynch, Feinberg and Newman) writes,

had the jury convicted Langston after being asked to decide whether the assault on Marquez had been committed in furtherance of an attempted robbery, affirmance of that verdict would present no difficulty. However, Langston was not charged with attempted robbery, and the trial judge instructed the jury that to convict Langston of felony assault it had to find, beyond a reasonable doubt, that he or another participant caused ... serious physical injury to Arther Marquez while in the course of and in furtherance of criminal possession of a weapon.

What the prosecution had to do to convict Langston of felony assault was to show that the officers were assaulted "to further the possession of the very guns used in the attack -- the theory on which the State principally defends the conviction in this Court." But, as the prosecutor seemingly admitted, "shooting Marquez was in no way part of a plan to ensure that the guns used in the assault remained in the shooters' possession." Langston had nothing to do with the ambush against the officers. The gunmen appeared without warning and opened fire. While the gunmen certainly did the shooting in furtherance of criminal possession of the weapons, Langston's lack of any involvement in that scheme gets him off the hook for felony assault.

Tough luck, pal

Pity the inmate who blows a deadline in challenging his conviction. You have a one-year deadline to file a habeas corpus petition. There are exceptions to that rule, but the courts are not that forgiving.

The case is Jenkins v. Greene, decided on December 23. Jenkins was sentenced to two consecutive 25-year sentences for slashing people with a razor blade. His habeas petition says that he would have taken a plea bargain with a lighter sentence had his trial attorney told him about the possible sentence following trial. In a 2-1 decision, the Court of Appeals agrees that Jenkins got a particularly harsh sentence, but it holds that Jenkins waited too long to file the habeas petition alleging ineffective assistance.

Writing for the majority, Judge Lynch notes the general rule that "A litigant seeking equitable tolling must show both that he 'diligently' pursued his rights and that 'some extraordinary circumstance ... prevented timely filing.'" Jenkins says he faced such an extraordinary circumstance because, after repeated efforts, he could not get an affidavit from his trial lawyer, a necessary requirement in alleging ineffective assistance. But Judge Lynch says that New York cases hold that the inmate has two options in these cases: either timely produce the attorney's affidavit or explain why such an affidavit was not available. The majority concludes,

A requirement that a defendant alleging ineffective assistance of counsel must either submit an affidavit from his attorney or an explanation of why he cannot present such an affidavit from his attorney is not is not an extraordinary circumstance that "prevented [Jenkins from] timely filing” his claim for relief.

Judge Parker dissents, viewing New York cases as vague on what the inmate has to do to preserve his ineffective assistance claim. It is by no means clear, Judge Parker says, that the inmate who cannot get an affidavit from the trial lawyer can preserve his rights by showing why such an affidavit was unavailable. He writes:

The majority cites to cases where New York courts require either an attorney affidavit or an explanation for its absence, and suggest that in lieu of the affidavit, Jenkins should have supplied such an explanation in a sworn statement accompanying his affidavit. The fact that New York courts may not “inflexibly” require such an affidavit sidesteps the fact that some courts apparently do and some do not. My reading of the case law is that such an affidavit probably should be submitted. The majority believes that such an affidavit need not be submitted. If court of appeals judges can honestly disagree over this point of law it seems to me wrong for a court of equity to close the court to a pro se litigant who happened to find himself on the wrong side of this debate. This is especially so where the cost of his choice is an additional forty years of incarceration for a man who, as indicated below, may well have received constitutionally ineffective assistance of counsel. Where equity is the point of departure, this constellation of circumstances is, I believe, extraordinary.

Second Circuit limits the right to medical privacy

We normally associate the constitutional right to privacy with abortion and other child-bearing and (and related) concepts. But that right also covers the right to avoid disclosure of certain personal matters, including medical information. This case asks whether a New York City schoolteacher could sue the Board of Education for publicizing her fibromyalgia. The answer is No.

The case is Matson v. Board of Education, decided on January 11. School officials disciplined Matson, a music teacher, for taking sick leave so she could conduct a symphony orchestra at Trinity Church. Her doctor said the stress was work-related. While she needed time off from work, she could still function as a conductor at the church. In disciplining Matson, school officials publicized a report that made reference to her disability, characterized as "chronic fatigue syndrome, known as fibromyalgia." Matson does not sue over the discipline but, instead, the public report that mentions her disability.

The majority opinion (Miner and Cabranes) says Matson does not have a case. While certain serious and stigmatizing conditions (like HIV or transsexualism) fall within the right to medical privacy, this is a narrow right, and Matson's condition does not qualify. Judge Miner writes:

A general medical determination or acknowledgment that a disease is serious does not give rise ipso facto to a constitutionally-protected privacy right. In Doe v. City of New York, 15 F3d 264 (2d Cir. 1994), we explained that HIV is “sadly a fatal, incurable disease.” Our reasoning in Powell v. Schriver, 175 F.3d 107 (2d Cir. 1999), with regard to transsexualism differed, as we approached the condition as a psychiatric disorder. There, we explained that transsexualism is a “gender identity disorder, the sufferers of which believe that they are ‘cruelly imprisoned within a body incompatible with their real gender identity,’” and we further recognized that transsexualism is a “profound psychiatric disorder.” Fibromyalgia, however serious, is neither alleged to be fatal, as we recognized the HIV condition to be in Doe, nor is it a "profound psychiatric disorder” as we noted in Powell. While fibromyalgia is characterized by fatigue and muscular soreness and tenderness, we have noted that it can be debilitating only in certain instances.

