Statute prohibiting lawsuits against gun industry is constitutional

New York City sued gun manufacturers (and sellers) on the theory that the gun makers were selling guns that they knew would end up on the black market. The problem for New York City was the Congress passed a law in 2005 requiring the courts to dismiss lawsuits like this. That law contained an exception, however, allowing these cases to proceed if there was a separate basis in state or federal law to sue the gun manufacturers. The City argued that the New York State law against public nuisances allowed it to proceed with the case. No dice, says the Second Circuit.



The case is City of New York v. Beretta USA, Corp., decided on April 30. New York City's case against the gun industry was chugging along when Congress decided to nip these cases in the bud, enacting the Protection of Lawful Commerce in Arms Act. That law requires the courts to dismiss any

civil action or proceeding . . . brought by any person against a manufacturer or seller of a [firearm distributed in interstate or foreign commerce] . . . for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a [firearm distributed in interstate or foreign commerce] by the person or a third party.

For some reason, that law contains an exception which allows the lawsuits to proceed if the case is premised on the violation of state law. In this instance, New York City invoked the public nuisance law and also said the PLCAA law was unconstitutional. But, since Congress has authority to regulate the kind of interstate commerce alleged here (gun sales) and it also has authority to wipe out pending lawsuits by statute, the law is constitutional. The latter question concerned whether Congress dictated the outcome of pending cases (illegal) or simply changed the applicable law (legal). The Court of Appeals says the law simply changes the law, and for that reason the law does not violate the separation of powers by intruding on judicial authority.



The other question here is whether there is a separate basis in State law for the City to maintain this suit. The City relied on the state's criminal nuisance law.

A person is guilty of criminal nuisance in the second degree when:

1. By conduct either unlawful in itself or unreasonable under all the circumstances, he knowingly or recklessly creates or maintains a condition which endangers the safety or health of a considerable number of persons; or

2. He knowingly conducts or maintains any premises, place or resort where persons gather for purposes of engaging in unlawful conduct.

Whether the City may invoke the criminal nuisance law depends on whether that law is "applicable to the sale or marketing of [firearms].” If the nuisance law can be interpreted to cover this activity, then the City can maintain the suit under the 2005 law intended to protect the gun manufacturers. Since the nuisance law has never been interpreted to cover gun sales and it generally applies to everyone, not just gun manufacturers, the City has an uphill battle here. In its exhaustive statutory interpretation of the 2005 law, the Court of Appeals also finds that Congress intended that the loophole allowing predicate State or Federal law claims against the gun industry only allows these separate claims if the State or Federal law regulates the firearms industry. Since the New York nuisance law does not fit within this exception, the case is dismissed pursuant to an act of Congress.



For the lawyers out there who want the Second Circuit's precise holding, here it is:

In sum, we hold that the exception created by [PLCAA] (1) does not encompass New York Penal Law § 240.45; (2) does encompass statutes (a) that expressly regulate firearms, or (b) that courts have applied to the sale and marketing of firearms; and (3) does encompass statutes that do not expressly regulate firearms but that clearly can be said to implicate the purchase and sale of firearms.

Not every commute is work-related under the FLSA

Under the Fair Labor Standards Act, the employer has to pay you a fair day's pay for a fair day's work. The question in many of these cases is whether certain activities constitute "work" under the FLSA. That was the focus of a case decided by the Second Circuit this week.

The case is Singh v. City of New York, issued on April 29. The plaintiffs worked as fire alarm inspectors who were required by their employer to carry and keep safe necessary inspection documents during their commutes. For that reason, they wanted compensation for their commutes to and from work. The Second Circuit (Newman, Sotomayor and Wesley) said no.

As part of their job, the plaintiffs conducted field inspections of buildings in the city. As the Court of Appeals puts it: "On Friday mornings, inspectors normally report to [Fire Alarm Inspection Unit] headquarters to return completed inspection files for the past week and pick up new inspection files for the coming week. These files generally include documents describing the floor plans and fire alarm history of the buildings to be inspected; various inspection checklists, forms, and reports; and any correspondence between building owners and City agencies. Inspectors are responsible for keeping these documents safe from the time they pick them up on Friday morning until the time they return them on the following Friday. The plaintiffs estimate that the collective weight of these weekly assigned materials is between fifteen and twenty pounds."

