How not to settle a case

In this case, the defendant offered the plaintiff all the damages to which he was entitled under the Fair Debt Collections Act, totaling $1,000 in cash money. But defendant did not make an Offer of Judgment under Rule 68. After endless squabbling about the terms of the deal, the parties stipulated that plaintiff would get a judgment for the $1,000 and that the court would decide attorneys' fees. After the Court awarded over $30,000 in fees, defendant appealed, arguing that the offer was tantamount to an Offer of Judgment and the plaintiff got too much money in fees.

The case is Cabala v. Crowley, decided on November 19. I guess this case is for litigators and Federal Rules junkies only. But parties should be interested also, because the attorneys' fees far exceeded the damages. Defendant argued that the initial offer of settlement mooted out the case and thus killed off any attorneys' fees entitlement. He also argued that the offer was like a Rule 68 offer which would also limit the attorneys' fees.

No dice, says the Court of Appeals (Raggi, Lynch and Lohier). An unaccepted offer that gives the plaintiff all to which she is entitled does not moot out the case. The plaintiff can still continue with the case. But when that happens, the Court notes, the judge can direct judgment against the defendant for that amount and that would terminate its jurisdiction over the case. But here, defendant made the offer to avoid a judgment. And he did not move the district court to dismiss the case on the ground that he offered the plaintiff his full measure of damages. As the parties then squabbled about the nature of the settlement ("it takes two to stage a useless litigation" the Second Circuit says), the district court did not abuse its discretion in finding that the plaintiff reasonably moved ahead with the case after defendant made that initial offer, thereby entitling him to the fees.

Defendant also argues that the offer to pay out all the damages was the same a Rule 68 offer. Except that there was no Rule 68 offer. If you want to invoke the benefits of Rule 68 offer, then make a Rule 68 offer. Rule 68 can save the defendant a lot of money if the plaintiff's ultimate award is less than what the defendant offered under a formal Rule 68 offer. Had defendant done this, he could have avoided liability for further costs. He did not do this, so he has to write out a check in the amount of $32,489.29 in attorneys' fees. And that, my friends, is a lot of money for a case that was only worth $1,000.

Immediate breathalyzer test for (certain) NYPD officers does not violate Fourth Amendment

Following the highly publicized fatal shooting of Sean Bell in 2006, New York City adopted a rule the following year that says that if a police officer shoots someone, he must submit to a breathalyzer test. The labor union challenges that rule under the Fourth Amendment. The Court of Appeals says this procedure is legal.

The case is Lynch v. City of New York, decided on November 15. Under the rules, if the test produces a reading under .08, the officer has nothing to worry about. Otherwise, he must submit to a more alcohol-sensitive test at Internal Affairs. If he fails the test, IAB decides whether the officer is unfit for duty due to intoxication. Since the alcohol test is a search, the question is whether it violates the Fourth Amendment,which only prohibits "unreasonable" searches. You don't always need a warrant under the Fourth Amendment. Nor do you always need reasonable suspicion to conduct a search. Not if the government can satisfy the "special needs" doctrine, a narrow exception to the usual Fourth Amendment rules.

Does the special needs doctrine apply here? You know the answer. The Warren Court is no longer with us. Under "special needs," we look at the primary purpose of the search, i.e., the immediate objective of the search, not its ultimate goal. We also ask if the interests served by special needs outweighs the privacy interests at stake. Here, the immediate goals of the alcohol search is not criminal law enforcement (i.e., to punish the officer for unlawful intoxication) but personnel management and the maintenance of public confidence in the police department when officers discharge their guns and cause death or injury. The test also deters officers from carrying a gun while they are unfit for duty due to alcohol.

What about the lack of any warrant? The procedures are sufficiently narrow and specifically defined to satisfy the special needs doctrine. They only apply when an officer discharges his gun, causing injury or death. IAB has no discretion at that point to conduct the test, and officers know the rules are in place. A warrant would provide little or nothing in the way of personal privacy protections. Also, the burden of obtaining a warrant would frustrate the purpose of the program, as alcohol is eliminated from the bloodstream at a constant rate, such that any delay in getting the warrant could get the officer off the hook.

