Nicholas Fortuna, January 2, 2014.

In the last three weeks, two federal judges differed widely on the constitutionality and effectiveness of the National Security Agency program that collects data on virtually every call made to, from or within the United States. The N.S.A.’s bulk telephony metadata collection program was found to be constitutional in the Case ACLU v. Clapper, decided by federal Judge William H. Pauly III in New York. This decision comes a mere 11 days after federal Judge Richard J. Leon in Washington decided Klayman v. Obama and found the program unconstitutional, calling it “almost Orwellian.” Judge Leon stated that the government failed to make the case that the program is needed to protect the nation. He wrote: “The government does not cite a single instance in which analysis of N.S.A.’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature.” Judge Pauley reached the opposite conclusion on the value of the program and every other significant question before him that was likewise decided by Judge Leon. Judge Pauly emphasized that logically the program could be valuable in certain circumstances and saw where it would have been useful in situations that occurred prior to its creation.

The mechanics of how the program operated was not at issue. The information collected consists of metadata, such as information about what phone numbers were used to make and receive calls, when the calls took place and how long they lasted. The metadata obtained does not include any information about the content of the calls, or names, addresses, or financial information of any party to the calls according to the government. The N.S.A. has been collecting this data for seven years and may retain it for up to five years. The metadata may only be used for counterterrorism purposes. A secret court created by Congress called the Foreign Intelligence Surveillance Court oversees the program. The court is made up of 13 District Court Judges assigned by the Chief Judge of the U.S. Supreme Court.

N.S.A. analysts access the records through queries using “identifiers,” such as telephone numbers associated with terrorist activities. An identifier used to start a query is called a “seed.” To comply with minimization procedures in place, a query using a seed is limited to records within three “hops” from the seed. For example, if it starts with a telephone number as the first seed, the first “hop” will include all phone numbers that the first number has called or received in the last five years. The second hop will include all phone numbers that each of the phone numbers found in the first hop made or received in the last five years. Similarly, the third hop will include all phone numbers found in the second hop called or received in the last five years. Once the universe of numbers is captured for a particular seed, trained N.S.A. analysts use targeted intelligence gathering techniques to determine if there are any possible terrorist related communications. The question each Judge addressed was whether the program violates the Fourth Amendment.

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.” In order to physically intrude on a constitutionally protected area, the government must have probable cause that evidence of wrongdoing will be found. This case does not involve a physical intrusion so Judge Leon framed the issue as “whether plaintiffs have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with metadata of hundreds of millions of other citizens without particularized suspicion of wrongdoing, retains all metadata for five years, and then queries, analyzes, and investigates the data…” Judge Leon found that there is an expectation of privacy in the metadata collected and that a Fourth Amendment search has occurred. Further, such search is likely unreasonable and therefore unconstitutional.

Conversely, Judge Pauly stated there was no legitimate expectation of privacy in telephony metadata created by third parties. In reaching his determination, Judge Pauly relied on U.S. Supreme Court decision in Smith v. Maryland (1979), which arguably is factually different enough from the current case that the reasoning in Smith should not apply. Smith arose from a robbery investigation of an individual by the Baltimore police, where as here, the NSA is obtaining records of all calls on an ongoing basis made to and from the United States. Without a warrant, the Baltimore police requested that the telephone company install a device, known as a pen register, which recorded the numbers dialed from Smith’s home for a limited period of time. The Supreme Court held in that case individuals have no “legitimate expectation of privacy” regarding the numbers they dial because they knowingly give the information to telephone companies when they dial the number. Using the same reasoning, Judge Pauly concluded no Fourth Amendment search is implicated by N.S.A.’s metadata collection program because the information collected was voluntarily turned over to third parties- telephone companies – and therefore did not violate the constitution.

Both decisions are being appealed to their relevant Circuit Courts of Appeals.  If the split continues, it is likely the U.S. Supreme Court will have to weigh in and decide the constitutionality of the program.

Paula Lopez, November 24, 2013.

The Second Circuit has unexpectedly removed Shira Scheindlin, a highly respected district court judge of over 20 years and avid proponent of civil liberties, as presiding judge on Floyd v. City of New York, the highly controversial case challenging NYPD’s stop, question and frisk policy. No party in the case requested Judge Scheindlin’s removal.

NYPD’s stop and frisk policy permits police officers to stop a person in a public space if they have reasonable suspicion to believe that the person is engaged in criminal activity.  In Floyd, Judge Scheindlin ruled that the policy violated the plaintiffs’ Fourth amendment rights to be free of unreasonable searches and seizures and Fourteenth amendment rights because she found the practices were racially discriminatory. Judge Scheindlin ruling was based on evidence showing that the majority of people stopped under the policy were either Black or Latino and few summonses or arrests resulted from those stops.

