How to draft a notice of appeal

You think it's easy to write up a notice of appeal. Just pull it from your hard drive and change the caption. You'd better take another look at that template.

The case is Gusler v. City of Long Beach, decided on November 26. The plaintiff sued the City and 12 individual defendants under 42 U.S.C. sec. 1983, claiming retaliation. All the defendants moved to dismiss; nine were successful in getting the claim dismissed. As for three of the defendants, the district court denied their motions to dismiss on qualified immunity, and they took up an interlocutory appeal. So counsel for defendants filed a notice of appeal that read:

Notice is hereby given that the defendant Nassau County hereby appeals ... to the extent that the [District] Court denied defendants' motion to dismiss the claims against the individual defendants on the grounds of qualified immunity.

Here's the problem: while the City of Long Beach is situated in Nassau County, Nassau County is not a party to the case. Somebody blew it. But a good lawyer can work with the rules to get what he wants. Or he can at least try. Under Federal Rule of Appellate Procedure 3(c)(1)(A), the notice of appeal has to “specify the party or parties taking the appeal by naming each one in the caption or body of the notice” and permits “an attorney representing more than one party [to] describe those parties with such terms as ‘all plaintiffs,’ ‘the
defendants,’ ‘the plaintiffs A, B, et al.,’ or ‘all defendants except X.’”

The notice of appeal does not quite say the three defendants want to appeal. So it's defective. The only argument for defendants to save the appeal (a proper notice of appeal is jurisdictional) is that their names are in the caption of the notice of appeal. That won't work. The Court of Appeals (Jacobs, Carney and Gleeson [D.J.]) says:

the reference in Rule 3(c)(1)(A) to “naming [the party] in the caption” is best understood to mean that the notice of appeal is sufficient even if the party taking the appeal is named nowhere but in the caption if--and only if--it is manifest from the notice as a whole that the party wishes to appeal. The notice of appeal then meets the requisite of “specify[ing] the party or parties taking the appeal.”

In addition, "An appeal must not be dismissed ... or failure to name a party whose intent to appeal is otherwise clear from the notice." This notice of appeal doesn't work because the three defendants' intent to appeal is not clear. The Second Circuit says, "The three defendants against whom claims remain are among the parties listed in the caption, but the body of the notice states that someone else is appealing the district court's order."

As the Court of Appeals notes, "The statement in the text of the notice--that the appeal concerns the district court’s order 'to the extent that the Court denied defendants’ motion to dismiss the claims against the individual defendants on the grounds of qualified immunity'--may give reasonable grounds for concluding that only the individual defendants have an interest in appealing." However, the notice of appeal is still ambiguous because it says that all the defendants want to appeal, including the ones who won their motion to dismiss the case. "And if it should transpire in the future that it was error to dismiss the claims against them, it is not clear whether they would be bound by any decision we issued in this appeal with respect to their entitlement to qualified immunity. Thus, the notice fails to meet the basic requirement of informing the court and the opposition of who is taking the appeal."

If you want to know the policy reasons for the above rules, read the opinion. The rules do allow for some flexibility, but the Court of Appeals will not bend them to help the defendants in this case. The Court concludes, "Because the notice of appeal did not specify which defendants were taking an appeal of the district court’s decision, we lack jurisdiction to consider their appeal."

Courtroom closure during voir dire gets defendant a new trial

This case tells us a few things: first, that a seemingly inconsequential technicality may entitle a convicted felon to a new trial under the Constitution. And second, lawyers really ought to keep up with case law developments.

The case is United States Gupta, decided on November 8. During jury selection, the defendant's brother and his companion were asked to leave the courtroom because there was no room for them in light of the large jury pool and also to ensure that potential jurors did not hear anything about the case. Defendant's lawyer had no idea this was even happening; he was too busy conducting jury selection. After defendant was convicted, he told his lawyer about the expulsion of his brother and companion. Meanwhile, the case was on appeal to the Second Circuit. But in light of a recent Supreme Court decision that addressed when the public may be excluded from jury selection, counsel told the Court of Appeals about the expulsion for the first time and the case was remanded to the district court for factfinding on this issue. That recent Supreme Court decision helped defendant here.