Finally, the rules are reasonable. Officers have a reduced expectation of privacy as they carry guns and have authority to use deadly force. Breath testing is not that intrusive. And, the police department has a manifest need to confirm that officers who discharge their guns are fit for duty. While the Union argues that the City has less intrusive means to test for alcohol, the City is not required to use the least intrusive search practicable. The City therefore is entitled to summary judgment in this case.     

Qualified immunity for police officer who chased after suspect onto bystander's property

Qualified immunity throws a cold blanket on your great case, that's for sure. Even if the public defendant technically violated the law, he cannot be sued if the case law was unclear at the time of the civil rights violation. The Supreme Court reminds us of this principle in a case that was so clear to them that they ruled upon without oral argument.

The case is Stanton v. Sims, decided on November 4. The fun started when the police showed up in the middle of the night because of an "unknown disturbance" involving someone with a baseball bat. One of the guys on the scene, Nicholas Patrick, ran away when officer Stanton yelled out "Police!" Violating that police order, Patrick instead ran into a fenced-in yard owned by Drendolyn Sims, who was smacked in the forehead when Stanton kicked in the gate in pursuit of Patrick, who had committed a jailable offense in ignoring the lawful police order to stop.

Sims sued Stanton. The Ninth Circuit Court of Appeals said that Sims has a case under the Fourth Amendment, and that Stanton was not entitled to the warrantless entry into her property because Sims had an expectation of privacy on her property. Also, there was no immediate danger and Patrick had only committed a minor offense in running away from the police. Stanton filed a petition for Supreme Court review.

Let's talk about Supreme Court practice for a minute. Everyone wants their case heard in the Supreme Court. Arguing in that Court is like playing center field for the Yankees in the World Series, or filling in for Ringo Starr when the Beatles toured Australia. But a certiorari petition costs a lot of money because the Court wants the petition printed up professionally, and the attorney time devoted to convincing the justices that your case stands out among the 7,000 annual petitions is enormous. The Court only hears about 75 arguments a year, so the odds make it quite unlikely that your time and money will be put to good use. Still, the Court has to hear someone's case, right? They took this case, but they also decided it without oral argument. So, no glory for Stanton's attorney who wanted to argue in the Supreme Court, but counsel wins the case on the strength of the certiorari petition, so it's not a total bust.

The Supreme Court says that "federal and state courts nationwide are sharply divided on the question whether an officer with probable cause to arrest a suspect for a misdemeanor may enter a home without a warrant while in hot pursuit of of that suspect." The Court then cites contrary state and federal rulings on this issue, and it does not even think Supreme Court or pre-existing Ninth Circuit precedent is directly on point, so the Ninth Circuit ruling in this case is vacated on qualified immunity grounds.

Astute readers will notice that the Supreme Court does not limit its "clearly established law" analysis to Supreme Court or Ninth Circuit rulings. If you practice in the Second Circuit, you try to find other cases from the Second Circuit to show the law was clearly established. But the Supreme Court has never conclusively held what body of case law to draw from in determining whether the law was clearly established at the time of the alleged constitutional violation. Here, the Court implies that the universe of relevant court rulings is nationwide. If that is the case (and the Court does not squarely hold this is the right approach), then it certainly makes it easier for public defendants to win qualified immunity.

Keep it to yourself

Public employee Adreina Adams was not happy with how things were going at the State Division of Parole, where she worked as a parole officer in Manhattan. She took her grievances public and spoke out before the State Assembly. She suffered a variety of negative employment actions over this, and she then took her grievance to federal court, which says she did not speak out on a matter of public concern and therefore does not have a case.

The case is Adams v. Ellis, a summary order decided on October 23. Very little in the Constitution is more complicated than First Amendment litigation. There is a balancing test for every First Amendment problem; nothing is absolute. In the public employment context, it's not free speech (for which you cannot be punished) unless it addresses a matter of public concern, as shown by the content, form and context of the speech. There is no easy way to untangle a three-part balancing test. That is what depositions are for.

