MEDIA

February 8, 2008

Late Notices of Appeal, Custody Slowing Access to Counsel

Published in: New York Law Journal | volume 239

This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge Denis R. Hurley allowed a party to file a very late notice of appeal under Fed. R. App. P. 4(a)(6), where counsel had not received e-mail notice from the clerk’s office of the relevant order and judgment. Judge Frederic Block invalidated a U.S. Department of Housing and Urban Development (HUD) regulation. Judge Nicholas G. Garaufis denied a habeas petition complaining that restrictive conditions of confinement excessively interfered with access to counsel. And Magistrate Judge Viktor V. Pohorelsky dealt with the journalist’s privilege in connection with surveillance of post-Sept. 11 detainees and their lawyers.

Late Notice of Appeal

In Rojas v. Theobald, O2 CV 3623 (EDNY, Jan. 15. 2008), Judge Hurley granted defendant’s motion to enlarge his time to file a notice of appeal pursuant to Fed. R. App. P. 4(a)(6).

Plaintiffs brought this action under the Fair Housing Act and 42 U.S.C. §§1982, 1985 and 1986. After a jury trial, defendant Schkoda was found not liable on all counts.

On Nov. 16, 2006, Mr. Schkoda filed a motion for attorney’s fees and costs, and plaintiffs cross-moved for judgment notwithstanding the verdict. By order dated Aug. 23, 2007, Judge Hurley denied all the motions. On Aug. 28, judgment was entered.

Over two and a half months later, on Nov. 16, 2007, Mr. Schkoda moved to enlarge his time to file a notice of appeal nunc pro tunc. In a supporting affidavit, counsel claimed that he had not received notice of the Aug. 23 order or the Aug. 28 judgment. He said that on Nov. 1, 2007, he checked the docket sheet on the Pacer Service to determine the status of his November 2006 motion for counsel fees and leaned, to his ‘shock and dismay,’ that the motion had been denied on Aug. 23. The next day counsel was told by the clerk’s office that his firm ‘had never been linked to receive [electronic case filing] alerts on this case.’

As Judge Hurley noted, the electronic docket sheet shows that the clerk sent timely e-mail notices of the Aug. 23 order and Aug. 28 judgment to all counsel except Mr. Schkoda’s. Though Mr. Schkoda’s lawyer was signed up to receive electronic case filing (ECF) alerts in this case for years, he never received a single ECF notification until after he visited the clerk’s office and rectified the situation in November 2007. The court found it ‘difficult to understand’ counsel’s ‘shock and dismay,’ considering his failure to receive notices on this case for over two years. Given all the circumstances, however, relief was warranted.

Under Fed. R. App .P. 4(a)(1), counsel had to file his notice of appeal within 30 days after the judgment or order appealed from was entered; under Fed. R. App. P. 4(a)(5), the court could extend the time for 30 days on a showing of ‘excusable neglect.’ Mr. Schkoda’s November 2007 motion to enlarge his time fell well outside those limits.

Despite the jurisdictional bar posed by Fed. R. App. P. 4(a)(5), a remedy could be found in Fed. R. App. P. 4(a)(6), which allows the court to ‘reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered,’ but only if three conditions are satisfied.

  • First, the court must find that the moving party received no notice from the clerk under Fed.R.Civ.P. 77(d) of the order or judgment within 21 days after entry. Mr. Schkoda clearly met this requirement.
  • Second, the motion to enlarge must be filed ‘within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice’ under Fed.R.Civ.P. 77(d), ‘whichever is earlier.’ As Judge Hurley observed, the notice contemplated by the rules is written notice. On Nov. 1, 2007, when counsel became aware of the Aug. 23 order and Aug. 28 judgment after checking the docket sheet on PACER, he had received no written notice and the seven-day period had not been triggered. His motion to enlarge the time to file a notice of appeal, moreover, was filed within the 180-day period, in November 2007.
  • Third, the court must find no prejudice to any party. Plaintiffs argued that allowing Mr. Schkoda to file a late notice of appeal would cost them time and money in litigating the appeal. This, Judge Hurley noted, is the consequence of every appeal and not the ‘prejudice’ envisioned by the rule.

Constitutionality of HUD Regulation

In Linares v. Jackson, 06 CV 876 (EDNY, Jan. 3, 2008), Judge Block found that a HUD regulation violated due process in failing to provide notice and an opportunity to be heard to tenants of HUD-owned subsidized housing when HUD determined to evict them on the ground that the housing needed substantial rehabilitation.

