Selected Cases of Judge Sonia Sotomayor

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					06-4996-cv Ricci v. DeStafano

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2007 (Argued: December 10, 2007 Docket No. 06-4996-cv Decided: June 9, 2008)

FRANK RICCI, MICHAEL BLATCHLEY, GREG BOIVIN, GARY CARBONE, MICHAEL CHRISTOFORO, RYAN DIVITO, STEVEN DURAND, WILLIAM GAMBARDELLA, BRIAN JOOSS, JAMES KOTTAGE, MATTHEW MARCARELLI, THOMAS J. MICHAELS, SEAN PATTON, CHRISTOPHER PARKER, EDWARD RIORDAN, KEVIN ROXBEE, TIMOTHY SCANLON, BENJAMIN VARGAS, JOHN VENDETTO AND MARK VENDETTO, Plaintiffs-Appellants, -vJOHN DESTEFANO, KAREN DUBOIS-WALTON, THOMAS UDE JR., TINA BURGETT, BOISE KIMBER, MALCOM WEBER, ZELMA TIRADO AND CITY OF NEW HAVEN, Defendants-Appellees.

Before: POOLER, SACK and SOTOMAYOR, Circuit Judges.

AFFIRMED.

KAREN LEE TORRE, Attorney, New Haven, CT, for Plaintiffs-Appellants.

RICHARD A. ROBERTS, Attorney, Cheshire, CT (Nicole C. Chomiak, Stacey L. Pitcher, and Todd J. Richardson, on the brief), for Defendants-Appellees.

PER CURIAM: We withdraw our Summary Order of February 15, 2008. Ricci v. DeStefano, 2008 U.S. App. LEXIS 3293, 2008 WL 410436 (2d Cir. Feb. 15, 2008).

Plaintiffs appeal from a judgment of the United States District Court for the District of Connecticut (Arterton, J.) granting the defendants’ motion for summary judgment on all counts.

We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. Ricci v. DeStefano, 2006 U.S. Dist. LEXIS 73277, 2006 WL 2828419 (D. Conn., Sept. 28, 2006). In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

CONCLUSION The judgment of the district court is AFFIRMED. 2

06-4996-cv Ricci v. DeStefano

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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term, 2007 (Argued: December 10, 2007 Decided: June 9, 2008 Order issued: June 12, 2008)

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Docket No. 06-4996-cv - - - - - - - - - - - - - - - - - - - -X FRANK RICCI, MICHAEL BLATCHLEY, GREG BOIVIN, GARY CARBONE, MICHAEL CHRISTOFORO, RYAN DIVITO, STEVEN DURAND, WILLIAM GAMBARDELLA, BRIAN JOOSS, JAMES KOTTAGE, MATTHEW MARCARELLI, THOMAS J. MICHAELS, SEAN PATTON, CHRISTOPHER PARKER, EDWARD RIORDAN, KEVIN ROXBEE, TIMOTHY SCANLON, BENJAMIN VARGAS, JOHN VENDETTO AND MARK VENDETTO, Plaintiffs-Appellants, - v.JOHN DESTEFANO, KAREN DUBOIS-WALTON, THOMAS UDE JR., TINA BURGETT, BOI KIMBER, MALCOM WEBER, ZELMA TIRADO AND CITY OF NEW HAVEN, Defendants-Appellees

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FOR PLAINTIFFS-APPELLANTS: FOR DEFENDANTS-APPELLEES:

KAREN LEE TORRE, New Haven, CT RICHARD A. ROBERTS {Nicole C.

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Chomiak, Stacey L. Pitcher, and Todd J. Richardson, ~~~), Cheshire, CT
ORDER

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After disposition of this appeal by summary order dated February 15, 2008, an active judge of Court requested a A poll on

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poll on whether to rehear the case in banco whether to rehear

case in banc was conducted among the After the poll was concluded,

active judges of the Cou

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on June 9, 2008, the original three-judge panel withdrew the summary order and filed a per curiam opinion; no subsequent poll has been requested. court's act rehearing Because a majority of the

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judges voted to deny rehearing in banc, is hereby DENIED.

Judges Calabresi, Straub, Pooler, Sack, Sotomayor, Katzmann, and B.D. in banco ker concur in the denial of rehearing

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Chief Judge Jacobs and Judges Cabranes, Raggi, vingston dissent from t denial of

Wesley, Hall and rehearing in banco

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With this order, Judge Katzmann is filing a concurring opinion, in which Judges Pooler, Sack, Sotomayor and B.D. Parker joins; Judge B.D. Parker is filing a concurring opinion, in which Judges Calabresi, Pooler, Sack
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and Sotomayor join; and Judge Cabranes is filing a dissenting opinion, in which Chief Judge Jacobs and Judges Raggi, Wesley, Hall and Judge vingston join.

Other opinions may be filed with respect to this case, concurring or dissenting in the denial of in bane review.

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KATZMANN, Circuit Judge, with whom Judge POOLER, Judge SACK, Judge SOTOMAYOR, and Judge B.D. PARKERjoin, concurring in the denial of rehearing en banc: I concur in the denial ofrehearing en bane, consistent with our Circuit's longstanding tradition of general deference to panel adjudication a tradition which holds whether or not the judges of the Court agree with the panel's disposition of the matter before it. Throughout our history, we have proceeded to a full hearing en banc only in rare and exceptional circumstances. See Wilfred Feinberg, Unique Customs and Practices o/The Second Circuit, 14 Hofstra L. Rev. 297, 311-12 (1986). The Supreme Court now has before it a petition for certiorari in this case, which I recognize presents difficult issues. As the Supreme Court de~ides whether to grant certiorari, it has for its review the district court's opinion, the panel's per curiam opinion, and opinions concurring with and dissenting from the decision denying rehearing en bane. The issues are therefore sharply defined for the Supreme Court's consideration of whether to grant certiorari.

BARRINGTON D. PARKER. Circuit Judge. with whom Judge CALABRESI. Judge POOLER. Judge SACK, and Judge SOTOMAYOR join. concurring in the denial of rehearing en bane:

At the heart of the dissent from the denial of rehearing en bane is the assertion that there was no Supreme Court or circuit law to guide this district court. or future district courts faced with similar claims. I disagree. The district court correctly observed that this case was unusual. Nonetheless. the district court also recognized that there was controlling authority in our decisions-among them. Hayden v. County ofNassau. 180 F.3d 42 (2d Cir. 1999) and Bushey v.
N. Y. State Civil Servo Comm 'n, 733 F.2d 220 (2d Cir. 1984). cert. denied, 469 U.S. 1117 (1985).

These cases clearly establish for the circuit that a public employer, faced with a prima facie case of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection Clause by taking facially neutral, albeit race-conscious, actions to avoid such liability. Insofar as the dissent suggests that the plaintiffs produced evidence of a racial classification or the imposition of a quota, I think it entirely mistaken. Although the City acted out of a concern that certifying the exam results would have an adverse impact on minority candidates-and although, as the panel noted in its decision, the result was understandably frustrating for applicants who passed the test-the City's response, to decline to certify any of the exams, was facially race-neutral. The City did not classify or confer any actual benefit on applicants on the basis of race. The dissent's citations to Adarand Constructors, Inc. v. Pena, 515 U.S. 200(1995), and CityofRichmondv. J.A. Croson Co., 488 U.S. 469 (1989), are

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therefore inapposite.! See Hayden, 180 F.3d at 49 (distinguishing those cases as "concerned with

select affinnative action tools, such as quota systems, set-aside programs, and differential scoring
cutoffs, which utilize express racial classifications and which prevent non-minorities from competing for specific slots or contracts."). Because there was no racial classification, the plaintiffs bore the burden of persuasion on the issue of discriminatory purpose. Jana-Rock Constr., Inc. v. N. Y State Dep 't ofEcon. Dev., 438 F.3d 195,204 (2d Cir. 2006). Here, however, there was no evidence of a discriminatory purpose; according to the record evidence, the City was motivated by a desire to comply with, and avoid liability under, Title VII and its implementing regulations. See Bushey, 733 F.2d at 226 ("It is settled that voluntary compliance is a preferred means of achieving Title VII's goal of eliminating employment discrimination." (internal quotation marks and alteration omitted)); see also Hayden, 180 F.3d at 51 ("A desire to reduce the adverse impact on [minority] applicants ... is not analogous to an intent to discriminate against non-minority candidates."). I think the dissent also quite unfairly caricatures the district court's evaluation of the plaintiffs' Title VII claim: "Under the District Court's rationale, it appears that any race-based employment decision undertaken to avoid a threatened or perceived Title VII lawsuit is itself

It may be worth noting that the Croson Court based its decision partly on the fact that "[t]here [was] nothing approaching a prima facie case of a constitutional or statutory violation by anyone in the Richmond construction industry." Croson, 488 U.S. at 500. Here, by contrast, the City was faced with a prima facie case of a violation of Title VII. See Gulino v. N. Y State Educ. Dep't, 460 F.3d 361,382 (2d Cir. 2006) (defining prima facie case of disparate-impact liability under Title VII); Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 160 (2d Cir. 2001) (same); see also 42 U.S.c. § 2000e-2(k) (codifying the disparate-impact theory ofliability and legislatively overruling Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 659 (1989)).
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immune from scrutiny under Title VII." This is simply not the case. Prior to reaching its conclusion, the district court assessed whether the examination results demonstrated a statistically disproportionate adverse racial impact under the EEOC Guidelines and whether the City had presented evidence to support its belief that less discriminatory alternatives to this particular test existed. This analysis shows that, contrary to the dissent's suggestion, the district court did not rubber stamp the City's proffered non-discriminatory reason for not certifying the exam results. Moreover, I hardly think that in order to decline to certify the exam results, the City was required to prove, through a validation study or some other means, that its own tests were not "job related for the position in question and consistent with business necessity," 42 U.S.C.

§ 2000e-2(k)(I)(A)(i) (defining affirmative defense to prima/acie case of disparate impact
violation). In fact, our case law explicitly rejects that proposition. See Bushey, 733 F.2d at 226 (disagreeing with the assertion that "before adopting remedial measures" the employer must "prove that [the] prima face case [of a disparate-impact Title VII violation] was not rebuttable through job-related explanations"). I also disagree with the dissent's view that en banc review is warranted because the district court analyzed the plaintiffs claims using the McDonnell Douglas pretext test rather than the Price Waterhouse mixed-motive test. See Price Waterhouse v. Hopkins, 490 U.S. 228

(1989); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As the dissent is well aware,
the plaintiffs did not argue the mixed-motive theory; a non-party raised it in an amicus brief. "Although an amicus brief can be helpful in elaborating issues properly presented by the parties,

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it is normally not a method for injecting new issues into an appeal, at least in cases where the parties are competently represented by counsel." Universal City Studios, Inc. v. Corley, 273 F.3d 429,445 (2d Cir. 2001); see also Bano v. Union Carbide Corp., 273 F.3d 120, 127 n.5 (2d Cir. 2001) (same). Finally, the dissent suggests that the panel's per curiam opinion inappropriately adopted the reasoning set forth in the district court's opinion, one that the panel recognized was "thorough, thoughtful, and well-reasoned." The adherence of a Court of Appeals to the decision and reasoning of a district court is anything but novel. In fact, the practice pre-dates the formal establishment of this Court in 1891 by at least fifty years. United States v. Libellants &

Claimants ofthe Schooner Amistad, 40 U.S. 518,590 (1841) ("The Circuit Court, by a mere pro
forma decree, affirmed the decree of the [Connecticut] District Court .... And from that decree the present appeal has been brought to this Court."). This Court has followed this practice on numerous occasions in appeals covering myriad issues. See, e.g., In re Bankers Trust Co., 450 F.3d 121, 123 (2d Cir. 2006) (per curiam); Murphy ex rei. Estate ofPayne v. United States, 427 F.3d 158,159 (2d Cir. 2005) (per curiam); In re Red Dot Scenic, Inc., 351 F.3d 57, 58 (2d Cir. 2003) (per curiam); United States v. Gluzman, 154 F.3d 49,50 (2d Cir. 1998); Trans World

Airlines, Inc. v. Sinicropi, 84 F.3d 116, 116 (2d Cir.) (per curiam), cert. denied, 519 U.S. 949
(1996). The plaintiffs were entitled to a careful and thoughtful review of their claims. The panel decided that the district court had given them just that, and thus adopted the district court's reasoning in its per curiam opinion. Nothing more is required.

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JOSE A. CABRANES, CircuitJudge, with whom ChiefJudge JACOBS, Judge RAGGI, Judge WESLEY, Judge HALL, and Judge LIVINGSTON join, dissenting: This appeal raises important questions of fIrst impression in our Circuit-and indeed, in the nation-regarding the application of the Fourteenth Amendment's Equal Protection Clause and Title VII's prohibition on discriminatory employment practices. At its core, this case presents a straightforward question: Maya municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another? In a path-breaking opinion, which is nevertheless unpublished, the District Court answered this question in the affirmative, dismissing the case on summary judgment. A panel of this Court affirmed in a summary order containing a single substantive paragraph. Ricci v. DeStifano, No. 06-4996-cv (2d Cir. Feb. 15, 2008).1 Three days prior to the filing of this opinion, the panel withdrew its summary order and filed a

per CIInam opinion adopting hI toto the reasoning of the District Court, thereby making the District
Court's opinion the law of the Circuit. See Ricci v. DeStefimo, _ F.3d _ (2d Cir. 2008). The use of per CIInam opinions of this sort, adopting in full the reasoning of a district court without further elaboration, is normally reserved for cases that present straight-forward questions that do not require explanation or elaboration by the Court of Appeals. The questions raised in this appeal cannot be classified as such, as they are indisputably complex and far from well-settled. These questions include: Does the Equal Protection Clause prohibit a municipal employer from discarding examination results on the ground that "too many" applicants of one race received high scores and in the hope that a future test would yield more high-scoring applicants of other races? Does such a

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Reproduced as .-\ppendix A.

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practice constitute an unconstitutional racial quota or set-aside? Should the burden-shifting framework applicable to claims of pretextual discrimination ever apply to a claim of explicit race-based discrimination in violation of Title VII? If a municipal employer claims that a race-based action was undertaken in order to comply with Title VII, what showing must the employer make to substantiate that claim? Presented with an opportunity to address en bane questions of such "exceptional importance," Fed. R. App. P. 35(a)(2), a majority of this Court voted to avoid doing so. I respectfully dissent from that decision, without expressing a view on the merits of the questions presented by this appeal, in the hope that the Supreme Court will resolve the issues of great significance raised by this case.

BACKGROUND
In late 2003, 118 applicants took a written and oral examination administered by the New Haven Fire Department ("NHFD") for promotion to the ranks of Captain and Lieutenant. Forty-one applicants took the Captain examination, of whom twenty-five were white, eight black, and eight Hispanic. Based on the examination results and New Haven's protocol for civil service promotions, it appeared, at the time that the tests were scored, that "no blacks and at most two Hispanics would be eligible for promotion" to Captain. Ricci v. DeStefano, No. 04cvll09, at 3 (D. Conn. Sept. 28,2006).2 \Vith respect to the Lieutenant examination, the racial composition of the seventy-seven applicants was as follows: forty-three whites, nineteen blacks, and fifteen Hispanics. The examination results indicated that no blacks or Hispanics would be promoted to the rank of Lieutenant. Between January and March 2004, the New Haven Civil Service Board ("CSB") held hearings to determine whether to certify the examination results and confer promotions according to those results. Despite the substantial efforts undertaken by the examination designer to ensure that it would be race-neutral, the City of New Haven

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Reproduced as .,-\ppendix B.

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(the "City") frankly stated its fear that, if the results were certified, it would face an employment discrimination lawsuit from non-white applicants who were not promoted. The CSB did not certify the examination results, and no promotions were made. Eighteen candidates-seventeen whites and one Hispanic-brought an action in the U.S. District Court for the District of Connecticut. They alleged in their complaint that the City and several municipal officials-acting in violation of Ticle VII of the Civil Rights Act of 1964,42 U.S.c. § 2000e et

seq., the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and other
provisions of federal and state law-disregarded the results of two promotional examinations that produced "too many" eligible white candidates and "too few" eligible non-white candidates. On crossmotions for summary judgment, the District Court (Janet Bond Arterton, Judge) granted defendants' motion for summary judgment, denied plaintiffs' motion, and directed the Clerk of Court to close the case. In a forty-eight page opinion, the District Court observed that (1) "[P]laintiffs' evidence-and defendants' own arguments-show that the City's reasons for advocating non-certification [of the examination results] were related to the racial distribution of the results" and (2) "[a] jury could infer that the defendants were motivated by a concern that too many whites and not enough minorities would be promoted were the [eligibility] lists to be certified." Ricci, No. 04cv1109, at 20-21. The District Court recognized the exceptional circumstances presented by the case, noting that it "presents the opposite scenario of the usual challenge to an employment or promotional examination, as plaintiffs attack not the use of allegedly racially discriminatory exam results, but defendants' reason for their reftsal to use the results." ld at 22. Applying the burden-shifting framework set forth in

McDonnell Douglas Corp. v. Gree1l, 411 U.S. 792 (1973), the District Court held that "[d]efendants'
motivation to avoid making promotions based on a test with a racially disparate impact, even in a

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political context, does not, as a matter of law, constitute discriminatory intent, and therefore such evidence is insufficient for plaintiffs to prevail on their Title VII claim." Ricci, No. 04cvll 09, at 39-40 (footnote omitted). The District Court further concluded that defendants had not violated plaintiffs' rights under the Equal Protection Clause by, as plaintiffs alleged, "employing a race-based classification system for promotion or, alternatively, by applying facially neutral promotion criteria in a racially discriminatory manner." Id. at 40, 44. Although it is not disputed that the decision to discard the examination results was based on racial considerations, the District Court determined as a matter of law that no racial discrimination had occurred "because [all ofj the test results were discarded and nobody was promoted," id. at 42, and because "[n]othing in the record in this case suggests that the City defendants or CSB acted 'because of discriminatory animus toward plaintiffs or other non-minority applicants for promotion," 11. at 43. The District Court also rejected plaintiffs' civil rights conspiracy and First Amendment claims and declined supplemental jurisdiction over a state law tort claim. On appeal, the parties submitted briefs of eighty-six pages each and a six-volume joint appendi.x of over 1,800 pages; plaintiffs' reply brief was thirty-two pages long. Two amici briefs were ftled and oral argument, on December 10,2007, lasted over an hour (an unusually long argument in the practice of our Circuit). More than two months after oral argument, on February 15, 2008, the panel affirmed the District Court's ruling in a summary order containing a single substantive paragraph. The operative portion of the summary order read as follows: We affirm, substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII

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when confronted with test results that had a disproportionate racial impact, its actions were protected. The judgment of the district court is AFFIRl\1ED. See App. A. Four months later, and three days prior to the publication of this opinion, the panel withdrew its summary order and published a per curiam opinion that contained the same operative text as the summary order, with the addition of a citation to the District Court's opinion in the \Xlestlaw and LexisNexis databases. This per cunam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit. It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination. This perfunctory disposition rests uneasily \vith the weighty issues presented by this appeal. 3 Prior to the entry of the per curiam opinion and in light of the "question[s] of exceptional importance," Fed. R. App. P. 35(a)(2), raised in this appeal, the Court considered a motion for en bam: reVIew. A majority of this Court declined to take up the appeal.

DISCUSSION

3 Judge Parker's observation that "[t]he adherence of a Court of Appeals to the decision and reasoning of a district court is anything but novel" cannot be gainsaid. In appropriate cases, such a disposition is entirely unobjectionable. \X'here significant questions of unsettled law are raised on appeal, however, a failure to address those questions--or even recognize their existence-should not be the approved modus operandi of the U.S. Court of Appeals.

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The core issue presented by this case-the scope of a municipal employer's authority to disregard examination results based solelY on the race of the successful applicants-is not addressed by any precedent of the Supreme Court or our Circuit. Plaintiffs alleged that the City's actions violated,

inter alia, their rights under the Equal Protection Clause and Title VII. The District Court disagreed,
but did so without the benefit of pertinent guidance from a higher court. The questions raised by the instant appeal clearly merit further review. 4

A.

The Equal Protection Clause
Plaintiffs claim that the City's decision to discard the examination results was race-based

discrimination in violation of the Equal Protection Clause because it was undertaken solely to reduce the number of high-scoring white applicants and increase the number of eligible non-white candidates. Defendants contend that their decision, though race-based, was necessary because compliance with federal anti-discrimination laws required them to reduce the number of eligible white candidates. See

Ricci, No. 04cv1109, at 20-21; Appellee Br. at 15-20, 30-31. The Supreme Court has addressed a
government entity's claim that race-based decisions were necessary to redress a racial imbalance in the closely analogous context of government contracts. In

Ciry qfRichmond v. J. A. Croson Co., the Supreme

Court held that: "[w]hile there is no doubt that the sorry history of both private and public discrimination in this country has contributed to a lack of opportunities for black entrepreneurs, this observation, standing alone, cannot justify a rigid racial quota in the awarding of public contracts ...." 488 U.S. 469, 499 (1989). The Court further observed that: [W]hen a legislative body chooses to employ a suspect classification, it cannot rest upon a generalized assertion as to the classification's relevance to its goals. A governmental actor cannot render race a legitimate proxy for a particular condition merely by declaring that the condition exists. The history of racial classifications in this country suggests that blind judicial

4 Indeed, in his opinion concurring in the denial of en bane review, Judge Katzmann recognizes as much, observing that this appeal "presents difficult issues."

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deference to legislative or executive pronouncements of necessity has no place in equal protection analysis.

Id. at 500-01 (internal citations omitted). More recently, the Supreme Court has identified "three
general propositions with respect to governmental racial classifications." Adarand Constmdors, Inc. v. Pena, 515 U.S. 200, 223 (1995). They are: First, skepticism: Any preference based on racial or ethnic criteria must necessarily receive a most searching examination. Second, consistency: The standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification, i.e., all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized. And third, congruence: Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment. Taken together, these three propositions lead to the conclusion that at!} person, of whatever race, has the right to demand that aI!} governmental actor su,?ject to the Constitutionjustifj af!) racial classification su,?jecting that person to unequal treatment under the strictestjudicial scmtif!).

Id. at 223-24 (quotation marks, internal citations, and brackets omitted) (emphasis added).
Whether the District Court's judgment comports with these propositions is a question of immense importance that is not addressed in the panel's per curiam opinion. The District Court's ruling rested in part on the premise that "where a test is administered and scored in the same manner for all applicants, plaintiffs cannot make out a claim that the exam was a facially neutral test used in a discriminatory manner." Ricci, No. 04cv1109, at 42. Neutral administration and scoring--even against the backdrop of race-conscious design of an employment examination, see Hqyden v. Coun!} ofNassau, 180 F.3d 42, 50 (2d Cir. 1999)-is one thing. But neutral administration and scoring that is followed by race-based treatment of examination results is surely something else entirely. Where, as here, examination results are disregarded on the ground that too many candidates of one race qualified for promotion on the basis of those results, the fact of neutral administration and scoring may not necessarily immunize defendants from the claims of civil rights violations brought by plaintiffs. If it did, municipal employers could reject the results of an employment examination whenever those results

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failed to yield a desired racial outcome-i.e., failed to satisfy a racial quota. Croson and Adarand est.'lblish that racial quotas are impermissible under the Constitution absent specific findings of past discrimination that are not in the record here. Whether Croson and Adaraltd preclude the actions challenged in this case, or whether Hqydm can fairly be read to compel judgment in defendants' favor as a matter of law, are questions that admit no easy answer. As such, they require the careful analysis of a full opinion of an appellate court, not abbreviated disposition. The District Court held that the test was administered in the same manner for all applicants because the City discarded the scores of all exam-takers. Insofar as the decision to not certify the results was based on the race of the high-scoring applicants, however, it is arguable that the deck was stacked against applicants of that race: If too many white applicants obtained high scores, the City stood ready to nullify the results in the hope that non-white applicants would score relatively higher on a subsequent examination. 5 Whether such action amounts to an impermissible racial quota was not addressed in the District Court's opinion or in the decisions issued by the panel, which do not even note that this action arises under the Equal Protection Clause of the Fourteenth Amendment. See App. A (summary order of Feb. 15, 2008); per curiam opinion filed on June 9, 2008. The District Court also held as a matter oflaw that none of the City's reasons for disregarding the examination results amounted to intentional discrimination because the City had acted based on the following concerns: that the test had a statistically adverse impact on African-American and Hispanic examinees; that promoting off of this list would undermine their goal of diversity in the Fire Department and would fail to develop managerial role models for aspiring firefighters; that it would sulyect the City to public criticism; and that it \vould likely subject the City to Title VII lawsuitsfrom minority applicants that, for political reasons, the City did 110t want to difend.

5 In his opinion concurring in the denial of en bane review, Judge Parker concludes that the City "did nor ... confer any actual benefit on applicants on the basis of race." It is, at the very least, an open question whether discarding examination results on the basis of race so that members of certain races could have a "second chance" to compete constitutes the conferral or denial of a benefit on the basis of race.

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Ricci, No. 04cv1109, at 43 (emphasis added). Leaving aside the propriety of the District Court's
evaluation, on summary judgment, of the City's motives-a quintessential question of fact, see, e.g., Hunt

v. Cromartie, 526 U.S. 541, 552-53 (1999)-it is at least arguable that the District Court failed to subject
the City's justifications to the "most searching examination" prescribed by the Adarand Court. See 515 U.S. at 223. The record suggests that the District Court took the City's justifications at face value, as it appears Judge Parker has done in his opinion concurring in the denial of en banc review. An appellate court ought to consider whether this level of scrutiny is consistent with Justice O'Connor's observation, in Croson, that "[a]bsent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are 'benign' or 'remedial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." 488 U.S. at 493 (plurality opinion). Justice O'Connor's cautionary note on "racial politics" is particularly relevant in light of the District Court's observation that fear of "public criticism" and other "political reasons" factored into the City's decision. Whether the District Court subjected the City's claims to sufficient scrutiny-and whether the City's claims could have withstood such scrutiny-are vital "question[s] of exceptional importance," Fed. R. App. P. 35(a)(2), that warrant further review, both for the proper resolution of this case and for the guidance of other courts and municipalities in future cases.

B.

Title VII
Plaintiffs urge that the City's race-based action also violated Title VII's prohibition of

employment discrimination. See 42 U.S.c. § 2000e-2. The District Court dismissed plaintiffs' Title VII claim by applying the three-step burden-shifting framework for adjudicating claims of pretextual discrimination established by McDonnell Douglas. The dismissal of the Title VII claim on this basis raises two significant questions: (1) whether the McDonnell Douglas test for prete-"'dual discrimination should be

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applied to claims of discrimination that is overt, and (2) whether a race-based decision allegedly made to avoid perceived liability for racial discrimination is exempt from scrutiny under Title VII and, if not, what quantum of proof is required to substantiate such a defense. Courts generally apply McDonnell Douglas in cases where plaintiffs "presentD no direct evidence of discriminatory treatment." Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005); see also

Graves tJ. Finch Pruyn & Co. Inc, 457 F.3d 181, 187 (2d Cir. 2006). "If a plaintiff can convince the trier of
fact that an impermissible criterion in fact entered into the employment decision, [however,] a somewhat different analysis takes place." 7)ler 11. Bethlehem Steel Corp., 958 F.2d 1176, 1181 (2d Cir. 1992). In that kind of "mixed-motive" case, the burden-shifting analysis set forth in Price Waterhouse v.

Hopkins, 490 u.s. 228 (1989), governs the claim. Under this framework,
the plaintiff ... must focus his proof directly at the question of discrimination and prove that an illegitimate factor had a motivating or substantial role in the employment decision. If the plaintiff convinces the factfinder that the illegitimate factor played such a role, the employee has proved that the decision was made at least in part because of the illegitimate factor. At this point the employee is entitled to succeed subject only to the employer's opportunity to prove its affIrmative defense; that is, that it would have reached the same decision as to the employee's employment even in the absence of the impermissible factor.

7)ler, 958 F.2d at 1181 (internal citations, quotation marks, and brackets omitted); see also Sista v. CDC

IxiJ N. Am., I,IC., 445 F.3d 161, 173-74 (2d Cir. 2006); Raskin v. u::jatt Co., 125 F.3d 55,60-61 (2d Cir.
1997) ("Evidence potentially warranting a Price Waterhouse burden shift includes, inter alia, policy documents and evidence of statements or actions by decisionmakers that may be viewed as directly reflecting the alleged discriminatory attitude." (internal quotation marks omitted)). The Ricci plaintiffs offered evidence that an impermissible factor-their race-motivated defendants to discard the results of the employment examination. As the District Court itself candidly observed: "[P]laintiffs' evidence-and defendants' own arguments-show that the City's reasons for advocating non-certification [of the examination results] were related to the racial distribution of the

10

results" and "[a] jury could infer that the defendants were motivated by a concern that too many whites and not enough minorities would be promoted were the [eligibility] lists to be certified." Rim, No. 04cvl109, at 20-21. The District Court's application of the McDonnell Douglas test for pretextual discrimination, its conclusion that plaintiffs cannot pass that test as a matter of law, and its failure to consider the possibility that defendants themselves might bear a burden of proof under the analysis set forth in Price Waterhouse, all raise serious concerns left unaddressed by the panel in its per a/riam opinion and by the full Court, which declined en banc review of the appeaL Assuming arguendo that a claim of overt racial discrimination is ever appropriately evaluated under the McDonnell Douglas framework for pretextual discrimination, the application of that framework to this case required a "reversal" of the usual roles assigned to plaintiffs and defendants in such cases. As the District Court observed: [T]his case presents the opposite scenario of the usual challenge to an employment or promotional examination. . .. Ordinarily, as contemplated by the statute, the "complaining party" bears the burden of proving a disparate impact, and the "respondent" bears the burden of "demonstrat[ing] that the challenged practice is job related for the position in question and consistent with business necessity," or, alternatively, the "complaining party" may prevail by showing that an alternative employment practice with less disparate impact existed and that the respondent failed to utilize it. Here, the roles of the parties are in essence reversed, with the defendants, normally reflecting a "respondent" role in the Title VII disparate impact analysis, contending that use of the promotional exams, if they had been certified, would have had an adverse impact, and the plaintiffs, normally the "complaining party," arguing that the test results were sufficiently job-related to be defensible under the law.

Ricci, No. 04cv11 09, at 22 (alteration in original) (internal citations omitted). Unlike the Court of
Appeals, the District Court answered the exceptional, and difficult, questions presented, concluding that the City's expressed desire to comply with "the letter and the spirit of Title VII," id. at 22, constituted a non-pretextual reason for its action, id. at 39-40, and therefore no employment discrimination occurred. Under the District Court's rationale, it appears that any race-based employment decision undertaken to avoid a threatened or perceived Title VII lawsuit is immune from

11

scrutiny under Title VII." This appears to be so, moreover, regardless of whether the employer has made any efforts to verify that a valid basis exists for the putative Title VII suit. Applying this rationale, the District Court concluded that the City, which had not conducted any study to determine whether latent racial bias had tainted the results of the promotion examination, could discard the results of the examination, id. at 25-26, in the hope that a future test would yield a preferable racial distribution, id. at 36. Regardless of how one may decide the matter, there can be little doubt that a decision of this Court thus sanctioning race-based employment decisions in the name of compliance with Title VII raises novel questions that are indisputably of "exceptional importance."

CONCLUSION
It is arguable that when an appeal raising novel questions of constitutional and statutory law is

resolved by an opinion that tersely adopts the reasoning of a lower court-and does so without further legal analysis or even a full statement of the questions raised on appeal-those questions are insulated from further judicial review. It is arguable also that the decision of this Court to deny
C11

banc review of

this appeal supports that view. What is not arguable, however, is the fact that this Court has failed to grapple with the questions of exceptional importance raised in this appeal. If the Ricci plaintiffs are to obtain such an opinion from a reviewing court, they must now look to the Supreme Court. Their claims are worthy of that review.

6 Despite Judge Parker's assertion to the contrary, I do not charge the District Court with applying a "rubber stamp" to the Ciry's race-based decisions. I simply question whether the Court of A.ppeals has set forth a standard for determining when such action is acceptable and when it violates the constitutional and statutory rights of citizens. If any fault is to be levied in this regard, it falls on our Court for failing to provide guidance, and not on the District Court which endeavored to confront this question of exceptional importance.

12

Appendix A

06-4996-cv Ricci v. DeStefano

1

2
3 4 5
6 7

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED AFTER JANUARY 1,2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)." A PARTY CITING A SUMMARY ORDER MUST SERVE A COpy OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PA YMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV I). IF NO COpy IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

8 9
10 11 12 13 14 15

16
17
18 19

20
21 22 23

24
25

26

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 15 th day of February, two thousand and eight. Present: ROSEMARY S. POOLER, ROBERT D. SACK, SONIA SOTOMAYOR, Circuit Judges,

27
28

29
30 31 32 33

34

35
36
37 38 39

FRANK RICCI, MICHAEL BLATCHLEY, GREG BOIVIN, GARY CARBONE, MICHAEL CHRISTOFORO, RYAN DIVITO, STEVEN DURAND, WILLIAM GAMBARDELLA, BRIAN JOOSS, JAMES KOTT AGE, MATTHEW MARCARELLI, THOMAS J. MICHAELS, SEAN PATTON, CHRISTOPHER PARKER, EDWARD RIORDAN, KEVIN ROXBEE, TIMOTHY SCANLON, BENJAMIN VARGAS, JOHN VENDETTO AND MARK VENDETTO, Plaintiffs-Appellants,

40 41

42
43
-v-

(06-4996-cv)

44
45

46

JOHN DESTEFANO, KAREN DUBOIS-WALTON, THOMAS UDE JR., TINA BURGETT, BOISE KIMBER, MALCOM WEBER, ZELMA TIRADO AND CITY OF NEW HAVEN, Defendants-Appellees.

47
48

49

I

Appearing for Plaintiffs-Appellants: Appearing for Defendants-Appellants:

Karen Lee Torre, New Haven, CT.

2
3 4
5 Richard A. Roberts (Nicole C. Chomiak, Stacey L. Pitcher, and Todd 1. Richardson _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _~on:.:..:::.th.:.::e:...:b::.:.n.:.::·e::Jf), Cheshire, CT.

6 7 8 9 10 11 12
13 14 15 16 17 18

UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the distri~t court is AFFIRMED.
Plaintiffs appeal from a judgment of the United States District Court for the District of . Connecticut (Arterton, J.) granting the defendants' motion for summary judgment on all counts. We affirm, substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected. The judgment of the district court is AFFIRMED.

19

20
21

22
23

24
25

26
27

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By:. _

28 29

2

Appendix B

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT FRANK RICCI, et al., Plaintiffs,

v.
JOHN DESTEFANO, et al., Defendants.

Civil No. 3:04cvll09 (JBA)

RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [DOCS. ii 52, 60]

In March 2004 the New Haven Civil Service Board (UCSB") refused to certify the results of two promotional exams for the positions of Lieutenant and Captain in the New Haven Fire Department. This lawsuit arises from the circumstances leading

to that decision and its consequences. Plaintiffs are seventeen white candidates and one Hispanic candidate who took the promotional exams, on which they fared very well, but received no promotion because without the CSB's certification of the test results, the promotional process could not proceed. Defendants are the City of New Haven, Mayor John

DeStefano, Chief Administrative Officer Karen Dubois-Walton, Corporation Counsel Thomas Ude, Director of Personnel Tina Burgett, and the two members of the CSB, Malcolm Weber and Zelma Tirado, who voted against certification. Plaintiffs assert that

defendants' actions in voting or arguing against certification of the examination results violated their rights under Title VII of

1

the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Equal Protection Clause, the First Amendment, and 42 U.S.C. § 1985; plaintiffs also allege a common law claim of intentional infliction of emotional distress. The parties have cross-moved

for summary judgment on the Title VII and Equal Protection claims, and defendants additionally move for summary judgment on plaintiffs' other claims. For the reasons that follow, defendants' motion for summary judgment [Doc. # 52] will be granted as to plaintiffs' federal claims; plaintiffs' cross-motion for summary judgment [Doc. # 60] will be denied; and the Court will decline jurisdiction over plaintiffs' state law claim. 1

I.

Factual Background
While the parties strenuously dispute the relevance and

legal import of, and inferences to be drawn from, many aspects of this case, the underlying facts are largely undisputed. November and December 2003, the New Haven Fire Department administered written and oral examinations for promotion to Lieutenant and Captain. The City's Department of Human Resources In

issued a Request for Proposal for these examinations; as a result of which I/O Solutions (\\IOS"), a seven-year-old Illinois company that specializes in entry-level and promotional examinations for

lDefendants also moved to strike portions of plaintiffs' Local Rule 56(a)2 Statement, which motion was denied. See Ruling Denying Motion to Strike [Doc. # 130].
2

public safety (police and fire) departments, designed the examinations. Pl. Ex. IV(C) at 8. Under the contract between

the City and the New Haven firefighters' union, the written exam result counted for 60% of an applicant's score and the oral exam for 40%. pass. Forty-one applicants took the Captain exam, of whom 25 were white, 8 black, and 8 Hispanic. Twenty-two of those applicants Pl. Ex. Those with a total score above 70% on the exam would

passed, of whom 16 were white, 3 black, and 3 Hispanic. Vol. I, at 43.

Given that there were 7 Captain vacancies in the

department when the tests were administered, and that the "Rule of Three" in the City Charter mandates that a civil service position be filled from among the three individuals with the highest scores on the exam, it appeared at that time that no blacks and at most two Hispanics would be eligible for promotion, as the top 9 scorers included 7 whites and 2 Hispanics. 2 Seventy-seven applicants took the Lieutenant exam, of whom 43 were white, 19 black, and 15 Hispanic. whom 25 were white, 6,black and 3 Hispanic. vacancies, but because Thirty-four passed, of Id. There were 8

of the top 10 scorers were white, it

appeared that no blacks or Hispanics would be promoted. 3

2Hispanics ranked 7, 8 and 13; blacks ranked 16, 19 and 22. Pl. Ex. Vol. I, at 43. 3Hispanics ranked 27, 28 and 31; blacks ranked 14, 15, 16, 20, 22, and 24. PI. Ex. Vol. I, 43.
3

Certified promotional lists remain valid for two years. The CSB held five hearings between January and March 2004 on the issue of whether to certify the test results. The issue

appears to have been raised by New Haven's Corporation Counsel, Thomas Ude. At the initial hearing on January 22, 2004, Mr. Ude
~a

characterized the exam results as impact . .

very significant disparate

. that caused us to think this was something we should

bring to you, the Civil Service Board, to evaluate and to be part of and to ultimately make a decision about the process." Vol. IV(A) at 32. Pl. Ex.

While it is disputed whether Mr. Ude already

had made up his mind to advise the CSB against certifying the results, his comments "emphasize [dl . that the case law does

not require that the City find that the test is indefensible in order to take action that it believes is appropriate to remedy . . disparate impact from examination." Id. at 34-35. He

advised that "federal law does not require that you [the CSB] make a finding that this test . . . was not job-related, which is A test can be job-related

another way of saying it wasn't fair.

and have a disparate impact on an ethnic group and still be rejected because there are less discriminatory alternatives for the selection process." Id. at 36.

During the hearings, the tests results were not released by name, and therefore none of the firefighters knew where they had placed. The only information provided to the CSB and the public,

4

including plaintiffs, was the scores by race and gender. Nonetheless, several firefighters, although they did not know where they had placed, spoke in favor of certifying the results. Plaintiff Frank Ricci stated that the questions on the test were drawn from "nationally recognized" books and New Haven's own Rules and Regulations and Standard Operating Procedures. Vol. 1V(A) at 88. Pl. Ex.

He stated that he "studied 8 to 13 hours a day

to prepare for this test and incurred over $1,000 in funds [sic] to study for this test," including purchasing the books and paying an acquaintance to read them on tape because he is dyslexic and learns better by listening. Other firefighters, who

believed the tests were fair, ·also spoke in support of the certifying the results.
See,~,

Testimony of Michael

Blatchley, id. at 75 ("[N]one of those questions were not in that study material. material.") . During the first hearing, the CSB also took statements from several New Haven firefighters who complained that some of the questions were not relevant to knowledge or skills necessary for the positions (see,
~,

Everyone of those questions came from the

Statement of James Watson, We don't use
~

at 85

("I think this test was unfair.

lot of things

that were on that test" such as whether to park a firetruck facing "uptown" or "downtown"», or that the study materials were difficult to obtain (see Testimony of Gary Kinney, id. at 77

5

(~The

only books that most of us had in front of us in the fire [T]hese books [on

houses were Essentials of Fire Fighting . . . .

the syllabus] were never in the fire houses."». At the second hearing on February 5, Patrick Egan, president of the firefighters' union, urged the CSB to conduct a validation study to determine the job-relatedness of the test, referring generally, although not by name, to the EEOC's Guidelines of Employee Selection Procedures." at 11-12.
~Uniform

Pl. Ex. Vol. IV(B)
~poke

Plaintiffs' counsel in the present case also

and

urged certification. On the other side, Donald Day, a representative of the Northeast Region of the International Association of Black Professional Firefighters, argued against certification, stating that previous promotional examinations in 1996 and 1999 had black and Latino firefighters ranked sufficiently high to have a realistic opportunity for promotion, whereas
~there

was something

inherently wrong with this test" because minorities did not score as highly. Id. at 33-34. He suggested that the CSB speak with
~to

the director of the civil service in Bridgeport

find out what

Bridgeport is doing different [sic] than New Haven," as they have more diversity in their firefighter ranks. rd. at 35. In

particular, he stated that Bridgeport had "changed the relative weights" among the portions of the exam, such that the written test counts for 30% of the total score, the oral test for 65%,

6

and seniority 5%.

Id. at 36-37.

Ronald Mackey, the Internal

Affairs Officer for the Northeast Region of the International Association of Black Professional Firefighters, supported Patrick Egan's suggestion of obtaining a validation study, and also suggested that New Haven could "adjust the test" as Bridgeport had done, in order to "meet the criteria of having a certain amount of minorities get elevated to the rank of Lieutenant and Captain." Id. at 43-45.

On February 11, 2004, the CSB heard from Chad Legel, Vice President of lOS, who was the "project manager" in charge of developing the exams at issue. He stated that lOS had prepared

"both an entry-level exam and a physical ability test for the firefighter position" in New Haven, but had not previously prepared a New Haven promotional exam. Id. at 10. However, in

recent years his company had worked with similarly-sized public safety departments with demographics similar to New Haven, including Lansing, Michigan, Orange County, Florida, and the North Miami Police Department, among others. Id. at 9.

Legel described the way in which the test was developed. First, the company interviewed a random sample of current New Haven Fire Department Lieutenants, Captains and Battalion Chiefs to determine basic information concerning the structure of the department, the tasks required of individuals at each rank, and the materials the department generally utilizes for training.

7

Based on the interviews, lOS developed a written job analysis questionnaire ("JAQ") that asked all incumbents in the positions of Lieutenant and Captain "to provide information about how important they feel a specific task, knowledge area, skill or ability is. " I d . at 17. The JAQ asked how important each

task was to successful performance on the job and how frequently it was necessary to perform it. Importance and frequency were Id.

merged into a metric called "criticality or essentiality." at 19. Tasks above a certain criticality threshold were

designated for testing on the written and oral portions of the exam. In response to the question of whether he has generally

found a difference between information tested in various departments "based on the racial content of the city and the force," Legel stated, "definitely no." rd. at 21. The one

difference among the New Haven firefighters of similar rank that Legel noted was different levels of training in certain specialized fields such as hazardous materials; such variation "throws up a red flag" indicating that lOS should not ask "highlevel questions about hazardous materials. " I d . at 22.

Legal further stated that all the questions were firmly rooted in the study materials on the syllabus, which was distributed with the promotion applications. ("Written Examination Reference List"). See Def. Ex. 16

Once the test was

completed, an "independent reviewer;" a Battalion Chief from the

8

Cobb County, Georgia, Fire Department, "reviewed the written exam for content and fidelity to the source material." IV(B) at 24-25. Pl. Ex. Vol.

Another independent reviewer, a retired Fire

Chief from outside Connecticut, reviewed the oral exam questions. Id. at 26. lOS refrained from utilizing reviewers from

Connecticut because the RFP had specified that examiners must come from outside Connecticut, due to concerns that utilizing internal personnel could potentially facilitate cheating on the test. Likewise, lOS selected the panelists for the oral examination panels from departments outside Connecticut, making an effort "to gain maximum diversity." Id. at 32. All but one

panel had one African-American, one Hispanic and one white assessor, and a standby panel had two African-Americans and one white. Id. The assessors were trained on how to grade the oral

exam scenarios consistently, utilizing checklists of desired criteria. Each panelist also held at least an equal rank (if not

superior) to the position being tested, in order to be able to identify an answer that was good but not quite the best answer outlined in the checklist. at 33-34, 37.

Legel concluded by "implor[ing] anyone that had . . . concerns [about disparate impact] to review the content of the exam. In my professional opinion, it's facially neutral."

Id. at 49.

9

Noelia Marcano, Chief Examiner for the City of-New Haven and Secretary to the CSB, explained the process by which the RFP was developed and lOS chosen. She further explained that the job

applications for the Lieutenant and Captain positions contained a job description, employment application, and "the actual study list in final form," and that when questions arose concerning conflicting information in some of the study books, lOS sent a letter to all applicants that they would not be asked questions on material where the sources differed. Id. at 78.

At the next hearing on March 11, 2004, the CSB heard from Christopher Hornick, Ph.D., an industrial/organizational psychologist from Texas who runs a consulting business in competition with IOS. 4 See Pl. Ex. Vol. IV(D} at 7, 12. Dr.

Hornick stated that he had "not had time to study the test at length or in detail."
stati~tics

at 13.

However, he reviewed

provided by the City and concluded that "we're seeing Id. at 11.

relatively high adverse impact" from the lOS tests.

He opined that his company finds "significantly and dramatically less adverse impact in most of the test procedures that we

4Plaintiffs argue that Dr. Hornick's non-sworn, hearsay statement at the CSB hearing is inadmissible as non-disclosed expert evidence. Plaintiffs' argument is rejected because defendants proffer Dr. Hornick's not for the truth of his conclusion that the tests had a racially disparate impact, but to show that defendants had a good faith belief, based in part on Dr. Hornick's testimony, that such a disparate impact existed and justified the decision not to certify the exams. 10

design."

Id. at 12.

He stated:

Normally, whites outperform ethnic minorities on the majority of standardized testing procedures. That is, in , the case with the data that we've seen in New Haven. I'm a little surprised at how much adverse impact there is in these tests. And I hope at some point here we'll be talking in detail about that. But my conclusion is that we did have significant adverse impact. Some of it is fairly typical of what we've seen in other areas of the countries (sic) and other tests that people have developed. But in other ways it is somewhat worse than what we're typically seeing in the profession practiced by others. Id. at 11-12. Dr. Hornick acknowledged that he had not looked at

specific statistics from previous promotional examinations in New Haven to compare their results with the 2003 exam results. at 14. When asked about the reasons behind any possible disparate impact, Dr. Hornick answered, "I'm not sure that r can explain it," but suggested that perhaps the 60%/40% breakdown mandated by the collective bargaining agreement could be responsible, and further suggested that there were "perhaps different types of testing procedures that are much more valid in terms of identifying the best potential supervisors in your fire department." rd. at 15. He stated that based on his interviews Id.

with firefighters, "we know that" a written test is "not as valid as other procedures that exist." rd. at 16. He also suggested

that "[b]y not having anyone from within the department review the items [on the test] you inevitably get things in there" that 11

are not relevant to the specific department.

rd. at 17-18.

Finally, Dr. Hornick identified as an alternative to traditional written and oral testing processes
~an

assessment center process,

which is essentially an opportunity for candidates to demonstrate their knowledge of the . . . standard operating procedures, to

demonstrate how they would address a particular problem as opposed to just verbally saying it or identifying the correct option on a written test. For example, there's concepts of

situation judgment tests that can be developed and designed, customized within organizations that demonstrate dramatically less adverse impacts. . . " Id. at 22-23.

At the same hearing, Vincent M. Lewis, a Fire Program Specialist for the u.S. Department of Homeland Security, and a retired career firefighter from Michigan, testified that he believed the test was appropriate.
~extensively

He stated that he had looked

at the Lieutenant's exam and a little less at the
~should

Captain's exam," and believed that the candidates that material." Id. at 34-35.

know

His one comment was that

~a

number of questions in the Lieutenant's exam dealt with issues that an apparatus driver needed to know," and a candidate who had not had such training would be disadvantaged on those questions. rd. at 34, 41. However, he generally
~felt

the questions were

relevant for both exams," and believed that the New Haven applicants were advantaged over examinees in other locations

12

because they were instructed exactly which chapters from the study materials would .be on the tests. Id. at 36. He stated

that he would not have changed anything about the way in which the tests were developed, and opined that any disparate impact could be due to a general pattern that
~usually

whites outperform whites . . .

some of the minorities on testing,H or that take the exam. H Id. at 37-38.

~more

The last expert witness was Dr. Janet Helms, a professor of counseling psychology and the Director of the Institute for the Study and Promotion of Race and Culture at Boston College. Her

area of expertise "is not with firefighters per se but is more in the general area of how race and culture influence test performance more generally.H specific tests at issue. Id. at 43. She did not examine the

Id. at 55.

However, she offered

several potential explanations for racially disparate impact on the tests. First, "[w]e know for a fact that regardless of what

kind of written test we give in this country that-we can just about predict how many people will pass who are members of underrepresented groups. And your data are not that inconsistent Id. at 44

with what predictions would say were the case. H (emphasis supplied).

Second, Dr. Helms suggested that because

67% of the respondents in the JAQ survey were white, the questions may have been skewed toward their job
knowledge~

as

"most of the literature on firefighters show that the different

13

[racial. and gender] groups perform the job differently." 46.

Id. at

Relying on information she had read in newspaper accounts of

the situation in New Haven, she stated that the difference in performance may have been due to differences in opportunities for training and "informal mentoring" available to mirtorities. at 48. Id.

With respect to the oral exam, Dr. Helms suggested that
acc~nted

people who are bilingual or "speak

speech" may elicit As

more negative reactions from evaluators.

Id. at 49-50.

general concerns, Dr. Helms mentioned that test takers may score lower if they are expected not to perform well, or if tests focus on "traditional ways of doing the job and the test-taker, in fact, uses innovative approaches." rd. at 51. Additionally, she

suggested that "removing" "socioeconomic status" from test scores "reduces the disparate impact to some extent." Id. at 57.

At the final hearing on March 18, 2004, defendant Ude, the Corporation Counsel, strongly advocated against certifying the exam results. He concluded: "You have a choice. It is my

opinion that promotions under our rules as a result of these tests would not be consistent with federal law, would not be consistent with the purposes of our.Civil Service Rules or our Charter, nor is it in the best interests of the firefighters and Lieutenants who took the exams." Pl. Ex. Vol. IV(E) at 15-16.

As a primary reason not to certify the results, Ude argued that the "results of previous exams in this department and in other

14

departments have not had this kind of a result, which is one of the reasons why these results were so startling when they came down. These results were different." Id. at 19. He argued that

Dr. Hornick's statements to the CSB, standing alone, were "sufficient" reason not to certify, and advised the board "that it is the employer's burden to justify the use of the examination" if a Title VII suit were brought. Id. at 21.

Defendant Walton spoke "on behalf of the Mayor" and also advocated discarding the test results, primarily because the eligibility list, when combined with the Rule of Three and the number of vacancies then available, would "create a situation in which African-Americans are excluded from promotional opportunity on both the Captain and Lieutenant positions and Latinos are excluded from promotional opportunity on the Lieutenant examination." Id. at 30. She questioned whether there were

"other ways of making the selection," that would be l~s~ "discriminatory." Id. at 31-32.

The board split two to twoS on the question of certifying each exam, see id. at 70-73, as a result of which the promotional lists were not certified. Plaintiffs allege that the non-certification vote was due to

SThe fifth member of the CSB, Barbara Tinney Jennings, was recused because her brother, Lt. Gary Tinney, was a candidate for promotion on the Captain's examination. She did not attend the hearings concerning these promotional exams.

15

political pressure, particularly by defendant Rev. Boise Kimber, a vocal African-American minister who, it is acknowledged by all parties, is a political supporter and vote-getter for Mayor DeStefano. Plaintiffs' theory is that the defendants urged the

CSB not to certify the results in the interest of pleasing minority voters and other constituents in New Haven whose priority was increasing racial diversity in the ranks of the Fire Department. Plaintiffs further argue that this pattern of

political manipulation is in keeping with prior actions by the City of New Haven disregarding the Charter-mandated Rule of-Three in promotional decisions in the City's police and departments. re

In support of this argument, plaintiffs proffer

evidence regarding prior litigation in the Connecticut Superior and Appellate Court, the substance and outcome of which is largely admitted by defendants,6 and which resulted in sharp rebukes against the City for violating the civil service rules. See Pl. L.R. 56(a)1 Stmt. 64-90.
~~

64-90; Def. Am. L.R. 56(a)2 Stmt.

~~

Plaintiffs argue that the apparent racial disparity in

the results of the Lieutenant and Captain exams was due to the fact that hiring into, and promotion within, the Fire Department historically has been based on political patronage and promotion

6Defendants challenge the relevance of this evidence; however, as the Court held in its ruling on defendants' motion to strike, such evidence is relevant as background information to the present case. 16

of racial diversity rather than merit; and they argue that the higher-scoring firefighters simply studied harder. In addition,

they argue that the evident disparity was not appreciably worse on the 2003 examinations than other past promotional examinations. Defendants argue that "the decision not to certify [the test] results was mandated by anti-discrimination federal," state and local laws." Def. Mem. in Support of Mot. for Summary Alternatively, they argue that they

Judgment [Doc. # 52] at 4.

had a good faith belief that Title VII mandated non-certification of the examinations, and they cannot be liable under Title VII for attempting to comply with that very statute. Defendants

additionally argue that plaintiffs lack standing to bring their Equal Protection claim, or, if they do have standing, the claim lacks merit because all firefighters were treated the same, regardless of race, as no orie was promoted as contested exams. Plaintiffs counter that a "good faith belief" that certifying the test results would violate Title VII does not constitute a defense, as a matter of law, to an allegation of Title VII or Equal Protection violations against the plaintiffs.
~

result of the

II.

Standard
Summary judgment is appropriate where "there is no genuine

issue as to any material fact and ... the moving party is

17

entitled to a judgment as a matter of law." 56(c).

Fed. R. Civ. P.

An issue of fact is "material" if it "might affect the

outcome of the suit under the governing law," and is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Inc., 477 U.S. 242, 248 (1986). On cross-motions for summary judgment "neither side is barred from asserting that there are issues of fact, sufficient to prevent the entry of judgment, as a matter of law, against it. When faced with cross-motions for summary judgment, a district court is not required to grant judgment as a matter of law for one side or the other." F.2d 1455, 1461 Heublein, Inc. v. United States, 966 (citing Schwabenbauer v. Board of "Rather, the Anderson v. Liberty Lobby,

(2d Cir. 1993)

Educ. of Olean, 667 F.2d 305, 313 (2d Cir. 1981».

court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." 667 F.2d at 314. Schwabembauer,

III. Discussion A. Title VII

Plaintiffs argue that defendants' decision and/or advocacy against certifying the exam results amounted to intentional discrimination against plaintiffs, 17 of whom are white and one of whom is Hispanic, in favor of Hispanic and African-American

18

examinees who were favored due to their race and their alleged political support of Mayor DeStefano, via the Rev. Boise Kimber. Plaintiffs essentially argue that defendants' professed desire to comply with Title VII's anti-disparate-impact requirements was in fact a pretext for intentional discrimination against white candidates. Because plaintiffs allege intentional

discrimination, the familiar McDonnell Douglas three-prong burden-shifting test applies.
1. Burden-Shifting Framework

Under that framework, plaintiffs first must establish a prima facie case of discrimination on account of race. Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). do so, they must prove: (1) membership in a protected class; To (2)

qualification for the position;

(3) an adverse employment action;

and (4) circumstances giving"rise to an inference of discrimination on the basis of membership in the protected class. "See, ~, McDonnell Douglas Corp. v.Green, 411 U.S. 792, 802 (1973), Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). "A plaintiff's burden of establishing a prima facie case is de minimis." Abdu-Brisson v. Delta Airlines, Inc., 239 F.3d Defendants do not dispute the first

456, 467 (2d Cir. 2001).

three prongs of the test, but argue that plaintiffs cannot establish an inference of discrimination because all applicants were treated the same, as nobody was promoted off the examination

19

lists. Proof of a prima facie case shifts the burden to defendant "to produce evidence that the plaintiff was [terminated] for a legitimate, nondiscriminatory reason. This burden is one of

production, not persuasion; it can involve no credibility assessment." Reeves v. Sanderson Plumbing, 530 U.S. 133, 142

(2000). (internal citations, quotations, and alterations omitted). Defendant's burden is satisfied if the proffered evidence "'taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action.'" Abramson, 232 F.3d 83, 88 (2d Cir. 2000) Schnabel v.

(quoting St. Mary's In this case,

Honor Ctr. v. Hicks, 509 U.S. 502, 509 .(1993».

defendants proffer a good faith attempt to comply with Title VII as their legitimate nondiscriminatory reason for refusing to certify the exams. If the employer articulates a neutral reason for the plaintiff's termination, the burden shifts back to the plaintiff to show pretext. That is, the plaintiff "may attempt.to

establish that he was the victim of intentional discrimination by showing that the employer's proffered explanation is unworthy of credence." Reeves, 530 U.S. at 143.

2.

Prima Facie Case

Plaintiffs' evidence- and defendants' own arguments - show that the City's reasons for advocating non-certification were

20

related to the racial distribution of the results.

As the

transcripts show, a number of witnesses at the CSB hearings, including Kimber, mentioned "diversityH as a compelling goal of the promotional process. Ude, Marcano, and Burgett specifically'

urged the CSB not to certify the results because, given the number of vacancies at that time, no African-Americans would be eligible for promotion to either Lieutenant Dr Captain, and no Latinos would be eligible for promotion to Captain. They

believed this to be an undesirable outcome that could subject the City to Title VII litigation by minority firefighters,- and the City's leadership to political consequences. Had the tests not

yielded what defendants perceived as racially disparate results, defendants would not have advocated rejecting the tests, and plaintiffs would have had an opportunity to be promoted .. A jury could infer that the defendants were motivated by a concern that too many whites and not enough minorities would be promoted were the lists to be certified. Given their minimal

prima facie burden, the Court will assume arguendo that plaintiffs have proffered sufficient evidence to satisfy the fourth prong of the prima facie case, given defendants' acknowledgment that racial concerns, i.e. the disparate impact of the test results on minority firefighters, provided the impetus for their actions.

21

3.

Pretext/Discriminatory Intent

Defendants proffer as their legitimate non-discriminatory reason that they desired to comply with the letter and the spirit of Title VII. Plaintiffs deride this
~feigned

desire to 'comply'

with Title VII," Pl. Mem. of Law [Doc. I 81] at 3, arguing that defendants in fact violated that statute, and their actions were a mere pretext for promoting the interests of African-American firefighters and political supporters of the mayor. As plaintiffs point out, this case presents the opposite scenario of the usual challenge to an employment or promotional examination, as plaintiffs attack not the use of allegedly racially discriminatory exam results, but defendants' reason for their refusal to use the results. 35. See Pl. Mem. of Law at 32, 34

Ordinarily, as contemplated by the statute, the "complaining

party" bears the burden of proving a disparate impact, and the "respondent" bears the burden" of "demonstrat[ing] that the challenged practi~e is job related fbr" the positio~ in question and consistent with business necessity," or, alternatively, the "complaining party" may prevail by showing that an alternative employment practice with less disparate impact existed and that the respondent failed to utilize"it. See 42 U.S.C. § 2000e-2(k).

Here, the roles of the parties are in essence reversed, with the defendants, normally reflecting a "respondent" role in the Title VII disparate impact analysis, contending that use of the

22

promotional exams, if they had been certified, would have had an adverse impact, and the plaintiffs, normally the "complaining party," arguing that the test results were suff related to be defensible under the law. iently job-

a.

Existence of Racially Disparate Impact

Although the parties dispute the exact racial breakdown of candidates passing the Captain's test,' plaintiffs do not dispute that the results showed a racially adverse impact on AfricanAmerican candidates for both the Lieutenant and Captain positions, as judged by the EEOC Guidelines. 246; Def. L.R. 56 Stmt.
~

Pl. L.R. 56 Stmt.

~

246.

Thus, it is necessarily

undisputed that, had minority firefighters challenged the results the examinations, the City would have been in a position of defending tests that, under applicable Guidelines, presumptively had a disparate racial impact. Specifically, the EEOC "four-fifths rule" provides that a selection tool that yields "[al selection rate for any race, sex, or ethnic group which is less than· four-fifths (4/5) (or eighty

percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate

'Plaintiffs assert that 32% of African-American examinees passed the Captain's examination, while defendants assert the figure is 37.5%. See Marcano Aff., Def. Ex. 4, ~ 21; Pl. L.R. 56(a) Stmt. ~~ 244-47. 23

will generally not be regarded by Federal enforcement agencies as evidence of adverse impacL" 29 C.F.R. § 1607.4(D). Here, the evidence shows that on the 2003 Lieutenant's exam the pass rate for whites was 60.5%, for African-Americans 31.6% and Hispanics 20%. The four-fifths score would be 48%. In other

words, African-Americans had a pass rate that was about half the pass rate for Caucasians, yielding an adverse impact ratio ("AIR") of 0.59, significantly below the AIR of 0.80 that is presumed to not evidence adverse impact under the'EEOC Guidelines. Stmt. ~ 246. See Pl. L.R. 56(a) Stmt.
~

246; Def. L.R. 56(a)

While- the parties dispute the Captain's exam pass

rate for African-Americans and Hispanics (see supra note 7), the pass rate far Caucasians was 88%, which is more than double that of minorities and thus by either party's statistic an AIR far below the four-fifths guideline is yielded. Plaintiffs argue that these AIRs were not appreciably different from those on past promotional exams, and therefore defendants' stated concern with avoiding adverse impact must be pretextual. The parties agree that the AIRs on the 1999

promotional examinations would have failed the four-fifths rule as well. The AIR for
African~Americans

on the 1999 Lieutenant's See Pl. L.R. The 1999 Captain

exam was 0.58, compared to 0.59 on the 2003 test. 56(a) Stmt.
~

246; Def. L.R. 56(a) Stmt.

~

246.

examination had an AIR of 0.45 on African-American test-takers.

24

See Pl. Ex. Vol. I, 40 (1999 scores). However, it is also undisputed that, because of the Rule of Three, the pass rate is not synonymous with the promotion rate, because only the top three scorers may be considered for each vacant position. also a key factor. Thus, the rank of the minority applicants is In 2003, given the number of vacancies, it

appeared that at most two Hispanics and no African-Americans would have the opportunity to be promoted to Captain, and no
minor~ties

would have the opportunity to be promoted to Although the record lacks specification, witnesses

Lieutenant.

at the CSB hearings testified to the effect that in 1999 more minority candidates had scored toward the top of the lists, and therefore had more promotional opportunities. In any event, in 2003 defendants' concern was with the absence of minority candidates potentially eligible to be promoted, and with the diversity of the Fire Department's management in general. Thus, the fact that the 1999 exams also

had a statistically adverse impact yet were certified, while the 2003 results were not, is insufficient in itself to show that defendants' concerns about complying with pretextual.
Titl~

VII were

b.

Validation Study and Less Discriminatory Alternatives

Plaintiffs additionally argue that defendants' decision was pretextual because they failed to complete a validation study to 25

test whether the 2003 exams could be defended as adequately jobrelated. Going further, plaintiffs argue that defendants were

legally required to conduct such a validation study before rendering a decision on cert cation of the results.