In removing Judge Scheindlin and reassigning Floyd to another district judge, the 2d Cir. Panel found that she had engaged in conduct that runs afoul of the federal judicial code of conduct.  The Second Circuit’s removal of Judge Scheindlin from Floyd adds to the controversy surrounding the case and also impacts her earlier ruling in Lignon v City of New York, granting plaintiffs’ motion for a preliminary injunction on their claims against the NYPD for unconstitutional trespass stops outside buildings enrolled in Operation Clean Halls, a program by which private property owners authorize the NYPD to enter their property and enforce against suspected criminal activity.  Operation Clean Halls is an off-shoot of NYPD’s stop and frisk policy.  In both Floyd and Lignon the plaintiffs challenge NYPD’s stop and frisk policy on the grounds that there is a systematic violation of citizens’ constitutional rights by targeting minorities.

The Second Circuit’s decision to remove Judge Scheindlin was made at the time the City moved to stay her January 8, 2013 decision in Lignon and August 12, 2013 decisions in Floyd finding the policy unconstitutional and directing the city to implement certain remedial processes subject to the court’s review and approval and appointing an independent monitor.  However, the City’s motion to the Second Circuit merely asked for a stay of enforcement of the decisions pending appeal and never sought Judge Scheindlin’s removal.

At the heart of the Second Circuit’s, sua sponte, decision to reassign Floyd to another judge are certain statements made by Judge Scheindlin during a conference held in 2007 in the case Daniels v. City of New York and the publication of certain media interviews given by her while Floyd was pending.  Daniels was the first lawsuit filed against the City challenging its stop and frisk policy which settled in 2004 when the City agreed to implement a written policy governing its stop and frisk practices and to improve officer training.  During a 2007 conference in Daniels Judge Scheindlin denied the plaintiff’s motion to extend the settlement terms and generally discussed the plaintiffs’ options of filing a new lawsuit against the City if they believed it was violating its stop and frisk written policy and that such newly filed case could be marked as related to Daniels and that she would accept its assignment.  In the media reports cited by the Second Circuit as a basis for the removal, Judge Scheindlin never commented on the merits of Floyd but merely addressed public attacks made against her by proponents of the City’s stop and frisk policies.

Notably, the City never asserted any misconduct by Judge Scheindlin or claimed that her actions gave rise to an appearance of partiality at anytime throughout the 5 years that Floyd was being litigated, or in the notices of appeal or motion for a stay it had filed.  In fact, the City never sought Judge Scheindlin’s removal during the last 14 years that she has presided over cases involving the constitutionality of the City’s policies.  Further, the City never objected in 2010 to Judge Scheindlin accepting the case Davis v. City of New York as a related case to Floyd, or in 2012 when she accepted Lignon as a related case to Davis.  Despite the City’s silence, a three judge panel took it upon itself to order Judge Scheindlin’s removal.

The Plaintiffs in Floyd have made a motion requesting that the full panel of active Second Circuit judges (en banc) review and reconsider the three judge panel’s decision. In their motion for en banc reconsideration, Plaintiffs’ argue, among other things, that the City waived the right to seek Judge Scheindlin’s disqualification and, even though the Second Circuit panel issued the order sua sponte, the City is no longer entitled to such relief. Plaintiff’s motion is supported by an Amicus Curiae brief of six retired district court judges and thirteen legal ethics professors.  This motion is still pending.

However, the City has not wasted any time in trying to take advantage of the removal decision—it has already sought to outright vacate Judge Scheindlin rulings in Floyd and Lignon. Although the panel denied the City’s motion to vacate, the decision affords the City the right to argue on appeal that Judge Scheindlin’s decisions should be reversed because of alleged judicial misconduct and/or bias despite never having raised such issues during the 5 years the Floyd case was being litigated or the 14 years of litigating cases in her courtroom.  It should be noted that the Second Circuit panel issued an order clarifying its reasons for removing Judge Scheindlin in which they stated that there was no finding of judicial misconduct.

While, it is within the Second Circuit’s power to reassign a case to another judge, in the normal course such reassignment is strictly procedural and unlikely to impact the merits of a case.  However, the Second Circuit panel’s removal decision in Floyd is striking because not only could it form the basis for invalidating two crucial decisions that directly affect the constitutional rights of minorities in New York City but could also have the unintended effect of putting district court judges on the defensive and curbing their judicial independence.

Nicholas Fortuna, November 12, 2013.