The district court ruling tells us what happened. New office procedures made life a hassle in the workplace. Employees had to adhere to strict attendance and accountability rules, and parole officers had to personally collect supervision fees that parolees used to send in by mail. A new computerized management system was also installed. Testifying on these procedures at the State Assembly, plaintiff said these new rules "negatively impacted their ability to do their jobs properly, thereby 'putting safety of the community at risk.'"

Speaking before a public body certainly makes the context of the speech a public affair, but that does not end the inquiry. The content of plaintiff's speech was strictly personal, the Court of Appeals (Parker, Hall and Livingston) says. "The Court gives consideration to the fact that plaintiff spoke at a hearing sponsored by the State Assembly, but ... forum is not determinative, and the public forum of plaintiff's remarks does not make them matters of public concern if they are essentially private complaints about office policies." These grievances were of no interest to anyone outside the workplace. While plaintiff said these new procedures put the public safety at risk, "a plaintiff does not transform her essentially personal grievances into matters of public concern by announcing that her grievances relate to broader issues." In other words, we can couch the speech as a matter of public concern, but the courts will see if that's really true. 

In the district court ruling, Judge Castel notes that the stated subject of the hearing, "The Policies and Practices of the Division of Parole as it Carries Out its Responsibilities in the Supervision on Persons Released from Prison" gives no hint that it would address traditional matters of public concern, "like discrimination, corruption, or even crime rates, staffing, budgets or equipment shortages." Now, I am sure the title of this public hearing did not cause the taxpayers to line up overnight for a front row seat. The policies of the Division of Parole must be of some interest to the public. But plaintiff's speech was not, and that's why her First Amendment claim is dismissed.

No right to settle a case

When the plaintiff settled a wrongful death lawsuit against Nassau County, she waited for the Legislature to approve the deal. That approval was delayed, which cost the plaintiff money because the interest rates changed and the value of the settlement diminished by $8 million. In this First Amendment case, plaintiff claimed the settlement was delayed because the Chairman of the County Legislature did not like plaintiff's civil rights lawyer and she got caught in the cross-fire.

The case is Dorsett v. County of Nassau, decided on October 18. I co-wrote the brief on appeal. The theory was that Dorsett's association with a civil rights lawyer is protected under the First Amendment. There is case law to support that theory of liability, but the Second Circuit (Wesley, Walker and Winter) focuses on plaintiff's standing to sue and whether you even have a right to settle a case.

Here is the sequence of events: while the settlement was pending, Dorsett's lawyer filed a Voting Rights Act case against the County, angering the legislative chairman, Schmitt, who publicly said the Dorsett settlement was not finalized by the Legislature because “I did not feel comfortable voting on a settlement that would put a couple million dollars into [Brewington’s] . . . pocket while we were being sued [in the Boone case], so I requested an opinion of the County Board of Ethics to see that there was no conflict there.” The Court of Appeals notes that, "[i]n fact, Schmitt had received the ethics opinion in September – two months before this interview – and the settlement was still not approved until January. Plaintiffs allege that Schmitt actually requested the ethics opinion to hold up the settlement in retaliation for their political activities."

Plaintiff loses the case under Rule 12 because she had no right to a settlement in the first instance, even if the informal agreement had been reached.Of course, the case eventually did settle, but it was delayed, costing Dorsett money. On the way to affirming the dismissal of the complaint, the Court of Appeals clarifies that First Amendment retaliation cases do not always require proof that the government's response to the speech chilled further speech. You can also win if the plaintiff suffered a concrete loss of some kind from the retaliation. However, the Court says in dismissing the case:

Eight million dollars is certainly concrete, but this does not tell the whole tale. Plaintiffs had no right to have the settlement approved by a date certain. The settlement did not include a time‐is‐of‐the‐essence clause, nor have Plaintiffs pointed to anything that required the legislature to act. The legislature's agenda is subject to its absolute discretion. It was not required to vote on the settlement – ever. Much less was it required to approve it.

Another public employee speech claim is dismissed

The plaintiff was fired from his job as a psychiatrist at the University of Connecticut Health Center. He claimed it was in retaliation for a prior lawsuit he filed against the Commissioner of the Department of Corrections. Plaintiff had done some work for DOCS inmates. The case is dismissed because the prior lawsuit was not protected First Amendment activity.