Title VII provides: nNotwithstanding any other provision . it shall not be an unlawful employment practice for . . . an employer to give and to act upon the results of any professionally developed 'ability test
prov~ded,that

such

test~

its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national
~rigin."

42 U.S.C. § 2000e-2(h).

As

plaintiffs concede, this section nprovides that professionally developed and properly validated tests of disparate impact." supplied).
~re

a defense to a claim

Def. Mem. of Law at 32 (emphasis

The statute itself does not require employers to

implement or continue to use any test simply because it is professionally developed, nor does it provide a defense to an employer who "use[s]" a test with a discriminatory impact where other less-discriminatory, equally effective, alternatives are available. 42 U.S.C. § 2000e-21h).

Although plaintiffs argue that EEOC guidelines mandated that defendants conduct a validation study before deciding not to certify the exams, the language of the guidelines does not support such a requirement. A validation .study is a method for

26

determining whether a test is sufficiently related to the position for which the test or other criterion is administered. The EEOC's Uniform Guidelines for Employee Selection Procedures create a presumption that "[t]he use of any selection procedure which has an adverse impact on the hiring, promotion, or other employment or membership opportunities of members of any race, sex, or ethnic group will be considered to be discriminatory and inconsistent with these guidelines, unless the procedure has been validated in accordance with these guidelines." l607.3(A). The Guidelines further state: 29 C.F.R. §

Where two or more selection procedures are available which serve the user's legitimate interest in efficient and trustworthy workmanship, and which are substantially equally valid for a given purpose, the user should use the procedure which has been demonstrated to have the lesser adverse impact. Accordingly, whenever a validity study is called for by these guidelines, the user should include, as a part of the validity study, an investigation of suitable alternative selection procedures and suitable alternative methods of using the selection procedure which have as little adverse impact as possible, to determine the appropriateness of using or validating them in accord with these guidelines. Id. at § l607.3(B) . . Where a selection procedure results in an adverse impact on a race, sex, or ethnic group . . . and that group is a significant factor in the relevant labor market, the user generally should investigate the possible existence of unfairness for that group if it is technically feasible to do so. The greater the severity of the adverse impact on a group, the greater the need to investigate the possible existence of unfairness. 29 C.F.R. § l607.l4(B) (8) (b) The Guidelines provide technical
27

guidance for three types of studies: criterion-related validity studies, content validity studies, and construct validity studies. See generally 29 C.F.R.
§

1607.14.

The Guidelines are written on the assumption that the employer would be defending a certain test and seeking to validate such test in response to a disparate impact challenge from protected group employees. They do not address the

tuation in the present case of an employer rejecting a test without conducting a validation study. Nonetheless, it is

evident from the language of the guidelines that a validation study is contemplated as one method by which an employer can defend its use of a test or other selection method it desires to utilize by demonstration that it is sufficiently job-related -to pass muster under the statute, despite a racially adverse impact. The guidelines do not require or mandate a validity study where an employer decides using a certain selection procedure

that manifests this impact and plaintiff's argument that defendants violated Title VII by refusing to conduct a validity study before rejecting testing results is thus unpersuasive. Plaintiffs argue that the CSB did not have extensive evidence of the existence of other, less-discriminatory, and equally-effective selection measures. Dr. Hornick telephonically

testified that other tests, particularly ones he had developed, generally yield less adverse impact, and mentioned that an

28

~assessment

center approach" might benefit New Haven, without As

specifically explaining what that approach entailed. plaintiffs argue, there was no testimony that an

~assessment

center" approach has a demonstrably less adverse impact, and there is some evidence in the record in this case, including from Dr. Hornick's website, that such an approach may still have some adverse impact. Dr. Hornick acknowledged that he had not had

time to review the exams carefully, and his comments illustrated lack of famil tests. rity with the methods lOS utilized to develop the

He suggested that lack of internal review by members of

the New Haven Fire Department could have yielded questions that were less relevant to the particular department, but offered no explanation of why such a circumstance would have an adverse impact on minority candidates in particular. Dr. Helms from

Boston College testified that the racial disparity 6n the exams at issue were not significantly different from the statistical disparities apparent on standardized tests nationwide. Mr.

Lewis, the arson specialist from the Department of Homeland Security, stated that he believed the tests were fair and focused on material that a Lieutenant or Captain should
kno~.

On the other hand, Dr. Hornick and representatives of the black firefighters' union suggested that the 60/40 weighting system for the oral and written examinations could have produced an adverse impact. The testimony suggested that changing the

29

weighting system yielded increased minority pass rates and diversity in the ranks of Bridgeport fLrefighters and officers. Dr. Helms suggested that because different employees have different ways of doing the same job, the fact that approximately 2/3 of those interviewed for the JAQwere white could have unintentionally introduced a bias into the test instrument. She

and Mr. Lewis also suggested that differences in the availability of formal training and informal mentoring may have created the disparate effect apparent in the results. Plaintiffs purport to counter this argument with affidavits emphasizing how much they studied and sacrificed to perform well on the exams, compared to their observations of the efforts of some other examinees, and point to the availability of study groups and informal mentoring in the department. It appears that the reasons for testing disparities remain elusive. Dr. Helms testified that many theories exist, but

experts on standardized testing nationwide have been unable to satisfactorily fully explain the reasons for the disparity in . performance observed on many tests. Plaintiffs' argument boils down to the assertion that if defendants cannot prove that the disparities on the Lieutenant and Captain exams were due to a particular flaw inherent in those exams, then they should have certified the results because there was no other alternative in place. Notwithstanding the

30

shortcomings in the evidence on existing, effective alternatives, it is not the case that defendants must certify a test where they cannot pinpoint its deficiency explaining its disparate impact under the four-fifths rule simply because they have not yet formulated a better selection method.

c.

Diversity Rationale

The real crux of plaintiffs' argument is that defendants refused to explore alternatives or conduct a validity study because they had already decided that they did not like the inevitable promotional results if the process continued to its expected conclusion,8 and that their udiversityH rationale is prohibited as reverse discrimination under Title VII. In Haydenv. County of Nassau, 180 F.3d 42 (2d Cir. 1999),

the Second Circuit held that race-conscious configuration of an entry-level police department exam did not violate Title VII or the Equal Protection Clause. In that case, the Nassau County
cons~nt

Police Department was operating under several

decrees

prohibiting it from engaging in discrimination in its selection of police officers, and particularly from utilizing examinations with disparate impact on minority applicants. Following

development of a test by the county and Department of Justice

8Plaintiffs present evidence in the form of emails from the Mayor's staff suggesting they desired to convince the CSB not to certify, and further suggesting that if the CSB had certified, the Mayor would have announced his intention to refuse to forward the lists to the Fire Department for promotion. 31

advisors, a validity analysis was conducted to determine which configuration of the test was sufficiently job-related "yet minimized the adverse impact on minority applicants. Of the

twenty-five sections administered to the applicants, the [technical report] recommended that Nassau County use nine sections as the . test." Id. at 47. A class of White and

Latino officers challenged use of the adjusted test under Title VII and the Fourteenth Amendment, inter alia, contending that the deliberate design of the test to reduce adverse impact on
African~American

candidates necessarily discriminated against The Court of Appeals rejected the

them on the basis of race."

plaintiffs' contentions, finding plaintiffs were "mistaken in treating racial motive.as a synonym for a constitutional .violation" and observing that "[e]veryantidiscrimination statute aimed at racial discrimination, and every enforcement measure taken under such a statute, reflect a concern with race. does not make such enactments or actions automatically suspect . . . " 135 F.3d II, 16 (1st Cir.»)
unla~ftil

That

or

Id. at 48-49 (quoting Raso v. Lago, (internal quotation marks omitted).

The Hayden court further held that the construction of the Nassau County test for the purpose of minimizing adverse impact on minorities was not intentional "reverse discrimination" against whites because the same nine test sections were used for all applicants, so it was "simply not analogous to a quota system or

32

33

claim of discrimination to serve as a predicate for a voluntary compromise containing race-conscious remedies." Id. at 1130.

The Second Circuit expanded Kirkland in Bushey v. New York State Civil Service Commission, 733 F. 2d 220 (2d Cir. 1984). There, the civil service commission had administer.ed a promotional examination that had a significant adverse impact, with non-minority applicants passing at almost twice the rate of minority ap.plicants. The defendants race-normed the scores for

each group, increasing the pass rate of the minority group to the equivalent of the
non~minority

group, and effectively making an

additional 8 minority individuals eligible for promotion, without taking any non-minorities off the list. The Court of Appeals
~the

held that the initial results, particularly

score

distributions of minority and nonminority candidates, were sufficient to establish a prima facie showing of adverse impact," id. at 225, and, consistent with Kirkland,
~a

showing of a prima

facie case of employment discrimination through a statistical demonstration of disproportional racial impact constitutes a sufficiently serious claim of discrimination to serve as a predicate for employer-initiated, voluntary race-conscious remedies," id. at 228. In other words, a prima facie case is one

way that a race-conscious remedy is justified, but it is not required: all that is required is
~a

sufficiently serious claim Id. at 228; see

of discrimination" to warrant such a remedy.

34

also id. at 226 n. 7. In this case, the parties agree that the adverse impact ratios for African-American and Hispanic test-takers on both the Lieutenant and Captain exams were too low to pass muster under the EEOC's "four-fifths rule." As Kirkland and Bushey held, a

statistical showing of discrimination, and particularly a pass rate below the "four-fifths rule," is sufficient to make out a prima facie case of discrimination, and therefore sufficient to justify voluntary race-conscious remedies. 9 Here, defendants'

remedy is "race conscious" at most because their actions reflected their intent not to implement a promotional process based on testing results that had an adverse impact on AfricanAmericans and Hispanics. The remedy chosen here was decidedly

less "race conscious" than the remedies in Kirkland and Bushey,

9Plaintiffs denigrate reliance on Kirkland and Bushev on the grounds that the "race-norming" procedures utilized in those cases would be unlawful under the 1991 amendments to the Civil Rights Act. 42 U.S.C. § 2000e-2(1) ("It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the .results of, employment related tests on the basis of race, color, religion, sex, or national origin."). See also Hayden, 180 F.3d at 53 (this provision was "intended to prohibit 'race norming' and other methods of using different cut-offs for different races or altering scores based on race.") (emphasis in original). While plaintiffs are correct that Title VII now prohibits race-norming, none is alleged to have happened here and the 1991 amendments do not affect the reasoning and holding of either case, namely, that a showing of a "sufficiently serious claim of discrimination" is adequate to justify race conscious, remedial measures. 35

because New Haven did not race-norm the scores, they simply decided to start over, to develop some new assessment mechanism with less disparate impact. Thus, while the evidence shows that

race was taken into account in the decision not to certify the test results, the result was race-neutral: all the test results were discarded, no one was promoted, and firefighters of every race will have to participate in another selection process to be considered for promotion. Indeed, there is a total absence of

any evidence of discriminatory animus towards plaintiffs - under the reasoning of Hayden, 180 F.3d at 51, "nothing in our jurisprudence precludes the use of race-neutral means to improve racial and gender representation. [T]he intent to remedy

the disparate impact of the prior exams is not equivalent to an intent to discriminate against non-minority applicants. H1o

lOTaxman v. Bd. of Educ. of T'wp of Piscataway, 91 F.3d 1547, 1558 (3d Cir. 1996) (en banc) , cert. dismissed, 522 U.S. 1010 (1997), relied on by plaintiffs, is readily distinguishable. There, the board of education relied on an affirmative action plan to defend its decision to layoff a white teacher instead of a black teacher with equal seniority, and the Third Circuit held that promoting racial diversity on the faculty, absent a history of past discrimination, was insufficient justification for laying off the white teacher because of her race and violated Title VII. Here, defendants had ample statistical evidence that the tests had an adverse impact on minority candidates and importantly did not opt to select black applicants over white applicants for promotion, but rather decided to select nobody at all. Williams v. Consolo City of Jacksonville, No. 00cv469, 2002 U.S. Dist. LEXIS 27066 (D. Fla. July 5, 2002), can similarly be distinguished as that case did not concern a decision not to certify test results, but rather a post-certification decision not to create the positions which would result in plaintiffs' promotions because plaintiffs were not African-American. 36

Plainti

contend that Hayden is distinguishable by the

fact that the remedy approved there was pursuant to previous consent decrees; they do not explain why they view this distinction as significant. As Bushey held, it would contravene

the remedial purpose of Title VII if an employer were required to await a lawsuit before voluntarily implementing measures with less discriminatory impact. Bushey, 733 F.2d at 227 (rejecting

the plaintiffs' argument that the remedial measures in Kirkland were only permissible as part of a settlement in that case, because that "would create an anomalous situation. would require an employer. ' . . ' to issue a presumptively discriminatory eligibility list, wait to be sued by minority candidates, and only then seek a settlement .... Such an approach It

would serve no purpose other than to impede the process of voluntary compliance with Title VII and cause the proliferation of litigation in all such cases . . . . ff).

Plaintiffs also attempt to distinguish Hayden on the grounds that the challengers to that test, which was constructed from the nine most job-related sections with the least disparate impact, were not injured or disadvantaged, whereas "the instant plaintiffs have been both injured, as they were deprived of promotions, and disadvantaged as they will now be forced to compete once again." Pl. Mem. of Law at 58. Plaintiffs take

this language from Hayden out of context.

In holding that the

37

Hayden plaintiffs did not prove disparate impact on nonminority applicants, the Court of Appeals held that because "appellants continued to score higher than black candidates, on average, the exam did not impair or disadvantage these appellants in favor of African-American applicants. Thus, appellants are unable to set

forth a claim that they endured any disparate impact as a result of the design and administration of the . Hayden, 180 F:3d at 52. examination."

Here, plaintiffs. allege disparate Nor do they have a viable claim

.treatment, not disparate impact.

of disparate impact because the decision to disregard the test results affected all applicants equally, regardless of race - all applicants will have to participate in a new test or selection procedure. 11 Furthermore, plaintiffs were not "deprived of promotions." As the parties agree, under New Haven's civil service
ru~es,

no

applicant is entitled .to promotion unless and until the CSB certifies the results. Even then, application of the Rule of

Three would give top scorers an opportunity for promotion, depending on the number of vacancies, but no guarantee of

llWhile plaintiffs, who describe their considerable efforts to perform well on this infrequently given promotion exam, are understandably disappointed and frustrated that their successful study efforts have come to naught this time, this result is not evidence of being disadvantaged because of their race nor evidence of disparate impact because it does not show injury or disadvantage, only uncertainty as to their performance in the City's next promotion selection process. 38

promotion; it is even conceivable that the applicant with the highest score never would be promoted. See United States v. City (where state law

of Chicago, 869 F.2d 1033, 1038 (7th Cir. 1989)

permitted promotion from among five highest-ranked individuals on eligibility list, challenger had no property right to promotion: ft a roster ranking may create an expectation of promotion, but an officer has no entitlement to a particular roster position or to promotion."); Bridgeport Firebird Society v. City of Bridgeport, 686 F. Supp. 53, 58 (ftAt best, the provisions of the City Charter refighters

[mandating a Rule of One for promotions] provide the ranked on the

eligibility list only with a mere expectation

of promotion, which does not rise to the level of a legally protected interest, especially in the face of 'presumptively discriminatory employment practices.'") 2d at 1126». Thus, while the facts of Hayden were slightly different than those here, the Court finds the holding quite relevant and instructive. Defendants' motivation to avoid making promotions (quoting Kirkland, 711 F.

based on a test with a racially disparate impact, even in a political context,12 does not, as a matter of law, constitute

12Assuming arguendo that political favoritism or motivations may be shown to have been intertwined with the race concern, that does not suffice to establish a Title VII violation. See,~, EEOC v. Flasher Co., Inc., 986 F.2d 1312, 1321 (10th Cir. 1992) (pretext is not shown merely because ft some less seemly reason personal or political favoritism, a grudge, random conduct, an error in the administration of neutral rules actually accounts 39

discriminatory intent, and therefore such evidence is insufficient for plaintiffs to prevail on their Title VII claim. Accordingly, the Court will grant defendants' motion and deny plaintiffs' motion for summary judgment on this claim.

B.

Equal Protection Claim

Plaintiffs argue that defendants violated the Equal Protection Clause either by employing a race-based classification system for promotion or, alternatively, by applying facially neutral promotion criteria in a racially discriminatory manner. Defendants counter that they did not employ any racial classi cations because every applicant was treated the same when

the CSB decided that nobody would be promoted off the lists, and there was no discriminatory intent against whites motivating their non-certification decision. Additionally, defendants argue

that plaintiffs lack standing to bring an Equal Protection claim.

1.

Standing

Defendants acknowledge, as they must, that non-minorities have been found to be in a protected group for purposes of standing under the Equal Protection Clause.
See,~,

Adarand

Constructors, Inc. v. Pena, 515 U.S. 200, 210 (1995) that non-minority-owned business'
~allegation

(holding

that it has lost a

contract in the past because of a [minority

set~aside]

subcontractor compensation clause of course entitles it to seek

for the decision") .

40

damages for the loss of that contract.").

However, defendants

argue that because plaintiffs have not suffered any harm, and specifically because plaintiffs were not "passed over for a benefit that was given to an allegedly less deserving minority," Def. Reply Mem. at 37, they lack standing. Defendants confuse standing with the merits of the case. The constitutional injury plaintiffs claim here is not failure to be promoted, but failure to be treated equally on the basis of race. Plaintiffs have standing to bring such a claim.
775~'

Comer

v. Cisneros, 37 F.3d

791 (2d Cir. 1994)

(plaintiff had

standing to bring equal protection claim where she alleged that the defendant's Section 8 housing subsidy program "rules and regulations, in their administration, violate the Constitution because they erect a barrier that makes it more difficult for economically disadvantaged blacks to obtain a housing benefit than it was for rion-minorities") .

2.

Racial Classification/Discriminatory Intent

Plaintiffs' Equal Protection claim, however, lacks merit, with respect to both the racial classification and disparate treatment arguments. As the Second Circuit held in Hayden when

rejecting plaintiffs' classification argument, if an exam is "administered and scored in an identical fashion for all applicants," there is no racial classification. at 48. Hayden, 180 F.3d

Further, a "desire" "to design an entrance exam which

41

would diminish the adverse impact on black applicants not constitute a 'racial classification.'" Id. Here, all

does

applicants took the same test, and the result was the same for all because the test results were discarded and nobody was promoted. on race. I3 This does not amount to a facial classification based Likewise, where a test is administered and scored in

the same manner for all applicants, plaintiffs cannot make out a claim that the exam was a facially neutral test used in a discriminatory manner. at 50.

Plaintiffs argue that their equal protection rights were violated because they passed the tests and therefore were not similarly-situated to minority applicants who
failed~Plainti

argue that if a black employee "shows up for work and works a full day" and a white employee does,not, and the black employee

13Therefore, plaintiffs' reliance on Berkley v. United '287 F.3d 1076 (Fed. Cir. 2002), is unavailing. In that case, the Air Force employed facially different criteria for selecting women and minority employees for layoff compared to white male employees, and the Federal Circuit held that such a program should be subjected to strict scrutiny (without ruling on the merits). Likewise, in Dallas Fire Fighters Assoc. v City of Dallas, 150 F.3d 438 (5th Cir. 1998), also relied on by plaintiffs, the city followed an affirmative action plan that specifically called for promoting African-American, Hispanic and female firefighters out of rank, ahead of white and Native American male fighters with higher test scores. Here, no classification system was employed, as the test results were discarded for every examinee regardless of race. While defendants clearly were concerned with achieving diversity in the department by enhancing minority promotional opportunity, plaintiffs offer no evidence that defendants employed an actual race-based affirmative action plan that advantaged minority over white applicants for promotion. 42

complains "that he was due his wages,H the employer cannot be heard to defend the complaint on the ground that the employees were treated the same because neither was paid. at 64. Pl. Mem. in Opp.

Plaintiffs' analogy is faulty because performing well on

the exam does not create an entitlement to promotion, whereas working entitles an employee to be paid. Second, a presumptively

. flawed test result may not be a proper measure for determining whether anyone should be promoted. Finally, plaintiffs cannot show that defendants acted out of an intentionally discriminatory purpose. "Discriminatory purpose

'implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group.'H (quoting Personnel Administrator v. Feeney, 442 U.S. Nothing in the record in this case suggests
of~'

256, 279 (1979».

that the City defendants or CSB acted "because

discriminatory

animus toward plaintiffs or other non-minority applicants for promotion. Rather, they acted based on the following concerns:

that the test had a statistically adverse impact on AfricanAmerican and Hispanic examinees; that promoting off of this list would undermine their goal of diversity in the Fire Department and would fail to develop managerial role models for aspiring firefighters; that it would subject the City to public criticism; and that it would likely subject the City to Title VII lawsuits

43

from minority applicants that, for political reasons" the City did not want to defend. "[T]he intent to remedy the disparate

impact of [the tests] is not equivalent to an intent to discriminate against non-minority applicants." at 51. Hayden, 180 F.3d

None of the defendants' expressed motives could suggest

to a reasonable juror that defendants acted,"because of" animus
again~t

non-minority firefighters who took the Lieutenant and

Captain exams. Accordingly, defendants' motion for summary judgment on this claim will be granted and plaintiffs' motion will be denied. 14

C.

Civil Rights Conspiracy

Title 42 U.S.C. § 1985(3) permits recovery of damages if a plaintiff can prove a conspiracy "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." Because the Court has found that

plaintiffs fail to present sufficient evidence that their equal protection rights were violated, their § 1985 conspiracy claim must fail as well. See Mian v. Donaldson, Lufkin & Jenrette (evidence of

Securities Corp., 7 F.3d 1085, 1088 (2d Cir. 1993) "racial or perhaps otherwise class-based, invidious

discriminatory animus" required to prevail on § 1985 claim).

14For this reason the Court need not reach defendants' arguments that they are entitled to qualified immunity on the Equal Protection claim. 44

Accordingly, defendants' motion for summary judgment on this claim will be granted.

D.

First Amendment

Defendants additionally move for summary judgment on plaintiffs' First Amendment freedom-of-association claim, which motion will also be granted. Plaintiffs do not attempt to rebut defendants' contentions that plaintiffs have not identified a free speech activity in which they participated nor claimed that any chilling of speech resulted. Rather, plaintiffs argue that
th~

CSB's non-

certification decision, and the City defendants' advocacy of that decision, resulted from political pressure by defendant Kimber, who threatened the CSB with
~political

ramifications H if they
~a

voted to certify the results.

Plaintiffs argue that

jury

could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the Mayor would incur the wrath of Kimber and other influential leaders of New Haven's AfricanAmerican community." PI. Mem. in Opp. at 73.

While a jury could make such an inference, it would not lead to the conclusion that plaintiffs' First Amendment right to freedom of association was violated as. a matter of law. The

evidence shows that Kimber spoke at the first CSB hearing and strenuously argued against certification, and the City defendants

45

do not dispute that Kimber is a close political ally of the Mayor. However, there is no evidence in the record to suggest

that the non-certification decision was made in retaliation for plaintiffs' refusal to "associate with," or their expression of disagreement with, Kimber. As with the Equal Protection claim,

the fact that defendants desired to avoid the wrath of one group (in this case African-American firefighters and other political supporters of Kimber and DeStefano) does not logically lead to the conclusion that defendants intended to discriminate or retaliate against plaintiffs because they were not members of that group. More importantly, there is no evidence in the record

even to. suggest that defendants· knew plaintiffs' political affiliations, i.e., whether they supported Kimber and/or DeStefano on any issue other than the certification of these particular exam re?ults. In sum, in plaintiffs' terms, the

record shows that defendants acted to head off.the potential adverse impact of the promotion tests on African-American and Hispanic firefighters in order to curry favor with minority voters and political leaders in the City, but it does not contain any evidence of an intent or purpose to target plaintiffs for not supporting that political coalition or its interests. Thus,

defendants' motion for summary judgment on the First Amendment claim must be granted.

46

47

distress.

The Clerk is directed to close this case. IT IS SO ORDERED.

lsi
Janet Bond Arterton United States Dis Judge

Dated at New Haven, Connecticut this 28th day of September, 2006.

48

06-4996-cv Ricci v. DeStefano

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________________________ August Term, 2007 (Argued: December 10, 2007 Decided: June 9, 2008

En Banc Concurrence Decided: June 13, 2008) Docket No. 06-4996-cv ____________________________________

FRANK RICCI, MICHAEL BLATCHLEY, GREG BOIVIN, GARY CARBONE, MICHAEL CHRISTOFORO, RYAN DIVITO, STEVEN DURAND, WILLIAM GAMBARDELLA, BRIAN JOOSS, JAMES KOTTAGE, MATTHEW MARCARELLI, THOMAS J. MICHAELS, SEAN PATTON, CHRISTOPHER PARKER, EDWARD RIORDON, KEVIN ROXBEE, TIMOTHY SCANLON, BENJAMIN VARGAS, JOHN VENDETTO and MARK VENDETTO, Plaintiffs-Appellants, v. JOHN DESTEFANO, KAREN DUBOIS-WALTON, THOMAS UDE JR., TINA BURGETT, BOISE KIMBER, MALCOLM WEBER, ZELMA TIRADO and CITY OF NEW HAVEN, Defendant-Appellees. ____________________________________ CALABRESI, Circuit Judge, concurring in the denial of rehearing en banc: 1 2 3 I join entirely Judge Parker’s opinion concurring in the denial of a rehearing en banc. I also join fully Judge Katzmann’s opinion because, as he points out, going en banc is unnecessary as all that is involved in this case has already been described in the filed opinions. I write today to

-1-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

emphasize one reason that, I believe, makes it particularly inappropriate for us to exercise our purely discretionary power to review this case en banc. The question of whether a municipality incurs liability when, motivated only by a desire to comply with federal anti-discrimination law, it takes race-neutral actions that have racially significant consequences, is undoubtedly an interesting one.1 To reach that question one must, however, first examine whether the municipality’s proffered desire to comply with federal law is in good faith and not a pretext. After that, we would normally ask whether that asserted desire, although in good faith, is not also in part motivated by other, racial, considerations. In this case, the municipality claimed that its actions were grounded solely in the desire to comply with federal law. The plaintiffs alleged instead that this was not the real reason for the city’s actions, and asserted that the city had other less salubrious, and directly racial-political, reasons for what it did. The district court and the panel readily rejected the notion that the city’s stated reason was just a pretext. But neither court went on to consider whether the city was influenced by mixed motives. And that is why Judge Cabranes, in his dissent from the denial of en banc review, suggests that, since the plaintiffs alleged that their race motivated the defendants’ decision, the district court should have undertaken such a mixed motive analysis. He contends, that is, that the courts should have examined the situation as one in which a legitimate motive may have combined with an improper motive to bring about the challenged action. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). He would be precisely right . . . except for the fact that that type of analysis is not

1

For an exceptionally thoughtful and thorough discussion of this area, see Richard A. Primus, Equal Protection and Disparate Impact: Round 3, 117 Harv. L. Rev. 494 (2003). -2-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

available to us in this case. It is not available for the most traditional of legal reasons. The parties did not present a mixed motive argument to the district court or to the panel.2 It is the unavailability of mixed motive analysis that makes this case an especially undesirable one for elective review. The interesting issue the case might present – concerning the obligations of a municipality seeking only to comply with the relevant federal anti-discrimination law – is, in the circumstances before us, clouded by the allegations that something more is going on. Given the plaintiffs’ failure to argue mixed-motive analysis, those allegations cannot be adequately evaluated. But they nevertheless cannot help but affect how we look at the city’s actions. And they may even influence, inappropriately, how we are inclined to rule on the underlying, “interesting” issue. Difficult issues should be decided only when they must be decided, or when they are truly well presented. When they need not be decided – and rehearing en banc is always a matter of choice, not necessity – it is wise to wait until they come up in a manner that helps, rather than hinders, clarity of thought. That is not so in this case. For this reason too, I concur in the denial of rehearing en banc.

It is unavailable, that is, unless we reach out and consider a legal theory that the parties have eschewed. Sometimes – for example, in matters of life and death – such a reaching out may be appropriate. But generally, and specifically in this case, it is not.

2

-3-

06-4996-cv Ricci v. DeStefano

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

DENNIS JACOBS, Chief Judge, dissenting from the denial of
rehearing in banc:

Along with almost half of the members of this Court, I join Judge Cabranes’s dissent, which does the heavy lifting on the procedural merits of in banc review. I write

separately to answer respectfully the concurring opinions of Judge Calabresi and Judge Katzmann. 1 Judge Katzmann and those of my colleagues who signed his opinion “recognize” that this case “presents difficult issues,” but would leave further review and consideration to the Supreme Court, citing a Circuit “tradition” of deference to panel adjudication. In effect, this has become a Circuit

tradition of hearing virtually no cases in banc. The grant or denial of in banc review is governed by Fed. R. App. P. 35, which says that in banc rehearing is disfavored--unless such review is needed for coherence of

1

I have not solicited concurrences for my opinion.

1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

the Court’s decisions or “the proceeding involves a question of exceptional importance.” Fed. R. App. P. 35(a).

Accordingly, the next subdivision of Rule 35 requires the petition to explain why the case falls within one or both of these categories. See Fed. R. App. P. 35(b).

This weighing calls for an exercise of discretion.

Judge Calabresi’s concurring opinion deprecates this standard as a “purely discretionary power” that is “always a matter of choice” (emphasis added). He nevertheless

“join[s] fully” in both Judge Parker’s opinion, which counsels against in banc review as a matter of (plain ordinary) discretion, and Judge Katzmann’s opinion, which decides against in banc review as a matter of tradition. understand Judge Calabresi to be saying, in effect, that when it comes to in banc review, discretion should be leavened by caprice. As applied to this case, that means I

that there might be discretionary grounds for denying in banc review were it not already foreclosed by tradition.2
2

In the alternative, Judge Calabresi contends that we

cannot consider whether the District Court applied the correct legal standard to plaintiffs’ Title VII claim because the “parties did not present [that] argument to the district court or the panel” and we can only consider a

2

1 2 3 4 5 6 7 8 9

This occluded view of our discretion to sit in banc runs counter to the criteria set down for our guidance in Rule 35. No doubt, the proper exercise of discretion

results in the denial of review in the overwhelming number of cases. And the resulting pattern may resemble the

pattern of denial that would result from saying “no” by tradition. But the decision to grant or deny in banc review

is like any other discretionary decision in the sense that discretion should be exercised, not elided or stuck in a

“legal theory that the parties have eschewed” in such circumstances as “matters of life and death.” Judge Calabresi provides no authority for this proposition for the good reason that it is unsound. Writing for a unanimous Supreme Court, Justice Thurgood Marshall explained that “[w]hen an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) ; see also Hankins v. Lyght, 441 F.3d 96, 104

(2d Cir. 2006) (“We are required to interpret federal statutes as they are written . . . and we are not bound by parties’ stipulations of law.”); Neilson v. D'Angelis, 409 F.3d 100, 105 n.2 (2d Cir. 2005) (“The parties’ apparent agreement on the standard of ‘similarity’ for ‘class of one’ cases does not control our judgment, because this court is not bound by stipulations of law.”); United States v. Pabon-Cruz, 391 F.3d 86, 97 (2d Cir. 2004) (“It is clear that we have the authority to resolve this question despite its not having been raised in the District Court proceedings or in the parties’ initial briefs.”). 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

default position.

See United States v. Campo, 140 F.3d 415,

419 (2d Cir. 1998) (holding that “refusal to exercise discretion accorded [the court] by law . . . constitutes an error of law”). The exercise of discretion to hear cases in banc is integral to the judicial process. The advisory notes

emphasize that “an en banc proceeding provides a safeguard against unnecessary intercircuit conflicts.” See Fed. R. In

App. P. 35, Advisory Committee Notes (1998 Amendments). other words, issues of exceptional importance that may

divide the circuits should be subject to in banc review lest a three-judge panel adopt a rule of law that would not command a majority vote of the appeals court as a whole, and thereby provoke an avoidable circuit conflict that the Supreme Court would have to resolve. That is why I respectfully disagree with those of my colleagues who are pleased to defer as a matter of tradition to the ruling of the three-judge panel, and thereby leave further consideration to the Supreme Court. Cf. Landell v.

Sorrell, 406 F.3d 159, 167 (2d Cir 2005) (Sack, J., and

4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

Katzmann, J., concurring) (observing that in banc hearing should be avoided where it “would only forestall resolution of issues destined appropriately for Supreme Court consideration”). I do not think it is enough for us to dilate on exceptionally important issues in a sheaf of concurrences and dissents arguing over the denial of in banc review. If

issues are important enough to warrant Supreme Court review, they are important enough for our full Court to consider and decide on the merits. Of course, if an in banc poll

discloses broad-based agreement with the panel opinion, in banc review may be a spinning of wheels. Under such

circumstances, it may very well be an appropriate exercise of discretion to deny rehearing in banc. But to rely on

tradition to deny rehearing in banc starts to look very much like abuse of discretion.

5

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2004 (Argued: January 5, 2005 Decided: February 16, 2006)

Docket No. 04-0743-cv _____________________________________________ JOHN PAUL HANKINS, Plaintiff-Appellant, v. ERNEST S. LYGHT and NEW YORK ANNUAL CONFERENCE OF THE UNITED METHODIST CHURCH, Defendants-Appellees, STONY BROOK COMMUNITY CHURCH, Defendant. ____________________________________

SOTOMAYOR, Circuit Judge, dissenting: The Religious Freedom and Restoration Act (“RFRA”) is not relevant to this dispute. First, appellees have unambiguously indicated that they do not seek to raise a RFRA defense, and the statute’s protections, even if otherwise applicable, are thus waived. Second, the statute does not apply to disputes between private parties. Third, we should affirm the judgment of the district court without reaching the RFRA issue on the ground that Supreme Court and Second Circuit precedent compels a finding that the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., does not govern disputes between a religious entity and its spiritual leaders.

1

The majority’s opinion thus violates a cardinal principle of judicial restraint by reaching unnecessarily the question of RFRA’s constitutionality. For these reasons, I respectfully dissent. A. Because the parties’ original submissions to this Court mentioned RFRA without providing a detailed analysis of either the Act’s constitutionality or its relevance to this case, we ordered supplemental briefing. The letter-briefs submitted in response to our order make clear that appellees have waived any RFRA defense. In several portions of appellees’ supplemental brief that the majority neglects to mention, appellees state plainly that they do not intend to raise a RFRA defense. Appellees’ supplemental brief explains that “the reference to RFRA in Appellees’ [original] brief was for the limited purpose of providing an example of how critically the question of ‘entanglement’ was viewed” by Congress. In other words, appellees’ aim was not to rely on the statute as a defense against appellant’s claims, but merely to illustrate Congress’s agreement with the proposition that “entanglement of the Government in church affairs [was] prohibited by the First Amendment.” (emphasis added). In fact, appellees explicitly reject the application of RFRA to their claims because they believe that the statute does not apply to suits between private parties, and “the case at bar is a matter relating to a private employment situation and does not involve actions by the government.” The letter-brief concludes: “We do not think this issue [RFRA] is determinative in the matters raised by this case.” While the majority might find appellees’ position unwise or “supris[ing],” Maj. Op. at 12, appellees’ letter-brief clearly waives any RFRA defense.1 In addition to ignoring most of the language in the appellees’ brief relating to waiver, the majority opinion makes two factually erroneous claims regarding the content of the supplemental letter-briefs. First, the majority writes that “appellant argues that the RFRA is 2
1

The majority does not contest that RFRA’s protections are generally waivable. Maj. Op. at 13; see United States v. Amer, 110 F.3d 873, 879 n.1 (2d Cir. 1997); see also In re Watson, 403 F.3d 1, 7 (1st Cir. 2005) (holding that RFRA argument was forfeited); Bethesda Lutheran Homes & Servs., Inc. v. Leean, 122 F.3d 443, 449 (7th Cir. 1997) (holding that RFRA argument was waived); Cochran v. Morris, 73 F.3d 1310, 1317 n.3 (4th Cir. 1996) (holding that RFRA claim was waived). In the majority’s view, however, because appellees’ arguments relate to rights protected under RFRA—namely, First Amendment religious rights—appellees have “[i]n substance” relied on RFRA and thus have not, despite their explicit disclaimer, waived its protections. Maj. Op. at 14. The majority’s refusal to recognize appellees’ waiver in this case is at odds with RFRA’s text, which provides that individuals “may assert” a RFRA defense when challenging a substantial burden on their religious rights, not that they must assert a RFRA defense when religious rights are burdened. 42 U.S.C. § 2000bb-1(c) (emphasis added). Moreover, the majority’s insistence on the viability of a RFRA defense despite appellees’ waiver leads the Court to assess RFRA’s constitutionality unnecessarily. See Cutter v. Wilkinson, 125 S. Ct. 2113, 2118 n.2 (2005) (noting that the Supreme Court has “not had occasion to rule” whether RFRA “remains operative as to the Federal Government”); see also City of Boerne v. Flores, 521 inapplicable only because it is unconstitutional.” Maj. Op. at 12. On the contrary, appellant argues also that RFRA is inapplicable because “[t]here is no substantial burden to the free exercise of religion that could result from a ruling by this court” that appellees violated the ADEA. The majority also contends that “[t]he parties have not briefed the issue of how [RFRA] impacts the merits of this case.” Maj. Op. at 24. Both parties, however, have addressed the question of RFRA’s relevance to this suit. Appellant argues that RFRA is inapplicable because “[t]here is no substantial burden to the free exercise of religion” in this case, and that, in any event, “application of RFRA to federal law is unconstitutional.” Appellees, in turn, argue that RFRA is constitutional but should not affect the outcome of this case. 3

U.S. 507, 532-36 (1997) (invalidating RFRA as applied to state law). By going out of its way to reach this constitutional question, the majority violates one of the “cardinal rules governing the federal courts,” namely, “never to anticipate a question of constitutional law in advance of the necessity of deciding it.” Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501 (1985) (citation and internal quotation marks omitted).2 The majority’s approach is also inconsistent with our case law, which has recognized waiver of statutory religious rights even where a litigant raises claims under the Free Exercise Clause. In Fifth Avenue Presbyterian Church v. City of New York, 293 F.3d 570 (2d Cir. 2002), for example, the plaintiff argued before this Court that its religious rights had been violated under both the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA)—a statute virtually identical to RFRA in all aspects relevant to the issue of waiver in the instant case.3 Although we ruled on the merits of the plaintiff’s Free Exercise claim in Fifth Avenue Presbyterian Church, we refused to reach the RLUIPA issue because the plaintiff had raised it for the first time on appeal. See id. at 576. It is impossible to square our refusal to

The other “cardinal rule[]” cited in Brockett is that federal courts should “never . . . formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” 472 U.S. at 501 (citation and internal quotation marks omitted). Like RFRA, RLUIPA prohibits the government from imposing substantial burdens on religion even where the burden results from a neutral law of general applicability. See 42 U.S.C. § 2000cc. RLUIPA’s remedial provision is virtually identical to RFRA’s. Compare 42 U.S.C. § 2000cc-2(a) (“A person may assert a violation of this Act as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.”), with 42 U.S.C. § 2000bb-1(c) (“A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.”). RLUIPA is simultaneously more broad and more narrow than RFRA, however. RLUIPA is more broad because it still reaches state law. See Cutter v. Wilkinson, 125 S. Ct. 2113 (2005). It is more narrow because it applies only to certain government actions involving land use regulations and correctional facilities. See 42 U.S.C. §§ 2000cc, 2000cc-1. 4
3

2

consider plaintiff’s belated RLUIPA claim in Fifth Avenue Presbyterian Church with our refusal to recognize the defendant’s voluntary waiver of a RFRA defense in the instant case. There is no meaningful difference between RFRA and RLUIPA that could justify such inconsistent results. The most troublesome aspect of the majority’s ruling on waiver, however, is that it fundamentally misconstrues the nature of RFRA and First Amendment rights, and, in doing so, directly contradicts Supreme Court precedent. The majority holds that because appellees invoke the First-Amendment-based “ministerial exception” and allege interference with their rights under the Free Exercise and Establishment Clauses, they have effectively “ask[ed] us to apply the RFRA, but not to mention it.” Maj. Op. at 14. This is incorrect. RFRA and the First Amendment do not provide identical protections, and the invocation of First Amendment rights—whether under the Free Exercise or the Establishment Clause—does not necessarily implicate RFRA. As interpreted by the Supreme Court, for example, the Free Exercise Clause does not normally “inhibit enforcement of otherwise valid laws of general application that incidentally burden religious conduct,” Cutter, 125 S. Ct. at 2118 (citing Employment Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 878-82 (1990)), such as the ADEA. RFRA, in contrast, requires strict scrutiny of such laws where the incidental burden on religion is substantial. See 42 U.S.C. § 2000bb-1. Indeed, the fact that RFRA’s protections sweep more broadly than those of the Free Exercise Clause provided the principal basis for the Supreme Court’s holding in City of Boerne v. Flores that RFRA could not be considered “preventive” or “remedial” legislation under Section Five of the Fourteenth Amendment. 521 U.S. at 532. The Court found RFRA’s protections “so out of proportion to a supposed remedial or preventive object that [the statute] 5

cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” Id. Because RFRA went so far beyond what the First Amendment required, the Boerne Court understood the statute as “attempt[ing] a substantive change in constitutional protections”—a change that Congress was not authorized to make. Id. Although Boerne does not resolve the issue of RFRA’s constitutionality as applied to federal law, as opposed to state law,4 the case does firmly establish that RFRA and the Free Exercise Clause create different standards for the protection of religion and that RFRA’s substantive protections extend far beyond what the Free Exercise Clause requires. Thus, the majority’s suggestion that a claim alleging unconstitutional interference with the free exercise of religion is “[i]n substance” a RFRA claim flies in the face of Boerne.5 See also Kaufman v. McCaughtry, 419 F.3d 678, 681 (7th Cir. 2005) (noting that RFRA provides protections beyond those guaranteed by the First Amendment); Brzonkala v. Va.

I express no view on whether RFRA is constitutional as applied to federal law because it is unnecessary for us to reach this question. Before Boerne, a reasonable argument could have been made that all Free Exercise Clause claims required scrutiny under RFRA. The Tenth Circuit, for example, held in Werner v. McCotter, 49 F.3d 1476 (10th Cir. 1995), that RFRA applied to all Free Exercise claims, even where the parties had not raised a claim or defense under the statute. In a subsequent en banc opinion, however, the Tenth Circuit recognized that Boerne had undermined its earlier conclusion: [I]n Werner, decided prior to City of Boerne, we were laboring under the false understanding that RFRA “legislatively overturned a number of recent Supreme Court [free exercise] decisions” and that it created a new rule of constitutional law. Thus, we concluded that because the language of RFRA made it applicable to “all cases where free exercise of religion is substantially burdened,” its standard ought to control a Free Exercise Clause claim even when not raised. Because the Supreme Court has made clear that the Werner court’s assumptions about RFRA were faulty, its rationale is no longer convincing. United States v. Hardman, 297 F.3d 1116, 1125 n.15 (10th Cir. 2002) (en banc) (alteration in original) (citations omitted). 6
5

4

Polytech. Inst. & State Univ., 169 F.3d 820, 881-82 (4th Cir. 1999) (“The [RFRA] created a right of religious exercise that was more generous than that right protected by the Constitution . . . .”), aff’d sub nom. United States v. Morrison, 529 U.S. 598 (2000). Nor can the majority plausibly argue that appellees’ Establishment Clause defense necessarily implicates RFRA. To satisfy the Establishment Clause: (1) the statute must have “a secular legislative purpose”; (2) the statue’s “principal or primary effect must be one that neither advances nor inhibits religion”; and (3) “the statute must not foster an excessive government entanglement with religion.” Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (citation and internal quotation marks omitted). Thus, like the Free Exercise Clause, the Establishment Clause imposes less stringent requirements on federal statutes than RFRA, which mandates strict scrutiny even of neutral, generally applicable laws that incidentally impose substantial burdens on religion.6 Furthermore, Congress made clear in enacting RFRA that the statute was not intended to have any effect on Establishment Clause claims. See 42 U.S.C. § 2000bb-4 (“Nothing in this chapter shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion.”). The majority’s assertion that appellees have presented a RFRA defense in “all but name” would be more plausible if something in appellees’ briefs indicated that they sought protection beyond that which the Constitution guarantees. Nothing in the briefs, however, supports such a conclusion. Appellees’ briefs rely heavily on the Free Exercise Clause, the Establishment
6

As recently emphasized by a plurality of Justices, the Supreme Court has not applied the Lemon test with much consistency. See Van Orden v. Perry, 125 S. Ct. 2854, 2860-61 (2005) (plurality opinion). I am unaware of any application of the Establishment Clause, however, that would invalidate a neutral, generally applicable law imposing an incidental but substantial burden on religion. 7

Clause, and case law interpreting those provisions. Nowhere do they ask that the Court apply a standard stricter than what the First Amendment requires.7 On the contrary, appellees’ supplemental brief explicitly disclaims any intent to rely on RFRA. In sum, because appellees’ religious freedom argument relies only on the Free Exercise and Establishment Clauses, and because the substance of the protections afforded by these constitutional provisions differs considerably from the protections afforded by RFRA, as interpreted by the Supreme Court, I cannot agree with the majority’s conclusion that appellees have “[i]n substance” relied on RFRA. Maj. Op. at 14. The majority’s refusal to recognize appellees’ clear waiver of any RFRA defense appears to rest, in part, on its disagreement with the reasons underlying appellees’ decision not to pursue such a defense. Specifically, the majority takes issue with appellees’ conclusion that RFRA does not apply to suits between private parties. See Maj. Op. at 10-11. I am unaware of any other case in which this Court, after ordering supplemental briefing to allow a party to discuss a waivable statutory defense, refused to recognize the party’s subsequent waiver of that defense on the ground that the Court disagreed with counsel’s reasons for declining to rely on the statute. Cf. DeLuca v. Lord, 77 F.3d 578, 588 (2d Cir. 1996) (observing that where defense counsel in a
7

The closest appellees come to making a RFRA argument, as opposed to a First Amendment argument, is a statement in their original brief that application of the ADEA would “substantially burden the free exercise rights of the United Methodist Church.” This is the only occasion, however, in which appellees employ RFRA-like language by referring to the alleged intrusion on their rights as a “substantial[] burden,” and it is clear from context that the statement formed part of appellees’ Establishment Clause argument that application of the ADEA would foster an excessive entanglement with religion. The brief did not purport to raise a separate defense under RFRA. In any event, even if appellees’ mention of a “substantial[] burden” in their original brief could be generously construed as an attempt to present a RFRA defense, appellees’ subsequent letter-brief makes clear that this was not their intent and that they do not seek to invoke RFRA’s protections. 8

criminal case has made “a considered decision, after investigation, not to pursue” a particular defense, this Court should be “extremely reluctant to second-guess that decision”). Even if such second-guessing of a party’s decision not to pursue a particular defense is appropriate in certain limited circumstances, the majority’s refusal to acknowledge the clear waiver in this case is improper, given that appellees are adequately represented by counsel and based their waiver on a reasonable interpretation of the law. Indeed, the majority concedes that it is unable to find a single holding that contradicts appellees’ view that RFRA does not apply to suits between private parties. See Maj. Op. at 25 n.4. Quoting the Supreme Court, the majority argues that “[w]hen an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.” Maj. Op. at 14 (quoting Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991)). This certainly is true, but it only begs the question of whether the “issue or claim is properly before the court.” Id. Given appellees’ clear indication that they do not seek to rely on RFRA, the applicability of that statute is not before us. The majority’s disagreement with appellees’ reasoning does not change that fact. B. Even assuming, arguendo, that appellees’ clear disclaimer of any RFRA defense does not suffice to waive such a defense, I would find it improper to remand the case to the district court for consideration of RFRA’s implications because I disagree with the majority’s conclusion regarding RFRA’s applicability. RFRA by its terms does not apply to suits between private parties. 9

Two provisions of the statute implicitly limit its application to disputes in which the government is a party. Section 2000bb-1(c) states that “[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government” (emphasis added). In the majority’s view, we should read this provision as “broadening, rather than narrowing, the rights of a party asserting the RFRA.” Maj. Op. at 11. This interpretation would be questionable even if Section 2000bb-1(c) were the only provision of the statute affecting the question of whether RFRA applies to private suits. When read in conjunction with the rest of the statute, however, it becomes clear that this section reflects Congress’s understanding that RFRA claims and defenses would be raised only against the government. For instance, section 2000bb-1(b) of RFRA provides that where a law imposes a substantial burden on religion, the “government” must “demonstrate[] . . . that application of the burden” is the least restrictive means of furthering a compelling governmental interest (emphasis added). The statute defines “demonstrate” as “meet[ing] the burdens of going forward with the evidence and of persuasion.” 42 U.S.C. § 2000bb-2(3). Where, as here, the government is not a party, it cannot “go[] forward” with any evidence.8 In my view, this provision strongly suggests that Congress did not intend RFRA to There are two plausible ways to reconcile section 2000bb-1(b) of RFRA with the majority opinion in this case. The first would be to require government intervention in every private suit where one of the parties asserts that a law has—even incidentally—imposed a substantial burden on religious freedom. Absent a clear statement that Congress intended such a result, it is not the role of this Court to mandate such widespread and automatic federal intervention in lawsuits between private parties. Moreover, were we to read the statute to require government intervention, this would surely underscore the wisdom in recognizing appellees’ explicit waiver of any RFRA defense. The second would be to force private parties to bear the burden RFRA places on the government. The statute gives no indication that Congress intended private parties to bear such a burden, nor would it be appropriate to require private parties to satisfy the stringent burden RFRA places on the government. 10
8

apply in suits between private parties.9 I recognize that according to RFRA’s “applicability” section, the statute applies “to all Federal law.” 42 U.S.C. § 2000bb-3. This provision, however, is not inconsistent with a finding that the statute does not apply to suits between private parties. Read in conjunction with the rest of the statute, the provision simply requires courts to apply RFRA “to all Federal law” in any lawsuit to which the government is a party. The majority objects that this interpretation makes RFRA’s protections improperly dependent on whether a private party, as opposed to the EEOC, brings suit under the ADEA. “[T]he substance of the ADEA’s prohibitions,” the majority argues, “cannot change depending on whether it is enforced by the EEOC or an aggrieved private party.” Maj. Op. at 11. The majority does not explain, however, why this is so. If RFRA amends all federal statutes as they apply to suits in which the government is a party, then the substance of the ADEA’s prohibitions most certainly can change depending on who enforces it. Although the majority evidently finds this unsatisfactory from a policy perspective, there is no acceptable reading of the statute that would yield the kind of consistency the majority desires. Finally, as noted above, the majority concedes that it is unable to locate a single court holding that directly supports its novel application of RFRA to a suit between private parties.

All of the examples cited in the Senate and House Reports on RFRA involve actual or hypothetical lawsuits in which the government is a party. See S. Rep. No. 103-111 (1993); H.R. Rep. 103-88 (1993). The lack of even a single example of a RFRA claim or defense in a suit between private parties in these Reports tends to confirm what is evident from the plain language of the statute: It was not intended to apply to suits between private parties. 11

9

See Maj. Op. at 25 n.4.10 This is telling, for Congress enacted RFRA over twelve years ago. The plain language of the statute, its legislative history, and its interpretation by courts over the past twelve years demonstrate that RFRA does not apply to suits between private parties. C. Even if appellees had not waived the RFRA defense, and even if RFRA applied to suits between private parties, I would still find it unnecessary to reach the RFRA issue, or to analyze the statute’s constitutionality, because Supreme Court and Second Circuit precedent compel the conclusion that the ADEA does not apply to this dispute. Because the ADEA does not apply, there is no “substantial burden” on religion, and RFRA, even if constitutional, is irrelevant. In analyzing the ADEA’s applicability to this case, we find guidance in the principles articulated by the Supreme Court in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). To determine whether the National Labor Relations Act (NLRA) authorized the National Labor Relations Board to regulate labor relations between a parochial school and its faculty, the Catholic Bishop Court considered two principal questions. See id. at 501. First, it considered whether this application of the NLRA raised First Amendment concerns. The Court concluded that it did, explaining that judicial oversight of labor relations at a parochial school would risk excessive entanglement between secular and religious authorities in violation of the Establishment Clause. Id. at 501-04. Second, the Court examined whether Congress expressed an intention to apply the statute to religious institutions despite these constitutional concerns. Because the Court discerned no such congressional intent, it construed the NLRA in a manner
10

The majority cites dicta from district court opinions in Indiana and Arizona but concedes that those courts “assumed” that RFRA could apply without analyzing the issue in any depth. See Maj. Op. at 25-26 n.4. 12

that avoided the constitutional difficulty, holding that the statute did not apply to labor disputes between parochial schools and their employees.11 Id. at 504-07; see id. at 500 (citing the longstanding principle that acts of Congress “ought not be construed to violate the Constitution if any other possible construction remains available”) (citing Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804)); see also Hsu By & Through Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 854 (2d Cir. 1996) (noting this Court’s “consistent . . . practice of avoiding constitutional questions where possible”). Distinguishing Catholic Bishop, we concluded in DeMarco v. Holy Cross High Sch., 4 F.3d 166 (2d Cir. 1993), that the ADEA, unlike the NRLA, generally applies to religious institutions. Id. at 172. Specifically, we held that a former lay teacher could bring an ADEA action against a parochial school even though the teacher performed some religious duties. Id. at 168-72. In so holding, we observed that the ADEA, unlike the NRLA, does not pose the risk of “extensive or continuous administrative or judicial intrusion into the functions of religious institutions.” Id. at 170. Instead, the ADEA involves “‘routine regulatory interaction’” and requires “‘no inquiries into religious doctrine, no delegation of state power to a religious body, and no detailed monitoring [or] close administrative contact between secular and religious bodies.’” Id. at 170 (quoting Hernandez v. Comm’r, 490 U.S. 680, 696-97 (1989) (internal quotation marks omitted)); see also id. (“In age discrimination cases, the EEOC’s authority extends only to the investigation and attempted conciliation or resolution of individual or group complaints; it is limited in time and scope.” (citation and internal quotation marks omitted)).
11

The Court reached this conclusion even though the NLRA did not expressly include religious institutions in its list of eight types of employers exempted from the act. See Catholic Bishop, 440 U.S. at 511 (Brennan, J., dissenting) (citing 29 U.S.C. § 152(2)). 13

These factors distinguished the ADEA from the NLRA.12 As a general rule, federal courts may decide civil disputes, including employment discrimination disputes, between a religious institution and its employees without violating the First Amendment. See Merkos L’Inyonei Chinuch, Inc. v. Otsar Sifrei Lubavitch, Inc., 312 F.3d 94, 99-100 (2d Cir. 2002) (citing Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 431 (2d Cir. 1999); Gargano v. Diocese of Rockville Ctr., 80 F.3d 87, 90 (2d Cir. 1996); DeMarco, 4 F.3d at 172; cf. Employment Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 879 (1990) (“[T]he right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his [or her] religion prescribes (or proscribes).” (internal quotation marks omitted)). The instant case, however, presents the more difficult question of whether this general rule applies in the narrow context of a forced-retirement dispute between a religious body and a member of its clergy. As we noted in DeMarco, the relationship between a religious institution and certain of its employees may be “so pervasively religious that it is impossible to engage in an agediscrimination inquiry without serious risk of offending the Establishment Clause.” Id. at 172. This risk is particularly serious in employment disputes between religious institutions and their spiritual leaders where the enforcement of statutes like the ADEA might threaten the “power of religious bodies to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Serbian E. Orthodox Diocese for the U.S. &
12

As discussed below, DeMarco also found the ADEA distinguishable from the NLRA because Congress clearly intended the ADEA to apply to religious institutions. See 4 F.3d at 172. 14

Can. v. Milivojevich, 426 U.S. 696, 722 (1976) (internal quotation marks and alteration omitted). “A church’s selection of its own clergy” is a “core matter of ecclesiastical self-governance” at the “heart” of the church’s religious mission. Bollard v. Cal. Province of the Soc’y of Jesus, 196 F.3d 940, 946 (9th Cir. 1999). Federal court entanglement in matters as fundamental as a religious institution’s selection or dismissal of its spiritual leaders risks an unconstitutional “trespass[] on the most spiritually intimate grounds of a religious community’s existence.” EEOC v. Roman Catholic Diocese of Raleigh, N.C., 213 F.3d 795, 800 (4th Cir. 2000). In light of these serious constitutional concerns, we must ask whether Congress intended to apply the ADEA to religious institutions in their selection of spiritual leaders. See Catholic Bishop, 440 U.S. at 504. We concluded in DeMarco that Congress “implicitly expressed an intention to apply the ADEA to religious institutions.” 4 F.3d at 172. We based this conclusion, in part, on the ADEA’s similarity to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. “Given that Congress intended to apply Title VII to religious institutions, and that Congress modelled the ADEA’s coverage upon that of Title VII,” we were “convinced that [Congress] also intended to apply the ADEA to such institutions.” Id. at 173. DeMarco, however, involved an employment dispute between a religious institution and a math teacher who, despite having some religious duties, served primarily non-religious functions in a parochial school. Here, in contrast, the dispute is between a minister with primarily religious duties and a church that no longer wishes him to serve as pastor of a congregation. That Congress intended the ADEA and Title VII to apply under the circumstances described in DeMarco does not indicate an intention that those statutes should apply in all circumstances. Nothing in the text, structure, or legislative history of the ADEA indicates an intention to extend 15

its provisions to a religious body’s selection or dismissal of its ministers. See Catholic Bishop, 440 U.S. at 504; DeMarco, 4 F.3d at 169, 172-73. Accordingly, I believe that the ADEA does not apply to the case at bar.13 Because the ADEA does not apply, there is no substantial burden on religion that could trigger RFRA. The majority suggests that reliance on Catholic Bishop (and DeMarco) is unwarranted, because “RFRA [is] the full expression of Congress’s intent with regard to the religion-related issues before us and displace[s] earlier judge-made doctrines that might have been used to ameliorate the ADEA’s impact on religious organizations and activities.” Maj. Op. at 8. Even if RFRA applied to private suits and had not been waived in this case, I would disagree with the majority’s suggestion that the statute completely displaces the Catholic Bishop analysis. Although the Catholic Bishop rule and RFRA serve similar purposes, they require courts to undertake different inquiries. See Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1347 (D.C. Cir.

This conclusion is consistent with the holdings of at least seven of our sister Circuits, which have adopted a limited “ministerial exception” that exempts religious institutions on First Amendment grounds from employment discrimination suits brought by clergy members or other employees serving primarily religious roles. See Roman Catholic Diocese of Raleigh, N.C., 213 F.3d at 800, 805; Gellington v. Christian Methodist Episcopal Church, Inc., 203 F.3d 1299, 1304 (11th Cir. 2000); Bollard, 196 F.3d at 949; Combs v. Central Tex. Annual Conf. of the United Methodist Church, 173 F.3d 343, 351 (5th Cir. 1999); EEOC v. Catholic Univ. of Am., 83 F.3d 455, 463 (D.C. Cir. 1996); Young v. N. Ill. Conf. of United Methodist Church, 21 F.3d 184, 187 (7th Cir. 1994); Scharon v. St. Luke’s Episcopal Presbyterian Hosps., 929 F.2d 360, 363 (8th Cir. 1991). Most circuits have reached the constitutional question directly and have held that the First Amendment bars adjudication of ministerial employment disputes. See, e.g., Gellington, 203 F.3d at 1304; Combs; 173 F.3d at 351; Young, 21 F.3d at 187. Here, in contrast, I would apply Catholic Bishop’s principles of statutory construction so as to avoid making definitive pronouncements on the constitutional question. See 440 U.S. at 507; see also Scharon, 929 F.2d at 361-63 (applying the Catholic Bishop analysis to an employment discrimination action brought by a priest). Despite this difference, my conclusion is substantially the same as that of other Circuits: courts may not adjudicate employment discrimination lawsuits brought by clergy members challenging a religious body’s refusal to select or retain them as spiritual leaders. 16

13

2002) (holding that the court need not address a university’s RFRA argument because the university was entitled to an exemption under Catholic Bishop, and observing that “RFRA presents a separate inquiry from Catholic Bishop”). Catholic Bishop requires courts, where possible, to interpret statutes in ways that would avoid raising serious constitutional concerns. In some cases, no such interpretation will be reasonably available. In those cases, RFRA may provide an independent avenue both for protecting religious rights and for avoiding definitive resolution of constitutional questions. Thus, RFRA should not be read to supplant the Catholic Bishop inquiry, but to supplement it. Indeed, given that RFRA’s express purpose was to enhance protection for religion, see 42 U.S.C. § 2000bb, it makes little sense to read the statute as eliminating the protection afforded by the Catholic Bishop rule. D. I believe that a remand is a wasteful expenditure of judicial resources and an unnecessary and uninvited burden on the parties. The district court is in no better position than we are to decide either the statutory or constitutional questions presented in this case. In my view, the most appropriate disposition of this case would be to affirm the district court’s dismissal of appellant’s claims on the ground that the ADEA does not apply to employment suits brought against religious institutions by their spiritual leaders. Because the majority’s contrary approach disregards a clear and voluntary waiver, conflicts with RFRA’s text and with binding precedent, and unnecessarily resolves a contested constitutional question, I respectfully dissent.14

I take no issue, however, with the analysis of the ADEA’s procedural requirements in section (a) of the majority’s opinion. See Maj. Op. at 5-8. 17

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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2004 (Argued: January 5, 2005 Decided: February 16, 2006)

Docket No. 04-0743-cv JOHN PAUL HANKINS, Plaintiff-Appellant, v. ERNEST S. LYGHT and NEW YORK ANNUAL CONFERENCE OF THE UNITED METHODIST CHURCH, Defendants-Appellees, STONY BROOK COMMUNITY CHURCH, Defendant. B e f o r e: WINTER, SOTOMAYOR, and B.D. PARKER, Circuit Judges.

Appeal from the dismissal of a minister’s age discrimination action against his church in the Eastern District of New York (Denis R. Hurley, Judge). We hold that the Religious Freedom

Restoration Act of 1993 is constitutional as applied to federal law. It therefore amended the ADEA and governs the merits of We vacate and remand for reconsideration in light

this action. of the RFRA.

Judge Sotomayor dissents in a separate opinion.

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BRUCE MILES SULLIVAN, Stony Brook, New York, for Plaintiff-Appellant. FREDERICK K. BREWINGTON, Hempstead, New York, for Defendants-Appellees. WINTER, Circuit Judge: John Paul Hankins appeals from the dismissal by Judge Hurley of his age discrimination action. Hankins was a clergy member

ordained by appellee New York Annual Conference of the United Methodist Church ("NYAC"). attained the age of 70. He was forced into retirement when he

Appellee Ernest S. Lyght is the Bishop

of the NYAC and has the power to appoint clergy to NYAC churches. Hankins claims that the NYAC’s mandatory retirement policy violates the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. We hold that the Religious

Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. § 2000bb et seq., is constitutional as applied to federal law; it therefore amended the ADEA and governs the merits of the principal issue raised by the parties. We vacate the dismissal of Hankins’

complaint and remand for a determination of whether application of the ADEA to Hankins’ relationship with the NYAC and Lyght violates the RFRA. BACKGROUND We assume the existence of the facts as alleged in the complaint. Hankins was ordained by the NYAC and served as a He turned 70 on

clergy member from 1962 to July 1, 2003.

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November 5, 2002, and was forced into

retirement on July 1,

2003, as prescribed by paragraph 356 of the Methodist Book of Discipline. According to a statement by the Methodist Church's Council of Bishops, the Book of Discipline is neither "sacrosanct" nor "infallible, but . . . is the most current statement of how United Methodists agree to live together" as "an inclusive society without regard to ethnic origin, economic condition, gender, age, or the disabilities of its constituents." The

complaint alleges that the Book of Discipline contains "subject matters that are sectarian and ecclesiastical in nature[,] being related to the nature of the Deity and the Trinity, the scriptures, the tenets of the United Methodist Church, the theological grounding of biblical faith, the teachings of John Wesley and/or other religious principles or values (. . . ‘religious considerations')," as well as "subject matters that are secular, temporal and/or civil in nature[,] not being determined, controlled or influenced by any religious considerations." The complaint further claims that paragraph

356, under which Hankins was mandatorily retired, "is a secular, temporal, and/or civil subject matter, not being determined, controlled or influenced by any religious considerations." Bishop Lyght told Hankins and other members of the Church that he had the authority to reappoint Hankins as pastor, despite

3

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the fact that Hankins is over 70 years old.

