November 12, 2014

New York Law Journal / Written by: Harvey M. Stone, Peter R. Schlam

In the U.S. District Court for the Eastern District of New York. Judge Joanna Seybert denied Nassau County's motion to dismiss a claim that Article 18-B fees are so low as to violate substantive due process rights of attorneys representing indigent criminal defendants. Judge Raymond J. Dearie abstained under the Younger doctrine from deciding a case involving control of a religious corporation because of related state court proceedings. Judge David G. Trager dismissed the racial discrimination claims of someone who failed to be hired as a police officer. And Judge Frederic Block dealt with a variety of constitutional claims by an MTA employee terminated for failure to provide a urine sample.

Article 18-B

In Liotti v. Nassau County, 00 CV 0225 (EDNY, Sept. 15, 2004), Judge Seybert considered claims by an attorney and his client, a criminal defendant, challenging the constitutionality of Article 18-B, Sections 722 and 722- b, of the New York County Law. The complaint asserted that the fees paid to court-appointed attorneys are so low that they deny indigent defendants the right to effective counsel. The complaint was brought under § 1983 and the Fifth, Sixth, Thirteenth and Fourteenth amendments.

Plaintiff Lopez pled guilty in state court to murder in the second degree and criminal possession of a weapon. At his sentencing in 1985 he unsuccessfully challenged the adequacy of assigned counsel. The court sentenced Lopez to 18 years in prison. A different lawyer, plaintiff Liotti, was later assigned to represent Lopez, and the U.S. Court of Appeals for the Second Circuit granted a habeas petition alleging ineffective assistance at sentencing. Upon remand to the Supreme Court, Kings County, Lopez received the same sentence.

In their federal complaint, plaintiffs asserted that the low hourly rates afforded to 18-B lawyers inhibit representation by (for example) discouraging the necessary jail visits for attorney-client conferences. Liotti and Lopez each brought this action as individuals and, respectively, on behalf of all attorneys and criminal defendants similarly situated.

Ruling on plaintiffs' motion for summary judgment and defendant's motion to dismiss, Judge Seybert came to the following conclusions:

Lopez failed to allege an injury in fact and thus had no direct standing to bring these claims. Though Lopez's initial representation was inadequate, he had a full and fair opportunity to relitigate his sentence with new counsel and has suffered no injury in fact caused by 18-B fees or ineffective counsel.

Liotti has direct standing because he alleges a monetary injury directly related to the salary cap and low compensation rates set out in Section 722- b.

Liotti has no third-party standing to assert the claims raised here on behalf of indigent criminal defendants.

Article 18-B is not void for vagueness.

Article 18-B does not violate defense attorneys' equal protection rights by failing to account for the differences in office overhead among cities, suburbs and rural areas. As Judge Seybert noted, neither attorneys who represent indigent defendants nor urban dwellers are a suspect class. In addition, "there is no fundamental right to a fee structure which considers disparity in overhead expenses based on geographical area." Slip op. 15. Article 18-B is also facially neutral, and there is no evidence to suggest purposeful discrimination.

The complaint, however, does state a claim for violation of the substantive due process rights of 18-B attorneys. As Judge Seybert observed:

If ... 18-B fees are so low that they prevent attorneys from providing adequate representation to assigned clients and thereby expose them to judicial sanctions, then Article 18-B § 722 and § 722-b interfere with the attorneys' protected Fourteenth Amendment right to pursue their chosen avocation.

Slip op. 17. With respect to this claim, the court denied both defendant's motion to dismiss and plaintiff's motion for summary judgment.


In Hindu Temple Society of North America v. Supreme Court of the State of New York, 04 CV 3342 (EDNY, Sept. 15), Judge Dearie abstained from assuming jurisdiction over a case where for over three years essentially the same parties have been litigating essentially the same claims in New York Supreme Court. Both cases relate to control of the Hindu Temple Society of North America and its temple in Queens County.

Plaintiff here – including dissatisfied respondents in the state court action – seeks to enjoin the New York Supreme Court and various individual defendants from establishing a voting membership in the temple that will, pursuant to directives in the state case, elect a new board of trustees. During the ongoing state proceedings plaintiffs have raised First Amendment claims, which they seek to litigate in the federal action. The state case, which has a complex history, has not been going well for the respondents there. Plaintiffs in the federal action also include a group of temple devotees who, unlike certain other plaintiffs, were not trustees of the temple or parties to the state action.

Among the defendants in the federal action are a Supreme Court justice, a court-appointed referee and petitioners from the state case. Plaintiffs allege that defendants are violating their rights to free speech, free exercise of religion, due process and equal protection.

As Judge Dearie noted, the state's interest in protecting religious corporations has broadened, at this advanced stage in the state proceedings, to include a strong interest in enforcing its judicial orders and judgments. Moreover, while plaintiffs allege First Amendment claims, "[t]he spirit animating Younger is that state courts can be trusted to follow the mandates of the federal constitution." Slip op. 10.

The "real issue" here, the court observed, is not that plaintiffs' constitutional claims are barred from consideration in state court, but that plaintiffs are unhappy with the state courts' treatment of their claims.

Judge Dearie rejected plaintiffs' argument that the non-trustee plaintiffs, who are not parties to the state proceedings, should not be barred under Younger from pressing their federal claims here. While the harms suffered by the trustee plaintiffs differ somewhat from those suffered by the non-trustee plaintiffs, Judge Dearie found their interests to be so intertwined as to justify abstention. Indeed, contrary to plaintiffs' argument, the non-trustee plaintiffs appear to have interests that would justify intervention in the state case. "As much as the Trustee plaintiffs may want to change the forum for this long-standing dispute," the court said, "they will not succeed by adding non-Trustee plaintiffs who assert clearly interrelated claims." Slip op. 17.

