No harm, no foul, no First Amendment case

The First Amendment makes it illegal for the government to retaliate against you for engaging in free speech. This issue usually arises in the context of public employees who blow the whistle on government misconduct. This time around it's different. It concerns a guy who sued the Town of Ridgefield, Connecticut.

The case is Tuccio v. Marconi, decided on December 18. Tuccio is a developer. He filed a lawsuit against a Town police officer. At the same time, he was trying to get a permit to use the municipal sewer system for his project. When the Board denied his request for the permit, he brought a retaliation suit in federal court, claiming the Town held the police case against him. Then, with the retaliation suit pending, Tuccio asked for a meeting with the Town's director of planning and zoning. The Town's lawyer objected to this and said that Tuccio should only communicate with her in writing. According to Tuccio, other Town officials also declined to meet with him.

So does Tuccio have a case? No. Well, yes and no. The case went to trial, and Tuccio won (winning $1 in damages). Then the trial court vacated the jury's verdict under Rule 50, "finding that plaintiff's evidence did not reasonably support a verdict in his favor." The Court of Appeals (Leval, Cabranes and Livingston) affirms, and Tuccio experiences the ultimate disappointment. He wins at trial but in the end he gets nothing.

Under Second Circuit authority, "our constitutional doctrine prohibits government officials from punitive retaliation against persons who exercise their First Amendment right to sue the government." That's the rule in Dougherty v. Town of N. Hempstead Board of Zoning Appeals, 282 F.3d 83 (2d Cir. 2002). If Town officials would not meet with Tuccio in retaliation for his lawsuits, why doesn't he have a case? Because there are limits to retaliation cases. The meetings which Tuccio wanted with Town officials were not that important. At the time of the proposed meetings, Tuccio had no business with the Town, and while he wanted a "sit down" with one of them, the record is devoid of any reason for that meeting. He was neither denied access to any public meetings nor any business opportunities. The meeting denials were trivial.

Instead, the Town attorney was being cautious: he did not want Town officials to meet with a guy who was suing the Town. Not a bad strategy, the Court of Appeals says. Allowing public officials to have meetings like this with a litigation adversary can only mean trouble, for reasons that any lawyer can tell you. God knows what the municipal official might say to a litigation adversary. It could hurt the Town and come out at trial. Since the meeting denials caused no harm, and balancing that against the Town lawyer's prudent refusal to allow public officials to meet with Tuccio, the plaintiff has no case under the First Amendment. No harm, no foul.

What does it take to nudge an Iqbal claim across the finish line?

When the Supreme Court handed down Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) a few months ago, all the attention focused on Iqbal's failed attempt to blame former Attorney General John Ashcroft for Iqbal's detention in the aftermath of the 9/11 attacks. Civil litigators took away a different lesson from Iqbal: it got a little easier for trial courts to dismiss lawsuits without discovery. It is not enough for lawsuits to allege a conceivable civil rights violation; the lawsuit must allege a plausible violation. If you think this is a distinction without a difference, keep reading.

The case is Rutherford v. Katonah-Lewisboro School District, 2009 WL 3755382 (S.D.N.Y. Nov. 3, 2009), a case decided by Judge McMahon. This case is notable for other reasons, discussed here, but it also highlights what Iqbal has done to some civil rights cases. This case arises from allegations that a school teacher behaved inappropriately at a science fair. Judge McMahon starts off by observing that "in the suburbs, where education is the only priority, there us hyper-sensitivity on the part of all concerned whenever something remotely out of the ordinary happens at local schools."

The strange event here was that Rutherford allegedly destroyed student work and raised her voice. The school board decided to send her to a medical examination to see if she was physically or mentally fit to perform her duties. The board referenced this on its website, though it did not mention Rutherford by name, calling her only "Employee No. 785." She claims in the lawsuit that the school board stigmatized her with an allegation of mental instability only because the parents of the students who accused her of losing it at the science fair were on the school board.

Although Rutherford claims that the website reference violated her right to medical privacy and shocked the conscience in violation of the Fourteenth Amendment, she cannot proceed with this claim. Judge McMahon notes that Iqbal changes the ground rules for surviving a motion to dismiss. You have to allege enough facts to "nudge [its] claims across the line from conceivable to plausible." Conceivable is not the same thing as plausible. A rough way to see it is this way: conceivable means perhaps a 40 percent chance that the allegations support a claim. Plausible means greater than 50 percent.