However, Bishop

Lyght also stated that it is his "personal policy (as distinguished from the policy set forth in the Book of Discipline) never to reappoint members of the clergy who have attained age seventy to the church out of which they were retired." Appellant brought an age discrimination charge to the Equal Employment Opportunity Commission ("EEOC") on March 19, 2003. The EEOC issued a Notice of Right to Sue on April 11, 2003. Appellant also filed a Verified Complaint with the New York Division of Human Rights on June 11, 2003; that Complaint was dismissed for administrative convenience on July 1, 2003. Appellant filed the instant suit on July 3, 2003. Appellant’s complaint claimed that the mandatory retirement policy violated the ADEA, the New York Human Rights Law, and the NYAC's covenant with him (Counts I, II, and IV); and that Bishop Lyght's personal policy against reappointing retired clergy violated the ADEA and Human Rights Law (Count III).1 Appellees moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted, under Rules 12(b)(1) and (6) respectively. district court, ruling orally, declined to decide the 12(b)(1) motion, which was apparently based on deficiencies in the EEOC’s review of appellant’s charge. Instead, the court granted the The

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12(b)(6) motion based on a “ministerial exception” to the ADEA -a rule adopted by several circuits that civil rights laws cannot govern church employment relationships with ministers without violating the free exercise clause because they substantially burden religious freedom. See, e.g., McClure v. Salvation Army, 460 F.2d 553, 560 (5th Cir. 1972) (applying Title VII to churchminister relationship "would result in an encroachment by the State into an area of religious freedom into which it is forbidden to enter" by the Free Exercise Clause). dismissed the complaint under Rule 12(b)(6). DISCUSSION Appellant argues that the ministerial exception should not insulate a church’s non-religious regulations that discriminate against ministers on the basis of age. this action is barred by EEOC errors. Appellees assert that Alternatively, they The court

continue to rely upon "the ministerial exception," the Free Exercise clause, and the Establishment Clause, claiming that applying the ADEA to the church-minister relationship would substantially burden religion. In that regard, appellees note We address

that "for this very reason" Congress passed the RFRA.

the alleged EEOC errors before turning to the main issue: whether the RFRA amended the ADEA. a) Completion of Administrative Proceedings Appellees argue that the district court lacked jurisdiction

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because the EEOC issued appellant’s Notice of Right to Sue fewer than sixty days after his charge was filed.2 We disagree.

Appellant satisfied all statutory requirements for bringing this private action under the ADEA. He filed an age

discrimination charge with the EEOC on March 19, 2003; the EEOC issued a Notice of Right to Sue on April 11, 2003. Under 29

U.S.C. § 626(d) and (e), appellant had to file the instant suit more than sixty days after filing his EEOC complaint and within ninety days of his receipt of the EEOC Notice. Hankins complied

with both requirements by filing suit on July 3, 2003 -- more than 60 days after March 19, and 83 days after April 11. Furthermore, contrary to appellees’ arguments, the instant suit was not barred by appellant’s June 11, 2003 filing of a Complaint with the New York Division of Human Rights because the Division dismissed the complaint on July 1, 2003, before appellant filed this suit. See 29 U.S.C. § 633(b) (ADEA prohibits bringing suit

before 60 days after commencement of state proceedings, "unless such proceedings have been earlier terminated"). Appellees rely for their jurisdictional contention on two Title VII cases: Martini v. Fed. Nat’l Mortgage Ass’n, 178 F.3d

1336 (D.C. Cir. 1999), and Rodriguez v. Connection Tech. Inc., 65 F. Supp. 2d 107 (E.D.N.Y. 1999). These cases inferred from the

language of 42 U.S.C. § 2000e-5(f)(1)3 that the EEOC lacks authority to issue right-to-sue notices based on Title VII claims

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before 180 days after a charge is filed.

E.g., Martini, 178 F.3d

at 1347 (“[T]he EEOC’s power to authorize private suits within 180 days undermines its express statutory duty to investigate every charge filed, as well as Congress’s unambiguous policy of encouraging informal resolution of charges up to the 180th day.”). We have not decided whether the regulation allowing

early issuance of right-to-sue notices, 29 C.F.R. § 1601.28(a)(2), is a permissible construction of Section 2000e-5. We express no opinion on the issue here, although we note that two circuits and several district courts within this circuit have disagreed with Martini and Rodriguez. Sims v. Trus Joist

MacMillan, 22 F.3d 1059, 1061-63 (11th Cir. 1994) (early issuance of right-to-sue letter by EEOC does not bar a Title VII suit); Saulsbury v. Wismer & Becker, Inc., 644 F.2d 1251, 1257 (9th Cir. 1980) (same); Commodari v. Long Island Univ., 89 F. Supp. 2d 353, 381-83 (E.D.N.Y. 2000) (same); Palumbo v. Lufthansa German Airlines, 1999 U.S. Dist. LEXIS 11412, No. 98 Civ. 5005, 1999 WL 540446, at *2 (S.D.N.Y. July 26, 1999) (same); Figueira v. Black Entm’t Television, Inc., 944 F. Supp. 299, 303-08 (S.D.N.Y. 1996) (same). The key fact in the present matter is that the language of 29 U.S.C. § 626, which authorizes suits under the ADEA, differs significantly from that of Section 2000e-5(f)(1). Section 626

provides that “[n]o civil action may be commenced by an

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individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the [EEOC]." Id. § 626(d). Appellant complied with this provision by waiting

sixty days after filing his EEOC charge before bringing the instant suit. The fact that the EEOC terminated its proceedings

prior to the expiration of sixty days was irrelevant to the district court’s authority to entertain the case. This is

especially so because Section 626, unlike Section 2000e-5, explicitly contemplates early termination of EEOC investigations. Id. § 626(e) (“If a charge filed with the [EEOC] under this chapter is dismissed or the proceedings of the [EEOC] are otherwise terminated by the [EEOC], the [EEOC] shall notify the person aggrieved.”). district court. b) The Religious Freedom Restoration Act In our view, the dispositive issue in this matter concerns the application of the RFRA. provisions state: (a) In general. Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b). (b) Exception. Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person-(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. The statute's substantive This suit was therefore properly before the

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42 U.S.C. § 2000bb-1. The test set out in Subsection (b)(1) and (2) “applies to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.” Id. § 2000bb-3(a). The RFRA's remedial

provision states that “[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” 2000bb-1(c). Id. §

"[G]overnment" is in turn defined to include any

"branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States." Id. § 2000bb-2(1). The present action is a suit against a church and an official of that church. The suit claims that the defendants

violated a federal statute, the ADEA, and seeks judicial remedies; appellees claim that application of the statute would substantially burden the exercise of their religion. If the

RFRA's test for evaluating burdens on religious activity -Subsections (b)(1) and (2) -- is not met, appellees can arguably assert a violation of the RFRA as a complete defense. The district court dismissed the case based on a "ministerial exception" that some courts had read into various anti-discrimination laws -- an unresolved issue in this circuit -

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- including the ADEA.

Whatever the merits of that exception as

statutory interpretation or policy, it has no basis in statutory text, whereas the RFRA, if applicable, is explicit legislation that could not be more on point. Given the absence of other

relevant statutory language, the RFRA must be deemed the full expression of Congress’s intent with regard to the religionrelated issues before us and displace earlier judge-made doctrines that might have been used to ameliorate the ADEA’s impact on religious organizations and activities. City of

Milwaukee v. Illinois, 451 U.S. 304, 314 (1981) ("Federal common law is a necessary expedient, and when Congress addresses a question previously governed by a decision rested on federal common law the need for such an unusual exercise of lawmaking by federal courts disappears.") (internal quotation marks and citations omitted). There is little caselaw addressing the issue whether the RFRA applies to an action by a private party seeking relief under a federal statute against another private party who claims that the federal statute substantially burdens his or her exercise of religion.4 The RFRA's language surely seems broad enough to The statutory language states that it

encompass such a case.

"applies to all federal law, and the implementation of that law," 42 U.S.C. § 2000bb-3(a), and that a defendant arguing that such a law substantially burdens the exercise of religion "may assert [a

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violation of the RFRA] as a . . . defense in a judicial proceeding." Id. § 2000bb-1(c). This language easily covers

the present action.

The only conceivably narrowing language is "and obtain appropriate relief

the phrase immediately following: against a government." Id.

However, this language would seem

most reasonably read as broadening, rather than narrowing, the rights of a party asserting the RFRA. The narrowing

interpretation -- permitting the assertion of the RFRA as a defense only when relief is also sought against a governmental party -- involves a convoluted drawing of a hardly inevitable negative implication. If such a limitation was intended, The

Congress chose a most awkward way of inserting it.

legislative history is neither directly helpful nor harmful to that view. We need not, however, decide whether the RFRA applies to a federal law enforceable only in private actions between private parties. The ADEA is enforceable by the EEOC as well as private

plaintiffs, and the substance of the ADEA's prohibitions cannot change depending on whether it is enforced by the EEOC or an aggrieved private party. See United States v. Brown, 79 F.3d

1550, 1559 n.16 (11th Cir. 1996) ("The meaning of the statutory words 'scheme to defraud' does not change depending on whether the case is Civil RICO or criminal."). An action brought by an

agency such as the EEOC is clearly one in which the RFRA may be

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asserted as a defense, and no policy of either the RFRA or the ADEA should tempt a court to render a different decision on the merits in a case such as the present one. Indeed, appellant

argues that the RFRA is inapplicable only because it is unconstitutional. 1. Waiver

First, however, we must address whether appellees have waived or forfeited reliance upon the RFRA. In their original

brief, as noted, appellees argued that the ADEA was an unlawful burden on their religious activities and that Congress has enacted the RFRA, a statute that applied to all federal laws, "for this very reason." Appellant’s Brief at 28. Believing that

this reference to a seemingly dispositive but otherwise unmentioned statute needed some elaboration and unconvinced that appellant's claim that the Supreme Court had held the RFRA unconstitutional in all circumstances was correct, we asked for further briefing. Somewhat to our surprise, appellees’ post-argument letterbrief states that, although all pertinent portions of the RFRA are constitutional, the statute is inapplicable because “the case at bar is a matter relating to a private employment situation and does not involve actions by the government.” Nevertheless,

appellees continue to rely upon the "ministerial exception" and the Free Exercise and Establishment Clauses.

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In our view, as discussed above, the RFRA’s provisions are directly on point, and allow parties who, like appellees, claim that a federal statute, like the ADEA, substantially burdens the exercise of their religion to assert the RFRA as a defense to any action asserting a claim based on the ADEA. The issue then is

whether their post-argument letter-brief constitutes a waiver or forfeiture of that defense. A party may certainly waive or forfeit a RFRA defense by failing to argue that a law or action substantially burdens the party’s religion. For example, in United States v. Amer,

appellant had forfeited the defense that his child kidnaping conviction violated the RFRA, because “[a]t no point during the pretrial, trial, or sentencing proceedings did [appellant] argue that his act of removing and retaining the children was religiously mandated or inspired.” Cir. 1997). 110 F.3d 873, 879 & n.1 (2d

Where a party fails to assert a substantial burden

on religious exercise before a district court, therefore, the party may not raise that issue -- an inherently fact-based one -for the first time on appeal. However, appellees argued in the district court and here -and continue to argue -- that application of the ADEA to the relationship between their church and appellant substantially burdens their religion. They continue to assert the "ministerial

exception," which in their view tracks the Free Exercise clause

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of the Constitution and the Establishment Clause as well. Appellees’ Brief at 4-15; see Elvig v. Calvin Presbyterian Church, 397 F.3d 790, 790 (9th Cir. 2005) ("[T]he 'ministerial exception' to Title VII is carved out from the statute based on the commands of the Free Exercise and Establishment Clauses of the First Amendment."). In substance, therefore, they ask us to

apply the RFRA, but not to mention it. Appellees' position that the RFRA does not apply to suits between private parties is not determinative of our analysis, given that they have vigorously pursued and preserved the substance of the issue. We are required to interpret federal

statutes as they are written -- in this case the ADEA as amended by the RFRA -- and we are not bound by parties’ stipulations of law. Becker v. Poling Transp. Corp., 356 F.3d 381, 390 (2d Cir.

2004); see also Kamen v. Kemper Fin. Servs. Inc., 500 U.S. 90, 99 ("When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law."). We are not in

the business of deciding cases according to hypothetical legal schemes, particularly when the hypothetical scheme posed by a party tracks the actual law in all but name. 2. Constitutionality

In addressing the constitutional issues raised by appellant

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with regard to the RFRA, we first describe the statutory background. The RFRA was passed in response to Employment Div. v. Smith, 494 U.S. 872 (1990). The Supreme Court held there that "the

right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." omitted). Id. at 879 (internal quotation marks and citation

Smith limited the applicability of the "compelling

state interest" test the Court had previously applied to neutral laws before allowing them to place a substantial burden on religious practice. Id. at 883-84 (limiting test to mean that

"where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship' without compelling reason").5 Congress enacted the RFRA pursuant to two sources of authority, Section 5 of the Fourteenth Amendment and the Necessary and Proper Clause of the Constitution. See H.R. Rep.

No. 103-88, at 17 (1993) (“Finally, the Committee believes that Congress has the constitutional authority to enact [the RFRA]. Pursuant to Section 5 of the Fourteenth Amendment and the Necessary and Proper Clause of the Constitution, the legislative branch has been given the authority to provide statutory

15

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protection for a constitutional value . . . .”).

The Supreme

Court held that the RFRA could not be enacted under Section 5 of the Fourteenth Amendment, which empowers Congress to enforce the Amendment's other provisions against the states. City of Boerne

v. Flores, 521 U.S. 507, 519 (1997) (“Congress does not enforce a constitutional right by changing what that right is.”). is therefore unconstitutional as applied to state law. However, the RFRA applies by its terms not only to the states but also to “all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.” 42 U.S.C. § 2000bb-3(a); see The RFRA

also id. § 2000bb-2(1) (“‘[G]overnment’ includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.”). Boerne could not have addressed whether the RFRA was validly enacted under the Necessary and Proper Clause because the only issue before the Court was the denial of a building permit to a church by local zoning authorities. 521 U.S. at 512. Since

Boerne, “[e]very appellate court that has squarely addressed the question has held that the RFRA governs the activities of federal officers and agencies." O'Bryan v. Bureau of Prisons, 349 F.3d

399, 401 (7th Cir. 2003); Guam v. Guerrero, 290 F.3d 1210, 1221 (9th Cir. 2002); Henderson v. Kennedy, 265 F.3d 1072, 1073 (D.C. Cir. 2001); Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir.

16

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2001); Christians v. Crystal Evangelical Free Church (In re Young), 141 F.3d 854, 856 (8th Cir. 1998); see also Madison v. Riter, 355 F.3d 310, 315 (4th Cir. 2003). We join the other circuits in holding that the RFRA is constitutional as applied to federal law under the Necessary and Proper Clause of the Constitution. As presented in this case,

the issue is simply whether Congress had the authority to amend the ADEA to include the RFRA standard. See In re Young, 141 F.3d

at 861 (the RFRA “has effectively amended the Bankruptcy Code, and has engrafted the additional clause to § 548(a)(2)(A) that a recovery that places a substantial burden on a debtor's exercise of religion will not be allowed unless it is the least restrictive means to satisfy a compelling governmental interest.”). Congress enacted the ADEA pursuant to its Commerce Clause powers under Article I. Kimel v. Fla. Bd. of Regents, 528 U.S.

62, 78 (2000) (“the ADEA constitutes a valid exercise of Congress' power ‘[t]o regulate Commerce . . . among the several States’”) (citing EEOC v. Wyoming, 460 U.S. 226, 243 (1983)) (alterations in original); McGinty v. New York, 251 F.3d 84, 91 (2d Cir. 2001); see U.S. Const., Art. I, § 8, cl. 3 (“The Congress shall have power . . . [t]o regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes."). Furthermore, the Necessary and Proper Clause

17

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

authorizes Congress “[t]o make all Laws which shall be necessary and Proper for carrying into Execution” its Article I powers, including its Commerce Clause powers. cl. 18. U.S. Const. art. I, § 8,

The Clause allows all legitimate legislation “plainly M’Culloch v. Maryland, 17 U.S.

adapted” to a constitutional end.

(4 Wheat.) 316, 421 (1819) (“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”). Finally, the "plainly

adapted" standard requires only “that the effectuating legislation bear a rational relationship to a permissible constitutional end.” 84 (2d Cir. 1998). It is obvious to us that because Congress had the power to enact the ADEA, it also had the power to amend that statute by passing the RFRA. The RFRA was authorized by the Necessary and United States v. Wang Kun Lue, 134 F.3d 79,

Proper Clause because its purpose -- to protect First Amendment rights as interpreted by the Congress, see S. Rep. No. 103-111, at 14 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1903 -- was permissible. “When Congress acts within its sphere of power and

responsibilities, it has not just the right but the duty to make its own informed judgment on the meaning and force of the Constitution.” Boerne, 521 U.S. at 535.

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The RFRA was also proper as applied to the ADEA in particular because, as noted, Congress had authority to enact that statute under the Commerce Clause. See INS v. Chadha, 462

U.S. 919, 941 (1983) ("’Congress has plenary authority in all cases in which it has substantive legislative jurisdiction, so long as the exercise of that authority does not offend some other constitutional restriction.’”) (quoting Buckley v. Valeo, 424 U.S. 1, 132 (1976)) (internal citation omitted); Guerrero, 290 F.3d at 1220 (“Congress derives its ability to protect the free exercise of religion from its plenary authority found in Article I of the Constitution; it can carve out a religious exemption from otherwise neutral, generally applicable laws based on its power to enact the underlying statute in the first place.”); In re Young, 141 F.3d at 861 (“[W]e can conceive of no argument to support the contention[] that Congress is incapable of amending the legislation that it has passed.”).6 In his post-argument letter-brief, appellant argues that application of the RFRA to federal law violates separation of powers principles and the Establishment Clause of the Constitution.7 We address these issues in turn.

Appellant's separation of powers challenge is that because the RFRA mandates evaluation of laws and actions that burden religion by a standard different from that prescribed by the Supreme Court, it is a Congressional usurpation of judicial

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power.

However, we agree with the Eighth Circuit that “[t]he key

to the separation of powers issue in this case is . . . not whether Congress disagreed with the Supreme Court’s constitutional analysis, but whether Congress acted beyond the scope of its constitutional authority in applying RFRA to federal law.” In re Young, 141 F.3d at 860; United States v. Marengo

County Comm'n, 731 F.2d 1546, 1562 (11th Cir. 1984) (“[C]ongressional disapproval of a Supreme Court decision does not impair the power of Congress to legislate a different result, as long as Congress had that power in the first place.”). Indeed, “Congress has often provided statutory protection of individual liberties that exceed the Supreme Court’s interpretation of constitutional protection.” In re Young, 141

F.3d at 860 (collecting examples); Guerrero, 290 F.3d at 1221 (“Certainly Congress can provide more individual liberties in the federal realm than the Constitution requires without violating vital separation of powers principles.”). That the RFRA provides

more protection from federal actors and statutes than may be required by the First Amendment hardly undermines separation of powers principles. With respect to appellant's Establishment Clause argument, the Clause provides that "Congress shall make no law respecting an establishment of religion." U.S. Const. amend. I. The

Supreme Court has established a three-prong test to determine

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whether a statute violates the Clause. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (quotations and citations omitted). Applying this test, the Court has held that

exempting religious organizations from compliance with neutral laws does not violate the Constitution. E.g., Corp. of the

Presiding Bishop of the Church of Jesus Christ of Later-Day Saints v. Amos, 483 U.S. 327, 338-40 (1987) (exemption from federal antidiscrimination laws for religious organizations does not violate Establishment Clause); see also Gillette v. United States, 401 U.S. 437, 460 (1971) (exemption from military draft for religious conscientious objectors does not violate Establishment Clause); Walz v. Tax Comm'n, 397 U.S. 664, 680 (1970) (state property tax exemption for religious organizations does not violate Establishment Clause). Given these holdings, appellant faces an unwinnable battle in claiming that the RFRA -- a limited exemption for religious organizations from compliance with neutral laws -- violates the Establishment Clause. The RFRA had a secular legislative purpose

within the meaning of Lemon -- namely, to protect individual First Amendment rights as interpreted by the Congress. As noted,

this purpose was not only permissible but was also required by 21

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Congress’s duty to interpret the Constitution. at 535.

Boerne, 521 U.S.

A “secular legislative purpose” need not be “unrelated

to religion”; rather, Lemon’s first prong aims to prevent Congress “from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters.” Amos, 483 U.S. at 335; Gillette, 401 U.S. at 454 ("'Neutrality' in matters of religion is not inconsistent with 'benevolence' by way of exemptions from onerous duties, so long as an exemption is tailored broadly enough that it reflects valid secular purposes.") (citation omitted). The RFRA reflected no purpose to

promote a particular religious point of view. The RFRA also satisfies the other two prongs of the Lemon test. Its principal effect neither advances nor inhibits “For a law to have

religion within the meaning of Lemon.

forbidden ‘effects’ under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence,” rather than simply by granting an exemption to religious organizations. Amos, 483 U.S. at 337-38

(“Where . . . government acts with the proper purpose of lifting a regulation that burdens the exercise of religion, we see no reason to require that the exemption come packaged with benefits to secular entities.”). Although the RFRA certainly provides

some benefit to religious organizations, “a law is not unconstitutional simply because it allows churches to advance

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religion, which is their very purpose.”

Id. at 337.

Finally,

there is no question that the RFRA decreases rather than fosters government entanglement with religion, as required by the third prong of Lemon. Amos, 483 U.S. at 339 (An exemption “effectuates

a more complete separation of [church and state] and avoids . . . intrusive inquiry into religious belief.”). We note in general that the Supreme Court approved of and invited legislative enactments of religious exceptions to neutral laws in Smith itself. 494 U.S. at 890. The court pointed to

state exceptions to drug laws for sacramental peyote use and noted with approval that “a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well.” Id.

(“[T]o say that a nondiscriminatory religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required.”). We therefore hold that the

RFRA, as applicable to federal law, does not violate the Establishment Clause of the Constitution. Having found the portions of the RFRA applicable to the federal government and federal law constitutional, we have little difficulty finding those portions severable from the RFRA’s unconstitutional sections. A court must sever the invalid parts

of a statute from the valid parts “unless it is evident that the Legislature would not have enacted those provisions which are

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within its power, independently of that which is not.”

Chadha,

462 U.S. at 931-32 (internal quotation marks, citations, and alterations omitted); Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (“A court should refrain from invalidating more of the statute than is necessary.”) (alteration omitted). We

know of no evidence that Congress would not have applied the RFRA to the federal government unless it could also be applied to state and local governments. We therefore hold the portion of

the RFRA applicable to the federal government severable from its unconstitutional portions. See Kikumura, 242 F.3d at 959-60

(finding federal portions of the RFRA severable); In re Young, 141 F.3d at 859 (same). CONCLUSION The RFRA is an amendment to the ADEA and, as such, is constitutional. The parties have not briefed the issue of how it The district court did not

impacts the merits of this case.

apply the RFRA, relying instead on the “ministerial exception” to the ADEA. We believe that, while the RFRA's application is a

matter of law, it would be appropriate to hear from the district court first, rather than seek yet further briefing in this court. We therefore vacate and remand for reconsideration under the

RFRA standards.

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FOOTNOTES

1. Appellant initially moved for a preliminary injunction requiring appellees to restore his active status, but he withdrew the motion after the NYAC and Lyght appointed another clergy member to fill his vacant position.

2. The district court did not address this issue, but because it raises purely legal questions, we do so here. See McGinty v. New

York, 251 F.3d 84, 90 (2d Cir. 2001) (addressing question not decided by district court where facts were undisputed and legal question was briefed).

3. Section 2000e-5(f)(1) provides in pertinent part: If a charge filed with the Commission . . . is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge . . . the Commission has not filed a civil action . . . or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge. . . .

4. No court appears to have addressed the issue squarely, but some suggestive caselaw exists. Some courts seem to have assumed

25

without discussion that the RFRA may be asserted as a defense by a private party against another private party. See, e.g., Guinan

v. Roman Catholic Archdiocese of Indianapolis, 42 F. Supp. 2d 849, 853 (S.D. Ind. 1998) (permitting the private party defendant to assert a RFRA defense but rejecting it after first finding that the ministerial exception negated the need to discuss the RFRA defense); Urantia Found. v. Maaherra, 895 F. Supp. 1335, 1336-37 (D. Ariz. 1995) (permitting the defendant to raise a RFRA defense but rejecting it because the defendant did not contest the constitutionality of the trademark and copyright laws in general or as applied to her). Bankruptcy courts have also

generally permitted a private-party defendant to assert a RFRA defense against a Chapter 7 trustee. See Christians v. Crystal

Evangelical Free Church (In re Young), 82 F.3d 1407, 1418-19 (8th Cir. 1996) (permitting a defendant to assert a RFRA defense and recover debtors’ tithes to the church because “the government action in question meaningfully curtails, albeit retroactively, a religious practice”), vacated, 521 U.S. 1114 (1997), reaff’d, 141 F.3d 854 (8th Cir. 1998); see also In re Tessier, 190 B.R. 396 (Bankr. D. Mont. 1995); Newman v. Midway Southern Baptist Church (In re Newman), 183 B.R. 239 (Bankr. D. Kan. 1995), aff’d, 203 B.R. 468 (D. Kan. 1996). A bankruptcy trustee is arguably

"acting under color of law" and therefore falls within the RFRA's definition of "government." 42 U.S.C. § 2000bb-2(1). United

26

States trustees are part of the executive branch and protect the interests of the United States in the liquidation. See 28 U.S.C.

§ 586(a); 11 U.S.C. §§ 701(a)(1), 703(b)-(c) and 704(9); In re Shoenewerk, 304 B.R. 59, 62-63 (Bankr. E.D.N.Y. 2003).

5. The RFRA’s stated purposes include "restor[ing] the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972)." 42 U.S.C. § 2000bb(b)(1). The Supreme Court noted that "Congress enacted City

RFRA in direct response to the Court’s decision in" Smith. of Boerne v. Flores, 521 U.S. 507, 512 (1997).

6. We find no principled constitutional distinction between Congress’s ability to amend statutes on an individual basis and its power to do so in a wholesale manner through an enactment such as the RFRA. See Guerrero, 290 F.3d at 1221 n.18.

7. Appellant also argues that Boerne explicitly invalidated all of the RFRA due to separation of powers concerns. Specifically,

appellant relies upon the statement that the “RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance.” entirely unconvincing. Boerne, 521 U.S. at 536. The argument is

The quoted language simply explained why

Congress could not enact the RFRA pursuant to its Section 5 27

power.

The quoted phrase reads in full as follows:

“Broad as

the power of Congress is under the Enforcement Clause of the Fourteenth Amendment, RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance.” This analysis has no application to any separation of powers concerns raised by the RFRA’s enactment and application to the federal government under the Necessary and Proper Clause. Guerrero, 290 F.3d at 1220 (Boerne’s “discussion of the separation of powers doctrine was entirely within the framework of its section 5 analysis -- not an independent rationale.”). See Id.

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29

04-5711(L)-cv, 04-5943-cv Walczyk v. Rio

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2005 (Argued: April 3, 2006 Decided: August 1, 2007)

Docket Nos. 04-5711-cv(L), 04-5943-cv(XAP)

T HOMAS W ALCZYK, E LIZABETH W ALCZYK, M AXIMINA W ALCZYK, EACH INDIVIDUALLY AND AS P.P.A. FOR M ICHELLE W ALCZYK, A MINOR CHILD,1 Plaintiffs-Appellees-Cross-Appellants, —v.— J AMES R IO, B RIAN K ILLIANY, J AMES J EPSEN, W ILLIAM T YLER, A NGELA D ESCHENES, AND S HAWN B ROWN, Defendants-Appellants-Cross-Appellees.

Before: C ABRANES, S OTOMAYOR, and RAGGI, Circuit Judges.

Interlocutory appeal from so much of an order of the United States District Court for the District of Connecticut as (1) denied defendants qualified immunity on plaintiffs’ federal

We direct the Clerk of Court to change the official caption to comport with this decision. 1

1

and state constitutional challenges to the execution of arrest and search warrants. Crossappeal from so much of the order as (2) denied plaintiff Elizabeth Walczyk summary judgment on the liability element of her illegal search claim and (3) granted defendants summary judgment on Thomas Walczyk’s claim of excessive bail. R EVERSED AND R EMANDED on part of defendants’ qualified immunity appeal. A FFIRMED in all other respects. Judge Sotomayor concurs in a separate opinion.

T HOMAS R. G ERARDE (John J. Radshaw, III, on the brief), Howd & Ludorf, LLC, Hartford, Connecticut, for Defendants-Appellants-CrossAppellees. J ON L. S CHOENHORN (Jennifer L. Bourn, on the brief), Jon L. Schoenhorn & Associates, Hartford, Connecticut, for Plaintiffs-Appellees-CrossAppellants.

R EENA R AGGI, Circuit Judge: In 2001, plaintiff Thomas Walczyk (“Walczyk”) was convicted after a jury trial in Connecticut on state law charges of disorderly conduct, see Conn. Gen. Stat. § 53a-182(a)(2); reckless endangerment, see id. § 53a-64(a); and improper firearm storage, see id. § 29-37i. On appeal, the Connecticut Appellate Court reversed, holding that Walczyk’s conviction violated federal and state law because it was based on incriminating evidence obtained through search warrants that were not supported by probable cause. See State v. Walczyk, 76 Conn. App. 169, 182, 818 A.2d 868, 876 (Conn. App. Ct. 2003). Thereafter, Walczyk, 2

his wife Maximina, his minor child Michelle, and his mother Elizabeth initiated this civil action, suing defendants, all members of the Farmington, Connecticut Police Department, in the United States District Court for the District of Connecticut (Robert N. Chatigny, Chief Judge), pursuant to 42 U.S.C. §§ 1983 and 1988 and Connecticut law for money damages arising from events relating to Walczyk’s reversed conviction. Although the district court granted defendants’ motion for summary judgment with respect to some of plaintiffs’ claims, defendants now pursue an interlocutory appeal from so much of the district court’s order, entered on September 30, 2004, as denied them qualified immunity from plaintiffs’ unlawful arrest and search claims. See Walczyk v. Rio, 339 F. Supp. 2d 385, 389-91 (D. Conn. 2004). Not surprisingly, plaintiffs defend that denial. At the same time, Elizabeth Walczyk cross-appeals the district court’s denial of her motion for summary judgment on the liability element of her challenge to the search of her home. See id. at 391. Meanwhile, Thomas Walczyk cross-appeals the award of summary judgment to defendants on his Eighth Amendment claim that he was detained on excessive bail. See id. at 390. For the reasons discussed herein, we conclude that the arrest of Thomas Walczyk and the search of the home he shared with his wife and daughter were supported by probable cause. We reverse so much of the district court’s order as concluded otherwise, and we remand with directions to enter summary judgment in favor of defendants on that part of plaintiffs’ complaint. With respect to defendants’ search of Elizabeth Walczyk’s home, we

3

affirm the district court’s denial of qualified immunity to defendants because the warrant authorizing that search was procured on the basis of plainly stale information and questions of fact remain as to whether any or all defendants acted knowingly or recklessly in misleading the issuing magistrate as to the currency of that information. Those same questions of fact prompt us to affirm the district court’s denial of summary judgment to Elizabeth Walczyk on the liability element of her unlawful search claim. Finally, with respect to Walczyk’s excessive bail claim, we affirm the award of summary judgment in favor of defendants on the ground of absolute immunity. I. Factual Background A. The Underlying Land Dispute 1. Barberino Realty Acquires the Land

This case has its origins in a longstanding property dispute between the Walczyk family and Barberino Realty and Development Corporation (“Barberino”). The property — undeveloped land adjacent to the Farmington homes of Thomas Walczyk at 28 Tunxis Street and of his parents, Elizabeth and Lucien Walczyk,2 at 27 Tunxis Street — was acquired by Barberino in 1973. Over the next two decades, Barberino encountered various difficulties developing the land, only some of which are relevant to this appeal. 2. 1981: Walczyk Brandishes a Rifle at Barberino Workers

Sometime in 1981, a Barberino work crew entered onto the undeveloped land to drill

2

Lucien Walczyk is not a party to this lawsuit, having died prior to its commencement. 4

for soil samples preliminary to development. Thomas Walczyk, who was licensed to possess numerous firearms, brandished a rifle at the workmen and challenged their actions. The workmen sought police assistance, after which their work proceeded apparently without interruption and without any official action being taken against Walczyk. The incident nevertheless prompted Barberino’s counsel to seek assurances from Elizabeth and Lucien Walczyk that there would be no further attempts to hinder development of the land. In response, an attorney for the elder Walczyks advised that his clients were claiming title to the undeveloped land by adverse possession. The claim was based on the Walczyks’ long use of a portion of the undeveloped land for vegetable gardening and cattle grazing. 3. 1988: Walczyk Again Brandishes a Gun at a Barberino Worker

Despite these 1981 events, the relationship between the Walczyks and Barberino appears to have remained uneventful until January 1988 when, in response to a Barberino demand that the Walczyks remove certain items from the property, the elder Walczyks reiterated their adverse possession claim. A few months later, in March 1988, a Barberino worker equipped with a bulldozer attempted forcibly to remove various items from the disputed property. Once again, Thomas Walczyk confronted the worker with a licensed firearm, specifically, an AR-15 automatic assault rifle loaded with thirty rounds of ammunition, and ordered him off the property. Police responded to the scene and directed Walczyk to drop his weapon. Walczyk initially

5

ignored several such directives, “yell[ing] about trespassing and some statute.” Police Rpt., Mar. 24, 1988, at 2. When Walczyk finally put down the rifle, a “wrestling match[]” ensued as he tried to prevent the police from taking him into custody. Id. at 3. Charged with threatening, reckless endangerment, and interfering with police, Walczyk eventually pleaded guilty to the lesser infraction of creating a public disturbance. 4. The Walczyks’ Lawsuits Claiming Adverse Possession

The following month, in April 1988, Elizabeth and Lucien Walczyk sued for adverse possession of the undeveloped property. The action settled in 1991 with Barberino paying the elder Walczyks $20,000 and granting them a perpetual agricultural easement over a portion of the disputed land. In return, Elizabeth and Lucien Walczyk signed a quitclaim of any right, title, or interest in the property and promised not to oppose Barberino’s development plans before the town planning and zoning commission. Four years later, in January 1995, Thomas Walczyk sued Barberino, as well as his parents, claiming that he held title to the disputed property through adverse possession. On March 14, 1997, the Connecticut Superior Court rejected Walczyk’s claim as a matter of law.3 In granting judgment to Barberino and quieting title in its favor, the Connecticut court

In addition to holding that Walczyk failed to adduce evidence sufficient to establish any of the elements of adverse possession, the court ruled that his claim was barred by the equitable doctrines of unclean hands and laches because he had “initiated and directed” his parents’ 1988 suit against Barberino and made the strategic choice to pursue that claim and its settlement only in their name. See Walczyk v. Barberino Realty, Inc., No. cv950465712S, 1997 Conn. Super. LEXIS 715, at *35 (Conn. Super. Ct. Mar. 14, 1997) (“The plaintiff, by his failure to disclose his own claim in a timely fashion, effectively misled the 6

3

stated: “Thomas Joseph Walczyk has no estate, interest in or encumbrance of said real property or any part thereof.” Walczyk v. Barberino Realty & Dev. Corp., No. cv-

950465712S, 1997 Conn. Super. LEXIS 718, at *2 (Conn. Super. Ct. Mar. 14, 1997). This judgment was affirmed on direct appeal, see Walczyk v. Barberino Realty & Dev. Corp., 48 Conn. App. 911, 719 A.2d 1233 (Conn. App. Ct. 1998), and the Connecticut Supreme Court declined further review, see Walczyk v. Barberino Realty & Dev. Corp., 245 Conn. 904, 719 A.2d 1165 (1998). B. Events Relating to the Challenged Arrest and Searches 1. Walczyk’s April 1999 Threat to “Take Matters Into My Own Hands”

Despite the state courts’ unequivocal rejection of his adverse possession claim, Walczyk persisted in asserting a superior interest in the disputed land. On April 9, 1999, he visited the Farmington Police Department to complain about Barberino’s development efforts, insisting to defendant Captain James Rio that he (Walczyk) “had a common law right to the land because he had been farming and maintaining it for some time.” Arrest Warrant Aff. at 2. When Rio explained that the police had received notice of the court order to the contrary, Walczyk stated that he expected to secure reversal of that judgment based on witness perjury and judicial misconduct. More significantly for purposes of the issues raised on this appeal, Walczyk told Rio that, “[i]f you guys don’t comply with what I’m telling you

defendants [in the settlement of that claim] . . . and now seeks to take unfair advantage of a strategic decision he made, with the advice of counsel, to prosecute the first adverse possession claim in his parents’ names only.”). 7

I’ll take matters into my own hands.” Id. Rio warned Walczyk not to do anything illegal, but Walczyk stated that he would “do what [he] had to do to protect his property.” Id. (alteration in original). 2. Walczyk’s August 1999 Reference to a Potential “Bloodbath”

Some five months later, on August 30, 1999, Walczyk called the Farmington police to complain again that Barberino personnel were trespassing on the disputed property. Responding to the scene, Officer David Hebert explained to Walczyk that the police could not act on his trespass complaint without some documentary support for his property claim. In his report of the encounter, Hebert noted that W alczyk made “some off color com[m]ents that the police were not taking the action needed to avoid a ‘blood bath.’” Police Rpt., Aug. 30, 1999, at 1.4 At Walczyk’s subsequent criminal trial, Hebert explained that, although he considered this remark offensive, he did not immediately place Walczyk under arrest because the officer did not feel any direct threat to himself. Nevertheless, he did understand Walczyk’s

comment as a threat toward “the Barberino Corporation and who[m]ever they were going to have down there working.” Trial Tr. vol. 1, 56, Mar. 23, 2001. Indeed, Hebert informed Barberino of the bloodbath statement, prompting its counsel to contact Captain Rio to request

Walczyk acknowledged the comment at his deposition in this case: “I said well here’s the law. It’s got a thousand years of history behind it and it’s clearly designed to prevent blood shed and disputes over property. Now if a blood bath ensues, are you going to be responsible, being the police, because they refused to uphold the law.” Walczyk Dep. at 77. 8

4

police protection at the disputed property site during any work periods. 3. The Challenged Arrest and Search W arrants

Soon thereafter, Rio reviewed Hebert’s report of his August 30, 1999 encounter with Walczyk. Rio was, of course, aware of Walczyk’s earlier statement that, if police did not assist him in his land dispute, he would take matters into his “own hands” and do what he “had to do” to protect his rights. Moreover, Rio knew that Walczyk was the licensed owner of a variety of firearms and that, over the years, he had responded to various situations by displaying, discharging, or threatening to discharge a firearm. In addition to the 1981 and 1988 incidents, detailed supra at [5-6], during which Walczyk had brandished firearms specifically at Barberino workers, these situations included a 1990 road-rage incident during which Walczyk, armed with a loaded AK-47 rifle, confronted an angry motorist who had followed him home;5 a 1992 complaint by neighbors that Walczyk shot a cat in his backyard;6 and a 1996 argument during which Walczyk threatened to shoot his brother John for using the undeveloped land for driving practice.7

Although Walczyk was initially charged with threatening, the state’s attorney ultimately declined prosecution. Originally charged with unlawful discharge of a firearm, cruelty to animals, and conspiracy to commit cruelty to animals, Walczyk ultimately pleaded guilty to breach of the peace. John Walczyk told police that he did not fear imminent physical injury during this argument in which no firearms were actually displayed; nevertheless, he felt nervous because he knew his brother owned guns and could act on his threat. No charges were filed in connection with this incident. 9
7 6

5

Viewing the bloodbath comment in this larger context, Rio concluded that the events of August 30, 1999, demonstrated probable cause to arrest Walczyk for the Connecticut Class A misdemeanor of threatening, see Conn. Gen. Stat. § 53a-62(a),8 and to search Walczyk’s home and that of his parents for firearms that could be used as instrumentalities of the bloodbath threat. Rio did not speak with Officer Hebert before making this determination, but he did consult with a state’s attorney, who concurred in the captain’s probable cause assessment. Rio then communicated the relevant circumstances to defendant Sergeant William Tyler and directed him to prepare the paperwork necessary to procure an arrest warrant for Walczyk. After Tyler completed and signed the arrest warrant, he and Rio used the same information to prepare search warrant applications for the homes of Thomas Walczyk and his parents. These papers were then given to defendants Corporal Angela Deschenes and Officer Shawn Brown, who acted as affiants for the search warrant applications. On

8

At the time of the events in question, section 53a-62(a) stated:

A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury, or (2) he threatens to commit any crime of violence with the intent to terrorize another, to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or (3) he threatens to commit such crime in reckless disregard of the risk of causing such terror or inconvenience. Conn. Gen. Stat. § 53a-62(a) (1999) (amended 2001 & 2002). All citations herein are to this version of the provision. 10

September 4, 1999, a magistrate authorized the arrest and search warrants.9 4. Facts Supporting the Warrants

Because plaintiffs claim, inter alia, that the warrant affidavits, on their face, fail to establish probable cause to support the challenged arrest and searches, we here reproduce the facts as detailed in the affidavits: On 08-30-99, Officer Hebert of the Farmington Police Department responded to [a] trespassing complaint made by Mr. Thomas Walczyk . . ., 27 Tunxis Street, Farmington, CT. Walczyk complained of trespassing by employees of the Barberino Realty & Development Corporation on property located on Tunxis Street. Walczyk has had a long standing dispute over that property and has made claims in the past that he has common law rights to the land. Walczyk told Officer Hebert that the Farmington Police were not taking the action needed to avoid a “bloodbath.” Officer Hebert reported Walczyk’s complaint to Mr. [Stephen] Barberino Jr., the owner of the land in question. As a result of Walczyk’s threat of a “bloodbath,” Atty Robert Reeve, representing Barberino, contacted Capt. James Rio of the Farmington Police Department. Reeve expressed concerns for the safety of employees during imminent construction work planned for the Tunxis Street property. He requested extra police presence during work periods. In the early spring of 1999, the Farmington Police Department received a letter from Barberino Jr.’s attorney along with a copy of a March 14, 1997 decision made by the State of Connecticut Superior Court regarding the issue of the land in question. The decision by Judge Christine E. Keller was in favor of Barberino Realty & Development Corp., and stated that “Thomas Joseph Walczyk has no estate, interest in or encumbrance of said real property or any part thereof.” During late winter of 1998 and early spring of 1999 Walczyk came to the

We use the term “magistrate” as a general term for a judicial officer in the State of Connecticut. 11

9

Farmington Police Department to speak with Capt. Rio about the land dispute and the impending land development. He told Capt. Rio at that time that he had a common law right to the land because he had been farming and maintaining it for some time. Walczyk said that he was in the process of getting a Superior Court ruling to reverse the one made in Barberino’s favor. He claimed that Stephen Barberino Jr. had perjured himself and the presiding Judge had acted inappropriately. Capt. Rio explained that the Farmington Police had been advised of the ruling in favor of Barberino and that until we were officially notified otherwise, all parties and the police department would have to abide by the last court ruling. W alczyk responded that, “If you guys don’t comply with what I’m telling you I’ll take matters into my own hands.” Capt. Rio advised Walczyk against any illegal actions to which Walczyk responded that he would, “ . . . do what [he] had to do to protect his property.” The Farmington Police Department has investigated Walczyk on previous occasions for incidents involving threatening during which times he has either threatened the use of or displayed a gun. On 09-15-96 Officer Charette of the Farmington Police Department investigated a disturbance on Tunxis Street involving Walczyk and his brother. The argument was over property on Tunxis Street for which Thomas Walczyk was suing his parents. His brother claimed that Walczyk pushed him and threatened to shoot him. His brother felt no imminent threat but was concerned because he knew Walczyk owned numerous guns. Walczyk denied making the threat and no arrest was made. On 02-15-92 Walczyk was arrested in Farmington for cruelty to animals and unlawful discharge of a firearm. Neighbors reported seeing him shoot a cat on his property with a handgun. On 12-08-90 neighbors complained that Walczyk was shooting guns on property at the end of Tunxis Street. He was shooting but was not in violation. On 07-30-90 Walczyk was arrested by the Farmington Police for threatening. A motorist followed Walczyk home to complain about the way he was driving. Walczyk went inside and came back with a A-K assault rifle and an argument ensued. The assault rifle was taken as evidence. It was loaded with twenty rounds of ammunition. On 03-24-88 the Farmington Police Department responded to a disturbance at 12

Tunxis Street. The disturbance was over the same land dispute between Walczyk and Barberino employees. Barberino employees were working on the land. Walczyk approached them carrying an AR 15 assault rifle ordering them to get off his property. One of the employee[]s complained that Walczyk had pointed the gun directly at him. Walczyk was arrested for threatening, reckless endangerment, and interfering with police. He denied actually pointing the gun at anyone. The gun was seized as evidence. It contained one .223 round in the chamber and twenty-nine rounds in the magazine. Walczyk fought with officers prior to being arrested. As of 09-03-99, Walczyk, according to Connecticut State Police records, has the following handguns registered in his name. 1. Colt model 1903, 32 caliber, ser. #: 354507. 2. Colt Govt. Model, 45 caliber, ser. #: 40562G70. 3. Smith & Wesson model 629, 44 caliber, ser. #: N872450. 4. Walthers Woodsman model, .22 caliber, ser. #: 142639. He also has the following assault weapons registered in his name. 1. Non-classified, 86S, ser. #: A000316. 2. Ruger (SR), Mini-14, ser. #: 18465824. 3. Colt, AR15-A2 H-BAR, ser. #: 325465. 4. Non-classified, MAK-90, ser. #: 9362979. That a review of Farmington Police records indicate[s] that Walczyk has maintained residences at both 27 and 28 Tunxis St., Farmington, CT. That town of Farmington property records show that 27 Tunxis Street is owned by Lucian Walzak [sic], and 28 Tunxis Street is owned by Thomas Walzak [sic]. Search Warrant Aff. and App. at 2-3.10 5. Execution of the Warrants On that date,

The challenged warrants were executed on September 7, 1999.

defendant Sergeant James Jepsen contacted Thomas Walczyk and, on the pretense of wishing to discuss the land dispute, proposed a meeting at the police station. Upon Walczyk’s arrival,

The arrest warrant affidavit contained identical facts, but did not include the last paragraph describing the Tunxis Street residences. 13

10

Sergeant Tyler placed him under arrest and detained him in a cell block on $10,000 bail.11 Walczyk remained in custody until later that day, when his mother posted bail. While Walczyk was in custody, a team of officers, including Sergeant Jepsen and defendant Detective Brian Killiany executed the challenged search warrants, seizing nearly 60 licensed firearms from Thomas Walczyk’s home and 18 licensed firearms from his parents’ home, as well as approximately 2,600 rounds of ammunition, gun clips, ammunition belts, and other items related to firearms’ use. C. Connecticut’s Invalidation of the Challenged W arrants

After a Connecticut jury found Walczyk guilt of disorderly conduct, see Conn. Gen. Stat. § 53a-182(a)(2); reckless endangerment, see id. § 53a-64(a); and two counts of improper firearm storage, see id. § 29-37i, 12 he was sentenced to pay a fine of $100 for each count of conviction. The Appellate Court of Connecticut reversed Walczyk’s conviction, holding that the search warrant that resulted in seizure of the charged guns was not supported by probable cause. See State v. W alczyk, 76 Conn. App. at 180-82, 818 A.2d at 875-76.13 In reaching Under Connecticut law, police officers are empowered to set temporary bail. See Conn. Gen. Stat. § 54-63c(a) (discussed infra at [43-45]). Walczyk was acquitted on four other counts of improper firearm storage; risking injury to a child, see Conn. Gen. Stat. § 53-21; and threatening, the charge that had initially prompted his arrest and the search of his and his parents’ homes. Although plaintiffs note that this decision was authored by former Connecticut Supreme Court Chief Justice Ellen A. Peters, they do not argue that this ruling is dispositive in this case. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (noting that 14
13 12 11

this conclusion, the court faulted the warrant’s supporting affidavit for failing “to reconcile a construction of the ‘bloodbath’ statement as a threat . . . with the statement . . . of what the defendant actually had said.” Id. at 180, 818 A.2d at 875. Specifically, the court held that “[a] statement to a police officer that the police needed to act to avoid a ‘bloodbath’ cannot be the basis of probable cause to believe that the defendant, at that time or in the immediate future, would engage in threatening behavior.” Id. at 181-82, 818 A.2d at 876 (emphasis in

argument not raised on appeal is deemed waived). Nor is it likely that such an argument would be convincing in light of numerous decisions declining to hold individual state officials bound, in their individual capacities, by determinations adverse to the state in prior criminal cases. See Jenkins v. City of New York, 478 F.3d 76, 85-86 (2d Cir. 2007) (holding that ruling in New York state criminal proceeding that defendant’s arrest was not supported by probable cause did not collaterally estop police from relitigating question when defendant sued them under § 1983); Bilida v. McCleod, 211 F.3d 166, 170-71 (1st Cir. 2000) (holding that collateral estoppel did not bar Rhode Island officers sued under § 1983 from asserting legality of searches found unconstitutional in earlier criminal proceedings: “[T]he interests and incentives of the individual police [officers] . . . are not identical to those of the state, and the officers normally have little control over the conduct of a criminal proceeding”); McCoy v. Hernandez, 203 F.3d 371, 374-75 (5th Cir. 2000) (same re: suit against Texas officers); Kinslow v. Ratzlaff, 158 F.3d 1104, 1105-06 (10th Cir. 1998) (same re: Oklahoma officers); Kraushaar v. Flanigan, 45 F.3d 1040, 1050-51 (7th Cir. 1995) (reaching same result regarding an Illinois officer); Duncan v. Clements, 744 F.2d 48, 51-52 (8th Cir. 1984) (same under Missouri law); Davis v. Eide, 439 F.2d 1077, 1078 (9th Cir. 1971) (same with respect to California officers). While we need not conclusively decide the issue, there is no reason to think Connecticut law would support a different conclusion regarding estoppel in this case. See, e.g., State v. Fritz, 204 Conn. 156, 173, 527 A.2d 1157, 1166 (1987) (observing that privity necessary to trigger collateral estoppel is not established “from the mere fact that persons may happen to be interested in the same question or in proving or disproving the same facts. While the concept of privity is difficult to define precisely, it has been held that a key consideration for its existence is the sharing of the same legal right by the parties allegedly in privity.” (internal quotation marks and citation omitted)), overruled on other grounds by State v. Crawford, 257 Conn. 769, 779-80, 778 A.2d 947, 954 (2001); accord Tevolini v. Tevolini, 66 Conn. App. 16, 22 n.6, 783 A.2d 1157, 1163 n.6 (Conn. App. Ct. 2001). 15

original). The Connecticut court also noted that the affidavit failed to establish probable cause because it did not state that any of Walczyk’s earlier misconduct had resulted in his “conviction of threatening or of any other crime,” distinguish “between recent incidents and those that ha[d] become stale,” or state that his firearm possession was in any way unlawful. Id. at 180, 818 A.2d at 875 (emphasis in original). Nor did the court think that Walczyk’s prior statement to Captain Rio — that “he would take matters into his own hands and do what he had to do to protect his property” — established probable cause because Rio advised Walczyk “not to do so,” and, on August 30, 1999, Walczyk “followed instructions to report any possible trespass to the police.” Id. at 181, 818 A.2d at 876 (emphasis in original). D. The District Court Action

On August 30, 2002, plaintiffs commenced this action, charging defendants with (1) violating their federal and state constitutional rights to have arrests and searches supported by probable cause, (2) depriving them of their federal rights to equal protection of the laws and to free expression, (3) violating their federal and state constitutional rights to bear arms, and (4) holding Walczyk on excessive bail. Defendants moved for summary judgment, which the district court granted with respect to all claims except those challenging Thomas Walczyk’s arrest, the searches of his and his parents’ homes, and Walczyk’s First Amendment claim, which apparently had been previously abandoned. We need not here discuss the district court rulings with respect to the plaintiffs’ equal protection or right to bear arms claims because neither is challenged on this appeal. As for

16

Walczyk’s excessive bail claim, the district court ruled “as a matter of law” that “when a police officer sets temporary bail under Conn. Gen. Stat. § 54-63c, he performs a judicial function and hence has absolute immunity from suit.” Walczyk v. Rio, 339 F. Supp. 2d at 390. With respect to plaintiffs’ unlawful arrest and search challenges, the district court concluded that, although the supporting warrants were “facially valid,” defendants were not entitled to summary judgment on the ground of qualified immunity because questions of fact existed as to whether they had “knowingly and deliberately, or with reckless disregard of the truth, made material misstatements or omissions in the warrant affidavit[s] that were necessary to the finding of probable cause.” Id. at 389; see Franks v. Delaware, 438 U.S. 154, 155-56 (1978). The court identified three such material omissions: the affidavits’ failure to disclose that (1) the defendants “had not spoken with Officer Hebert about his conversation” with Walczyk, (2) none of Walczyk’s previous arrests “had resulted in a conviction for threatening,” and (3) Walczyk “had not lived at 27 Tunxis Street for seven years.” Walczyk v. Rio, 339 F. Supp. 2d at 389. The court concluded that “[a] reasonable juror could find that the omission of the first two items of information was critical to the finding of probable cause for the arrest, and that the omission of all three items was critical to the finding of probable cause for the searches of the houses and the seizures of the firearms.” Id. Thus, it ruled that defendants were not entitled to summary judgment on the basis of qualified immunity under either federal or state law (assuming arguendo that

17

Connecticut would afford immunity to state constitutional claims14) because, when the record was viewed in the light most favorable to the plaintiffs, “a jury could find that the defendants lacked even arguable probable cause to believe that [Walczyk] had committed the crime of threatening or that the firearms to be seized were connected with criminal activity.” Id. at 390 (noting that ruling was consistent with Connecticut Appellate Court’s determination that affidavits “fell well short of establishing probable cause”).15 Nevertheless, the district court

We need not decide on this appeal whether Connecticut affords qualified immunity in cases of unlawful searches or seizures. See Rustici v. Malloy, No. cv-970164460S, 2004 Conn. Super. LEXIS 1734, at *46 n.26 (Conn. Super. Ct. July 1, 2004) (assuming that “qualified immunity appl[ies] to state constitutional claims”). Our holding that probable cause supports the arrest of Walczyk and the search of his home, see infra at [31-38], obviates the need for an immunity shield — state or federal — on those claims. See, e.g., Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (“The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest, whether that action is brought under state law or under § 1983.” (internal quotation marks and citation omitted)); Beinhorn v. Saraceno, 23 Conn. App. 487, 492, 582 A.2d 208, 210-11 (Conn. App. Ct. 1990) (stating that claim for false arrest under Connecticut law requires proof that arresting officer lacked probable cause). As to Elizabeth Walczyk’s unlawful search claim, because we identify factual issues, see infra at [41-43], that could moot defendants’ qualified immunity claim, we conclude that the availability of state law immunity need not be addressed unless and until these issues are resolved favorably to the defendants. To the extent Captain Rio claimed that the evidence was insufficient to ascribe supervisory responsibility to him for any warrant deficiencies, the district court concluded that sufficient evidence had been adduced to support a jury finding that Rio was actually “involved in preparing the warrant affidavit.” Walczyk v. Rio, 339 F. Supp. 2d at 390. Because we agree with this conclusion, see Hayut v. State Univ. of New York, 352 F.3d 733, 753 (2d Cir. 2003) (noting that supervisory liability is supported by “evidence of a supervisory official’s personal involvement in the challenged conduct” (internal quotation marks omitted)), it is unnecessary for us to distinguish between Rio and the other defendants in discussing the probable cause question that is the crux of plaintiffs’ unlawful search and arrest challenges. 18
15

14

denied Elizabeth Walczyk’s cross-motion for summary judgment on the liability phase of her search warrant challenge, concluding that she had not shown that no reasonable juror could find defendants’ acts lawful. II. Discussion A. Jurisdiction and the Standard of Review

Because the denial of a motion for summary judgment is not a final judgment, it is generally not immediately appealable. See, e.g., Jones v. Parmley, 465 F.3d 46, 54 (2d Cir. 2006). An exception obtains, however, when the denied motion was based on a claim of immunity, at least to the extent the immunity claim presents a “purely legal question.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (recognizing jurisdiction to review “purely legal question on which . . . claim of immunity turns”); see O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 38 (2d Cir. 2003) (observing that “[u]nder the collateral order doctrine . . . the denial of a qualified-immunity-based motion for summary judgment is immediately appealable to the extent that the district court has denied the motion as a matter of law, although not to the extent that the defense turns solely on the resolution of questions of fact”); accord Jones v. Parmley, 465 F.3d at 54. The rationale for this exception is the law’s recognition that immunity shields a defendant from suit itself, not merely from liability. See Saucier v. Katz, 533 U.S. 194, 199 (2001) (“The privilege is ‘an immunity from suit rather than a mere defense to liability; . . . it is effectively lost if a case is erroneously permitted to go to trial.’” (quoting Mitchell v. Forsyth, 472 U.S. at 526 (emphasis in original))). In this

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case, defendants’ appeal from the district court’s denial of qualified immunity on plaintiffs’ search and arrest claims can be decided as a matter of law; accordingly, our jurisdiction is established. Although an interlocutory appeal would not be available from either the denial of Elizabeth Walczyk’s motion for summary judgment on her unlawful search claim or the district court’s dismissal of Walczyk’s excessive bail claim on the ground of absolute immunity, we elect to exercise pendent jurisdiction over both. “[W]e may exercise pendent jurisdiction over . . . issues that are not ordinarily subject to interlocutory review only when: (1) they are ‘inextricably intertwined’ with the determination of qualified immunity; or (2) their resolution is ‘necessary to ensure meaningful review’ of the district court’s ruling on qualified immunity.” Jones v. Parmley, 465 F.3d at 64 (quoting Swint v. Chambers County Comm’n, 514 U.S. 35, 51 (1995)). As we explain further below, see infra at [42-43], Elizabeth Walczyk’s claim is “inextricably intertwined” with the determination of defendants’ entitlement to qualified immunity in that the same disputed factual issues that preclude a finding of qualified immunity on this claim at this stage also make summary judgment inappropriate. As to Walczyk’s excessive bail claim, if we were to determine that the district court improperly granted defendants absolute immunity, they might nonetheless be entitled to qualified immunity, and thus review of this determination is also inextricably intertwined with our resolution of defendants’ entitlement to qualified immunity. Cf. Clynch

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v. Chapman, 285 F. Supp. 2d 213, 219 n.6 (D. Conn. 2003) (characterizing absolute immunity in excessive bail claim as a “cousin issue” to qualified immunity). We review de novo defendants’ legal challenge to the district court’s qualified immunity ruling, see Jones v. Parmley, 465 F.3d at 55, as well as Elizabeth and Thomas Walczyks’ cross-appeals from other summary judgment rulings, see, e.g., Root v. Liston, 444 F.3d 127, 130 (2d Cir. 2006). B. Plaintiffs’ Search and Arrest Claims 1. The Qualified Immunity Standard

When a defendant officer charged with violations of federal constitutional rights invokes qualified immunity to support a motion for summary judgment, a court must first consider a threshold question: Do the facts, viewed in the light most favorable to the plaintiff, show that the officer’s conduct violated a constitutional right? If the answer to this question is no, “there is no necessity for further inquiries concerning qualified immunity.” Saucier v. Katz, 533 U.S. at 201; see X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 66 (2d Cir. 1999) (observing that resolution of this first question favorable to defendant “moots” further inquiry into qualified immunity). The reason for this rule is that, where there is no viable constitutional claim, defendants have no need of an immunity shield. See generally Farrell v. Burke, 449 F.3d 470, 499 n.14 (2d Cir. 2006) (“Because we have found no cognizable violation of [p]laintiff’s rights in this case, we need not reach the question of qualified immunity.”); Holcomb v. Lykens, 337 F.3d 217, 223-25 (2d Cir. 2003) (declining to decide

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qualified immunity question and affirming summary judgment on ground that, as a matter of law, defendants did not violate plaintiff’s due process rights). Only if the answer to the first question is yes must a court proceed to the inquiry for qualified immunity: Was the right at issue clearly established at the time of the defendant’s actions? As the Supreme Court has explained, this question is not answered by reference to how courts or lawyers might have understood the state of the law: “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. at 202 (emphasis added). If the right at issue was not clearly established by then existing precedent, then qualified immunity shields the defendant. Even if the right at issue was clearly established in certain respects, however, an officer is still entitled to qualified immunity if “officers of reasonable competence could disagree” on the legality of the action at issue in its particular factual context. Malley v. Briggs, 475 U.S. 335, 341 (1986); accord Iqbal v. Hasty, – F.3d –, 2007 WL 1717803, at * 20 (2d Cir. June 14, 2007). Cerrone v. Brown, 246 F.3d 194, 202 (2d Cir. 2001); Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995); see Saucier v. Katz, 533 U.S. at 208 (holding officer entitled to qualified immunity if “[a] reasonable officer in [his] position could have believed that [the challenged conduct] was within the bounds of appropriate police responses”). In this respect, the Supreme Court has observed that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. at 341 (quoted

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approvingly in Saucier v. Katz, 533 U.S. at 202). 16

Our concurring colleague takes exception to these standards at the same time that she acknowledges their reiteration of well established precedent. Her concern that a bifurcation of the “clearly established” inquiry might allow a defendant to secure qualified immunity for conduct already held unconstitutional “in the particularized sense,” post at [SS Concurrence at 6-7] is, in fact, unwarranted. If controlling authority has already established the unlawfulness of the challenged conduct in the particularized circumstances presented in the pending case, then no reasonable officer could think otherwise and, thus, qualified immunity would not shield the defendant. See, e.g., Groh v. Ramirez, 540 U.S. 551, 564 (2004). Judge Sotomayor’s further criticism — that determining clearly established law by reference to disagreements among reasonably competent officers, as indicated in Malley v. Briggs, 475 U.S. at 341, is “more permissive of defendants” than a single reasonable officer standard, post at [SS Concurrence at 8]— might merit attention if Malley contemplated “officers of reasonable competence” disagreeing based on unreasonable views of existing law. In fact, neither Malley nor today’s decision supports that conclusion. Instead, what Malley does is provide courts with a useful tool for assessing when pre-existing law that did not recognize the invoked right in the particularized context at issue, nevertheless, “must” have alerted the defendant to the unlawfulness of his action. See Anderson v. Creighton, 483 U.S. 635, 640 (1987) (holding that, where particular action at issue has not previously been held unlawful, defendant is not entitled to qualified immunity if, “in the light of pre-existing law the unlawfulness must [have] be[en] apparent”). By instructing courts to focus on whether “officers of reasonable competence could disagree” about the illegality of the challenged conduct, Malley sounds a useful reminder: because law enforcement work relies on probabilities and reasonable suspicions in an almost infinite variety of circumstances, many requiring prompt action, there can frequently be a range of responses to given situations that competent officers may reasonably think are lawful. W ithin this range, an officer enjoys qualified immunity for “reasonable mistakes.” Saucier v. Katz, 533 U.S. at 205, 206. To the extent Judge Sotomayor’s objection to Malley’s formulation relies on recent Supreme Court habeas jurisprudence, we note that the considerations informing limitations on habeas review are sufficiently distinct from those prompting recognition of qualified immunity to preclude easy analogy. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982) (recognizing qualified immunity because of “need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority”). Nothing in the Supreme Court’s qualified immunity jurisprudence signals a narrowing of these considerations or an abandonment of Malley’s analysis. To the contrary, as we note in text, Saucier v. Katz cites approvingly to Malley’s 23

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2.

