MEDIA

March 20, 2001

From Consular Relations To The Uniformed Services Employment Act

Published in: New York Law Journal | volume 225
Written by: Peter R. Schlam and Harvey M. Stone

This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. The cases include issues related to the Vienna Convention on Consular Relations and the First Amenement

Vienna Convention

In Sepulveda-Murillo v. United States, 00 CV 1727 (EDNY, Jan. 12, 2001), Judge Reena Raggi denied a 2255 petition by a Colombian national who asserted that his conviction and sentence in two cases should be vacated because the government had obtained post-arrest statements from him without affording him the right of consular consultation provided in the Vienna Convention on Consular Relations. The court held, among other things, that the alleged treaty violation was not prejudicial. The decision’s analysis highlights an enlightened, but sometimes overlooked, principle of criminal justice that a defendant should not be prejudiced at sentencing by his own truthful admissions to the government technically resulting in a higher guideline range.

Petitioner pleaded guilty in 1998 to conspiring to launder narcotics proceeds and conspiring to import heroin. The cases were consolidated, and the court sentenced him to 108 months’ incarceration. This represented a significant departure from the guideline range of 168 to 210 months. The departure was based on petitioner’s cooperation with federal authorities.

Petitioner contends now that, as a Colombian national, he was entitled to speak to his nation’s consul after his arrest, and that a consular official would likely have advised him to remain silent, in which event he would not have made inculpatory statements. Here, petitioner’s own admissions had provided facts, otherwise known to the government, causing an increase in his sentencing range under guidelines calculations.

As Judge Raggi observed, the value of consular notification is to ensure that a foreign national charged with violating American law is visited by an official of his native country who can explain his rights, particularly the right to counsel and to remain silent. Even assuming, the court noted, that petitioner can invoke the Vienna Convention to support a collateral attack on his conviction, he could not show the prejudice necessary for obtaining relief.

By pleading guilty after consulting with counsel, petitioner waived all claims relating to deprivation of his rights prior to the plea.

Defendant’s Admissions

Additionally, though his post-arrest statements resulted in a higher guideline range, Judge Raggi made sure, in sentencing him, that his own admissions would not lead to a longer jail term. In fact, petitioner pleaded guilty pursuant to a cooperation agreement, in the hope which was realized of receiving a downward departure. At sentencing, Judge Raggi stated:

If you had pleaded guilty to those [charged] crimes and there had never been any cooperation, never any admission by you as to what else you had also been involved in, your guideline range would be 135 to 168 months in jail.

. . . [F]or your candid acknowledgment of drug trafficking beyond what the government knew, I don’t think you should pay a penalty, so I would likely consider a sentencing range of 135 to 168 months rather than 168 to 210 months.

From the 135-168 month range, the court then departed downward to 108 months in recognition of petitioner’s cooperation. In short, petitioner’s inculpatory statements and other cooperation only benefitted him and in no way hurt him at sentencing.

First Amendment

In Long Island Board of Realtors, Inc. v. Incorporated Village of Massapequa Park, 96 CV 5241 (EDNY, Feb. 2, 2001), Judge Eugene H. Nickerson rejected a First Amendment challenge to the constitutionality of a local ordinance regulating the display of signs, including realtors’ signs, in residential districts.

The regulations at issue limit to one the number of relevant signs allowed on residential property, prohibit signs larger than 15 inches in height or length, and require a permit to display such signs. (Certain signs identifying licensed professionals are subject to different size limitations and otherwise excluded from the regulation.) Plaintiff argued that: (i) the limitations failed under the four-part test for assessing restrictions upon commercial speech set by the U.S. Supreme Court in Central Hudson Gas and Electric Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557 (1980); and (ii) the regulation was unconstitutional as applied, in that real estate signs were prohibited while other types of commercial speech assertedly were not.

Judge Nickerson found that the parties were in agreement as to two of the four Central Hudson factors that the signs concerned lawful activity and were not misleading and that the regulations advanced a substantial government interest. The issue turned, therefore, on the remaining factors: "whether the ordinance directly advances its stated purpose without restricting more speech than is necessary." Slip op. 11.

In order to make this assessment, the court considered the three-part test for limits upon the time, place and manner of First Amendment expression, as set forth in Ward v. Rock Against Racism, 491 U.S. 781 (1989), and Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976). This standard requires that a regulation: (i) be content neutral on its face; (ii) be narrowly tailored to serve a significant government interest; and (iii) leave open sufficient alternative channels of communication for the restricted information. Slip op. 13.

Judge Nickerson found each of these requirements satisfied. The court rejected plaintiff’s allegation that only real estate signs were targeted by the regulation as unsupported, both by the language of the regulation itself and by plaintiff’s supplementary evidence, and thus determined the challenged provision to be content neutral on its face. The regulation was also narrowly tailored, as it "serves the substantial government interests of aesthetics and safety by controlling the number, location, size and height of signs permitted to be posted on residential property, without completely prohibiting such signs. …" Slip op. 13-14.

Finally, the ordinance left open sufficient alternative channels of communication, such as newspaper, television and radio advertising, as well as Internet Web sites, direct mail and listings of properties in real estate offices. Id.