Judge McMahon suggests that Rutherford's privacy and "shocks the conscience" claims are conceivable. But not plausible. The Complaint suggests that the school board did not intend to humiliate plaintiff; the website reference did not mention her name or gender. While the Complaint alleges that the school board acted "maliciously," without allegations to back it up, this buzzword is not going to cut it in the post-Iqbal world. The court adds, "It is simply not possible to infer malice from nothing more than the fact that the complaining children were the children of a board of education member. ... [W]hile it is conceivable that Defendants could have acted from the base motive of wanting to appease the complaining children's parent, no fact alleged in the complaint makes it plausible to think that Defendants did so."

School teacher hit with gag-order does not have First Amendment claim

A school district disciplined one of its teachers after she allegedly destroyed student work and raised her voice at a science fair. The district placed her on paid administrative leave and directs her "to have no further communication with any District employee," including "any verbal, written or electronic communication whatsoever" during her suspension. Is this an unconstitutional gag order in violation of the First Amendment?

The case is Rutherford v. Katonah-Lewisboro School District, 2009 WL 3755382 (S.D.N.Y. Nov. 3, 2009) a district court case decided by Judge McMahon. Plaintiff argues that this speech restriction violates the First Amendment because it violates the right of free association in that she cannot communicate with a union representative, who was a district employee. (Another issue of interest in this case -- the right to privacy -- will have to wait for now).

In resolving this issue, Judge McMahon is faced with a quandary: in public employee First Amendment cases, the courts require that the plaintiff establish that she was silenced on a matter of public concern. That issue typically arises when the plaintiff is retaliated against, i.e., she is demoted or fired for blowing the whistle. That did not happen here; rather, the gag order prevents plaintiff from speaking. Does the public concern test apply in this context? After providing a good overview of the state of the law in this area, the district court says "yes." If the public concern test arises in freedom of association cases involving retaliation, then it must apply in this case, where the plaintiff is simply prohibited from speaking to certain people. This is a complicated issue; the Second Circuit has never dealt with this precise point. But over the years, the courts have emphasized that there is no hierarchy among First Amendment rights in that there is no greater right to speak than there is to petition the government for grievances. The trend in "gag order" cases and freedom of association cases is to apply the "public concern" test in this context; Judge McMahon does so here. A contrary holding would give employees greater rights to associate than to speak out.

In framing the test this way, Judge McMahon dismisses the Complaint on this point. Plaintiff was not prohibited from engaging in associational matters on a public concern. Barring her from speaking to the union (if, in fact, that was the school district's intention) does not silence plaintiff on a matter of public concern because "the only reasonable inference that can be drawn from the pleadings is that Plaintiff's desire to communicate with her union representative was motivated by her own self-interest, not by any desire to vindicate federally protected labor relations policies. There is simply nothing in the complaint that suggests Plaintiff wished to confer wit her union representative about anything other than 'her desire to protect her job and/or her reputation as a schools counselor.'"

Moving right along, the district court next rejects the argument that the gag order is illegal because the school district, through the union contract, agreed that employees can speak with the union about personnel matters. A Tenth Circuit case supports this analysis, Shrum v. City of Coweta, 449 F.3d 1132 (2006), but Judge McMahon declines to follow Shrum because it is poorly-reasoned in that it misapplies Supreme Court authority which requires that courts resolve the threshold issue of whether the protected association impacts on a matter of public concern. (For you First Amendment mavens, it appears that the Tenth Circuit applied the Pickering balancing test -- involving potential disruption of school district functions arising from the speech -- rather than the public concern test).

In the end, the district court notes that she is not crazy about the attorneys' briefing in this case, and that "the parties have barely begun to scratch the surface of the issues presented by Shrum." No matter. Plaintiff ultimately must lose this issue on qualified immunity grounds. As readers of this blog may know, qualified immunity means public officials cannot be sued for damages if the claimed legal violation was not clearly-established at the time. There are no cases quite like this one in the Second Circuit, which means the law in this area is not clearly-established and the defendants cannot be expected to know the full contours of the law. However interesting Rutherford's freedom-of-association case may be, for now, that claim is too esoteric for her to prevail as a matter of law.

