Thursday, March 26, 2015


The Court of Appeals on March 26 issued a ruling that tells us very little about why the defendant is entitled to a re-sentencing. In fact, it tells us nothing.

The case is United States v. Watkins. Here is the text of the ruling:

Emory Watkins appeals from the judgment of the United States District Court for the Eastern District of New York (Wexler, J.), sentencing him to a three-year term of imprisonment for conspiracy to commit robbery and a consecutive five-year term of imprisonment for a related firearms offense. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.


For the foregoing reasons, we hereby VACATE the sentence in Count Two and REMAND FOR RESENTENCING consistent with this summary order.
There you have it. The analysis is literally redacted. An unredacted version of the opinion was presumably sent to Watkins' lawyer.

Wednesday, March 25, 2015

GoDaddy is immune from defamation suit under Communications Decency Act

This is a case for the modern age. Plaintiff was defamed in a union newsletter after he refused to endorse a union president in 2002. After plaintiff was blackballed from jobs for years, in 2012, the newsletters containing the defamatory statements were posted online, hosted by GoDaddy's web servers. Since GoDaddy did not create the newsletters, can plaintiff sue that entity for defamation?

The case is Smith v. Teamsters Union Local 456, decided on March 18. GoDaddy cannot be sued for the defamation under the Communication Decency Act of 1996, which says that providers or users of interactive computer services are not treated as the publisher or speaker of any information "provided by another information content provider."

The public has been using the Internet for about 20 years, but the Second Circuit has yet to hear a case like this. Summarizing the case law from elsewhere, the Court says, "In short, a plaintiff defamed on the internet can sue the original speaker, but typically 'cannot sue the messenger." Other courts have applied the CDA to a growing list of Internet service providers, including GoDaddy. The Court of Appeals (Jacobs, Lohier and Swain [D.J.]) "join[s] the consensus." The Court reasons:

The Riccis allege only that GoDaddy “refused to remove” from its web servers an allegedly defamatory newsletter that was authored by another. These allegations do not withstand the Communications Decency Act, which shields GoDaddy from publisher liability (with respect to web content provided by others) in its capacity as a provider of an interactive computer service.

Monday, March 23, 2015

Habeas win is gone

In this case, Smith was convicted of murder after a jailhouse informant testified at trial that Smith made incriminating statements about the killing. The federal court granted Smith's motion for habeas corpus on the ground that Smith's lawyer was ineffective in failing to move to preclude the informant's testimony. The Court of Appeals reverses, the conviction stands, and Smith remains in jail.

The case is Fischer v. Smith, decided on March 17. At the criminal trial, the prosecutor said the informant had independently contacted the detective about Smith's incriminating statements. Post-trial, Smith's new lawyer learned that the informant had collaborated with law enforcement for four years prior to Smith's trial. Since Smith's trial counsel had not moved to suppress the informant's testimony under the Supreme Court's 50 year-old precedent, Massiah, Smith won his habeas petition.

That victory is now taken away by the Second Circuit (Lohier, Calabresi and Lynch). The leading case on ineffective assistance of counsel is the Supreme Court's ruling in Strickland. This is a problem for Smith, as ineffective assistance claims are hard to win. All the more difficult because habeas petitions are hard to win. Here is how the Court of Appeals summarizes the state of the law:

Where a State court decision adjudicates a petitioner’s claim on the merits, a district court may grant habeas relief only if the decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); ... “Establishing that a state court’s application of Strickland was unreasonable  under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so.” On habeas review “[a] federal court may reverse a state court ruling only where it was so lacking in justification that there was ... [no] possibility for fairminded disagreement.”
So Smith has to overcome double deference here. Note that a state trial court can commit an unconstitutional mistake at trial but the inmate still loses the habeas petition if the mistake was not clearly unreasonable. True, the Court of Appeals says, "we would hope that most lawyers would spot the Massiah issue in this case. But, the Court reasons:

Ideally, Smith’s trial counsel would have made a motion raising the issue. However, Smith’s trial counsel could have reasonably determined that, based on Ferguson’s testimony outside the presence of the jury and the prosecutor’s representations, Ferguson was not acting as a government agent when he elicited incriminating statements from Smith. If so, moving to suppress these statements at the time could reasonably have been viewed as baseless. Even if we thought counsel’s choice was not reasonable, we cannot say that it was unreasonable for the State Court to take the contrary view.