Back up on appeal, the Court of Appeals vacates the conviction. The courtroom closure was unjustified under Supreme Court precedent. The government even concedes this in its appellate brief. But the government says this was a trivial courtroom closure, you know, no harm no foul. The Court of Appeals (Parker, Walker and Hall) disagrees, reasoning:

Whatever the outer boundaries of our “triviality standard” may be (and we see no reason to define these boundaries in the present context), a trial court’s intentional, unjustified closure of a courtroom during the entirety of voir dire cannot be deemed “trivial.”

Much of the Government’s argument rests on its observation that the voir dire proceedings here failed to produce any contentious issues. We do not necessarily disagree. Most voir dire proceedings are uncontroversial. But the public trial right is not implicated solely in discordant situations. Rather, “the value of openness” that a public trial guarantees “lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known.” Thus, the regularity of the proceedings is an important impression with which the courts should leave observers. While a public presence will more likely bring to light any errors that do occur, it is the openness of the proceeding itself, regardless of what actually transpires, that imparts “the appearance of fairness so essential to public confidence in the system” as a whole.

Public employee fired for filing civil rights lawsuit

Did you know that, with few exceptions, public employees can be legally fired in retaliation for filing a non-frivolous lawsuit against their public employers? It's true. These are not First Amendment cases anymore. The plaintiff files these lawsuits at his own risk.

The case is Connolly v. City of Rutland, a summary order decided on November 5. Years ago, federal judges in the Second Circuit held that the First Amendment prohibited employers from firing public employees who filed civil rights cases against their employers. But if you follow First Amendment retaliation cases in the Second Circuit (and around the country) you know that public employee speech rights have dwindled over the last decade or so.

Connolly's initial lawsuit alleged that the City violated her due process rights under the Constitution in terminating her employment. Although it is not clear in the Second Circuit or district court opinions, Connolly was somehow retaliated against by the Town after filing that lawsuit. She claimed the First Amendment protected her from retaliation for bringing the lawsuit because it raised "a matter of public concern," the legal standard for protected speech by public workers. But the lawsuit does not raise a matter of public concern. While Connolly tries to satisfy this test by arguing that the due process case highlights the way the City manages its affairs, that argument doesn't cut it these days. The district court wrote:

Connolly argues that her lawsuit is protected speech because its content "is of significant importance and interest to the citizens of Rutland" and the lawsuit "concerns the means and methods by which the City's . . . budget and property tax rates were adopted." Connolly further asserts that the content of the speech "concerns [Mayor Louras's] claim, made in the City's Annual Report . . . that he had to eliminate funding for three full-time employees in order to achieve his political goal of `maintaining the tax rate.'" Connolly's original Complaint, however, raised claims arising out of Defendants' conduct in connection with her termination. Just as the plaintiff in Huth v. Haslin, 598 F.3d 70 (2d Cir. 2010), the nature of Connolly's lawsuit is personal to her and generally related to her own situation. Likewise, there is no suggestion in her complaint that Connolly seeks to "debate issues of discrimination" or obtain "relief against pervasive or systemic misconduct by a public agency or public officials." Nor is there any indication that this lawsuit is part of an overall effort to correct allegedly unlawful practices or bring them to public attention.

Nearly every public employee lawsuit against his employer will in some way implicate the public budget or personnel policies or some other matter of esoteric interest to the community. But you need more than that to show the lawsuit raised a matter of public concern. The district court said,

Connolly's lawsuit does not directly 'concern' the City budget or claims made in its Annual Report. Her lawsuit was neither brought to '[d]iscuss[ ] . . . current government policies,' nor 'aimed at uncovering . . . breaches of public trust.' Connolly's only argument related to the City budget pertains to her claim that the City's 'lack of funds' is a sham. This argument constitutes a complaint about Connolly's  'own dissatisfaction with the conditions of [her] employment.' Accordingly, Connolly's lawsuit does not pertain to a matter of public concern.

The Second Circuit (Raggi, Pooler and Leval) upholds this reasoning, and the case is dismissed.

