December 15, 2014
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 John Gleeson applauded the government for agreeing to an order vacating two counts of a conviction to allow for a sentence reduction in an old case where the court had been statutorily constrained to impose an overly harsh prison term. Judge Arthur D. Spatt held that, despite a related pending state-court proceeding, abstention did not apply in light of recent U.S. Supreme Court authority. Judge Joanna Seybert, with minor exception, denied a company's motion to quash OSHA subpoenas. And Judge Frederic Block rejected defendant's motion for judgment on the pleadings regarding claims of race discrimination.
Power to Remedy Injustices
In United States v. Holloway, 95 CR 78 (EDNY, July 28, 2014), Judge Gleeson, on the government's consent, vacated two counts of a 1996 conviction so that petitioner's shockingly lengthy sentence of over 57 years could be radically reduced to remedy an injustice, even where all appeals and collateral challenges had failed and there was "neither a claim of innocence nor any defect in the conviction or sentence."
In 1994 petitioner stole three cars at gunpoint during a two-day span. The indictment charged each carjacking in a separate count and added counts under 18 U.S.C. §924(c), which penalizes the use of a firearm during a crime of violence. He was found guilty on all charges at trial. The court described the draconian sentence required by the "triple-threat" § 924(c) convictions:
I imposed a 151-month prison term for the three carjackings. Then the § 924(c) sentences kicked in: a mandatory 5 years for the first one; a mandatory 20 for the second; another mandatory 20 for the third. The statutory requirement that those terms be consecutive to each other and to the 151 months for the carjackings produced a total prison term of 57 years and 7 months.
Before trial the government had offered, by plea agreement, to drop two of the three § 924(c) counts, which would have resulted in a prison sentence of about nine years. Petitioner rejected the offer. The "trial penalty" resulting from that decision was, in effect, an extra 42 years in prison. His actual sentence, 691 months, was far harsher than the average sentence for murder in fiscal year 2013—268 months.
As the court also noted, "[b]lack defendants like [petitioner] have been disproportionately subjected to the 'stacking' of § 924(c) counts that occurred here."
Petitioner's efforts "to better himself throughout his two decades of incarceration" have been extraordinary, as reflected by a long list of completed programs and certificates in various fields. Slip op. 5-6.
In late 2012 he filed the instant motion to reopen his § 2255 proceeding under Fed. R. Civ.P. 60(b). The court responded with an order "respectfully request[ing] that the United States Attorney consider exercising her discretion to agree to an order vacating two or more of [petitioner's] 18 U.S.C. § 924(c) convictions." The U.S. Attorney declined to agree to this request, while suggesting that petitioner might be eligible for presidential clemency. A subsequent Department of Justice clemency initiative made it likely that the crimes of violence here would be disqualifying.
In July 2014, on reconsideration, the U.S. Attorney's Office told the court that it would consent to the suggested vacatur of two § 924(c) convictions so that petitioner could be resentenced.
The government's agreement, the court noted, "has authorized me to give [petitioner] back more than 30 years of his life." As the court also stated: "It is easy to be a tough prosecutor…Doing justice can be much harder." The decision to agree to the court's suggestion required considerable work, including an analysis of old files and interviewing victim-witnesses relating to a crime committed 20 years ago. In addition, the U.S. Attorney's decision will be criticized if petitioner commits another crime upon his early release from prison. She could have extinguished that risk by doing nothing. But she has the wisdom and courage to confront it the right way—by asking me to ensure that [petitioner] gets the re-entry assistance a prisoner who has spent decades in prison will need. [fn. omitted]. (Slip op. 9)
Finally, "there is no good reason" why the "clemency bottleneck" should be the only potential remedy for a harsh sentence. "A prosecutor who says nothing can be done about an unjust sentence …. is actually choosing to do nothing about the unjust sentence." Slip op. 10-11 (emphasis in original).
On July 29, the court imposed a sentence amounting to time served.
In Torres v. DeMatteo Salvage Co., 14 CV 774 (EDNY, August 4, 2014), Judge Spatt declined to apply the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746 (1971), to dismiss a complaint under the Surface Transportation Assistance Act of 1982, 49 U.S.C. § 31105 (STAA).
Plaintiff's STAA action alleged that he had been unlawfully discharged for refusing to operate a truck that violated federal safety regulations. Defendants sought abstention based on an earlier, still-pending state court action in which plaintiff alleged that defendants violated the New York Labor Laws through the same conduct.
Spatt first recited the Younger test as set forth in Spargo v. New York State Comm'n on Judicial Conduct, 351 F.3d 65, 74 (2d Cir. 2003), holding that abstention is warranted where: "(1) there is a pending state proceeding, (2) that implicates an important state interest, and (3) the state proceeding affords the federal plaintiff an adequate opportunity for judicial review of his or her federal constitutional claims."
But recent U.S. Supreme Court authority added another dimension to the analysis. Under Sprint Commc'ns, Inc. v. Jacobs, __ U.S. __, 134, S. Ct. 584, 588-93 (2013), Younger abstention is warranted only in three categories of cases: (1) pending state criminal proceedings, (2) particular state civil proceedings that are akin to criminal prosecutions, and (3) civil proceedings that implicate a state's interest in enforcing the orders and judgments of its courts.