Having found that the challenged regulation was a permissible time, place and manner restriction, the court concluded that it was no more extensive than necessary to serve the substantial government interest at issue and granted summary judgment to defendant.

Uniformed Services Employment and Reemployment Rights Act

In Fink v. City of New York and New York City Fire Department, 97 CV 6314 (EDNY, Mar. 1, 2001), Judge David G. Trager denied defendants’ motion to overturn a jury verdict awarding plaintiff (a) $42,000 in compensatory damages and $42,000 in liquidated damages under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), and (b) $7,800 in compensatory damages and $800,000 for emotional distress under the Americans for Disabilities Act (ADA). Following trial, the court had reduced the award for emotional distress to $300,000 in accordance with the statutory damages cap in 42 U.S.C. 1981a and awarded plaintiff prejudgment interest and $91,000 in liquidated damages under USERRA.

Though declining to overturn the jury verdict, the court ordered a new trial solely on the issue of emotional damages unless plaintiff accepted a specified remittitur within 20 days.

Plaintiff alleged that defendants violated USERRA because plaintiff’s military service in Bosnia in 1994 had prevented him from taking a promotional exam for which he had studied before leaving which they refused to administer upon his return. When defendants finally allowed him to take the exam in 1997, they refused to provide appropriate study materials. Plaintiff alleged that defendants violated the ADA because, viewing him as hearing impaired, they forced him to submit to a medical exam and changed the terms and conditions of his employment. Plaintiff also alleged retaliation under both USERRA and the ADA.

As to USERRA liability, Judge Trager found sufficient evidence for a reasonable jury to have concluded that there was a reasonable certainty of plaintiff’s promotion in the absence of defendants’ discriminatory conduct. Under USERRA an employer may not discriminate against an employee on the basis of the employee’s military service. This means that an employer must sometimes treat a veteran differently to ensure that he or she receives the same benefits as coworkers.

Here, a reasonable jury could have found that plaintiff’s military status was a motivating factor in the decision to deny plaintiff’s request for a promptly administered promotional exam. See NLRB v. Transp. Mgmt Corp., 462 U.S. 393, 401, 103 S. Ct. 2469, 2474 (1983). Judge Trager based this determination on the hostility shown by Fire Department personnel, and the department’s actions in denying Fink his request for a make-up promotional exam, administering a make-up exam a few years later on outdated material without the benefit of study guides for that old material, denying him pension benefits due him, placing him on light duty and creating administrative difficulties in returning him to his former position upon his return from Bosnia . . . . Slip op. 21-22.

Defendants had made no effort at trial to show they would have made the same decision absent plaintiff’s veteran status, and the court concluded that they could not have done so on the facts before the jury.

As the court also found, there was evidence of a sufficient causal connection between the protected activity and the adverse action to satisfy both USERRA and the ADA standards for retaliation.

First, the jury could have concluded that the medical board knew of plaintiff’s discrimination complaints, even if the examining doctor did not. Second, the Fire Department’s decision to require plaintiff to work five days a week, instead of the four days required of all other light-duty employees, could have led the jury to conclude that the chief fire marshall knew about plaintiff’s discrimination complaints when he made such retaliatory decisions.

Finally, defendants filed an application to retire plaintiff involuntarily just before the 20th anniversary of his service when his option to receive a $12,000-per-year pension supplement would have vested.

Judge Trager also upheld the jury’s award of damages under the ADA based on defendants’ conclusion that plaintiff was substantially impaired in the major life activity of hearing. Contrary to defendants’ argument, plaintiff did not have to show that he was restricted in the ability to perform either a class of jobs or a broad range of jobs. Rather, a substantial limitation of a major life function such as hearing was sufficient to meet the requirements of the ADA. Slip op. 45.

Finally, using the remittitur process, Judge Trager gave plaintiff a choice between a new trial on emotional distress damages or accepting a reduction of those damages to $175,000. The court acknowledged that plaintiff’s testimony and that of his wife about the emotional impact of the Fire Department’s treatment of him were credible and sympathetic. The Fire Department had labeled him as disabled, which affected plaintiff’s self-image and caused sleeplessness, short-temperedness, headaches and marital problems. Judge Trager also pointed to "the etiology of [plaintiff’s] emotional distress, which persisted over the course of years and was ongoing as of the date of his wife’s testimony." The court added:

Fink’s disenchantment with the fire department and his job, both of which he came to hate, aggravated by the memory of his experience of his reception upon returning [to the U.S.] from Vietnam and exacerbated by the fire department’s placing him on light duty after subjecting him to medical testing because of his alleged disability, all compound his emotional injuries, lending credence to the claims of diminished self worth and public humiliation which Fink’s testimony suggested.Slip op. 64.

Nevertheless, in light of related decisions on emotional distress, Judge Trager viewed the suggested reduction to $175,000 as appropriate. Plaintiff’s failure to seek medical help or present medical evidence also contributed to the remittitur.

Peter R. Schlam and Harvey M. Stone are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.

[Reproduced with permission from New York Law Journal Volume 225, Tuesday, March 20, 2001.  Copyright 2001 ALM Properties, Inc.  All rights reserved.]