United States Court of Appeals for the Second Circuit

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On January 21, 2014, Judge Raymond Joseph Lohier, Jr. granted a temporary stay as to the work performed by Michael Bromwich, the court-appointed monitor in the Apple e-book antitrust case. The stay was to remain in effect until a three-judge panel of the Second Circuit was available to decide whether Bromwich should be removed as monitor. In the underlying case, Judge Denise Cote found in July 2013 that Apple conspired with online publishers to fix the prices of e-books. She appointed Bromwich to oversee and monitor the company’s compliance with federal antitrust laws in October 2013. In an earlier motion filed by Apple, the company claimed that Cote’s appointment of a monitor in a civil antitrust case was unprecedented. Attorneys for Apple contested Bromwich’s hourly fee of $1,100, alleging that because of the “extremely broad powers” Cote conferred upon him, he was able to overreach in his investigations such that they bordered on interfering with the company’s daily operations. Cote denied Apple’s request to remove Bromwich as monitor just days before Lohier issued the temporary stay. In his ruling, Lohier noted that Apple’s request for Bromwich’s permanent ouster would be heard “as soon as possible” by an appellate panel. Lohier's order is available here.^[10][11]

On February 10, 2014, a three-judge panel of the Second Circuit composed of Judge Gerard Lynch and Senior Judges Pierre Leval and Guido Calabresi rejected Judge Lohier's stay and restored Michael Bromwich's ability to perform his duties as Apple's e-book antitrust monitor, with the understanding that Apple may pursue a further appeal to remove Bromwich from his position. In the order, the judicial panel noted that according to the government, Judge Cote's initial order was to be "interpreted narrowly." As a result, Lynch, Leval, and Calabresi agreed that as antitrust monitor, Bromwich was only to "assess the appropriateness of the compliance programs adopted by Apple and the means used to communicate those programs to its personnel." The Second Circuit panel went on to limit Bromwich's authority, empowering him to "demand only documents relevant to his authorized responsibility . . . and to interview Apple directors, officers and employees only on subjects relevant to that responsibility."^[12][13][14]

On November 23, 2013, a three-judge panel of the Second Circuit, consisting of Chief Judge Robert Katzmann, Judge Rosemary Pooler, and Senior Judge Pierre Leval, upheld the dismissal of Mark Sacha’s lawsuit against Erie County District Attorney Frank Sedita III. In the underlying case, Sedita fired Sacha from his position as Assistant District Attorney following Sacha's public contention that Sedita failed to prosecute G. Steven Pigeon on allegations of election law violations (specifically, the alleged laundering of a $10,000 campaign contribution). Sacha claimed he was fired in retaliation for his criticism of Sedita and filed suit in December 2009, alleging that his First Amendment rights had been violated. Sedita filed a motion for summary judgment, and Chief Judge William Skretny of the United States District Court for the Western District of New York granted it in October 2012, citing the fact that his statements to the press were made in his capacity as an ADA, not as a private citizen, and thus his free speech rights had not been violated. That decision is available here. Sacha appealed Skretny's ruling to the Second Circuit, where the three-judge panel affirmed Skretny's ruling, but on alternate grounds, noting that "Sacha’s speech was sufficiently disruptive to justify terminating his employment as an assistant district attorney." Sacha vowed to file a further appeal, claiming that the Second Circuit's three-judge panel had a conflict of interest in hearing the case.^[15][16]

On October 31, 2013, a three-judge panel of the Second Circuit, composed of Judge Jose Cabranes and Senior Judges John Walker and Barrington Parker, removed Judge Shira Scheindlin from Floyd v. City of New York and put the remedies proposed by the judge on hold. The previous court order was stayed until an appeal was heard by the panel.^[17]

Scheindlin was removed from the case as a result of interviews with the media in May 2013 which made the court question her impartiality. In response to the accusation that she violated the Code of Conduct for federal judges, Scheindlin said:

On November 22, 2013, the judicial panel refused in a per curiam decision to vacate Judge Scheindlin's prior ruling which struck down the NYPD's stop-and-frisk policy. The judges denied motions filed by New York City to transfer the court's October 2013 stay of Scheindlin's ruling into its vacation, and further denied as moot motions filed by Scheindlin in opposition to the City's previously described motions. Judge Scheindlin's "stop-and-frisk" decision still stands.^[20]

Background

In August 2013, Scheindlin ruled that the New York Police Department's (NYPD) "stop-and-frisk" rule, which the NYPD credited with saving lives, disregarded the Fourth and Fourteenth Amendments. Scheindlin also found that officers used racial profiling during the process, unfairly targeting minorities.^[21][22][23]

