Allyn & Fortuna LLP
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.
EEOC Sued For Loss Of Worker Productivity As A Result Of Unannounced Widespread Workplace Interviews
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.
Nicholas Fortuna, October 18, 2013.
This term, the U.S. Supreme Court will rule on the scope of the President’s power to make recess appointments under the Constitution. Article II of the Constitution provides that the president shall have power to fill vacancies subject to Senate confirmation during a recess of the Senate to ensure smooth operation of the government. The D.C. Circuit Court of Appeals ruled in National Labor Relations Board (NLRB) v. Noel Canning that President Obama’s three appointments to the NLRB during a recess by the Senate were unconstitutional. The effect was to void the NLRB’s Noel Canning decision and put at risk all the rulings made by the Board since the recess appointments were made.
Congress created the NLRB in 1935 to promote labor peace by encouraging companies and unions to bargain over their workers’ pay and other benefits. The Board decides thousands of cases like the one at issue here. Labor unions view the Board as a key ally in a time of diminishing union membership and clout. Employers see the Board as too pro-union. The NLRB has five members that decide matters relating to unions and employers.
The Supreme Court ruled three years ago that the Board shall not carry out its duties if its membership falls below three. Typically, when a vacancy occurs on the Board, the President chooses someone to fill it and the Senate decides whether to approve that nominee. Because of partisan gridlock, the Senate refused to vote on any of President Obama’s nominees to the Board. As a result, the membership fell below three and the Board did not have a quorum to operate. In turn, President Obama made three recess appointments in January of 2012.
The D.C. Circuit’s decision severely limits the President’s appointment power. It ruled first that the President can only make a recess appointment when the Senate is out of town during the interval between its annual sessions; and second, that the only vacancies the President can fill by such appointments are those that have opened up during such annual recess.
The current battle is a rehash of fights during the George W. Bush administration, just with party affiliations flipped. In 2004, President George W. Bush was fighting a challenge by Senate Democrat, Ted Kennedy, of his right to make intrasession appointments. At that time, the D.C. Circuit ruled in favor of the President and upheld the disputed appointments. In 2012, the Solicitor General in the Obama White House is defending intrasession recess appointments from attacks by the right. This time D.C. Circuit ruled against the President.
The Supreme Court is expected to make a decision by June of 2014.