April 19, 2017

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

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 Jack B. Weinstein held that plaintiff's reassignment from his position as an armed ATF Special Agent to another job within the agency did not amount to "discrimination" against an "otherwise qualified individual" by reason of any "disability" under the Rehabilitation Act of 1993, where his supervisors had reasonably concluded that he should not be carrying a gun.

Judge Joanna Seybert, granting defendant's motion to set aside a jury verdict, held that the company designated by plaintiffs' counsel as the proper plaintiff at the close of all evidence was not the real party in interest. And Judge Weinstein, after an extensive evidentiary hearing, rejected for a second time petitioner's challenge to his state murder conviction, based on the use of digital imaging to show his palm print on duct tape that had been recovered from his wife's body.

Rehabilitation Act of 1973

In Bruzzese v. Loretta Lynch, Attorney General of the United States, 13 CV 5733 (June 8, 2016), Judge Weinstein, granting summary judgment to defendant, found that reassigning plaintiff from his gun-carrying position as Special Agent, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), to that of Technical Surveillance Specialist did not violate the Rehabilitation Act of 1993, 29 U.S.C. §794, which prohibits discrimination by an executive agency against an "otherwise qualified" individual "solely by reason of her or his disability[.]" Among other things, plaintiff had no protected disability, but merely personality traits raising reasonable concerns about his suitability as an armed Special Agent.

Plaintiff joined the ATF as a Special Agent in 2000. Carrying a firearm is an essential function of the job. His immediate supervisor became concerned about plaintiff's mental state after a number of incidents where, for example, he acted "hyper" in discussing an undercover operation, or failed to follow certain procedures, or was reportedly seen with his hands shaking uncontrollably. In 2008 another supervisor told plaintiff to surrender his firearm for safety reasons and informed him of his temporary reassignment from field operations to ATF's Tactical Operations Office. Plaintiff kept his status as Special Agent with the same salary and vehicle privileges.

Plaintiff underwent a Fitness-for-Duty evaluation (FFD), involving psychological assessments. A psychiatrist reviewing the reports and records concluded that, while plaintiff did not have a "mental disorder," he did have "personality characteristics" that appeared to increase safety risks for him and others if he continued to perform as an armed Special Agent.

On reviewing the FFD results and consulting with plaintiff's supervisors, the Special Agent in Charge made plaintiff's reassignment permanent. Plaintiff contends here that the reassignment adversely affects his potential promotions and retirement benefits.

After seeking administrative review, plaintiff filed the instant complaint asserting discrimination in violation of the Rehabilitation Act of 1993. The issue here was whether defendant was entitled to summary judgment regarding plaintiff's challenge to his permanent reassignment.

Plaintiff failed to make out a prima facie case that he was a "qualified individual" with a "disability" under the act, or that he was "discriminated against" by reason of a "disability."

Defendant determined that plaintiff is not "qualified" because he cannot be trusted to carry a firearm or engage in dangerous activities. As Weinstein noted, "in addition to the carrying of a firearm, the job of a special agent requires vital exercise of great discretion—a mistake under stressful circumstances may mean sudden death." Slip op. 15. The "personality traits" observed and reported here support the findings by plaintiff's supervisors that he could react irresponsibly to sudden psychological stress.

The parties agreed that plaintiff did not have an actual mental "disability." Plaintiff argued, however, that he was "regarded" as having a disability. But the record does not show a belief by plaintiff's supervisors that he had a disability protected under the law. Nor did the expert reports in the FFD find that he suffered from anything other than poor judgment caused by personality traits raising concerns about his ability to act under stress. In short, the decision to reassign plaintiff was based on a reasonable conclusion that he had no disability, and did not constitute discrimination.

As Weinstein noted, the supervisory decision that plaintiff should not be carrying a gun was a reasonable professional judgment. Slip op. 20. "This case[,]" moreover, "demonstrates the necessity of granting substantial deference to supervisors of employees who may endanger the public by their control of firearms or other dangerous instruments." Slip op. 1.


In Scienton Technologies v. Computer Associates International, 04 CV 2652 (EDNY, May 17, 2016), Judge Seybert granted a motion by defendant Computer Associates (CA) to set aside a jury verdict under Fed. R. Civ. P. 50(b) based on plaintiff Scienton's lack of standing. Seybert dismissed as moot Scienton's motions for a new trial to determine damages.

The action was filed by plaintiffs Secure-IT Inc., NI Group Inc. and Scienton, Canadian software development and consulting companies, against CA, alleging that CA, a New York software company, misappropriated an "Idea" from NI Group for security-related software products. CA's counsel had advised the court before jury selection that Scienton may lack standing to bring the case.

Evidence at trial showed that, following a 2000 oral agreement, in 2004 NI Group entered into an agreement with Scienton by which NI Group "sold all its contacts, contracts, clients and all future revenues and profits arising from the said contracts, contacts, and clients" to Scienton. NI Group retained all assets that it did not transfer to Scienton, including intellectual property rights and tort claims. Scienton and NI Group remained two separate entities instead of merging.

Before closing arguments, plaintiffs' counsel selected Scienton as the proper plaintiff and voluntarily terminated Secure-IT and NI Group as plaintiffs. The jury delivered a verdict in favor of Scienton.

