November 12, 2014

New York Law Journal / Written by: Harvey M. Stone, Richard H. Dolan

In the U.S. District Court for the Eastern District of New York. Judge Frederic Block, denying a habeas petition asserting a Batson claim, focused on defense counsel's failure at trial to develop his argument that the prosecutor's peremptory challenges were race-based. Judge Arthur D. Spatt saw no violation of the Cable Act in Cablevision's new system for assigning slots on public access channels. And Judge Sandra L. Townes dismissed defamation claims against the port director at John F. Kennedy International Airport.


In Anderson v. Superintendent, Elmira Correctional Facility, 03 CV 1750 (EDNY, March 15, 2005), Judge Block denied a § 2254 habeas petition alleging a Batson violation, but granted a certificate of appealability because petitioner had made a "substantial showing of the denial of a constitutional right."

Following a jury trial in Supreme Court, Kings County, petitioner was convicted of robbing fast-food restaurants. The record showed a prima facie case of purposeful discrimination by the prosecutor in making peremptory challenges against African-Americans on the jury venire. But defense counsel, while asserting a Batson claim, had failed to articulate in adequate detail the circumstances supporting his argument. Accordingly, the Appellate Division's determination relying on counsel's failure was not an "unreasonable application" of U.S. Supreme Court precedent--the requisite standard for habeas relief.

In making his Batson challenge, defense counsel told the trial court that the prosecutor had used nine of 14 peremptory challenges to strike African-Americans. This resulted, he claimed, in the striking of nine of 13 African-Americans, who had not been excused for cause (the correct number, as shown by the challenge record, was actually nine of 16).

Analyzing the full record, Judge Block saw circumstances that showed a prima facie violation. For example, African-Americans comprised 40 percent of the venire (19 of 48). This gave more weight to counsel's point that the prosecutor had used 64 percent of his peremptories (9 of 14) to strike African-Americans.

A counterbalancing factor was the composition of the jury, which included five African-Americans, reflecting their 40 percent of the venire. This factor, however, was compromised in certain respects, such as: (a) defense counsel's striking nine of 18 prospective white jurors, thereby affecting the percentage of African-Americans on the jury; and (b) the prosecutor's decision not to strike the last African-American only after the Batson challenge was made.

Judge Block viewed the pattern of striking African-Americans, "when contrasted with the prosecutor's acceptance of 17 of the 18 whites, to be the most compelling of all the circumstances in assessing whether here strikes were race motivated." Judge Block added:

Indeed, it provides a startling insight into the prosecutor's race-based mindset, especially when considered in conjunction with her rather remarkable statement to the judge that "[t]here are several peremptories that we used that were not on the basis of race at all, and for those we have articulable reasons for exercising those peremptories." (Slip op. 32)

Yet, defense counsel never responded to this statement, though it was incumbent on him to have pressed the judge into action.

In denying the habeas petition, Judge Block ultimately deferred to the Appellate Division's reliance on counsel's failure to detail for the trial judge the array of circumstances suggesting the violation.

Cable Act

In Monroe v. CSC Holdings Corp., 05 CV 898 (EDNY, April 4, 2005), Judge Spatt, denying a request for a preliminary injunction, held that Cablevision's new computer "lottery" system for assigning time slots on public access channels did not violate the "first-come, first-served, non-discriminatory" requirement of the Cable Act.

Plaintiff is an amateur producer of a public access program known as "Alternate Voices." In the past, Cablevision allocated program time slots for public access channels on an in-person basis. Cablevision would inform the public of the date and time on which to apply for one of the weekly half-hour and hour segments. At the designated time, applicants applied for their preferred time slots by lining up in person at Cablevision's office. Cablevision then immediately filled the slots on a first-come, first-served basis while the applicants waited. This process occurred twice a year.

Retaining the same time slot each week is important to producers as a way to build an audience because cable subscribers do not receive a printed schedule of public access shows. Producers, therefore, often chose to start standing in line the night before the selection process began, in the hope of keeping the usual slot.

This year, Cablevision instituted a new process whereby the public must apply for time slots by mail, and a computer program places in random order all applications mailed on a particular date. Judge Spatt saw nothing about this system that violated the Cable Act or state laws and regulations.