Second Circuit revives disability discrimination case

The Court of Appeals has been broadly interpreting the federal disability discrimination laws lately. A few months ago, it ruled that the children of hearing-impaired parents could sue a hospital under the Rehabilitation Act because they were required to interpret for their parents after their father underwent an emotional procedure. This time around, the Second Circuit rules in favor of a disabled woman who was denied a reasonable accommodation in order to visit with her incarcerated husband.

The case is Fulton v. Goord, decided on December 22. As Fulton has Multiple Sclerosis, it is difficult for her to travel long distances. When her husband was incarcerated 300 miles from home, she wanted him transferred to a prison closer to New York City. The state rejected that request. The trial court said that Fulton does not have standing to bring the claim because she has "no legally cognizable interest" in having her spouse transferred to a nearby prison. This analysis misunderstands the case, the Second Circuit (Walker, Jacobs and Leval) says. Rather, "the essence of Fulton's challenge is the defendants' refusal, in light of her disability, to provide her with, or even to consider, 'a reasonable accommodation to participate in the visiting program.'" As Fulton's claim alleges that she suffered harm as a result of the state's refusal to accommodate her disability under the visitation program, she has standing to sue. Citing Innovative Health Systems v. City of White Plains, 117 F.3d 37 (2d Cir. 1997), the Court of Appeals notes that the standing rules are relaxed under the federal disability discrimination laws.

The next question is whether Fulton states a claim for relief under federal law. The Second Circuit says that ... she might have a claim. The Court of Appeals does not definitively say that Fulton can sue. It says that the district court should give her case another look under Rule 12 to see if she states a claim upon which relief can be granted. But let's read between the lines. The Court of Appeals says that, in all likelihood, Fulton has a case, at least on paper. Fulton is an eligible participant in the visitation program, and she says that the state denied her a reasonable accommodation in the form of relocating her husband so that she can more easily visit him. Of course, this does not mean that all of her husband's relatives or acquaintances can bring a claim like this. "Reasonable accommodations" under federal law is a "relational term" that depends on the circumstances. In this context-specific inquiry, the wife probably has more rights than anyone else. As the district court also improperly interpreted her claim to mean that the transfer policy "is discriminatorily based on [Fulton's] disability," the case is sent back for the trial court to reconsider its opinion.

A footnote to this blog post is a footnote the opinion. The Second Circuit suggests ways that plaintiff could be accommodated short of moving her husband to a closer prison. This may be the first case in our Circuit which makes reference to Skype computer software:

For example, it is not unusual for prisoners to be shuttled to urban
centers for court appearances and prosecutorial interviews, and such a visit could also serve to accommodate a disabled spouse. Fulton herself posits that her husband could perhaps have been temporarily transferred “back and forth to a downstate facility accessible” to her for occasional visits. Other prisons have made similar short-term arrangements for disabled inmates. ... Absent transporting the prisoner or the visitor, there are also now electronic means for visits, such as via a “Skype”-style program over the internet. See generally Skype, http://www.skype.com (offering software that enables internet video and voice conferencing). In noting that the possibility of a reasonable accommodation is not unrealistic, we express no view on the reasonableness of any potential accommodation in the instant case. The DOCS likely has other commonplace practices that Fulton might benefit from, and it is for the DOCS, in the first instance, to determine whether any of them would be a reasonable accommodation in this case.

Inmates are not necessarily in "custody" for Miranda cases

Let's face it. It's getting harder and harder to win a habeas corpus motion in federal court. This time around, the Court of Appeals rejects a claim brought by an inmate who incriminated himself without Miranda warnings.

The case is Georgison v. Donelli, decided on December 7. In 1993, Georgison was accused to hitting someone with a pipe in the Bronx. This dispute apparently arose from an organized crime dispute over the garbage carting industry. Three years later, when Georgison was in jail on an unrelated offense, the authorities wanted to ask him questions about that assault the Bronx. Georgison met with these unarmed detectives in a visitor's room while a sergeant waited outside. Georgison was not read his Miranda rights but he did say a few things which incriminated him, i.e., he denied piping anyone even though the detectives said nothing about a pipe. He also admitted he was on the premises when the assault took place. These admissions got him convicted for assault, and he lost his appeals in the state courts. Hence, the habeas corpus petition.