HUD served notices to vacate on four plaintiff tenants who had been living in their homes from four to 30 years. The notices gave plaintiffs 23 to 33 days to move out, and did not state any reason why the evictions were being sought. Each plaintiff was a tenant in a multifamily building that HUD had acquired through foreclosure, and HUD claimed unfettered discretion to evict tenants in order to sell the properties to nonprofit and for-profit developers under 24 C.F.R. §247.10.

At a hearing, HUD’s counsel acknowledged that it provided an opportunity to be heard in all eviction instances, including for-cause evictions, with one exception, the rehabilitation context. Another HUD regulation, 24 C.F.R. §247.9, sets forth four grounds for termination of tenants, all of which require some wrongdoing on the part of the tenant, and requires that HUD state the reasons for the action to enable the tenant to prepare a defense. Additionally, in connection with unsafe housing, other HUD regulations provide for temporary housing to prevent homelessness. But ‘HUD does not guarantee substitute housing when it decides that premises it has acquired in foreclosure must be permanently vacated in order to make them more attractive to prospective purchasers.’ Slip op. 15. Instead, it offers advisory services and payment for moving expenses if the displaced tenant finds other affordable housing.

Judge Block found 24 C.F.R. §247.10 unconstitutional under the Supreme Court’s decisions in Goldberg v. Kelly and Matthews v. Eldridge. The U.S. Court of Appeals for the Second Circuit has applied the due process requirement of Goldberg to the termination of a tenancy in a subsidized housing project, requiring notice and a meaningful opportunity to be heard. Judge Block stated:

It is difficult to fathom why, in the face of this spate of judicial authority, HUD has taken the position, embodied in §247.10, that by determining that premises it owns are in need of substantial rehabilitation, it can take poor peoples’ homes without telling them why and without affording them a meaningful opportunity to be heard…. Section 247.10 is, simply put, patently unconstitutional. Slip op. 20.

The court therefore granted partial summary judgment to plaintiffs.

Judge Block then made some observations about creating a regulation that would comport with due process. First, the process should precede the commencement of eviction proceedings. Second, the notice should make clear the reasons for termination of the tenancy and the right to challenge that decision. Finally, Judge Block suggested that HUD would go a long way toward satisfying the Matthews requirements if it either undertook substantial rehabilitation without displacing the tenancies or arranged substitute housing for these faultless tenants (as it does for tenants in unsafe housing) who run the risk of becoming homeless.

Habeas: Confinement Status

In Basciano v. Lindsay, Warden of the Metropolitan Detention Center, 07 CV 421 (EDNY, Jan. 14, 2008), Judge Garaufis denied a habeas petition by an inmate at the Metropolitan Detention Center (MDC) in Brooklyn who sought to lift the Special Administrative Measures (SAMs) governing his confinement and to move from a Special Housing Unit (SHU) to the general prison population. Petitioner, facing charges that carry a possible death penalty, argued that the onerous conditions of his confinement unduly impede his access to counsel.

Judge Garaufis detailed the procedural history relating to this and other recent cases against petitioner, the tortuous chronicle of his confinement since his November 2004 arrest, and evidence of his dangerousness, including his alleged desire to harm a federal prosecutor, as reflected in the government’s submissions. Slip op. 3-15.

As Judge Garaufis observed, a pretrial condition does not amount to ‘punishment’ if it is ‘reasonably related to a legitimate governmental objective.’ Here, the court found legitimacy in the government’s ‘purposes of preventing harm to those whom [petitioner] may wish to harm and of inhibiting his ability to oversee the operations of the Bonanno crime family, widely known for its propensity to order and commit violent acts[.]’ Slip op. 18.

The court also found sufficient evidence that petitioner is a danger to others and that the restrictive conditions of his confinement are rationally related to the purpose of curbing that danger. Judge Garaufis agreed with the conclusions in Magistrate Judge Robert M. Levy’s Report and Recommendation that petitioner has sought to orchestrate violence and other criminal activity from prison.

Judge Garaufis concluded that ‘placing [petitioner] in the SHU and removing him from the general prison population is a rational response to the Government’s legitimate purpose.’ Slip op. 22. Several factors supported this conclusion:

  1. ‘[L]imiting petitioner’s ability to communicate with other prisoners and with visitors who might communicate with criminal associates’ is a valid way to prevent physical harm.
  2. Petitioner has been allowed alternative means to exercise his rights: he may have family visits under certain monitoring conditions and meet privately with his attorneys.
  3. Petitioner’s presence in the general population would make it ‘extremely difficult’ for prison staff to prevent him from passing orders to commit violence.
  4. There are no ‘ready alternatives’ to the current conditions of confinement. Slip op. 22-24.