The Legality of the Challenged Arrest and Searches

Applying these principles to this case, we consider first whether defendants’ actions violated plaintiffs’ rights under both the United States and Connecticut Constitutions to be free from unreasonable searches and arrests. See U.S. Const. amend. IV;17 Conn. Const. art. First, §§ 7, 9.18 Ordinarily, an arrest or search pursuant to a warrant issued by a neutral magistrate is presumed reasonable because such warrants may issue only upon a showing of probable cause. See Franks v. Delaware, 438 U.S. at 171; United States v. Awadallah, 349 F.3d 42, 64 (2d Cir. 2003); Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991);

observation that qualified immunity is intended to shield “‘all but the plainly incompetent or those who knowingly violate the law.’” 533 U.S. at 202 (quoting Malley v. Briggs, 475 U.S. at 341). Finally, insofar as Judge Sotomayor expresses some concern about courts contemplating persons reaching different reasonable conclusions about the same facts, we note simply that courts do so routinely in upholding jury verdicts as long as “any rational trier of fact” could have reached the challenged result. United States v. MacPherson, 424 F.3d 183, 187 (2d Cir. 2005) (and cases cited therein). Accordingly, we hold that courts may continue to rely on Malley in resolving qualified immunity disputes. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.” Conn. Const. art. First, § 7. “No person shall be arrested, detained or punished, except in cases clearly warranted by law.” Id. art. First, § 9. 24
18 17

see also United States v. Leon, 468 U.S. 897, 913-14 (1984). Plaintiffs nevertheless insist that the presumption is defeated in this case because (1) the warrant affidavits, on their face, fail to demonstrate probable cause, see generally United States v. Leon, 468 U.S. at 923; and (2) the issuing magistrate was, in any event, misled into finding probable cause by material omissions for which defendants were knowingly or recklessly responsible, see Franks v. Delaware, 438 U.S. at 155-56; Golino v. City of New Haven, 950 F.2d at 870-71. a. The Probable Cause Standard

Before discussing these two contentions, we observe that federal and Connecticut law are identical in holding that probable cause to arrest exists when police officers have “knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996); see State v. James, 261 Conn. 395, 415, 802 A.2d 820, 833 (2002) (“Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonable trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a [crime] has been committed.” (internal quotation marks omitted)). Similarly, under both federal and state law, probable cause to search is

demonstrated where the totality of circumstances indicates a “fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983); accord United States v. Gaskin, 364 F.3d 438, 456 (2d Cir. 2004); State v. 25

Vincent, 229 Conn. 164, 171, 640 A.2d 94, 98 (1994) (noting that valid search requires “probable cause to believe that the particular items to be seized are connected with criminal activity or will assist in a particular apprehension or conviction” and “that the items sought to be seized will be found in the place to be searched”); State v. Orellana, 89 Conn. App. 71, 80, 872 A.2d 506, 516 (Conn. App. Ct. 2005) (citing Illinois v. Gates, 462 U.S. at 231-32)). Accordingly, we need not separately discuss federal and state law in assessing probable cause for the challenged arrest and searches. As the Supreme Court has famously observed, probable cause is “a fluid concept . . . not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. at 232; see United States v. Gaskin, 364 F.3d at 456. While probable cause requires more than a “mere suspicion,” of wrongdoing, Mallory v. United States, 354 U.S. 449, 455 (1957), its focus is on “probabilities,” not “hard certainties,” Illinois v. Gates, 462 U.S. at 231. In assessing probabilities, a judicial officer must look to “‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’” Id. (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)); accord United States v. Gaskin, 364 F.3d at 456. “Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place” in a probable cause determination. Illinois v. Gates, 462 U.S. at 235. Nor can probable cause be analogized to a prima facie case. See id. (observing that “‘only the probability, and not a prima facie showing, of criminal activity’” is necessary to establish probable cause to search 26

or arrest (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969))). In sum, probable cause does not demand any showing that a good-faith belief be “correct or more likely true than false.” Texas v. Brown, 460 U.S. 730, 742 (1983). It requires only such facts as make wrongdoing or the discovery of evidence thereof probable. It has long been recognized that, where there is no dispute as to what facts were relied on to demonstrate probable cause, the existence of probable cause is a question of law for the court. See Stewart v. Sonneborn, 98 U.S. 187, 194 (1878) (observing that whether facts alleged to show probable cause are true is a matter of fact, “but whether, supposing them to be true, they amount to a probable cause, is a question of law” (internal quotation marks omitted)); accord Director Gen. of R.R.’s v. Kastenbaum, 263 U.S. 25, 28 (1923) (observing that where facts are in dispute, court submits the question of probable cause to the jury, but “with instructions as to what facts will amount to probable cause if proved”); Sanders v. Palmer, 55 F. 217, 220 (2d Cir. 1893) (holding that question whether facts, “supposing them to be true, . . . amount to a probable cause, is a question of law”; when the facts are disputed, “it is the duty of the court to instruct the jury what facts, if established, will constitute a probable cause . . . and to submit to them only the question as to the existence of those facts”); see also United States v. Awadallah, 349 F.3d at 65 (distinguishing between de novo review of legal question whether undisputed facts support probable cause and deferential review of factual question whether, in case of misstated or omitted material facts, affiant’s actions were deliberate or reckless). In this case, there can be no dispute as to what facts the 27

defendants relied on to establish probable cause for the challenged arrest and searches; they are memorialized in warrant affidavits. Thus, whether the affidavits, on their face,

demonstrate probable cause, is a question of law. In answering that question, however, a reviewing court must accord considerable deference to the probable cause determination of the issuing magistrate, see Illinois v. Gates, 462 U.S. at 238-39 (holding that duty of reviewing court “is simply to ensure that the magistrate had a substantial basis” for probable cause determination (internal quotation marks omitted)); accord Velardi v. Walsh, 40 F.3d 569, 574 n.1 (2d Cir. 1994), mindful of the well established principle that a showing of probable cause cannot be negated simply by demonstrating that an inference of innocence might also have been drawn from the facts alleged, see United States v. Webb, 623 F.2d 758, 761 (2d Cir. 1980); see also United States v. Forero-Rincon, 626 F.2d 218, 222 (2d Cir. 1980). To the extent plaintiffs argue, in addition to their facial challenge, that material omissions infected the issuing magistrate’s probable cause determination, there is no dispute between the parties as to what purported omissions are appropriately considered. They are the three non-disclosures identified by the district court, i.e., that (1) defendants had not spoken with Officer Hebert about his understanding of Walczyk’s bloodbath statement; (2) none of Walczyk’s prior arrests had resulted in a conviction for threatening, and (3) Walczyk had not lived at his parents’ home for seven years. See Walczyk v. Rio, 339 F. Supp. 2d at 389. The materiality of these omissions presents a mixed question of law and fact. See 28

Velardi v. Walsh, 40 F.3d at 574. Whether omitted information is “relevant to the probable cause determination” is a question of law that we review de novo. Id. If we identify relevancy, then questions of fact may arise as to what “weight . . . a neutral magistrate would likely have given such information,” id., and whether defendants acted “deliberately or recklessly” in omitting the information from the warrant affidavits, United States v. Awadallah, 349 F.3d at 65 (internal quotation marks omitted). Even in such circumstances, however, a court may grant summary judgment based on qualified immunity where “the evidence, viewed in the light most favorable to the plaintiffs, discloses no genuine dispute that a magistrate would have issued the warrant on the basis of the ‘corrected affidavits.’” Velardi v. Walsh, 40 F.3d at 574 (emphasis in original). Mindful of these principles, we proceed to consider plaintiffs’ warrant challenges, focusing first on the arrest of Thomas Walczyk and the search of his 28 Tunxis Street residence and then on the search of Elizabeth Walczyk’s 27 Tunxis Street home. b. Thomas Walczyk (1) The Facial Challenge

We reject as without merit Thomas Walczyk’s contention that the challenged warrant affidavits, on their face, fail to state probable cause for his arrest or the search of his 28 Tunxis Street home. The facts alleged establish probable cause to believe (1) that W alczyk had violated Connecticut law by “threaten[ing] to commit . . . [a] crime [of violence] in reckless disregard of the risk of causing . . . terror” to another person, Conn. Gen. Stat. § 53a29

62(a)(3), and (2) that Walczyk maintained in his residence firearms that, in light of past use, were relevant evidence that he intended to threaten violence and recklessly disregarded the threat’s terrorizing effect. The facts reveal that, on August 30, 1999, Walczyk complained to Officer Hebert that the police were not taking the action necessary to avoid a bloodbath. A reasonable person would understand the bloodbath reference as a prediction of probable violence between Walczyk and Barberino. More to the point, a reasonable person would understand from other facts alleged in the affidavits that Walczyk would likely be the person initiating any such violence. A few months earlier, Walczyk had stated to Captain Rio that, if the police did not assist him in his property dispute with Barberino, he would take matters into his “own hands,” doing whatever he “had to do” to protect his property rights. Rio knew that what Walczyk frequently put into his hands to resolve disputes were loaded firearms that he stored in his home. In the past, Walczyk had brandished firearms retrieved from his home at various individuals, including Barberino workers on two occasions. On one of those occasions, the brandished weapon was a loaded automatic rifle and,19 when police intervened, Walczyk initially defied their orders to put down the weapon and resisted arrest. Moreover, the affidavits demonstrated that Walczyk plainly knew how to fire his weapons;

Although the warrant affidavits note that Walczyk denied pointing the rifle at Barberino workers, the magistrate judge had probable cause to conclude otherwise given that one of the workers specifically “complained that Walczyk had pointed the gun directly at him.” Arrest Aff. at 3; Search Warrant Aff. and App. at 3. 30

19

he had used them to kill a cat on his property. Rio further knew that Walczyk’s efforts to vindicate his property rights peaceably through the courts had failed. Under the totality of these circumstances, the issuing magistrate certainly had a substantial basis to conclude that, when Walczyk told police that their continued failure to assist him in his property dispute with Barberino would result in a bloodbath, he was effectively threatening to employ violence against Barberino employees with reckless disregard for the terror such a threat would cause when communicated to the intended victim. We are, of course, mindful that a Connecticut appellate court has ruled otherwise. Observing that Walczyk’s bloodbath statement was made to secure police assistance, that court concluded: “A statement to a police officer that the police needed to act to avoid a ‘bloodbath’ cannot be the basis of probable cause to believe that the defendant, at the time or in the immediate future, would engage in threatening behavior.” State v. W alczyk, 76 Conn. App. at 181-82, 818 A.2d at 876 (emphasis in original). We respectfully disagree. Walczyk may have desired police assistance in his land dispute, but how he sought to compel that assistance was by threatening violence. Walczyk was, after all, the only person to have used an instrument of violence in connection with the land dispute. Given his prior

brandishing of loaded firearms, it was certainly probable that Walczyk’s bloodbath statement was a threat to use violence against Barberino workers if the police did not intervene in his favor (something they could not do in light of state court rulings). Whether Walczyk would, in fact, have acted on his threat is not determinative of whether it was probable that he had 31

made the threat with reckless disregard of the terror it would cause Barberino.20 We conclude that the affidavits, on their face, state facts reasonably supporting such a finding by the issuing magistrate. Walczyk submits that the search warrant affidavit nevertheless failed to demonstrate that there was any connection between his present lawful possession of firearms and the alleged crime of threatening. We are persuaded that the warrant affidavit states probable cause to believe that a search of Walczyk’s home for firearms would produce evidence relevant to demonstrating that Walczyk had committed the offense of threatening. At the time the search warrant affidavit was prepared, Walczyk’s apparent possession of firearms constituted relevant evidence which could suggest that his intent in making the bloodbath remark was, in fact, to threaten violence. See State v. Crudup, 81 Conn. App. 248, 260 n.14, 838 A.2d 1053, 1062 n.14 (Conn. App. Ct. 2004) (discussing intent element of threatening). Specifically, a seizure of firearms from Walczyk’s home could have shown that, at the time Walczyk made the bloodbath remark, he had the actual capacity to cause bloodshed. Moreover, such a seizure following the authorized search could have served to corroborate witness accounts that Walczyk had used weapons against Barberino workers and others in the past, which in turn could have helped establish his reckless disregard of the bloodbath

Walczyk does not fault the police for communicating his bloodbath statement to Barberino, much less suggest that he did not intend or foresee such communication. Indeed, given the totality of circumstances, it may well have been irresponsible of the police not to have communicated the statement. 32

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remark’s terrorizing effect. In sum, Walczyk’s possession of firearms was evidence relevant to the mens rea element of the crime because a factfinder could reasonably infer from such possession and from Walczyk’s past use of firearms that his bloodbath statement was not idle hyperbole, but an intentional threat of violence made with reckless disregard of its potential to cause terror. As the search warrant affidavit makes clear, the police were aware that Walczyk had previously used his home to store the firearms he brandished in confrontations with others, including Barberino workers, and thus they had probable cause to believe that evidence relevant to his alleged threatening would turn up in a search of his home. Accordingly, we hold that plaintiffs’ facial challenge to the warrant affidavits in this case necessarily fails as a matter of law.21 (2) Purported Omissions

Walczyk asserts that two of the three identified material omissions misled the issuing magistrate into erroneously finding probable cause to support his arrest and the search of his home. We also reject as without merit plaintiffs’ argument that the search warrant, which simply sought “Firearms,” was insufficiently particular and that the seizure of ammunition, gun clips, ammunition belts, and other items not named in the warrant violated the Fourth Amendment. Although requests to search for “evidence of a crime” violate the proscription against general warrants, see Groh v. Ramirez, 540 U.S. 551, 557-58 (2004), defendants’ application to search for “Firearms” was sufficiently particular because any firearms in Walczyk’s possession were relevant evidence that his bloodbath remark was an intentional threat of violence. Because we reach the same relevancy conclusion with respect to the ammunition, gun clips, and related firearms paraphernalia found in Walczyk’s home, we conclude that these items were properly seized under the “plain view” doctrine. United States v. $557,933.89, 287 F.3d 66, 81 (2d Cir. 2002). 33
21

(a)

Failure to Speak With Officer Hebert

First, the district court pointed to defendants’ failure to disclose that no officer had spoken directly with Officer Hebert, who would have revealed that he did not himself feel threatened by Walczyk’s bloodbath statement. The conclusion is unconvincing both as a matter of law and fact. Preliminarily, we observe that the law permitting one law enforcement officer to rely on the report of another in applying for a warrant nowhere requires direct consultation to ensure that the officer reviewing the report ascribes no more weight to the described facts than the reporter intended. See generally Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006); Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000); Velardi v. Walsh, 40 F.3d at 574. Indeed, we have specifically ruled that “a police officer is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest.” Martinez v. Simonetti, 202 F.3d at 635 (internal quotation marks omitted). Thus, we reject the suggestion that a law enforcement officer is guilty of a material omission when, in applying for a warrant, he fails to disclose that he has not spoken directly with a fellow officer on whose report he relies to establish probable cause. Even if we were to assume, however, that the applicant officer’s failure to ascertain that the reporting officer did not consider words he heard to be threatening was relevant to a determination of probable cause, that is not this case. Officer Hebert did understand Walczyk’s bloodbath statement as a threat. At Walczyk’s criminal trial, Hebert testified that 34

he did not understand Walczyk to be threatening him, but he most certainly did understand Walczyk to be threatening any Barberino employees who came onto the disputed property. As we have already noted, this understanding finds ample support in the totality of facts recounted in the warrant affidavits. In sum, because Hebert’s subjective view of Walczyk’s statement, if it had been solicited by defendants and reported to the issuing magistrate, would actually have reinforced rather than undermined probable cause, we conclude that a “corrected” warrant affidavit would raise no genuine dispute as to the magistrate’s issuance of warrants for the arrest of Walczyk or the search of his home. (b) The Lack of a Prior Conviction for Threatening

A second purported omission is the defendants’ failure to disclose that none of Walczyk’s prior conduct had resulted in a conviction for threatening. This omission is hardly relevant. Certainly, nothing in the challenged affidavits wrongly insinuates that Walczyk had such a conviction. Absent such conduct, we expect that when a magistrate, mindful of the government’s burden to demonstrate probable cause, reviews a warrant application that does not report a prior conviction for a particular crime, the magistrate assumes for purposes of determining whether the government has carried its burden that no such conviction exists. See generally Minnesota v. Dickerson, 508 U.S. 366, 376 (1993) (noting that probable cause requirement ensures against government action based on speculation). Moreover, as this court observed in Brown v. D’Amico, the law does not demand that an officer applying for a warrant “volunteer every fact that arguably cuts against the existence of probable cause,” 35

as long as he does “not omit circumstances that are critical” to its evaluation, 35 F.3d 97, 99 (2d Cir. 1994). It was the particulars of Walczyk’s past conduct in using or threatening to use firearms to resolve disputes that was critical to the determination of the probability that his bloodbath statement constituted a threat of violence. This probability is in no way undermined by the lack of a prior conviction for threatening. Because we identify no merit in Thomas Walczyk’s facial challenge to the warrant affidavits authorizing his arrest and the search of his home, and because we determine as a matter of law that no alleged omissions were material to the issuance of these warrants, we conclude that he (as well as his wife and daughter) fails to demonstrate a viable unlawful search or arrest claim under federal or state law. Accordingly, we reverse the district court order denying defendants’ summary judgment with respect to these plaintiffs’ unlawful search and arrest claims, and we remand with directions to enter such a judgment. c. Elizabeth Walczyk (1) The Lack of Probable Cause

According to defendants, the theory for searching Elizabeth Walczyk’s residence was that it probably contained firearms accessible to her son, constituting some further evidence that his bloodbath statement was a threat of violence. To the extent Elizabeth Walczyk joins in her son’s facial challenge to the warrant affidavits and to his charged material omissions regarding Officer Hebert and Walczyk’s criminal record, we have already explained why we reject these arguments. The district court, however, identified another omission that raises 36

greater concern with respect to the search of Elizabeth Walczyk’s home. The warrant affidavit reported that Thomas Walczyk was licensed to possess various firearms and that he maintained two neighboring residences where such firearms would likely be found: “[A] review of Farmington Police records indicate[s] that Walczyk has maintained residences at both 27 and 28 Tunxis St., Farmington, CT.” Search Warrant Aff. and App. at 3. The implication was that Walczyk had maintained the residences recently. What the affidavit omitted, however, was the apparently undisputed fact that Walczyk had not resided at his mother’s 27 Tunxis Street residence for more than seven years. There can be no question that the omitted information was relevant to any assessment of probable cause. In evaluating probable cause, a magistrate is always required to consider whether the facts adduced in the warrant application “appear[] to be current, i.e., true at the time of the application,” or whether they have “become stale.” Rivera v. United States, 928 F.2d 592, 602 (2d Cir. 1991). The law sensibly draws no bright-line rule for staleness. Rather, a magistrate is expected to consider the age of the facts in light of the conduct at issue with a view toward ensuring that probable cause exists at the time the warrant is to be executed, not simply at some past time. See id.; see also United States v. Martino, 664 F.2d 860, 867 (2d Cir. 1981) (observing that, in circumstances of continuing or ongoing conduct, as contrasted with isolated illegal acts, “the passage of time between the last described act and the presentation of the application becomes less significant”). Thus, where information is seven years old, a magistrate must be alerted to that fact to make a reasonable probable 37

cause determination. As we have already observed, the question of what weight a magistrate would have given omitted relevant evidence is generally a question for the finder of fact. See Velardi v. Walsh, 40 F.3d at 574. In this case, however, we can conclude as a matter of law that nondisclosure of the staleness of the dual residency allegation was fatal to a demonstration of probable cause. Not only was the allegation seriously outdated, it was the sole support for a search of Elizabeth W alczyk’s home. A comparison best makes this point. With respect to 28 Tunxis Street, the issuing magistrate could have inferred that Walczyk maintained guns at that address because he was licensed to possess such weapons and, on at least one occasion, he was actually seen retrieving a loaded assault rifle from that premises to brandish at a person with whom he had a dispute. Further, neighbors had reported seeing him fire a handgun on that property. By contrast, no facts were alleged indicating that Walczyk had ever stored or retrieved firearms from his parents’ home, much less that he had done so in the seven years since last residing there. Defendants urged that inference simply from Walczyk’s license to possess firearms and his purported residence at 27 as well as 28 Tunxis Street. Whatever questions might be raised about the strength of such an inference in any circumstance, it could not be drawn from a dual residency allegation that was seven years old. Defendants submit that the search of Walczyk’s 28 Tunxis Street residence “would have been meaningless” if he were “free to cross the street to his parents[’] home, where he 38

formerly lived for many years, and have free access to other weaponry.” Appellant’s Br. at 30. This argument overlooks the fact that the warrant affidavit fails to allege any facts — apart from Walczyk’s dual residency — suggesting that anyone ever stored guns at 27 Tunxis Street. The affidavit makes no mention of the fact that Lucien or Elizabeth Walczyk was licensed to possess guns. As we have recently reiterated, probable cause to search must be based on particularized information about the place to be searched, not simply on a target’s “‘mere propinquity to others independently suspected of criminal activity.’” United States v. Martin, 426 F.3d 86, 88 (2d Cir. 2005) (quoting Ybarra v. Illinois, 444 U.S. 85, 91 (1979)). Once the dual residency allegation is “corrected,” we can conclude as a matter of law that the affidavit is devoid of any particularized information establishing probable cause to search Elizabeth Walczyk’s home. (2) Defendants’ Claim of Qualified Immunity; Elizabeth Walczyk’s Motion for Summary Judgment on the Issue of Liability

Despite our ruling that the search of Elizabeth Walczyk’s home was not supported by probable cause, defendants might still be entitled to claim qualified immunity from liability for damages if the search was supported by “arguable probable cause.” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (holding that, even in the absence of probable cause, officer “will still be entitled to qualified immunity from a suit for damages if he can establish that there was ‘arguable probable cause’”). “Arguable probable cause exists ‘if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers 39

of reasonable competence could disagree on whether the probable cause test was met.’” Id. (quoting Golino v. City of New Haven, 950 F.2d at 870); see also Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002). Like the district court, we conclude that questions of disputed fact preclude a judicial resolution of this issue in favor of either side. While no competent officer who knew that Thomas Walczyk had not resided in his parents’ home for more than seven years could reasonably think that the stale allegation of dual residency established probable cause to search that premises for firearms, it cannot be determined from the present record which officers, if any, possessed — or even should have possessed — such knowledge. Further record development and factfinding are necessary to determine, among other things, (1) which of the defendants, if any, actually reviewed the police records that purportedly established W alczyk’s residence at both 27 and 28 Tunxis Street; (2) whether these records would have alerted a reasonable officer to the staleness of the dual residency allegation; (3) which defendants, if any, possessed independent knowledge that the dual residency statement was not accurate; (4) the circumstances under which the dual residency allegation was communicated along the chain of defendants; and (5) whether any defendant’s reliance on such communication without further inquiry was reasonable in light of the totality of the circumstances.22 Because a resolution of some of these matters in
22

As the Supreme Court has explained:

[P]olice officers called upon to aid other officers in executing . . . warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of 40

favor of Elizabeth Walczyk could preclude one or more defendants from claiming that they acted with arguable probable cause in searching her home, the district court correctly concluded that defendants did not yet establish their entitlement to qualified immunity. On the other hand, because a resolution favorable to one or more defendants could afford them the benefit of a qualified immunity shield, the district court also correctly denied summary judgment on liability to Elizabeth W alczyk. Accordingly, we affirm both these rulings. C. Walczyk’s Excessive Bail Claim

Connecticut law allows state police to set temporary bail in certain cases. See Conn. Gen. Stat. § 54-63c(a). 23 The district court dismissed Walczyk’s excessive bail claim as a matter of law, holding that “when a police officer sets temporary bail” pursuant to this statute, “he performs a judicial function and hence has absolute immunity from suit.”

probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest [or search] cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest [or search]. Whiteley v. Warden, 401 U.S. 560, 568 (1971); see also Varrone v. Bilotti, 123 F.3d 75, 81 (2d Cir. 1997) (concluding that subordinate officers carrying out search directive of superior were entitled to qualified immunity although none had determined basis for order or reliability of information on which it was based). The statute, in pertinent part, requires a police officer “promptly [to] order release of the arrested person upon the execution of a written promise to appear or the posting of such bond as may be set by the police officer, except that no condition of release set by the court or a judge thereof may be modified by such officer.” Conn. Gen. Stat. § 54-63c(a) (emphasis added). An officer may set bail only after conducting an interview with the individual concerning the terms and conditions of release, at which interview counsel may be present. See id. 41
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Walczyk v. Rio, 339 F. Supp. 2d at 390. Other district courts in Connecticut have similarly ruled. See Sanchez v. Doyle, 254 F. Supp. 2d 266, 269-73 (D. Conn. 2003); accord Machuca v. Canning, No. 3:00-cv-1722, 2006 WL 2828160, at *6 (D. Conn. Sept. 29, 2006); Minney v. Kradas, No. 3:01-cv-1543, 2004 U.S. Dist. LEXIS 5520, at *9-11 (D. Conn. Mar. 31, 2004); Bacciocchi v. Chapman, No. 3:02-cv-1403, 2004 U.S. Dist. LEXIS 1077, at *18-20 (D. Conn. Jan. 26, 2004); Clynch v. Chapman, 285 F. Supp. 2d at 219-23. Citing Sanchez and Clynch by analogy, this court recently concluded that absolute judicial immunity shielded a prosecutor who ordered a defendant’s bond increased pursuant to Conn. Gen. Stat. § 5463d because the prosecutor was performing a judicial function. See Root v. Liston, 444 F.3d at 132 (observing that courts apply “functional approach to immunity questions”). Following Root, we now hold what the citations to Sanchez and Clynch implied: police officers setting bail under Conn. Gen. Stat. § 54-63c(a) are engaged in a judicial function that affords them absolute immunity. “It is . . . well established that officials acting in a judicial capacity are entitled to absolute immunity against § 1983 actions, and this immunity acts as a complete shield to claims for money damages.” Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999) (extending absolute immunity to parole board officials performing a quasi-judicial function in making parole decisions); see also Butz v. Economou, 438 U.S. 478, 511 (1978) (granting absolute immunity to administrative hearing examiners performing adjudicatory functions within federal agencies). As the Supreme Court has explained, it is “the nature of the function 42

performed, not the identity of the actor who performed it, that inform[s] our immunity analysis.” Forrester v. White, 484 U.S. 219, 229 (1988) (holding that judges do not enjoy absolute immunity when performing administrative, legislative, or executive functions). Following this “functional approach to immunity questions,” this court in Root v. Liston observed that “[o]rdinarily, it is judges who set bail, and judges enjoy absolute immunity when they do so.” 444 F.3d at 132 (internal citations omitted). In short, because the setting of bail is a judicial function, see Cleavinger v. Saxner, 474 U.S. 193, 205 (1985), absolute immunity extends to police officers when they perform that function pursuant to statute. Accordingly, we affirm the district court’s dismissal of Walczyk’s excessive bail claim. III. Conclusion To summarize: 1. The unlawful search and arrest challenges of Thomas, Maximina, and Michelle Walczyk are without merit as a matter of law because the warrants for Walczyk’s arrest and for the search of these plaintiffs’ home were supported by probable cause. Defendants are entitled to have summary judgment entered in their favor on these claims. 2. The warrant authorizing the search of Elizabeth Walczyk’s home was plainly not supported by probable cause; nevertheless, the district court correctly denied summary judgment to both Elizabeth Walczyk and defendants because disputed questions of fact must be resolved before it can be determined whether defendants’ actions are shielded by qualified 43

immunity or whether plaintiff is entitled to have a liability judgment entered in her favor. 3. Summary judgment was correctly entered in favor of defendants on Thomas Walczyk’s claim of excessive bail because police officers, when setting bail pursuant to Conn. Gen. Stat. § 54-63c(a), perform a judicial function, which affords them absolute immunity from suit for money damages. That part of the district court order denying defendants’ summary judgment motion with respect to the unlawful search and arrest claims of plaintiffs Thomas, Maximina, and Michelle Walczyk is hereby R EVERSED and the case is R EMANDED for entry of such a judgment. In all other respects the appealed summary judgment rulings of the district court are A FFIRMED.

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Sotomayor, J., concurring: I agree fully with the outcome of this case, and I concur with most of the majority’s reasoning; however, I disagree with its description of the qualified immunity standard we should apply and its related discussion of “arguable probable cause.” A long line of decisions of this Court features the same doctrinal misstatements, and it is time we stopped repeating uncritically this particular language and gave it the attention it deserves.1 I join all of the majority opinion except Part II(B)(1),2 and I write separately to call the Court’s attention to our collective failure to harmonize our qualified immunity analysis with the Supreme Court’s directives. The portion of the majority’s qualified immunity discussion that I find objectionable reads as follows: “If the right at issue was not clearly established by then existing precedent, then qualified immunity shields the defendant. Even if the right at issue was clearly established in certain respects, however, an officer is still entitled to qualified immunity if ‘officers of reasonable competence could disagree’ on the legality of the action at issue in its particular factual context.” Maj. Op. at [23] (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). These two sentences and the citation to Malley reveal the two flaws I see in this circuit’s approach to qualified immunity. First, our approach splits the single question of whether a right is “clearly established” into two distinct steps,

1 2 3 1 2 3 4 5

To the extent the majority holds that courts may continue to rely on this language from Malley, Maj. Op. at [25 n.16], I note that such a holding is unnecessary and serves no purpose in this case except to complicate the law further. Although I also disagree with the majority’s use of the term “arguable probable cause” and its reliance on whether “officers of reasonable competence could disagree,” M aj. Op. at [41], I join Part II(B)(2)(c)(2) of the majority opinion because I agree with its conclusion that questions of disputed fact preclude judicial resolution of whether the officers are entitled to qualified immunity for their search of Elizabeth Walczyk’s house. 45
2

1

contrary to Supreme Court precedent. Second, we demand a consensus among all hypothetical reasonable officers that the challenged conduct was unconstitutional, rather than positing an objective standard of reasonableness to which defendant officers should be held, as the Supreme Court has repeatedly instructed us to do. I address both of these points in turn. The Supreme Court has made clear that “[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his [or her] conduct was unlawful in the situation he [or she] confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). That is, whether a right is clearly established is the same question as whether a reasonable officer would have known that the conduct in question was unlawful. This Court’s case law, in contrast, bifurcates the “clearly established” inquiry into two steps. See, e.g., Cerrone v. Brown, 246 F.3d 194, 199 (2d Cir. 2001) (“A police officer is entitled to qualified immunity from liability for his [or her] discretionary actions if either (1) his [or her] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known, or (2) it was objectively reasonable for him [or her] to believe that his [or her] actions were lawful at the time of the challenged act.” (emphasis added; internal quotation marks and citation omitted)). By splitting the “relevant, dispositive inquiry” in two, we erect an additional hurdle to civil rights claims against public officials that has no basis in Supreme Court precedent. Whether a reasonable officer would know his or her conduct to be unlawful requires an inquiry into the state of the law at the time of the conduct and “in light of the specific context of the case.” Saucier, 533 U.S. at 201. If the right at issue has not previously been articulated, or had been addressed only in a factual context that is “distinguishable in a fair way,” id. at 202, a reasonable

46

officer might not have known that the challenged conduct was unlawful.3 See also id. (“‘[T]he right the official is alleged to have violated must have been “clearly established” in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he [or she] is doing violates that right.’” (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Contrary to what our case law might suggest, the Supreme Court does not follow this “clearly established” inquiry with a second, ad hoc inquiry into the reasonableness of the officer’s conduct. Once we determine whether the right at issue was clearly established for the particular context that the officer faced, the qualified immunity inquiry is complete. Wilson v. Layne, 526 U.S. 603 (1999), illustrates the inquiry that the Supreme Court contemplates for qualified immunity. The Wilsons brought suit against law enforcement officers who permitted members of the media to accompany them in an early morning raid of the Wilsons’ home. Id. at 607. Having concluded that the officers’ actions violated the Fourth Amendment, the Court considered whether the officers were entitled to qualified immunity. Id. at 614. The Court explained that “what ‘clearly established’ means in this context depends largely ‘upon the level of generality at which the relevant “legal rule” is to be identified.’” Id. at 614 (quoting Anderson, 483 U.S. at 639). That is, to be clearly established, “[t]he contours of the right must be sufficiently clear

1 2 3 4 5 6 7

The Supreme Court has stated, however, that the “clearly established” standard does not mean that “an official action is protected by qualified immunity unless the very action in question has previously been held unlawful,” Anderson v. Creighton, 483 U.S. 635, 640 (1987), nor does the standard necessarily require that the facts of earlier cases be “materially similar” to the case under consideration, Hope v. Pelzer, 536 U.S. 730, 739-41 (2002). The standard is one of “fair warning,” id. at 741, such that “unlawfulness must be apparent” in light of pre-existing law, Anderson, 483 U.S. at 640. 47

3

that a reasonable official would understand that what he [or she] is doing violates that right.” Id. at 615 (internal quotation marks omitted). The Court concluded that the officers were entitled to qualified immunity because it was “not obvious from the general principles of the Fourth Amendment,” id. at 615-16, or judicial decisions that the presence of the media was unlawful, and “[g]iven [the] undeveloped state of the law, the officers . . . cannot have been expected to predict the future course of constitutional law,” id. at 617 (internal quotation marks omitted). Wilson confirms that whether an officer’s conduct was objectively reasonable is part and parcel of the inquiry into whether the law was clearly established at the time of the challenged conduct and for the particular context in which it occurred. To ask whether an officer’s violation of an individual’s right was objectively reasonable after we have found that the right was clearly established in the particularized sense finds no warrant in Wilson, Saucier, or any other recent Supreme Court discussion of qualified immunity. See also Brosseau v. Haugen, 543 U.S. 194, 199200 (2004) (per curiam); Groh v. Ramirez, 540 U.S. 551, 563 (2004); Hope v. Pelzer, 536 U.S. 730, 739-46 (2002). I suspect that our bifurcation of the “clearly established” analysis derives from the eminently reasonable principle that whether a right is clearly established “is not answered by reference to how courts or lawyers might have understood the state of the law.” Maj. Op. at [23]. We do not expect law enforcement officers to keep abreast of every development in the case law or to recognize every implication of legal precedent for police conduct that courts have not previously considered. See Saucier, 533 U.S. at 205 (“It is sometimes difficult for an officer to determine how the relevant legal doctrine . . . will apply to the factual situation the officer confronts.”). But our bifurcated approach

48

makes too much of this principle by divorcing the reasonableness inquiry from the state of the law at the time of the conduct in question. The inquiry described by the Supreme Court already incorporates a recognition that police officers should not be expected to anticipate every application of legal principles because it requires that the right be clearly established with particularity for the conduct at issue. In this case, the particularity requirement means that our “clearly established” inquiry is not complete upon reaching the indisputable conclusion that an individual has the right to be free from arrest, search, or seizure absent probable cause. See Anderson, 483 U.S. at 640-41. Rather, we must determine whether it was clearly established that the situation the officer confronted did not give rise to probable cause. See id. at 641 (holding that officials who “reasonably but mistakenly conclude that probable cause is present . . . should not be held personally liable”); see also Saucier, 533 U.S. at 206 (“[E]ven if a court were to hold that the officer violated the Fourth Amendment by conducting an unreasonable, warrantless search, Anderson still operates to grant officers immunity for reasonable mistakes as to the legality of their actions.”). In other words, based on the law at the time the conduct occurred, would a reasonable officer have known that his or her actions were not supported by probable cause, and therefore were in violation of the Fourth Amendment? The majority opinion takes this question wholly outside of the “clearly established” inquiry and asks whether the officers had “arguable probable cause.” See Maj. Op. at [41]. This Court has used the term “arguable probable cause” to describe the standard for finding that a defendant officer is entitled to qualified immunity for his or her reasonable but mistaken determination that probable cause existed in a particular context. See Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002)

49

(“[I]n the context of a qualified immunity defense to an allegation of false arrest, the defending officer need only show arguable probable cause. This is because at its heart, [t]he concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct.” (internal quotation marks and citations omitted; alteration in original)); Cerrone, 246 F.3d at 203.4 We have also stated that “arguable probable cause” falls under the objective reasonableness determination of our qualified immunity test. See Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007). Yet reasonableness—and therefore the existence of “arguable probable cause”—are considerations that properly fall within the clearly established inquiry as the Supreme Court has described it. See Anderson, 483 U.S. at 640-41; Brosseau, 543 U.S. at 199-201. It is not surprising, then, that “arguable probable cause” finds no mention in any Supreme Court opinion; the need for a separate term to describe this concept arises only once we have improperly splintered the “clearly established” inquiry. Because I believe “arguable probable cause” is both imprecise and an outgrowth of the first flaw in our qualified immunity analysis, I do not agree with the majority’s use of the term. I recognize that the distinction I am drawing is a fine one, but I believe it has real consequences. Our approach does not simply divide into two steps what the Supreme Court treats singly, asking first, whether the right is clearly established as a general proposition, and second, whether the application of the general right to the facts of this case is something a reasonable officer could be expected to anticipate. Instead, we permit courts to decide that official conduct was

1 2 3

Other courts of appeals have also used the term “arguable probable cause” in a similar way as this Court. See, e.g., Williams v. Jaglowski, 269 F.3d 778, 781-82 (7th Cir. 2001); Jones v. Cannon, 174 F.3d 1271, 1283 & n.3 (11th Cir. 1999). 50

4

“reasonable” even after finding that it violated clearly established law in the particularized sense. By introducing reasonableness as a separate step, we give defendants a second bite at the immunity apple, thereby thwarting a careful balance that the Supreme Court has struck “between the interests in vindication of citizens’ constitutional rights and in public officials’ effective performance of their duties.” Anderson, 483 U.S. at 639 (quoting Davis v. Scherer, 468 U.S. 183, 195 (1984)). My second objection to the majority’s formulation of the qualified immunity standard is that it treats objective reasonableness as turning on whether “officers of reasonable competence could disagree.”5 Maj. Op. at [23]. This language, which our cases frequently recite, see, e.g., Iqbal v. Hasty, – F.3d –, 2007 WL 1717803, at *20 (2d Cir. June 14, 2007); Cerrone, 246 F.3d at 202; Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995), derives from the Supreme Court’s 1986 decision in Malley, 475 U.S. at 341. Whether reasonably competent officers could disagree about the lawfulness of the conduct at issue, however, is not the same question the Supreme Court has repeatedly instructed us to consider: whether “it would be clear to a reasonable officer that his [or her] conduct was unlawful in the situation he [or she] confronted.”6 Saucier, 533 U.S. at 202

1 2 3 4 5 6 7 8 9 10 1 2

This language also appears in the majority opinion as part of the explanation of “arguable probable cause.” Maj. Op. at [41]. Notably, however, by stating that “[a]rguable probable cause exists if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met,” id. (emphasis added; internal quotation marks and citation omitted), this passage seems to support the argument that whether “officers of reasonable competence could disagree” is not an objective reasonableness test. In addition, by adding two steps to the qualified immunity analysis beyond whether the particular right was clearly established, the majority’s discussion of “arguable probable cause” further splinters our qualified immunity test. Although Saucier does not specifically refer to the reasonable officer’s competence, I have no quarrel with the assumption that a “reasonable officer” is also a competent officer. 51
6

5

(emphasis added); see also Brosseau, 543 U.S. at 199 (quoting Saucier); Groh, 540 U.S. at 563 (same); Hope, 536 U.S. at 746 (same). As with our bifurcation of the “clearly established” inquiry, our requirement of consensus among all reasonable officers departs from Supreme Court dictates and unjustifiably raises the bar to liability for violations of constitutional rights. Reasonable person standards are familiar constructs in the law. They define the level of prudence, care, or knowledge that the law will require of a defendant called to task for his or her actions. In the qualified immunity context, the reasonable officer embodies the minimum degree of judgment and awareness of the law that courts expect law enforcement officials to exercise in the conduct of their duties. That is, the reasonable officer standard sets the threshold beyond which a defendant officer will not be entitled to immunity. As I have discussed, to determine what conduct a reasonable officer should have known to be unlawful in the situation presented, a court must decide whether the law was sufficiently clear regarding the conduct at issue, such that the reasonable officer, and thus the defendant, would have had “fair notice that [his or] her conduct was unlawful.” Brosseau, 543 U.S. at 198. Asking whether “officers of reasonable competence could disagree” shifts this inquiry subtly but significantly. Instead of asking whether the defendant’s conduct was beyond the threshold of permissible error, as the reasonable officer standard does, this inquiry affords a defendant immunity unless a court is confident that a range of hypothetical reasonably competent officers could not disagree as to whether the defendant’s conduct was lawful. This standard is not only more permissive of defendants seeking to justify their conduct; it also takes courts outside their traditional domain, asking them to speculate as to the range of views that reasonable law enforcement officers

52

might hold, rather than engaging in the objective reasonableness determination that courts are wellequipped to make. The Supreme Court has specifically criticized the conflation of an objective reasonableness standard with a requirement of unanimous consensus in the context of a petition for a writ of habeas corpus. In Williams v. Taylor, 529 U.S. 362 (2000), the Court interpreted the statutory provision allowing a federal court to grant review of a petition for a writ of habeas corpus when a state court judgment “involved an unreasonable application of[] clearly established Federal law,” 28 U.S.C. § 2254(d)(1). The Fourth Circuit had previously held that a state court’s adjudication involved an “unreasonable application” of federal law only if “the state court has applied federal law ‘in a manner that reasonable jurists would all agree is unreasonable.’” Williams, 529 U.S. at 409 (quoting Green v. French, 143 F.3d 865, 870 (4th Cir. 1998) (emphasis added)). Both the majority and plurality Supreme Court opinions rejected the Fourth Circuit’s interpretation of the “unreasonable application” standard, explaining that whether an application of the law is objectively unreasonable is a different, less stringent standard than one that asks whether reasonable jurists would unanimously find an application of law unreasonable. See id. at 409-10 (majority opinion) (“[A] federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established federal law was objectively unreasonable. The federal habeas court should not transform the inquiry into a subjective one by resting its determination instead on the simple fact that at least one of the Nation’s jurists has applied the relevant federal law in the same manner the state court did in the habeas petitioner’s case.”); id. at 378 (plurality opinion) (“As Congress is acutely aware, reasonable lawyers and lawgivers regularly disagree with one

53

another. Congress surely did not intend that the views of one such judge who might think that relief is not warranted in a particular case should always have greater weight than the contrary, considered judgment of several other reasonable judges.”).7 Our Court similarly has adopted an unjustifiably stringent standard in the qualified immunity context by prohibiting liability for constitutional violations where a court believes that one reasonably competent officer would find the conduct at issue lawful, even if the overwhelming majority would not. Finally, I note that although we repeat Malley’s “officers of reasonable competence” test with regularity, and it appears frequently in the decisions of other federal courts of appeals, see, e.g., Brittain v. Hansen, 451 F.3d 982, 988 (9th Cir. 2006); Armstrong v. City of Melvindale, 432 F.3d 695, 701 (6th Cir. 2006); Wollin v. Gondert, 192 F.3d 616, 625 (7th Cir. 1999), it has not appeared a second time in any majority opinion of the Supreme Court. It seems curious that we would continue to rest our qualified immunity standard on language the Supreme Court has carefully eschewed for over twenty years since Malley was decided. In sum, the Supreme Court has struck a careful balance between the vindication of constitutional rights and government officials’ ability to exercise discretion in the performance of their duties. Our case law, in subtle but important ways, has altered this balance in favor of defendants by adding another analytic step to the qualified immunity analysis and equating objective reasonableness with unanimity among “officers of reasonable competence.” In the vast majority of

1 2 3 4

This caution against transforming a reasonableness inquiry into a consensus requirement is instructive notwithstanding the plurality’s statement that the particular statute at issue was not meant to codify the standard for qualified immunity into the law of habeas review. See Williams, 529 U.S. at 380 n.12 (plurality opinion). 54

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cases, including this one, the particular phrasing of the standard will not alter the outcome of the qualified immunity analysis. There is no doubt in this case that a reasonable officer would believe that the arrest of Thomas Walcyzk, as well as the search of his home and the seizure of firearms found there, were lawful. Yet the effect in future cases may not always be so benign. What is more, the majority’s framework introduces unnecessary complications into an already complicated qualified immunity analysis. It is time to eliminate these complications and reconcile our qualified immunity analysis with the Supreme Court’s most recent, authoritative jurisprudence.

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02-4611-ag, 02-4629-ag, 03-40837-ag Lin et. al. v. U.S. Dept. of Justice

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 (Argued: March 7, 2007

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2006 Decided: July 16, 2007)

Docket Nos. 02-4611-ag, 02-4629-ag, 03-40837-ag _____________________ SHI LIANG LIN , Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE ; ATTORNEY GENERAL GONZALES, Respondents; _____________________ ZHEN HUA DONG , Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE ; ATTORNEY GENERAL GONZALES Respondents; _____________________ XIAN ZOU , Petitioner, v. ATTORNEY GENERAL GONZALES,

1

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Respondent. _____________________ Before: JACOBS , Chief Judge, CALABRESI, CABRANES, STRAUB , POOLER , SACK , SOTOMAYOR , KATZMANN , PARKER , RAGGI, WESLEY , and HALL , Circuit Judges. Petitions for review of orders of the Board of Immigration Appeals denying applications for asylum, withholding of removal, and relief under the Convention Against Torture. The petition for review of Zhen Hua Dong is DENIED. Xian Zou’s and Shi Liang Lin’s petitions are DISMISSED for lack of jurisdiction. Judge PARKER delivered the opinion of the Court, in which JACOBS , C.J., and CABRANES, SACK , RAGGI, WESLEY , and HALL , JJ., joined. Judge KATZMANN filed a concurring opinion, in which STRAUB , POOLER , and SOTOMAYOR , JJ., joined. Judge SOTOMAYOR filed a concurring opinion, in which POOLER , J., joined. Judge CALABRESI filed an opinion concurring in part and dissenting in part.

BRUNO JOSEPH BEMBI, Hempstead, NY, for Petitioners Shi Liang Lin and Zhen Hua Dong. ALEKSANDER MILCH , Christophe & Associates, P.C., New York, NY, for Petitioner Xian Zou. KATHY S. MARKS, Assistant United States Attorney, (Sara L. Shudofsky, Assistant United States Attorney, of counsel) for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, for Respondents the United States Department of Justice and Attorney General Gonzales. BARRINGTON D. PARKER , Circuit Judge: In 1997 the Board of Immigration Appeals (“BIA”) held in Matter of C-Y-Z-, 21 I. & N. Dec. 915 (B.I.A. 1997) (en banc) that an individual whose spouse has been forced to abort a pregnancy, undergone involuntary sterilization, or been persecuted under a coercive population

2

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control program could automatically qualify for asylum as a “refugee” under § 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) (amending 8 U.S.C. § 1101(a)(42), Immigration and Nationality Act (“INA”) § 101(a)(42)). See In re S-L-L-, 24 I. & N. Dec. 1, 3 (B.I.A. 2006) (en banc) (“In Matter of C-Y-Z-, . . . we held that a husband whose wife was forcibly sterilized could establish past persecution under this amendment to section 101(a)(42) of the [INA].”). This appeal considers whether the BIA’s interpretation of the statute was correct. We conclude it was not. Petitioners Shi Liang Lin, Zhen Hua Dong, and Xian Zou are citizens of the People’s Republic of China and unmarried partners of individuals allegedly victimized by China’s coercive family planning policies. Each seeks review of an order of the BIA summarily affirming the denial of an application for asylum based, in part, on the BIA’s holding in C-Y-Z.1 We remanded these petitions to the BIA to afford it the opportunity to explain its rationale in CY-Z- for reading § 601(a) to say that the spouses of those directly victimized by coercive family planning policies are per se eligible for asylum as if they were directly victimized themselves and also to clarify the status of boyfriends and fiancés under that statute. See Lin v. U.S. Dep’t of Justice, 416 F.3d 184, 187 (2d Cir. 2005). We retained jurisdiction. Id. On remand, the BIA reaffirmed its holding in C-Y-Z- that spouses are entitled to automatic eligibility under § 601(a) but limited this per se eligibility to legally married applicants. S-L-L-, 24 I. & N. Dec. 1. Eschewing a text-based analysis, the BIA elected to

See In re Shi Liang Lin, No. A70 895 638 (B.I.A. Sept. 29, 2002), aff’g No. A70 895 638 (Immig. Ct. N.Y. City May 9, 2000); In re Zhen Hua Dong, No. A 7 293 661 (B.I.A. Sept. 25, 2002), aff’g No. A77 293 661 (Immig. Ct. N.Y. City Oct. 12, 2000); In re Zou, No. A77 322 595 (B.I.A. Aug. 27, 2002), aff’g No. A77 322 595 (Immig. Ct. N.Y. City Apr. 4, 2002).
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interpret the forced abortion and sterilization clause of the section “in light of the overall purpose of the amendment” to include both parties to a marriage. Id. at 8. The Board reaffirmed the dismissal of the appeals of petitioners Lin, id., and Dong, In re Zhen Hua Dong, No. A77 293 661 (B.I.A. Nov. 27, 2006), and remanded Zou’s petition for a determination of whether he qualified for asylum based on the “other resistance to a coercive population control program” clause in § 601(a), In re Xian Zou, No. A73 178 541 (B.I.A. Nov. 21, 2006). Following the BIA’s decision, we ordered rehearing en banc to consider two issues: First, whether § 601(a)’s provisions are ambiguous, so that the BIA’s construction of them warrants Chevron deference; and second, whether the BIA reasonably construed § 601(a) to extend automatic asylum eligibility to a petitioner whose legally married spouse was subjected to an involuntary abortion or sterilization but not to a domestic partner or fiancé whose claim is derivative unless the petitioner engaged in “other resistance” to a coercive population control policy. Lin v. U.S. Dep’t of Justice, Nos. 02-4611, 02-4629, 03-40837 (2d Cir. Nov. 13, 2006) (order) (“En banc order”). See S-L-L-, 24 I. & N. Dec. 1; Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). We now conclude that the BIA erred in its interpretation of 8 U.S.C. § 1101(a)(42) by failing to acknowledge language in § 601(a), viewed in the context of the statutory scheme governing entitlement to asylum, that is unambiguous and that does not extend automatic refugee status to spouses or unmarried partners of individuals § 601(a) expressly protects. Accordingly, the petition of Zhen Hua Dong is denied. The petition of Shi Liang Lin is dismissed as moot.2 Subsequent to oral arguments, we learned that Lin has had no contact with his attorneys since “early 2004,” and that his attorney believes that he has either returned to China or is deceased. (Aff. of Yee Ling Poon, ¶¶ 3-5). Accordingly, Lin’s case is moot. See 8 C.F.R. §
2

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The petition of Xian Zou is dismissed for lack of jurisdiction.3 We recognize that this decision creates a split among the circuits.4 I. BACKGROUND Congress has given the Attorney General the discretionary authority to grant asylum to an alien who qualifies as a “refugee” because he or she “is unable or unwilling to avail himself

1208.8. We no longer have jurisdiction over Zou’s petition because the BIA has remanded the case to the immigration court for further findings. See In re Xian Zou, No. A77 322 295 (B.I.A. Nov. 21, 2006).
3

A number of our sister circuits have deferred to the BIA’s interpretation of § 601(a). See, e.g., Zhang v. Gonzales, 434 F.3d 993, 1001 (7th Cir. 2006); Huang v. Ashcroft, 113 Fed. App’x 695, 700 (6th Cir. 2004) (unpublished opinion); He v. Ashcroft, 328 F.3d 593, 604 (9th Cir. 2003); Li v. Ashcroft, 82 Fed. App’x 357, 358 (5th Cir. 2003) (unpublished per curiam opinion). While the Third Circuit had questioned the BIA’s reading of the plain language of the amendment, stating that “[i]t takes some effort to reconcile [the BIA’s] interpretation with the language of the 1996 amendment, since the phrase ‘a person who has been forced to abort a pregnancy or to undergo involuntary sterilization’ is most naturally read as referring only to a person who has personally undergone one of those procedures,” Chen v. Ashcroft, 381 F.3d 221, 226 (3d Cir. 2004) (Alito, J.), a divided panel of the Third Circuit recently validated the BIA’s interpretation of § 601(a) over a vigorous dissent. See Sun Wen Chen v. U.S. Att’y Gen., – F.3d –, 2007 WL 1760658, at *4-*6 (3d Cir. June 20, 2007). The circuits are already split over whether § 601(a) provides protection for individuals who marry in traditional ceremonies not recognized by their government and later seek asylum based on the forced abortion or sterilization of their “common law spouses.” The Seventh and Ninth Circuits have held that the statute covers spouses from traditional marriage ceremonies, see Zhang, 434 F.3d at 999; Zhu v. Gonzales, 465 F.3d 316, 321 (7th Cir. 2006); Ma v. Ashcroft, 361 F.3d 553, 559-61 (9th Cir. 2004). In contrast, the Third Circuit, in Chen, supra, held that the amendment does not cover unmarried partners, even when they have been prevented from marrying by their government’s family planning policy. 381 F.3d at 232-34; see also Chen v. Gonzales, 418 F.3d 110, 111 (1st Cir. 2005) (acknowledging circuit split on the issue). While they have not reached the issue of traditional marriage ceremonies, the Fifth and Eleventh Circuits have declined to extend IIRIRA § 601 to cover boyfriends of individuals who have been subjected to a forced abortion or sterilization. See Zhang v. Ashcroft, 395 F.3d 531, 532 (5th Cir. 2004); Wang v. U.S. Att’y Gen., 152 Fed. App’x 761, 767 (11th Cir. 2005) (unpublished opinion).
4

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or herself of the protection of [his or her native country] because of persecution or a wellfounded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42). A showing of past persecution gives rise to a rebuttable presumption of a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b)(1). In 1996, Congress passed IIRIRA § 601(a), which amended 8 U.S.C. § 1101(a)(42) by broadening its definition of “refugee,” adding the following language: [A] person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion. 8 U.S.C. § 1101(a)(42). The next year, the BIA held that “past persecution of one spouse can be established by coerced abortion or sterilization of the other spouse,” so that spouses of individuals directly victimized by coercive family planning policies are per se eligible for asylum pursuant to § 1101(a)(42). See Matter of C-Y-Z-, 21 I. & N. Dec 915, 917-18 (B.I.A. 1997) (en banc). The BIA gave no reasons for reading the statute to compel this result. Petitioner Lin entered the United States in January 1991 and filed an application for asylum and withholding of removal in June 1993. According to Lin’s application, he had sought the required governmental permission to marry his girlfriend and have children with her, but she was too young under Chinese law. After his girlfriend became pregnant and was forced to have

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an abortion, Lin left China. His girlfriend remained in China because she was too weak to travel. Following a hearing, the IJ found Lin credible, but concluded that he did not qualify for asylum based on his girlfriend’s forced abortion and denied the petition. The BIA affirmed without opinion. See In re Shi Liang Lin, No. A70 895 638 (B.I.A. Sept. 29, 2002), aff’g No. A70 895 638 (Immig. Ct. N.Y. City May 9, 2000). Petitioner Dong attempted to enter the United States in October 1999, and was detained by INS officials. When the INS commenced removal proceedings, Dong requested asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). His asylum petition was based on a claim that his fiancée (who continued to reside in China) had been forced to undergo two abortions and that he would be jailed and fined for having left China illegally were he to be deported. The IJ denied Dong’s petition, finding that, although he was credible, he did not qualify for refugee status as a fiancé of a woman who had undergone forced abortions, and had not established other grounds for relief. The BIA affirmed the IJ’s decision. See In re Zhen Hua Dong, No. A77 293 661 (B.I.A. Sept. 25, 2002), aff’g No. A77 293 661 (Immig. Ct. N.Y. City Oct. 12, 2000). Petitioner Zou was taken into custody by the INS when he attempted to enter the United States in September 2000. After removal proceedings commenced, Zou filed for asylum. Under Chinese law, Zou and his girlfriend had been too young to marry. He claimed that she had been forced to have an abortion and he had been threatened with arrest after protesting to family planning officials. An IJ denied the application. The IJ found Zou’s testimony concerning his threatened arrest incredible, doubting that Zou would be able to evade the Chinese authorities and travel to the United States with an outstanding warrant of arrest from the Chinese

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government. Left only with Zou’s claim that his girlfriend had undergone a forced abortion, the IJ held that Zou did not qualify for relief under § 1101(a)(42) on that basis. Zou appealed to the BIA, which affirmed the decision of the IJ. See In re Zou, No. A77 322 595 (B.I.A. Aug. 27, 2002), aff’g No. A77 322 595 (Immig. Ct. N.Y. City Apr. 4, 2002). The three petitioners sought review here and the cases were heard in tandem. Three different interpretations of the application of “refugee” status to the facts in these cases have been proposed by the parties throughout the litigation. When we heard the petitions in tandem, the Department of Justice argued that § 601(a) of IIRIRA should be understood to confer per se refugee status on spouses of individuals who had undergone forced abortions or involuntary sterilizations, but not to boyfriends or fiancés, who were covered, if at all, under the “other resistance” language of the amendment. Second, the petitioners argued, both before this Court and before the BIA, that the distinction between spouses and unmarried partners was arbitrary and that the statute should be interpreted to extend per se refugee status to the committed partners of individuals who have been forced to undergo an abortion or involuntarily sterilization. The third, a text-based interpretation, was put forth before the BIA by the Department of Homeland Security (“DHS”), which is “charged with the administration and enforcement of . . . laws relating to the immigration and naturalization of aliens,” 8 U.S.C § 1103(a)(1). In its brief to the BIA, the DHS insisted that no support existed in the statute for the BIA’s automatic extension of § 601(a) to spouses. Specifically, the DHS asserted that the BIA’s interpretation was “at odds with the most natural reading of the statute and with established principles of asylum law.” Brief of DHS on Remand at 5, In re S-L-L-, 24 I. & N. Dec. 1 (B.I.A. 2006) (en

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banc) (No. A 70 895 638) (“DHS brief”). Carefully considering the text of § 601(a), the DHS concluded that a rule conferring per se refugee status on spouses of individuals persecuted under coercive family planning policies contradicted the unambiguous language of the amendment. Further, the DHS stated that such a rule was at odds with the legislative history of the amendment, as well as “a fundamental precept of U.S. refugee law . . . that, to qualify for protection, an applicant must demonstrate that he will be targeted for his own protected belief or characteristic.” DHS brief at 8-9, 11. The DHS understood that the statute required a “case-bycase” application to individuals who have not themselves been victims of a forced abortion or involuntary sterilization. Under this approach, spouses, boyfriends, and fiancés would have to demonstrate their qualification for refugee status under the “for other resistance to a coercive population control program” provision of § 601(a). On remand, in S-L-L-, 24 I. & N. Dec 1, the BIA affirmed its earlier decision in C-Y-Z that under § 601(a) an applicant whose spouse was forced to undergo an abortion or sterilization procedure is automatically entitled to asylum, while limiting its interpretation to individuals who were opposed to their legal spouse’s abortion or sterilization. Id. at 4. The BIA reasoned that § 601(a) provided “no clear or obvious answer to the scope of the protections . . . to partners of persons forced to submit to an abortion or sterilization.” Id. As a result of this perceived ambiguity, the majority chose to ground its interpretation “in the context of the history and purposes of the Act as a whole,” finding that absent evidence that the spouse did not oppose an abortion or sterilization procedure, we interpret the forced abortion and sterilization clause of section 101(a)(42) of the Act, in light of the overall purpose of the amendment, to include both parties to a marriage.

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Id. at 8. While the decision rested on “the forced abortion and sterilization clause of section 101(a)(42),” the Board noted that it was applying “general principles regarding nexus and level of harm.” Id. at 5. The majority based its conclusion on a number of policy-based factors, including the positions taken by the litigants and the fact that C-Y-Z-, as a ten-year-old decision, constituted long-standing precedent. The majority was also influenced by the shared responsibility of married couples regarding family planning decisions under Chinese law and the “profound impact” that a forced abortion or sterilization has on both parties to a marriage. Id. at 6-8. The majority stopped short of extending a per se presumption to boyfriends, fiancés, and other unmarried partners. It concluded that they were not comparable to husbands because “the sanctity of marriage and the long term commitment reflected by marriage place the husband in a distinctly different position from that of an unmarried father.” Id. at 9. The BIA dismissed the appeals of Lin, id., and Dong, In re Zhen Hua Dong, No. A77 293 661 (B.I.A. Nov. 27, 2006), and remanded Zou’s case to the immigration court “for further evidence on the issues of resistance and harm” based on the “other resistance” clause of § 1101(a)(42), In re Xian Zou, No. A73 178 541 (B.I.A. Nov. 21, 2006). Board Member Pauley concurred. While deferring to the BIA’s prior decision in C-Y-Z as long-standing and widely accepted precedent, he conceded that: [w]ere we writing on a clean slate, I would adopt the lately arrived at position of the Department of Homeland Security . . . that whether or not the spouse of a forcibly sterilized or aborted individual can be found to have been persecuted depends on a case-by-case assessment of whether that spouse was persecuted on account of “other resistance” to a coercive population control system, because the language of the Act does not support extending refugee status to any person other than the one sterilized or aborted, aside from the “other resistance” ground.