The case is Lakner v. Lantz, a summary order decided on October 10. Public employee speech is only protected when they speak on matters of public concern. Personal grievances don't count. Prior lawsuits may qualify as free speech, but only if they raised matters of public concern, that is, a matter of political, social or other concern to the community. Since many lawsuits concern the plaintiff's own grievances (lost promotion, mistreatment at work), they do not rise to the level of public concern speech.

How can a lawsuit be a matter of private concern, you ask. What about the Petition Clause of the First Amendment, which says you are allowed to petition the government for grievances? Lawsuits essentially are petitions. But the Supreme Court in 2011 said that the "public concern" test governing routine employee speech/retaliation claims also applies to cases brought under the Petition Clause. This means that some lawsuits are not protected speech. This one is not. The Court of Appeals (Lynch and Carney) says that plaintiff's prior litigation against DOCS -- alleging breach of contract -- was not of any concern to the community, only to plaintiff. This means that defendants could retaliate against him for the lawsuit.

The string of public employee/First Amendment dismissals continues. These plaintiffs have to squeeze through a narrow tunnel to prevail on a motion for summary judgment and even a motion to dismiss under Rule 12. The Supreme Court's 2006 ruling in Garcetti requires that, to make out a case, the plaintiff speak as a citizen and not pursuant to his job duties. The Petition Clause ruling in 2011 doesn't make it any easier.

Second Circuit stands firm on Judge Scheindlin recusal

Today's installment of the battle between the Court of Appeals and Judge Scheindlin finds the Second Circuit standing firm on its decision to reassign the stop and frisk cases to another judge because of appearance of Judge Scheindlin's partiality. The Court also says that Judge Scheindlin is not allowed to advocate for herself in the Court of Appeals on this issue.

The case is Floyd/Ligon v. City of New York, dated November 13. On October 31, the Second Circuit (Cabranes, Parker and Walker) stayed enforcement of Judge Scheindlin's order intended to rein in the City's stop and frisk practices, which she held violated the Fourth and Fourteenth Amendments. I guess this is the case of the year in the federal courts in New York, as an entire round of litigation has ensued in the Second Circuit even before the parties have argued the case on the merits.

The recusal order generated much controversy. The Court of Appeals has now elaborated on that decision. It denies plaintiffs' request to return Judge Scheindlin to the case. The Court details the process when Judge Scheindlin told the attorneys in a separate stop and frisk lawsuit to file a separate action in the Southern District of New York and that she would retain that case under the "related case" doctrine. Here is what the Court of Appeals says:

The appearance of partiality stems in the first instance from comments made by Judge Scheindlin that a reasonable observer could interpret as intimating her views on the merits of a case that had yet to be filed, and as seeking to have that case filed and to preside over it after it was filed. These comments were made in the earlier case of Daniels v. City of New York, No. 99-cv-1695, in which the City entered into a settlement agreement requiring it, inter alia, to establish policies that prohibited racial profiling. Ten days before Judge Scheindlin’s supervisory authority under the settlement agreement was set to expire, she heard argument on a motion brought by the Daniels plaintiffs to extend the settlement period. The transcript of the hearing indicates that the City had substantially complied with the relief required by the settlement and that the plaintiffs were seeking information from the City beyond that required to be furnished by the settlement agreement.

Observing that the settlement agreement did not entitle the plaintiffs to the relief they sought, Judge Scheindlin counseled:

THE COURT: [. . .] why don’t you file a lawsuit

Mr. COSTELLO: We did, we are here.

THE COURT: No, you are struggling with the December 31, 2007 deadline in a 1999 case. And if you got proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit? You can certainly mark it as related. How could it not be related to this whole long seven or eight years we have lived together in this case? Because you are trying to put a square peg in a round hole. And trying to force yourselves to argue what the settlement means, that it doesn’t mean if you have a timely lawsuit -- you seem to have compiled interesting arguments[.] Ms. Grossman [attorney for the City] has not rebutted -- maybe she did, that’s why we didn’t do something, because we didn’t want them to write this letter, she -- let’s just say she hasn’t substantially responded to your letter. If one had only your letter, it would look like you have a lawsuit. So instead of struggling to telling [sic] me about a stipulation of settlement, why don’t you craft a lawsuit?
(TR 10-11).