On August 3, 2012, the United States Court of Appeals for the Second Circuit overturned the lower court decision and held that a suit could continue which alleged that the Chittenden Regional Correctional Facility in South Burlington, Vermont violated the 13^th amendment by requiring an individual to work in the laundry room for $0.25 an hour. The suit was filed by Finbar McGarry who alleged that during his time pending trial in the facility, he was forced to work 14-hour shifts, three days a week, and was punished with solitary confinement if he refused. He filed the suit a month before his release, requesting $11 million in damages. U.S. District Judge Garvan Murtha threw out the case claiming that McGarry did not prove that the forced work was akin to African American slavery, which the act was originally designed to protect against. The three-judge appeals court panel, composed of Robert Katzmann, Richard Wesley, and the writing judge Barrington Parker, disagreed, writing in their opinion, "The Amendment was intended to prohibit all forms of involuntary labor, not solely to abolish chattel slavery." In addition, the court held that McGarry's pretrial status required that the state treat him differently as he was not yet convicted and the charges were later dropped. The case was remanded back to Judge Murtha for further evaluation.^[24]

On July 10, 2012, the United States Court of Appeals for the Second Circuit affirmed the decision of Judge Jed Rakoff, ruling that federal regulations preempted a city ordinance that required cigarette distributors to post graphic photos of cigarette-related illnesses at the point of sale. The court held that the 1965 Federal Cigarette Labeling and Advertising Act preempted the local law, thus rendering the local ordinance unconstitutional. Philip Morris USA alongside two other manufacturers, two major retailers, and two trade unions challenged this city law in federal court in 2011. Despite admitting the risks of smoking, Rakoff agreed with the cigarette producers, stating in his opinion, "Even merchants of morbidity are entitled to the full protection of the law." The Second Circuit concurred, though a three-judge panel believed that the city could launch its own anti-smoking campaign using the images, but could not require retailers to do it. The case was heard by Judges Peter Hall, Gerard Lynch, and Denny Chin, with Chin writing the opinion of the court.^[25][26]

The Second Circuit Court of Appeals ruled that the 100,000-resident town of Greece, NY, violated a constitutional ban against favoring one religion over another, in what was deemed a significant test to the constitutionally mandated separation of church and state.^[27] The decision, issued on the May 17, 2012, stated that by opening nearly every monthly town meeting with Christian-centric prayers, the town was favoring Christianity over other religions.^[27]

The meetings in question took place every month between 1999 and 2007, and from January 2009 to June 2010 in the suburb of Rochester, New York. Who was to deliver the invocation was decided each month by a town employee who chose clerics or laypeople from a local published guide of churches that did not include any places of worship outside of the Christian denomination. After complaints from two town residents, four of the 12 meetings in 2008 were opened by invocations from other faiths.^[27]

The suit, first brought in 2010, was originally decided in favor of the city of Greece. The lower court ruled that there was no indication that one faith was favored over another, or that the town purposely excluded other faiths. The decision was overturned by the Second Circuit Court of Appeals, ruling that "the town's process for selecting prayer-givers virtually ensured a Christian viewpoint.”^[27][28]

The case was appealed to the Supreme Court of the United States in 2013. In 2014, the Court reversed the Second Circuit's ruling.^[29]

Judge John Walker authored the Second Circuit Court's opinion in a ruling declaring that Citigroup was not liable to workers who lost money on their 401(k) plans due to the company's exposure to toxic debt. The court split 2-1 in the decision, with Judge Jose Cabranes agreeing with Judge Walker and Judge Chester Straub dissenting. The case was brought under the Employee Retirement Income Security Act of 1974 by workers who claimed that Citigroup should not have offered bank stock in its retirement plans because it knew its subprime mortgage exposure made the stock a dangerous investment. The court disagreed, and Judge Walker wrote that the workers did not show that Citigroup "either knew or should have known that Citigroup was in the sort of dire situation that required them to override plan terms in order to limit participants' investments in Citigroup stock." Marc Machiz, a lawyer for the plaintiffs, said he expected the case to be reheard by the full Second Circuit Court.^[30]

District Judge William Pauley denied a request by former New York State Senator Hiram Monserrate (D) to stop a decision made by the New York Senate to expel him on February 9, 2010.^[31]

Monserrate was expelled after being convicted of domestic violence towards his girlfriend, which was a misdemeanor.^[31]

The case was appealed to the Second Circuit Court of Appeals, but the appellate court judges, Gerard Lynch, Dennis Jacobs, and Jane Restani, ruled that the district court "did not abuse its discretion in determining that the Monserrate Appellants failed to establish a likelihood of success on the merits of any of the claims they press on appeal. We thus need not reach any of the other arguments advanced by the parties. For the foregoing reasons, we affirm the district court's denial of the preliminary injunction."^[32]

On August 24, 2009, District Judge Loretta Preska ruled that the Federal Reserve must disclose the recipients of emergency loans and aid during the economic downturn.^[33]

Bloomberg News took court action after the nation's central bank refused to comply with a Freedom of Information Act request. According to the network, Bloomberg News hoped that if it made public the recipients of bailout money, it would deter more bailout money from being handed out.^[33]

As part of her order, Preska gave the Federal Reserve five days to hand over the documents. On August 28, 2009, Preska delayed her order requiring the Federal Reserve to disclose bailout recipients. Preska also allowed the Fed to file an appeal with the Second Circuit Court of Appeals.^[34]

