Current Developments in the US District Court for the
Eastern District of New York
Posted: January 16, 2018

Judge Block Denies Motion to Change Venue from the EDNY to the SDNY in lawsuit by former Rikers Island Inmate

In a January 4, 2018 ruling, Judge Frederic Block denied the City of New York’s motion for a change of venue from the EDNY to the SDNY. (Kennedy v. City of New York, et al., 17-CR-5042 (E.D.N.Y. Jan. 4, 2018) (FB)(VMS)). Not surprisingly, the court rejected the City’s claim that the SDNY was a more convenient forum than the EDNY. For those not familiar with the geography of the SDNY and EDNY, the SDNY courthouse on Pearl Street in Manhattan is a pleasant spring-time walk over the Brooklyn Bridge from the EDNY courthouse on Cadman Plaza in Brooklyn.

The plaintiff, a former inmate at Rikers Island, brought a lawsuit in the EDNY based on injuries he received when he was allegedly beaten by two other inmates. The plaintiff sued the City, City officials and corrections officers. The City moved for a change of venue arguing that Rikers Island was in the Bronx (within the SDNY), the officers involved would have worked at Rikers Island, and the events occurred in the SDNY.

Judge Block explained that the location of the underlying events would only be relevant if venue was based on 28 U.S.C. § 1391(b)(2) (venue based on substantial part of the events), but not relevant where venue was based on § 1391(b)(1) (residency of defendants). The residence of an entity defendant (the City) is equated with personal jurisdiction under § 1391(b)(1). In other words, venue for an entity defendant is proper in any district where it would be subject to personal service if the district were its own state. Since the City is subject to jurisdiction in the Eastern District, venue is proper so long as all the other defendants reside in New York State.

”Under 28 U.S.C. § 1391(b), a civil action may be brought in: (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated.” . . .

For the purpose of venue, “an entity with the capacity to sue and be sued in its common name . . . shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question . . . .” 28 U.S.C. § 1391(c)(2). Section 1391(c) thus “equates jurisdiction with venue . . . for corporate defendants.” PDK Labs, Inc. v. Proactive Labs, Inc. , 325 F. Supp. 2d 176, 182 (E.D.N.Y. 2004) (quoting Laumann Mfg. Corp. v. Castings USA, 913 F. Supp. 712, 719 (E.D.N.Y.1996)). If a state has multiple judicial districts and has personal jurisdiction over a corporation at the beginning of the suit, the corporation is deemed to reside in any district that would have sufficient contacts for personal jurisdiction if the district were a separate state. Id. § 1391(d).

Here, venue is proper under § 1391(b)(1): All Defendants are residents of the State of New York, and the City is “subject to personal jurisdiction in the Eastern District and is thus deemed a ‘resident’ of the Eastern District.” Springle v. City of New York, 2013 WL 592656, at *8 (S.D.N.Y. Feb. 14, 2013).

(Kennedy v. City of New York, et al., 17-CR-5042 (E.D.N.Y. Jan. 4, 2018) (FB)(VMS)).

The court then rejected the City’s argument that venue should be changed for the convenience of the parties. “[T]he Eastern and Sourthern District are equally convenient from Rikers Island and both are within the state[.]”

Posted by Solomon N. Klein, Litigation Partner

Posted: January 4, 2018

Judge Bianco Dismisses Case for Lack of Subject Matter Jurisdiction after Finding That Public Union Was Not a “Mixed” Public/Private Union

District Judge Joseph F. Bianco recently dismissed a putative class action for lack of subject matter jurisdiction under the Labor Management Reporting and Disclosure Act of 1959 (“LMRDA”). (Medford v. The Civil Serv. Empls. Ass., Local 1000, AFSCME, AFL-CIO, CSEA Local 881, 17-CV-0011 (E.D.N.Y. Dec. 5, 2017) (JFB) (SIL). In doing so, Judge Bianco rejected plaintiffs’ creative argument that defendant’s union should be considered a mixed public/private union based on public sector workers that were assigned to work for the union itself.