Only the second category was even arguably relevant. But it did not apply because "no state authority conducted any investigation, no state actor lodged a formal complaint, and the proceeding as a whole was intended to 'settle a civil dispute between two private parties.'" Slip op. 10, quoting Sprint Commc'ns, Inc., 134. Ct. at 593.
Quoting United Fence & Guard Rail Corp. v. Cuomo, 878 F.2d 588, 595 (2d Cir. 1989), Spatt concluded: "The jurisdictional sword that sustains federal rights should not be swiftly sheathed simply because a concurrent parallel attack has been mounted in the state courts."
In Long Island Precast v. United States Department of Labor, Occupational Safety and Health Administration, 14 MC 0772 (EDNY, July 29, 2014), Judge Seybert denied for the most part petitioner Long Island Precast's motion to quash OSHA administrative subpoenas.
The Occupational Safety and Health Administration issued the subpoenas during an investigation of an accident involving one of petitioner's employees, Carlos Mendoza, who had fallen off machinery from a height of more than nine feet. The OSHA Compliance Safety and Health Officer (CSHO) conducting the investigation found several purported hazards related to the accident, including: (1) Mendoza's accessing elevated stacks by climbing the face of them rather than using a ladder, (2) the absence of any fall protection in place at the time of the accident, and (3) deficiencies in the forklift used during the accident. During a second inspection the CSHO observed deficiencies in a second forklift and an employee riding on the side of that forklift. In order to obtain more information, OSHA issued a subpoena duces tecum seeking documents and information related to petitioner's employees and forklifts and subpoenas ad testificandum demanding the testimony of its president, manager, and sales manager.
Section 8(a) of the Occupational Safety Act authorizes the Secretary of Labor to inspect and investigate workplaces and issue administrative subpoenas. An administrative agency has broad investigatory powers similar to that of a grand jury to act on suspicion that the law is being violated or simply for assurance that it is not. In the Second Circuit a subpoena that satisfies the criteria set forth in United States v. Morton Salt Co., 338 U.S. 632 (1950), will be enforced unless the party opposing enforcement can show that it is unreasonable, issued in bad faith or unnecessarily burdensome.
Contrary to petitioner's argument, OSHA's authority to subpoena documents was not limited to the accident. Under Morton, "OSHA does have the authority to issue administrative subpoenas seeking documents beyond the subject matter of the initial accident report so long as the information sought is relevant to any inquiry that the Department of Labor is authorized to undertake." Slip op. 11. In addition, during the investigation the CSHO learned that there were other hazards apart from the accident, which could lead to a suspicion that the law was being violated and permit OSHA to take additional steps.
Seybert found all but one of the 13 demands relevant to the investigation of purported hazards and not too indefinite or unreasonably burdensome. The court granted petitioner's motion to quash only as to the first demand, which sought documents relating to "all individuals who have performed services of any kind for Long Island Precast, Inc." The request should have been "limited to information and documents related to Long Island Precast's employees." Slip op. 13.
Concerning the subpoenas ad testificandum, while witness fees and mileage must be paid, in administrative proceedings Federal Rule 45 did not apply and witness fees and mileage did not have to be paid at the time of service. The Federal Rules of Civil Procedure govern procedures only in civil actions and proceedings in the U.S. district courts. Slip op. 15. Accordingly, Seybert declined to quash those subpoenas.
Actions Against Unions
In Morrison v. International Union of Operating Engineers Local 14-14B, AFL-CIO, 12 CV 301 (EDNY, July 21, 2014), Judge Block denied Local 14's motion for judgment on the pleadings in a suit brought against it for discriminating against non-whites in the operation of its hiring hall. The court held that plaintiffs had adequately stated claims for intentional race discrimination under Title VII, 42 U.S.C. § 1981 and the New York City Human Rights Law (NYCHRL), and saw no basis for preemption as to the NYCHRL claims.
Local 14 represents operators of heavy equipment. The complaint alleges the following: Local 14 intentionally limited non-white membership by informing them that the union is not accepting new members, while accepting members referred or sponsored by existing white members. Local 14 also imposed a long apprenticeship process on non-whites which it waives for white applicants referred or sponsored by existing members. Under the collective bargaining agreements (CBAs) between Local 14 and various construction industry trade groups in New York City, contractors who belong to the trade groups are required to hire members of Local 14 as operating engineers on their projects. Local 14 also has the discretion to appoint master mechanics, which are almost never non-white. Local 14 arranged to give white male operating engineers preference in the hiring hall.
Local 14 did not dispute that plaintiffs had properly stated claims for violations of Title VII and §1981, but contended that the NYCHRL claims were preempted by section 301 of the Labor Management Relations Act. Section 301 preemption only applies to state law claims requiring the interpretation of a CBA, but does not apply to rights independent of those created by a CBA. The rights conferred by the NYCHRL are independent of the CBAs and are thus not preempted. "[H]owever the CBAs are interpreted, they cannot authorize Local 14 to violate the NYCHRL." Slip op. 6.
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.
[Reproduced with permission from New York Law Journal Volume 252, Friday, September 12, 2014. Copyright 2014 ALM Properties, Inc. All rights reserved.]