The question is whether, in ruling against him, the state courts unreasonably applied settled Supreme Court authority. Under the 1996 habeas corpus law, state courts have some leeway in interpreting the U.S. Constitution. This kills a lot of habeas corpus petitions, and it dooms Georgison's. Miranda requires that anyone in police custody be read their rights before the police can ask them questions. Georgison relies on Mathis v. United States, 391 U.S. 1 (1968), for the proposition that inmates are per se "in custody" for purposes of Miranda and thus must be advised of their rights before answering law enforcement's questions. After all, inmates are not exactly free to leave the way the rest of us can.

The Second Circuit (Miner, Wesley and Stanceu [D.J.]) disagrees. The Court finds that "the Supreme Court has cast serious doubt on the existence of a per se or bright-line rule that would require Miranda warnings in the prison setting. The Court of Appeals notes that, in Bradley v. Ohio, 497 U.S. 1011 (1990), even Justice Marshall suggested in dissenting from the denial of certiorari that the Supreme Court had yet to "clarify what constitutes 'custody' for Miranda purposes in the prison setting." The Court of Appeals has also ruled in United States v. Newton, 369 659 (2d Cir. 2004) that "the mere fact of incarceration does not necessarily require that an individual be in the sort of custody that warrants Miranda warnings before an interview." This means that the law in this area is not clearly-establishes for purposes of winning a habeas corpus petition under the 1996 habeas law. The state courts, then, did not unreasonably apply constitutional law in ruling against Georgison. As he was free to get up and leave during the interview -- and he actually did so -- Georgison was not restrained during questioning, and Miranda warnings were therefore not required here.

NYPD breathalyzer policy does not violate Fourth Amendment

The NYPD imposed a policy that any officer who causes an injury as a result of gunfire must submit to a breathalyzer test to see if he was drinking. The police union challenged the policy as a Fourth Amendment violation. It's legal.

The case is Lynch v. City of New York, decided on December 11. The Fourth Amendment is quite brief. It says that the government may not subject you to unreasonable searches and seizures. Applying the Fourth Amendment is not so easy. What's reasonable? The answer to that question depends on the legal standard devised by the courts to make the amendment work. The standard here is "special needs."

The Second Circuit (Kearse, Cabranes and Straub) tells us that "The Fourth Amendment requires that searches and seizures be reasonable, and a search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. Nonetheless, the Supreme Court has upheld certain regimes of suspicionless searches where the program was designed to serve special needs, beyond the normal need for law enforcement."

How do we apply the "special needs" doctrine? The court must determine the purpose of the search. Under "special needs," the primary purpose of the program must be unrelated to the government's general interest in crime control. If the search relates to a special need and is unrelated to a general interest in crime control, the court has to determine if the search is reasonable, i.e., "weighing the special need ... against the privacy interest advanced." This balancing test involves weighing (1) the nature of the privacy interest, (2) the nature of the government intrusion and (3) "the nature and immediacy of the government's needs, and the efficacy of its policy in addressing those needs."

Again, this balancing test appears nowhere in the Fourth Amendment. But the general language in the Fourth Amendment is not going to resolve any cases. "Reasonableness" is not specific enough to assess government policies, street searches and other intrusions. Here, the "special needs" test upholds the breathalyzer search, which is primarily unrelated to crime control; it ensures that an officer who fires his gun while intoxicated is quickly disciplined or removed from duty. The point is not to prosecute the officer. The policy also deters officers from carrying their guns while intoxicated. Personnel management is not crime control, the Court of Appeals concludes, and neither is NYPD's desire to promote its reputation.

What complicates things is that there is one crime control objective here: every shooting is a potential crime and breathalyzer tests produce useful evidence against the officer. But while the policy has multiple purposes -- "some unrelated to crime control and one directly to crime control" -- crime control is not the primary purpose. Since law enforcement officers have a diminished expectation of privacy and they already submit to drug testing, the three-part balancing test favors the City, and the police union is not entitled to a preliminary injunction against the policy. The City's "special needs" outweigh the union's privacy interests.

Solving the Simmons puzzle

For purposes of awarding attorneys' fees to lawyers who represent successful plaintiffs, the Court of Appeals has been gone out of its way to distinguish between the four judicial districts in New York. The highest rates are in the Southern District of New York, which includes Manhattan. The other districts, including adjacent Eastern District of New York, have lower hourly rates. If your office is in Manhattan but you win a trial in Brooklyn (EDNY), there are ways to get the higher SDNY rates, but it's not easy.