The Second Circuit reminds us that "the Supreme Court has generally described work as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” So if the plaintiffs have to carry work-related materials to and from work rather than store it at headquarters, why shouldn't they get paid for the commutes? For most people, commutes involve reading the paper or listening to music, or both. For these guys, they are safekeeping records as required by their employer. They also testified that carrying these documents affects their commutes because this requirement sometimes causes them to miss the subway as it slows down their walk. Sometimes, they are forced to wait for the next subway train in order to make room for the briefcase holding these documents.

In ruling against the plaintiffs, the Court of Appeals says that "[t]he issue is whether the “time is spent predominantly for the employer’s benefit or for the employee’s [which] is a question dependent upon all the circumstances of the case.” In addition, the FLSA was amended to limit pay for certain commutes. "While employees need not be compensated 'for or on account of' commuting to and from work, they must be compensated for any work performed during a commute that is 'integral and indispensable' to a principal activity of their employment." The reason the plaintiffs don't get paid for carrying these documents, according to the Second Circuit, is that "the mere carrying of a briefcase without any other active employment-related responsibilities does not transform the plaintiffs’ entire commute into work." In other words, carrying the documents to and from work may be important, but it's not so important that the City has to pay them for the commutes. As for the additional commuting time required by this job requirement, it's too minimal to make a difference under the FLSA. In sum, the Court holds:

Carrying a briefcase during a commute presents only a minimal burden on the inspectors, permitting them freely to use their commuting time as they otherwise would have without the briefcase. Whether it be reading, listening to music, eating, running errands, or whatever else the plaintiffs choose to do, their use of the commuting time is materially unaltered. While the City certainly benefits from the plaintiffs’ carrying these materials, it cannot be said that the City is the predominant beneficiary of this time.

Class action against credit card companies gets the green light

A proposed class action against the credit card companies for allegedly conspiring with each other to limit the resolution of cardholder complaints was revived by the Second Circuit, which uses the opportunity to remind us about standing, a legal doctrine which can kill any good lawsuit.

The case is Ross v. Bank of America, decided on April 25. The plaintiffs claim that, in violation of the antitrust laws, the credit card companies illegally conspired with each other to force cardholders into accepting arbitration as the only dispute resolution method in the event a dispute arises regarding credit accounts. The arbitration clauses also prohibit class actions. Companies generally like arbitration clauses because arbitration is a less expensive means to resolve disputes than lawsuits. Plaintiffs and their lawyers generally think that arbitrations favor the defendant and pre-arbitration discovery, if any exists, is not as far-reaching as pre-trial discovery. The district court dismissed the Complaint for lack of standing because the plaintiffs were complaining about the arbitration clauses before any of them actually had disputes with the credit card companies. The Court of Appeals (Parker, Leval and Sotomayor) reversed.

The Second Circuit holds that the trial court misunderstood what the lawsuit was about. It's not that the plaintiffs are complaining about unfair arbitration clauses, but that the alleged conspiracy to set arbitration clauses throughout the industry deprived consumers of "any meaningful choice on a critical term and condition of their general purpose card accounts." In addition, "[t]he Complaint alleges that reduced choice and diminished quality in credit services result directly from the banks’ illegal collusion to constrict the options available to cardholders." Another injury is that the allegedly illegal arbitration agreements make the credit cards less valuable because "[a] card that limits the holder to arbitration is less valuable (all other factors being equal) than a card that offers the holder a choice between court action or arbitration. Even assuming that the cardholders might be able to void that limitation when an actual dispute arises by opposing the banks’ motion to compel arbitration via a claim of antitrust collusion, that possibility is more theoretical [in part, because] [t]he cost of litigating the antitrust issue when the particular dispute arises will almost certainly be disproportionate to the dispute."

The Court of Appeals finds that the injuries to the market created by the industry's alleged conspiracy to adopt arbitration clauses creates "injury in fact" among the plaintiffs sufficient to give them standing to sue the defendants. Without any such injury in fact, for example, when the plaintiffs allege a hypothetical or speculative injury, there is no standing.

Informant can't sue the police for drug bust gone awry

The government does not generally have a duty to protect you from dangerous people or situations. This was the holding in the Supreme Court case, DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), a ruling that still triggers debate among scholars and critics. But DeShaney remains the law, and as the Second Circuit reminds us this week, it's difficult to win a lawsuit against the government even when law enforcement officers place you in harm's way.