The case was subsequently argued in front of the Second Circuit Court of Appeals on January 11, 2010, and decided on March 19, 2010. The appellate court judges, Dennis Jacobs, Pierre Leval, and Peter Hall, upheld the decision reached by Judge Preska.^[35]

District Judge Laura Swain tossed out a copyright infringement lawsuit against Jessica Seinfeld on September 10, 2009, after the judge found that a recipe in a cook book did not infringe on a competing author.^[36]

Missy Chase Lapine sued the wife of comedian Jerry Seinfeld claiming a chicken breast recipe infringed on her similar recipe and competed unfairly. The judge found that because the styles of the books differed there was no evidence that Jessica Seinfeld committed plagiarism.^[36] The judgment can be read here.

The case was appealed to the Second Circuit Court of Appeals. The two appeals court judges, Reena Raggi and Peter Hall, ruled against Missy Chase Lapine and affirmed Swain's decision.^[37]

In 2010, Missy Chase Lapine sued Jerry Seinfeld for slander as a result of an interview Mr. Seinfeld participated in on the David Letterman television show. The New York Supreme Court dismissed the claim as being without merit in 2011. The judgment can be read here.^[38]

Sotomayor joined a finding in favor of the city of New Haven rejecting a lawsuit filed by 17 white firefighters and one Hispanic firefighter claiming race discrimination when the city of New Haven denied promotions following a promotion examination that yielded no black candidates eligible for advancement. In a 5-4 decision, the Supreme Court of the United States overturned the decision stating the decision to cancel the promotions violated the Equal Protection Clause of the Fourteenth Amendment as well as Title VII of the 1964 Civil Rights Act, which guarantees equal employment opportunity. The Court found that Sotomayor's ruling would allow the city to "experiment" with tests until it found one that produced "a more desirable racial distribution."^{[39][40][41][42][43]}

Sotomayor ruled in favor of environmental group Riverkeeper, which challenged an EPA ruling on the Clean Water Act's "best technology" rule involving power plants' need to intake water as weighed against the risk to aquatic life in surrounding waters. In her ruling, she held that "Congress has already specified the relationship between cost and benefits in requiring that the technology designated by EPA be the best available." Sotomayor's decision was overturned by the United States Supreme Court in a 6-3 vote where the Court held that the EPA could not weigh the costs of changes to power plants versus the value of organisms in dollar terms, but could consider only what costs "may reasonably be borne" by power plants when determining the best technology rule available.^[44][45]

In a case involving the conservative Mexico City Policy, announced by Ronald Reagan (R) in 1984 and subsequently rescinded by President Bill Clinton (D) and reauthorized by President George W. Bush (R), Sotomayor found that the federal government was within its rights to deny federal aid to foreign organizations that support or perform abortions. She dismissed claims by the pro-choice Center for Reproductive Law and Policy that the Mexico City Policy violated the First Amendment right to association as well as Fifth Amendment rights to due process and equal protection. In her finding, Sotomayor cited the Foreign Assistance Act of 1961 which authorizes the President "to furnish assistance, on such terms and conditions as he may determine, for voluntary population planning" as well as multiple Supreme Court precedents. In her decision, Sotomayor wrote, "the Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds."^[46][47][48]

In this case, Sotomayor found that an inmate living in a halfway house could sue a government contractor for forcing him to climb five flights of stairs despite a heart condition after the inmate suffered a heart attack, fell down the stairs, and injured himself. Sotomayor held "extending Bivens liability to reach private corporations furthers [its] overriding purpose: providing redress for violations of constitutional rights." Bivens was a 1971 Supreme Court case that allowed some people whose rights had been violated by federal agents to sue. The Supreme Court overturned Sotomayor's decision in a 5-4 ruling stating that only individual agents, not corporations, could be sued for such violations.^[49][45]

Chief Judge: Debra Livingston   •  Joseph Bianco  •  Richard Sullivan (New York)  •  Maria Araujo Kahn  •  Raymond Lohier  •  Alison J. Nathan  •  Beth Robinson  •  Sarah A.L. Merriam  •  Michael Park  •  Steven Menashi  •  William Nardini  •  Eunice Lee  •  Myrna Pérez

Denny Chin  •  Gerard Lynch  •  Pierre Leval  •  Dennis Jacobs  •  Jon Newman  •  Amalya Kearse  •  John Walker (New York)  •  Chester Straub  •  Guido Calabresi  •  Jose Cabranes  •  Robert Sack  •  Barrington Parker  •  Reena Raggi  •  Richard Wesley  •  Susan L. Carney (Second Circuit)  •  

Wilfred Feinberg  •  Jon Newman  •  Ralph Winter  •  John Walker (New York)  •  Robert Katzmann  •  Thomas Meskill  •  James Oakes  •  Learned Hand  •  Harrie Brigham Chase  •  Thomas Walter Swan  •  Charles Edward Clark  •  Irving Kaufman  •  Henry Friendly  •  Joseph Lumbard  •