Thursday, March 19, 2015

First Department says doctor can win state whistleblower claim

Any plaintiffs' lawyer will tell you that the New York whistleblower law is fool's gold. It protects whistleblowers from termination, but the law has so many loopholes you can drive a Mack truck through it. Few people win under the statute, but this guy did.

The case is Blashka v. New York Hotel Trades Council, an Appellate Division First Department ruling decided on March 12. Dr. Blashka sued under Labor Law section 741, which says you cannot fire someone in retaliation for speaking out in good faith about the "improper quality of patient care." The trial court threw out the case because the plaintiff's complaint did not cite the law or regulations that his employer had violated. Supreme Court added,

Despite the plaintiff's contention that he was "informed" that The Health Center may have violated the Education Law or the Rules of the Board of Regents, he fails to state that this was his own reasonable belief, as required by Labor Law § 741(2)(a). Nor does he state who informed him of this fact or when. Therefore, he has failed to raise a material issue of fact in that regard and otherwise fails to raise any factual issue warranting a trial. Although plaintiff maintains that he was terminated for complaining  about The Health Center's practices relating to the quality of patient care, including its failure to terminate the dentist who had a drinking problem, he admitted at his deposition that he "thought" he was fired a result of Dr. Greenspan retaliating against him, but that he "can't prove it." Nor could he state a precise reason for his termination. It is well settled that such speculation is insufficient to defeat a motion for summary judgment. Indeed, the credible evidence submitted on the motion indicates that the plaintiff's own conduct posed a threat to The Health Center's patients.
The Appellate Division reverses summary judgment, and the case goes to trial. It is no longer good law that the plaintiff must cite the laws or regulations in his complaint. In May 2014, the State Court of Appeals rejected that pleading requirement in Webb-Webber v. CAHS (a case that I argued). On the merits, the First Department says plaintiff raised a fact issue whether he was fired in retaliation for whistleblowing:

Plaintiff's reports, in May and June 2009, to his superiors of his suspicions that this dentist, whom he supervised, was drinking while practicing dentistry were sufficiently close in time to support an inference of causation between his disclosures and his termination in July 2009.

In response to the Health Center's asserted defense that it terminated plaintiff because of prior warnings and his mismanagement of his supervisee's alleged drinking, plaintiff raised issues of fact as to pretext by pointing to record evidence that he reported his supervisee's resumption of drinking to his superior as early as April 2009, but the superior told plaintiff only  to monitor the dentist and keep a log. Accordingly, there are issues of fact as to whether plaintiff was terminated based on his disclosures that his supervisee was drinking alcohol while practicing dentistry.

Monday, March 16, 2015

"It must have been his race" is not enough to avoid summary judgment in discrimination case

A white tennis instructor sued the City of New York for racial discrimination after it terminated his permit to teach tennis at East River Park. The Court of Appeals rejects the case.

The case is Howard v. City of New York, a summary order decided on March 4. Plaintiff's evidence of discriminatory intent was "a single racially motivated comment uttered by a non-decisionmaker and the fact that the decisionmaker is black and he is white." In particular, the non-decisionmaker told plaintiff, "we don't want your white ass here" when he was retrieving his ball basket from a park building. A prior permit holder was treated more favorably than plaintiff.

This does not cut it, the Court of Appeals (Raggi, Wesley and Lynch) says. The racial comment does not get us anywhere because the guy who said it was not a decisionmaker. The statement was also made more than 10 months before plaintiff's permit was terminated. The comparator evidence is also not enough to infer racial discrimination. In the end, the Second Circuit says, "Howard has done little more than cite to his alleged mistreatment and ask the court to conclude that it must have been related to his race. This is insufficient."

Plaintiff also sues under the First Amendment because he was denied the permit after he complained about racial discrimination. The claim fails because the complaints started in October 2008 and he continued complaining until his permit was terminated in August 2009. "Howard cannot raise a triable [issue] of causation given that his protected activity occurred for so long without any adverse action. ... Indeed, rather than take adverse actions against Howard for his race discrimination complaints, the Park initially took his allegations seriously and conducted an investigation, which found Howard's allegations baseless."

