MEDIA

January 17, 2001

On Private Rights Of Action, Post-Arrest Silences And Title VII

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; among the topics covered were private rights of action and post arrest silence.

Private Right of Action

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In Spinner v. Verbridge, No. 99 CV 5220 (EDNY Dec. 15, 2000), Judge David G. Trager granted defendants’ motion to dismiss an action for lack of subject matter jurisdiction, finding no private right of action under the Federal Aviation Act of 1958 (FAA) in a case of first impression.

In May 1998, defendant Gary Verbridge and plaintiff Frank Spinner entered into an agreement providing that Mr. Verbridge would sell a 1955 Cessna 172G aircraft to Mr. Spinner. Because the plane was located on a private piece of property with an extremely narrow runway that ran between apple trees, Mr. Verbridge agreed to fly the plane off the runway to a small airport five minutes away. Mr. Spinner would join him for the flight and the sale of the plane would occur after arrival at the airport on Aug. 15, 1998. As the plane took off, its right wing collided with the apple trees on the right side of the runway, crashed into the trees and spun into the ground. Mr. Spinner was severely injured and his two sons witnessed the accident. Mr. Verbridge had been flying small planes without a valid flying certificate since 1992, but had led Mr. Spinner to believe that he possessed a valid certificate.

Mr. Spinner sued Mr. Verbridge for negligence in ownership, operation, maintenance, management, supervision and control of the plane. In addition he sued G&G Farms, the owner of the property where the accident occurred, for negligence in failing to keep and maintain the runway in a safe condition. He sued Williamson Flying Club for failing to prohibit Mr. Verbridge from flying in and out of its airport without a valid certificate and because it knew or should have known that Mr. Verbridge’s airman certificate had been suspended in 1992 and never renewed. Mr. Spinner’s sons sued for negligent infliction of emotional distress and his wife sued for loss of services and consortium.

FAA 44711 prohibits a person from operating a civil aircraft without an airworthiness certificate in effect. Judge Trager first stated that it was undisputed that no express private right of action was created by the statute, but that no court had addressed whether an implied private right of action was created by this particular section of the FAA.

A Four-Part Test

Applying the four-part test established by the Supreme Court in Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080 (1975), to determine whether the statute conferred an implied private right of action on plaintiff, Judge Trager addressed the " ‘threshold question’ whether or not the statute was enacted for the benefit of a special class of which the plaintiff is a member." Slip op. at 7. The court determined that the language of 44711 did not show any intent to benefit a special class of persons. Judge Trager rejected plaintiffs’ argument that, because the statute was intended to benefit the public in general, any member of the public injured had a private right of action, stating that the Supreme Court has refused to infer a private right of action where the statute benefits the public in general, not a particular class of individuals. The court concluded that, while it was unclear whether victims of accidents had a greater right of action than the general public, when the second Cort v. Ash factor – whether the Legislature intended, either explicitly or implicitly, to create such a remedy – was considered along with the first, it became clear that there was nothing in the language of the statute or legislative history to suggest that 44711 was intended to benefit a particular class.

Considering the third part of the test – whether it is consistent with the legislative scheme to infer such a remedy – Judge Trager pointed, first, to the lack of any indication that Congress intended to create a private right of action generally for the FAA and, second, to the specific inclusion of a private right of action for a section permitting an air carrier to provide air transportation only if the air carrier holds a certificate authorizing air transportation.

Judge Trager also pointed to civil enforcement provisions in the FAA statute allowing the Secretary of Transportation to bring a civil action to enforce regulations or any term of a certificate or permit or to prosecute persons violating regulations or certificates or permits. The statute also establishes civil and criminal penalties.

The court rejected plaintiffs’ public policy argument that a private right of action was necessary for enforcement against uncertified individuals, such as Mr. Verbridge, who fly small planes for pleasure. Discussing the benefits of a private right of action in situations where uncertified individuals fly small planes for pleasure, the court noted the usefulness of holding defendant Williamson Flying Club liable because it would then ensure that its airports were used only by certified pilots. Referring to the language of 44711, however, the court stated that the only reference was to the "person" who must be certified and any implied cause of action would not extend to a flying club in any event.

Finally, considering the fourth part of the test – whether the cause of action is traditionally one relegated to state law, so that it would be inappropriate to infer a cause of action based solely on federal law, Judge Trager determined that there was no need for inferring this cause of action, because plaintiffs had a cause of action for negligence under state law.

Post-Arrest Silence

In Farakesh v. Artuz, 99 Civ. 3945 (EDNY, Oct. 3, 2000), Judge John Gleeson held that petitioner Morteza Farakesh’s state drug trafficking conviction must be set aside because the prosecutor improperly elicited testimony concerning defendant’s post-arrest silence, and then used that testimony in summation to persuade the jury that it could infer his guilty knowledge from his silence. In addition, the trial court, at the prosecutor’s insistence, erroneously precluded the defendant’s testimony that he had in fact provided his exculpatory statement to officers at the scene within minutes of his arrest.

Morteza Farakesh was arrested at John F. Kennedy International Airport when customs agents discovered almost 20 pounds of morphine stashed in hidden compartments in his three suitcases. Mr. Farakesh’s defense was that he did not know the drugs were in the suitcases, and he testified to that effect at each of his two trials. His first trial ended in a mistrial when the jury could not agree on the issue of his knowledge. At his second trial, he was convicted of criminal possession of a controlled substance in the first degree, and subsequently sentenced to a term of 20 years to life in prison. At the second trial, the prosecution introduced evidence that Mr. Farakesh twice expressly declined to make a statement after receiving his Miranda warnings and remained silent when his suitcases were ripped open by customs officers in his presence. In his summation, the prosecutor relied heavily on Mr. Farakesh’s silence as proof of his guilty state of mind and to impeach his exculpatory testimony at trial.