Qualified immunity takes the fun out of due process lawsuit

In this due process case, the plaintiff was a tenured school guidance counselor at a Connecticut high school. Then she took on a guidance counselor position at a different high school because she couldn't get along with the principal at the first high school. Then she took on another guidance counselor position at a third high school (Cheney Technical High School) after getting assurances that she could return to the second high school in March 2008.

Before plaintiff could return to the second high school, she was informed in writing that her durational position at Cheney would be eliminated. Plaintiff argued that she had a protected property interest in her position and that the termination letter violated due process because she had no opportunity to be heard before losing her job. She loses the case on qualified immunity grounds.

The case is Coolick v. Hughes, decided on October 24. Under qualified immunity, the defendant wins the case if the law is not clearly established at the time of the violation. This means that even if in hindsight the defendant violated the Constitution, the defendant is off the hook because the case law was not clear at the time and the public official defendant is given the benefit of that doubt. Here, the defendant who fired the plaintiff did not proceed in an objectively unreasonable manner.

The Second Circuit has held that where the plaintiff is subject to a union contract that provides for adequate post-deprivation procedures, that contract is in effect due process. Those adequate post deprivation procedures constitute due process because some neutral arbitrator or decisionmaker can rule on whether you were treated fairly. That is what happened here. The Court of Appeals (Winter, Hall and Hellerstein [D.J.]) notes that plaintiff utilized the grievance procedures under the contract and she actually won that grievance, which reinstated her with back pay and benefits. She did not lose her tenured status even though she had moved around from position to position at the high schools.

But while plaintiff wins her grievance in proving that defendants violated the union contract, she cannot proceed with her Section 1983 claim under the Due Process Clause. (She proceeded with the federal suit in order to recover punitive damages and attorneys' fees). As a constitutional matter, this case falls into a grey area, the Court of Appeals says. Precedent suggests that there was no constitutional violation at all. But, at a minimum, the law was not clear at the time that plaintiff's constitutional rights were violated. This kills the lawsuit on qualified immunity grounds.

Bergstein & Ullrich sustain $1 million racial harassment verdict

NY court OKs $1M school racial harassment award

Published: December 3, 2012 Updated 1 hour ago

By LARRY NEUMEISTER — Associated Press

 

NEW YORK — One of the biggest awards ever issued for racial harassment in high school - $1 million - was upheld Monday by a federal appeals panel that said it was fair for a jury to conclude a school district should have done more to stop demeaning, threatening and violent conduct directed at a student.

The decision by the 2nd U.S. Circuit Court of Appeals in Manhattan left in place the award for Anthony Zeno, a former student at Stissing Mountain High School in Dutchess County. The award had been reduced from the $1.25 million a jury originally awarded the now 23-year-old haircutter during a 2010 trial. The appeals court said the award wasn't unreasonable given that payouts for harassment in similar cases have ranged from the low six figures to $1 million in one other instance.

The appeals court's opinion noted that Zeno is "dark-skinned and biracial, half-white, half-Latino." It said he "had been menaced, threatened and taunted" at a school where minorities represented less than 5 percent of the student population.

"He endured numerous serious - and sometimes life threatening - incidents of harassment," it said.
It said the Pine Plains Central School District, the defendant in a lawsuit brought by Zeno, knew Zeno was called numerous racial slurs during his 3 1/2 years at the high school from 2005 to 2008 and it was fair for a jury to conclude that school officials should have known that greater action was required beyond punishing individual students each time an attack occurred or offering optional sensitivity training sessions.

The opinion written by Circuit Judge Denny Chin said the appeals court concluded that the school district's "deliberately indifferent responses effectively caused Anthony's continued harassment."

Zeno's lawyer, Stephen Bergstein, praised the ruling, saying: "It's going to help a lot of kids."

"Districts will put better programs in place, keep a better eye out on the kids that are being harassed," he said. "The school was reactive, and you have to be proactive."

Lawyers for the school district did not return a call for comment Monday.