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Id. at 13 (Pauley, B.M., concurring). Board Member Filppu, joined by Board Member Cole, concurred in the result but dissented from the majority’s reaffirmation of C-Y-Z. They reasoned that the language of the statute was unambiguous in “focus[ing] on ‘a person’ who has been forced to abort a pregnancy, not on a ‘couple,’ let alone a married couple . . . .” Id. at 16 (Filppu, B.M., concurring and dissenting). Understanding that “statutory interpretation must begin with reference to the language and structure of the statute,” id. at 15, and “Congress expresses its intent through the language it chooses,” id. at 19 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n.12 (1987)), the dissenters concluded that an individual who has not been subjected to a forcible abortion or sterilization procedure can qualify for refugee status in relation to a coercive family planning policy only if he proves that he was persecuted or has a well-founded fear of future persecution “for other resistance to a coercive population control program.” Id.5 Following the BIA’s decision, we ordered an en banc rehearing to determine whether § 601(a) is ambiguous, whether the BIA’s interpretation of “refugee” should be accorded Chevron deference, and “[w]hether the BIA reasonably construed IIRIRA § 601’s definition of “refugee” to: (a) include a petitioner whose legally married spouse was subjected to an involuntary abortion or sterilization . . . ; and (b) not include a petitioner whose claim is derivatively based on any other relationship with a person who was subjected to such a procedure, unless the petitioner has engaged in ‘other resistance’ to a coercive population control program . . . .” See

While here, as throughout the opinion, we refer to a male petitioner with a wife or girlfriend who has been forced to undergo an abortion or sterilization, our reasoning applies with equal force to the perhaps more uncommon situation in which a female petitioner’s male spouse or boyfriend has been forced to undergo sterilization.
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En banc order. We now conclude that the BIA’s interpretation of the statute is not correct. II. DISCUSSION When reviewing the BIA’s interpretation of statutes that it administers, we apply the Chevron principles. We first ask if Congress has spoken. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43; see also INS v. Cardoza-Fonseca, 480 U.S. 421, 447-48 (1987). Only if the statute is silent or ambiguous do we turn to the second inquiry – whether the BIA’s interpretation constitutes “a permissible construction of the statute.” Chevron, 467 U.S. at 843. While the petitioners in this case are unmarried partners, and not spouses, of individuals who have been subjected to forced abortions, we review the BIA’s interpretation of § 601, as articulated in its decision below, to extend a per se presumption of persecution to spouses, but not to non-married partners, of individuals who have been involuntarily subjected to an abortion or sterilization.6 It is the existence of this spousal policy that the petitioners argue is an arbitrary and capricious interpretation of the statute. If the BIA’s policy is at odds with the plain language of the statute, it makes little sense to consider only whether it can reasonably be limited to couples who are formally married. We announced our intention to reach this question in our order that this case be reheard en banc. In that order we instructed the parties to address the BIA’s interpretation of § 601 as it related to both spouses and non-married partners of individuals subjected to an involuntary abortion or sterilization. All members of this en banc panel joined the order, including those who now express confusion as to why we reach the question. We are particularly perplexed by the position taken by our colleagues Judge Katzmann and Judge Sotomayor, who contend we are overreaching by considering whether the BIA’s per se rule survives review under Chevron step one, but who then proceed to assess, and declare valid, the same rule under Chevron step two. Op. of Judge Katzmann at 16, Op. of Judge Sotomayor at 1 & n.1.
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Accordingly, we start our Chevron analysis of § 601(a) by asking whether Congress has spoken directly to the question of whether an individual can establish past persecution based solely on his spouse or partner’s forced abortion or sterilization. 467 U.S. at 842-43. In S-L-L-, the BIA, without elaboration or explanation, observed that “[t]here is no clear or obvious answer to the scope of the protections afforded by the amendment to partners of persons forced to submit to an abortion or sterilization.” 24 I. & N. Dec. at 4. We disagree. We conclude that Congress has spoken to this issue and that it has done so unambiguously. In the past, this Court, when following the BIA’s holding in C-Y-Z-, has deferred to the BIA’s interpretation without performing a threshold Chevron analysis of the ambiguity of the statute. In Yuan v. U.S. Dep’t of Justice, for example, we stated of IIRIRA § 601 that, “[b]y its plain language, the law would seem to extend refugee status only to actual victims of persecution – for example, a woman who was ‘forced to abort a pregnancy,’ but not her husband.” 416 F.3d 192, 196 (2d Cir. 2005). Despite this recognition of the amendment’s plain language, we went on to defer to the interpretation of the BIA, stating that, “we have held that spouses of people actually subject to persecution under coercive family planning policies are per se eligible for asylum. . . . In doing so, however, we did not explain why. Rather, we followed the lead of the BIA.” Id. at 196-97 (internal citation omitted); see also Zhang v. I.N.S., 386 F.3d 66, 73 (2d Cir. 2004); Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir. 2003). To the extent that deference implicit in these cases can be read to say that deference is due, they are overruled. The amendment provides: [(1)] a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or [(2)] who has been persecuted for failure or refusal to undergo such a procedure or [(3)] for other resistance to a coercive population control

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program, shall be deemed to have been persecuted on account of political opinion, and [(4)] a person who has a well founded fear that he or she will be forced to undergo such a procedure or [(5)] subject to persecution for such failure, refusal, or [(6)] resistance shall be deemed to have a well founded fear of persecution on account of political opinion. 8 U.S.C. § 1101(a)(42). The language of the first clause, which refers to “a person who has been forced to abort a pregnancy or to undergo involuntary sterilization,” could not be more clear in its reference to “a person,” rather than “a couple,” who has been subjected to a forced abortion or involuntary sterilization. This interpretation follows two cardinal rules: first that “[s]tatutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose,” Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985); and, second, that “we begin with the understanding that Congress says in a statute what it means and means in a statute what it says there,” Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000) (internal quotation marks omitted). As the statute is written, “a person who has been forced to abort a pregnancy” unambiguously refers to a woman who has been physically subjected to a forced abortion, and “a person who has been forced . . . to undergo involuntary sterilization” means an individual who has physically undergone an involuntary medical procedure intended to result in infertility. Had Congress intended this clause to refer to a spouse or partner of someone who has been physically subjected to a forced procedure, “it could simply have said so.” Id. at 7. Similarly, the second clause of the amendment refers to “a person” who “has been persecuted for failure or refusal to undergo [an abortion or involuntary sterilization.]” 8 U.S.C. §

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1101(a)(42). Like the preceding clause, this language refers to individuals who have failed or refused to undergo (i.e., “submit to”) a procedure affecting their own bodies. Under the language used by Congress, having someone else, such as one’s spouse, undergo a forced procedure does not suffice to qualify an individual for refugee status. A parallel analysis governs the categories of § 601(a) relating to the establishment of a well-founded fear of future persecution. The fourth category covers “a person who has a well founded fear that he or she will be forced to undergo [an abortion or involuntary sterilization].” This category plainly excludes an individual who does not fear that she herself will be subjected to a forced abortion or sterilization. Not only does it refer to “a person,” and indicate that that person will “undergo” the procedure his- or herself, the use of the pronouns “he” and “she” reinforces the intention of Congress to limit the application of the clause to individuals who are themselves physically forced to undergo an abortion or sterilization. Finally, the fifth category of individuals refers to “a person who has a well founded fear that he or she will be . . . subject to persecution for such failure [or] refusal [to undergo an abortion or involuntary sterilization].” Like the language of the previous clauses, this phrase is unambiguous in its reference to “a person” who fears that “he or she” will be persecuted for his or her reaction to a threat of “undergo[ing]” an abortion or sterilization to his or her own body. This section, like the previous three categories discussed, cannot be read reasonably to cover an individual’s fears arising from a coercive procedure performed on someone else.7 No member of the en banc Court disputes this reading of IIRIRA § 601(a). Instead, our colleagues assert that other language in 8 U.S.C. § 1101(a)(42) – language predating adoption of the amendment – might (in the case of our colleague, Judge Calabresi) or does (in the case of our colleagues Judge Katzmann and Judge Sotomayor) somehow support the BIA’s per se rule.
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In S-L-L-, the BIA noted that it was applying “general principles regarding nexus and level of harm,” 24 I. & N. Dec. at 5 – principles derived from the general refugee definition subsection of § 1101(a)(42) – to reach its holding. We believe that this approach was not correct. The general definition of a “refugee” under § 1101(a)(42) permits “any person” who experiences “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” to obtain asylum. 8 U.S.C. § 1101(a)(42). Nothing in the general definition of refugee would permit “any person” who has not personally experienced persecution or a well-founded fear of future persecution on a protected ground to obtain asylum, as the BIA’s per se rule would permit. Indeed, an examination of the overall statutory scheme reassures us that, pursuant to Chevron, we must conclude that Congress has clearly and unambiguously spoken to the issue at hand. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-33 (2000) (“In determining whether Congress has specifically addressed the question at issue [under Chevron step one], a reviewing court should not confine itself to examining a particular statutory provision in isolation. . . . A

These assertions are incorrect, we believe, for reasons discussed infra. By contrast, the Third Circuit’s recent decision in Sun Wen Chen, which our concurring colleagues Judge Katzmann and Judge Sotomayor cite extensively even though they apparently disagree with its analysis, asserts that § 601(a) contains an ambiguity that the BIA is empowered to fill. See Sun Wen Chen, 2007 WL 1760658, at *4 (“The C-Y-Z- rule . . . fleshes out an issue germane to the application of [§ 601(a)] that was not addressed by Congress, and so poses no Chevron step one problem.”). But see Sun Wen Chen, 2007 WL 1760658, at *10 (McKee, J., dissenting) (“Rather than accept the language [of § 601(a)] as drafted, the majority concludes that the absence of ‘spouse’ in the statute creates a vacuum that the Attorney General may rush in and fill, even though this results in amending the statute.”); id. at *11 (McKee, J., dissenting) (“Our analysis should therefore begin and end with the language of [§ 601(a)]. There is no room here for a step two inquiry under Chevron. . . . I believe Congress meant what it said, and I do not assume that the omission of any reference to a ‘spouse’ is accidental or insignificant.”). 16

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court must . . . interpret the statute as a symmetrical and coherent regulatory scheme.” (citation and internal quotation marks omitted)). It is apparent to us that when Congress rejected the BIA’s view in Matter of Chang, 20 I. & N. Dec. 38 (B.I.A. 1989), of birth control policies in other nations as an avenue for asylum, it did so in clear and unmistakable language. It identified those to whom asylum could be granted and reaffirmed the need for direct personal persecution. Congress’s specific designation of some persons (i.e., those who fear, resist, or undergo particular medical procedures) is incompatible with the view that others (e.g., their spouses) should also be granted asylum per se because of birth control policies. The inclusion of some obviously results in the exclusion of others. See TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001); Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993).8 The language of § 601(a) does nothing to alter the pre-IIRIRA definition of “political opinion” in § 1101(a)(42), and this further demonstrates the exclusivity of the group of persons entitled to asylum per se under § 601(a). Congress could have announced that the term “political opinion” included any reproductive act in violation of a coercive population control program, but instead it chose to create a specific exception to the general statutory requirement that a person claiming refugee status based on past persecution has the burden of demonstrating that the particular conduct experienced by him rose to the level of persecution and the persecution had a Judge Katzmann contends that we have employed this well-known canon of statutory construction to conclude that IIRIRA § 601(a) restricts, rather than expands, the availability of asylum relief. Op. of Judge Katzmann at 5. This contention is misplaced. We acknowledge that IIRIRA § 601(a) expands the availability of asylum, but find it significant that it does so only to specifically-enumerated categories of asylum applications – categories that do not include the beneficiaries of the BIA’s per se rule.
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specified impermissible nexus. See 8 U.S.C. § 1158(b)(1)(B)(i) (stating that “[t]he burden of proof is on the applicant to establish that the applicant is a refugee”). IIRIRA § 601(a) states that certain individuals affected by coercive population control programs “shall be deemed” persecuted by reason of political opinion. In using the word “deem” in this context,9 § 601(a) makes clear that those who benefit from the amendment would not be entitled to per se political opinion asylum relief absent the amendment. In other words, their political opinion exists de jure rather than as a matter of fact on which the applicant bears the burden of proof. For an asylum applicant who does not fall within this limited exception, the burden remains on the applicant – and the opportunity remains open – to demonstrate, in light of the particular facts of the case, that he has (i) a well-founded fear of personal persecution (ii) based on political opinion or some other impermissible ground. This is consistent with what we know: While it is plain that suffering a forced medical procedure can be a persecution if it is on account of a protected ground, the conception of a child is no more an expression of political opinion than birth, death, sleep, or the taking of nourishment. If the language of § 601(a) indicates that the woman who is subjugated to the outrage of a forced abortion has not herself been persecuted for the “political opinion” of conceiving a child under pre-IIRIRA § 1101(a)(42), then so much less the man who has

To “deem” is “[t]o treat (something) as if (1) it were really something else, or (2) it has qualities that it doesn’t have,” or, in the alternative, “[t]o consider, think, or judge.” Black’s Law Dictionary 446 (8th ed. 2004). Black’s Law Dictionary further notes that the word deem “has been traditionally considered to be a useful word when it is necessary to establish a legal fiction either positively by 'deeming' something to be what it is not or negatively by 'deeming' something not to be what it is. . . . All other uses of the word should be avoided.” Id. (quoting G.C. Thornton, Legislative Drafting 99 (4th ed. 1996)).
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impregnated her; but unlike his wife or partner, he is not “deemed” under § 601(a) to hold a political opinion and he must prove the existence of a political opinion or other protected ground under § 1158(b)(1)(B)(i). Accordingly, we conclude that the statutory scheme unambiguously dictates that applicants can become candidates for asylum relief only based on persecution that they themselves have suffered or must suffer. See Sun Wen Chen, 2007 WL 1760658, at *11 (McKee, J., dissenting) (“Congress could have easily drafted [§ 601(a)] to extend to ‘married couples who have been subjected to a forced abortion or involuntary sterilization.’ So drafted, an actual victim of persecution under a coercive population control program, as well as his/her spouse, would qualify for relief under the statute. However, Congress did not draft the statute in this way, and we can not rewrite the statute's explicit text to achieve that result.”). Indeed, the critical defect in the BIA’s policy of according per se refugee status to spouses of individuals explicitly protected by § 601(a) is its creation of an irrebuttable presumption of refugee status for a new class of persons. This policy effectively absolves large numbers of asylum applicants of the statutory burden to prove that they have (i) a well-founded fear of persecution (ii) based on an impermissible nexus. Such a presumption is contrary to the text of 8 U.S.C. § 1158(b)(1)(B), which specifies that “[t]he burden of proof is on the applicant,” that “the applicant must establish that . . . political opinion was or will be at least one central reason for persecuting the applicant,” and that an applicant’s testimony may be sufficient to meet this burden only if it “refers to specific facts sufficient to demonstrate that the applicant is a refugee.” The law is clear that “an agency is not free to ignore statutory language by creating a presumption on grounds of policy to avoid the necessity for finding that which the legislature

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requires to be found.” United Scenic Artists v. NLRB, 762 F.2d 1027, 1034 (D.C. Cir. 1985). The creation of such a presumption “is beyond the [agency’s] statutory authority.” Id. at 1035; see also Cerrillo-Perez v. INS, 809 F.2d 1419, 1426-27 (9th Cir. 1987) (holding that the “BIA cannot adopt a general presumption” unfavorable to applicant but instead “must consider the specific facts and circumstances of each case”). Thus, the BIA lacks authority to adopt a policy that presumes that every person whose spouse was subjected to a forced abortion or sterilization has himself experienced persecution based on political opinion. Our concurring colleagues Judge Katzmann and Judge Sotomayor suggest that the political nexus prong of this presumption is, in fact, inherent in Congress’s 1996 amendments. Op. of Judge Katzmann at 15; op. of Judge Sotomayor at 7. However, this contention is irreconcilable with the language of § 601(a), in which Congress created this presumption for specifically identified persons – those who were themselves subjected to or threatened with a forcible abortion or sterilization. To the extent that the amendments overruled Matter of Chang’s categorical rejection of such a nexus, 20 I. & N. Dec. 38, this means that an asylum applicant is no longer foreclosed from relying on evidence of a forced abortion or sterilization – whether personal or spousal – in attempting to demonstrate persecution based on political opinion. However, the fact remains that Congress has relieved only persons who actually experienced, or are threatened with, a forcible abortion or sterilization from the burden of proving a political nexus in their particular cases. We do not deny that an individual whose spouse undergoes, or is threatened with, a forced abortion or involuntary sterilization may suffer a profound emotional loss as a partner and

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a potential parent. But such a loss does not change the requirement that we must follow the “ordinary meaning” of the language chosen by Congress, according to which an individual does not automatically qualify for “refugee” status on account of a coercive procedure performed on someone else. See Moskal v. United States, 498 U.S. 103, 108 (1990) (stressing the importance of “giving the ‘words used’ their ‘ordinary meaning.’”); Cardoza-Fonseca, 480 U.S. at 453 (“Where the language of [a] law[] is clear, we are not free to replace it with an unenacted legislative intent.”).10 Under Chevron, once it is apparent that the statute is unambiguous, our inquiry stops. “If the intent of Congress is clear, that is the end of the matter,” and we are required to refrain from deferring to an agency’s contradictory interpretation. 467 U.S. at 842-43; see, e.g., Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 462 (2002); Brown & Williamson Tobacco Corp., 529 U.S. at 160-61; Nat’l Credit Union Admin. v. First Nat. Bank & Trust Co., 522 U.S. 479, 500 (1998); MCI Telecommunications Corp. v. American Tel. & Tel. Co., 512 U.S. 218, 226-28 (1994); Cardoza-Fonseca, 480 U.S. at 447-48. Congress’s choices of language in the phrases, “a person who has been forced to abort a pregnancy or to undergo involuntary sterilization,” “[a person] who has been persecuted for failure or refusal to undergo such a procedure,” and “a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure [or] refusal,” is uniformly unambiguous in its reference to an individual who is subjected to, or threatened with, an involuntary abortion or sterilization

If this conclusion is inconsistent with Congress’s intentions, it can, if it so chooses, of course, amend the statute, as it did when it adopted IIRIRA § 601(a) in response to the BIA’s decision in Matter of Chang, 20 I. & N. Dec. 38 (B.I.A. 1989).
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affecting his or her own body, and the statutory scheme of § 1101(a)(42) only reinforces that conclusion. As a result, we conclude that the statute does not provide that a spouse – and a fortiori, a boyfriend or fiancé – of someone who has been forced to undergo, or is threatened with, an abortion or sterilization is automatically eligible for “refugee” status. Instead, to qualify for refugee status under the amendment, such an individual must turn to the two remaining categories of § 601(a), which provide protection to petitioners who demonstrate “other resistance to a coercive population control program” or “a well founded fear that he or she will be . . . subject to persecution for such . . . resistance . . . .” 8 U.S.C. § 1101(a)(42).11 In S-L-L, the BIA was influenced by the fact that C-Y-Z- “is a precedent of long standing at this point . . . and numerous court decisions have deferred to the holding.” S-L-L-, 24 I. & N. Dec. at 4; see also id. at 14 (Pauley, B.M., concurring) (“[N]otwithstanding my belief that Matter of C-Y-Z-, . . . was wrongly decided, I would not overrule it now, clearly a decade later and in the aftermath of thousands of decisions applying it . . . .”). However, the Supreme Court has made clear that “[s]tare decisis is not an inexorable command; rather, it is a principle of policy and not a mechanical formula of adherence to the latest decision.” Payne v. Tennessee, 501 U.S. 808, 828 (1991) (internal quotation marks omitted). While no party before us argues that the rule in S-L-L- fails under Chevron step one, DHS did argue this point before the BIA, and the BIA considered and rejected the argument over a persuasive dissent by two members of the Board. In any event, we cannot defer to the Department of Justice’s argument (opposed below by DHS, the agency charged with enforcing immigration laws) that the rule in S-L-L- survives review under Chevron step one if the rule finds no support in the statutory text. Accordingly, we assume that the Solicitor General will take appropriate action to recommend or assure that the views of DHS and this Court will be represented in any future proceedings.
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While stare decisis is undoubtedly of considerable importance to questions of statutory interpretation, the Supreme Court “ha[s] never applied stare decisis mechanically to prohibit overruling . . . earlier decisions determining the meaning of statutes.” Monell v. Dep’t of Social Servs., 436 U.S. 658, 695 (1978). We should not do so either. The fact that we have failed to follow the plain language of a law of Congress for ten years does not require that we do so indefinitely. That would “place on the shoulders of Congress the burden of the Court's own error.” Girouard v. United States, 328 U.S. 61, 70 (1946). Given the clarity of the statute, there is no need to resort to legislative history, which is a tool of construction that we employ only if the statutory text at issue in the context of the statute as a whole is ambiguous. However, were we to examine the statute’s legislative history, we would find that our interpretation of § 601(a) comports with Congress’s stated purpose in passing the amendment. The House Report accompanying the passage of the amendment states that its primary intent . . . is to overturn several decisions of the Board of Immigration Appeals, principally Matter of Chang and Matter of G- . . . which . . . hold that a person who has been compelled to undergo an abortion or sterilization, or has been severely punished for refusal to submit to such a procedure, cannot be eligible on that basis for refugee or asylee status unless the alien was singled out for such treatment on account of factors such as religious belief or political opinion. H.R. Rep. 104-469(I) at 173-74 (1996) (emphasis added). The report mentions as examples of victims of coercive family planning policies women who have been subjected to involuntary abortions, men and women who are forcibly sterilized, and “couples with unauthorized children [who are] subjected to excessive fines,” but not spouses

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of individuals who have been subjected to forced abortions or sterilizations. Id. While Congress disapproved of coercive family planning policies as a whole, the amendment was meant to provide protection for individuals who were subjected to persecution themselves. As the report goes on to state: The Committee emphasizes that the burden of proof remains on the applicant, as in every other case, to establish by credible evidence that he or she has been subject to persecution - in this case, to coercive abortion or sterilization - or has a well-founded fear of such treatment. The Committee is aware that asylum claims based on coercive family planning are often made by entire groups of smuggled aliens, thus suggesting that at least some of the claims, if not the majority, have been "coached." Section [601(a)] is not intended to protect persons who have not actually been subjected to coercive measures or specifically threatened with such measures . . . . Id. at 174 (emphasis added). There is nothing in the legislative history that leads us to question “the strong presumption that Congress expresses its intent through the language it chooses.” Cardoza-Fonesca, 480 U.S. at 432 n.12. Here, the language Congress employed in § 601(a) demonstrates that it wanted to cover “a person,” not “a couple,” not a “significant other” and not an “intimate friend.” Moreover, Congress’s “emphasi[s]” on its intention that “the burden of proof remains on the applicant” demonstrates that no other subsection of § 1101(a)(42) could support the BIA’s interpretation of the statute.12 See Sun Wen Chen, 2007 WL 1760658, at *16 Judge Katzmann asserts that Congress, when it adopted IIRIRA § 601(a) in 1996, intended to accomplish the same goal as a 1993 order of former Attorney General Barr that was never enacted and never reviewed by any court. That order would have explicitly granted asylum to spouses of coercive family planning policy victims. Op. of Judge Katzmann at 8-9. Judge Katzmann’s assertion is squarely contradicted by the plain language of IIRIRA § 601(a), which – unlike Attorney General Barr’s order – does not grant asylum to spouses of persecution victims, as well as by the legislative history recounted above, which emphasizes that IIRIRA § 601(a) was not intended to make asylum available to those not explicitly protected by the amendment. Even more precarious is Judge Katzmann’s reliance on the various messages he
12

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(McKee, J., dissenting) (“The House Report . . . expresses a congressional intent to restrict asylum to the ‘person’ who undergoes the coercive procedure just as clearly as the text of the statute.”). This reading of the statute is further supported by the Supreme Court’s pronouncement about what “refugee” means. In INS v. Elias-Zacharias, the Supreme Court held that under the plain language of the general refugee definition subsection of § 1101(a)(42), “‘persecution on account of . . . political opinion’ in [§ 1101(a)(42)] is persecution on account of the victim’s political opinion,” 502 U.S. 478, 482 (1992) (emphasis in original), not persecution on account of a political opinion held by someone else. Similarly, a spouse who has not demonstrated that he himself is a victim of persecution cannot be entitled to asylum under this section of the statute. It would be unreasonable to conclude otherwise, whether under § 601(a), or under § 1101(a)(42) as a whole.13 Our conclusion that Congress never intended § 601 – or § 1101(a)(42) – to apply automatically to spouses is reinforced by the fact that Congress already provides for family members elsewhere in the statute by authorizing derivative asylum status for spouses and children of individuals who qualify as “refugees.” 8 U.S.C. § 1158(b)(3)(A). Specifically, under

hears in the sounds of Congressional silence. Op. of Judge Katzmann at 13. In her concurring opinion, Judge Sotomayor suggests that today’s holding casts doubt on Jorge-Tzoc v. Gonzales, 435 F.3d 146 (2d Cir. 2006) (remanding asylum claim to BIA on determination that a “combination of circumstances” experienced by applicant in Guatemala as a dependent child – including the massacre of close family members – “could well constitute [past] persecution” of the child). We do not address this concern because today’s decision does not preclude the BIA from considering the totality of circumstances in any particular case to determine if an asylum applicant has carried his statutory burden.
13

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§ 1158(b)(3)(A), an individual whose spouse or parent has been granted asylum on the basis of having undergone or been threatened with the prospect of a forced abortion or sterilization is automatically eligible for derivative asylum: “[a] spouse or child . . . of an alien who is granted asylum under this subsection may, if not otherwise eligible for asylum under this section, be granted the same status as the alien if accompanying, or following to join, such alien.” What Congress did by providing in § 1158(b)(3)(A) for automatic asylum for spouses of individuals who have been granted “refugee” status as a result of having been forced to undergo an abortion or involuntary sterilization reflects a policy decision to encourage the preservation of families. Under § 1158(b)(3)(A) the benefits of asylum are extended first to the person Congress understood to be most deserving of protection – the direct victim. Once the victim gains asylum, so does the spouse, and so do their children. This structure encourages couples to remain together, or, in circumstances where this is not possible, facilitates reunion. The BIA’s interpretation of the statute in S-L-L cuts in a different direction since it has the perverse effect of creating incentives for husbands to leave their wives. As hundreds of cases in the courts illustrate, the policy allows a married man to “capitalize on the persecution of his wife to obtain asylum even though he has left his wife behind and she might never join him and he might intend that she not do so,” Chen v. Ashcroft, 376 F.3d 215, 223 n.2 (3d Cir. 2004). It is highly unlikely – indeed, inconceivable – that Congress would approve of, much less intended, any of this. These counterintuitive results reinforce our conclusion that in § 601(a) Congress intended to grant automatic asylum to an individual directly victimized by a coercive birth control policy, and that no part of § 1101(a)(42) extends this automatic asylum to spouses.

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Congress did not, at the same time it adopted § 601(a), intend to gut or to undermine § 1158(b)(3)(A), which already contained a synchronous, sensible way of addressing the compelling problems faced by spouses and children of direct victims. Although we conclude that Congress has spoken unambiguously to whether an asylum applicant is per se eligible for asylum if his spouse or partner has suffered as a result of a coercive population control program, the phrase “other resistance” is ambiguous and leaves room for the BIA’s reasonable interpretation where the applicant relies on something beyond his spouse’s or partner’s persecution.14 See Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1203 (11th Cir. 2005) (“There is very little case law analyzing the ‘other resistance’ clause in the asylum statute. Additionally, a review of the legislative history behind the 1996 Amendment does not reveal any clear intent from Congress on the scope of the ‘other resistance clause.’”). In its decision, the BIA held that an applicant claiming persecution for “other resistance” must demonstrate (1) “resistance” to a coercive family planning policy, which can “cover[] a wide range of circumstances, including expressions of general opposition, attempts to interfere with enforcement of government policy in particular cases, and other overt forms of resistance to the requirements of the family planning law”; and (2) that the applicant has “suffered harm amounting to persecution on account of that resistance.” S-L-L-, 24 I. & N. Dec. at 10. An individual whose spouse or partner has been subjected to a forced abortion or involuntary For an analysis of what “resistance” might mean when someone has not been forcibly sterilized himself, see Li v. Ashcroft, 356 F.3d 1153, 1159-61 (9th Cir. 2004) (en banc) (analyzing the meaning of the “other resistance” clause and holding that it applies to a woman who announced her opposition to government population control policies and was thereafter subjected to a forced gynecological exam and threatened with future abortion, sterilization of her boyfriend, and arrest).
14

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sterilization can therefore qualify for “refugee” status under this interpretation if that individual can prove past persecution or a fear of future persecution for “resistance” that is directly related to his or her own opposition to a coercive family planning policy. Whatever interpretation the BIA chooses to give to the meaning of “resistance,” it is clear that the fact that an individual’s spouse has been forced to have an abortion or undergo involuntary sterilization does not, on its own, constitute resistance to coercive family planning policies. See Zhang, 395 F.3d at 532 (“[M]erely impregnating one's girlfriend is not alone an act of ‘resistance.’”). Nor could the resistance of an individual’s spouse or partner to a family planning policy – whether by failure or refusal to undergo a procedure, or for “other resistance” – constitute, on its own, “resistance” under regulations implementing § 1101(a)(42). Instead, as the DHS has argued, “where the applicant himself has not resisted [coercive family control policies], he would need to demonstrate, though persuasive direct or circumstantial evidence, that his wife’s, fiancee’s, or girlfriend’s resistance has been or will be imputed to him.” DHS brief at 17 (citing Singh v. INS, 134 F.3d 962, 970 (9th Cir. 1998)). The fact that someone’s spouse has been subjected to a forced abortion or sterilization would not be irrelevant to such an analysis, it simply could not provide for asylum status per se.15 Judge Calabresi asserts first that our holding conflicts—if not in actuality, then in “spirit,” Op. of Judge Calabresi at 6 —with the Supreme Court’s recent decisions in INS v. Orlando Ventura, 537 U.S. 12 (2002) (per curiam), and Gonzales v. Thomas, 547 U.S. 183, 126 S. Ct. 1613 (2006) (per curiam), and second that we rush to reach a particular result. We disagree with both of these assertions. First, Orlando Ventura and Thomas held that a reviewing court should ordinarily remand rather than pass upon a matter that is (1) primarily committed to the BIA’s discretion, and (2) has not yet been considered by the BIA. See Orlando Ventura, 537 U.S. at 16-17; Thomas, 126 S. Ct. at 1615. Neither of these conditions is present in this case. We, rather than the BIA, have primary authority under Chevron to determine whether a particular agency interpretation is consistent with the unambiguously expressed intent of
15

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Before turning to the dispositions of the petitioners’ claims, we address some practical implications of our decision. We affirm the result of the BIA’s decision in S-L-L- denying per se refugee status to boyfriends or fiancés of individuals who have been persecuted directly under coercive family planning policies. A necessary predicate for this result is our conclusion that § 601 does not confer automatic asylum eligibility on spouses, whether legal spouses or spouses from a traditional marriage, but only on individuals who themselves have undergone or been threatened with coercive birth control procedures. Thus, although none of the petitioners before us is legally married, we understand that our reading of the statute would necessarily exclude spouses of those directly victimized from per se asylum eligibility as well. We emphasize that our holding today should not be read to presage the reopening of cases of aliens who have already been granted asylum based on the BIA’s interpretation of § 601 in C-Y-Z-. Under 8 U.S.C. § 1158(c)(2)(A), the DHS is permitted to seek the termination of asylum when an alien no longer qualifies for refugee status “because, owing to a fundamental change in circumstances relating to the original claim, the alien's life or freedom no longer would be threatened on account of race, religion, nationality, membership in a particular social group, Congress. See, e.g., Cardoza-Fonseca, 480 U.S. at 447-48. Second, the BIA has had ample opportunity to consider the statutory interpretation question in the first instance. The per se rule that we now invalidate was first announced by the BIA in 1997, in its opinion in C-Y-Z-, 21 I. & N. Dec. at 915. In 2005, we remanded this case to the BIA to give it the opportunity to reconsider whether the rule in C-Y-Z- could find support in the language of § 601(a). See Lin, 416 F.3d at 187. On remand, DHS explicitly argued to the BIA that its per se rule was foreclosed by the plain language of § 601(a) and the statutory scheme. A majority of the BIA considered and rejected this argument over the forceful, and persuasive, objections of a minority of the Board. See S-L-L-, 24 I. & N. Dec. at 15-21 (Filppu, B.M., concurring and dissenting). We see no reason to remand yet again – ping pong style – when the BIA has had ten years and several opportunities to reconsider a rule that has no basis in statutory text. 29

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

or political opinion in the country from which deportation or removal was withheld.” 8 C.F.R. § 208.24(b)(1) (emphasis added). Just as a change in United States asylum law does not qualify as a “change in circumstances” sufficient to reopen an asylum case under 8 C.F.R. § 1003.2(c)(3)(ii) (permitting motion to reopen “based on changed circumstances arising in the country of nationality or in the country to which deportation is ordered”), see Azanor v. Ashcroft, 364 F.3d 1013, 1022 (9th Cir. 2004), a change in the BIA’s interpretation of section 601(a) as a result of our decision should not be seen as a “fundamental change in circumstances relating to the original claim” under 8 C.F.R. § 208.24(b)(1) so as to allow the termination of an asylum claim that has already been granted. See S-L-L-, 24 I. & N. Dec. at 21 n.2 (Filppu, B.M., concurring and dissenting) (“We are not now concerned with reopening past cases.”). III. PETITIONERS’ CLAIMS We agree with the BIA that none of the petitioners can qualify for automatic refugee status as a result of the treatment of their girlfriends or fiancées. Instead, each petitioner must demonstrate “other resistance to a coercive population control program” or “a well founded fear that he . . . will be . . . subject to persecution for such . . . resistance . . . .” 8 U.S.C. § 1101(a)(42). Petitioner Dong’s application for asylum was based upon his fiancée’s two forced abortions and threats from family planning officials that they would fine and sterilize Dong if his fiancée became pregnant again. But Dong failed to demonstrate that he acted in a manner that could constitute “resistance” or opposition to a coercive family control program. Nor can we find that Dong has a fear of future persecution as a result of the threat that the Chinese

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government would sterilize him if his fiancée became pregnant again. Dong submitted evidence to the immigration court that his fiancée had moved to Taiwan to be with her father. The IJ thus found that Dong was unlikely to return to China, and his fear of sterilization was conjectural. Moreover, as the BIA notes, were Dong’s fiancée to return to China, Dong and his fiancée would now meet the age requirements for marriage. See In re Dong, A. 77 293 661 (B.I.A. Nov. 27, 2006). In addition, the immigration judge correctly determined that Dong did not demonstrate that he would “more likely than not” be persecuted as grounds for a withholding of removal, or that he would be subjected to torture within the meaning of the Convention Against Torture. See id. Accordingly, we deny Dong’s petition for review. Petitioner Lin’s claim for asylum is that he and his girlfriend were refused permission to marry or have a child out of wedlock, and his girlfriend was forced to undergo an abortion. Lin did not claim before the immigration court, the BIA, or this Court that he had “otherwise resisted” China’s coercive family planning policies. Even if he had, we agree with the BIA that a request, through the appropriate legal channels, for permission to have a child, combined with the subsequent abortion performed on his girlfriend, does not constitute “resistance to a coercive population control program.” S-L-L-, 24 I. & N. at 10-12. However, we do not have jurisdiction over Lin’s petition for review, as we find that his petition is moot. Lin’s attorney has informed this Court that he has never had any contact with the petitioner, and that Lin’s prior attorney has not spoken to him in approximately three years. In addition, an individual from Lin’s village in China has told the attorney that “he heard from other villagers that Lin was terminally ill and had returned to China not too long ago and died.” Aff. of Yee Ling Poon ¶ 5. When the possibility

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of relief is “so remote and speculative that any decision on the merits . . . would amount to a ‘declar[ation of] principles or rules of law which cannot affect the matter in issue in the case before [us],’” United States v. Blackburn, 461 F.3d 259, 262 (2d Cir. 2006) (quoting Mills v. Green, 159 U.S. 651, 653 (1895) (alterations in original)), we would run afoul of Article III were we to decide the claim. Given that we do not retain jurisdiction over Lin’s claim if he has returned to China and has provided no explanation to overcome the presumption that his asylum application has been abandoned, see 8 C.F.R. § 1208.8, or if he is deceased, Lin’s petition is dismissed as moot. Petitioner Zou’s petition has been remanded by the BIA to the immigration court to review its findings of adverse credibility and determine whether Zou qualifies as a refugee for “resistance” to a coercive family planning policy. See In re Xian Zou, No. A77 322 295 (B.I.A. Nov. 21, 2006). Accordingly, we no longer have jurisdiction over Zou’s petition. See 8 U.S.C. § 1252(a)(1) (giving courts of appeals jurisdiction to review only final orders of removal). CONCLUSION For these reasons, the petition for review of Zhen Hua Dong is DENIED. The petitions for review of Shi Liang Lin and Xian Zou are DISMISSED for lack of jurisdiction.

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KATZMANN , Circuit Judge, with whom Judges Straub, Pooler, and Sotomayor join, concurring in the judgment: With the majority’s emphasis on denying asylum relief to legal spouses under § 101(a)(42) of the Immigration and Nationality Act (the “INA”), it is easy to lose sight of one fact central to the disposition of these cases: Not one of the petitioners in these consolidated cases was married. In each case, it was the plaintiff’s girlfriend, not his wife, who was forced to abort her pregnancy. It is thus unnecessary for us to resolve whether the BIA can legally extend asylum relief to legal spouses; indeed, in doing so, we are addressing not only an issue not presently before us, but also one that the parties in these cases do not even dispute. In their briefs before us, both the petitioners and the Government agree that the statute is ambiguous.1 The question the parties dispute, and the only one that these cases require us to answer, is whether the BIA’s interpretation of the statute as applied to boyfriends and fiancés is reasonable. Every judge on this Court who reaches this issue agrees that it is. Thus, this case could have been resolved simply and nearly unanimously by assuming the reasonableness of the BIA’s construction of the statute as applied to legal spouses and then holding that it was also reasonable as applied to boyfriends and fiancés. See Cai Luan Chen v. The Department of Homeland Security (“DHS”) advanced a different view before the BIA. The majority “assume[s] that the Solicitor General will take appropriate action to recommend or assure that the views of DHS and this Court will be represented in any future proceedings.” Maj. Op. at 23 n.11. In so doing, the majority ignores the historic independence of the Office of the Solicitor General in determining the executive branch’s position before the Supreme Court. When agencies of the executive branch have taken inconsistent positions, as they have here, the Solicitor General may choose among those positions, or it may adopt any other available litigation position. The Solicitor General has no obligation to endorse the preferred legal theory of the court below. To the extent the majority attempts to influence the position the Solicitor General will take in future proceedings, that effort is inappropriate.
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Ashcroft, 381 F.3d 221, 227 (3d Cir. 2004) (Alito, J.) (assuming “for the sake of argument” that “C–Y–Z–’s interpretation is permissible” as applied to legal spouses and then determining whether the BIA was reasonable in distinguishing “between married and unmarried couples”). Instead, the majority has gone out of its way to create a circuit split where none need exist, see Maj. Op. at 5 n.4, thereby frustrating the BIA’s uniform enforcement of a national immigration policy.2 Finding in textual silence an expression of unambiguous congressional intent, the majority has rejected the BIA’s determination that § 101(a)(42) is ambiguous. When a governmental body with substantial experience in interpreting a complex statutory scheme concludes that a statute is ambiguous, that determination should give us pause. Here, the fact that the BIA concluded that the INA is ambiguous with respect to the question we are called upon to answer suggests that we would do well to probe further, to consider whether the seemingly plain language belies a more complicated meaning. It suggests that we should consider carefully not only the text of the statute, but also the context—both the events that gave rise to that text and the various agency and judicial responses to it. Text without context can lead to confusion and misunderstanding. The majority’s analysis is testament to that proposition.3

In a related context, we remanded to the BIA to address the proper scope of the term “refugee” in the first instance, noting that “it would be unsound for each of the several Courts of Appeals to elaborate a potentially nonuniform body of law” and describing uniformity as “especially desirable in cases such as these.” Jian Hui Shao v. BIA, 465 F.3d 497, 502 (2d Cir. 2006).
2

The majority finds my decision to engage in this analysis “perplex[ing]” given my belief that we need not—and should not—answer today a question that this case does not require us to answer and the proper resolution of which the parties do not dispute. Although I believe we should have limited our decision to the BIA’s treatment of boyfriends, the majority has
3

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In answering the first of the questions set out in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), that is, whether “the statute is silent or ambiguous with respect to the specific issue,” id. at 843, we must look to the text of § 101(a)(42) of the INA. That text provides, in pertinent part, that a refugee is any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to . . . that country because of persecution . . . on account of . . . political opinion . . . . For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization . . . shall be deemed to have been persecuted on account of political opinion . . . . 8 U.S.C. § 1101(a)(42). The majority focuses its textual analysis on the final sentence of that provision, that is, § 601(a) of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (“IIRIRA”), concluding that the BIA’s decision “rested on” that sentence, and not the general definition of “refugee” in 8 U.S.C. § 1101(a)(42). Maj. Op. at 10. Yet, as the majority notes, the BIA found that “‘[t]here is no clear or obvious answer to the scope of the protections afforded by the amendment to partners of persons forced to submit to an abortion or sterilization.’” Maj. Op. at 13.4 Reasoning that the “lack of . . . a reference” to spouses in the

nonetheless chosen to address its treatment of husbands. I would be remiss if I did not discuss both why I believe the majority’s discussion of this issue is unnecessary and also why I believe it is wrong. Although we remanded to the BIA to “more precisely explain its rationale for construing IIRIRA § 601(a)” to protect spouses, Shi Liang Lin v. U.S. Dep’t of Justice, 416 F.3d 184, 187 (2d Cir. 2005), nothing in that decision precluded the BIA from looking to the more general language in the statute in determining whether to extend relief to spouses. Indeed, the BIA had the authority to interpret the meaning of 8 U.S.C. § 1101(a)(42) independent of our remand in Lin. See INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (“The Attorney General . . . has vested the BIA with power to exercise the discretion and authority conferred upon the Attorney General by law in the course of considering and determining cases before it. Based on
4

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1996 amendment “does not necessarily preclude an applicant from demonstrating past persecution based on harm inflicted on a spouse when both spouses are harmed by government acts motivated by a couple’s shared protected characteristic,” the Board looked to the “general principles regarding nexus and level of harm” for guidance. In re S–L–L–, 24 I. & N. Dec. 1, 5 (B.I.A. 2006); see also id. at 5 n.5 (citing to the general regulatory framework that defines when an applicant may qualify as a refugee); id. at 6 (considering the “well-established principles regarding nexus and level of harm for past persecution”). Thus, although the majority places great emphasis on its view that the “language in § 601(a) . . . is unambiguous and . . . does not extend automatic refugee status to spouses or unmarried partners of individuals § 601(a) expressly protects,” Maj. Op. at 4, I find the focus on the amendment misplaced. I believe we must look instead to the entirety of 8 U.S.C. § 1101(a)(42) to determine whether the statute is ambiguous. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (“[A] reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.”).5 That section provides that a “refugee” is any

this allocation of authority, we [have] recognized . . . that the BIA should be accorded Chevron deference as it gives ambiguous statutory terms concrete meaning through a process of case-bycase adjudication . . . .” (quotation marks and citation omitted)); see also Kuhali v. Reno, 266 F.3d 93, 102 (2d Cir. 2001) (granting “Chevron deference to the Board’s construction of the INA, which it . . . administer[s]”). Even if the BIA construed only the 1996 amendment, it would still be necessary to consider the text of the entire statute and the context against which that amendment was enacted to determine whether the 1996 amendment is itself ambiguous within the meaning of Chevron. See Natural Res. Def. Council v. Abraham, 355 F.3d 179, 198 (2d Cir. 2004) (“In interpreting the plain language of the statute, we must look to the particular statutory language at issue, as well as the language and design of the statute as a whole, and, where appropriate, its legislative
5

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individual who cannot return to his or her home country because of “persecution . . . on account of . . . political opinion.” None of these terms is defined in any way, and none explicitly addresses whether the spouses of those who have been forced to undergo an abortion or sterilization are entitled to asylum relief.6 Hence, the statute, on its face, does not “directly address[] the precise question at issue.” Chevron, 467 U.S. at 843; cf. Sun Wen Chen v. U.S. Att’y Gen., No. 05-4011, 2007 WL 1760658, at *4 (3d Cir. June 20, 2007) (“[T]he C–Y–Z– rule thus fleshes out an issue germane to the application of § 1101(a)(42)(B) that was not addressed by Congress, and so poses no Chevron step one problem.”). Indeed, the majority points to no language in the statute that explicitly denies asylum relief to these spouses, or that precludes the BIA from extending it to them. Cf. 8 U.S.C. § 1101(a)(42) (explicitly precluding from the definition of “refugee” individuals “who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion”). Rather, the majority takes the position that “Congress’s specific designation of some persons (i.e., those who fear, resist, or undergo particular medical procedures) is incompatible with the view that others (e.g., their spouses) should also be granted asylum per se because of birth control policies. The

history.” (quotation marks omitted)). Because I believe the BIA held that the entire provision was ambiguous, it is not necessary to determine here whether the 1996 amendment alone is ambiguous. Thus, contrary to Judge Calabresi’s suggestion, Judge Calabresi Op. at 16 n.6, I do not necessarily agree that the BIA could not have relied on § 601(a) to provide asylum relief to spouses. I agree with Judge Calabresi that this “general language” in 8 U.S.C. § 1101(a)(42) means that the BIA, with its expertise in this area, is particularly well-suited to exercise its discretion and decide how that language should be interpreted. Judge Calabresi Op. at 8. Judge Calabresi and I differ as to whether the BIA has already exercised that discretion.
6

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inclusion of some obviously results in the exclusion of others.” Maj. Op. at 17-18. But where the majority reads the language of the 1996 amendment and sees it as a limitation on the availability of asylum relief, I see it, in the context in which it was enacted, as an expansion of that relief. I believe one question is fundamental: What was Congress’s purpose in enacting the 1996 amendment? Cf. Ai Feng Yuan v. U.S. Dep’t of Justice, 416 F.3d 192, 197 (2d Cir. 2005) (noting the “canon of statutory construction that requires us to reconcile a statute’s plain language with its purpose”). In answering that question, we should not limit our inquiry to the language of the amendment; instead, we must look at the statutory scheme of which that amendment is a part and the legislative activity that led to its enactment. Congress’s intent in enacting IIRIRA § 601(a) was to clarify that, contrary to the BIA’s prior rulings, the imposition of some aspects of China’s family planning policy can constitute persecution on the basis of political opinion, and that certain victims of that persecution are entitled to protection under our asylum laws. Nothing in the amendment suggests that Congress intended to prevent the BIA from extending relief to victims other than those explicitly identified in the amendment. See Sun Wen Chen, 2007 WL 1760658, at *6 (“We are not convinced that Congress, in expanding asylum to include more reproductive rights-based claims, intended to define the outer limits of relief in such cases.”). There is thus some irony in the majority’s approach: By giving short shrift to context, it infers an intent to limit the availability of asylum relief; had it looked more closely at context, it would have recognized Congress’s intent was only to expand that relief.7 Context makes clear what The majority’s recognition that § 601(a) expanded the availability of asylum relief does nothing to explain why this language, which by its terms only expands relief, should also be read
7

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text alone fails to convey. The INA provides asylum relief to individuals who have been “persecut[ed] . . . on account of . . . political opinion,” but does not define those terms. In Matter of Chang, 20 I. & N. Dec. 38 (B.I.A. 1989), the BIA held that whatever else “persecution” might mean, it did not encompass any retribution visited upon individuals who violated China’s “one couple, one child” policy. The BIA ruled that the policy “is [not] on its face persecutive” and does not “persecut[e] any portion of the Chinese citizenry on account of one of the reasons enumerated in section 101(a)(42)(A) of the Act.” Id. at 43, 44. Others in the executive branch took a different view. The next year, the Department of Justice issued “interpretative rules and general statements of policy for establishing statutory eligibility for asylum or withholding of deportation on the basis of political opinion for aliens who express a fear of coercive population control policies in their homeland.” Refugee Status, Withholding of Deportation and Asylum; Burden of Proof, 55 Fed. Reg. 2803, 2804 (Jan. 29, 1990).8 President George H.W. Bush reaffirmed his Administration’s support of the interim rule

to have limited the BIA’s preexisting authority to further expand it. Although the majority suggests that I rely on “messages [I] hear[] in the sounds of Congressional silence,” Maj. Op. at 26 n.12, all that I actually find in silence, especially given the context, is ambiguity. See Chevron, 467 U.S. at 843 (noting that we turn to Chevron step two “if the statute is silent or ambiguous with respect to the specific issue”); see also Sun Wen Chen, 2007 WL 1760658, at *3 (“Chevron deference embodies the judgment that agencies, rather than courts, ought to serve as gap-fillers in situations of statutory silence.”). It is the majority that appears to find in silence clear evidence of Congress’s intent. These amendments to the asylum regulations appear to contemplate the possibility that asylum relief would be available to the spouses of those who were subject to forced abortion or sterilization. See Refugee Status, 55 Fed. Reg. at 2805 (to be codified at C.F.R. § 208.5(b)(2)) (“An applicant who establishes that the applicant (or applicant’s spouse) has refused to abort a pregnancy or to be sterilized in violation of a country’s family planning policy, and who has a
8

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with the promulgation of Executive Order 12,711, which provided for “enhanced consideration under the immigration laws for individuals from any country who express a fear of persecution upon return to their country related to that country’s policy of forced abortion or coerced sterilization.” Exec. Order No. 12,711, 55 Fed. Reg. 13,897, 13,897 (Apr. 11, 1990). Although the INS, in July 1990, set forth a final rule that did not address this issue, see Aliens and Nationality; Asylum and Withholding of Deportation Procedures, 55 Fed. Reg. 30,674 (July 27, 1990), the Office of the General Counsel of the INS subsequently sent a letter to Regional and District Counsel stating that “Department of Justice and INS ‘policy with respect to aliens claiming asylum or withholding of deportation based upon coercive family planning policies is that the application of such coercive policies does constitute persecution on account of political opinion.’” Xin-Chang Zhang v. Slattery, 55 F.3d 732, 740 (2d Cir. 1995), superseded by 8 U.S.C. § 1101(a)(42) (quoting INS letter to Regional and District Counsel). In January 1993, Attorney General William P. Barr signed a final rule that would have made this view law. It provided, in pertinent part, that “[a]n applicant (and the applicant’s spouse, if also an applicant) shall be found to be a refugee on the basis of past persecution on account of political opinion if the applicant establishes that, pursuant to the implementation . . . of a family planning policy . . . the applicant has been forced to abort a pregnancy or to undergo sterilization or has been persecuted for failure or refusal to do so.” AG Order No. 1659-93, at 14 well-founded fear that he or she will be required to abort the pregnancy or to be sterilized or otherwise persecuted if the applicant were returned to such country may be granted asylum.”); see also id. (to be codified at C.F.R. § 242.17(c)) (“Eligibility for withholding of deportation on account of political opinion is established by the respondent who establishes that he or she (or respondent’s spouse) will be required to abort a pregnancy or to be sterilized . . . .”). 41

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(Jan. 15, 1993) (to be codified at 8 C.F.R. 208) (“January 1993 Rule”). Although this rule was sent to the Federal Register, where it was made available for public inspection and scheduled for publication, it was never published due to the change in presidential administrations. Xin-Chang Zhang, 55 F.3d at 741. In February, additional regulations pertaining to asylum were published, but these made no mention of the January rule. Id. Against the background of these conflicting BIA decisions and administrative regulations, we were asked to determine whether asylum relief was available to victims of China’s family planning policy. We held that such relief was not available, explaining that “[e]ven were we to accept [the] view that the ‘administrative cacophony’ surrounding the issue justified diminished deference to Chang, our result would not change. It is difficult to frame a result different from the holding of Chang that would be ‘reasonable’ under both Elias-Zacarias and the existing immigration laws.” Id. at 752; see also INS v. Elias-Zacarias, 502 U.S. 478 (1992). We did not stop there, however. Instead, we called upon Congress and the President to determine whether relief should be available to the victims of China’s family planning policy: “No doubt, the President and the Congress acting together have power to create an exception to the existing immigration laws for PRC citizens . . . .” Id. The next year, Congress enacted IIRIRA § 601(a). The House Committee Report explained that Congress’s “primary intent” in amending the definition of refugee was “to overturn several decisions of the [BIA], principally Matter of Chang and Matter of G–,” H.R. Rep. No. 104-469(I), 1996 WL 168955, at *173 (1996), in which the BIA had held that “the

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Chinese Government’s implementation of its family planning policies is not on its face persecutive and does not by itself create a well-founded fear of persecution on account of one of the five grounds delineated in the Act, even to the extent that involuntary sterilization may occur,” Matter of G-, 20 I. & N. Dec. 764, 778 (B.I.A. 1993); Matter of Chang, 20 I. & N. Dec. at 43-44; see also Junshao Zhang v. Gonzales, 434 F.3d 993, 995 (7th Cir. 2006) (“The impact of that amendment was to overrule Chang, and allow for the granting of asylum applications in cases in which the claim of persecution stemmed from the enforcement of China’s coercive population control policies.”); H.R. Rep. No. 104-469(I), 1996 WL 168955, at *174 (criticizing the BIA decisions for “effectively preclud[ing] from protection persons who have been submitted to undeniable and grotesque violations of fundamental human rights”); id. (noting that “the BIA’s rationale for these opinions—that policies of coercive family planning are ‘laws of general application’ motivated by concerns over population growth, and thus are not ‘persecutory’—is unduly restrictive”).9 When Congress stated that “[f]or purposes of determinations under this [Act], a person who has been forced to abort a pregnancy or to undergo involuntary sterilization . . . shall be deemed to have been persecuted on account of political opinion,” 8 U.S.C. § 1101(a)(42)(a), it was not providing an exhaustive list of those who could claim asylum relief because they were As previously noted, Attorney General Barr had attempted to “supersede the [BIA] decision in Matter of Chang,” January 1993 Rule, at 4-5, but his efforts fell victim to a change in presidential administrations. See Xin-Chang Zhang, 55 F.3d at 741. Noting that the next administration had thus far failed to take action, Congress stepped in to accomplish the same goal through legislation. See H.R. Rep. No. 104-469(I), 1996 WL 168955, at *174 (“[T]he Administration, which has the authority to overrule the BIA decisions through regulation or through decision of the Attorney General, has not done so. Nor has it offered adequate relief to persons who have undergone such coercion.”).
9

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victimized by China’s family planning policy. Rather, it was expressing a congressional determination that, contrary to the BIA’s prior rulings, China’s “one couple, one child” policy is on its face persecutory, and victims of that policy who experienced persecution should be able to qualify for asylum relief without making an additional showing of their own political opinion. The majority takes the position that § 601(a) does not “alter the pre-IIRIRA definition of ‘political opinion’ in § 1101(a)(42)” and that, for the individuals identified in § 601(a), “their political opinion exists de jure rather than as a matter of fact on which the applicant bears the burden of proof.” Maj. Op. at 18, 19. It notes, in this regard, that the amendment provides that those who have been subjected to forced procedures “‘shall be deemed’ persecuted by reason of political opinion,” Maj. Op. at 18-19, and that “[t]o ‘deem’ is ‘[t]o treat (something) as if (1) it were really something else, or (2) it has qualities that it doesn’t have,’” Maj. Op. at 18-19 n.9 (quoting Black’s Law Dictionary 446 (8th ed. 2004)). But, as the majority acknowledges, there is more than one definition of the word “deem”; it may also mean “[t]o consider, think, or judge.” Black’s Law Dictionary 446 (8th ed. 2004). Thus, in this context, Congress’s use of the word “deemed” may mean that these individuals should be “judged” as having been persecuted on account of political opinion, just as the proposed 1993 rule provided that these applicants “shall be found to be . . . refugee[s] on the basis of past persecution on account of political opinion.” January 1993 Rule, at 14.10 Indeed, the legislative history suggests that Congress was That two definitions of the term exist suggests, at the very least, that there is ambiguity in Congress’s use of the term, and the fact that Black’s Law Dictionary may favor one definition is hardly sufficient to dispel that ambiguity. Indeed, although Black’s Law Dictionary may describe the majority’s preferred usage as the more “traditional[]” one and may discourage other uses, the word “deem” has long been used to mean “consider, think, or judge.” See, e.g., U.S. Const. art. V (“The Congress, whenever two thirds of both Houses shall deem it necessary, shall
10

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not attempting to create an exception to Matter of Chang, but to overrule it; and if Congress were attempting to carve out an exception to the normal requirement that applicants must establish that they have faced persecution on account of one of the protected grounds, it could have done so in much plainer language. In any event, the statute is, at a minimum, ambiguous, and it is the BIA, not the courts, that is charged with construing the statute in the face of that ambiguity. Other circuits to have considered this issue have held that when Congress enacted the 1996 amendment it intended to protect both members of couples that are targeted under China’s family planning policy. See, e.g., Junshao Zhang, 434 F.3d at 999 (“Congress passed § 601(a)(1) of the IIRIRA to ensure that families who are victims of forced abortion and sterilization under China’s population control policy would receive asylum . . . .” (emphasis added)); Kui Rong Ma v. Ashcroft, 361 F.3d 553, 559 (9th Cir. 2004) (identifying “Congress’s goal in passing the amendments—to provide relief for ‘couples’ persecuted on account of an propose Amendments to this Constitution . . . .” (emphasis added)); 15 U.S.C. § 80b-3(j) (“The Commission is authorized to adopt rules, regulations, and orders . . . as it deems appropriate to implement this subsection.” (emphasis added)). Indeed, Congress has repeatedly used the term “deem” in the INA itself to mean “consider, think, or judge.” See, e.g., 8 U.S.C. § 1101(a)(27)(J)(i) (defining the term “special immigrant” to include “an immigrant who is present in the United States . . . who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State and who has been deemed eligible by that court for long-term foster care due to abuse, neglect, or abandonment” (emphasis added)); id. § 1103(a)(3) (providing that the Secretary of Homeland Security may “perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter” (emphasis added)). A “normal rule of statutory construction” provides that “identical words used in different parts of the same act are intended to have the same meaning.” Beharry v. Ashcroft, 329 F.3d 51, 61 (2d Cir. 2003) (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995) (quotation marks omitted)). Even if this rule does not conclusively resolve any ambiguity created by the existence of the two definitions, Congress’s use of the allegedly disfavored definition elsewhere in the INA renders the meaning of “deemed” in § 1101(a)(42), at the very least, ambiguous. 45

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‘unauthorized’ pregnancy and to keep families together” (emphasis added)). We need not go as far as these courts to affirm the BIA’s decision here. Even if Congress did not specifically intend to protect “couples,” there is nothing in the text of the amendment, or the context that gave rise to it, that indicates that it intended to preclude the BIA from extending asylum relief to both members of a couple. See Sun Wen Chen, 2007 WL 1760658, at *5 (granting Chevron deference to the BIA’s interpretation in In re S–L–L–).11 Just as nothing in the language or history of the amendment indicates a congressional intent to foreclose the extension of relief to spouses, Congress has done nothing to indicate such an intent in the years since the amendment’s enactment, notwithstanding that the BIA interpreted § 1101(a)(42) to cover spouses a decade ago and numerous courts of appeals have upheld this interpretation as reasonable. See, e.g., Yuan, 416 F.3d at 197; Junshao Zhang, 434 F.3d at 999; Kui Rong Ma, 361 F.3d at 559 (“The BIA and the courts have uniformly applied the statute’s Although “[g]eneral language of a statutory provision . . . will not be held to apply to a matter specifically dealt with in another part of the same enactment,” D. Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 208 (1932), that rule has no applicability here where the specific provision does not address whether spouses should be entitled to relief. In the 1996 amendment, Congress identified a particular category of individuals entitled to relief, but left to the BIA the task of determining whether to expand upon that relief, just as the BIA routinely defines what individuals are entitled to asylum relief in a myriad of other contexts. Indeed, there is some language in the legislative history which suggests that Congress may have considered the possibility that individuals other than those who had been forced to undergo an abortion or sterilization might qualify for asylum. The House Committee Report on the amendment noted that “[d]etermining . . . whether the actual or threatened harm rises to the level of persecution is a difficult and complex task, but no more so in the case of claims based on coercive family planning than in cases based on other factual situations. Asylum officers and immigration judges are capable of making such judgments.” H.R. Rep. No. 104-469(I), 1996 WL 168955, at *174. If only those subjected to the procedures could claim asylum relief, immigration judges and the BIA would never have needed to consider whether an applicant’s harm rises to the level of persecution, given that the amendment explicitly provides that a forced abortion or sterilization does rise to this level.
11

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protections to husbands whose wives have undergone abortions or sterilization procedures, as well as to the wives themselves.”); In re C–Y–Z–, 21 I. & N. Dec. 915, 918-19 (B.I.A. 1997) (en banc). There are obscure areas of public policy, largely hidden from public attention and concern, in which it makes little sense to ascribe meaning to the absence of congressional response to administrative and judicial interpretations of a statute. Immigration is hardly one of those areas. To the contrary, immigration—and the issue of the appropriate scope of asylum relief—have consistently been on Congress’s radar. Immigration is frequently in the news, and Congress has repeatedly legislated in this area. Indeed, as recently as 2005, Congress revisited this very provision and removed the annual cap on the number of asylees who could be admitted under it. See REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, §§ 101(g)(2), (h)(5), 119 Stat. 231, 305-06 (May 11, 2005). While the fact that Congress, in the course of its active attention to immigration issues and legislation, has not amended 8 U.S.C. § 1101(a)(42) in light of the interpretation it has been given by the BIA and the courts does not definitively mean that Congress intended to protect spouses, it does suggest, at the very least, that it was not Congress’s intent to foreclose that relief. The majority nonetheless holds that it was “not correct” for the BIA to construe the general definition of “refugee” to allow for the provision of this relief because “the statutory scheme unambiguously dictates that applicants can become candidates for asylum relief only based on persecution that they themselves have suffered or must suffer.” Maj. Op. at 19. I agree that an individual must have personally experienced persecution to be entitled to asylum relief, but that statement begs the question of what constitutes persecution.

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The statute does not, in either the 1996 amendment or in its general definition of the term “refugee,” prescribe exactly how much harm or what kind of harm an individual must experience to have been “persecuted” within the meaning of the statute. See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 340 (2d Cir. 2006) (noting that the term “persecution” is “not defined by the Immigration and Nationality Act”); see also Matter of Acosta, 19 I. & N. Dec. 211, 222 (B.I.A. 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987) (defining persecution as “either a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive” (emphasis added)); see also Ivanishvili, 433 F.3d at 341 (acknowledging the BIA’s definition of “persecution” as “the infliction of suffering or harm upon those who differ on the basis of a protected statutory ground.”). The 1996 amendment states that when one is forced to undergo an abortion or sterilization, the harm thereby experienced is sufficient to qualify for asylum, but it hardly makes that level of harm necessary. The majority may view the 1996 amendment as providing that only individuals who have undergone a forced abortion or sterilization have experienced “persecution.” If so, we again differ on our interpretation of the significance of the 1996 amendment. I believe Congress enacted the 1996 amendment not primarily to define the term “persecution,” but to clarify what it means to be persecuted “on account of political opinion.” As noted above, Congress sought to make clear, contrary to the BIA’s earlier decision in Matter of Chang, that the imposition of penalties through the implementation of China’s family planning policy can constitute persecution “on account of political opinion” by effectively adopting the position taken in the

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commentary to the 1993 rule that, “[a]lthough . . . prosecution and punishment under a law of general applicability will not ordinarily constitute persecution ‘on account of’ one of the statutory grounds, . . . [p]ersecution on account of political opinion encompasses persecution of people whose violation of laws may not be motivated by their political opinions but is regarded by the state as political disloyalty.” January 1993 Rule, at 8. Thus, I do not think that § 601(a) unambiguously defines the term persecution, and the majority has pointed to nothing in the statute that suggests that the emotional and psychological harm one suffers when one’s spouse is forced to undergo an abortion or sterilization is not severe enough to constitute persecution. Nor does anything in the statute preclude the BIA from considering the effect that China’s family planning policies may have on a couple’s shared right to reproduce and raise children. Because Congress did not specifically address these issues, the statute is ambiguous. It therefore falls to the BIA to determine whether the harm an individual experiences when his or her spouse is subjected to a forced abortion or sterilization is sufficient to constitute persecution. See, e.g., Kuhali, 266 F.3d at 102 (granting “Chevron deference to the Board’s construction of the INA, which it . . . administer[s]”); cf. Sun Wen Chen, 2007 WL 1760658, at *5 (noting that the BIA “exercised its delegated gap-filling authority reasonably” when it recognized the harms an individual experiences as a result of the forced abortion or sterilization of his spouse). By holding that persecution cannot encompass such individuals, the majority, as Judge Sotomayor cogently explains, usurps the BIA’s task of giving meaning to ambiguous statutory terms. Further, by suggesting that the BIA is creating a presumption which allows individuals to be granted asylum without proving that they were “persecuted . . . on

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account of political opinion,” the majority errs. The BIA here created no presumption; rather, fulfilling a basic responsibility, it simply discerned the meaning of those ambiguous terms.12 Finally, the majority finds support for its reading of the statute in its perception that there is some tension between this rule and the provision of derivative asylum status for spouses of individuals who qualify as “refugees.” Maj. Op. at 26-28. But in adopting this rule, the BIA provided a basis by which individuals could claim asylum relief in their own right for harm they suffered as a result of their spouses’ forced abortion or sterilization. There is no apparent tension in providing derivative asylum status to spouses who have not themselves suffered any harm and providing an additional basis of relief to those spouses who have, that is, those who have themselves suffered harm when their partners were subjected to a forced abortion or sterilization. See 8 U.S.C. § 1158(b)(3)(A) (providing derivative asylum to spouses who are “not otherwise eligible for asylum under this section”); cf. Junshao Zhang, 434 F.3d at 1001 (noting that “it would be particularly perverse for courts to treat a subsequent break-up of the marriage as somehow lessening the impact of [the prior] persecution [of the husband]”). Because there is no tension in providing these two separate, distinct forms of relief, it does not seem to me that the availability of derivative asylum relief unambiguously precludes the BIA from providing an The majority’s assertion that § 601 “relieve[s] . . . persons who actually experienced a forcible abortion or sterilization from the burden of proving a political nexus” is similarly problematic. Maj. Op. at 21. In my view, Congress did not relieve anyone of the burden of proving political nexus. Rather, it determined that an applicant can meet this burden by establishing proof of persecution pursuant to a coercive family planning policy. Given the majority’s agreement that any asylum applicant may “rely[] on evidence of a forced abortion or sterilization—whether personal or spousal—in attempting to demonstrate persecution based on political opinion,” Maj. Op. at 21 (emphasis added), I fail to see what additional evidence an applicant whose spouse was subjected to a forced abortion or sterilization would have to show to carry his burden of proving political nexus.
12

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additional basis of relief to those whose spouses have been subjected to a forced abortion or sterilization. See Sun Wen Chen, 2007 WL 1760658, at *4 (“We . . . do not believe that the existence of derivative asylum status under a statute implies that Congress intended to foreclose additional pathways to asylum specific to spouses.”). At bottom, the majority seems to be motivated by a concern that the BIA’s rule will “gut or . . . undermine” the availability of derivative asylum relief or have “the perverse effect of creating incentives for husbands to leave their wives.” Maj. Op. at 28, 27. But nothing in the BIA’s rule denies relief of any kind to husbands who come to this country with their wives; moreover I think it very likely that husbands will find it advantageous to come with their wives when possible because doing so will buttress the credibility of their claims. In the end, however, my views of the policy consequences of the BIA rule are immaterial; so, too, are those of the majority. Once we determine that the statute is ambiguous, we must defer to the BIA’s interpretation of the statute if it is reasonable, whatever our own personal policy preferences. See, e.g., Udall v. Tallman, 380 U.S. 1, 16 (1965) (“To sustain the Commission’s application of this statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.” (quotation marks omitted)). In considering the reasonableness of the BIA’s interpretation under step two of Chevron, our charge is not to determine whether the BIA’s interpretation of the statute is the one we would have adopted in the first instance. Instead, “the question for the court is whether the agency’s answer is based on a permissible construction of the statute”; we must defer to “legislative

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regulations . . . unless they are arbitrary, capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 843, 844. Here, in determining whether to extend asylum relief to spouses, the BIA reasonably considered the general principles underlying the definition of persecution and concluded that a husband is persecuted “when the government forces an abortion on a married couple.” In re S–L–L–, 24 I. & N. Dec. at 6; see also id. (“When the government intervenes in the private affairs of a married couple to force an abortion or sterilization, it persecutes the married couple as an entity.”). I see no reason why the BIA could not reasonably conclude that one has suffered harm or injury sufficiently severe to constitute persecution when one’s spouse is forced to undergo an abortion or sterilization. Indeed, this determination finds support in the decisions of a number of courts that have explicitly recognized that non-physical harm may support a finding of past persecution in at least some circumstances. See Junshao Zhang, 434 F.3d at 1001 (rejecting explicitly the “notion that [a husband] suffers no persecution independent of his wife, as the result of the forcible abortion of his child” and holding that “[a]lthough his wife was certainly a very direct victim of China’s population control measures, Zhang was a victim as well. The forcible abortion has deprived him of his unborn child, of the ability to realize the family that his wife and he had desired, and forever deprived him of the ability to become a parent to that unborn son or daughter with his wife”); see also Ouk v. Gonzales, 464 F.3d 108, 111 (1st Cir. 2006) (noting that “[u]nder the right set of circumstances, a finding of past persecution might rest on a showing of psychological harm” (quotation marks omitted)); Mashiri v. Ashcroft, 383 F.3d 1112, 1120 (9th Cir. 2004) (“Persecution may be emotional or psychological, as well as physical.”); Abay v. Ashcroft, 368 F.3d 634, 642 (6th Cir.