In other words, "although fibromyalgia is a serious medical condition, it does not carry with it the sort of opprobrium that confers upon those who suffer from it a constitutional right of privacy as to that medical condition." Moreover, "we discern no evidence in the record revealing societal discrimination and intolerance against those suffering from fibromyalgia."

Judge Straub dissents, writing that "[i]n finding that Matson has failed to state a viable claim of infringement of her privacy rights, the majority today gives the government substantial reign to publicly disseminate a person’s intimate medical information without any justification. While it is of course not the case that every bit of medical information is encompassed within the right to privacy, in my view, the majority has forged an unduly narrow understanding of what is protected."

Judge Straub notes that Chronic Fatigue Syndrome can be as disabling as multiple sclerosis, lupus and other afflictions. He further accuses the majority of unnecessarily requiring Matson to prove on the face of her Complaint that society broadly discriminates against persons with her disability. At this stage in the case (the Complaint was dismissed under Rule 12), Judge Straub believes that Matson should be able to proceed to discovery on this claim: "Given the undisputedly serious nature of these conditions, and the slight inference required to appreciate that a person suffering from them may reasonably desire to keep that information private, I do not believe it can be said at this early stage that, as a matter of law, the conditions are insufficiently intimate to merit privacy protection."

Take the money and run

Kenneth Thomas went to trial against his former employer, iStar Financial, claiming wrongful termination under Title VII. He won the trial, and the jury awarded him various damages, including $1.6 million in punitives. That's big money. So much money that the district court held that it was unconstitutionally excessive. The parties then filed a joint submission to reduce the punitive damages to $190,000 without option for a new trial. Of course, the district court accepted that joint submission. Thomas now complains that the district court improperly vacated the punitive damages award.

The case is Thomas v. iStar Financial, decided on December 17. This is a strange set of legal issues. Normally, if the jury awards you too much money, the trial court will reduce it in the form of a remittitur. The plaintiff then has a choice: she can take the reduced amount or go to trial again on the damages claim. Most plaintiffs take the reduced amount rather than seek another trial.

The Court of Appeals (Hall, Livingston and Bianco (D.J.]) thinks that Thomas is trying to get around the well-settled rule that once the plaintiff agrees to the remittitur he cannot appeal that remittitur. The Court says: "The joint submission ... appears to have been an effort to evade the rule banning appeals of accepted remittiturs. There is no real distinction, however, between a plaintiff who accepts a remittitur rather than face the uncertain outcome of an appeal, and possibly a new trial, and one who petitions the district court to order an identical reduction in damages without the possibility of a new trial."

This means Thomas will have to live with the $190,000 punitive damages award. I know many people who wouldn't mind that kind of pocket change. The lesson here is that a remittitur by any other name is still a remittitur. You can't take the money and then appeal. There's no poetic ring to that. As Woody Allen said, you have to take the money and run.

Free speech case dies a Mt. Healthy death

I guess you can say the government gets the benefit of the doubt in First Amendment retaliation cases brought by public employees. Even if the evidence shows that the plaintiff was retaliated against for speaking out, the government can sometimes win the case anyway.

The case is Anemone v. Metropolitan Transportation Authority, decided on January 4. It took the Court of Appeals (Livingston, Miner and Trager [D.J.]) a year-and-a-half to write this opinion, and it shows: the statement of facts alone is over 20 pages. But the moral of the story is short: it's hard to overcome Mt. Healthy.

Mt. Healthy is the legal doctrine adopted by the Supreme Court in 1977 that says that even if the employer retaliated against the plaintiff, the employer prevails if it can show that it would have fired the plaintiff anyway, even in the absence of the speech. You can imagine the litigation bloodbaths that Mt. Healthy creates, as management puts together a case that tears apart the plaintiff as a backup strategy in case the evidence suggests there was a retaliatory motive.

Anemone was Director of Security at the MTA. He believed that a high-ranking official at the agency was corrupt. Anemone and one of his aggressive deputies, Casale, took it upon themselves to continue exposing this alleged misconduct even after Anemone was told to stop doing so in order to allow others at the agency to carry the ball. After Anemone and Casale provided information to the New York Times, the district attorney's office and state Assembly committee, Anemone was fired. As it happened, according to an internal MTA investigation, Anemone and Casale fabricated information about the alleged corruption.

