Friday, September 16, 2016

Post - Release Supervision 

The New York State Legislature amended the sentencing scheme for violent felons to require that every sentence for a violent felony must be followed by a post-release supervision ("PRS") term.  Some judges.however did not pronounce PRS terms during sentencing proceedings  As a result, certain inmates entered the custody of the Department of Correctional Services ("DOCS") with sentence and commitment orders that did not include PRS terms required by the statute.  Instead of bringing the failure to the attention of the sentencing court, DOCS simply added the PRS term administratively.

This policy was challenged in Earley v. Murray, in which the Second Circuit held that policy was unconstitutional and that the administratively added-on PRS terms were a nullity because that term had not be imposed by a judge.  The Office of Court Administration of New York took the position that the Second Circuit's decision in Earley was not binding on state court and issued a memorandum to judges expressing this view, but urged courts to pronounce PRS terms going forward until the New York State Court of Appeals had the opportunity to rule on this issue.

The New York courts were inconsistent in adhering to to Earley.  The New York State Court of Appeals ruled on the issue in People v. Sparber and Garner v. New York State Department of Correctional Services, holding that New York state law required teh judge to pronounce teh term of PRS orally at sentencing if it was to be included in an inmate's sentence, but did not address whether this rule was also required by the Constitution.

The plaintiffs in Betances v. Fischer were offenders who were subject to mandatory PRS terms and who alleged the DOCS,rather than the sentencing judges, had imposed the PRS terms.  They sought compensatory damages for this violation of their constitutional rights.  The defendants, state officials of DOCS and the Department of Parole, moved to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.  The district court denied the motion, and the Second Circuit affirmed, remanding the case to the district court for further proceedings.  In its remand, the Second Circuit directed the district court to develop the record as to objective reasonableness of defendants' efforts to relieve the plaintiffs of the burdens of those unlawfully imposed PRS  terms after the defendants know it had been ruled that the imposition violated federal law.

On remand, the district court granted plaintiffs' motion to certify the case as a class action, and after the parties had cross-moved for summary judgment, denied the defendants' motion for summary judgment on the basis of qualified immunity and granted plaintiffs' cross-motion for summary judgment holding the defendants' personally liable.

After  the defendants had filed a notice of appeal, but before their brief was filed, the district court granted plaintiffs' motion to deem the appeal frivolous, which would have enabled the district court to retain jurisdiction and proceed with a trial on damages notwithstanding the trial.  The defendants' moved for a stay, and the Second Circuit stayed the proceedings in the district court pending the appeal.

The Second Circuit held that the defendants were not entitled to qualified immunity because they were aware of the holding of Earley and had not taking objectively reasonable steps to comply with the case.  Indeed, the Court was not sure that the defendants would ever have complied had it not been for the actions of the New York State Court of Appeals.

The decision of the Second Circuit in Betances v. Fischer can be found here.

A disability is not a disability is not a disability 

The question presented in this case is whether being disabled for purposes of the Individuals with Disabilities Education Act ("IDEA") categorically qualifies and individual as having a disability under the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act ("Section 504").

The plaintiffs in B.C. v. Mount Vernon School Dist. are high school students with disabilities under IDEA (actually the plaintiffs were the students' parents, but it amounts to the same thing).  Their schools had placed them in AIS remedial classes for which academic credit was not given.  As a result at the end of the school year, they did not have enough credits to graduate to the next grade.  Both students ultimately graduated from high school.

The plaintiffs brought suit in federal court under the ADA and Section 504, claiming that the Mount Vernon School District's policy of scheduling the AIS classes during school hours disparately impacted students with disabilities.  The school district moved for summary judgment, asserting that the plaintiffs should have exhausted their claims through the administrative process under the IDEA before raising these claims in federal court.  The plaintiffs claimed that they were excused from the exhaustion requirement of IDEA because their claims challenged a district-wide policy of discrimination and exhausting administrative remedies with respect to the district's framework and procedures would have been futile.

The District Court accepted the plaintiffs argument that they fall within the "futility" exception to the IDEA exhaustion requirement because they were challenging a district-wide policy.

The District Court granted the district's motion for summary judgment, stating that the plaintiffs' disparate impact evidence only showed the the district's policy only had a disparate impact on students with a disability under IDEA, not under ADA and Section 504, which defines "disability" differently.

The Second Circuit affirmed.  The plaintiffs statistical evidence only showed that district's policy only had a disparate impact on individuals with a disability under IDEA.  It is only if , as a matter of law, a child with a disability under the IDEA necessarily qualifies as an individual with a disability under ADA or Section 504.

ADA and Section 504 define  "disability" as a "physical or mental impairment that substantially limits one or more major life activities."  By contrast, under IDEA, a "child with a disability" has one or more of an enumerated list of impairments requiring "special education or related service."  Hence, a student could have a disability that requires special education or related services without it substantially limiting one or more major life activities.  The Court held that the plaintiffs' position, in effect, read the ADA's substantial limitation requirement out of the statute.  The Court, while acknowledging that many students who qualify for special education or related services under IDEA might also qualify under ADA and Section 504, that is not always the case.  Other circuits have similarly held.