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2004) (holding that the applicant was entitled to asylum “based on her fear that her daughter will be forced to undergo female genital mutilation” because her “fear of . . . being forced to witness the pain and suffering of her daughter is well-founded”). The BIA also determined that there were not “convincing reasons to extend the nexus and level of harm attributed to a husband who was opposed to his wife’s forced abortion to a boyfriend or fiancé.” In re S–L–L–, 24 I. & N. Dec. at 9.13 Recognizing that “marriage place[s] the husband in a distinctly different position from that of an unmarried father,” id., the BIA noted that unmarried fathers do not bear the same legal and societal responsibility for violations of family planning policies. Indeed, because their relationships with their partners are not registered with the government and may not even be known within the community, the government may often be unaware of their identities. See id. at 9-10. The BIA thus presumed that the family planning officials target legal spouses for persecution to a greater extent than boyfriends and fiancés. See id. Furthermore, “[p]roof or presumption of paternity . . . may be considerably more difficult when a boyfriend claims to have fathered a child who was forcibly aborted by government officials.” Id. at 10. Although, as the BIA itself acknowledges, “drawing the line at marriage is not” perfect, id. at 9, and reasonable policymakers could differ as to how to draw the line, I cannot say that, under the deferential standard which guides us, the

Because petitioner Dong, the only petitioner whose claim we address on this appeal, had not participated in a traditional marriage ceremony, I need not determine now whether the BIA’s rule would also be reasonable as applied to individuals who were not old enough to marry under Chinese law and who participated in such a ceremony. Compare Junshao Zhang, 434 F.3d at 999 (holding that the BIA rule is unreasonable in this context), and Kui Rong Ma, 361 F.3d at 560 (same), with Cai Luan Chen, 381 F.3d at 231 (holding that the BIA rule is reasonable).
13

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BIA’s reading is not based on a permissible construction of the statute. See Chevron, 467 U.S. at 843.14 If Congress disagrees with the BIA’s interpretation, it can overturn the decision.15 This case presents difficult and challenging questions at the heart of our immigration laws. How we respond will affect the hopes and dreams of human beings seeking to live in freedom. In enacting the INA, Congress established a framework for determining when asylum relief should be provided to such individuals, and in doing so, it delegated considerable authority to the BIA to fill in statutory gaps and define the broad language used in the INA. It is in situations such as these that we should be particularly mindful of the views of the agency charged by Congress with administering the statute, views that will reflect the agency’s considerable experience and expertise. We should recognize that in such circumstances what is advanced as the obvious answer may not be the right one. Here, the meaning of the text becomes much less clear when one examines context, and the BIA, recognizing that ambiguity, has offered a reasonable interpretation of the statute. I would defer to that interpretation.

Because petitioner Dong was not married and has not otherwise established his eligibility for asylum relief, I agree with the majority that his petition for review should be denied. I also agree that the petitions of Lin and Zou should be dismissed.
14

The BIA, too, remains free to revisit its decision. Although Judge Calabresi suggests that my approach “preclude[s] the agency from thinking deeply and fully about the matter,” Judge Calabresi Op. at 16, I do not understand why this would be so. Unlike the majority, I do not purport to offer an authoritative constructive of 8 U.S.C. § 1101(a)(42); I would hold only that the statute is ambiguous and that the BIA’s interpretation is reasonable. As Judge Calabresi elsewhere acknowledges, id. at 2, the BIA may always change its own interpretation of statutory law, so long as the change is not inconsistent with that law. See, e.g., Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005) (“For if the agency adequately explains the reasons for a reversal of policy, change is not invalidating, since the whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency.” (quotation marks omitted)).
15

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SOTOMAYOR, Circuit Judge, with whom Judge POOLER joins, concurring in the judgment: Today’s decision marks an extraordinary and unwarranted departure from our longstanding principles of deference and judicial restraint. Instead of answering the limited question before us – whether the BIA’s denial of asylum to the unmarried partners of women forced to undergo abortions or sterilization was unreasonable – the majority has chosen to go far beyond it to address an issue that is unbriefed, unargued, and unnecessary to resolve this appeal. Indeed, the cases before us, which involve only unmarried petitioners, are inappropriate vehicles through which to opine on the merits of the BIA’s position with respect to spouses under 8 U.S.C. § 1101(a)(42).1 See Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.) (“The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.”); see also Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 224 (1997) (declining to reach question which received little or no attention from the parties and noting “prudence dictates that we not decide this question based on such scant argumentation”). Moreover, as Judge Katzmann’s concurrence, in which I fully join, cogently notes, today’s holding simply ignores the context animating § 601’s enactment and further upends

The majority claims to be perplexed by my concern that today’s decision reaches a question it need not, particularly because, the majority reasons, all judges – including myself – who agreed to hear these cases en banc joined an order instructing “the parties to address the BIA’s interpretation of § 601 as it related to both spouses and non-married partners.” Maj. Op. at 13 n.6. My concern, however, is not a quibble over the semantics of the en banc order, but rather the majority’s unnecessary but apparently pressing need to decide a question which the facts of petitioners’ appeals simply do not present. Like Judge Katzmann, I engage the question the majority answers because I would be remiss in not voicing my profound disagreement with the majority’s conclusions.
1

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congressional intent by reading the statute too narrowly. Section 601 was, after all, expressly enacted to expand, not contract, the availability of asylum under § 1101(a)(42) in the context of coercive population control programs. I will not reiterate what Judge Katzmann has already ably stated. I write separately to highlight the potentially ill-considered breadth of the majority opinion, which appears to cast doubt on our own circuit’s caselaw, as well as to create further circuit conflicts when such outcomes are easily avoided. Most importantly, however, I write because the majority’s zeal in reaching a question not before us requires the unprecedented step of constricting the BIA’s congressionally delegated powers – a decision whose ramifications we are ill-prepared, given the procedural posture of this case, to understand or appreciate fully. The majority analyzes § 601 within the broader framework of the INA and concludes that “[n]othing in the general definition of refugee would permit ‘any person’ who has not personally experienced persecution or a well-founded fear of future persecution . . . to obtain asylum.” Maj. Op. at 17. Again, I agree fully with Judge Katzmann’s discussion of the fatal flaws in this analysis, and I seek only to emphasize the majority’s apparent failure to appreciate that this deceptively simple proposition may unduly and inappropriately limit the BIA not merely in cases under § 601 but in others as well. In coming to its conclusion, the majority endorses the view that “persecution” can only be direct and personal, by which it appears to mean that the granting of asylum can never be based on, in whole or in part, harm to others, no matter how closely related the harm or the person harmed is to the applicant or whether harm to another is directed in whole or in part

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toward the applicant.2 The majority tries to anchor this limiting principle to the text of the statute, but such a reading is unwarranted and unsupportable. It is pellucidly clear from the text of § 1101(a)(42) that Congress did not define nor intend to define “persecution” to exclude harms “not personally” suffered by an applicant. The statute instead reads that “any person” who “because of persecution or a well-founded fear of persecution” is “unable or unwilling” to return to his or her country is entitled to asylum. There is no indication whatsoever of how personal or direct the harm or injury must be, only that persecution to an individual can merit asylum protection.3 We should, moreover, eschew the limiting construction of § 601 and § 1101(a)(42) urged in today’s opinion because such a construction could lead to absurd results. United States v. Dauray, 215 F.3d 257, 264 (2d Cir. 2000) (“A statute should be interpreted in a way that avoids absurd results.”). If government officials shot and killed an asylum applicant’s child to force him or her to convert to another religion, would that harm, which the majority would ostensibly label “not personal,” be insufficient in itself to demonstrate persecution of that applicant? Or what if the parent of an adult applicant was kidnapped and tortured to force the applicant to renounce an opposition political party or endorse a government candidate? In the end, I see no unambiguous language in the text of § 1101(a)(42) that compels the limiting construction of the INA that the majority now divines.
2

In another portion of the majority opinion, the Court states “we conclude that the statutory scheme unambiguously dictates that applicants can become candidates for asylum relief only based on persecution that they themselves have suffered or must suffer.” Maj. Op. at 19. By this pronouncement, the opinion suggests that harm to others cannot form a part of the rationale for granting asylum. I further agree with Judge Katzmann’s analysis of the majority’s misplaced reliance on 8 U.S.C. § 1158 to support its conclusion here. 57
3

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Requiring an applicant’s eligibility for asylum to rest only on instances where he or she suffers persecution “personally” merely begs the question of what personal harm is and how to define it. As with any ambiguous statutory term, it is for the BIA to determine within its expertise what exactly constitutes “persecution” so long as its interpretation is reasonable.4 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984). From its decision in In re S-L-L-, 24 I. & N. Dec. 1 (B.I.A. 2006), the BIA clearly construed “persecution” as not only entailing the spouse forced to undergo the procedure but also including the other spouse who, while physically unharmed, was nevertheless also targeted by the government for punishment and persecution. The BIA reached this conclusion by utilizing its traditional tests of nexus and level of harm, id. at 5, that is, by examining how the procedure affected each spouse’s respective health and emotional well-being as well as the couple’s interest in procreation and child-rearing. Perhaps most importantly of all, the BIA also considered to whom the government’s actions were directed. It is this last factor that is crucial. The majority concedes that both spouses suffer a “profound emotional loss” as a result of a forced abortion or sterilization, but it never sufficiently explains why the harm of sterilization or abortion constitutes persecution only for the person who is forced to undergo such a procedure and not for that person’s spouse as well. Maj. Op. at 21. This conclusion rests on two principal conclusions, both equally flawed. First, the majority I note that this and other circuits have found “persecution” to be an ambiguous term in other asylum cases. See, e.g., Mirzoyan v. Gonzales, 457 F.3d 217, 220 (2d Cir. 2006) (per curiam) (finding that the INA does not “unambiguously explain[] what the word ‘persecution’ means” in the economic context); Corado v. Ashcroft, 384 F.3d 945, 947 (8th Cir. 2004) (per curiam) (“The BIA is entitled to deference in interpreting ambiguous statutory terms such as ‘persecution.’”); cf. Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998) (noting that the INA “does not define ‘persecution’ or specify what acts constitute persecution”). 58
4

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clings to the notion that the persecution suffered is physically visited upon only one spouse, but this simply ignores the question of whom exactly the government was seeking to persecute when it acted. On this point, the harm is clearly directed at the couple who dared to continue an unauthorized pregnancy in hopes of enlarging the family unit. Indeed, the majority’s conclusion disregards the immutable fact that a desired pregnancy in a country with a coercive population control program necessarily requires both spouses to occur, and that the state’s interference with this fundamental right “may have subtle, farreaching and devastating effects” for both husband and wife. See Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942). The termination of a wanted pregnancy under a coercive population control program can only be devastating to any couple, akin, no doubt, to the killing of a child. Similarly, as to sterilization, the Ninth Circuit has aptly observed that: In addition to the physical and psychological trauma that is common to many forms of persecution, sterilization involves drastic and emotionally painful consequences that are unending: The couple is forever denied a pro-creative life together. As the BIA explained, The act of forced sterilization should not be viewed as a discrete onetime act, comparable to a term in prison, or an incident of severe beating or even torture. Coerced sterilization is better viewed as a permanent and continuing act of persecution that has deprived a couple of the natural fruits of conjugal life, and the society and comfort of the child or children that might eventually have been born to them. Qili Qu v. Gonzales, 399 F.3d 1195, 1202 (9th Cir. 2005) (quoting In re Y-T-L-, 23 I. & N. Dec. 601, 607 (B.I.A. 2003)). Viewed in this light, the harm here is directed as much at the husband as at the wife. By its action, after all, the state is preventing both members of the couple from procreating as a unit, and as the BIA found in In re Y-T-L-, such harm is not limited in time to

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the moment of sterilization, but is an ongoing harm that affects a married couple indefinitely. 23 I. & N. Dec. at 607. As the Third Circuit recently observed in Sun Wen Chen v. Attorney General of the United States, --- F.3d ---, 2007 WL 1760658, at *5 (3d Cir. June 20, 2007), the “persecution of one spouse can be one of the most potent and cruel ways of hurting the other spouse.”5 In the end, I fail to understand how the majority can claim that the harm caused by a spouse’s forced abortion or sterilization is not a personal harm to both spouses – either or both of whom can be sterilized for violations of the population control programs – especially given the unique biological nature of pregnancy and special reverence every civilization has accorded to child-rearing and parenthood in marriage. I similarly fail to understand how the majority justifies limiting the BIA’s ability to take this special and egregious harm into consideration and to determine within its expertise that such acts constitute persecution against both a wife and husband.6 The majority incorrectly asserts that the Third Circuit’s analysis in Sun Wen Chen is incongruent with my own analysis because the court there held that § 601(a) contains an ambiguity. Maj. Op. at 16 n.7. The Third Circuit found that § 601(a) is ambivalent on the treatment of spouses and that the existence of derivative asylum was not “intended to foreclose additional pathways to asylum specific to spouses.” Sun Wen Chen, --- F.3d ---, 2007 WL 1760658, at *4 (emphasis added); see also id. (“[W]e see nothing in the statute evincing Congressional intent to establish a particular policy regarding spousal eligibility.”). The Third Circuit then reasoned that because § 601(a) “establishes that forced abortion and sterilization constitute persecution,” id., it is entirely within the BIA’s authority to “interpret[] the scope of that persecution,” id., including its applicability to spouses. It is my contention that we should defer to the BIA’s interpretation regarding the broader scope of persecution under § 1101(a)(42) and not impose, as the majority here does, an unfounded requirement that persecution be direct and personal and that harm to another, even if directed at the applicant, is never sufficient for the purposes of § 1101(a)(42). These analyses are not incongruent because they both center on the deference we owe to the BIA on defining persecution.
5

6

The majority notes that its decision corrects the “perverse effect of creating incentives for husbands to leave their wives” inherent in the BIA’s determination in In re S-L-L-, 24 I. & N. Dec. 1 (B.I.A. 2006). Maj. Op. at 27. I note first that one of the petitioners before us was not, in 60

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Second, the majority argues that the BIA has impermissibly created an irrebuttable presumption that relieves applicants from the statutory burden of proving that they have a wellfounded fear of persecution based on an impermissible nexus. As Judge Katzmann correctly observes, however, the presumption argument is merely a red herring. In enacting § 601, Congress was not creating a presumption but merely expanding the BIA’s unduly restrictive definition in Matter of Chang of the terms “persecution” and “political opinion.” Thus, § 601 defined “persecution” and “political opinion” to include an individual’s forced abortion or sterilization under a restrictive population control policy. No presumption was created, however, as the applicant still bears the burden of establishing that he or she was subject to the conduct that qualifies under this expanded definition of persecution. And, while the majority places great weight on the fact that § 601 supposedly creates a presumption that “relieved only persons who actually experienced a forcible abortion or sterilization from the burden of proving a political nexus,” and not those married to such persons, Maj. Op. at 21, his conclusion ignores the clear congressional intent of § 601, expressed in the legislative history, that [n]othing in [§ 601] is intended to lower the evidentiary burden of proof for any alien, no matter how serious the nature of the claim. The Committee emphasizes that the burden of proof remains on the applicant, as in every other case, to establish by credible evidence that he or she has been subject to persecution-in fact, attempting to flee alone; he and his fiancée planned to leave China together but she was unfortunately caught before she could escape. More importantly, however, the majority’s assertion here is based on nothing but speculation as to the decisionmaking in which couples, persecuted by coercive population control programs, must engage before attempting to flee. We simply have no foundation on which to conclude that all couples have the financial resources to escape at the same time, and as the government stated at oral argument, it is not uncommon for Chinese couples to separate and have one spouse go abroad in order to amass the necessary resources to bring over the other spouse. I believe the majority here is opining on a subject – imbued with potentially significant cultural differences – with which it has no expertise or empirical evidence. 61

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this case, to coercive abortion or sterilization-or has a well-founded fear of such treatment. H.R. Rep. No. 104-469(I), 1996 WL 168955, at *174 (1996). Quite simply, there is no way to read in § 601 the presumption the majority discusses, nor a limitation on the BIA in extending § 601’s reach to spouses. Either the persecution occurred or it did not, and the applicant retains the burden of proving such circumstances. The BIA accordingly did not err in interpreting ambiguous terms in the INA to determine that either spouse may qualify as a refugee where one of them has in fact undergone forced abortion or sterilization. Finally, if adopted, the majority’s limiting construction may have significant, unintended consequences, broader than the Court today acknowledges. By claiming categorically that an applicant cannot rely on the harm inflicted on others in § 601 cases – no matter how closely related the harm or the person harmed is to the applicant or whether the harm is directed in whole or in part towards the applicant – to establish persecution or entitlement to asylum, this Court suggests that the BIA is precluded from ever considering harm to others as evidence of persecution to the applicant. While I agree that there are certainly limits as to when harm to another may inform persecution or a well-founded fear of persecution of an applicant, I cannot endorse the majority’s apparent per se conclusion. As noted above, this is a question of statutory construction properly answered by the BIA, which, in its administrative expertise, may interpret the ambiguity inherent in “persecution” to determine when a harm is direct or personal enough to be considered persecution of an applicant. And, in certain limited contexts pertinent to this appeal, the BIA has done precisely this, examining the harm to family members in determining whether an asylum applicant has in fact suffered past persecution, particularly where an

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immediate family member has been subjected to significant and enduring mistreatment. In Matter of Chen, 20 I. & N. Dec. 16, 19-21 (B.I.A. 1989), the seminal BIA decision recognizing the availability of humanitarian asylum for victims of severe past persecution, the BIA recited a litany of horrific acts visited on and suffered by Chen’s parents during the Cultural Revolution, and such evidence – when coupled with the Chinese government’s treatment of the petitioner himself – supported the BIA’s conclusion that “the respondent has clearly established that he and his family were severely persecuted in the past in China.” Id. at 21. Similarly, in In re H-, 21 I. & N. Dec. 337, 345 (B.I.A. 1996), where an applicant had testified about the severe physical beatings he had suffered as the member of a subclan in Somalia, the BIA based its finding of past persecution in part on the applicant’s testimony that his father and brother, also members of the same subclan, were beaten and killed. In examining the allegations concerning the deaths of his father and brother, the BIA specifically noted that “evidence of treatment of persons similarly situated is persuasive of an applicant’s claim of political persecution.” Id. at 345 (quoting Matter of Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987)); see also In re N-M-A-, 22 I. & N. 312, 326 (B.I.A. 1998) (finding in the context of humanitarian asylum that the applicant had suffered past persecution in part because of “the disappearance and likely death of his father”). The BIA has thus identified specific situations in which the harm to close family members could be central to the finding of persecution and the granting of refugee status. The majority’s misguided exercise in statutory interpretation, however, undermines this agency determination and suggests that because the years-long harassment and egregious mistreatment of Chen’s parents or the deaths of

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H-’s brother and father were “not personally experienced” by the applicants, neither Chen nor Hcould base their asylum applications on such harm after today’s decision.7 The holding today also calls into question our own caselaw – as well that of other circuits – in which appellate panels have recognized that harm inflicted upon one individual may give rise to, or at least help establish, persecution of another in certain circumstances. In Jorge-Tzoc v. Gonzales, 435 F.3d 146 (2d Cir. 2006) (per curiam), this Court, acknowledging that petitioner had not been “victimized directly” when as a young boy, his sister and her family were killed for their political activities, nevertheless remanded the case to the BIA for further proceedings to determine whether his age, coupled with the harm to his family members, helped to establish past persecution.8 Id. at 150 (internal quotation marks omitted). While the decision rested in great part on the petitioner’s age, this decision illustrates another category of asylum cases where it might be appropriate to consider harm to others in determining past persecution.9 Similarly,
7

The regulations governing the claims under the Convention Against Torture explicitly recognize that torture encompasses not only physical harm to the individual but also “mental pain or suffering” that results from the threat of infliction of physical pain or suffering on another person. See 8 C.F.R. § 1208.18(a)(4)(iv). By analogy, this regulation further supports the position that persecution is not limited to direct and physical harm upon an individual but can encompass harm inflicted on others as well. See, e.g., Yan Chen v. Gonzales, 417 F.3d 268, 275 (2d Cir. 2005) (“Certainly . . . torture can constitute persecution . . . .”).
8

The passing statement in a footnote in Melgar de Torres v. Reno, 191 F.3d 307, 313 n.2 (2d Cir. 1999), that the death of the applicant’s uncle did not constitute political persecution of her is not to the contrary. As noted in Jorge-Tzoc, the petitioner in Melgar de Torres “was an adult who offered no objective evidence that her uncle’s killing was politically motivated.” 435 F.3d at 150. To the extent that Melgar de Torres suggested, furthermore, that even if the petitioner had established the link between her uncle’s killing and his political activities, such killing could then not be considered part of her past persecution, this suggestion was clearly dicta. The majority professes no opinion on the continued vitality of our holding in Jorge-Tzoc and claims that nothing in today’s decision “preclude[s] the BIA from considering the totality of circumstances in any particular case to determine if an asylum applicant has carried his statutory
9

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other circuits have confronted situations where they found persecution relying in whole or in part on harm to others in certain circumstances. In Sun Wen Chen, the Third Circuit upheld In re SL-L-, the very BIA determination the majority strikes down today, in part by acknowledging that the physical harm to one’s spouse is nevertheless harm to both spouses in the family planning context. --- F.3d ---, 2007 WL 1760658, at *5 (“In a great many cases, forced abortion or involuntary sterilization of one spouse will directly affect the reproductive opportunities of the other spouse . . . . And persecution of one spouse can be one of the most potent and cruel ways of hurting the other spouse . . . .”). The Sixth Circuit in Abay v. Ashcroft, 368 F.3d 634, 642 (6th Cir. 2004), determined that an applicant was entitled to asylum because she had fled Ethiopia with her teenage daughter to protect the teenager from undergoing forced genital mutilation. The Abay court specifically noted that derivative asylum under § 1158 was not available to Abay – as she was neither a spouse nor a child of a persecuted individual – but granted her asylum, observing that several oral IJ and BIA decisions “suggest a governing principle in favor of refugee status in cases where a parent and protector is faced with exposing her child to the clear risk of being subjected against her will to a practice that is a form of physical torture causing grave and permanent harm.” Id. at 642. Having carefully weighed the law and arguments presented in this appeal, I must concur in the judgment for the reasons already stated ably by Judge Katzmann. I agree in particular burden.” Maj. Op. at 26 n.13. Yet, the majority fails to explain why the totality of circumstances may not be applied in the context of married couples who suffer under coercive population control programs. If the BIA could consider the direct harm to Jorge-Tzoc’s family members in determining whether Jorge-Tzoc himself had been persecuted, it should be able to consider the targeting of and effect on an individual when his or her spouse is forced to undergo an abortion or sterilization. 65

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with Judge Katzmann that the Third Circuit in Cai Luan Chen v. Ashcroft, 381 F.3d 221 (3d Cir. 2004) (Alito, J.), did what we should have done here. In that case, then-Judge Alito found no need to reach the question of whether § 601 or § 1101(a)(42) were ambiguous because Chen, who was not married to his fiancée on whom the forced abortion was performed, could prevail only if the BIA’s distinction between married and unmarried couples was unreasonable.10 Id. at 227. Judge Alito ultimately ruled that the distinction was reasonable and denied the petition. Id. at 235. This analysis should control our own very similar cases here.11 Given the above, the majority should never have reached the question it has taken upon itself to resolve, particularly in the immigration context where the Supreme Court has long recognized “that judicial deference to the Executive Branch is especially appropriate . . . where officials ‘exercise especially sensitive political functions that implicate questions of foreign relations.’” INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (quoting INS v. Abudu, 485 U.S. 94, 110 (1988)). In reaching this question, the majority has, I fear, started a domino effect that may have significant and unforeseen repercussions. Finally, the majority, in noting that “[i]f this conclusion is inconsistent with Congress’s intentions, [Congress] can, if it so chooses, of course, amend the statute,” Maj. Op. at 22 n.10, seems to take comfort that its conclusion, if wrong, may While I ultimately agree with Third Circuit’s recent pronouncement in Sun Wen Chen that the BIA properly interpreted an ambiguity in § 601 and § 1101(a)(42) to extend asylum protection to spouses of individuals forced to abort pregnancies or undergo sterilization, Sun Wen Chen involves a question we need not reach here because the petitioner here is not married. Had the majority dealt only with the question presented, I would adopt the approach as outlined by then-Judge Alito in Cai Luan Chen.
10

Unlike my esteemed colleague Judge Calabresi, I do not find that the BIA limited its analysis to § 601 in In re S-L-L-, but rather was grounding its interpretation in both the specific language of § 601 and the more general definition of “refugee” in § 1101(a)(42). Because the statute is ambiguous, I would defer to the BIA’s interpretation here. 66

11

be simply overturned. But for those petitioners who fled a draconian population control program because their spouses had been forced to undergo an abortion or sterilization, the majority’s caveat must be cold comfort indeed.

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CALABRESI, Circuit Judge, concurring in part and dissenting in part: What is remarkable about this case is that essentially everyone on this court agrees that IIRIRA § 601(a), codified at 8 U.S.C. § 1101(a)(42)(B), cannot be read to grant per se asylum to spouses. This is remarkable because it is in direct conflict with every other circuit, the BIA, and ten years of rulings. See Maj. Op. at 5 & n.4. Yet we all agree. And we are correct. Moreover, it follows that, because § 601(a) does not grant that kind of asylum to spouses, it also cannot be read as granting asylum to non-spouses — like the petitioners in this case. This part of the majority’s analysis is admirable, and I join it. Because § 601(a), in unambiguous terms, grants per se “refugee” status only to the “person who has been forced to abort a pregnancy or to undergo involuntary sterilization,” the panel in this case — consisting of the author of the majority opinion, the principal concurrence, and me — sent the case back to the BIA, to allow the agency to reexamine its decision in In re C-Y-Z- (C-Y-Z-), 21 I. & N. Dec. 915 (B.I.A. 1997) (en banc) (construing § 601 as granting per se “refugee” status to spouses). The BIA stuck to its decision, see In re S-L-L- (S-L-L-), 24 I. & N. Dec. 1 (B.I.A. 2006) (en banc), but has not convinced us that C-Y-Z-’s rule can be squared with the plain text of § 601(a), and so we now appropriately say that the BIA was wrong. Unfortunately, both the majority and concurrences are not willing to stop with that, which was the issue clearly before us and fully considered by the BIA. For reasons that are quite understandable, but nonetheless wrong — both in terms of results and in terms of what the Supreme Court has said about our relationship to the BIA — the majority and the concurrences

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go further. They do so in different directions, and that fact is, to me, simply additional evidence that going further was inappropriate.

I The majority says that if the BIA were to construe the general definition of “refugee” found in 8 U.S.C. § 1101(a)(42)(A) as granting per se refugee status to certain categories of people — e.g., spouses or non-spouses — that would be an impermissible reading of § 1101(a)(42)(A). This seems to me to be mistaken on several counts. A First, the majority relies on the fact that § 601(a) was enacted to overturn Matter of Chang, 20 I. & N. Dec. 38, 44 (B.I.A. 1989) (adopting the rule that victims of a coercive family planning regime could claim refugee status only if the victims demonstrated that the familyplanning policy had been “selectively applied” to them on the basis of a protected ground). See Maj. Op. at 17. The majority posits that § 601(a) was not intended to do more than overturn Chang, and that Chang is therefore left in place as to spouses and partners who are not themselves forcibly aborted or involuntarily sterilized. See Maj. Op. at 18 (“The inclusion of some obviously results in the exclusion of others.”). And, under Chang, spouses and partners are not entitled to per se refugee status. Fair enough, but Chang is not an opinion of the Supreme Court, or even of a Court of Appeals; it is an interpretation of underlying statutory law by the BIA. As such, the agency is perfectly free to change it — so long as the change is not inconsistent with the underlying law.

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Thus, any suggestion that the BIA could not, because of Chang, now grant per se status to spouses pursuant to § 1101(a)(42)(A) is a non sequitur, plain and simple. B Second, the logical consequences of what the majority seems to be saying appear to me to be untenable. Suppose the BIA were to issue an interpretation of § 1101(a)(42)(A) that said, categorically, that any child who sees his parents tortured and murdered before him by a totalitarian government — say, the Nazis — is persecuted, and therefore eligible for asylum. Would such a ruling be invalid under § 1101(a)(42)(A)’s broad definition of refugee? If that is what the majority is saying, it is, in my judgment, manifestly absurd. There is nothing in the language or history of § 1101(a)(42)(A) that suggests the BIA could not adopt such a per se rule. But, if the BIA could adopt the kind of per se rule I described above — and I believe a majority of our court would agree with me that such a rule would indeed be proper — then it is improperly premature to say — as today’s governing opinion does — that the agency could not adopt an analogous per se rule with respect to individuals in the situation of the petitioners in this case. It may be that if the BIA did adopt such a per se rule, I would ultimately agree with the majority that, in the context of coercive family planning laws, such an interpretation of § 1101(a)(42)(A) is “unreasonable” at Chevron’s Step Two.1 But once it is admitted that some categorical per se asylum rules — like the one involving my hypothetical children — might be valid under § 1101(a)(42)(A) (i.e., would get by Chevron Step One) — it is, I believe, impermissible to say that an equivalent per se interpretation dealing with spouses would necessarily be invalid if it were adopted — which is in effect what the majority’s holding
1

See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). 70

amounts to. It is impermissible given the Supreme Court’s unanimous decisions in INS v. Orlando Ventura, 537 U.S. 12 (2002) (per curiam), and Gonzales v. Thomas, 547 U.S. 183, 126 S. Ct. 1613 (2006) (per curiam). 1 In Ventura, the Supreme Court held that, “[g]enerally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands.” 537 U.S. at 16. “This principle,” the Court explained, “has obvious importance in the immigration context,” id. at 16-17, because “[w]ithin broad limits the law entrusts the agency to make the basic asylum eligibility decision here in question.” Id. at 16. Subsequent case law has only strengthened Ventura’s reasoning. The “ordinary remand rule” was recently reaffirmed by a unanimous Supreme Court in Thomas, 126 S. Ct. 1613, and has been followed by our court in a series of cases, most notably in Ucelo-Gomez v. Gonzales, 464 F.3d 163, 168-70 (2d Cir. 2006). Yet, despite the “obvious importance” of the ordinary remand rule in the immigration context, the majority insists on precluding the BIA from interpreting § 1101(a)(42)(A)’s general provisions in the first instance. In my view, this aspect of the majority’s holding is dangerously in tension with Ventura’s command. In Ventura — much as in the case before us — the Ninth Circuit reversed a holding of the BIA, and then “went on to consider an alternative argument that the Government had made before the Immigration Judge,” but which “the BIA itself had not considered . . . .” 537 U.S. at 13. Specifically, the Ninth Circuit reversed the BIA’s holding that the petitioner was not persecuted “on account of” a “political opinion,” but then, rather than remanding to the BIA for

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further proceedings, the court evaluated for itself, and rejected, the government’s alternative argument that the petitioner failed to qualify for asylum because of changed country conditions in Guatemala. Id. In reversing the Ninth Circuit’s judgment, the Supreme Court found that the court of appeals seriously disregarded the agency’s legally-mandated role. Instead, it independently created potentially far-reaching legal precedent about . . . a highly complex and sensitive matter. And it did so without giving the BIA the opportunity to address the matter in the first instance in light of its own expertise.

Id. at 17. More recently, the Court in Thomas reversed a Ninth Circuit decision which had decided, without first remanding the issue to the BIA, “that in principle ‘a family may constitute a social group for the purposes of the refugee statutes,’ . . . [and] that the particular family at issue . . . fell within the scope of the statutory term ‘particular social group.’” 126 S. Ct. at 1614 (quoting Thomas v. Gonzales, 409 F.3d 1177, 1187, 1189 (9th Cir. 2005) (en banc)) (emphasis added). Quoting Ventura — and echoing the basic principle of SEC v. Chenery Corp. (Chenery I), 318 U.S. 80 (1943), that “an appellate court cannot intrude upon the domain which Congress has exclusively entrusted to an administrative agency,” id. at 88 — the Thomas Court reiterated that “[a] court of appeals is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry.” Thomas, 126 S. Ct. at 1615 (quoting Ventura, 537 U.S. at 16 (internal quotation marks omitted)).

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In Ucelo-Gomez, a panel of this court concluded that Thomas and Ventura establish the rule that “where (as here) the agency has yet to decide whether a group, a thing, or a situation falls within the ambit of a statutory term, the proper course is for the reviewing court to remand the matter to the agency in accordance with the well-worn ordinary remand rule.” Ucelo-Gomez, 464 F.3d at 169 (internal quotation marks omitted). Moreover, the panel in Ucelo-Gomez asserted that “the agency interpretation required by Thomas and Ventura is ‘in the first instance’ a particularized interpretation by the agency.” Id. (emphasis omitted). As a purely formal matter, the approach taken by the majority today is perhaps reconcilable with Ventura and Thomas. But it is fundamentally incompatible with the spirit of those cases. Even if the majority is convinced that C-Y-Z-’s rule would be an unreasonable construction of § 1101(a)(42)(A), the correct approach would be to allow the agency to make a determination on that matter first. Instead, the majority opinion — perhaps realizing that it could not, at this time, authoritatively speak on the question of C-Y-Z-’s reasonableness as a construction of § 1101(a)(42)(A) — by a preemptive strike strips the BIA of its capacity to consider the issue under § 1101(a)(42)(A). In so doing, the majority precludes the BIA from examining thoroughly this “highly complex and sensitive matter,” Ventura, 537 U.S. at 17, and “independently create[s] . . . far-reaching legal precedent . . . . without giving the BIA the opportunity to address the matter in the first instance in light of its own expertise.” Id. Significantly, Ventura and Thomas are designed to prevent just such judicial preemption of BIA positions, even when that preemption reaches what is arguably the correct result. 2

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Moreover, even if the majority were not required — as I believe it was — to remand Zhen Hua Dong’s case to the BIA,2 it should have remanded his case as a matter of wise discretion. Cf. Jian Hui Shao v. Bd. of Immigration Appeals, 465 F.3d 497, 501, 503 (2d Cir. 2006) (concluding that “the BIA is better situated than we are to decide the statutory interpretation question in the first instance,” and noting that “[o]ur decision to remand this question of law to the BIA for resolution in the first instance is supported by recent decisions of the Supreme Court of the United States and our Court” (emphases added)); Yuanliang Liu v. U.S. Dep’t of Justice, 455 F.3d 106, 116 (2d Cir. 2006) (“Because we conclude, as a matter of discretion, that it is prudent and useful for us to remand the issue of frviolousness, we need not address the more complicated question of when remands to the BIA are required by elementary principles of administrative law.”).

The question of whether, as a matter of Chevron Step Two “reasonableness” review, the BIA could base its C-Y-Z- decision on § 1101(a)(42)(A), is arguably neither a pure question of fact, nor of statutory interpretation. And the extent to which such mixed questions may be resolved by a Court of Appeals, without first remanding to the agency for its consideration, has not been clearly settled by the Supreme Court. Compare Thomas, 126 S. Ct. at 1615 (“[T]he proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” (quoting Ventura, 537 U.S. at 16) (internal quotation marks omitted)) with id. (requiring remand, and observing that “[t]he matter requires determining the facts and deciding whether the facts as found fall within a statutory term”); Hussain v. Gonzales, 477 F.3d 153, 157-58 (4th Cir. 2007) (distinguishing between factual issues not considered by the BIA, and statutory issues, and reasoning that Ventura and Thomas were directed only toward factual issues); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132-35 (9th Cir. 2006) (considering a variety of factors — including the fact that the issue being decided would, following a remand to the BIA, have been reviewed by the court de novo anyway — in concluding that the Thomas-Ventura remand rule did not apply to the particular issue in question); Ucelo-Gomez, 464 F.3d at 170 (“[I]f a reviewing court can state with assured confidence (absent agency guidance as to its protectability under the INA) that a group would or would not under any reasonable scenario qualify as a ‘particular social group,’ it need not remand, and may rule on the issue in the first instance.”).
2

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I believe that the majority’s haste in narrowly construing § 1101(a)(42)(A) — and, therefore, in cabining the BIA’s discretion — is particularly troubling given the circumstances of this case. At stake is a rule of the BIA that has been in place, and relied upon, for over ten years. See S-L-L-, 24 I. & N. Dec. at 14 (Board Member Pauley, concurring) (“[N]otwithstanding my belief that Matter of C-Y-Z- . . . was wrongly decided, I would not overrule it now, nearly a decade later and in the aftermath of thousands of decisions applying it to grant asylum on a derivative basis.”). In addition, the invalidation of C-Y-Z-’s rule will have sweeping ramifications for this court’s immigration law docket; by one estimate, “70-80 percent of the [petitioners in our court] are Chinese seeking asylum to escape their homeland’s family planning policies.” BIA Appeals Remain High in 2nd and 9th Circuits, The Third Branch: Newsletter of the Fed. Cts. (Admin. Office of the U.S. Cts. Office of Pub. Affairs, D.C.), Feb. 2005, available at http://www.uscourts.gov/ttb/feb05ttb/bia/index.html (citing statement of Elizabeth Cronin). Given all this, our court should have approached the question of C-Y-Z-’s permissibility — either as it was or with nuanced modifications — not with haste, but with trepidation. For the truth is that we cannot foretell how the BIA would have interpreted the general definition of § 1101(a)(42)(A), had it been asked to focus on that language. By trying to decide something that is not yet before us, the majority bars the BIA from bringing its expertise to bear on this sensitive issue. In the process, the majority does not only preclude the BIA from reenacting the per se rule of C-Y-Z- — a rule which, at the proper time, I might well have concluded was “unreasonable” at Chevron Step Two, for all of the reasons the majority recites. The majority also prevents the agency from interpreting the general language

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of § 1101(a)(42)(A) in ways which might have suffered from none of the problems the majority properly associates with the current per se rule — ways, incidentally, which might truly have promoted congressional policy goals.3 In this respect, the majority opinion keeps the agency from doing what administrative agencies do best, namely, using their expertise to convert general statutes into specific rules that best reflect an underlying legislative intent.4 **** To cite just one of the many possibilities which the majority prematurely forecloses: had the BIA not relied on § 601(a)’s automatic persecution rule, but instead focused on the general notion of “persecution,” the agency might have interpreted § 1101(a)(42)(A) as providing (1) that partners who had tried to marry, and were prevented from doing so, but who stayed together, are jointly eligible for asylum (which conclusion would both (a) promote the congressional policy of keeping families together, and (b) extend asylum eligibility to individuals not already covered by § 601(a)); but (2) that husbands who are legally married at the time of a wife’s forced abortion, but who choose to leave their wives behind for good, are not. 4 I am mindful that the Supreme Court has cautioned that respect for the role and expertise of agencies does not “require that we convert judicial review of agency action into a ping-pong game,” and that, therefore, remand is not required when it “would be an idle and useless formality.” NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969); see also Li Zu Guan v. INS, 453 F.3d 129, 135-38 (2d Cir. 2006) (discussing futility standards); Alam v. Gonzales, 438 F.3d 184, 187-88 (2d Cir. 2006) (per curiam) (same). Moreover, and relatedly, the Supreme Court has clarified that a reviewing court must “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. ArkansasBest Freight Sys., Inc., 419 U.S. 281, 286 (1974); see also Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (same). But, regardless of whether these cases, which limit the necessity to remand, are understood to be “exceptions” to the Chenery and Ventura-Thomas requirements, or merely a reflection of the deeper truth that formulaic statements cannot substitute for sound judgment in particular cases, see Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 112 (2d Cir. 2006), it remains clear on which side of the line the case before us falls. We simply do not know — and, because the majority and concurring opinions make it almost impossible for the BIA to consider the general language of § 1101(a)(42)(A) in the first instance, in relation to spouses and partners of directly victimized persons, we are not likely to learn — how the BIA would have interpreted § 1101(a)(42)(A) had it been asked to do so. This is not a case in which the agency’s path, while not perfectly clear, can “reasonably be discerned”; nor is it a case in which the agency’s likely response to a remand can be predicted with confidence. Rather, it is a case in which (1) the BIA has not yet spoken — at all, and certainly not clearly — on § 1101(a)(42)(A)’s breadth in this area, and (2) our court has, unfortunately, chosen to make further inquiry impossible.
3

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Ironically, it was precisely because of the above reasons that the panel in Shi Liang Lin — comprised, as I mentioned earlier, of the author of the majority opinion, the principal concurrence, and me — sent it back originally. Yet if the majority’s reasoning were valid, then there would have been no reason for the panel to do so. Nonetheless, we sent it back then, and the BIA ruled only as to whether per se refugee status could be granted directly under § 601. See infra Part II.B. If the case were sent back again, to allow the agency to consider whether to extend per se protection under § 1101(a)(42)(A), it is possible that the BIA would have agreed with the majority that no such protection should be adopted. Or the BIA might have adopted a more sensible rule. Under the majority’s approach, we will never know. Accordingly, I respectfully, partially, dissent from the majority opinion. II But I cannot join the concurrences either. They act as if the BIA, because it mentioned “nexus” in passing, made a ruling under § 1101(a)(42)(A). It didn’t. Since the agency has yet to interpret the broad language of that section, it is wrong for us to say — as the concurrers do — that the agency expressed views to which we owe deference. And this is so, regardless of whether such a ruling, had it been made, would have passed the requirements of Chevron Step Two. A In SEC v. Chenery Corp. (Chenery I), 318 U.S. 80 (1943), and SEC v. Chenery Corp. (Chenery II), 332 U.S. 194 (1947), the Supreme Court articulated, and then reaffirmed, “a simple but fundamental rule of administrative law”: “[A] reviewing court, in dealing with a

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determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.” Chenery II, 332 U.S. at 196. And “[i]f those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis.” Id. The reason for this rule is obvious: “If an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it has not made, a judicial judgment cannot be made to do service for an administrative judgment,” because “an appellate court cannot intrude upon the domain which Congress has exclusively entrusted to an administrative agency.” Chenery I, 318 U.S. at 88. The Chenery decisions also recognized “an important corollary of the foregoing rule”: “If the administrative action is to be tested by the basis upon which it purports to rest, that basis must be set forth with such clarity as to be understandable.” Chenery II, 332 U.S. at 196. As the Court explained, “[i]t will not do for a court to be compelled to guess at the theory underlying the agency’s action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive.” Id. at 196-97. If it were otherwise, an appellate court could impose its own policy judgments under the guise of “review.” Our court has repeatedly recognized and applied these fundamental rules of administrative law: (1) we may only review that which an agency itself has stated; and (2) the agency must make those statements in clear terms. See, e.g., Riverkeeper, Inc. v. EPA, 475 F.3d 83, 105 (2d Cir. 2007) (“We cannot opine on this subject, because we must consider only those justifications that the [agency] offered at the time of the rulemaking.”); Singh v. U.S. Dep’t of

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Justice, 461 F.3d 290, 294 n.3 (2d Cir. 2006) (“[W]e cannot, on appeal, substitute an argument — even one the BIA made in another context — for those that the BIA actually gave to support the conclusion . . . dispute[d] on appeal.”); Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 400 (2d Cir. 2005) (“[W]e will limit our review of the [agency’s] decision to the reasons [it] actually articulates . . . . To assume a hypothetical basis for the [agency’s] determination, even one based in the record, would usurp [the agency’s] role.”); Shi Liang Lin v. U.S. Dep’t of Justice, 416 F.3d 184, 192 (2d Cir. 2005) (“The government suggests that we may simply supply our own rationale for the BIA’s decision in C-Y-Z- and then act accordingly. But the Supreme Court has made clear that ‘[i]t will not do for a court to be compelled to guess at the theory underlying [a particular] agency’s action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive.’ It is not difficult to understand why. Were courts obliged to create and assess ex-post justifications for inadequately reasoned agency decisions, courts would, in effect, be conscripted into making policy.” (quoting Chenery II, 332 U.S. at 196-97)). B I recite these well-known tenets of administrative law because I believe that they preclude us from taking the route advocated by the concurring opinions. Because the BIA’s opinion in S-L-L- is lacking in clarity, it is certainly possible, with some creativity, to construe the decision as having been based on rationales which the BIA itself did not invoke. But we are not empowered to invoke those reasons. The BIA is required to speak for itself. 1

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The precise basis of the BIA’s decision in C-Y-Z- was anything but clear. But the BIA and this court have in the past stated that it was based on a construction of § 601(a). See Shi Liang Lin, 416 F.3d at 188 (noting that, in C-Y-Z-, “the BIA held that, under IIRIRA § 601(a), the forced sterilization or abortion of one spouse is an act of persecution against the other spouse . . . .” (emphasis added)); see also id. at 191 (“[A] fresh look at C-Y-Z- reveals that the BIA never adequately explained how or why, in the first instance, it construed IIRIRA § 601(a) to permit spouses of those directly victimized by coercive family planning policies to become eligible for asylum themselves.” (emphasis added)); see S-L-L-, 24 I. & N. Dec. at 3 (“In Matter of C-Y-Z-, supra, we held that a husband whose wife was forcibly sterilized could establish past persecution under this amendment [i.e., IIRIRA § 601(a)]” (emphasis added)). In Shi Liang Lin, the panel remand[ed] the instant petitions to the BIA so that the BIA [could]: (a) more precisely explain its rationale for construing IIRIRA § 601(a) to provide that the ‘forced sterilization of one spouse on account of a ground protected under the Act is an act of persecution against the other spouse’ and that, as a result, the spouses of those directly victimized by coercive family planning policies are per se as eligible for asylum as those directly victimized themselves; and (b) clarify whether, when, and why boyfriends and fiancés may or may not similarly qualify as refugees pursuant to IIRIRA § 601(a). Shi Liang Lin, 416 F.3d at 192 (emphases added). Thus, in remanding, the Shi Liang Lin panel plainly assumed that the BIA’s ruling in C-Y-Z- was based on a construction of § 601(a), and accordingly, requested that the BIA explain how § 601(a) might plausibly be read in such a manner. Consistent with these instructions, the BIA’s response in S-L-L- focused on the scope of § 601(a). See S-L-L-, 24 I. & N. Dec. at 1 (“The United States Court of Appeals for the Second Circuit has remanded this case

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with a request that we further explain our rationale in Matter of C-Y-Z-, ‘for construing IIRIRA § 601(a) to provide that the “forced sterilization of one spouse on account of a ground protected under the Act is an act of persecution against the other spouse” . . . .’” (internal citation omitted)); id. at 4 (“[W]e reaffirm our holding in Matter of C-Y-Z- . . . .”). Perhaps sensing that § 601(a)’s text had little to offer, however, the BIA’s decision in S-L-L- provided little analysis of that text. Instead, the BIA asserted, conclusorily, that its decision in C-Y-Z- “reflects the significant tensions inherent in the IIRIRA amendment”5 and that “[t]here is no clear or obvious answer to the scope of the protections afforded by the amendment to partners of persons forced to submit to an abortion or sterilization.” S-L-L-, 24 I. & N. Dec. at 4. The BIA did not hint at what these “tensions” might plausibly be, or why the plain language of § 601(a) should not be taken as establishing the proper scope of “the IIRIRA amendment.” Instead, the BIA “reaffirm[ed] [its] holding in Matter of C-Y-Z-,” id., largely on the basis of stare decisis and Congress’s supposed acquiescence. It is the BIA’s reticence to engage with § 601(a)’s text — and the resulting ambiguity in the BIA’s opinion in S-L-L- — that the concurring opinions now seek to convert into an argument that S-L-L- was based, not on § 601(a), but on the general definition of “refugee” found in § 1101(a)(42)(A). It is true that, at one point in S-L-L-, the BIA obscurely remarked that “[a]lthough there is no specific reference in the statutory definition of a refugee to a husband’s claim based on harm inflicted upon his wife, the general principles regarding nexus and level of harm apply in determining such a claim.” S-L-L-, 24 I. & N. Dec. at 5.

5

The “IIRIRA amendment” refers, of course, to § 601(a). 81

But this phrase cannot, I believe, establish — as the concurring opinions would have it — that the BIA’s decision in S-L-L- was based on the general terms “persecution” and “political opinion” found in § 1101(a)(42)(A). And, even if it did, it would not do so clearly (as required by Chenery II). Indeed, one can say, as to that: manifestly not. Notably, in its very next breath, after using the nexus phrase relied on by the concurrers, the BIA in S-L-L- stated that it was applying “general principles requiring nexus and level of harm for past persecution in assessing a claim under the IIRIRA amendment.” Id. (emphasis added). It is permissible to read § 601(a) in this way, the BIA argued, because “[a]lthough the wife is obviously the individual subjected to the abortion procedure, Congress was concerned not only with the offensive assault upon the woman, but also with the obtrusive government interference into a married couple’s decisions regarding children and family.” Id. at 6. Therefore, the BIA concludes, “[w]hen the government intervenes in the private affairs of a married couple to force an abortion or sterilization, it persecutes the married couple as an entity.” Id. (emphasis added). It seems to me patent that the BIA reached this conclusion under § 601(a), and not § 1101(a)(42)(A). 2 In my view, then, the BIA’s decisions in C-Y-Z- and S-L-L- were grounded in a (mistaken) belief that, based on an “entity theory” of persecution, spouses of those directly victimized by coercive family planning policies could themselves become directly eligible for asylum under § 601(a). And it is not enough for the concurring opinions to cast doubt on my conclusion; Chenery II’s “clarity corollary” requires that the agency make clear its decision to

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rest upon a purported ground. Thus, to restate my problem with the concurring opinions: They would use the fact that the BIA refused to engage clearly with the text of § 601(a) as a basis for concluding that the BIA was relying on something else. But the incompatibility of this approach with Chenery II is apparent. Moreover, the (at best) ambiguousness of the BIA’s decision in S-L-L- results in precisely the problems adverted to in Chenery II. For it is far from clear that, had the BIA focused on the general definition of § 1101(a)(42)(A), the agency would have preserved C-Y-Z’s rule in its current form. That is, had the BIA been asked to examine, not § 601(a)’s automaticeligibility rule, but instead the more general definition of “refugee,” it is quite possible that the BIA would have come up with a different per se rule, and perhaps even one that would have avoided the many problems inherent in its C-Y-Z- approach. See supra at 8-9. Under the concurring opinions’s approach, we are unlikely to know. For, by reading the agency’s opinion as deciding that which it did not decide — and certainly did not decide clearly — the concurring opinions, in effect, preclude the agency from thinking deeply and fully about the matter. And that is the very thing which the clarity requirement of Chenery II is meant to make the agency do. III In the end, as at the beginning, the BIA read us to ask — what we in fact asked: whether C-Y-Z-’s rule could be based upon § 601(a)’s text, and if so, what its reasons were. The agency could, under our remand, have turned more broadly to § 1101(a)(42)(A). It didn’t, and it certainly didn’t do so clearly. Today, we properly reject the BIA’s ruling interpreting the

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coverage of § 601(a). But in the spirit of Ventura, Thomas, and our own tradition of sending things back to the BIA for a first reading, we should now ask the BIA something that it has never been asked by any court: What would you do under § 1101(a)(42)(A), given that § 601(a) does not give you the authority to do what you did in C-Y-Z- and S-L-L-?6 We do not know what answer the BIA would give to that question for the simplest of reasons. The agency has never been specifically asked. And we should not, indeed cannot properly, assume that what it would say in response — one way or another — would be either a reasonable or an unreasonable interpretation of the statute. Moreover, since it is possible that such interpretation might have covered Zhen Hua Dong, I cannot concur with the majority and concurrences that his case is now hopeless. The sad thing is that, in their rush to reach a result in terms of who gets asylum and who does not, both the majority and the concurrers sanction bad law and bad practices with

The majority, attempting to answer my opinion, says, at footnote 15, that remanding Zhen Hua Dong’s case to the BIA would be engaging in useless “ping pong.” With great respect, the majority in that footnote simply repeats its conflation of two quite separate things. It is certainly true that the BIA has had multiple occasions to consider the “spousal” question under § 601(a), and has answered (incorrectly, we all agree) that per se persecutee status is available to spouses under that section. But it has never been asked what the status of spouses or of people situated like Zhen Hua Dong would be under the general terms of § 1101(a)(42)(A), if § 601(a) did not cover spouses. And, in view of its consistent – but incorrect, we today hold – rulings that § 601(a) did apply to spouses, the BIA never had any reason to address that question on its own. The concurrers, nevertheless, act as if the BIA had addressed the question and had validly given spouses per se persecutee status under § 1101(a)(42)(A). The majority holds that even if the BIA were to consider the question, it could not validly say that spouses et al. were covered per se. Both the majority and the concurrers seem to me to overstep, and for precisely the reasons indicated in Ventura and Thomas. It is not proper for appellate courts to speak for the BIA and to decide the validity of that “speech,” before the agency has had a full and focused opportunity to make its position clear. On § 1101(a)(42)(A), the agency has not yet had that opportunity. It is not ping pong when only one player has been invited to the relevant table.
6

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respect to our relationship with the BIA. The reason they do this is certainly understandable. But it is all unnecessary. It’s just being in a hurry. **** For all these reasons, while I concur with the majority opinion insofar as it (1) dismisses the petition of Xian Zou for lack of jurisdiction; (2) denies the petition of Shi Liang Lin as moot; and (3) persuasively interprets 8 U.S.C. § 1158(c)(2)(A) as being limited to a “fundamental change” in country conditions, I must respectfully dissent from the premature denial of Zhen Hua Dong’s petition.

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E.E.O.C. v. J.B. HUNT TRANSPORT, INC.
Cite as 321 F.3d 69 (2nd Cir. 2003)

69

cal in directing that any lack of clarity must be resolved in favor of the insured. See Ferraiolo Const. Co., 584 A.2d at 609 (‘‘Any ambiguity must be resolved in favor of a duty to defend.’’) (Maine law); Wilkin Insulation Co., 161 Ill.Dec. 280, 578 N.E.2d at 930 (‘‘All doubts and ambiguities must be resolved in favor of the insured.’’) (Illinois law); Lime Tree Vill. Cmty. Club Ass’n, 980 F.2d at 1405 (‘‘If the allegations of the complaint leave any doubt as to the duty to defend, the question must be resolved in favor of the insured.’’) (Florida law). Regardless of which of the three state’s laws applied, the potential for coverage existed at the time CI refused to defend Auto Europe. The duty to defend was therefore ‘‘clear’’ and, accordingly, the district court properly awarded attorney’s fees. VI. Conclusion The district court properly concluded that this insurance coverage dispute should be heard in Maine and resolved pursuant to Maine law. Because CI’s duty to defend was clear, the district court properly awarded attorney’s fees to Auto Europe. The judgment of the district court is therefore affirmed.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff–Appellant, v. J.B. HUNT TRANSPORT, INC., Defendant–Appellee. Docket No. 01–6084. United States Court of Appeals, Second Circuit. Argued: Jan. 9, 2002. Decided: Feb. 5, 2003.

,
leaves some ambiguity on whether allegations of intentional conduct eliminate the duty to defend pursuant to an intentional acts policy exclusion even when facts could be developed at trial to support judgment for the plaintiff

Equal Employment Opportunity Commission (EEOC) commenced action pursuant to the Americans with Disabilities Act (ADA), alleging that truckload motor carrier violated the ADA by discriminating against over-the-road truck drivers who used certain prescription medications. On parties’ cross-motions for summary judgment, the United States District Court for the Northern District of New York, Norman A. Mordue, J., 128 F.Supp.2d 117, granted summary judgment in favor of carrier, and EEOC appealed. The Court of Appeals, F.I. Parker, Circuit Judge, held that applicants perceived as unsuitable for position of over-the-road truck drivers were not perceived as substantially limited in major life activity of working, as would establish ‘‘disability’’ under the ADA. Affirmed. Sotomayor, Circuit Judge, dissented and filed opinion.
based on non-intentional conduct. See, e.g., Applestein, 377 So.2d at 231 (holding that allegations of malice and deliberate ‘‘ ‘attempt to discredit’ ’’ negated coverage).

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321 FEDERAL REPORTER, 3d SERIES

1. Federal Courts O776, 802 The Court of Appeals reviews a district court’s grant of summary judgment de novo, construing the evidence presented below in the light most favorable to the non-moving party. 2. Federal Courts O759.1, 766 While the Court of Appeals may affirm a district court’s grant of summary judgment on any ground with adequate support in the record, it may not affirm summary judgment where any evidence in the record would support a reasonable inference in favor of the opposing party. 3. Civil Rights O173.1 Applicants’ perceived unsuitability for position of over-the-road truck drivers, based on their use of prescription medications with side effects that could impair driving ability, was not a perceived inability to perform broad range or class of jobs, but rather was limitation on particular job within larger group of jobs, and thus applicants failed to establish that they were perceived as substantially limited in major life activity of working, as would establish ‘‘disability’’ under the ADA. Americans with Disabilities Act of 1990, § 3(2), 42 U.S.C.A. § 12102(2); 29 C.F.R. § 1630.2(j)(3)(i). 4. Civil Rights O173.1 Truckload motor carrier did not view applicants who were perceived unsuitable for position of over-the-road truck drivers based on their use of prescription medications with side effects that could impair driving ability as unable to drive any trucks, so as to regard them as disabled within meaning of ADA, but rather perceived applicants as unfit to perform specific job of long-distance, freight-carrying, tractor-trailer driving. Americans with Disabilities Act of 1990, § 3(2), 42 U.S.C.A. § 12102(2); 29 C.F.R. § 1630.2(j)(3)(i).

5. Civil Rights O173.1 Comments made by people other than ultimate hiring authorities suggesting that certain applicants for position of over-theroad truck drivers were not suited to any form of professional driving, based on their use of prescription medications with side effects that could impair driving ability, were not sufficient to indicate that truckload motor carrier thought applicants were more broadly limited in major life activity of working, so as to regard them as disabled within meaning of ADA, where carrier had its own safety requirements above and beyond those of federal standards, and it did hire some applicants on medications at issue. Americans with Disabilities Act of 1990, § 3(2), 42 U.S.C.A. § 12102(2); 29 C.F.R. § 1630.2(j)(3)(i). 6. Civil Rights O173.1 A finding of perceived disability, for purposes of a discrimination action under the ADA, may not rest merely on a single employer’s failure to hire a candidate. Americans with Disabilities Act of 1990, § 2 et seq., 42 U.S.C.A. § 12101 et seq. 7. Civil Rights O240(2) For purposes of a discrimination action under the ADA, courts will not presume a mistaken assumption of disability based only on an employer’s decision not to hire certain candidates. Americans with Disabilities Act of 1990, § 2 et seq., 42 U.S.C.A. § 12101 et seq. 8. Civil Rights O173.1 Applicants for over-the-road truck driver positions who suffered from conditions treated with prescription medications with side effects that could impair driving ability were not regarded as substantially limited in major life activity of working based on underlying condition itself, as would establish ‘‘disability’’ under the ADA; rather, employer perceived appli-

E.E.O.C. v. J.B. HUNT TRANSPORT, INC.
Cite as 321 F.3d 69 (2nd Cir. 2003)

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cants as unfit for positions based on use of medications with dangerous side effects. Americans with Disabilities Act of 1990, § 3(2), 42 U.S.C.A. § 12102(2); 29 C.F.R. § 1630.2(j)(3)(i); 49 C.F.R. § 391.41.