A bit of background: The LMRDA provides for subject matter jurisdiction for certain claims against labor organizations that deal with employers. However, a public section union is not a labor organization under the LMRDA because state or political subdivisions are not employers under the LMRDA. Consequently, claims against public section unions do not have independent subject matter jurisdiction. Nonetheless, the LMRDA confers jurisdiction over a mixed public/private union.

In this case, Local 881 and other defendants were sued for statutory violations of the LMRDA. Defendants moved to dismiss, arguing that Local 881 represents only employees of the Town of Oyster Bay, which is a political subdivision of New York State. As such, there would be no subject matter jurisdiction under LMRDA. Plaintiffs, however, argued, that “Local 881 is a mixed union because [three] of its members do not perform work for the Town, and instead perform only union-related work. According to plaintiffs, those members are effectively Local 881 employees, not Town employees.”

The Court was unpersuaded:

Plaintiffs’ argument misses the mark. The fact that [the three members] were released from their regular duties for the Town to administer the CBA and process grievances for Local 881 members does not transform these public employees into union employees. To the contrary, they are still paid by the Town, continue to receive service credit in the New York State Local Employees Retirement System, and retain their civil service job titles. In fact, if any of these individuals were to lose their status as a Town employee, they would be ineligible to serve as a Local 881 officer. Therefore, under these circumstances, the Court declines to find that [the three members] are Local 881 employees based solely on the fact that they currently perform union-related work, and concludes that they remain public sector employees for purposes of the LMRDA. . . .

Moreover, this is not a situation where a union that generally represents public employees becomes a mixed union because it also represents such members in negotiations with private sector employers, thus subjecting itself to the LMRDA. See, e.g., Lynch [v. Patrolmen’s Benevolent Ass’n, No. 99 CIV. 63 LAP, 1999 WL 713369, at *1 (S.D.N.Y. May 18, 1999)] (noting that, if the PBA represented its members both in negotiations with the NYPD and in negotiations with private employers pursuant to a paid detail program, the union would be a mixed union and the LMRDA would apply). Here, plaintiffs have not alleged, or otherwise demonstrated, that Local 881 actually represented [the three members] (or any other Local 881 members) in negotiations with a private employer. . . .

To the extent plaintiffs suggest this union-related work means that the union represents them in negotiations with the union itself, the Court rejects that argument. A union cannot represent its own employees in negotiations with itself.

(Medford v. The Civil Serv. Empls. Ass., Local 1000, AFSCME, AFL-CIO, CSEA Local 881, 17-CV-0011 (E.D.N.Y. Dec. 5, 2017) (JFB) (SIL)(citations omitted).

In the absence of subject matter jurisdiction, Judge Bianco dismissed the case.

Posted by Solomon N. Klein, Litigation Partner

Posted: January 2, 2018

Judge Irizarry: Government Cannot Use Immigration Detention To Retain Custody Of Criminal Defendants That Are Granted Bail In The Criminal Proceeding

For the second time in as many months, Chief Judge Dora L. Irizarry has ruled that the Government cannot use immigration detention to maintain custody of criminal defendants that are granted bail in their criminal case under the Bail Reform Act, 18 U.S.C. § 3141, et seq. (United States v. Boutin, 17-CR-590 (E.D.N.Y. Dec. 26, 2017) (DLI)). The court held that the government must choose between releasing defendant on bail or having the indictment dismissed with prejudice. The question presented is straightforward: “‘whether Defendant [who was granted bail] may be held in ICE custody while his prosecution by the U.S. Attorney’s Office is pending.’” This is an issue that has apparently not yet been addressed by any Court of Appeals, but according to the Government, the Solicitor General is now considering whether to test the issue on appeal.

Defense attorneys often forgo seeking bail for criminal defendants who are subject to removal for immigration issues; the thinking is that even if bail were granted, the defendant will simply be transferred to immigration custody. However, these cases suggest that defense counsel should actively consider seeking bail even for criminal defendants who are subject to removal, but should consult with immigration counsel given the complexities involved in correctly presenting the bail application.