The case is Matican v. City of New York, decided on April 23. After being busted for drugs, Matican agreed to help the police arrest a drug dealer. One of the officers told Matican, "Don't worry, Robert, we will look after you. We will protect you." With Matican's help, the police arrested the dealer in a sting operation, but when the dealer was released on bail, no one told Matican how violent and dangerous the dealer really was. Had Matican known this, he would have moved to California. Instead, the dealer tracked down Matican and slashed his face with a razor. Matican sued the police for failure to protect him.

To the uninitiated, this case is an easy one. The police placed Matican in danger and did not warn him that the dealer was violent and might go after him. Matican would not have been injured had the police told him about the dealer's violent propensities. But the legal analysis is more complicated. In DeShaney, the Supreme Court ruled that "nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors." There are two exceptions to this rule: (1) where the government has a "special relationship" with the victim or (2) the government "in some way assisted in creating or increasing the danger to the victim." However, even if the plaintiff satisfies one of these conditions, he can't win the case unless the government's failure to protect him was "shock[ing] to the contemporary conscience."

It's very difficult to win these cases under that standard. The Court of Appeals (Feinberg, Winter and Straub) notes that "this [conscience shocking] requirement screens out all but the most significant constitutional violations."As the courts have defined that phrase, Matican had no "special relationship" with the police as he was not in custody or forced into a situation against his will. On the other hand, the government did create and/or increase the danger to Matican because they conducted the sting in a manner that would allow the dealer to know that Matican was the informant.

That's not enough for Matican to win the case, though. Even though the government placed him in danger, it was not "conscience-shocking" as the courts have defined that phrase, because the police have discretion to plan the sting and they need leeway in determining its execution. That strategy may place Matican at great risk, but the police also have to worry about their own safety. If the police decide they need to use physical force against the dealer, that might place Matican in danger. But that force might be necessary to protect the police. That judgment call gives the police the benefit of the doubt, and the Court of Appeals expressly declines to tell the police how to carry out a sting like this. So, while the police may execute the sting in a manner that increases the danger to Matican, that is not "conscience-shocking."

Transfer denial may violate Title VII

Not every employment decision is worth suing over. In the employment discrimination context, courts determine whether the plaintiff suffered an "adverse employment action" for which she can receive compensation. Sometimes, this is an easy call: termination from employment or a demotion counts as an adverse employment action. Lateral transfers may or may not be adverse employment actions. Today the Second Circuit clarifies this issue where the plaintiff is denied a posted job opening to a desirable position.

The case is Beyer v. County of Nassau, decided on April 23. Beyer was a police detective working in the Serology Section, analyzing blood and other fluids from crime scenes. She applied for several available positions with her employer, the Nassau County Police Department, but those jobs went to men. In 2004, the Court of Appeals outlined the legal standard for a case like this: "A denial of a transfer may also constitute an adverse employment action, but we require a plaintiff to proffer objective indicia of material disadvantage; 'subjective, personal disappointment[]' is not enough." So, does Beyer have a case?

The Second Circuit (Calabresi, Walker and Raggi) says yes, reversing the district court's order dismissing the case. Here's the rule that the Court outlines today: "an employee has established the 'adverse employment action' necessary to make out a prima facie case when she has proffered evidence from which a reasonable trier of fact could conclude that the transfer sought and denied would have involved an objective and significant improvement in the terms, conditions, or privileges of her employment."

The Court says that a jury could find that Beyer's transfer denials significantly disadvantaged Beyer and that therefore she suffered an adverse employment action under Title VII: "We conclude that a reasonable jury could find that the [Latent Fingerprint Section] position Beyer sought was objectively and materially better than the position she occupied and that, accordingly, an adverse employment action had occurred." This is because Beyer's present position is a far less desirable place to work in light of the Department's having outsourced much of its work, the fact that her section was not modernizing its operations and credible rumors that her section was going to be closed out. The Court reasons:

These are all objective indications that, by the time Beyer applied to transfer to the LFS, the Serology Section had become a disadvantageous place in which to work. Other evidence, meanwhile, suggests that, for an officer pursuing a career in police forensics, being placed in the LFS was both highly desirable and objectively preferable to working in the Serology Section: (1) at least seventeen people applied for the November 2000 posting, and the supervisor of the unit viewed the jobs as a way of “tak[ing] care of the guys” who had done “the right thing”; (2) assignment
to the LFS entailed using up-to-date equipment and learning new skills; and (3) none of the Department’s latent fingerprint work was being outsourced.