Julie L. Gantz, Equal Opportunity Employment Commission (Nicholas M. Inzeo, Acting Deputy General Counsel, Philip B. Sklover, Associate General Counsel, Vincent J. Blackwood, Assistant General Counsel, on brief), for Plaintiff–Appellant. James H. Hanson, Scopelitis, Garvin, Light & Hanson, Indianapolis, IN (Laurie T. Baulig, Scopelitis, Garvin, Light & Hanson, Washington, DC, Thomas J. Grooms, Bond Schoeneck & King, Syracuse, NY, on brief), for Defendant–Appellee. Before: JACOBS, F.I. PARKER, SOTOMAYOR, Circuit Judges. F.I. PARKER, Circuit Judge. J.B. Hunt Transport, Inc. chose not to employ over-the-road truck drivers who used prescription medications with side effects that might impair driving ability. The Equal Employment Opportunity Commission argued that under the Americans with Disabilities Act, Hunt’s decision violated the rights of job applicants using those medications. We disagree. I. Plaintiff–Appellant Equal Employment Opportunity Commission (‘‘EEOC’’) appeals from the February 8, 2001 decision of the United States District Court for the Northern District of New York (Norman A. Mordue, Judge ) granting defendant J.B. Hunt Transport Inc.’s (‘‘Hunt’’ ’s) motion for summary judgment and denying plaintiff EEOC’s cross-motion for summary judgment. The district court found

that the applicants in question had been denied over-the-road driving positions with Hunt because of their use of medications with potentially harmful side effects, and not as a result of an actual or perceived disability or a record of disability as contemplated by the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (‘‘ADA’’). On appeal, the EEOC argues exclusively that Hunt regarded the rejected applicants as disabled, i.e., substantially limited from a major life activity, as defined by 42 U.S.C. § 12102(2)(C) because of their use of certain medications. Because we find that Hunt did not regard the applicants as disabled as defined by the ADA, we affirm the decision of the district court. II. J.B. Hunt Transportation, Inc. (‘‘Hunt’’) is the nation’s largest publicly held motor carrier company. Hunt operates for-hire property transport services in the fortyeight contiguous states, the District of Columbia, Canada, and Mexico. Its fleet includes 8,000 tractors, and it employs approximately 12,000 individuals to drive the trucks. Of these employees, approximately 10,000 are the over-the-road (‘‘OTR’’) drivers whose positions are at issue in this case. These OTR drivers operate vehicles weighing approximately 80,000 pounds over irregular routes under particularly difficult work conditions, including sleep deprivation, irregular work and rest cycles, inclement weather, long driving periods, long layovers, irregular meal schedules, tight delivery schedules, en route delays, night driving, accumulated fatigue, stress, and extended periods of loud noise and vibrations. According to Hunt, the large vehicle size and extreme driving conditions faced by its OTR drivers warrant heightened safety evaluations of those OTR drivers.

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Like other motor carriers, Hunt is subject to federal regulation under the Department of Transportation’s Federal Motor Carrier Safety Act Regulations (‘‘FMCSAR’’). 49 C.F.R. § 301, et seq. (2001). These regulations establish minimum qualifications for any person driving a commercial motor vehicle, as well as minimum duties for motor carriers using OTR drivers. The regulations specifically allow an operator to require and enforce ‘‘more stringent requirements relating to safety of operation and employee safety and health’’, 49 C.F.R. § 390.3(d), and require operators to restrict drivers from operating vehicles ‘‘while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.’’ Id. at § 392.3 (2001). A motor carrier is required to ensure that drivers do not operate unless they are in compliance with the DOT regulations. 49 C.F.R. §§ 391.11, 392.3, 392.4(b)(2001). A. The Drug Review List

Between September 1993 and May 1994, in an effort to comply with the FMCSAR in its hiring processes, Hunt created a Drug Review List (‘‘DRL’’) of medications known to have side effects that might impair driving ability. The list, thirty-seven pages in length and including over 836 medications, was compiled by Hunt’s Safety Department Director of Compliance, David Whiteside
1. The Court will use the corrected labels ‘‘Rule Out Side Effects’’ for ‘‘Rule Out Side Affects’’ and ‘‘Unsafe Effects’’ for ‘‘Unsafe Affects’’ throughout the opinion. The district court found that Whiteside mistakenly believed that the DOT prohibited drivers from using any Schedule II–V medications, rather than only Schedule I medications, and that he therefore included all of

(‘‘Whiteside’’), based entirely on notations in the 1993 edition of the Physician’s Desk Reference (‘‘PDR’’). Whiteside divided the DRL into six columns labeled ‘‘name,’’ ‘‘class,’’ ‘‘comment,’’ ‘‘restriction,’’ ‘‘treats,’’ and ‘‘1993 PDR page number.’’ In the ‘‘restriction’’ column, Whiteside indicated the impact a particular drug might have on an applicant’s eligibility. Whiteside designated five categories of restrictions: ‘‘Rule Out Side [E]ffects,’’ ‘‘Not Permitted,’’ ‘‘Unsafe [E]ffects,’’ ‘‘Heart Condition,’’ and ‘‘Disqualifying Condition.’’ 1 An applicant whose medication had a ‘‘Rule Out Side Effects’’ notation was required to obtain a release from the prescribing doctor certifying that the applicant could safely drive a tractor trailer truck while using the medication. An applicant taking a ‘‘Not Permitted,’’ ‘‘Unsafe Effects,’’ ‘‘Disqualifying Condition,’’ or ‘‘Heart Condition’’ medication could not drive for Hunt while using the indicated medication.2 The notation ‘‘Unsafe Effects’’ indicated either that the PDR cautioned users against operating heavy equipment or driving automobiles while taking the drug (noted as ‘‘warning on driving’’ in the comment column) or that the drug caused drowsiness, sedation, or a high incidence of dizziness. A ‘‘Rule Out Side Effects’’ notation indicated that a medication could cause side effects similar to, but less pervasive than, those warranting an ‘‘Unsafe Effects’’ label. Finally, ‘‘Heart Condition’’ indicated that the medication was generally used for heart problems that could disqualify drivers under DOT regulations.
these medications in the ‘‘Not Permitted’’ category. Equal Employment Opportunity Comm’n v. J.B. Hunt Transp., Inc., 128 F.Supp.2d 117, 120 n. 2 (N.D.N.Y.2001); see 49 C.F.R. § 391.42(b)(12)(i) (prohibiting use of Schedule I drugs, amphetamines, narcotics, and other habit-forming drugs); 49 C.F.R. § 392.2 (same).

2.

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B.

The Hunt Hiring Process

III. EEOC filed its complaint in the United States District Court for the Northern District of New York on October 24, 1997. Both sides moved for summary judgment. EEOC alleged that Hunt violated the ADA by discriminating against individuals with disabilities or ‘‘perceived’’ disabilities. Hunt alleged that the DRL was a safetyrelated qualification standard addressing serious business concerns. The district court granted summary judgment for Hunt and denied EEOC’s summary judgment motion based on (1) its conclusion that ADA protections did not extend to the excluded driver-applicants because the applicants were not, by virtue of their use of certain medications, disabled within the meaning of the ADA, and (2) its finding that the EEOC had failed to contradict Hunt’s assertion that its use of the DRL as a safety measure was reasonable within DOT guidelines. Equal Employment Opportunity Comm’n. v. J.B. Hunt Transp., Inc., 128 F.Supp.2d 117, 135–36 (N.D.N.Y. 2001). On appeal, EEOC abandoned its argument that the excluded applicants were ‘‘disabled’’ under the ADA, claiming only that the district court erred by granting summary judgment to Hunt when the evidence supported the conclusion that Hunt regarded the applicants as disabled because of their use of medications on the DRL. IV. [1, 2] We review a district court’s grant of summary judgment de novo, construing the evidence presented below in the light most favorable to the non-moving party. Manning v. Utils. Mut. Ins. Co., 254 F.3d 387, 391 (2d Cir.2001). While
for Hunt unless he or she had been off such drugs for at least thirty days before commencing work. Hunt Medical Guidelines, April 11, 1996.

Upon receiving an application for a commercial driving position, Hunt forwarded the application to its Corporate Driver Personnel Department in Lowell, Arkansas for screening of motor vehicle, criminal, and prior employment records and for a review of listed references. If an applicant passed this first level of screening and received a conditional employment offer, the applicant underwent medical screening, including questioning regarding the applicant’s use of prescription medication for the last five years. Hunt used nonmedical personnel to conduct these screenings. If the applicant indicated use of a prescription drug, the reviewing employee consulted Hunt’s medical guidelines 3 and the DRL to determine the applicant’s medical eligibility. C. The EEOC Claim

EEOC claims that Hunt improperly rejected 546 applicants in violation of the ADA on the basis of a ‘‘blanket’’ exclusionary policy. EEOC admits, however, that Hunt hired several applicants who were using drugs prohibited under the DRL—in 1995, two applicants using drugs labeled ‘‘Disqualifying Condition’’ and eleven using drugs labeled ‘‘Unsafe Effects,’’ and in 1996 and 1997, one applicant taking a ‘‘Disqualifying Condition’’ drug and thirteen using drugs with ‘‘Unsafe Effects.’’ Prior to commencing work, each of these new employees provided Hunt with medical documentation from a treating physician or health care provider certifying that he or she did not suffer from the potentially problematic side effects and could operate a truck safely while taking the drug.
3. As the district court found, Hunt maintained a restrictive policy on the use of drugs for psychological conditions separate from the DRL. An applicant was not eligible to drive

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this Court may affirm on any ground with adequate support in the record, we may not affirm summary judgment where any evidence in the record would support a reasonable inference in favor of the opposing party. See McCarthy v. Am. Int’l Group, Inc., 283 F.3d 121, 124 (2d Cir. 2002); VKK Corp. v. Nat’l Football League, 244 F.3d 114, 119 (2d Cir.2001). A. The Statutory Framework and the Definition of ‘‘Disability.’’

The ADA provides a deceptively simple definition of disability: The term ‘‘disability’’ means, with respect to an individual— (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(2)(1995). EEOC regulations further develop this definition, explaining ‘‘physical or mental impairment’’ as: (1) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or (2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. 29 C.F.R. § 1630.2(h) (2001). Although EEOC initially challenged Hunt’s reliance on the DRL under all three prongs of the statutory definition of

‘‘disability,’’ on appeal, EEOC alleges only that the rejected OTR driver applicants were ‘‘regarded as’’ disabled by Hunt based on their use of certain medications, invoking the statutory definition of disability under § 12102(2)(C). As the Supreme Court explained in Sutton v. United Air Lines, Inc., ‘‘[t]here are two apparent ways in which individuals may fall within this [§ 12102(2)(C) ] statutory definition: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities.’’ 527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Evaluating the evidence before the district court, this Court agrees with the court below that EEOC failed to put forth evidence sufficient to demonstrate that the rejected applicants were ‘‘disabled’’ within the meaning of the ADA. Specifically, EEOC failed to set forth evidence sufficient to establish that Hunt perceived rejected applicants as substantially limited in their ability to perform a major life activity. B. The Evidence Is Insufficient To Support the Inference that Hunt Regarded Applicants as Having a ‘‘Substantial Limitation’’ on a ‘‘Major Life Activity.’’

To qualify for ADA protections, a person’s ‘‘impairment’’ must ‘‘substantially limit’’ a ‘‘major life activit[y].’’ 42 U.S.C. § 12102(2). Major life activities may include ‘‘caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning,’’ and, pertinent to this appeal, ‘‘working.’’ 29 C.F.R. § 1630.2(i). An activity is ‘‘substantially limited’’ when an individual cannot per-

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form the activity that an average person in the general population could perform or faces significant restrictions in the ‘‘condition, manner, or duration under which the individual can TTT perform [the] activity.’’ 29 C.F.R. § 1630.2(j)(i)-(ii). The activity of ‘‘working’’ is further defined by the regulations as follows: With respect to the major life activity of working— (i) The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. 29 C.F.R. § 1630.2(j)(3)(i). Thus, unless Hunt perceived the applicants in question as limited from a class of jobs or a broad range of jobs, the EEOC’s claim must fail. 1. Driving 40–Ton, 18–Wheel Trucks Over Long Distances for Extended Periods is Neither a ‘‘Class of Job’’ nor a ‘‘Broad Range of Jobs’’ Within the Meaning of the ADA.

of a Hunt OTR driver does not mean that one could not successfully engage in other types of truck driving, let alone in other kinds of safety-sensitive work. In Sutton, the Supreme Court considered the claims of pilots who had been denied positions as ‘‘global pilots’’ with United Airlines. The Supreme Court held that the position of ‘‘global pilot’’ was ‘‘a single job’’ and, therefore, was not sufficiently broad to satisfy the ‘‘major life activity requirement’’. Sutton, 527 U.S. at 493, 119 S.Ct. 2139. The Court reasoned that ‘‘there are a number of other positions utilizing petitioners’ skills, such as regional pilot and pilot instructor to name a few.’’ Id. Like the limitation that United Airlines placed on global airline pilots in Sutton, the limitation that Hunt placed on applicants for the position of OTR driver was a limitation on a particular job within a larger group of jobs, and not a substantial limitation on working. See Baulos v. Roadway Express, Inc., 139 F.3d 1147,1154 (7th Cir.1998) (driving sleeper trucks is a specific job within the broader class of truck driving jobs). Therefore, the applicants’ perceived unsuitability for the position of OTR driver cannot be characterized as a perceived inability to perform a broad range or a class of jobs. This is true even assuming that truck-driving in general is a sufficiently broad range or class of jobs to constitute a ‘‘major life activity’’, an issue we do not need to reach. As the dissent readily acknowledges, persons licensed to drive the types of vehicles driven by Hunt OTR drivers are also qualified to drive ‘‘various types of small and large trucks, including tractor-trailers, moving trucks, and cargo vans.’’ Dissent page 80. Accordingly, to show that Hunt perceived applicants rejected under the DRL as substantially limited in a major life ac-

[3] Driving freight-carrying tractortrailer trucks over long distances for extended periods of time is neither a ‘‘class of jobs’’ nor a ‘‘broad range of jobs,’’ as the EEOC alleges, but rather a specific job with specific requirements. Such a position requires specific abilities, especially the ability to stay alert over long hours under difficult conditions. A Hunt OTR driver’s alertness cannot flag. He or she must be able to stay alert and withstand the mesmerizing affect of driving an eighteen-wheel vehicle for hours at a stretch, sometimes at night, with continuous vibration over long distances. Given these demanding requirements, the fact that one may not be able to perform the specific job

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tivity, the EEOC must show that Hunt viewed such applicants as limited from a broader range or class of jobs than merely OTR positions at Hunt. 2. The Evidence Is Not Sufficient To Support a Reasonable Inference that Hunt Regarded Applicants Rejected Under the ‘‘Not Permitted’’ and ‘‘Unsafe Effects’’ Categories as Substantially Limited in a Broad Range or Class of Jobs.

[4] The EEOC argues that Hunt regarded applicants who took particular medications as incapable of driving trucks, which according to the EEOC constitutes either a ‘‘class of jobs’’ or a ‘‘broad range of jobs.’’ The record, however, only shows that Hunt saw the applicants as unfit to perform a job for which they were seeking applicants: long-distance, freight-carrying, tractor-trailer driving. The Supreme Court has clearly stated that ‘‘[t]he inability to perform a single, particular job,’’ however, ‘‘does not constitute a substantial limitation in the major life activity of working.’’ Sutton v. United Air Lines, Inc., 527 U.S. 471, 493, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Here, Hunt dismissed the applicants as unable to meet Hunt’s own safety requirements—requirements above and beyond the DOT’s industry-wide standards and unique from the requirements of other trucking companies. See Compl. ¶ 8c; Def.’s Statement of Material Facts at 7; see also Adair Dep. at 85–86; J.B. Hunt Transp., Inc., 128 F.Supp.2d at 129 n. 17 (noting drivers were employed by other trucking companies while taking same medications). The evidence suggests that Hunt found the applicants unsuited for long-distance driving of Hunt’s 40–ton trucks on irregular, stressful schedules, but does not indicate that Hunt perceived the applicants as more broadly limited. The fact that Hunt

did not have another, less demanding driving position to offer the candidates does not indicate that Hunt perceived the candidates as being unqualified for any driving position at all. Giordano v. City of New York, 274 F.3d 740, 748–50 (2d Cir.2001) (finding inability of the New York Police Department to offer light duty, non-patrol position to officer taking anti-coagulation medication did not demonstrate that officer was substantially limited in working where other security and law enforcement jobs in the area had such positions); see also Baulos v. Roadway Express Inc., 139 F.3d 1147, 1154 (2d Cir.1998) (concluding that truck drivers unable to operate sleeper trucks did not show that they were regarded as disabled where employer did not offer them less demanding, non-overnight positions that were taken by drivers with more seniority). [5] EEOC references a few comments from Hunt’s evaluators to candidates suggesting that certain candidates were not suited to any form of professional driving. These comments, made by people other than the ultimate hiring authorities, simply are not sufficient to indicate that Hunt thought the applicants were more broadly limited given the heightened nature of Hunt’s standards and the fact that Hunt did hire some applicants on DRL medications. Although a few evaluators’ comments could be more broadly interpreted, there is no evidence that Hunt’s reviewers, relying on Hunt’s own DRL and drug lists to make a judgment on qualification for a position at Hunt, intended to make an evaluation beyond Hunt’s specific guidelines. Nor is there sufficient evidence to support a finding that Hunt viewed the driving limitation as extending beyond Hunt. Furthermore, as the Supreme Court has clearly stated, ‘‘[i]t is not enough to say that if the physical criteria of a single employer were imputed to all similar em-

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ployers one would be regarded as substantially limited in the major life activity of working only as a result of this imputation.’’ Sutton, 527 U.S. at 493, 119 S.Ct. 2139. [6] In short, EEOC demonstrated only that Hunt refused to hire certain applicants according to its own hiring criteria; however, a finding of perceived disability may not rest merely on a single employer’s failure to hire a candidate. Baulos, 139 F.3d at 1154 (‘‘Courts have uniformly held that an employer does not necessarily regard an employee as handicapped simply by finding the employee to be incapable of satisfying the singular demands of a particular job.’’ (internal citation omitted)). [7] Thus, we affirm the district court’s grant of summary judgment in favor of Hunt as to the applicants rejected under at least the ‘‘Not Permitted’’ and ‘‘Unsafe Effects’’ categories because EEOC has failed to demonstrate that Hunt mistakenly perceived that the rejected applicants’ had impairments that substantially limited a ‘‘major life activity.’’ Accordingly, EEOC has failed to show that the applicants were ‘‘disabled’’ within the meaning of the ADA. In so holding, we emphasize that this Court will not presume a mistaken assumption of disability based only on
4. As noted in the discussion of the pertinent facts, the DRL contained five categories of drugs: ‘‘Rule out Side Effects,’’ ‘‘Not Permitted,’’ ‘‘Unsafe Effects,’’ ‘‘Heart Condition,’’ and ‘‘Disqualifying Condition.’’ The EEOC does not represent in this appeal any applicants rejected under the ‘‘Rule Out Side Effects’’ category, thus removing that category from our consideration. J.B. Hunt Transp., Inc., 128 F.Supp.2d at 122, n. 7. Review of the DRL reveals that the label ‘‘Disqualifying Condition’’ attached to drugs treating Parkinson’s Disease, serious arrythmia, alcoholism, epilepsy, seizure, migraines, dementia, depression, schizophrenia, diabetes, severe arthritis, severe hypertension, opiate addiction, subarachnoid hemorrhage, ar-

an employer’s decision not to hire certain candidates. 3. The Evidence Is Also Not Sufficient To Support a Reasonable Inference that Hunt Regarded Applicants Rejected Under the ‘‘Disqualifying Condition’’ and ‘‘Heart Condition’’ Categories as Substantially Limited in a Broad Range or Class of Jobs.

As noted above, two of the categories in the DRL appear, at least superficially, to refer to the condition causing the reliance on a DRL drug, not merely the applicants’ use of a DRL medication.4 Although the evidence suggests that these applicants were, like those in the other categories, often told that they were disqualified on the basis of the drug they were using rather than on the basis of the condition supporting their use of the drug, we briefly consider whether applicants using drugs from these two categories warrant a different legal conclusion. We conclude that they do not. [8] Individuals suffering from the conditions treated with the ‘‘Heart Condition’’ or ‘‘Disqualifying Condition’’ drugs are potentially explicitly barred from truck driving by 49 C.F.R. § 391.41.5 Hunt therefore
tery occlusion, and severe headache, while the label ‘‘Heart Condition’’ attached to medicines treating heart failure, thrombosis, edema, congestive heart failure, ischemia, and ventric arrythmia. 49 C.F.R. § 391.41 appears to exclude persons with all of these conditions from driving a commercial vehicle where those conditions are likely to interfere with their ability to safely drive a commercial vehicle. 49 C.F.R. §§ 391.41(b)(3) (diabetes), 391.41(b)(4) (‘‘myocardial infarction, angina pectoris, coronary insufficiency, thrombosis, or any other cardiovascular disease of a variety known to be accompanied by syncope, dyspnea, collapse or congestive heart failure’’), 391.41(b)(6) (high blood pressure), 391.41(b)(7) (‘‘rheumatic, arthritic, orthopedic, muscular, neuromuscular, or vascular

5.

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potentially regarded applicants using these drugs as substantially limited not just from driving Hunt vehicles according to the rules of the DRL and other company regulations, but as prevented from driving legally for any commercial trucking company. As with the other categories in the DRL, however, the restrictions on the medications labeled ‘‘Disqualifying Condition’’ or ‘‘Heart Condition’’ were placed on applicants taking the drug, not on applicants with the underlying condition itself. Even though in some cases, the company, under 49 C.F.R. § 391.41, could have created a policy excluding the applicant on the basis of the underlying condition, the basis for the exclusion from employment was the use of a listed drug, not any potential ‘‘disability’’ created by the treated disease.6 We conclude, therefore, that any claims arising under the ‘‘Heart Condition’’ and ‘‘Disqualifying Condition’’ categories are not distinguishable from the claims under the ‘‘Not Permitted’’ and ‘‘Unsafe Effects’’ categories and so they must also fail.
disease’’), 391.41(b)(8) (epilepsy or ‘‘any other condition which is likely to cause loss of consciousness’’), 391.41(b)(9) (‘‘mental, nervous, organic, or functional disease or psychiatric disorder’’), 391.41(b)(12)(i) (controlled substances), 391.41(b)(13) (alcoholism). ‘‘Migranes’’ or ‘‘severe headaches,’’ as ‘‘vascular headache[s],’’ DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1042 (28th ed.1994), potentially fall within § 391.41(b)(7)’s restriction on vascular disease. EEOC alleged that Hunt misinterpreted a DOT report cautioning about the effects of drugs used to treat heart conditions, claiming that the report merely required individual assessment of each patient. The DOT subsequently issued a report clarifying that the use of Coumadin, a anticoagulator previously questioned, was not automatically disqualifying. J.B. Hunt Transp., Inc., 128 F.Supp.2d at 120 n. 3 (describing reports). According to the DRL, however, Coumadin treats thrombosis, a condition specifically prohibited by the

V. Although Hunt admittedly rejected the applicants for its OTR driving positions because of their use of certain prescription medications, the EEOC cannot succeed in its ADA claim on behalf the rejected applicants. The record only shows that Hunt regarded the applicants in question as ineligible for a specific position within Hunt, not that Hunt regarded them as ‘‘disabled’’ within the meaning of the ADA. The applicants, through the EEOC, therefore do not have a valid ADA claim. For the reasons set forth above, this Court affirms the district court’s grant of summary judgment to defendant Hunt and its denial of the cross-motion by plaintiff EEOC. The judgment of the district court is AFFIRMED. SOTOMAYOR, Circuit Judge, dissenting. This case is quite straightforward. Based upon a list of drugs and their potencurrent regulations. § 391.41(b)(4). 6. See 49 C.F.R.

For example, Amandtadine Hydrochloride, a drug to which the ‘‘Disqualifying Condition’’ label attaches treats both Parkinson’s Disease and the flu. While an applicant taking the drug for Parkinson’s might be disabled on the basis of the disease within the meaning of the ADA, an applicant using the drug for the flu would not likely so qualify. Hunt, however, would have excluded either applicant because of the drug usage. Furthermore, some ‘‘Disqualifying Condition’’ drugs treat the same underlying diseases as drugs given other labels. For example Zoloft, a drug used for treatment of, inter alia, depression, is listed as ‘‘Unsafe Effects,’’ while Prozac, also for depression, is listed as ‘‘Disqualifying Condition.’’ This further supports the idea that the drug, not the condition itself, was the true basis of Hunt’s hiring ban.

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tial side effects compiled by David Whiteside, a Hunt employee with no medical training, and a Medical Guidelines policy developed by Michael Gray, a former Red Lobster cashier with no medical training who was, nevertheless, Hunt’s Medical Advisor, Hunt determined that certain applicants were unfit to be truck drivers. The EEOC has provided substantial evidence that Hunt believed that these individuals were unfit to drive a truck, or, for that matter, to drive at all and were incapable of performing the broad class of jobs that fall under the classification ‘‘truck driving.’’ Based upon this showing, I would vacate the district court’s grant of summary judgment and hold that there is a genuine dispute of material fact with respect to whether the EEOC has established a prima facie case of disability discrimination. I therefore respectfully dissent. I agree with the majority that the issue in this appeal is whether the applicants were denied truck driving positions at Hunt because of their perceived disability within the meaning of the ADA. Ignoring significant evidence that Hunt perceived the applicants as more broadly limited, however, the majority holds that the EEOC has only provided evidence that Hunt perceived the rejected applicants as ‘‘ineligible for a specific position within Hunt.’’ Ante at 78. In doing so, the majority reasons that long haul trucking is not a sufficiently broad class of jobs such that a substantial limitation on an individual’s ability to be a long haul trucker would imply that the individual was disabled within the meaning of the ADA. See ante at 75–76. The majority asserts that a limitation on an individual’s ability to be a long haul truck driver does not substantially limit his or her ability to engage in the major life activity of working, as many other truck driving jobs are available for these individuals. See ante at 75–76. The majority does not, however, hold that

truck driving in general is such a specific class of jobs that a substantial limitation on truck driving would fail to imply a disability; its holding relies solely upon an inappropriately narrow view that Hunt perceived the applicants as limited only in their ability to work as long haul truckers for Hunt. Contrary to the majority’s assertion, the EEOC has produced significant evidence that Hunt regarded the applicants as substantially limited in the major life activity of working as truck drivers in general. An employer perceives an employee to be substantially limited in his or her ability to work if it believes the employee is: significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. 29 C.F.R. § 1630.2(j)(3)(i); see also Bartlett v. N.Y. State Bd. of Law Exam’rs, 226 F.3d 69, 82–83 (2d Cir.2000). Factors that may be considered under this standard include the geographical area to which an individual has reasonable access; the number and types of jobs utilizing similar training, knowledge, skills or abilities as the job from which the applicant has been disqualified; and the number and types of jobs not utilizing similar training, knowledge, skills or abilities from which the applicant will also be disqualified. 29 C.F.R. § 1630.2(j)(3)(ii). If other jobs utilizing an individual’s skills are available, that person is not substantially limited in a class of jobs, even if this alternate employment would not allow the individual to showcase his or her special talents. Sutton v. United Air Lines,

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Inc., 527 U.S. 471, 492, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). In Sutton, the Supreme Court determined that plaintiffs applying for positions as global airline pilots could use their particular skills to obtain other piloting positions from which they were not disqualified, so these plaintiffs were not regarded as being shut out from an entire occupational class. Id. at 492–93, 119 S.Ct. 2139. In applying this rubric, the Second Circuit has found that practicing law is a broad occupational class, see Bartlett, 226 F.3d at 84, but that working as a policeman is a specific position within the class of investigative or security jobs, see Giordano v. City of New York, 274 F.3d 740, 749 (2d Cir.2001). The EEOC has proffered evidence that the members of the plaintiff class have undergone specialized driver training, earned commercial drivers’ licenses, passed road tests and received medical certifications pursuant to DOT regulations. The set of jobs that call for these qualifications includes driving various types of small and large trucks, including tractortrailers, moving trucks, and cargo vans. See Office of Management & Budget, Standard Occupational Classification Manual 220 (2000), available at http:// www.bls.gov/soc/soc v3d0.htm. The Department of Labor classifies truck driving as a separate occupation within the overall category of ‘‘Transportation and Material Moving Occupations,’’ as does the Office of Management and Budget. Id. The Department of Labor estimated that in 2000 there were more than 3.3 million jobs that came under the heading of ‘‘Truckdriver and Driver/Sales Workers.’’ 1 Bureau of
1. Driver/Sales Workers drive trucks and work as sales agents for the goods they haul; both of these aspects are integral to their jobs. See Occupational Outlook Handbook 576–77 (2002–03). The majority discusses the categories ‘‘Not Permitted’’ and ‘‘Unsafe Effects’’ separately

Labor Statistics, Occupational Outlook Handbook 577 (2002–03), available at http://www.bls.gov/oco/pdf/ocos246.pdf. This evidence demonstrates that truck driving is a general field of employment rather than a specific position. Accord Baulos v. Roadway Express, Inc., 139 F.3d 1147, 1154 (7th Cir.1998) (holding that driving a sleeper car is a specific job within the class of truck drivers); Best v. Shell Oil Co., 107 F.3d 544, 548 (7th Cir. 1997) (holding that truck driving is a class of jobs). The majority does not reach the question whether truck driving is a class of jobs. Instead, the majority argues that Hunt only dismissed the applicants because ‘‘Hunt found the applicants unsuited for long-distance driving of Hunt’s 40–ton trucks on irregular, stressful schedules.’’ Ante at 76. Such hyperbole is inapposite. Whether long haul trucking is, in fact, different from other types of truck driving is not the central issue in this appeal; Hunt’s perception of the applicants as substantially limited in their ability to drive trucks, without further limitation to long haul truck driving, is the central issue. Beyond this basic misconception, the majority also misrepresents the record by asserting that the evidence ‘‘does not indicate that Hunt perceived the applicants as more broadly limited.’’ Ante at 77. To the contrary, the EEOC provided significant evidence that Hunt believed that the applicants were unfit to drive trucks. Numerous drugs were listed on the DRL as ‘‘Not Permitted,’’ 2 reflecting a belief that the
from the two condition-based categories, ‘‘Disqualifying Condition’’ and ‘‘Heart Condition.’’ Ultimately, the majority finds no legal distinction between the ‘‘condition’’ categories and the others. See ante at 78.

2.

E.E.O.C. v. J.B. HUNT TRANSPORT, INC.
Cite as 321 F.3d 69 (2nd Cir. 2003)

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applicant was prohibited by DOT regulations from driving a commercial vehicle while taking that particular medication. Dr. Cooper, Hunt’s physician consultant, testified with respect to one applicant that he did not feel it was ‘‘in this patient’s best interest to pursue this profession.’’ Interview records show that the company believed another applicant ‘‘would most likely have difficulty functioning in the lifestyle of a trucker.’’ Similarly, Dr. Cooper indicated with regard to another applicant that her ‘‘problems with sleep and concentration under stress are not very compatible with the lifestyle expected of a driver.’’ Applicant Joseph Lisa was told by a Hunt
I agree that all four categories of medications on the DRL at issue here should be treated identically. I disagree, however, with the majority’s statement that ‘‘the basis for the exclusion from employment was the use of a listed drug, not any potential ‘disability’ created by the treated disease.’’ Ante at 77–78. The EEOC has produced significant evidence that demonstrates the link between the drug categories and potential underlying conditions. For example, one of Hunt’s interviewers noted that the ‘‘applicant did not indicate the reason he is taking [the medication]. [N]eed to verify why he is on this medication.’’ Similar comments were made by reviewers with respect to applicants taking medications in each of Hunt’s categories. See, e.g., Curtin Decl., Exh. 18 (applicant needs to provide ‘‘headach [sic] release TTT [and a] statement that she is not taking [the medication] for depression’’) (‘‘Not Permitted’’ category); id. (‘‘Sent to Brenda for review on cardiovasular [sic] condition’’) (‘‘Not Permitted’’ category); Curtin Decl., Exh. 20 (‘‘the diagnosis and severity of her condition for which she takes the medication is considered disqualifying’’) (‘‘Unsafe Effects’’ category); id. (applicant ‘‘will need to complete his treatments TTT and send in all records when his condition is resolved’’) (‘‘Unsafe Effects’’ category); Curtin Decl., Exhs. 23, 25 (applicant needs to ‘‘provide a statment [sic] that TTT his condition is fine w/out the meds’’) (‘‘Disqualifying Condition’’ or ‘‘Heart Condition’’ category); id. (Hunt ‘‘need[ed] all records on [applicant’s] condition’’) (‘‘Disqualifying Condition’’ or ‘‘Heart

employee that he would ‘‘never drive for anybody,’’ and numerous other applicants were told that the medications they were taking made it unsafe for them to drive a truck, or drive in general. See, e.g., Curtin Decl., Exh. 13 (reviewer told applicant ‘‘that she could not be on [the medication] and drive [because] it can cause unsafe affect [sic]’’); id. (reviewer told applicant ‘‘that he could not drive[ ] while on this medication’’); id. (reviewer told applicant ‘‘that she cannot be on [the medication] and drive’’); Curtin Decl., Exh. 20 (drug is ‘‘not permitted for driving’’); id. (‘‘[b]oth drugs are not approved for driving’’); id. (reviewer ‘‘informed applicant that he canCondition’’ category). In addition, Hunt’s Medical Guidelines relating to mental and psychological conditions required that in order to qualify for a job, an applicant taking medication for depression must remain off the medication for thirty days and submit a letter from a doctor stating that he or she no longer suffers from the underlying condition. Contrary to the majority’s assertion, this evidence provides a direct causal link between the applicants’ underlying conditions and Hunt’s perception of the applicants as substantially limited in their ability to work as truck drivers. To make a further distinction that it ultimately finds insignificant, the majority asserts that ‘‘[i]ndividuals suffering from the conditions treated with the ‘Heart Condition’ or ‘Disqualifying Condition’ drugs are potentially explicitly barred from truck driving by 49 C.F.R. § 391.41.’’ Ante at 76–77 & n. 5 Many of the conditions listed in this regulation only disqualify an individual if the condition is ‘‘likely to interfere with his/her ability to control and drive a commercial motor vehicle safely,’’ 49 C.F.R. § 391.41(b)(5), or otherwise suggest that an individualized determination of potential safety concerns is required. See id. § 391.41(b)(6)-(12). In relying on these regulations to support Hunt’s policy, the majority ignores the crucial difference between individualized determinations of driver safety and Hunt’s explicit policy to create a per se bar from truck driving with respect to these individuals. Hunt’s policy simply assumes, without justification, that these individuals are unfit to drive trucks.

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321 FEDERAL REPORTER, 3d SERIES

not take [the medication] and drive’’); Curtin Decl., Exhs. 23, 25 (reviewer ‘‘informed appl[icant] that he could not take the med[ication] on [the] truck’’); Curtin Decl., Adair Depo. (representative told applicant ‘‘it’s illegal to drive a truck with that [medication]’’); Curtin Decl., Manning Depo. (representative told applicant ‘‘it was illegal for a driver to drive while on this medication’’). The EEOC has provided sufficient evidence to create a factual issue whether Hunt perceived the applicants as broadly limited in their ability to work as a truck driver. The majority explains this evidence by stating: Although a few evaluators’ comments could be more broadly interpreted, there is no evidence that Hunt’s reviewers, relying on Hunt’s own DRL and drug lists to make a judgment on qualification for a position at Hunt, intended to make an evaluation beyond Hunt’s specific guidelines. Ante at 76–77. In reviewing a grant of summary judgment, however, we do not refuse to credit a broad, but reasonable, interpretation of the evidence. Giordano, 274 F.3d at 749–50. Even if this were the standard, Hunt’s reviewers stated that one applicant would ‘‘never drive for anybody,’’ and made similar statements about many other applicants; it is difficult to imagine a clearer statement that the reviewers intended to say that the applicants were, in fact, substantially limited in their ability to work as a truck driver for any company. The majority asserts that because Hunt’s reviewers were not the ultimate decision makers, the comments ‘‘simply are not sufficient to indicate that Hunt thought the applicants were more broadly limited.’’ Ante at 76–77. Again, this is a matter for the factfinder to decide. Hunt’s own employees stated on several occasions that applicants were unfit to

drive; a factfinder reasonably could impute these statements to Hunt, even if these employees were not the ultimate decision makers. Hunt proffers no evidence that these unidentified ‘‘ultimate hiring authorities’’ did not share the reviewers’ perceptions or rely upon their statements about the applicants’ limitations. Indeed, Hunt does not argue otherwise; it simply argues that its employees’ statements implicitly refer only to jobs at Hunt. A factfinder is certainly allowed to determine whether the statement that an applicant would ‘‘never drive for anybody’’ implicitly refers only to jobs at Hunt; it is not, however, this Court’s job to do so. In reviewing whether summary judgment is appropriate, this Court does not make factual determinations or refuse to credit legitimate inferences based upon the evidence presented, but views the evidence in the light most favorable to the nonmoving party. See Giordano, 274 F.3d at 746. Hunt also argues that the statements of Dr. Cooper should not be imputed to it. The EEOC provides significant evidence that Hunt relied on Dr. Cooper’s advice, including, for example, a reviewer’s statement that the applicant was ‘‘disqualified per Dr. Cooper.’’ This suffices to provide a direct link between Dr. Cooper’s opinions regarding applicants and Hunt’s view of the applicants as disabled. Finally, the majority’s argument that Hunt’s policy should not be imputed to other companies in determining whether the applicants were perceived as disabled is immaterial. Contrary to the majority’s assertion, this is not a case in which the potential imputation of Hunt’s policy to other companies would result in the applicants being regarded as ‘‘substantially limited in the major life activity of working only as a result of this imputation.’’ Sutton, 527 U.S. at 493, 119 S.Ct. 2139. It is Hunt’s explicit statement that it believed

CICIO v. DOES
Cite as 321 F.3d 83 (2nd Cir. 2003)

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applicants to be unfit to drive a truck that supports Hunt’s perception of these individuals as substantially limited in their ability to drive a truck; no potential imputation is required. Thus, the EEOC has provided sufficient evidence that a factfinder could reasonably conclude that Hunt regarded the rejected applicants as substantially limited in the major life activity of working, because Hunt regarded them as unfit to be truck drivers. CONCLUSION Because I find ample support in the record for the assertion that Hunt regarded the applicants as d substantially limited in the major life activity of working, and thus, the applicants were disabled within the meaning of the ADA, I respectfully dissent.

,
Bonnie CICIO, individually and as Administratrix of the Estate of Carmine Cicio, Plaintiff–Appellant, v. John DOES 1–8, Defendants, Vytra Healthcare, and Brent Spears, M.D., Defendants–Appellees. Docket No. 01–9248. United States Court of Appeals, Second Circuit. Argued: June 20, 2002. Decided: Feb. 11, 2003. As Amended: March 12, 2003. Widow, on behalf of herself and her late husband’s estate, brought state court

suit against plan administrator for employee benefits plan, its medical director, and others, alleging state law claims arising out of decision to deny preauthorization for medical procedure recommended by treating physician. Defendants removed action and moved to dismiss for failure to state claim. Widow moved to remand. The United States District Court for the Eastern District of New York, Joanna Seybert, J., 208 F.Supp.2d 288, adopting the report and recommendation of United States Magistrate Judge E. Thomas Boyle, granted motion to dismiss on ground of preemption under the Employee Retirement Income Security Act (ERISA), and widow appealed. The Court of Appeals, Sack, Circuit Judge, held that: (1) negligent delay and misrepresentation claims were removable under complete preemption doctrine; (2) court had supplemental jurisdiction over medical malpractice claim; (3) negligent delay and misrepresentation claims were subject to dismissal as conflict preempted; and (4) on issue of first impression, state law medical malpractice claim brought with respect to a medical decision made in the course of prospective utilization review by a managed care organization or health insurer is not preempted under ERISA. Affirmed in part, vacated in part, and remanded. Calabresi, Circuit Judge, filed an opinion dissenting in part.

1. Removal of Cases O107(9) District court’s denial of a motion to remand is reviewed de novo. 2. Federal Courts O776 District court’s decision to grant a motion to dismiss for failure to state a claim is reviewed de novo. Fed.Rules Civ. Proc.Rule 12(b)(6), 28 U.S.C.A.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2000 (Argued: June 20, 2001 Docket No. 00-9488 _________________________________________ VALERIE KRIMSTOCK, CHARLES FLATOW, ISMAEL DELAPAZ, CLARENCE WALTERS, JAMES WEBB, MICHAEL ZURLO, and SANDRA JONES, individually and on behalf of all other persons similarly situated, Plaintiffs-Appellants, v. RAYMOND W. KELLY, in his official capacity as Commissioner of the New York City Police Department, PROPERTY CLERK, NEW YORK CITY POLICE DEPARTMENT, and THE CITY OF NEW YORK, Defendants-Appellees. __________________________________________ Before: JACOBS, F.I. PARKER, and SOTOMAYOR, Circuit Judges. Appeal from a judgment of the United States District Court for the Southern District of New York (Michael B. Mukasey, Chief Judge) granting defendants’ motion to dismiss the complaint, which alleges constitutional violations arising from the seizure of motor vehicles by the police. We vacate, holding that plaintiffs’ due process rights were violated by the postseizure, pre-judgment retention of vehicles absent a prompt opportunity to challenge the probable validity of and justification for that deprivation pendente lite. Vacated and remanded. THOMAS M. O’BRIEN, of counsel, The Legal Aid Society, Criminal Defense Division, New York, New York, for plaintiffs-appellants. Decided: September 18, 2002)

JULIE STEINER, Assistant Corporation Counsel, New York, New York, for Michael D. Hess, Corporation Counsel of the City of New York (Stephen J. McGrath, on the brief), for defendants-appellees. SOTOMAYOR, Circuit Judge: Defendant City of New York seizes the motor vehicles of some of those accused of driving while intoxicated and of committing other crimes for which a motor vehicle could be considered an instrumentality.1 The City maintains possession of these vehicles in the hope of one day gaining title to them by prevailing in civil forfeiture proceedings. These proceedings generally await the resolution of criminal charges and can take months or even years to be finalized. The City claims and plaintiffs-appellants (“plaintiffs”) do not contest that the proceedings are authorized, as is the seizure, by provisions of the City’s Civil Administrative Code that cede to the City title to property found to be an instrumentality of crime. Plaintiffs contend that their inability to challenge, promptly after the vehicles are seized, the legitimacy of and justification for the City’s retention of the vehicles prior to judgment in any civil forfeiture proceeding violates their constitutional rights. We agree. A car or truck is often central to a person’s livelihood or daily activities. An individual must be permitted to challenge the City’s continued possession of his or her vehicle during the pendency of legal proceedings where such possession may ultimately prove improper and where less

The New York City Corporation Counsel has delegated to the Property Clerk of the New York City Police Department the authority, under New York City’s Administrative Code, to bring the civil forfeiture actions at issue in this appeal. See Property Clerk v. Covell, 139 Misc. 2d 707, 708-09, 528 N.Y.S.2d 299, 300 (Sup. Ct. N.Y. Co. 1988). We refer to defendants Commissioner of the New York City Police Department, the Property Clerk of the New York City Police Department, and the City of New York, collectively, as the “City.” 2

1

drastic measures than deprivation pendente lite are available and appropriate. We vacate the judgment of the district court and remand for the court to order, after consultation with the parties, the appropriate injunctive relief. BACKGROUND Plaintiffs challenge the seizure and retention of motor vehicles under a section of the City’s Civil Administrative Code, N.Y.C. Code § 14-140. The City claims and plaintiffs do not contest that the statute authorizes the City’s Property Clerk to take custody, following seizure, of, among other things, “all property . . . suspected of having been used as a means of committing crime or employed in aid or furtherance of crime . . . .” N.Y.C. Code § 14-140(b). Seized property is retained by the Property Clerk of the New York City Police Department until the City either loses a future forfeiture suit or decides not to pursue one and someone claims the seized property. Id. § 14-140(e); 38-A New York City Rules & Regulations (“R.C.N.Y.”) § 12-36. The relevant provision of the Administrative Code states: Where . . . property . . . ha[s] been used as a means of committing crime or employed in aid or in furtherance of crime . . . , a person who so . . . used [or] employed . . . any such . . . property or permitted or suffered the same to be used [or] employed . . . or who was a participant or accomplice in any such act, or a person who derives his or her claim in any manner from or through any such person, shall not be deemed to be the lawful claimant entitled to . . . such . . . property . . . . N.Y.C. Code § 14-140(e)(1). The statute applies to all levels of crime, not just felonies, and to all types of crimes. Moreover, it applies to all property, both real and personal. Under the statute, the City can seize a motor vehicle following an arrest for the state-law charge of driving while intoxicated (“DWI”) or any other crime for which the vehicle

3

could serve as an instrumentality. The arraignment of the defendant in the criminal action concerns only the prosecution of the criminal charge. A defendant charged with DWI does not have a right to a post-arrest hearing to determine whether probable cause existed either for his or her arrest or for the seizure of the vehicle. Unlike a felony charge, for which a “prompt” probable cause hearing must be held or evidence of probable cause must be presented to a grand jury, N.Y. Crim. Proc. § 180.10, a misdemeanor charge of DWI requires no post-arrest determination of probable cause, id. §§ 170.10 et seq.; People v. Green, 96 N.Y.2d 195, 199-200, 726 N.Y.S.2d 357, 361 (2001) (noting, in a DWI case, that whereas the “New York Constitution requires a Grand Jury indictment for felony offenses . . . , misdemeanor charges may be brought on a prosecutor’s information”); In re Robert L.,129 Misc. 2d 742, 744, 493 N.Y.S.2d 970, 972 (Fam. Ct. Bronx Co. 1985) (“There is no provision for a preliminary or probable cause hearing under the [New York] Criminal Procedure Law in misdemeanor cases.”). Moreover, N.Y.C. Code § 14-140 affords the vehicle owner no opportunity for a prompt post-seizure hearing to test probable cause for the vehicle’s seizure. Thus, neither New York criminal procedure nor the City’s civil forfeiture law allows a DWI defendant or the owner of a vehicle driven by a DWI defendant to challenge promptly the legitimacy of the City’s continued custody of the vehicle.2 That challenge may not be made until the City seeks the vehicle’s forfeiture in a separate civil proceeding that could take place months or even years after the seizure. Upon seizing the vehicle, the police issue the arrestee a voucher for the vehicle
2

As noted below, the remedies available to those who have had their property seized under New York state civil forfeiture law (N.Y. C.P.L.R. art. 13-A) do not apply to seizures under N.Y.C. Code § 14-140. Other remedies suggested by the City, specifically a Request for Judicial Intervention and an Article 78 proceeding brought under New York state law, do not provide a prompt retention hearing, as discussed below. 4

and any other seized property. 38-A R.C.N.Y. § 12-32(a). If a claimant makes a formal demand for the return of the vehicle, the City has twenty-five days in which either to initiate a civil forfeiture proceeding under the City’s Administrative Code or to release the vehicle. Id. § 1236(a).3 Even if the City chooses to commence a civil forfeiture proceeding within the twentyfive day period, however, the proceeding is commonly stayed until the criminal proceeding concludes. In a forfeiture proceeding, the City “bear[s] the burden of proving by a preponderance of the evidence that [it] is legally justified to continue to retain the property.” Id. § 12-36(b).4 Vehicles belonging to the named members of the putative class in this action were seized by the City between March and May of 1999. The vehicles of six of the seven named plaintiffs—Valerie Krimstock, Charles Flatow, Ismael Delapaz, Clarence Walters, James

The applicable rules state that “[i]f a timely demand is made for the return of the property before the forfeiture proceeding is instituted, such proceeding shall be brought no later than . . . within 25 days after the date of demand. If such proceeding is not commenced within this time period, the property clerk shall give written notice to the claimant or the claimant’s representative, at his or her last known address . . . that the property will be returned forthwith to that person.” 38-A R.C.N.Y. § 12-36(a). Absent a demand for the return of the property, the City may commence forfeiture proceedings on its own initiative, often at the conclusion of the criminal proceedings. See id. (“If such proceeding is instituted before the termination of criminal proceedings against the claimant, this subchapter shall not be construed to effect [sic] any right of a party to the forfeiture proceeding to have the forfeiture proceeding stayed for such period as the court may determine.”). This provision and several others found in the rules governing forfeitures under the present statute were adopted as a result of this Court’s determination that certain aspects of the predecessor statute were unconstitutional. See McClendon v. Rosetti, 460 F.2d 111, 114-16 (2d Cir. 1972) (striking down procedures for reclaiming property after termination of criminal proceedings charging crimes unrelated to seized property). As the district court below indicated, the challenge in the instant case presents claims not considered in our previous review of the statute. Krimstock v. Safir, No. 99 Civ. 12041, 2000 WL 1702035, at *4 (S.D.N.Y. Nov. 13, 2000). 5
4

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Webb, and Michael Zurlo—were seized after each was arrested for DWI.5 In some cases, the Property Clerk did not institute civil forfeiture actions against plaintiffs’ vehicles until well over two months after the seizures. For example, Clarence Walters’ car was seized on March 15, 1999. He had never been arrested for any offense before, and his DWI case in criminal court ended on June 1, 1999, when he pleaded guilty to the lesser charge of driving while impaired, a non-criminal violation. N.Y. Veh. & Traf. § 1192(1). Mr. Walters paid a fine, performed community service, and completed a Drinking Driver program that rendered him eligible for restoration of his driver’s license. On June 4, more than two-and-a-half months after the seizure of his vehicle, he was served with a forfeiture complaint. At no time between June 1999 and May 2001, when his vehicle was finally released, was Mr. Walters given an opportunity to challenge the City’s retention of the vehicle. Each of the five other DWI arrestees also pleaded guilty to the lesser charge of driving while impaired. Valerie Krimstock, who at the age of forty-eight had never been arrested before, entered her plea to the lesser charge in September 1999—some four months after she had been served with a forfeiture complaint. It was not until eleven months later, in August 2000, that a judge dismissed the forfeiture action and ordered that her 1995 Toyota, on which she had continued to make monthly payments of $273.00, be returned to her. In the case of Charles Flatow—a retired sales manager whose car was seized on April 3, 1999 in connection with a first-time DWI arrest—the Property Clerk commenced a

The state statute prohibits the operation of a motor vehicle if the driver “has .10 of one per centum or more by weight of alcohol in the person’s blood.” N.Y. Veh. & Traf. § 1192(2). A violation is a misdemeanor punishable by a fine or by imprisonment for not more than one year, or both. Id. § 1193(1)(b). 6

5

forfeiture action on June 15, 1999. Mr. Flatow also pleaded guilty to the lesser charge, paid a fine, and completed the required community service and Drinking Driver program. Yet by December 1999, he still had received no hearing in the forfeiture action and his car remained in police custody. As a result, Mr. Flatow had not been given an opportunity to present evidence that a prescription anti-depressant medication he was taking at the time of the arrest caused the Breathalyzer test to exaggerate the percentage of alcohol in his bloodstream. To take yet another example, the 1995 Plymouth van owned by the seventh named plaintiff, Sandra Jones, was seized in March 1999 when her estranged husband, to whom she had lent the vehicle, was arrested for drug and weapon possession. Even though these charges were later dismissed, the Property Clerk initiated a forfeiture action in May 1999, alleging that Ms. Jones had “consented, suffered or permitted” her vehicle to be used by her husband in the commission of crimes. During the pendency of the action, Ms. Jones continued to make monthly payments of $428.06 on her impounded vehicle. In January 2000, some ten months after the police had seized it, the Property Clerk returned her van. In sum, at the time this suit was filed in December 1999, no court had yet ruled on the legitimacy of the retention of any of plaintiffs’ vehicles, all of which remained in the possession of the police even though the criminal cases underlying the forfeiture actions had concluded and none had resulted in a conviction of a crime that would serve as a predicate for forfeiture.6
6

Judge Jacobs does not subscribe to the four preceding paragraphs which recount and rely upon the circumstances particular to the named plaintiffs in this putative class action. His reasons are as follows: (1) The opinion implicitly generalizes from circumstances of the individual plaintiffs—for example, that this one had never been arrested before, that this one is a retired person, and so forth. The named plaintiffs in a putative class action are frequently selected to be especially sympathetic and appealing, but the rule we make will also govern vehicles seized from persons who are habitual drunks. (2) The fact that the six “DWI arrestees 7

Plaintiffs brought this action under 42 U.S.C. § 1983, alleging violations of the Due Process Clause of the Fourteenth Amendment and seeking a prompt hearing following the seizure of vehicles, at which the City “must demonstrate probable cause that the car was used in furtherance of a crime and that it is necessary that the vehicle remain in the City’s custody until the conclusion of the forfeiture proceeding.”7 Named plaintiffs moved for class certification pursuant to Fed. R. Civ. P. 23(a) and (b)(2) and for a preliminary injunction under Fed. R. Civ. P. 65. The City cross-moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). The district court granted the City’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Krimstock, 2000 WL 1702035, at *7. The court rejected the City’s request to dismiss plaintiffs’ constitutional claims on abstention grounds, finding that the civil forfeiture proceedings under the New York City Administrative Code did not provide an adequate forum for raising these claims. Id. at *3.8 Applying the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), to determine what procedural safeguards are required to satisfy the Due Process Clause of the Fourteenth Amendment in the circumstances of this case, the district court

. . . pleaded guilty to the lesser charge of driving while impaired” does not remotely call into question the arresting officer’s probable cause to arrest them for drunk driving. It goes without saying that plea bargains in misdemeanor cases are offered for many reasons other than factual innocence or even insufficiency of evidence. Even though plaintiffs invoked Fourteenth Amendment protections in their complaint, their claims involve both the City’s probable cause to believe their vehicles were subject to seizure and forfeiture (a Fourth Amendment concern, as applied through the Fourteenth Amendment) and the City’s justification for retaining their vehicles pendente lite (a Fourteenth Amendment concern). We address both issues. The court did abstain from hearing plaintiffs’ claim that they had a due process right to a meaningful opportunity to request court-appointed counsel. Krimstock, 2000 WL 1702035, at *3. Plaintiffs have not raised this issue on appeal, and we therefore deem it abandoned. 8
8 7

held that plaintiffs were not entitled to prompt post-seizure hearings on the question of probable cause or the legitimacy of retention pendente lite. Id. at *6-*7. Specifically, the court held that “plaintiffs’ due process right to a meaningful hearing at a meaningful time does not require the additional safeguard of a probable cause hearing.” Id. at *7. The court concluded that the plaintiffs’ interests were adequately protected by “a probable cause arrest” and the eventual forfeiture proceeding. Id. at *6-*7. This appeal followed. DISCUSSION A federal court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint as true and drawing all reasonable inferences in the plaintiff’s favor.” Ganino v. Citizens Utils. Co., 228 F.3d 154, 161 (2d Cir. 2000). Under Rule 12(b)(6), we uphold a district court’s dismissal only if “it appears beyond doubt that the plaintiffs can prove no set of facts in support of his [or her] claim which would entitle him [or her] to relief.” Id. (internal citation omitted). Our primary focus today is the City’s continued retention of vehicles after their warrantless seizure by the police and prior to the ultimate resolution of the forfeiture action in court. It is this intermediate deprivation, lasting months or sometimes years without any prompt hearing before a neutral fact-finder, that we deem constitutionally infirm. In the absence of a showing that continued impoundment constitutes a valid deprivation, seized vehicles must be released during the pendency of civil proceedings. We reach this conclusion in light of the dictates of the Fourth and Fourteenth Amendments. In Part I, we establish a framework for analyzing plaintiffs’ challenge to the 9

probable validity of the City’s post-seizure, pre-judgment retention of their vehicles, and we define “probable validity” as a due process concept that in the present case embraces the City’s probable cause for initially seizing the vehicles. In Parts II and III, we discuss the applicability of the Fourth and Fourteenth Amendments to seizure and retention of personal property under civil forfeiture laws. In the course of discussing the Fourteenth Amendment, we give special attention to three areas of due process concern raised by N.Y.C. Code § 14-140 as applied to the present facts: the temporal gap that typically exists between vehicle seizure and the eventual forfeiture proceeding; the plight of innocent owners;9 and the inadequacy of the remedies suggested by the City for addressing the propriety of continued retention of vehicles seized under § 14-140. In Part IV, we employ the three-factor inquiry prescribed by the Supreme Court in Mathews v. Eldridge to determine what procedural safeguards are required to satisfy the Due Process Clause in this case. Finding that plaintiffs’ right to due process has been violated, we conclude in Part V by offering general guidance as to the prompt post-seizure retention hearing that we deem to be constitutionally required. I. The Probable Validity of Continued Deprivation of Vehicles Plaintiffs in this action essentially seek an early opportunity to test the City’s likelihood of success on the merits of the forfeiture action, or what the Supreme Court has termed the “probable validity” of continued deprivation of a claimant’s property during the
9

Here and throughout this opinion, we use the phrase “innocent owner” as a term of art denoting a person who has an ownership interest in property threatened with civil forfeiture but who neither participated in nor permitted or suffered the alleged illegal use of the property, and persons who claim that status. Our use of the term is not intended to suggest that drivers or other persons initially charged with a vehicle-related crime are not presumed innocent until proven guilty in a criminal proceeding or are presumptively unlikely to prevail in a civil forfeiture proceeding. 10

pendency of legal proceedings. Cf. Comm’r v. Shapiro, 424 U.S. 614, 629 (1976) (“[A]t least where irreparable injury may result from a deprivation of property pending final adjudication of the rights of the parties, the Due Process Clause requires that the party whose property is taken be given an opportunity for some kind of predeprivation or prompt post-deprivation hearing at which some showing of the probable validity of the deprivation must be made.”); Fuentes v. Shevin, 407 U.S. 67, 97 (1972) (“Since the essential reason for the requirement of a prior hearing is to prevent unfair and mistaken deprivations of property, . . . it is axiomatic that the hearing must provide a real test. ‘(D)ue process is afforded only by the kinds of “notice” and “hearing” that are aimed at establishing the validity, or at least the probable validity, of the underlying claim against the alleged debtor before he can be deprived of his property.’”) (quoting Sniadach v. Family Fin. Corp., 395 U.S. 337, 343 (1969) (Harlan, J., concurring)). For present purposes, we treat probable validity as a comprehensive due process concept that includes the City’s probable cause for initially seizing vehicles. Clearly, the legality of a warrantless seizure is a component of the larger question of the probable validity of continued retention of a seized vehicle. If a seizure lacked probable cause, and the City could offer no untainted post-seizure evidence to justify further retention, the claimant’s vehicle would ordinarily have to be released during the pendency of proceedings. Cf. Marine Midland Bank, N.A. v. United States, 11 F.3d 1119, 1125 (2d Cir. 1993) (“[C]ourts in this circuit have ordered the return of seized property before the commencement of a [federal] forfeiture trial on the ground that the government lacked probable cause to seize the property at the time of the seizure.”). Although there is an obvious overlap between probable cause for a seizure and the 11

probable validity of a retention, the two are not necessarily coextensive. For example, at a retention hearing, the City might succeed in showing that police officers had probable cause for seizing the vehicle of a DWI arrestee, yet be unable to establish the probable validity of continued deprivation pendente lite in the face of proof of innocent ownership or evidence that the Breathalyzer test had registered inaccurate results. Similarly, the City might establish probable cause for a seizure but fail to persuade the court that its interest in the accused instrumentality would not be protected by measures less drastic than continued deprivation. Conversely, the City might fail to establish probable cause for an initial seizure yet be able to offer post-seizure evidence showing the probable validity of retention during the pendency of proceedings. Thus, the legality of a seizure typically will be a subset of the larger due process question of the legitimacy of continued impoundment pendente lite. II. The Role of the Fourth Amendment in Civil Forfeiture The Supreme Court has held that the Fourth Amendment protects claimants against unreasonable seizures of their property in the civil forfeiture context. See United States v. James Daniel Good Real Prop., 510 U.S. 43, 49 (1993) (“The Fourth Amendment does place restrictions on seizures conducted for purposes of civil forfeiture . . . .”); see also One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 696, 700 (1965) (holding that the exclusionary rule under the Fourth Amendment applies to civil forfeiture proceedings); cf. In re Seizure of All Funds in Accounts in Names Registry Publ’g, Inc., 68 F.3d 577, 580 (2d Cir. 1995) (“In order to seize property under [federal civil forfeiture law], the government must demonstrate that there was probable cause to believe that the property is subject to forfeiture.”); United States v. Daccarett, 6 F.3d 37, 49 (2d Cir. 1993) (“[T]his circuit requires seizures made pursuant to 12

[federal civil forfeiture law] to comport with the fourth amendment.”); United States v. $37,780 in U.S. Currency, 920 F.2d 159, 162 (2d Cir. 1990) (same). The Supreme Court has not said that a probable cause hearing is required after a warrantless seizure of property and before trial of a government’s claim to title under a civil forfeiture law. Yet many of our laws are fashioned to ensure that a prompt hearing before a neutral judicial or administrative officer is held after the warrantless seizure of property and before full adjudication of the merits of a claim. One example is the federal civil forfeiture regime as administered by the courts of this Circuit in the context of seizures of illicit proceeds and instrumentalities. As this Court has recognized, “the seizure and forfeiture of property are two distinct events under the [federal] civil forfeiture laws.” Marine Midland Bank, 11 F.3d at 1124 (citing Daccarett, 6 F.3d 37 at 46).10 “While both events require the government to have probable cause, the government is not required to demonstrate probable cause until the forfeiture trial unless a claimant challenges the validity of the seizure before trial.” Id. (emphasis added). If the government, once challenged, cannot establish probable cause for the initial seizure or offer post-seizure evidence to justify continued impoundment, retention of the seized property runs afoul of the Fourth Amendment. Id. at 1125; see also United States v. U.S. Currency in Amount of One Hundred Forty-Six Thousand, Eight Hundred Dollars, No. 96-CV-4882, 1997 WL

Marine Midland Bank involved the seizure of interbank funds under the federal civil forfeiture laws and upon a warrant issued by a federal magistrate judge, who had determined that the government had probable cause to believe that interbank accounts were being used to launder narcotics proceeds. Marine Midland Bank, 11 F.3d at 1121. The banks moved for return of the seized funds by order to show cause pursuant to Fed. R. Crim. P. 41(e). Holding that “[t]he magistrate judge’s probable cause determination should be subject to judicial review,” this Court found that the warrant had not been supported by probable cause and therefore ordered the release of certain of the interbank funds. Id. at 1125. 13

10

269583, at *3 (E.D.N.Y. Apr. 28, 1997) (“[I]f the claimant [in a federal civil forfeiture action] properly raises the issue of the government’s probable cause for seizure before the forfeiture trial, and if the claimant demonstrates that the government lacked probable cause at the time of seizure, the property may be returned to the claimant until the forfeiture trial is held.”). We recognize that the likelihood of illegal seizure is reduced in the context of DWI arrests and that the City’s burden of proving probable cause in such cases is not onerous.11 We cannot agree with the district court, however, that a warrantless arrest is sufficient by itself to ensure the legality of the initial seizure. Some risk of erroneous seizure exists in all cases, and in the absence of prompt review by a neutral fact-finder, we are left with grave Fourth Amendment concerns as to the adequacy of an inquiry into probable cause that must wait months or sometimes years before a civil forfeiture proceeding takes place. Our concerns are heightened by the fact that the seizing authority in this case “has a direct pecuniary interest in the outcome of the proceeding.” James Daniel Good Real Prop., 510 U.S. at 55-56; see also Property Clerk v. Hyne, 147 Misc. 2d 774, 780, 557 N.Y.S.2d 244, 248 (Sup. Ct. N.Y. Co. 1990) (noting that § 14140’s “remedial purposes” include the fact that “revenue is generated and applied toward the cost of law enforcement”), aff’d, 171 A.D.2d 506, 567 N.Y.S.2d 603 (1st Dep’t 1991).
11

See People v. Earley, 244 A.D.2d 769, 770-71, 666 N.Y.S.2d 223, 224 (3d Dep’t 1997) (holding that arresting officer’s testimony at suppression hearing supported finding of probable cause to arrest defendant for DWI, despite contradictory testimony of defendant and his passenger and despite minor inconsistencies in officer’s testimony); Grinberg v. Safir, 181 Misc. 2d 444, 455, 694 N.Y.S.2d 316, 325 (Sup. Ct. N.Y. Co.) (“The seizure is simultaneous with a DWI arrest for which the police must have probable cause. The arresting officer evaluates an offense committed in his or her presence. Indicia of alcohol consumption and objective tests confirming the presence of alcohol minimize the risk of erroneous deprivation.”), aff’d, 266 A.D.2d 43, 698 N.Y.S.2d 218 (1st Dep’t 1999); see also People v. Mathison, 287 A.D.2d 384, 384, 732 N.Y.S.2d 2, 2-3 (1st Dep’t 2001) (noting that probable cause may be demonstrated by reliable hearsay, including information provided by fellow officer present at the arrest scene). 14

III.