In his petition for a writ of habeas corpus, Mr. Farakesh contended that his conviction must be reversed because the prosecutor’s use of his post-arrest silence deprived him of a fair trial. Judge Gleeson, citing Doyle v. Ohio, 426 U.S. 610 (1976), noted that due process prohibits the impeachment of a defendant’s testimony by reference to the defendant’s post-arrest, post-Miranda warnings silence.

The rule enunciated in Doyle "rests on the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial." Brecht v. Abrahamson, 507 U.S. 619, 628 (1993).

Three Errors Found

Judge Gleeson found three specific errors at Mr. Farakesh’s second trial related to the prosecution’s use of his post-arrest silence. First, the prosecutor in his case-in-chief repeatedly elicited testimony regarding defendant’s post-arrest silence "in an impermissible effort to affirmatively prove the defendant’s guilty knowledge." Second, the prosecutor argued in summation that the defendant’s exculpatory trial testimony should not be believed because he remained silent after his arrest "even though he was asked to make a statement." Third, the court, at the prosecutor’s insistence, erroneously precluded the defendant from testifying that he had in fact provided his exculpatory statement to officers at the scene within minutes of his arrest. Judge Gleeson found that the prosecutor "committed repeated, flagrant violations" of the rule set forth in Doyle. Although Mr. Farakesh was impliedly assured that his refusal to speak to the customs agents would not be held against him, the prosecutor nevertheless made that refusal a focal point of his case-in-chief and the linchpin of his summation. These errors, which Judge Gleeson found were "both severe and deliberate," had a "substantial and injurious effect or influence" on the jury’s verdict and therefore cannot be deemed harmless.

Title VII

In Grillo v. New York City Transit Authority, et al. (EDNY Nov. 21, 2000), Eugene H. Nickerson considered the scope of an EEOC letter to authorize suit on related grounds and, despite resolving that issue favorably to plaintiff, ultimately granted summary judgment dismissing civil rights claims asserted by "a white male of Italian origin" against the Transit Authority (TA or authority) and related individuals.

Plaintiff was demoted from a probationary position as Supervisor of Lighting Maintenance, and returned to his permanent civil service rank of light maintainer, based upon defendants’ assertion of disruptive, "improper conduct" at a training seminar and "unsatisfactory performance" in the supervisory position.

Upon learning of this action, plaintiff filed a charge with the New York City Commission on Human Rights (NYCCHR) alleging that the authority and three female instructors at the training seminar had targeted him because of his "white race," in violation of the New York City Administrative Code and Title VII of the Civil Rights Act of 1964.

Upon receiving a right to sue letter from the EEOC as to the charges of racial discrimination alleged in the NYCCHR filing, plaintiff commenced suit under Title VII, as well as under 42 U.S.C. 1981, 1983 and 1985, and state law, alleging racial, sexual and ethnic discrimination. Defendants sought to dismiss the Title VII claim on the ground that plaintiff had exceeded the scope of the EEOC’s investigation by expanding his claim to include sexual and ethnic discrimination, when only the race charge had been asserted before the EEOC.

The court noted that it had "jurisdiction to hear Title VII claims only if they are ‘included’ in an EEOC charge or are based on conduct subsequent to the EEOC charge which (sic) [in original] is reasonably related to that alleged in the EEOC charge." Butts v. City of New York Dept. of Housing, 990 F.2d 1397, 1401 (2nd Cir. 1993) Slip op. at 20. In rejecting defendants’ reliance upon a line of cases holding that allegations in court of national origin were not "reasonably related" to claims of racial discrimination before the EEOC, the court considered St. Francis College v. Al-Khazraji, 481 U.S. 604, 107 S.Ct. 2022 (1987) and Lopez v. S.B. Thomas, 831 F.2d 1184 (2nd Cir. 1987), which held that persons of any race or national origin had standing under 42 U.S.C. 1981, despite the fact that the statute, on its face, secured only the right of all persons to enjoy the " ‘same right’ to make and enforce contracts and to the full and equal benefit of all laws for the security of persons ‘as is enjoyed by white persons.’ " Slip op. at 25. The Court concluded that, in light of that interpretation, "it would be a bold District Judge who would say that ‘race’ had a more restricted meaning in Title VII." Id. at 27.

National Origin Issues

Having determined that plaintiff’s allegations of "national origin" discrimination as asserted in court were "reasonably related" to the racial allegations of his EEOC complaint, the court proceeded to consider defendants’ motion for summary judgment. Judge Nickerson weighed plaintiff’s conclusory allegations of ethnic discrimination against defendants’ showing of plaintiff’s inappropriate behavior, including disruptiveness at the training seminar and failure to perform his supervisory duties at certain work sites. The court found that plaintiff had failed to make a prima facie showing of discrimination as required by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). Slip op. at 29-33.

Judge Nickerson also rejected plaintiff’s due process argument on the ground that there is no property right in a probationary position and his first amendment argument, finding that any expression in his disruptive behavior was "not of public concern involving weighty or civic matters." slip op. At 34-35. Having dismissed the federal claims, the court declined to consider the pendent state law claims.

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, Wednesday, January 17, 2001.  Copyright 2001 ALM Properties, Inc.  All rights reserved.]