Friday, March 13, 2015

Murder convict wins Habeas appeal in Second Circuit

The Court of Appeals has granted a Habeas Corpus petition filed by a man who was found guilty in 1993 for killing his former girlfriend, ruling that his attorney did not effectively represent him at trial.

The case is Rivas v. Fischer, decided on March 11. When the victim died, the medical examiner said the time of death was between Saturday, March 28, 1987 and Sunday, March 29, 1987. But when the case went to trial in 1992, the examiner said the victim died on Friday night, March 27, 1987, when Rivas lacked an alibi. Rivas had a better alibi for the original Saturday-Sunday time-of-death theory. The jury convicted Rivas of murder, and into the slammer he went.

Post-conviction motion practice argued that the medical examiner changed his time-of-death theory to curry favor with the District Attorney in order to avoid prosecution for the examiner's criminal conduct. Rivas also argued that the examiner's testing to determine the time-of-death of unreliable and bogus. He also hired an expert, Dr. Cyril Wecht, who said the examiner had miscalculated the time-of-death and that the victim had in fact died on Saturday-Sunday, not Friday night, again, when Rivas had no alibi.

The Northern District of New York denied the Habeas petition, but the Court of Appeals (Cabranes, Sack and Pooler) reverse and grant the petition, freeing Rivas unless the DA decides to prosecute him again (after Rivas spent more than 2 decades in jail). Rivas wins the appeal because his lawyer did a bad job at trial. Emphasizing at trial that the medical examiner had originally said the victim died on Friday night, counsel relied on an alibi defense for a time period that did not cover Rivas's tracks for Saturday-Sunday, the operative time period at trial. Counsel also ignored newspaper articles and other information sources that suggested the examiner had changed his time-of-death estimate without the benefit of new evidence. Investigating this changed timeline would have greatly assisted Rivas at trial. And, in not hiring an expert like Wecht to counter the "disgraced" medical examiner's estimate about when the victim died, counsel did not give the jury a reason to believe the victim had died on Friday night, when Rivas had an alibi.

The Court of Appeals concludes that if the state does not take concrete and substantial steps to retry Rivas within 60 days, the district court has to grant the Habeas petition.  

Wednesday, March 11, 2015

How do the Iqbal pleading rules affect a routine age discrimination case?

The Court of Appeals has sustained the dismissal of an age discrimination case for failure to state a claim under the Iqbal pleading standards. The decision sheds light on what the Court wants the complaints to look like.

The case is Bohnet v. Valley Stream Union Free School District, a summary order decided on February 27. The cocktail party version of this case would suggest the plaintiff was denied numerous teaching positions because of her age. The district court ruling says that from September 2006 through October 2011, plaintiff sought but was denied 18 different tenure-track positions. She alleges the district instead hired people younger than 40, some of whom did not have permanent teaching positions.

Under the Supreme Court's Iqbal decision (2009), plaintiffs have to allege plausible claims in order to survive a motion to dismiss and proceed to discovery. Alleging a possible claim is not enough. Iqbal ain't no cocktail party. I am sure the plaintiff's lawyer took Iqbal seriously, since counsel submitted a proposed amended complaint to get the case through the courthouse door. It was not enough.

The district court said plaintiff "alleges only that she applied for many positions in the District while she was over the age of forty and that the District did not hire her for those positions but hired younger individuals under the age of 40. These allegations lack the specificity required to be more than an unadorned, the defendant-unlawfully-harmed-me accusation." In particular, the district court said, plaintiff alleged no details about the people who were selected or their particular ages, so in theory the selectees could have been 38 years old, which would suggest no age discrimination at all. Nor did plaintiff allege that defendants knew plaintiff's age or the age difference between plaintiff and the other applicants when they made the hiring decisions. And, no one made any discriminatory comments to plaintiff or that other older applicants were denied appointments or that only younger folk are employed at the district.

The Court of Appeals (Parker, Hall and Livingston) affirms, reasoning that "absent greater specificity, Bohnet's factual allegations of age discrimination both in her original and proposed amended complaint are conclusory and stop short of the line between possibility and plausibility."

This decision tells us that when drafting a complaint, put in as much evidence as you can find to support your claims and to avoid a motion to dismiss. The complaint in this case said much about what happened to the plaintiff, in particular that she was denied 18 positions over a five year period and that younger people got the positions instead. These allegations may have been enough to proceed to discovery under the old pleading rules, but they are not enough under Iqbal.