In Boutin, the defendant is a dual Spanish and Panamanian citizen charged with money laundering and theft. Boutin’s visa expired in 2016 and was now in the United States illegally. At arraignment, Boutin was ordered released on $100,000 bond and conditions of home confinement and monitoring. However, Boutin remained in custody pursuant to an ICE detainer.

Judge Irizarry noted that she had recently ruled on the question of whether the Bail Reform Act trumps the Immigration and Nationality Act, 8 U.S.C. § 1101, et seq., in a case titled U.S. v. Ventura, 17-CR-418 (E.D.N.Y. Nov. 3, 2017) (DLI):

In Ventura, this Court concluded that, once a criminal prosecution is initiated and the Government has invoked the jurisdiction of a federal district court, the Bail Reform Act is controlling. When an Article III court has ordered a defendant released, the retention of a defendant in ICE custody contravenes a determination made pursuant to the Bail Reform Act. As such, the Government’s criminal prosecution cannot proceed and must be dismissed with prejudice. See [United States v.] Ventura, 2017 WL 5129012, at *3 [(E.D.N.Y. Nov. 3, 2017)]. As noted in Ventura, this issue has not been addressed by the Second Circuit Court of Appeals or any other circuit court, but other district courts that have addressed this issue are in accord.

(United States v. Boutin, 17-CR-590 (E.D.N.Y. Dec. 26, 2017) (DLI)).

In Boutin, the court rejected the Government’s arguments that the Ventura holding should only be applied where the immigration detainer is merely pretextual and where the defendant’s criminal charge is immigration related. The court then concluded:

The Government has requested that the indictment, if it is to be dismissed, be dismissed without prejudice. Dismissal without prejudice would frustrate the purpose of the dismissal, namely to force the Government to make a choice. The Government is not without remedy as it may appeal this Court’s decision. Therefore, the request is denied. The Government also has requested that any order of dismissal be stayed pending its decision whether to appeal that order. Apparently, such a stay would be indefinite as the Government still is deciding whether to perfect its appeal in Ventura, which was decided over a month ago. The Court sees no irreparable harm to the Government that would necessitate a stay. The Government is empowered fully to choose the path it prefers in this case: release Defendant from ICE custody and proceed with the criminal prosecution, or retain Defendant in ICE custody and proceed with removal. It simply cannot have it both ways. Accordingly, the request for a stay also is denied.

(United States v. Boutin, 17-CR-590 (E.D.N.Y. Dec. 26, 2017) (DLI)).

As in Ventura, Judge Irizarry ordered that the Government release the defendant as per the bail order or have the indictment dismissed with prejudice. The Court gave the Government about a week to decide how it wished to proceed. In Ventura, the Government chose to retain custody of the defendant and the indictment was dismissed with prejudice. (The motions in both Boutin and Ventura were argued by Isaac Wheeler, an immigration specialist at the Federal Defenders of NY.)

Update: On January 3, 2018, the Court dismissed the indictment after the Government advised the Court that the defendant was not released from ICE custody.

Posted by Solomon N. Klein, Litigation Partner

Posted: December 15, 2017

Judge Garaufis Denies Summary Judgment after Applying New York’s Burden-Shifting Analysis in No-Fault “Serious Injury” Claim

District Judge Nicholas G. Garaufis recently denied summary judgment in an automobile accident diversity case where plaintiff claimed a “serious injury” as defined under New York’s no-fault insurance laws. Zhang v. Alvarado, 15-CV-04373 (E.D.N.Y. Dec. 8, 2017) (NGG) (JO). In denying defendants’ summary judgment, Judge Garaufis employed New York State’s burden-shifting analysis that at first requires defendant to “establish a prima facie case that no such injury was sustained.”