She returned to the idea of bringing a suit alleging that the City had violated their racial profiling policies and suggested a basis for the suit:

THE COURT: what I am trying to say - - I am sure I am going to get in trouble for saying it, for $65 you can bring that lawsuit. You can simply - -

MR. MOORE: $350

THE COURT: I knew I had it wrong. The [C]ity violates its own written policy, the City has a policy that violates -- they have violated their policy, here is the proof of it, please give us the remedy. Injunction or damages, or whatever lawyers ask for in compliance. So for $350 you can bring that lawsuit and it is timely.
(TR 14, 15).

And again:

THE COURT: I don’t understand why we have to potentially have, you know, months of briefing when it does fit under this stipulation or it doesn’t, that Raffo applies or it doesn’t that the court has the power to extend the supervision, that we want our immediate appeal to the circuit. Why do you need that if you have a lawsuit? Bring it. They have a written policy, right?

MR. GROSSMAN: Yes, your Honor.

THE COURT: If you think they are violating their written policy, sue them.
(TR 15).

Judge Scheindlin then advised the plaintiffs that if they filed such a suit, they would successfully obtain relevant documents produced by the government:

THE COURT: . . . There is enough in the public record to craft the suit. And then in that suit simply say, we want produced all that was produced in the 1999 lawsuit. I don't know how you could lose getting it. It may be a question of whether it is still going to be under protective order or not. But I can hardly imagine not getting it. You know what I am saying? It is so obvious to me that any Judge would require them to reproduce it to you in the same format that you have it, that you will have it again. Whether or not it remains confidential.
(TR 18).

After the plaintiffs indicated their willingness to bring the new suit, she repeated her earlier suggestion that the cases were related and indicated her willingness to keep the newly filed case:

MR. MOORE: To the extent that some of the materials have already been made public.

THE COURT: what’s public is public, -- If you cite to the Rand study, publicly, nobody can criticize you for that. If they do, they weren’t acting in good faith. If I can get the Rand study on the internet, it is public --

MR. MOORE: you can go to the NYPD website, your Honor.

THE COURT: There you go, that’s public. You can use that. And as I said before, I would accept it as a related case, which the plaintiff has the power to designate. I think this current motion is withdrawn. Thank you.
(TR 42).

The Second Circuit "believe[s] that a reasonable observer viewing this colloquy would conclude that the appearance of impartiality had been compromised." This is so in light of Judge Scheindlin's public statements, which exacerbated this appearance of partiality. The articles that quoted Judge Scheindlin are appended to the decision. While judges are allowed to speak with the media, in context, these comments create an appearance of partiality. "While nothing prohibits a judge from giving an interview to the media, and while one who gives an interview cannot predict with certainty what the writer will say, judges who affiliate themselves with news stories by participating in interviews run the risk that the resulting stories may contribute to the appearance of partiality. It is perhaps illustrative of how such situations can get out of the control of the judge that, later in The New Yorker piece, the article quotes a former law clerk of Judge Scheindlin: “As one of her former law clerks put it, ‘What you have to remember about the judge is that she thinks cops lie.’”  The Second Circuit adds,

[I]n those two articles, as well as the New York Law Journal article, Judge Scheindlin describes herself as a jurist who is skeptical of law enforcement, in contrast to certain of her colleagues, whom she characterizes as inclined to favor the government. Given the heightened and sensitive public scrutiny of these cases, interviews in which the presiding judge draws such distinctions between herself and her colleagues might lead a reasonable observer to question the judge’s impartiality.

The Court goes on to say that it does not believe that Judge Scheindlin violated the Judicial Code of Conduct. The Court adds that it has authority to recuse the judge even if neither party requested that relief. And in a separate ruling, the Court further says that Judge Scheindlin has no authority to intervene as a party on appeal for the purposes of retaining her authority on the case.