In Simmons v. New York City Transit Authority, 575 F.3d 170 (2d Cir. 2009), summarized here, the Second Circuit said that the SDNY lawyer who wins the trial in Brooklyn can get SDNY rates if the plaintiff can establish that her lawyer would likely have produced a much better result than a lawyer in EDNY.

The Court therefore presumes that a district court should award fees at the prevailing market rate in the district in which it sits. To overcome the presumption in favor of this "forum rule," the plaintiff must show “that a reasonable client would have selected out-of-district counsel because doing so would likely (not just possibly) produce a substantially better net result.” Under Simmons, “[a]mong the ways an applicant may make such a showing is by establishing that local counsel possessing requisite experience were unwilling or unable to take the case.”

This is a difficult standard to apply. There are many good civil rights lawyers in the Eastern District of New York. How can a lawyer in Southern District of New York (with its much higher hourly rates) prove that she was the best choice for the EDNY lawsuit? We found out in early December. The case is Germain v. County of Suffolk, 2009 WL 4546671 (E.D.N.Y. Dec. 5, 2009). Germain had a discrimination lawsuit in EDNY. Plaintiff's first law firm was disqualified from the case, and other law firms on Long Island wanted too much money up front and charged hourly rates. Other lawyers did not call her back. Of course, they are now regretting their actions. Germain won the case, and the lawyers who did represent her without charge receive attorneys' fees in excess of $200,000.

Germain's difficulties in finding an EDNY lawyer to handle her case entitle her lawyers (whose offices are in Manhattan) to SDNY rates. In this case, Germain's lawyer, Janice Goodman, Esq., recovers $450.00 per hour. Germain solves the Simmons puzzle. Judge Spatt reasons:

On these facts, the Court finds that the Plaintiff has met her burden to show that it was necessary for her to retain out-of-district counsel. After DeJong was disqualified and other local civil rights attorneys in Long Island declined to take the case on a contingent basis, the Plaintiff was faced with the choice of proceeding pro se or retaining out-of-district counsel. Under the circumstances, it was reasonable for the Plaintiff to believe that Goodman, an experienced civil rights lawyer, could produce a substantially better result than any relief she might have been able to obtain acting pro se. Accordingly, the Court finds that the conventional forum rule does not apply in this case.

This is a mixed result. True, Judge Spatt applied SDNY rates for an EDNY case. But cases like this strike a nerve among civil rights lawyers who maintain offices in Manhattan but try cases in Brooklyn. The Simmons equation really grows out of an earlier Second Circuit attorneys' fees case, Arbor Hill v. County of Albany, 522 F.3d 182 (2d Cir. 2008), where the Court of Appeals presumed that the hourly rate should be assessed based on the district in which the case was tried, not where the lawyers have their offices. Albany (where the Arbor Hill case was handled) may be far from New York City (where the Arbor Hill lawyers had their offices), but Brooklyn is only a few subway stops from the SDNY courthouse in Manhattan. The EDNY/SDNY distinction is the subject of a particularly interesting footnote in Gutman v. Klein, 2009 WL 3296072 (EDNY Oct. 13, 2009), where Judge Cogan noted that many of the cases pending in EDNY are actually handled by SDNY lawyers. Footnotes like this are always worthy reading. Here is part of it:

A purely geographic lodestar also ignores the practical reality of practicing law in New York, which the docket of this Court reflects. Of lawyers that currently appear before this Court, 307 of the lawyers have offices in the Eastern District, while 727of the lawyers have offices in the Southern District. This raises the question of exactly what is the bar that practices in this district. Indeed, much less travel time is chargeable to clients coming from Manhattan to this Court than from Riverhead, which is within this district. Moreover, the two district courts have recognized the significant overlap between attorneys practicing in the Southern and Eastern Districts by adopting a single set of Local Rules for both districts. Even Congress has recognized the overlap by allowing an exception from the normal district-only residence requirement for U.S. Attorneys and federal judges, an exception which permits United States attorneys and federal judges, unlike any other district except the District of Columbia, to reside in one district and work in the other. See 28 U.S.C. § 545(a) (U.S.Attorneys); 28 U.S.C. § 134(b) (district court judges). This is just part of the reality that law is now practiced in an environment where law firms maintain multiple offices nationwide, attorneys maintain multiple federal bar admissions and have national practices, and modern telecommunications permit court appearances by video and telephone. It may be that the concept of a geographically-based as opposed to case complexity-based lodestar will someday have as much relevance to the selection of an attorney as dinosaurs have to birds.