At first glance, readers of our recent post titled “Judge Chen Dismisses Slip and Fall Case after Applying Federal Summary Judgment Standard would have expected the court to use the federal standard that merely requires a defendant to show an absence of evidence by plaintiff. Indeed, Judge Garaufis expressed these exact reservations in employing the New York standard, but noted that “it must do so” given the Second Circuit’s “explicit adoption of the New York burden shifting scheme” for summary judgment motion in a no-fault injury case.

In Zhang, the plaintiff claimed that he suffered a “serious injury” such that he was not subject to the damage limitations under New York’s no-fault insurance scheme. In analyzing the motion, Judge Garaufis employed the more imposing standard of summary judgment under New York law rather than the federal standard – though the court noted that the distinction was mooted by the fact that the plaintiff had submitted sufficient evidence to defeat summary judgment regardless of which standard was used. The court explained:

The court notes the tension between this burden-shifting scheme and the standard generally applicable to motions for summary judgment in federal court, which permits a defendant to prevail on its motion where it demonstrates that a plaintiff has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. . 477 U.S. at 322. However, given the Second Circuit’s explicit adoption of the New York burden-shifting scheme in Yong Qin Luo, as described above, the court concludes that it must do so as well. Perpall v. Pavetek Corp. , No. 12-CV-336 (PKC), 2017 WL 1155764, at *12 n.27 (E.D.N.Y. Mar. 27, 2017). Moreover, as described in greater detail below, the court concludes that Plaintiff has placed sufficient evidence in the record to raise a triable issue as to whether he suffered a “serious injury” under New York law, such that he would survive summary judgment even under the Celotex standard.

Zhang v. Alvarado, 15-CV-04373 (E.D.N.Y. Dec. 8, 2017) (NGG) (JO).

It is important to keep in mind, however, that the Second Circuit in Yong Qin Luo employed the New York standard without analyzing whether the competing federal standard should be used instead. But, as Judge Garaufis noted, for now, the precedent in this Circuit, at least for no-fault insurance cases, would require the use of New York’s burden-shifting analysis for summary judgment motions.

Posted by Solomon N. Klein, Litigation Partner

Posted: December 14, 2017

Judge Chen Dismisses Slip and Fall Case after Applying Federal Summary Judgment Standard

District Judge Pamela K. Chen recently granted summary judgment in a slip and fall diversity case that highlights the difference between the summary judgment standards under federal and New York state law. Taylor v. Manheim Marketing Inc., 15-CV-01950 (E.D.N.Y. Nov. 30, 2017).

This case offers a reminder to counsel that the federal summary judgment standard can be less forgiving to plaintiffs, and a reason, particularly in close cases, for defense counsel to consider removing eligible cases to federal court.

Taylor involved a slip and fall at a gravel parking lot in defendant’s car auction facility. Plaintiff claimed that he slipped on a patch of oil or ice and that defendant either created or was on constructive notice of the condition. Judge Chen found that plaintiff’s failure to offer evidence that defendant created the hazard or had notice of the condition required dismissal of the case. In analyzing the summary judgment motion, Judge Chen noted a critical distinction between New York state and federal summary judgment practice:

The federal burden of proof on a motion for summary judgment differs from the corresponding standard under New York law on a slip-and-fall action. See, e.g., Tenay v. Culinary Teachers Ass’n of Hyde Park, 281 Fed.Appx. 11, 12-13 (2d Cir. 2008); Vasquez v. United States, No. 14-CV-1510 (DF), 2016 WL 315879, at *4-5 (S.D.N.Y. Jan. 15, 2016). “Under New York law, [a] defendant who moves for summary judgment in a [sl]ip-and-fall case has the initial burden of making a prima facie showing that it neither created the alleged hazardous condition, nor had actual or constructive notice of its existence for a length of time sufficient to discover and remedy it.” Vasquez, 2016 WL 315879, at *4 (citation omitted). Conversely, under federal law, the moving party “need not make any affirmative prima facie showing on [a] motion for summary judgment, and may discharge its burden of proof merely ‘by pointing to an absence of evidence to support an essential element of [Plaintiff’s] claim.’” Id. at *5 (citation omitted).