The Court notes that while employers have leeway in how they manage their employees, employers cannot discriminate based on gender. As Judge Calabresi puts it: "Title VII gives employees the statutory right to compete on an equal basis without regard to gender for anything worth competing over."

9/11 health claim against Whitman fails

If the State government violates your constitutional rights, you can sue under 42 U.S.C. sec. 1983, which provides for damages against State defendants. The Federal counterpart to sec. 1983 is a Bivens action, named after a Supreme Court ruling from the early 1970's which authorizes remedies against Federal actors. The problem for plaintiffs is that Bivens is not co-extensive with sec. 1983 actions. In other words, Bivens provides for a remedy in limited cases. That's why the plaintiffs suing Christine Todd Whitman in connection with 9/11 health problems lost in the Court of Appeals.

The case is Benzman v. Whitman, decided on April 22. The potential class action plaintiffs argued that Whitman, former Environmental Protection Agency administrator in the Bush administration, misled 9/11 cleanup workers by telling them through press releases and public statements that the air quality was safe when it wasn't, causing the workers to suffer serious respiratory problems. They sued on the constitutional theory that Whitman's actions were sufficiently outrageous to justify a Bivens remedy. For you lawyers out there, the legal theory is "substantive due process." For everyone else, the theory is that the government's actions (or inactions) are so outrageous that the plaintiffs have a due process claim. As the Court of Appeals put it: "The core of the Plaintiffs’ substantive due process claim is that Whitman should be held personally liable for damages because she knew of the dangers posed by WTC dust and yet issued and approved a series of press releases that “falsely represented to the Plaintiffs and the putative Class that the air in and around Lower Manhattan was safe to breathe.”

Courts are reluctant to expand remedies under Bivens, especially when relief under other Federal statutes are available and/or when policy reasons militate against a damages award against the Federal government. This is because, according to the Second Circuit, "A Bivens action is a blunt and powerful instrument for correcting constitutional violations and not an 'automatic entitlement' associated with every governmental infraction."

The Court of Appeals agrees with the Federal government in this case that "no court has ever held a government official liable for denying substantive due process by issuing press releases or making public statements." But it gets worse for plaintiffs: another Federal law already protects them so there is no reason to expand Bivens to a case like this. The Court: "Not only is the Plaintiffs’ assertion of an implied cause of action unprecedented, it also encounters the substantial objection that Congress has already provided a statutory cause of action for claims 'arising out of' the airplane crashes that destroyed the WTC towers." That law is the Air Transportation Safety and System Stability Act.

Courts will also reject a Bivens claim when "special factors" justify dismissing the case. This is another loophole in the Bivens universe which does not apply in sec. 1983 claims against State defendants. Citing Supreme Court authority, the Second Circuit holds that special factors apply here because "the federal response to disasters, such as the events at issue here, involves 'policy questions in an area that [has] received careful attention from Congress.' Federal disaster response and clean-up efforts are an area in which 'Congress [has] developed considerable familiarity' and 'may inform itself through factfinding procedures such as hearings that are not available to the courts.'"

Restaurants lose First Amendment challenge to calories regulation

New York City enacted a regulation requiring chain restaurants to conspicuously post the nutritional content of their food. The resturant industry challenged those rules in court, claiming among other things that they violate the First Amendment rights of resturants who do not want to government to coerce their speech. The restaurants lose the case.

The case is New York State Restaurant Association v. New York City Board of Health, 08 Civ. 1000 (RJH), decided on April 17, 2008. (No Lexis cite yet).

Generally, the government cannot coerce you to adopt speech with which you disagree. The classic cases in this respect were the Pledge of Allegience case of the early 1950's, when the Supreme Court ruled that the government cannot force children to salute the flag, and also the "Live Free or Die" case of the 1970's, when the Supreme Court held that the State of Vermont cannot force motorists to drive around with that slogan on their license plates. But this this case involves commercial speech, the government has greater leeway to regulate the corporate speech here.

The opening for the restaurants in this case is the legal principle that the government cannot force businesses to subsidize messages that they disagree with. The restaurants argued that the regulation forces them to promote the message that "patrons must consider the caloric content of food when ordering in a resturant, and that calories are the only nutritional criterion that patrons need to consider." The Court disagrees with this novel proposition because the regulation does not require the restaurants to take a position in any ongoing debate. It only requires the restaurants to post non-controversial information: the caloric content of their food.