As the court noted, it is now questionable whether an implied private right of action exists under § 531(e) of the Cable Act. In any event, there was no need to reach this issue here because no credible evidence was presented to show that the new system is discriminatory. In fact, the new system appears fairer by permitting access for producers--including the sick or disabled--who cannot stand in line overnight. The new system thus furthers the intent of the act by "provid[ing] the widest possible diversity of information sources and services to the public." 47 USC § 521(4).

Moreover, the New York State Public Service Commission (NYSPSC) has instituted an administrative proceeding to determine whether the new system complies with regulations for assigning public access channels. Judge Spatt therefore saw this as a fitting case for a federal court to apply the "Burford abstention" doctrine. See New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 US 350, 361 (1989). That doctrine is invoked to avoid needless conflict with a state's administration of its own affairs. Weighing the court's several options, Judge Spatt decided to stay the case during the pendency of the state proceeding. "The NYSPSC," the court stated, "is not only better situated in applying its own regulations, but also has an interest in applying a consistent and coherent policy....'

Dismissing plaintiff's § 1983 claim, Judge Spatt noted that Cablevision is not a state actor, and public access channels are not First Amendment "public forums" for purposes of state action.

Westfall Act

In Asto v. Mirandona, 03 CV 760 (EDNY, March 29, 2005), Judge Townes held that: (1) defendant Mirandona, the port director at JFK Airport for the U.S. Customs and Border division of the Department of Homeland Security, was acting within the scope of his employment when he allegedly uttered defamatory remarks about plaintiff; (2) consequently, pursuant to the Westfall Act, 28 USC § 2679(d), the United States had to be substituted for Mr. Mirandona as the party defendant; and (3) the court had no subject matter jurisdiction under the Federal Tort Claims Act.

Plaintiff was a federal employee assigned to work, along with her partner Kavanaugh, under Mr. Mirandona's supervision in the Federal Inspection Service area at JFK. In January 2002 the Justice Department conducted a sting operation in response to complaints by detained aliens that personal items had been stolen from their luggage during inspections at the service area. One of the complainants named plaintiff. During the operation Kavanaugh, but not plaintiff, was observed opening an undercover agent's luggage.

After seeing the video surveillance of Kavanaugh taking money from the luggage and then returning it, Mr. Mirandona instructed Kavanaugh and plaintiff to leave the service area. This led to a revocation of plaintiff's access to the area, by letter from Customs Service Director Susan T. Mitchell asserting that plaintiff has been observed "pilfering" items from baggage. On appeal, Ms. Mitchell reinstated plaintiff, noting that the earlier action had resulted from "derogatory information" received from the Department of Justice.

Plaintiff brought a defamation suit in state court against Mr. Mirandona and other unnamed defendants alleging that Mr. Mirandona had "maliciously" stated to others that she had "pilfered" items. The action was removed to federal court on the government's certification that Mr. Mirandona was acting in the scope of his employment.

Holding that the United States was properly substituted as the party defendant, the court applied state law principles as to when intentional tortious conduct falls within the scope of a party's employment. Mr. Mirandona's statements that he wanted plaintiff and Kavanaugh gone, and that he did not wish to hear from plaintiff, were made immediately after Mr. Mirandona saw the videotape. His determination that plaintiff should no longer have access to the secured inspection area was, the court found, within his authority.

Even if, contrary to the record, Mr. Mirandona had relayed information about plaintiff's "pilfering," any such statements would have been related to the investigation and Mr. Mirandona's perceptions of the likely culpability of the suspects. And even if such statements were incorrect, they were not outside the scope of Mr. Mirandona's employment.

Judge Townes also saw no basis in the record to conclude that Mr. Mirandona made the alleged statements with "personal animus'--a factor that, under New York law, would place them beyond the scope of his employment.

Finally, the Federal Tort Claims Act--the exclusive remedy for a plaintiff who seeks to recover for conduct of federal employees within the scope of their employment--provided no jurisdictional hook because the act bars suits for money damages against the United States based on slander claims, and plaintiff failed to exhaust her administrative remedies.

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 May 13, 2005, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]