Taylor v. Manheim Marketing Inc., 15-CV-01950 (E.D.N.Y. Nov. 30, 2017).

And, no, applying the federal summary judgment standard to a diversity action does not violate the Erie Doctrine – the burden of proof under rule FRCP 56 is procedural. See Tenay v. Culinary Teachers Ass’n of Hyde Park, 281 Fed.Appx. 11, 12-13 (2d Cir. 2008)). A more recent Seventh Circuit decision made that clear as well. See Couvillion v. Speedway LLC, 673 F. App’x 558, 559 (7th Cir. 2016) (“federal procedure governs all federal cases, even if this implies an outcome different from the one likely in state court”).

Posted by Solomon N. Klein, Litigation Partner
Schlam Stone & Dolan LLP

Posted: November 28, 2017

Judge Cogan Re-Imposes Sanctions in Case of International Intrigue

District Judge Brian M. Cogan recently re-imposed sanctions on the defendants in Funk v. Belneftekhim a/k/a Concern Belneftekhim, 14 CV 0376 (E.D.N.Y. Oct. 17, 2017) after the Second Circuit addressed the nuances of sanctioning parties for non-compliances with jurisdictional discovery.

Of course, the term “jurisdictional discovery” is a bit of a misnomer, since a court would need some predicate jurisdiction in order to direct discovery in the first instance. So when it comes to sanctions for non-compliance with jurisdictional discovery, a “half-dozen” is not the same as “six”, though the results may be indistinguishable.

We have previously discussed how the facts alone make this case a worthy read. Plaintiffs (an attorney and his legal assistant that represented investors in a Belarus oil company) alleged that they were drugged, abducted and flown to Belarus, where they were imprisoned and tortured for over a year. Defendants moved to dismiss, claiming sovereign immunity among other grounds. Judge Cogan directed limited jurisdictional discovery on the sovereign immunity defense to determine defendants’ claim that they were agents or instrumentalities of Belarus.

Defendants presented documents in support of their sovereign immunity argument, but repeatedly refused to comply with plaintiffs’ discovery demands relating to jurisdiction. In 2015, Judge Cogen sanctioned defendants by striking their sovereign immunity defense. Funk v. Belneftekhim a/k/a Concern Belneftekhim, 14 CV 0376 (E.D.N.Y. Oct. 20, 2015).

On appeal, the Second Circuit took no issue with the decision to sanction defendants, but nonetheless vacated the striking of the defendants’ sovereign immunity defense. The Second Circuit found that “striking a jurisdictional challenge . . . risks a district court’s exercise of jurisdiction where none may exist.” In other words, by striking a jurisdiction challenge without determining the merits, a court may be improperly creating jurisdiction where no jurisdiction existed.

The Second Circuit then proceeded to explain that there were “alternative[]” sanctions – such as (1) “an evidentiary presumption against defendants that [the] withheld discovery” would have refuted the claim of sovereign immunity, and (2) “prohibiting defendants from offering further supporting evidence” of immunity.

Upon remand, Judge Cogan embraced the Second Circuit’s suggestion and re-imposed sanctions in the form of an evidentiary presumption against defendants – not striking the sovereign immunity defense outright, but with the same effect:

[P]laintiffs presented evidence that the documents defendants relied upon give an incomplete picture of Belarusian. . . . . Plaintiffs also presented affirmative evidence that Belneftekhim or some portion of it is a commercial company owned at least in part by private investors, and therefore not subject to sovereign immunity.

This conflicting evidence created a factual dispute about whether Belneftekhim is actually majority-owned by Belarus, rather than by other companies, private investors, or individual government agents. . . . . The factual dispute necessitated discovery, which defendants refused to provide, thereby preventing me from assessing the validity of the evidence defendants originally submitted.