The Court of Appeals actually has two holdings: first, Anemone's speech is not protected because it was pursuant to his official job duties. At least as to the contacts with the DA's office, Anemone was responsible for security at MTA, so this speech was among his responsibilities, killing his case under Garcetti v. Ceballos, 547 U.S. 410 (2006). He tries to get around this by saying that he went to the DA outside the chain-of-command when superiors told him to stop his advocacy, but the Court of Appeals instead sees this as insubordination, not citizen speech. This may sound like a simple holding, but I believe it's the first time the Second Circuit has said this post-Garcetti.

As for Anemone's contacts with the Times and the state Assembly committee, the Court of Appeals does not decide whether that speech is protected. The Court instead says that even if the speech was First Amendment activity, MTA must win the case on summary judgment because plaintiff's insubordination would have resulted in his termination anyway. There was also longstanding tension and conflicts between Anemone and his superiors that predated the corruption matter. Anemone even acknowledged that prior to his contacts with the Times, he knew his job was in jeopardy.

Finally, since Anemone misrepresented the evidence in speaking with the Times, management probably had the right to fire him under Pickering v. Board of Education, a Supreme Court case from 1968 that says you can be fired if the value of speech was outweighed by its disruption in the workplace. The Second Circuit does not go that far however, deciding instead that the Mt. Healthy defense is satisfied because "evidence of the disruptive impact of potentially protected speech is relevant to the extent that it serves as an additional, permissible reason for which the government could have taken an adverse employment action against a government employee."

Suspicious timing not enough to win Title VII retaliation case

This case resolves an issue that I have wondered about from time to time. Here's the issue: under Title VII, if you engage in protected activity (complain about discrimination in the workplace or file an EEOC complaint) and are fired or demoted shortly afterwards, that tight link between protected activity and adverse job action is enough to make out a prima facie case of retaliation, forcing the employer to articulate a neutral reason why you got fired. But is suspicious timing enough, by itself, to win the case? The answer is no.

The case is El Sayed v. Hilton Hotels Corp., decided on December 17. I believe the Court of Appeals has handled this issue in non-precedential summary orders, but this is the first published case to do so.

Three weeks after plaintiff complained to management that a co-worker called him a "terrorist Muslim Taliban," he was fired. There's no doubt plaintiff has a prima facie case of retaliation. But management says it really fired El Sayed because he omitted certain information from his employment application. The Second Circuit (Pooler, McLaughlin and Wesley) states: "The temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation under Title VII, but without more, such temporal proximity is insufficient to satisfy appellant’s burden to bring forward some evidence of pretext. Indeed, a plaintiff must come forward with some evidence of pretext in order to raise a triable issue of fact."

The sequence of events keeps plaintiff in the ballgame, but only until management offers its reason for terminating him. He cannot show pretext. "Appellant produced no evidence other than temporal proximity in support of his charge that the proffered reason for his discharge was pretextual. Additionally, Appellant concedes that he omitted certain employment history from his application to work at the Hilton, and has not disputed the Hilton’s assertion that this omission was grounds for termination under Hilton’s employment policies." Summary judgment is affirmed.

Vague Title VII complaint dies an Iqbal death

The Supreme Court's ruling in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), requires plaintiffs' attorneys to file complaints alleging plausible claims. "Plausible" is a legal term of art, but courts are in agreement that bare-boned "notice" pleading is on the way out. If you want to survive an Iqbal motion, make your complaints more detailed.

The case is Nixon v. Blumenthal, a summary order decided on December 15. Nixon and other plaintiffs work for Connecticut State Police. In this First Amendment action, plaintiffs alleged they were retaliated against for cooperating with an investigation of corruption and criminal activity within the Department. If you've been following First Amendment law over the last few years, you may be wondering if this case survives a recent Supreme Court ruling, Garcetti v. Ceballos, which holds that public employee speech made pursuant to the plaintiff's official duties is not protected speech. But the Court of Appeals (Cabranes, Parker and Korman [D.J.]), resolves this case under Iqbal.

The Second Circuit summarizes the Complaint: "Plaintiffs’ complaint accuses defendants of permitting, condoning, or acquiescing in the sharing of confidential information about plaintiffs with members of senior management of the DPS. As a result, plaintiffs allege that they work 'in an environment permeated by hostility.'” These allegations were probably enough to survive a motion to dismiss in a pre-Iqbal world. Not anymore. They are deemed conclusory under Iqbal. The Court of Appeals holds:

The complaint provides no details about what kind of confidential information was disclosed, and, more significantly, the complaint offers absolutely no factual support for its conclusory allegation that plaintiffs work in an environment permeated by hostility. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). The District Court rightly concluded that the conclusory allegations contained in plaintiffs’ complaint failed to satisfy the pleading standards set forth in Iqbal.

So what do we learn from this? Give the courts as much juicy detail in writing the Complaint as possible. Who wants to risk losing under Iqbal? The details will come out anyway in discovery, and you can go right to document exchange and depositions after filing the Complaint rather than defending a motion to dismiss. It's a cruel world under Iqbal. Be careful.