The harassment began in February 2005, weeks after Zeno transferred from Long Island, with racial slurs and frequent taunts. Over time, his harassment worsened, with a football teammate punching him, a student being restrained as he was about to throw a chair at him and his discovery of bathroom wall graffiti saying, "Zeno will die," the 2nd Circuit said. Other students filled his locker with garbage and taunted him with references to lynching, including displaying a noose and threatening to take a rope to the nearest tree, the court said.

The school district suspended some harassing students, typically for five days, and moved one student to another school. Twice, Zeno obtained orders of protection.

New York's concealed handgun law does not violate Second Amendment

The Supreme Court in 2008 gave life to the Second Amendment, holding that the right to bear arms prevented the District of Columbia from banning handguns in the home. That ruling, United States v. Heller, held for the first time that the Second Amendment protects an individual right to own a gun in certain cases. For the next 25 years, courts will have to explore the contours of that right.

The case is Kachalsky v. County of Westchester, decided on November 27. When it comes to interpreting the Second Amendment, the Second Circuit is just getting started. It holds that the Constitution allows New York to make you demonstrate "proper cause" before you can carry a concealed handgun in public.

This case arises from a series of plaintiffs who were denied permits to carry a concealed handgun.Unless you work in certain professions that need a gun as a job or safety requirement, potential handgun owners have to "demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession." A generalized need for self defense is not enough. You also have to undergo a mental health, criminal history and moral character check. Do these requirements violate the Second Amendment? They do not.

Heller does not mean that every plaintiff will win his Second Amendment case. Heller struck down the D.C. gun prohibition because a man's home is his castle, and constitutional law generally keeps the home off-limits to government intrusion. But once you step outside with a pistol, the government has a heightened interest in making sure that guns are not in the hands of every Tom, Dick and Harry who wants one. The Second Circuit (Katzmann, Lynch and Wesley) labors to find the right standard of review in a case like this. It settles on intermediate, and not strict, scrutiny. The gun restriction is legal if it is substantially related to an important government interest., the same test governing sex discrimination. The Court says, "while the state’s ability to regulate firearms is circumscribed in the home, 'outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self defense.' There is a longstanding tradition of states regulating firearm possession and use in public because of the dangers posed to public safety."

The proper cause requirement under New York State law satisfies this test. The state decided 100 years ago to regulate handguns like this. The Second Circuit sums it up:

Given New York’s interest in regulating handgun possession for public safety and crime prevention, it decided not to ban handgun possession, but to limit it to those individuals who have an actual reason (“proper cause”) to carry the weapon. In this vein, licensing is oriented to the Second Amendment’s protections. Thus, proper cause is met and a license “shall be issued” when a person wants to use a handgun for target practice or hunting. ... And proper cause is met and a license “shall be issued” when a person has an actual and articulable—rather than merely speculative or specious—need for self-defense. Moreover, the other provisions of section 400.00(2) create alternative means by which applicants engaged in certain employment may secure a carry license for self-defense. As explained earlier, a license “shall be issued” to merchants and storekeepers for them to keep handguns in their place of business; to messengers for banking institutions and express companies; to state judges and justices; and to employees at correctional facilities. Restricting handgun possession in public to those who have a reason to possess the weapon for a lawful purpose is substantially related to New York’s interests in public safety and crime prevention.

Certiorari petition challenges Second Circuit's ruling in public employee speech case

In July 2012, the Second Circuit held that a Department of Social Services caseworker could be terminated in retaliation for her testimony in Family Court. While the caseworker challenged her termination under the First Amendment, the Northern District of New York and the Second Circuit disagreed, holding that her speech was unprotected under Garcetti v. Ceballos, 547 U.S. 410 (2006), which holds that the First Amendment does not protect speech made pursuant to the employee's job duties.

The case is Kiehle v. County of Cortland, summarized here. I represented Kiehle on appeal. On November 14, 2012, the Yale Supreme Court Clinic, in conjunction with my office, filed a certiorari petition with the United States Supreme Court, asking that the case be heard in light of disagreements among the federal circuit courts about whether the First Amendment prevents public supervisors from disciplining or terminating employees in retaliation for their good faith courtroom testimony. A copy of the petition is here.