In light of the sanctions I applied against defendants . . . , their sovereign-immunity claim fails. The evidence that defendants initially submitted, which was significantly undermined by plaintiffs’ response, is now clearly insufficient in light of the evidentiary presumption. Based on that presumption – that the discovery defendants withheld would have disproven the assertions they put forth about Belneftekhim’s ownership structure and its status under Belarusian law – defendants fail to demonstrate that they are entitled to immunity. Because the evidentiary presumption rebuts defendants’ only immunity evidence before the Court, I therefore deny defendants’ motion to dismiss on the grounds of foreign-sovereign immunity.

Posted by Solomon N. Klein, Litigation Partner
Schlam Stone & Dolan LLP

Posted: November 10, 2017

Second Circuit Grants Late Petition for Interlocutory Appeal

On October 23, 2017, the Second Circuit issued a decision in Yu v. Hasaki Restaurant, Inc., Docket No. 17-1067, granting permission to file a late petition for an interlocutory appeal from a decision of the EDNY, explaining:

The relevant court of appeals may, in its discretion, permit an appeal from the order if application is made within ten days after entry of the order. Rule 5 of the Federal Rules of Appellate Procedure requires a request for permission to file a discretionary appeal to be filed within the time specified by the statute authorizing the appeal.

We acknowledge at the outset that time requirements for invoking appellate jurisdiction are strictly enforced. In Bowles v. Russell, 551 U.S. 205 (2007), for example, the Supreme Court ruled that a court of appeals lacked jurisdiction where a district court had mistakenly told an appellant that his notice of appeal could be filed within seventeen days, instead of the fourteen days specified in the relevant rule, FRAP 4(a)(6).

In the pending matter, Hasaki’s petition to appeal the District Court’s April 10 Order was filed beyond the ten days specified in section 1292(b). However, a notice of appeal was filed within that ten day period. The issue presented is whether the notice of appeal may be deemed the 7 functional equivalent of a section 1292(b) petition for purposes of invoking this Court’s jurisdiction over Hasaki’s petition.

In Casey v. Long Island R.R. Co., 406 F.3d 142, 146 (2d Cir. 2005), we ruled that a brief, filed within ten days of a District Court’s order, was the functional equivalent of a section 1292(b) petition. A brief is, of course, a far more informative document that a bare notice of appeal. But Casey permits us to determine whether, under the circumstances of this case, we should deem Hasaki’s notice of appeal, filed in the District Court, sufficient to invoke our appellate jurisdiction over the petition for an interlocutory appeal. That notice identified the Order for which review was sought. It also triggered the automatic electronic transmission to this Court of the notice of appeal and the District Court’s Order and Opinion. That Opinion fully informed us of the considerations relevant to whether the District Court’s Order was appropriate for a section 1292(b) appeal.

We thus knew, within ten days of the District Court’s Order, everything we needed to know in order to exercise our discretion whether to permit the interlocutory appeal. We note that the District Court’s Order required the parties to explain the justification for their settlement “[a]bsent a notice of appeal being filed within ten days, see 28 U.S.C. § 1292(b).” The citation was helpful, but the reference to a notice of appeal was not.

There is a reason why this Court should be somewhat indulgent in determining whether the notice of appeal should be considered the functional equivalent of a section 1292(b) petition. We are not asked to uphold appellate jurisdiction solely for the benefit of a litigant who has not prevailed after plenary proceedings in a district court. Here, the acceptance of appellate jurisdiction would achieve the objective of a conscientious district court judge who has determined, after a comprehensive analysis, that an interlocutory appeal will serve the interests of efficient judicial administration.

Under all the circumstances, we deem the timely filed notice of appeal sufficient to invoke our appellate jurisdiction over the section 1292(b) petition. Having accepted jurisdiction over the petition by virtue of the timely notice of appeal and timely receipt of related information, we grant Hasaki’s request to file his later filed formal section 1292(b) petition.

(Internal quotations and citations omitted). Having accepted the petition, the Second Circuit went on to grant leave to file an interlocutory appeal of the question of “whether Rule 68 settlements in FLSA cases require District Court review and approval.”