Last week the Supreme Court curiously took oral argument on the meaning of clothes. Under a provision of the Fair Labor Standards Act (FLSA) the time spent “changing clothes” does not count towards the statute’s overtime provisions. The case brought by employees against United States Steel Corporation claimed that the time to put on overalls should count under the FLSA. The employees’ lawyer began his argument by listing items that would not be considered clothes: glasses, earrings, necklaces, wristwatches and toupees. He also included a police officer’s gun, radio, and quarterback’s wristband containing a list of plays. Justice Ginsburg interrupted the detour by asking what this had to do with the facts of this case. Referring to a picture of items the U.S. Steel workers put on and take off – hoods, jackets, and pants, Justice Ginsburg said, “looks like clothes to me.” The attorney for the workers tried to argue that because the items were flame retardant, protecting against workplace hazards, they should not be considered clothes under the statute. Justice Alito pointed out that the principal purpose of wearing clothes has always been to provide protection against the elements, even from thorns.

The steelworkers sought to overturn a unanimous decision by the Seventh Circuit Court of Appeals holding that the items the workers were required to wear were clothes and not covered by the FLSA’s overtime provisions. To eliminate any question about its decision, the lower court even included a picture of a man modeling the clothes at issue. In further rejection of the steel workers’ position, the lower court stated that the time to put on any of the items that would not be considered clothes—glasses, earplugs, and hard hats was trivial and would also not be covered under the statute. The Supreme Court should have let the Seventh Circuit’s decision stand and declined to hear the case because, if not obvious, the result is not of great consequence. We don’t need the Supreme Court to come up with a broad rule determining what should be considered clothes. The issue should be left to the collective bargaining process and for the parties to negotiate their own resolution.

Nevertheless, the Supreme Court chose to hear the case prompting the legal community to wonder why. While oral argument devolved into a tangled discussion of the meaning of clothes, the outcome is unlikely to be so muddled. A decision is due by June of next year and while it is not likely to change the meaning of clothes, it will perhaps give some insight as to why the Court heard this case in the first place.

Nicholas Fortuna, November 11, 2013.

Case New Holland, Inc. (CNH) sued the U.S. Equal Employment Opportunity Commission (EEOC) claiming it stole employee work time and violated the Fifth Amendment’s taking clause. The action complained of is that the EEOC sent out more than 1,300 emails to CNH’s employees and business accounts in an effort to drum up plaintiffs and evidence for a potential class action against the company. The email sought information regarding discrimination “against job applicants and current and former employees from January 1, 2009 to present.” The email pertains to an investigation launched in March 2011 into alleged age discrimination by CNH and its affiliated businesses. The company alleges that the EEOC gave no notice of the email blast and in addition to being a violation of the Constitution; it violated its own administrative rules. The lawsuit seeks an injunction that would prohibit the EEOC from using any information it gathered through the mass email. The case is pending in the D.C. federal court before Judge Reggie Walton.

The argument asserted by CNH is that it has a property interest in the time and work product they compensate employees for and that the EEOC’s actions amounted to a “taking” of that time.  Further, CNH alleged the EEOC harmed business operations by sending 1,330 “unannounced workplace interviews” of its employees. The email did not specify that the inquiry was limited to age discrimination and that no finding of discrimination had yet been made.

The EEOC has filed a motion to dismiss the suit. It argued that the email falls within the agency’s investigatory power to communicate with employees. Additionally, “investigations by federal agencies may disrupt the process of normal business operations, but this is the cost of doing business and does not result in a cognizable harm.” The National Association of Manufacturers filed an amicus brief in support of CNH. EEOC’s motion to dismiss has not yet been decided.

Nicholas Fortuna, November 8, 2013.

Chai Feldblum, the Commissioner of the Equal Opportunity Commission (EEOC), advised employers to maintain very clear job descriptions of what they expect accomplished to avoid running afoul of the Americans With Disabilities Act (ADA). Lawyers for employers have provided the same advice to their clients since the enactment of the ADA.

Feldblum spoke about compliance with the ADA at the American Bar Association’s Annual labor and Employment Law Conference. She explained that if employers have clear, succinct job descriptions that lay out the essential functions of the job as well as their expectations from employees, it would help better understand whether they are able to give accommodations to workers with disabilities. In the first instance, the employee must be qualified to perform the job. She went on to say: “The whole point of the reasonable accommodation is to enable the person to perform the job up to the standards you (the employer) have established, quantitative and qualitative standards.”

The courts and the EEOC give deference to an employer in determining what the essential job functions are and whether the employee can perform them with or without reasonable accommodations. Feldblum warned though, that employers should not take that to mean that regulators or courts will accept anything that an employer deems an essential function to be essential if it does not reflect the reality of the position.