The Second Circuit's decision can be found here.

Tuesday, December 08, 2015

Plausible Malice 

The Court, in Biro v. Conde Nast held that a defamation claim made by a limited purpose public figure, the plaintiff must plead sufficient facts to demonstrate that the required allegation of actual malice is plausible.  In this case, the Second Circuit, in affirming the decision of the District Court, held that the plaintiff had not made any adequate showing of plausibility with respect to actual malice.

The decision in this case can be found here.

Tuesday, October 20, 2015

Judge Cardamone dies 

Former Judge Richard J. Cardamone died at age 90 on October 16, 2015.

Monday, October 19, 2015

Post-garnishment residual wages -- Certified to Connecticut Supreme Court 

The Second Circuit has certified the following question to the Connecticut Supreme Court:

Do Conn. Gen. Stat. sections 52-361a and 52-367b, read together, exempt post-garnishment residual wages held in a third-party's bank account from further execution, so that the become freely transferable under the Connecticut Uniform Fraudulent Transfer Act, Conn. Gen. Stat. section 52-552a et seq.?

This question arose under the following facts:

The Appellants owes more than $3,000,000 to the Appellee with respect to two state court judgments.  The Appellant transferred to his wife (also an appellant) more than $300,000 by depositing his wages into her bank account.  During part of this period, the appellee and another judgment creditor garnished appellee's wages.

The Appellee sued the Appellants to recover those transfers.  Both parties moved for summary judgment and the District Court ruled in favor of the Appellee, answering the above-cited question in the negative..  The Appellants appealed.

The Second Circuit stated: "Although [the District Court's" well-reasoned opinion accords with an earlier District of Connecticut decision and one Superior Court opinion, the weight of state authority -- including two Superior Court cases, an opinion of the state Attorney General, and a Judicial Branch form -- has adopted the contrary view."

Because the uncertainty of the state law, the Second Circuit certified the question to the Connecicut Supreme Court.

The decision in The Cadle Co. v. Fletcher can be found here.

Wednesday, January 21, 2015


The Second Circuit has held that it is within the State's police power to require children to be vaccinated in order to attend public school and that such a requirement does not violate the First Amendment or other constitutional rights.

Citing Supreme Court precedent, the Second Circuit held that the right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill
health or death.

The Second Circuit further held that the Supreme Court had held in 1905 that a compulsory vaccination law was not a violation of substantive due process.

The Court also held that the plaintiffs had not made a showing of any violation of the Equal Protection clause of the Constitution.

Finally, the Court held that the Ninth Amendment was not a source of individual rights, and, accordingly, the plaintiffs claim under that amendment could not stand.

The decision is Phillips v. City of New York can be found here.

Tuesday, January 20, 2015

Repudiating arbitration agreements 

The Second Circuit has held that, pursuant to 13 U.S.C. 1787(c), the Nation Credit Union Administrative Board ("NCUA") may repudiate the contract of a credit union that it is liquidating, including any arbitration clauise.

In National Credit Union Administration Board v. Goldman, Sachs & Co., NCUA brought a lawsuit against Goldman, Sachs on behalf of a credit unit that it was liquidating.  Goldman Sachs sought to arbitrate the claims, pursuant to a Cash Account Agreement that contained an arbitration clause.  The NCUA repudiated the agreement and claimed that it was not obligated to arbitrate.

Goldman Sachs claimed that the NCUA's repudiation of a contract is equivalent to that of a trustee in bankruptcy, and that, pursuant to Second Circuit precedent, a trustee in bankruptcy cannot repudiate an arbitration clause.  The Second Circuit, however, held that its prior precedent does not hold that a bankruptcy trustee may not reject an arbitration agreement or clause.

Goldman Sachs further argued that, under common law, a repudiation of an agreement constitutes a breach, and a breaching party is still bound by the contract.  The Second Circuit held that the common law was inapplicable because the statute gave the NCUA the right to repudiate.

Finally, Goldman, Sachs argued that repudiation does not apply to purely procedural provisions of the contract, and, accordingly, the arbitration clause was not enforceable.  The Second Circuit, while not acknowledging that arbitration agreement are "purely procedural," held that Goldman, Sachs had shown neither reason nor authority supporting the proposition that arbitration agreements should be excluded from the NCUA's repudiation power.

The decision can be found here.

Tuesday, May 06, 2014

Foreign Securities 

The Second Circuit as  a matter  of first impression, considered whether the bar on extraterritorial application of the United States securities laws, as set forth in Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010), precludes claims arising out of foreign‐issued securities  purchased  on  foreign  exchanges,  but  cross‐listed  on  a domestic exchange.  It concluded that federal courts had no jurisdiction to consider such claims under the Securities and Exchange Act of 1934.

The decision in City of Pontiac Policeman's and Fireman's Retirement System v. UBS AG can be found here.

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