Finally, Judge Dearie saw no exceptions to Younger abstention. Even if accepted, "plaintiffs' unfortunate allegations of bias" against a Supreme Court justice and the referee do not rise to the level necessary to trigger the bad faith or harassment exception. Slip op. 17-20.

Hiring and Discrimination

In Damiano v. City of New York, 99 CV 3638 (EDNY, Sept. 13), Judge Trager granted summary judgment to the city, dismissing plaintiff's claims under § 1983, the New York State Human Rights Law and the New York State Civil Service Law for racial discrimination based on the city's failure to hire him as a police officer.

In 1992 plaintiff took the civil service examination for the position of police officer in the New York City Housing Authority Police Department (now merged into the New York City Police Department. He scored 96.666, putting him in the first band for eligibility. In 1995 plaintiff was called for a physical examination, which included a pre-employment background investigation to determine his psychological suitability for that position. Plaintiff was found to be psychologically unsuitable for the position of police officer. Plaintiff appealed, but the original disqualification determination was upheld. A state court action against the psychologists who examined him was dismissed as time-barred.

Judge Trager rejected plaintiff's claim that the city had denied him employment because of his race in violation of New York State Human Rights Law § 296(1)(a) by assigning him a list number that was not as high as his exam score alone would place him. In the court's view, the city demonstrated that it had not selected plaintiff as a police officer for legitimate, nondiscriminatory reasons ---- i.e., he was psychologically disqualified. Thus, plaintiff would have been barred regardless of his list number.

Similarly, the court dismissed plaintiff's § 1983 claim because his psychological disqualification barred him from being considered for a position, even if he could prove he was assigned a worse list number on the basis of his race (white). As Judge Trager stated, "plaintiff's psychological disqualification eliminated any causal relationship between his ranking on the list and the City's decision not to hire him as a police officer." Slip op. 15.

Pleading Standards

In Starker v. Metropolitan Transit Authority, 03 CV 1756 (EDNY, Sept. 9), a suit challenging an employee's termination, Judge Block dismissed plaintiff's procedural due process claim; dismissed his conspiracy claim for racial discrimination with leave to replead; directed plaintiff to provide a more definite statement of his § 1983 claim alleging violation of his rights as a handicapped person; denied dismissal of his Rehabilitation Act claim; and construed his federal claim for breach of duty of fair representation against his union as brought under state law.

Plaintiff worked for the New York City Transit Authority from 1987 until he was terminated in January 2002. From 1992 until his termination he was a train operator. Plaintiff did not provide a urine sample for mandatory drug testing during an annual physical examination. He alleged that he was physically unable to comply because of a flare-up of his herpes genitalis. The Transit Authority referred plaintiff to several physicians to determine whether he suffered from a medical condition that made him unable to provide the required sample. After the experts concluded that there was no medical basis for his refusal to comply, the Transit Authority terminated him. He and the Transit Workers Union filed a grievance, which was arbitrated, resulting in a final termination.

In Count I, plaintiff alleged that by failing to follow Department of Transportation testing protocols, the Transit Authority violated § 1983 by depriving him of his job without procedural due process. Though plaintiff had an arguable property interest in his job, the court dismissed plaintiff's procedural due process claim, finding that the allegations of the Complaint demonstrate: that he was notified of the action that was taken against him, that he was given an explanation, that he was afforded an opportunity to present evidence on his behalf, and that he availed himself of that opportunity by, inter alia, testifying before and presenting evidence to the TAB [Tripartite Arbitration Board].

Slip op. 9. In Count II, plaintiff alleged that the Transit Authority conspired with its doctors to deprive him of his employment on account of his race under § 1985(3). Although plaintiff was not required to plead facts constituting a prima facie case under Rule 8(a), Judge Block determined nevertheless that plaintiff could not simply assert conclusory allegations without any factual support. Accordingly, after reviewing appellate decisions following Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), the court dismissed plaintiff's claim under § 1985(3) and, sua sponte, granted him leave to amend. As Judge Block observed: when a heightened pleading standard is not required (as with Straker's allegation of race discrimination), a claim that does not contain any supporting factual allegations cannot withstand a Rule 12(b)(6) motion.

Slip op. 18. Judge Block found Count III, alleging a violation of plaintiff's civil rights under section 1983, vague and unclear, and sua sponte directed plaintiff to provide a more definite statement. Concerning plaintiff's Rehabilitation Act claim, the court concluded that he had pled sufficient facts to put the Transit Authority on fair notice of the nature of his claim by alleging that (1) he was a qualified person suffering from disability; (2) he suffered from a debilitating illness and was handicapped within the meaning of the statute; (3) he was qualified as a train operator; and (4) he was discharged under a pretext, but really because of his handicap.

Finally, although plaintiff alleged that the Transit Workers Union had violated federal labor law and breached its duty of fair representation by instructing one of plaintiff's physicians not to cooperate during the arbitration proceedings, Judge Block construed that claim as one under the New York Public Employees' Fair Employment Act, rather than federal law.

Peter R. Schlam and Harvey M. Stone are partners at Schlam Stone & Dolan.

[This article is reprinted with permission from the October 8, 2004, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]