To establish standing under Article III, a plaintiff must show that he or she suffered "an injury in fact." If a plaintiff lacks standing to pursue a claim, the court lacks subject matter jurisdiction to hear the claim.

Here, as the entity that transferred the "Idea" to CA, NI Group suffered "an injury in fact." The question before the court was "whether NI Group successfully assigned the Idea and any tort claims to Scienton under the Agreement." Slip op. 13. The court applied Canadian law because Scienton and NI Group are Canadian corporations and they signed the agreement in Canada. Under Canadian law, contractual rights, intellectual property rights and tort claims are all assignable.

Looking at both the plain text and surrounding circumstances of the agreement, Seybert concluded that "only contractual rights were transferred, not any tort claims or intellectual property rights." Slip op. 15-18. The court also rejected Scienton's argument that it was the "real party in interest." Fed. R. Civ. Proc. 17(a)(3) states that a "court may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to ratify, join, or be substituted into the action."

Here, Scienton did not request a ratification or substitution. In fact, NI Group, the real party in interest, was a plaintiff in the action, but was dismissed by plaintiffs' own counsel, at the end of the trial in favor of Scienton. (The time was now past, moreover, to allow NI Group to ratify, join or be substituted into the action under Rule 17.) As the court concluded, Scienton did not suffer an injury, and the agreement did not transfer any tort claims or intellectual property rights. Accordingly, "Scienton has not met its burden to establish Article III standing, and thus, the Court is deprived of subject matter jurisdiction." Slip op. 24.

Seybert rejected Scienton's argument that CA did not preserve its standing argument because, when filing its letter motion specifically addressing Scienton's standing at the close of all evidence, CA did not include a memorandum of law. Even though that omission failed to comply with Local Civil Rule 7.1, CA had filed a memorandum of law in connection with its original Rule 50(a) motion at the close of plaintiff's case.

Digital Imaging of Palm Print

In Hamilton v. Lee, 13 CV 4336 (EDNY, May 26, 2016), Judge Weinstein denied a motion under Fed. R. Civ. P. 60(b) challenging his prior rejection of a habeas corpus petition.

In 2007, petitioner was convicted in New York state court, and sentenced to 23 years to life in prison, for the murder of his wife. After various state appeals, he brought a federal habeas petition in 2013 on multiple grounds. He challenged the validity of photographic imaging used to identify his palm print on duct tape found on his wife's corpse, and asserted ineffective assistance of counsel based on his trial attorney's failure to test the duct tape.

The petition was denied. However, as the duct tape had been stored after its use at trial in a warehouse partially submerged by Hurricane Sandy and was not available for inspection at the time of petitioner's first habeas application, Weinstein directed the New York Police Department to produce it as quickly as possible.

After it was examined by petitioner's expert, Weinstein allowed a challenge, under Fed. R. Civ. P. 60(b), to his denial of habeas corpus, and held an evidentiary hearing to explore petitioner's claims, including claims that the presence of only a "ridge detail" (a vestige of the palm print) on the duct tape where the palm print appeared in the photographic image, and/or the prosecution's failure to produce an "original" of the photographic image, suggested some sort of "manipulation or fakery."

As the court observed, petitioner's claims:

…are not barred as a second habeas petition to the extent they rest on allegations of fraud based on the re-examination of the newly available tape evidence. Construing those parts of petitioner's motion that relate to the recovered duct tape as arising under Rule 60(b) is in the interest of the efficient administration of justice. The atypical aspects of this case require the court to examine complex factual evidentiary questions with the assistance of qualified experts. While evidentiary hearings are generally discouraged in habeas petitions, the court considered one necessary in this case. An evidentiary hearing allowed the court to properly assess critical evidence which was previously unavailable. This court's factual investigation should relieve the Court of Appeals for the Second Circuit from having to authorize further fact-finding and will provide it with a complete record for consideration in the context of the present pending appeal.

Slip op. 31.

No relief was warranted under Rule 60(b). Petitioner's contention that prosecutors had withheld an original of the photograph that yielded his palm print was unsupported. The photo was taken with a digital camera, from which the image had been transferred directly to the New York Police Department's "More Hits" image tracking system, consistent with then-standard practices. That image, which had been made available to petitioner and his counsel during the state proceedings, was the original image. Slip op. 45-48.

The duct tape itself, once recovered from storage, showed the identification markings that the police criminologist had described placing upon the duct tape at the site of the palm print when she developed the palm print for use at trial, and also showed a residual "ridge marking" of the palm print precisely where the identification markings indicated it should appear. Petitioner's expert conceded that the remainder of the print could have degraded from natural causes between the time the palm print was taken in 2005 and the examination in 2016, and there was no evidence of any tampering with the evidence. Slip op. 51-59.

The new evidence also did nothing to disturb Weinstein's earlier rejection of petitioner's "ineffective assistance of counsel" claim. The "strategic decision by petitioner's counsel to challenge the print evidence through cross-examination rather than expert analysis was reasonable" and, in any case, the expert analysis, when ultimately conducted, failed to produce exculpatory evidence. Slip op. 59-61.