Posted: June 20, 2016

CLE Program: Mediation in the Federal Courts

On June 27, 2016, Schlam Stone & Dolan partner John Lundin will co-moderate a CLE program at the New York City Bar on mediation in the federal courts. Among the panelists will be Rebecca Price, Director of the ADR Program for U.S. District Court for the Southern District of New York; Kathleen M. Scanlon, Chief Circuit Mediator for United States Court of Appeals for the Second Circuit; and Robyn Weinstein, ADR Administrator for the U.S. District Court for the Eastern District of New York.

Posted: June 13, 2016

False Certifications of Compliance With Banking Laws Does Not Support False Claims Act Claims

On May 5, 2016, the Second Circuit issued a decision in Bishop v. Wells Fargo, 15‐2449, affirming a decision by the EDNY that alleged false certifications of “compliance with various banking laws and regulations when” borrowing “money at favorable rates from the Federal Reserve’s discount window” did not “constitute legally false claims under the” False Claims Act, explaining:

As this Court has long recognized, the FCA was not designed to reach every kind of fraud practiced on the Government. Even assuming the relators’ accusations of widespread fraud are true, they have not plausibly connected those accusations to express or implied false claims submitted to the government for payment, as required to collect the treble damages and other statutory penalties available under the FCA.

(Internal quotations and citations omitted).

Posted: May 12, 2016

Court Denies Application for Expungement of Conviction But Issues Certificate of Rehabilitation

In Doe v. United States, 15 MC 1174 (E.D.N.Y. Mar. 7, 2016), District Judge John Gleeson considered a nurse’s motion to expunge her thirteen-year-old conviction for participation in an insurance fraud scheme because of its adverse impact on her ability to find professional employment. Contrary to the government’s position, the court found that it had jurisdiction to hear the motion, because “controlling Second Circuit precedent establishes that ‘expungement [of convictions] lies within the equitable discretion of the [district] court.'” Slip op. 17 (quoting U.S. v. Schnitzer, 567 F.2d 536, 539 (1977)).

Reviewing the applicant’s history, the court noted that, “[i]n the 12 years since she reentered society after serving her prison sentence, she has not been convicted of any other wrongdoing” and “has worked diligently to obtain stable employment.” Slip op. 2. Following an examination of numerous documents on the applicant’s character and competence, Judge Gleeson concluded that “there is no relationship between Doe’s conviction and her fitness to be a nurse.” Slip op. 23. However, he still denied the motion for expungement, finding that the Schnitzer standard “unfortunately does not permit [him] to grant it.” Slip op. 21. Specifically, according to the Second Circuit, expungement “should be reserved for the unusual or extreme case,” which this was not. Slip op. 23 (quoting Schnitzer, 567 F.2d at 539).

Nevertheless, the applicant was not left without relief: the court issued her a “certificate of rehabilitation.” Despite the absence of a federal statute directly governing the issuance of such a certificate, Judge Gleeson noted that such certificates exist in some states including New York and that “[t]he federal system already contemplates certificates of rehabilitation” as they are referenced in the Federal Rules of Evidence and the Federal Sentencing Guidelines Manual. Slip op. 29. Judge Gleeson’s ruling calls for an express “congressional authorization” for “a robust federal certification system” that “could include an enforceable presumption of rehabilitation, as is offered in New York.” Slip op. 29.

The factors Judge Gleeson considered in concluding that Ms. Doe was rehabilitated and deserved the certificate included: “the nature of [her] crime,” her “current economic and social circumstances,” and “how Doe has spent her time since her release from prison,” including her “efforts to rebuild herself” as “a productive member of society.” Slip op. 31.

Even with the court’s caveat that this is not an exhaustive list, the list provides some guidance to other judges who would consider issuing similar certificates. In the meantime, Judge Gleeson attached the redacted version of the federal certificate of rehabilitation issued to Ms. Doe to the opinion to serve as a model to be used by other district judges.