Though denying the requested relief, Judge Garaufis expressed ‘concern’ about ‘the ongoing difficulties [petitioner] has had recently in receiving legal mail and in effectively and efficiently meeting with his attorneys at the MDC.’ For example, one of his lawyers, appointed under the Criminal Justice Act, had to wait for one hour to see petitioner after arriving at the MDC ‘and then waited three and one-half hours after his meeting ended to be escorted from the SHU to the main lobby.’ Even apart from impeding access to counsel, this was a ‘waste’ of ‘taxpayer dollars.’ The same attorney also complained that petitioner had not received legal mail that had been mailed nine days earlier. In the court’s view, the results of the efforts by the Bureau of Prisons to deal with this problem have been ‘unacceptable.’ Judge Garaufis invited defense counsel to apprise the court if the problem persists. Slip op. 26-27

Journalist’s Privilege

In Lonegan v. Hasty, 04 CV 2743 (EDNY, Jan. 1, 2008), Magistrate Judge Pohorelsky granted in part and denied in part motions by two nonparties, The New York Times and Amnesty International USA, to quash subpoenas by government defendants seeking testimony and production of documents relating to articles and a report on surreptitious audio and video surveillance of privileged conversations between the lawyer plaintiffs and their clients, post-Sept. 11 detainees, conducted by personnel at the Metropolitan Detention Center in Brooklyn (MDC). The issue in dispute is when plaintiffs knew or should have known about the surveillance, to determine when the statute of limitations began to run.

The subpoenas served on the Times and its reporters, who wrote two articles on the detainees and the lawsuit, sought ‘essentially all documents concerning any communications of any kind between [Times reporter Nina] Bernstein and various individuals, including the plaintiffs and employees or representatives of the Legal Aid Society, conceivably related to the articles Bernstein had written. ‘ The subpoenas served on Amnesty and the writer of its report on the status of post-Sept. 11 detainees sought ‘a broad range of documents concerning communications between [report writer Rachel] Ward and a host of individuals as well as employees or representatives of the Legal Aid Society related to those sections of the Amnesty report that discussed video surveillance at the MDC.’

Magistrate Judge Pohorelsky discussed the different standards applied to confidential and nonconfidential information. A party seeking confidential information must ‘make a ‘clear and specific showing’ that the material sought is ‘highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources.” With nonconfidential information, a party need only show that the materials are of ‘likely relevance to a significant issue in the case’ and cannot be reasonably obtained from other sources. Slip op. 3.

Concerning the subpoenas served on the Times, Magistrate Judge Pohorelsky applied the less-stringent nonconfidential information test. The court identified ‘when the plaintiffs knew or should have known that their conversations with their clients at the MDC were being video- and audiotaped ‘ as the one significant relevant issue. Otherwise, the court saw the subpoena as an effort to sift through the Times’ files in search of information. Magistrate Judge Pohorelsky then stated that Ms. Bernstein was the ‘only remaining source who can testify about what [plaintiff Olivia] Cassin said and what her statements to [Ms.] Bernstein may have revealed concerning her knowledge that the camera was actually recording the meeting.’ Defendants could therefore obtain any documents relating to communications with Ms. Cassin that disclose when she knew she was being surveilled, and could depose Ms. Bernstein on that subject alone. Slip op. 6.

Amnesty and Ms. Ward had produced some responsive material, including a copy of Ms. Ward’s interview notes concerning all comments about the video- and audiotaping, but withheld other material based on the journalists’ privilege, and Ms. Ward testified at a deposition. The court rejected defendants’ argument that Amnesty and Ms. Ward waived the privilege by producing a portion of their notes of an interview with one of the plaintiffs. A waiver, the court stated, applies only to partial disclosure of communications about the same subject matter, the video- and audio surveillance at the MDC. Thus, the waiver would not extend to all the research done to prepare the report. Magistrate Judge Pohorelsky also concluded that, among the materials sought by defendants, only notes relating to a conversation between plaintiff and another attorney that may have directly addressed the issue of surveillance would arguably be relevant to the statute of limitations issue, and the redacted information in the notes should be disclosed.

The remainder of the information sought by defendants did not meet the ‘clear and specific’ showing required for confidential information. There was no showing that any relevant information existed, let alone that it was highly material or necessary to defendants’ defense.

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

[This article is reprinted with permission from the February 8, 2008, issue of the New York Law Journal. Copyright © 2008 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]