The Role of the Fourteenth Amendment in Civil Forfeiture The government’s seizure and retention of property under civil forfeiture statutes,

in the absence of a meaningful hearing at a meaningful time, raise serious due process concerns under the Fourteenth Amendment. See James Daniel Good Real Prop., 510 U.S. at 62 (holding that, absent exigent circumstances, “the Due Process Clause requires the Government to afford notice and a meaningful opportunity to be heard before seizing real property subject to civil forfeiture”); Fuentes, 407 U.S. at 80 (holding, in a case involving state prejudgment replevin statutes that permitted seizure of chattels without a prior opportunity to be heard, that it is “fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner”) (quotation marks omitted). The fundamental right to notice and a meaningful hearing at a meaningful time has been recognized in many different contexts. See, e.g., James Daniel Good Real Prop., 510 U.S. at 43 (seizure of real property under federal forfeiture law); Connecticut v. Doehr, 501 U.S. 1 (1991) (state ex parte attachment procedures); Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978) (termination of municipal utility service); N. Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975) (prejudgment garnishment of bank account); Fuentes, 407 U.S. at 67 (state prejudgment replevin statutes); Sniadach, 395 U.S. at 337 (state wage-garnishment procedure). Due process is inevitably a fact-intensive inquiry. Doehr, 501 U.S. at 10 (“[D]ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.”) (quotation marks omitted). The “timing and nature of the required hearing will depend on appropriate accommodation of the competing interests involved.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 434 (1982) (quotation marks omitted). 15

A.

Temporary Deprivations of Property Pendente Lite

Temporary deprivation of real or personal property pendente lite in a forfeiture action must satisfy the demands of the Fourteenth Amendment. The Supreme Court has held that even a brief and provisional deprivation of property pending judgment is of constitutional importance. See Fuentes, 407 U.S. at 84-85 (“[I]t is now well settled that a temporary, nonfinal deprivation of property is nonetheless a ‘deprivation’ in the terms of the Fourteenth Amendment.”); see also United States v. Monsanto, 924 F.2d 1186, 1192 (2d Cir. 1991) (noting that a “temporary and nonfinal” removal of a defendant’s assets, pursuant to a federal criminal forfeiture statute and pending resolution of the criminal case, “is, nonetheless, a deprivation of property subject to the constraints of due process”) (quotation marks omitted). Plaintiffs here have not challenged the procedural safeguards under New York law that guarantee the accuracy of any final judgment of forfeiture. Instead, they question the legitimacy of and justification for the intermediate deprivation of their property occasioned after seizure of the vehicle and before judgment in civil forfeiture proceedings under N.Y.C. Code § 14-140, and, indeed, before those proceedings are even commenced. See James Daniel Good Real Prop., 510 U.S. at 56 (“The question in the civil forfeiture context is whether ex parte seizure is justified by a pressing need for prompt action.”); Fuentes, 407 U.S. at 80-81 (stating that due process is intended “to minimize substantively unfair or mistaken deprivations of property”). The district court in this case collapsed the separate issues of probable cause and due process into a single analysis and, applying the test for due process set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), concluded that plaintiffs had alleged no facts to suggest that a “probable cause arrest” is a “procedure” that is “unusually unreliable,” Krimstock, 2000 WL 16

1702035, at *6, and further concluded that “plaintiffs’ due process right to a meaningful hearing at a meaningful time does not require the additional safeguard of a probable cause hearing,” id. at *7. In reaching this determination, the court applied the “speedy trial” test as deployed in the federal customs case of United States v. $8,850, 461 U.S. 555 (1983), and held that plaintiffs’ due process interests are fully protected by the eventual forfeiture proceeding. Id.12 The district court’s analysis resembles the approach taken by the New York Supreme Court in Grinberg v. Safir, in which a DWI arrestee brought an Article 78 proceeding to contest the City’s seizure of his 1988 Acura for forfeiture. In response to Grinberg’s Fourth Amendment challenge to the seizure and retention of his vehicle, the court, citing various warrantless arrest and seizure exceptions, held that “[o]nce an object is permissibly seized as an instrumentality during an arrest, no warrant, pretrial hearing or judicial approval is needed for retention during the criminal action.” Grinberg, 181 Misc. 2d at 452, 694 N.Y.S.2d at 323. The court also found that Grinberg’s Fourteenth Amendment right to a meaningful hearing at a meaningful time had not been violated. Citing the speedy trial test as applied in $8,850, the court reasoned that “[i]f pendency of a criminal action is a legitimate reason for the delayed filing of a forfeiture proceeding, then retention of the subject vehicle without a hearing, while the criminal

The district court also cited United States v. Von Neumann, 474 U.S. 242, 249 (1986), in declaring that “‘the forfeiture proceeding, without more, provides the postseizure hearing required by due process.’” Krimstock, 2000 WL 1702035, at *5. The Supreme Court in Von Neumann, however, was addressing the different issue of what process was due in proceedings for remission or mitigation under U.S. customs laws when a claimant could challenge the seizure of his or her property in judicial forfeiture proceedings. Von Neumann, 474 U.S. at 249-50. We note that under the customs laws applicable in Von Neumann, the claimant could file a motion under Fed. R. Crim. P. 41(e) for return of the seized vehicle if he or she “believe[d] the initial seizure was improper,” id. at 244 n.3, and that, in the case of Von Neumann, Customs released the claimant’s vehicle after he had posted a bond pursuant to 19 U.S.C. § 1614, id. at 246. 17

12

action is pending, is also permissible.” Grinberg, 181 Misc. 2d at 456, 694 N.Y.S.2d at 326. For reasons discussed more fully below, we disagree with these courts’ conclusions. Contrary to the district court’s determination in the present case, a warrantless arrest by itself does not constitute an adequate, neutral “procedure” for testing the City’s justification for continued and often lengthy detention of a vehicle which may be owned by the arrestee or by someone entirely unconnected with the conduct that gave rise to the arrest. Further, to say that the forfeiture proceeding, which often occurs more than a year after a vehicle’s seizure, represents a meaningful opportunity to be heard at a meaningful time on the issue of continued impoundment is to stretch the sense of that venerable phrase to the breaking point. We also consider it a non sequitur to hold, as the Grinberg court did, that because postponing the commencement of a forfeiture action pending the underlying criminal proceeding may not offend due process, retention of the seized vehicle without a hearing throughout that same period, or longer, is constitutionally permissible. The issues of a speedy trial and a prompt retention hearing are not parallel in this context, particularly when less restrictive methods for protecting the City’s interest in the allegedly offending res are available. Cf. Lee v. Thornton, 538 F.2d 27, 32 (2d Cir. 1976) (“Deprivation of means of transportation for [substantial] periods requires an opportunity to be heard.”); DeBellis v. Property Clerk, 79 N.Y.2d 49, 57, 580 N.Y.S.2d 157, 161 (1992) (“The core principle of the Second Circuit’s McClendon decision is that, although the government may seize and hold a citizen’s property for a variety of reasons in connection with a criminal or related proceeding, once those proceedings have terminated or it is determined that the property is not related to or is otherwise not needed for those proceedings, due process requires that the property be returned upon demand unless the government can 18

establish a new basis for its detention.”). In sum, just as in the attachment and seizure cases cited above, the purpose of requiring due process in the present circumstances “is not only to ensure abstract fair play to the individual,” but “more particularly, . . . to protect his [or her] use and possession of property from arbitrary encroachment—to minimize substantively unfair or mistaken deprivations of property.” James Daniel Good Real Prop., 510 U.S. at 53 (quotation marks and citation omitted). We conclude that plaintiffs have a right under the Fourteenth Amendment to ask what “justification” the City has for retention of their vehicles during the pendency of proceedings, cf. id. at 56, 61, and to put that question to the City at an early point after seizure in order to minimize any arbitrary or mistaken encroachment upon plaintiffs’ use and possession of their property. B. Special Due Process Concerns in the Present Case

Our concern that plaintiffs be provided an early opportunity to test the propriety of the City’s retention of their vehicles, after seizure pursuant to N.Y.C. Code § 14-140 and prior to any eventual civil forfeiture judgment, is heightened by several factors. These factors include the temporal gap that typically exists between seizure of the vehicle and the forfeiture proceeding, the inability of innocent owners to challenge promptly the City’s retention of their vehicles pendente lite, and the inadequacy of other suggested remedies for providing prompt post-seizure review under New York’s administrative and civil codes. 1. The Temporal Gap Between Seizure and Forfeiture Proceedings

N.Y.C. Code § 14-140 and the applicable rules leave a significant temporal gap between the moment a vehicle is seized and the time the City commences forfeiture proceedings. 19

Although it is possible for the City to initiate a forfeiture action earlier, it need not bring such an action until twenty-five days after a claim is made for the vehicle. 38-A R.C.N.Y. § 12-36(a) (“If a timely demand is made for the return of the property before the forfeiture proceeding is instituted, such proceeding shall be brought no later than . . . within 25 days after the date of demand.”).13 If no demand is made, the Property Clerk may initiate the action at its discretion. In the present case, forfeiture proceedings were commenced, at the earliest, three weeks after seizure of a vehicle, and, at the latest, well over two months after seizure. Thus, there typically exists a significant period after seizure and before the filing of the forfeiture action when the City is not held responsible for the legality of the warrantless seizure or the continued retention of the vehicle. The period between the seizure and the holding of a hearing in the forfeiture action is, of course, considerably longer.14 It can take months or even years.

The 25-day rule under 38-A R.C.N.Y. § 12-36(a) represents a legislative expansion of the time period originally ordered in McClendon v. Rosetti, 369 F. Supp. 1391, 1394 (S.D.N.Y. 1974), which required the Property Clerk to initiate a forfeiture proceeding within 10 days after a claimant’s timely demand. In contrast, while the statute here requires only that a forfeiture proceeding be initiated within 25 days after a claim is made, the California controlled substances act requires that, once a person claiming an interest in seized property files a verified claim, “the [civil] forfeiture proceeding shall be set for hearing on a day not less than 30 days therefrom, and the proceeding shall have priority over other civil cases.” Cal. Health & Safety Code § 11488.5(c)(1) (emphasis added). Similarly, the civil forfeiture provision of the Wisconsin controlled substances act states that “the action shall be set for hearing within 60 days of the service of the answer but may be continued for cause or upon stipulation of the parties.” Wis. Stat. § 961.555(2)(b); see also State v. Rosen, 240 N.W.2d 168, 171-72 (Wis. 1976) (holding that the 60-day rule under the Wisconsin controlled substances act is mandatory and that failure to set the hearing within that period deprived the trial court of jurisdiction). In South Carolina, when a motorist is convicted of a third or subsequent DUI violation within 10 years, the vehicle may be seized and forfeited, but the vehicle’s registered owner, who must be given notice within 72 hours of the confiscation, has 10 days to request a judicial hearing to determine issues concerning the owner’s knowledge and authorization. “The hearing must be held within ten days from the date of receipt of the request.” S.C. Code Ann. § 56-5-6240(A). 20
14

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Many state forfeiture statutes, unlike N.Y.C. Code § 14-140, provide an early opportunity to challenge the governmental authority’s probable cause for seizing property or the legitimacy of its retaining seized property during the pendency of proceedings. Florida’s contraband forfeiture statute is one example. In upholding the Florida statute in a case involving police seizure of a vehicle from a public place, the U.S. Supreme Court observed that, although the police had not needed to obtain a warrant to seize the vehicle, the statute required that “‘the person entitled to notice is notified at the time of the seizure . . . that there is a right to an adversarial preliminary hearing after the seizure to determine whether probable cause exists to believe that such property has been or is being used in violation of the Florida Contraband Forfeiture Act.’” Florida v. White, 526 U.S. 559, 562 n.2 (1999) (quoting Fla. Stat. § 932.703(2)(a)). The Florida statute further provides: Seizing agencies shall make a diligent effort to notify the person entitled to notice of the seizure. Notice provided by certified mail must be mailed within 5 working days after the seizure and must state that a person entitled to notice may request an adversarial preliminary hearing within 15 days after receiving such notice. . . . The seizing agency shall set and notice the hearing, which must be held within 10 days after the request is received or as soon as practicable thereafter. Fla. Stat. § 932.703(2)(a); see also Cochran v. Harris, 654 So. 2d 969, 972 (Fla. Dist. Ct. App. 1995) (holding that a delay of twenty-three days beyond the ten-day limit for a hearing under

Some legislatures have sought to mitigate the depreciation of property values and other costs incurred through delays of civil forfeiture proceedings. See, e.g., Ariz. Rev. Stat. § 134310(I) (“Before staying civil discovery [in a forfeiture proceeding until a related criminal trial is concluded], the court shall make adequate provision to prevent any loss or expense to any victim or party resulting from the delay, including loss or expense due to maintenance, management, insurance, storage or preservation of the availability of the property or due to depreciation in the value of the property.”). 21

§ 932.703 violated the claimants’ right to due process); cf. Ariz. Rev. Stat. § 13-4310(B) (providing that, upon timely application by an owner of or interest holder in property threatened with forfeiture, the court “may issue an order to show cause to the seizing agency for a hearing on the sole issue of whether probable cause for forfeiture of the property then exists”); Cal. Health & Safety Code § 11488.4(h) (providing that “[i]f there is an underlying or related criminal action, a defendant may move for the return of the property [threatened with civil forfeiture] on the grounds that there is not probable cause to believe that the property is forfeitable . . . .”). Nothing like the procedural safeguards contained in the Florida contraband forfeiture act and similar state statutes is built into the New York forfeiture law. In addition, many state statutes afford avenues of interim relief for claimants who are adversely affected by seizure and retention of property. For example, the Florida contraband forfeiture statute provides that if the court determines that probable cause exists to seize property, “the court shall order the property restrained by the least restrictive means to protect against disposal, waste, or continued illegal use of such property pending disposition of the forfeiture proceeding.” Fla. Stat. § 932.703(2)(d). These means include “a bond or other adequate security equivalent to the value of the property.” Id.; cf. Ariz. Rev. Stat. § 13-4306(G) (“An owner of property seized for forfeiture may obtain the release of the seized property by posting . . . a surety bond or cash . . . .”); Cal. Health & Safety Code § 11492(c) (providing for various remedies to preserve the status quo pendente lite, including “a surety bond or undertaking to preserve the property interests of the interested parties”); N.J. Stat. Ann. § 2C:64-3(g) (providing that persons with an interest in property seized for forfeiture, except defendants prosecuted in connection with the seized property, may, after posting a bond, secure release of the property pending the 22

forfeiture action). Again, no protections for a claimant’s practical interests in seized property are provided for under the New York forfeiture law. 2. Seizure of Property of Innocent Owners

With respect to innocent owners, the City’s authority to seize property may be broader than its authority to cause the forfeiture of the property. In the due process context, the Supreme Court has shown special concern for the risk of erroneous deprivation posed to innocent owners. See James Daniel Good Real Prop., 510 U.S. at 55.15 The impact of N.Y.C. Code § 14140 on innocent owners is vividly illustrated by the predicament of plaintiff Sandra Jones, whose Plymouth van, which she had lent to her estranged husband, was seized in connection with her husband’s arrest on drug and weapon charges. Although these charges were later dismissed, Ms. Jones was deprived of her vehicle for some ten months while continuing to make monthly auto payments on the vehicle. Ms. Jones was given no early opportunity to test the probable validity of the City’s continued impoundment of her vehicle. The forfeiture provision operates against those persons who “shall not be deemed
15

In Bennis v. Michigan, 516 U.S. 442 (1996), the Supreme Court held that a state nuisance-abatement law under which authorities sought the forfeiture of a vehicle used for illegal sexual activity did not violate the Due Process Clause of the Fourteenth Amendment by not permitting an innocent co-owner of the vehicle to contest the abatement. Id. at 453. Unlike the federal forfeiture law at issue in James Daniel Good Real Property, however, the statute in Bennis did not provide for an affirmative defense of innocent ownership. Moreover, the Court in Bennis suggested that the apparent unfairness of the Michigan law was mitigated by the trial court’s “remedial discretion” to consider whether forfeiture of a vehicle would leave its owner or owners without transportation and to order payment of one-half of any sale proceeds to an innocent co-owner. Id. at 444-45, 453. We also note that the nuisance-abatement statute in question, Mich. Comp. Laws § 600.3825, authorized “removal” and “sale” of property upon entry of an order of abatement only after the property had been deemed a nuisance in a civil action. Id. at 444 n.3. Nothing on the face of the provision, or in the Bennis case, suggests that the statute permitted seizure and retention of property prior to adjudication of its status as a nuisance. 23

to be the lawful claimant” to the property that has been seized by the police department. N.Y.C. Code § 14-140(e)(1).16 The statute identifies two principal groups of those who are not “lawful claimant[s]” and whose property therefore is forfeitable. One is the person who has “used” the property “as a means of committing crime or employed [it] in aid or in furtherance of crime”; the other is the person who “permitted or suffered the same to be used or employed.” Id.17 Thus, the seizure provision authorizes the Property Clerk to take custody, following seizure, of “all property or money suspected of having been used as a means of committing crime,” N.Y.C. Code § 14-140(b), without regard to whether or not an owner who took no part in the crime “permitted or suffered” the vehicle to be used as an instrumentality of

This cumbersome construction, defining those subject to forfeiture proceedings in terms of who is not a “lawful claimant” to the property, appears to reflect the former practice under which the burden rested on a claimant to bring a civil action in replevin to obtain the return of seized property. See Hofferman v. Simmons, 290 N.Y. 449, 454 (1943) (“Since these are replevin actions, we concern ourselves not so much with the [City’s] right to hold as with the [claimant’s] right to recapture.”). In response to a constitutional challenge to the statute, the burden of proof was shifted from the claimant to establish a lawful entitlement, to the City to establish the forfeitability of the property. McClendon, 369 F. Supp. at 1394.
17

16

The relevant portion of the section provides:

Where moneys or property . . . have been used as a means of committing crime or employed in aid or in furtherance of crime or held, used or sold in violation of law, . . . a person who . . . so used, employed, sold or held any such moneys or property or permitted or suffered the same to be used, employed, sold or held . . . or a person who derives his or her claim in any manner from or through any such person, shall not be deemed to be the lawful claimant entitled to any such moneys or property . . . . N.Y.C. Code § 14-140(e)(1). The statute also deems not a lawful claimant any “person who derives his or her claim in any manner from or through any such person.” Id. This formulation evidently could include other potentially innocent owners and interest holders, such as secured lenders, mortgagees, and lienholders, as well as purchasers, inheritors, and other transferees of property interests. 24

the crime.18 A statute that authorizes the police to seize property to which the government has not established a legal right or claim, and that on its face contains no limitation of forfeiture liability for innocent owners, raises substantial constitutional concerns.19 Because plaintiffs in

It is not entirely clear whether the City has the burden of proving that the owner “permitted or suffered” a vehicle to be used as an instrumentality of crime, or whether innocent ownership is an affirmative defense to be raised by the claimant. Without deciding that question, we note that we have found one New York state court opinion that has held that the City has the burden. See Property Clerk v. Pagano, 170 A.D.2d 30, 35, 573 N.Y.S.2d 658, 661 (1st Dep’t 1991) (“[A] proceeding brought under § 14-140 differs substantially from one brought pursuant to a forfeiture statute which expressly places the burden on a claimant to establish his innocent state of mind. Clearly, § 14-140 contains no such language and, on the contrary, must be construed by its own terms to place an affirmative burden on [the City] . . . of proving that respondent ‘permitted or suffered’ the illegal use of the property.”). Many state statutes, while permitting seizure of forfeitable property, are much more explicit than N.Y.C. Code § 14-140 in limiting or exempting the forfeiture liability of innocent owners. These statutes generally provide for affirmative defenses by innocent owners or make proof of the owners’ culpable knowledge part of the seizing authority’s burden. For example, a Maine statute that permits forfeiture of a motor vehicle upon a defendant’s simultaneous conviction for operating under the influence (“OUI”) and operating after suspension for a prior OUI conviction, requires that the defendant be the “sole owner-operator of that vehicle.” Me. Rev. Stat. Ann. tit. 29-A, § 2421(1); see also State v. One Blue Corvette, 732 A.2d 856 (Me. 1999) (holding that the statutory requirement that defendant be the “sole owner-operator of that vehicle” precluded forfeiture of a vehicle jointly owned by defendant’s wife). Other state statutes contain express exceptions for a variety of innocent parties: Ariz. Rev. Stat. § 13-4304(1)-(2), (4)-(5) (common carriers; owners whose vehicles were “unlawfully in the possession of a person other than the owner” during commission or omission of an act; owners who “did not know and could not reasonably have known of the act or omission”; and bona fide purchasers for value “not knowingly taking part in an illegal transaction” and “reasonably without notice of the act or omission giving rise to forfeiture”); Cal. Health & Safety Code §§ 11470(e)-(h) (persons other than defendant with a community property interest in the vehicle; bona fide purchasers and encumbrancers), 11488.5(e) (owners who did not have “actual knowledge that the seized property would be or was used for a purpose for which forfeiture is permitted and consented to that use”); Fla. Stat. § 932.703(6)-(7) (spouses, lienholders, lessors, joint owners, and other parties lacking knowledge of the criminal activity alleged); N.J. Stat. Ann. § 2C:64-5(a)-(b) (unwitting lessors and security-interest holders; owners who show that they were “not involved in or aware of the unlawful activity and . . . had done all that could reasonably be expected to prevent the proscribed use of the property by an agent”); La. Rev. Stat. Ann. § 14:98(D)(2)(b) (unwitting owners; owners of stolen vehicles); Minn. Stat. § 169A.63(7) (unwitting owners, bona fide security-interest holders, and lessors). Notably, New York state civil forfeiture statutes 25
19

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this action seek only a prompt and effective means to test the legitimacy of and justification for the City’s retention of their vehicles following the seizure but prior to the forfeiture proceeding, we have no occasion to rule on the constitutionality of the seizure provision itself. Nevertheless, the scope of the police seizure authority granted under § 14-140(b), together with the City’s “direct pecuniary interest in the outcome of the proceeding,” James Daniel Good Real Prop., 510 U.S. at 55-56, further convinces us of the need to provide a prompt opportunity for independent and neutral judicial review of the probable validity of the City’s retention of vehicles pendente lite.20

likewise provide a defense for innocent owners. See N.Y. C.P.L.R. 1311(4)(d)(ii)-(iii) (innocent persons subject to “adverse impact of a forfeiture”; defendants acquitted of the underlying crime), 1311(3)(b)(iv) (non-criminal defendants who either did not know “that the instrumentality was or would be used in the commission of a crime” or did not knowingly obtain an “interest in the instrumentality to avoid forfeiture”). In Property Clerk v. Ferris, 77 N.Y.2d 428, 431, 568 N.Y.S.2d 577, 579 (1991), the New York Court of Appeals stated that the “interests of justice” exception in N.Y. C.P.L.R. 1311 “is ‘unique’ . . . and nothing in the article suggests that it applies in the limited forfeiture proceedings available pursuant to Administrative Code § 14-140”; see also Property Clerk v. Deans Overseas Shippers, Inc., 275 A.D.2d 204, 205-06, 712 N.Y.S.2d 492, 493 (1st Dep’t 2000) (same). Moreover, in contrast to § 14-140, the primary federal civil drug forfeiture statute, 21 U.S.C. § 881, contained an express “innocent owner” defense, which stated that “no conveyance shall be forfeited . . . to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge, consent, or willful blindness of the owner.” 21 U.S.C. § 881(a)(4)(C). Replacing this provision, the Civil Asset Forfeiture Reform Act of 2000, Pub. L. No. 106-185, 114 Stat. 202 (codified as amended at 18 U.S.C. § 983), creates a uniform innocent owner defense whereby a claimant may affirmatively prove innocent ownership by a preponderance of the evidence. 18 U.S.C. § 983(d). The statute specifically mentions owners who “did not know of the conduct giving rise to forfeiture”; bona fide purchasers or sellers for value; claimants who acquired a property interest through marriage, divorce, or legal separation; spouses or legal dependents who acquired property by inheritance or probate; and joint tenants and others with a partial interest in property. In contrast, for orders of attachment granted without notice under New York state civil forfeiture law, contained at N.Y. C.P.L.R. art. 13-A, the claiming authority must move for a hearing within five days of the seizure. N.Y. C.P.L.R. 1317, 1329 (providing for ex parte attachment of assets for five days, after which the attaching authority must move for an order 26
20

In sum, there is a heightened potential for erroneous retention where an arrestee, whether for DWI or some other suspected criminal conduct, is not the owner of the seized vehicle. The plight of innocent owners, as exemplified by the experience of plaintiff Sandra Jones, persuades us that an early retention hearing following seizure under N.Y.C. Code § 14140 is constitutionally required. 3. Other Suggested Remedies Do Not Provide Prompt Post-Seizure Review.

In prosecuting vehicle forfeiture actions under N.Y.C. Code § 14-140, the City has consistently opposed motions for interim relief in the form of a retention hearing. For example, in its Memorandum of Law opposing a motion for an “immediate retention hearing” in the case of Property Clerk v. Ali, the City stated that under the CPLR there is no basis upon which defendant can even make this motion. Likewise, the CPLR does not provide for such a hearing. Defendant has circumvented the traditional rules of civil procedure by asking this court to entertain, and plaintiff to defend, against a motion that has no legal basis and a hearing that would clearly be improper under the rules. Memorandum of Law in Support of Plaintiff’s Opposition to an Immediate Retention Hearing, at 12, Property Clerk v. Ali, No. 413408/99 (Sup. Ct. N.Y. Co.). In Ali, as here, the City maintained that due process was satisfied by a resolution of the merits at the eventual civil

confirming the attachment and permitting the defendant to challenge the attachment, with the burden of proof on the attaching authority to establish the grounds for the attachment, its need, and the probability of success on the merits). In upholding these provisions against doubts as to the constitutionality under the Fourteenth Amendment of ex parte pre-judgment attachment, the New York Court of Appeals relied, inter alia, on available means to challenge promptly the basis for the attachment. Morgenthau v. Citisource, Inc., 68 N.Y.2d 211, 222, 508 N.Y.S.2d 152, 157 (1986). N.Y. C.P.L.R. art. 13-A “does not limit or supersede” N.Y.C. Code § 14-140, however, and applies only to felonies and therefore has been held not to apply to forfeitures under § 14140. Grinberg, 181 Misc. 2d at 449, 694 N.Y.S.2d at 320-21 (quotation marks omitted). 27

forfeiture hearing. Nevertheless, defendants here suggest that plaintiffs may assert their constitutional rights and challenge the City’s continued retention of their vehicles through the procedural means of a Request for Judicial Intervention (“RJI”) or an Article 78 proceeding brought under New York state law. We disagree. Under current law, any review of the legitimacy of the City’s continued retention of a vehicle would likely come, at the earliest, months after its seizure. This delay is a result, first, of the City’s need to initiate forfeiture proceedings. Assuming that a claimant requests the return of the property immediately upon seizure by the police, the City has twenty-five days in which to initiate proceedings. Only after a civil forfeiture proceeding is commenced and process is served can an owner submit a RJI. See 22 N.Y. Comp. Codes R. & Regs. § 202.6(a). Along with the RJI, a claimant files a request for a preliminary conference. See id. § 202.12(a) (“If the action has not been assigned to a judge, the party shall file a request for judicial intervention together with the request for a preliminary conference.”). Under the New York rules, a “preliminary conference” is held no later than fortyfive days from the request “unless the court orders otherwise.” Id. § 202.6(b). The rules do not explicitly permit a determination of probable cause or the legitimacy of continued retention at the preliminary conference, or even provide for the taking of evidence, indicating that, at most, the preliminary conference may serve (as plaintiffs suggest) to set a future date for a probable cause hearing.21 Under the current rules, therefore, any determination of probable cause for the initial

The New York court rules include among “matters to be considered” at the conference the simplification of issues, setting a schedule for discovery, addition of necessary parties, and settlement, 22 N.Y. Comp. Codes R. & Regs. § 202.12(c)(1)-(4), and “any other matters that the court may deem relevant,” id. § 202.12(c)(5). 28

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seizure or the legitimacy of continued deprivation might come sometime within three months after the seizure, or perhaps much later.22 The Fourth and Fourteenth Amendments demand a more expeditious determination of a vehicle owner’s rights. The City also suggests that an Article 78 proceeding under New York state law is available to claimants to redress any constitutional grievances. Requiring plaintiffs to resort to an Article 78 proceeding, however, would place the onus on each plaintiff to bring a separate civil action in order to force the City to justify its seizure and retention of a vehicle. This civil action provides the “[r]elief previously obtained by writs of certiorari to review, mandamus or prohibition.” N.Y. C.P.L.R. 7801. To petition for mandamus, a claimant would have the burden of showing a clear legal right to the release of his or her vehicle. See Ass’n of Surrogate & Sup. Ct. Reporters v. Bartlett, 40 N.Y.2d 571, 574, 388 N.Y.S.2d 882, 884 (1976) (“[P]etitioners’ success in this proceeding in the nature of mandamus requires a showing of a clear legal right to the relief sought.”) (quotation marks omitted). The City cites Grinberg v. Safir as proof that relief is currently available in an Article 78 proceeding. To challenge the City’s forfeiture proceeding and retention of his vehicle, the petitioner in Grinberg filed an Article 78 action and, with it, a request for a temporary restraining order. Although the court held argument only two days after the action was filed, it denied the temporary restraining order, observing that “[l]ikely inconvenience is not proof of immediate and irreparable injury,” Grinberg, 181 Misc. 2d at 447 n.1, 694 N.Y.S.2d at 320 n.1, and eventually decided the case in favor of the City more than two months later.

Plaintiffs have represented that, in the New York Supreme Court, First Judicial Department, Civil Branch, all forfeiture actions under N.Y.C. Code § 14-140 are assigned to the same judge, making further delays likely. 29

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In sum, we conclude that the suggested remedy of an Article 78 proceeding does not provide a prompt and effective means for claimants to challenge the legitimacy of the City’s retention of their vehicles pendente lite. Cf. Fuentes, 407 U.S. at 80 (finding unconstitutional a Pennsylvania statute that “allows a post-seizure hearing if the aggrieved party shoulders the burden of initiating one”). Furthermore, inasmuch as plaintiffs claim that the federal Constitution requires the state court to offer a remedy that is currently not available under state or local law, this constitutional challenge need not proceed through the state court before it reaches the federal courts. See Kraebel v. N.Y. City Dep’t of Hous. Pres. & Dev., 959 F.2d 395, 404-06 (2d Cir. 1992) (addressing the claim that an Article 78 proceeding provided all the process plaintiff was due, and finding that “[i]t is well-established that [42 U.S.C.] § 1983 generally allows plaintiffs with federal or constitutional claims the right to sue in federal court without first resorting to state judicial remedies”); cf. Logan, 455 U.S. at 432 (“Each of our due process cases has recognized, either explicitly or implicitly, that because minimum procedural requirements are a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action.”) (quotation marks and alterations omitted). IV. The Mathews v. Eldridge Inquiry The Supreme Court has set forth three factors to weigh in deciding whether the demands of the Due Process Clause are satisfied where the government seeks to maintain possession of property before a final judgment is rendered. See Mathews, 424 U.S. at 335. These factors should be used to evaluate the adequacy of process offered in post-seizure, prejudgment deprivations of property in civil forfeiture proceedings. Cf. James Daniel Good Real

30

Prop., 510 U.S. at 53 (finding that the Mathews inquiry “provides guidance” in determining whether to “tolerate” an exception to the rule requiring pre-deprivation notice and hearing). The factors include (1) the private interest affected; (2) the risk of erroneous deprivation through the procedures used and the value of other safeguards; and (3) the government’s interest. A. The Private Interest Affected

The first factor to be considered in the Mathews inquiry is “the private interest affected by the official action.” Mathews, 424 U.S. at 335. The deprivation of real or personal property involves substantial due process interests. See James Daniel Good Real Prop., 510 U.S. at 53-54 (recognizing that “Good’s right to maintain control over his home, and to be free from governmental interference, is a private interest of historic and continuing importance”); id. at 81 (Thomas, J., concurring in part and dissenting in part) (agreeing with the majority that “[i]ndividual freedom finds tangible expression in property rights”); Doehr, 501 U.S. at 11 (“[T]he property interests that attachment affects are significant.”); Fuentes, 407 U.S. at 70-71 (holding that loss of household furniture and appliances warrants a pre-deprivation hearing). The particular importance of motor vehicles derives from their use as a mode of transportation and, for some, the means to earn a livelihood. An “individual has an important interest in the possession of his [or her] motor vehicle,” which is “often his [or her] most valuable possession.” Lee, 538 F.2d at 31; see also Perry v. McDonald, 280 F.3d 159, 174 (2d Cir. 2001) (noting that an individual’s interest in driving a vehicle represents a due process concern); Coleman v. Watt, 40 F.3d 255, 260-61 (8th Cir. 1994) (stating, in the course of applying the Mathews factors to impoundment of a car under state law, that “[a]utomobiles occupy a central place in the lives of most Americans, providing access to jobs, schools, and

31

recreation as well as to the daily necessities of life”); Stypmann v. City & County of San Francisco, 557 F.2d 1338, 1342-43 (9th Cir. 1977) (finding a “substantial” interest in the “uninterrupted use of an automobile,” upon which the owner’s “ability to make a living” may depend); cf. Justice Robert H. Jackson, The Task of Maintaining Our Liberties: The Role of the Judiciary, 39 A.B.A.J. 961, 963 (1953) (“My equal right to drive an automobile may be only a claim to use of property, but it concerns my personal freedom as well.”). Other considerations as well bear on the importance of the private interest at stake. One is the availability of hardship relief under the applicable law. Cf. Dixon v. Love, 431 U.S. 105, 113 (1977) (noting the availability, under an Illinois statute, of provisions for “hardship and for holders of commercial licenses, who are those most likely to be affected by the deprival of driving privileges”). Under the New York City Civil Administrative Code, no provision is made for situations in which the seizure and retention of a vehicle would cause particular hardship. See N.Y.C. Code § 14-140 (authorizing seizure of all property used as an instrumentality of crime).23 Another consideration is the length of deprivation, which increases the weight of an owner’s interest in possessing the vehicle. See Logan, 455 U.S. at 434 (noting

In contrast, a provision of the federal civil forfeiture statute allows release of property pendente lite under certain circumstances, including when “continued possession by the Government . . . will cause substantial hardship to the claimant, such as preventing the functioning of a business, preventing an individual from working, or leaving an individual homeless; [and] the claimant’s likely hardship . . . outweighs the risk that the property will be destroyed, damaged, lost, concealed, or transferred if it is returned to the claimant during the pendency of the proceeding.” 18 U.S.C. § 983(f)(1)(C)-(D). Similarly, N.Y. C.P.L.R. 1311(4)(d) permits the dismissal or mitigation of a forfeiture action “in the interests of justice”—for example, in light of “the seriousness and circumstances of the crime to which the property is connected relative to the impact of forfeiture of property upon the person who committed the crime.” As noted earlier, however, N.Y. C.P.L.R. 1311 does not apply to “the limited forfeiture proceedings available pursuant to Administrative Code § 14-140.” Ferris, 77 N.Y.2d at 431, 568 N.Y.S.2d at 579. 32

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the Court’s concern under Mathews for “the importance of the private interest and the length or finality of the deprivation”). As noted above, the City retains seized vehicles for months or sometimes years before the merits of a forfeiture action are addressed. Finally, the importance of the claimant’s possessory interest post-seizure and pre-judgment is not diminished by the likelihood that the government will eventually prevail in forfeiture proceedings. See James Daniel Good Real Prop., 510 U.S. at 62 (“Fair procedures are not confined to the innocent. The question before us is the legality of the seizure, not the strength of the Government’s case.”); Fuentes, 407 U.S. at 87 (“The right to be heard does not depend upon an advance showing that one will surely prevail at the hearing.”). For these reasons, we cannot agree with the district court’s cursory assessment of the interest at stake based solely on its observation that the seizure of the vehicles occurred “in a jurisdiction that abounds in mass transit facilities.” Krimstock, 2000 WL 1702035, at *6. The seizure authority under the statute extends not only to cars registered in New York City, but to any found there; it also encompasses commercial as well as noncommercial vehicles. If the named class members serve as any indication, motor vehicle use is often found among those for whom mass transportation is inadequate. Valerie Krimstock, for example, states that the seizure of her vehicle hindered her from traveling from her residence in the Bronx to her job in North Tarrytown and from visiting her daughter who suffers from mental illness and lives in Pennsylvania. The seizure and retention of Clarence Walters’ vehicle made it difficult, he reports, to reach his construction job sites—some located in areas of Long Island or New Jersey inaccessible by mass transit—and as a consequence he lost a certain amount of work. James Webb, a 77-year-old retiree, states that the seizure and retention of his vehicle made it difficult

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for him and his wife to see their doctors and to visit friends, and prevented him from driving his granddaughter to school. B. The Risk of Erroneous Deprivation Through the Procedures Used and the Probable Value of Other Safeguards

The second factor to be considered under the Mathews test is “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.” Mathews, 424 U.S. at 335. The particular deprivation with which we are concerned here is the City’s post-seizure, pre-judgment retention of plaintiffs’ vehicles. The district court concluded that the procedures used by the City—a warrantless arrest and the ultimate forfeiture proceeding—adequately protect plaintiffs against erroneous deprivation of their vehicles. Krimstock, 2000 WL 1702035, at *6-*7. We are troubled by this conclusion. Neither the arresting officer’s unreviewed probable cause determination nor a court’s ruling in the distant future on the merits of the City’s forfeiture claim can fully protect against an erroneous deprivation of a claimant’s possessory interest as his or her vehicle stands idle in a police lot for months or years. Nevertheless, we conclude that, on balance, the second Mathews factor weighs in favor of the City. We acknowledge that the risk of erroneous seizure and retention of a vehicle is reduced in the case of a DWI owner-arrestee, because a trained police officer’s assessment of the owner-driver’s state of intoxication can typically be expected to be accurate. See People v. Bennett, 238 A.D.2d 898, 899, 660 N.Y.S.2d 772, 774 (4th Dep’t 1997) (holding that the court properly “instruct[ed] jurors that the police officers were experts in determining a person’s state of intoxication”). Yet the City’s victory on the second Mathews factor is a narrow one. As noted 34

earlier, the risk of erroneous deprivation that is posed to innocent owners is a substantial one. Moreover, our inquiry into the risk of error is partly informed by the City’s pecuniary interest in the outcome of § 14-140 proceedings. As the Supreme Court has observed, greater procedural safeguards are “of particular importance . . . where the Government has a direct pecuniary interest in the outcome of the proceeding.” James Daniel Good Real Prop., 510 U.S. at 55-56; cf. United States v. Funds Held in the Name or for the Benefit of Wetterer, 210 F.3d 96, 110 (2d Cir. 2000) (“We have previously observed the government’s ‘virtually unchecked use of the civil forfeiture statutes and the disregard for due process that is buried in those statutes.’”) (quoting United States v. Statewide Auto Parts, Inc., 971 F.2d 896, 905 (2d Cir. 1992)).24 Under the City’s Administrative Code, property found to have “been used as a means of committing crime or employed in aid or in furtherance of crime” may, at the discretion of the police commissioner, “be used or converted to use for the purpose of the [police] department or any city, state or federal agency.” N.Y.C. Code § 14-140(e)(2); see also Hyne, 147 Misc. 2d at 780, 557 N.Y.S.2d at 248 (noting that the forfeiture law’s “remedial purposes” include the fact that “revenue is generated and applied toward the cost of law enforcement”).25

On several occasions, the Second Circuit has stressed that “[f]orfeiture is a harsh and oppressive procedure which is not favored by the courts.” United States v. $31,990 in U.S. Currency, 982 F.2d 851, 856 (2d Cir. 1993) (quotation marks omitted); cf. United States v. Lasanta, 978 F.2d 1300, 1305 (2d Cir. 1992) (“While congress may have intended civil forfeiture to be a powerful weapon in the war on drugs, it would, indeed, be a Pyrrhic victory for the country, if the government’s relentless and imaginative use of that weapon were to leave the constitution itself a casualty.”) (internal quotation marks and citations omitted), abrogated on other grounds, Florida v. White, 526 U.S. 559 (1999). Some state statutes expressly admonish against governmental opportunism in seizing and forfeiting property. See Cal. Health & Safety Code § 11469(a) (“Law enforcement is the principal objective of forfeiture. Potential revenue must not be allowed to jeopardize the effective investigation and prosecution of criminal offenses, officer safety, the integrity of 35
25

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The Supreme Court has expressed additional concern when, as here, the “erroneous deprivation” cannot be recompensed by the claimant’s prevailing in later proceedings: [T]he availability of a postseizure hearing may be no recompense for losses caused by erroneous seizure. Given the congested civil dockets in federal courts, a claimant may not receive an adversary hearing until many months after the seizure. And even if the ultimate judicial decision is that the claimant was an innocent owner, or that the Government lacked probable cause, this determination, coming months after the seizure, “would not cure the temporary deprivation that an earlier hearing might have prevented.” James Daniel Good Real Prop., 510 U.S. at 56 (quoting Doehr, 501 U.S. at 15); cf. Shapiro, 424 U.S. at 629 (noting that where irreparable injury may result from a deprivation of property pendente lite, “the Due Process Clause requires . . . an opportunity for some kind of predeprivation or prompt post-deprivation hearing at which some showing of the probable validity of the deprivation must be made”). In contrast, for example, to benefits for which full retroactive relief is awarded if a plaintiff ultimately prevails, see, e.g., Mathews, 424 U.S. at 340, an owner cannot recover the lost use of a vehicle by prevailing in a forfeiture proceeding. The loss is felt in the owner’s inability to use a vehicle that continues to depreciate in value as it stands idle in the police lot. Cf. Property Clerk v. Duck Jae Lee, 183 Misc. 2d 360, 363, 702

ongoing investigations, or the due process rights of citizens.”); id. § 11469(f) (“Seizing agencies shall avoid any appearance of impropriety in the sale or acquisition of forfeited property.”); Fla. Stat. § 932.704(1) (“It is the policy of this state that law enforcement agencies shall utilize the provisions of the Florida Contraband Forfeiture Act to deter and prevent the continued use of contraband articles for criminal purposes while protecting the proprietary interests of innocent owners and lienholders and to authorize such law enforcement agencies to use the proceeds collected . . . as supplemental funding for authorized purposes. The potential for obtaining revenues from forfeitures must not override fundamental considerations . . . . It is also the policy of this state that law enforcement agencies ensure that, in all seizures made under [the Act], their officers adhere to federal and state constitutional limitations regarding an individual’s right to be free from unreasonable searches and seizures . . . .”). 36

N.Y.S.2d 792, 795 (Sup. Ct. N.Y. Co. 2000) (permitting a secured lender to intervene in a vehicle forfeiture proceeding brought against a DWI arrestee who had defaulted on monthly car payments, so that “the value of the subject car will not continue to depreciate if plaintiff lets the action languish”). In sum, because we recognize that the risk of erroneous deprivation in the context of DWI owner-arrestees is in many cases a reduced one, we conclude that the second Mathews factor weighs in favor of the City. The scales are very nearly in equipoise, however, in light of the comparably greater risk of error that is posed to innocent owners, the City’s direct pecuniary interest in the outcome of forfeiture proceedings, and the lack of adequate recompense for losses occasioned by erroneous seizures of vehicles. C. The Government’s Interest

The third Mathews factor examines “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335. The City argues that it has three principal interests in continuing to retain the vehicles post-seizure and pre-judgment. The first, and the most compelling among those the City has adduced, is to prevent a vehicle from being sold or destroyed before a court can render judgment in future forfeiture proceedings. The City cites Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974), for the proposition that when property is easily transportable to another jurisdiction, the City must retain custody pending resolution of the forfeiture proceedings. The Supreme Court, indeed, recognized that immediate seizure was necessary in Calero-Toledo because otherwise the yacht at issue “might have disappeared had the Government given advance warning

37

of the forfeiture action.” James Daniel Good Real Prop., 510 U.S. at 57. We note initially that the Puerto Rican statute under which the yacht in Calero-Toledo was seized and forfeited provided that notice of the seizure must be served upon interested parties within ten days following the seizure and that those parties have fifteen days following service within which to challenge the seizure by serving a complaint on the confiscating officer. The complaint, filed in the Superior Court, “shall be heard without subjection to docket.” 34 P.R. Laws Ann. § 1722(a) (repealed 1988). In Calero-Toledo, the yacht was automatically forfeited when no challenge was made to the seizure within fifteen days after service of the notice of seizure. Calero-Toledo, 416 U.S. at 668. The critical difference between Calero-Toledo and the present case is that plaintiffs’ vehicles have already been seized and are in the hands of the police. Just as with real property seized by the government in forfeiture proceedings, there is no danger that these vehicles will abscond. See James Daniel Good Real Prop., 510 U.S. at 56-57 (discussing the need for seizure of movable property). Plaintiffs seek a determination only of whether continued retention of their vehicles by the City is valid and justified. Continued retention may be unjustified when other means of restraint would accomplish the City’s goals. See id. at 59 (“In the usual case, the Government . . . has various means, short of seizure, to protect its legitimate interests” in forfeitable property). To ensure that the City’s interest in forfeitable vehicles is protected, claimants could post bonds, or a court could issue a restraining order to prohibit the sale or destruction of the vehicle. See id. at 58-59 (suggesting judicial means to ensure that real

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property is not sold or destroyed pendente lite).26 The need to prevent forfeitable property from being sold or destroyed during the pendency of proceedings does not necessarily justify continued retention of all vehicles when other means of accomplishing those goals are available. A bond is in some respects a superior form of security because it entails no storage costs or costs of sale. A second reason offered by the City for maintaining custody of vehicles prior to judgment in forfeiture proceedings is that the City’s in rem jurisdiction over the vehicles depends upon its unbroken possession from seizure to judgment. The Supreme Court has held, however, that possession of a res during the entire course of the proceedings is unnecessary to preserve jurisdiction. See Republic Nat’l Bank of Miami v. United States, 506 U.S. 80, 88-89 (1992) (“We hold that, in an in rem forfeiture action, the Court of Appeals is not divested of jurisdiction by the prevailing party’s transfer of the res from the district.”). Noting that the in rem rules had their origin in admiralty law, where a court established its jurisdiction by seizure, the Supreme Court found that “the court must have actual or constructive control of the res when an in rem forfeiture is initiated.” Id. at 87 (emphasis added); cf. The Palmyra, 25 U.S. (12 Wheat.) 1, 10 (1827) (Story, J.) (“Whenever a stipulation [bond] is taken in an admiralty suit, for the property subjected to legal process and condemnation, the stipulation is deemed a mere substitute for the thing itself, and the stipulators liable to the exercise of all those authorities on the part of the

We note that in contrast to the forfeiture statute at issue in the present case, the Puerto Rican statute in Calero-Toledo required that seized motor vehicles be appraised for their monetary value by the Office of Transportation and that plaintiffs “have the right to give bond . . . to answer for the seizure if the lawfulness of the latter is upheld.” 34 P.R. Laws Ann. § 1722(b) (repealed 1988). 39

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Court, which it could properly exercise if the thing itself were still in its custody.”).27 The final interest adduced by the City is the need to prevent the offending res—here, the seized vehicle—from being used as an instrumentality in future acts of driving while intoxicated. Of course, at the time of initial seizure and retention the “offending res” is only an allegedly offending res, inasmuch as the owner’s or owner-arrestee’s misconduct in connection with the instrumentality has yet to be established in either a criminal or a civil proceeding. Moreover, although the Supreme Court has found that certain situations of “executive urgency,” James Daniel Good Real Prop., 510 U.S. at 60, call for action that dispenses with normal due process guarantees, this case does not fall within that narrow category. In defining situations of “executive urgency,” the Court has provided the examples of summary seizures during wartime, seizures of contaminated food, and, formerly, the collection of taxes when the very existence of the government depended upon them. See id. at 59-60. To take one example, the Court allowed the seizure, without prior judicial process, of forty-seven barrels of poultry from a Chicago food storage warehouse after city inspectors determined they were “putrid, decayed, poisonous, or infected in such a manner as to render it unsafe or unwholesome for human food.” N. Am. Cold Storage Co v. City of Chicago, 211 U.S. 306, 308 (1908). The threat to the public was immediate, and the spoiled poultry, like contraband, was unlikely to be used for some other legitimate purpose. Motor vehicles, in contrast, present no such threat and maintain their usefulness. Cf. Austin v. United States, 509 U.S. 602, 621 (1993) (“‘There is nothing even remotely criminal in possessing an automobile.’”) (quoting One 1958 Plymouth

In addition, we note that the City does not caption these civil forfeiture actions as proceedings in rem. Instead, they are styled as in personam actions—for example, Property Clerk v. Ismael Delapaz. 40

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Sedan v. Pennsylvania, 380 U.S. 693 (1965)). In James Daniel Good Real Property, for example, the Supreme Court found that enforcement of the drug forfeiture laws did not present “a plausible claim of urgency” strong enough to dispense with normal due process guarantees. James Daniel Good Real Prop., 510 U.S. at 61. Even if driving while intoxicated were considered a matter of “executive urgency,” the response the City has chosen, requiring the impoundment of vehicles until forfeiture proceedings are terminated, is ill-suited to address the urgency. While initial seizure of a vehicle serves the constructive purpose of keeping an individual from driving in an inebriated condition, that purpose often loses its basis in urgency once the individual has regained sobriety on the morrow.28 Furthermore, the remedy of continued impoundment leaves the alleged offender free to drive while intoxicated in any other vehicle when the opportunity presents itself, while depriving some potentially innocent owners of the often indispensable benefits of daily access to their vehicles. Finally, the City’s asserted interest in removing dangerous drivers from the road is weakened if it extends not to all vehicles seized in connection with DWI arrests, but only to those that might yield an attractive price at auction. The November 1988 Forfeiture Guide produced by the Legal Bureau of the City of New York Police Department instructs that “[c]ertain categories of property do not warrant forfeiture litigation due to their small value or the near impossibility of a successful outcome,” including “[n]on-owner operated vehicles ten years old or older,” unless, inter alia, “the vehicle has a special value, e.g., an expensive import.” 1988 Forfeiture

A claimant’s proven history of persistent drunkenness or repeated DWI violations, however, might justify a fact-finder in denying release of the vehicle pendente lite. 41

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Guide, at 24-25. We do not know whether this passage reflects current policy, but we note that the City’s interest in safety cannot be paramount if it seeks to remove from the road only a lucrative subset of the vehicles seized from intoxicated drivers. D. Balancing the Mathews v. Eldridge Factors

Balancing the Mathews factors, we find that the Fourteenth Amendment guarantee that deprivations of property be accomplished only with due process of law requires that plaintiffs be afforded a prompt post-seizure, pre-judgment hearing before a neutral judicial or administrative officer to determine whether the City is likely to succeed on the merits of the forfeiture action and whether means short of retention of the vehicle can satisfy the City’s need to preserve it from destruction or sale during the pendency of proceedings. In James Daniel Good Real Property, the Supreme Court concluded that to seize real property without notice and hearing, the “Government must show that less restrictive measures—i.e., a lis pendens, restraining order, or bond—would not suffice to protect the Government’s interests in preventing the sale, destruction, or continued unlawful use of the real property.” James Daniel Good Real Prop., 510 U.S. at 62; cf. Statewide Auto Parts, 971 F.2d at 905 (urging district courts “whenever possible . . . [to] favor less drastic measures, such as occupancy agreements, bonds, receiverships, lis pendens, or other means for preserving the status quo ante seizure until the criminality underlying the claimed forfeiture can be established in the context of a proper criminal proceeding with its attendant constitutional protections to the accused”).29 Here, once the vehicles have been seized, and concerns for establishing jurisdiction

In Statewide Auto Parts, this Court considered a due process challenge to the federal government’s seizure of real and personal commercial properties pursuant to an ex parte warrant and the federal civil forfeiture statute. Statewide Auto Parts, 971 F.2d at 898-99. In other cases 42

29

and immediate prophylactic custody are satisfied, we find that the Due Process Clause requires that claimants be given an early opportunity to test the probable validity of further deprivation, including probable cause for the initial seizure, and to ask whether other measures, short of continued impoundment, would satisfy the legitimate interests of the City in protecting the vehicles from sale or destruction pendente lite. Whether the vehicle is in the hands of the police the morning after it has been seized, as in this case, or whether James Daniel Good’s property is still in his hands the morning before the marshals arrive with a warrant, the question is what reason the government has for refusing to exercise some means short of continued retention after seizure to guarantee that property will be available to satisfy a civil forfeiture judgment.

involving seizure of real property, this Court has been careful to emphasize the value of less drastic means than seizure for protecting the government’s interest in forfeitable property. See, e.g., United States v. Premises & Real Property at 4492 South Livonia Road, Livonia, N.Y., 889 F.2d 1258, 1265 (2d Cir. 1989) (“Any exigency that might be posed by the threat of an encumbrance on, or transfer of, the property may be met by less restrictive means than seizure, for example, by the filing of a lis pendens, as was done in this case, along with a restraining order or bond requirement.”); see also United States v. Puello, 814 F. Supp. 1155, 1164 (E.D.N.Y. 1993) (stating that, “[m]indful of [the Second Circuit’s] warning [to use less restrictive means than outright seizure], the Court has explored the possibility of these less drastic means with the parties.”); United States v. Joseph Health & Beauty Supply, 807 F. Supp. 323, 325 (S.D.N.Y. 1992) (permitting a claimant to occupy seized business premises for the conduct of lawful business pending trial, as a less restrictive measure than outright seizure of the leasehold under federal forfeiture law); cf. 18 U.S.C. § 983(f)(7), (j) (providing for restraining orders, injunctions, bonds and other means to preserve property during litigation); Supplemental Rules for Certain Admiralty and Maritime Claims, Rule E(4)(f) (providing, except where the United States is seeking forfeiture, for a “prompt hearing at which the plaintiff shall be required to show why the arrest or attachment [of property] should not be vacated or other relief granted consistent with these rules”); Fla. Stat. § 932.703(d) (providing that, if the court determines that probable cause exists to believe that property was used in violation of the state contraband forfeiture statute, “the court shall order the property restrained by the least restrictive means to protect against disposal, waste, or continued illegal use,” including such means as a “bond or other adequate security equivalent to the value of the property”). 43

E.

Inapplicability of United States v. $8,850 and the Speedy Trial Test

The City argues that the Mathews v. Eldridge balancing test is displaced by the Supreme Court’s decision to apply the speedy trial test, and not the Mathews inquiry, in examining the constitutionality of any delay in the return of property subject to future civil forfeiture proceedings. See United States v. $8,850, 461 U.S. 555 (1983) (applying the speedy trial test set forth in Barker v. Wingo, 407 U.S. 514 (1972), in finding that an eighteen-month delay in filing a customs forfeiture action did not violate constitutional due process guarantees). We disagree. As discussed in Section III.A above, plaintiffs’ claim does not concern the speed with which civil forfeiture proceedings themselves are instituted or conducted. Instead, plaintiffs seek a prompt post-seizure opportunity to challenge the legitimacy of the City’s retention of the vehicles while those proceedings are conducted. The application of the speedy trial test presumes prior resolution of any issues involving probable cause to commence proceedings and the government’s custody of the property or persons pendente lite, leaving only the issue of delay in the proceedings. The impoundment of property—or the incarceration of a criminal defendant—certainly increases the hardship worked by any delay. The Constitution, however, distinguishes between the need for prompt review of the propriety of continued government custody, on the one hand, and delays in rendering final judgment, on the other.30

We also note that this Court has observed, in the context of the federal forfeiture laws, that “under the Barker [speedy trial] test, which we think applies to the holding of the forfeiture trial as well as to the filing of the action, there is a due process violation at some point.” United States v. Banco Cafetero Panama, 797 F.2d 1154, 1163 (2d Cir. 1986). “The Government argues that, once an action is filed, delays of any length may be granted to allow completion of related criminal proceedings. To require prompt filing of a forfeiture action but allow indefinite postponement of the trial would reduce the filing requirement to a nullity.” Id. 44

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V.

The Prompt Vehicle Retention Hearing As a remedy, we order that claimants be given a prompt post-seizure retention

hearing, with adequate notice,31 for motor vehicles seized as instrumentalities of crime pursuant to N.Y.C. Code § 14-140(b).32 There is no universal approach to satisfying the requirements of meaningful notice and opportunity to be heard in a situation such as this. See Fuentes, 407 U.S. at 96 (acknowledging that the “nature and form of [fair prior hearings] are legitimately open to many potential variations”); cf. Green v. County Sch. Bd., 391 U.S. 430, 439 (1968) (“There is no universal answer to the complex problems of desegregation; there is obviously no one plan that will do the job in every case.”); Int’l Salt Co. v. United States, 332 U.S. 392, 400-01 (1947) (“The framing of decrees should take place in the District rather than in Appellate Courts. They are invested with large discretion to model their judgments to fit the exigencies of the particular case.”). Moreover, the cost of additional procedures and the details of their implementation are matters peculiarly suited to the experience of the district court and the knowledge of the parties. Therefore, as we did in McClendon, 460 F.2d at 116, we leave it to the district court, in

Pursuant to 38-A R.C.N.Y. § 12-32, the voucher issued to an arrestee by the police upon arrest and seizure must notify the arrestee of procedures for demanding the return of property and the possible actions that the Property Clerk may take after the demand has been made. See also Butler v. Castro, 896 F.2d 698, 702 (2d Cir. 1990) (“[A] voucher must be given to an arrestee for non-contraband property seized [and] must also give notice of the procedures to be followed to recover such property.”). Adequate notice of the right to a post-seizure retention hearing could readily be added to this information. This procedure may not be adequate, however, where the arrestee and the vehicle owner are not the same person. We note that both parties appear to agree that plaintiffs’ vehicles were not seized as “arrest evidence” pursuant to N.Y.C. Code § 14-140(b) but rather as instrumentalities of crime. According to the City: “The seven named plaintiffs [have had their vehicles] impounded and held by the Property Clerk for forfeiture, because they were used in furtherance of a crime.” In any event, it is hard to imagine how an arrestee’s vehicle could serve as evidence in the ordinary DWI case. 45
32

31

consultation with the parties, to fashion appropriate procedural relief consistent with this opinion. See Fuentes, 407 U.S. at 97 n.33 (“Leeway remains to develop a form of hearing that will minimize unnecessary cost and delay while preserving the fairness and effectiveness of the hearing . . . .”); cf. United States v. City of Yonkers, 197 F.3d 41, 57 (2d Cir. 1999) (noting that a district court has “broad equitable discretion to apportion remedial costs” in desegregation cases). Although we decline to dictate a specific form for the prompt retention hearing, we hold that, at a minimum, the hearing must enable claimants to test the probable validity of continued deprivation of their vehicles, including the City’s probable cause for the initial warrantless seizure. In the absence of either probable cause for the seizure or post-seizure evidence supporting the probable validity of continued deprivation, an owner’s vehicle would have to be released during the pendency of the criminal and civil proceedings. We hasten to point out that we do not envision the retention hearing as a forum for exhaustive evidentiary battles that might threaten to duplicate the eventual forfeiture hearing.33 Inasmuch as the purpose of the hearing is the limited one of determining whether the

For example, we do not expect that these limited hearings will resemble the sometimes prolonged pretrial hearings that district courts in this Circuit have conducted to address probable cause for the government’s seizure of property under federal forfeiture laws. See, e.g., Names Registry Publ’g, 68 F.3d at 579 (noting that the district court below had held a two-day pretrial hearing to examine probable cause for an ex parte seizure of bank funds under federal forfeiture law); Daccarett, 6 F.3d at 45 (three-day pretrial evidentiary hearing to examine probable cause for seizure of electronic transfer funds under federal forfeiture law); Statewide Auto Parts, 971 F.2d at 900 (oral argument followed by further written evidentiary submissions on the issue of probable cause to seize real and personal commercial properties under federal forfeiture law); see also In re Seizure of All Funds in Accounts in Names Registry Publ’g, Inc., 887 F. Supp. 435, 449 (E.D.N.Y.) (“[I]f a claimant challenges the validity of a seizure, . . . then the merits of the forfeiture trial are expedited and the government must establish probable cause for the forfeiture prior to the forfeiture trial.”), vacated on other grounds, 68 F.3d 577 (2d Cir. 1995). Unlike federal forfeiture actions, which often involve complex evidentiary issues, multiple parties and witnesses, and elaborate underlying criminal allegations, actions instituted against vehicle owners 46

33

vehicle should be returned to its owner during the pendency of proceedings, due process should be satisfied by an initial testing of the merits of the City’s case. In addition, the retention hearing will allow the court to consider whether less drastic measures than continued impoundment, such as a bond or a restraining order, would protect the City’s interest in the allegedly forfeitable vehicle during the pendency of proceedings. On remand, in addition to fashioning appropriate relief, the district court should ascertain how many of the named plaintiffs have recovered their vehicles from the Property Clerk and determine whether their claims have thereby been rendered moot.34 To the extent that mootness may affect the claims of any of the named plaintiffs, the court, in addressing the issue of class certification, should consider whether exceptions to the mootness doctrine preserve the

under the New York City forfeiture statute typically present relatively discrete, straightforward issues. At the time of oral argument before this Court, three of the seven named plaintiffs—Jones, Krimstock, and Walters—had recovered their vehicles. Inasmuch as plaintiffs primarily seek relief in the form of a preliminary injunction and class certification, the question arises whether the claims of some plaintiffs have been rendered moot, and this is a question that a court must address sua sponte. The Supreme Court has held in some cases, however, that “the termination of a class representative’s claim does not moot the claims of the unnamed members of the class. . . . That the class was not certified until after the named plaintiffs’ claims had become moot does not deprive us of jurisdiction. . . . In such cases, the ‘relation back’ doctrine is properly invoked to preserve the merits of the case for judicial resolution.” County of Riverside v. McLaughlin, 500 U.S. 44, 51-52 (1991) (internal quotation marks and citations omitted); see also Sosna v. Iowa, 419 U.S. 393, 402 n.11 (1975) (same); cf. United States Parole Comm’n v. Geraghty, 445 U.S. 388, 399 (1980) (“Some claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.”) (citing Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975)); Comer v. Cisneros, 37 F.3d 775, 798-99 (2d Cir. 1994) (noting that in some cases in which the claims of named plaintiffs have become moot prior to class certification, “the courts permit the class certification to relate back to the filing of the complaint and hold that the plaintiffs have properly preserved the merits of the case for judicial resolution”); Robidoux v. Celani, 987 F.2d 931, 938-39 (2d Cir. 1993) (same). 47
34

merits of the case for judicial resolution of the unnamed class members’ claims. CONCLUSION In conclusion, we hold that promptly after their vehicles are seized under N.Y.C. Code § 14-140 as alleged instrumentalities of crime, plaintiffs must be given an opportunity to test the probable validity of the City’s deprivation of their vehicles pendente lite, including probable cause for the initial warrantless seizure. We remand to the district court to rule on plaintiffs’ request to certify their class pursuant to Fed. R. Civ. P. 23, and to formulate, in consultation with the parties, the appropriate injunctive relief needed to redress the constitutional violations examined in this opinion. Vacated and remanded.

48

SOTOMAYOR, Circuit Judge, dissenting: The central issue in this case is whether the ne exeat provision in the Hong Kong custody order confers on either Mr. Croll or the Hong Kong court “rights of custody” within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention” or “Convention”). The majority concludes that it does not and, therefore, that the district court lacked jurisdiction to order Christina’s removal to Hong Kong. Interpreting the text of the Convention in light of its object and purpose, and taking into account the relevant case law in this area, I reach the opposite conclusion. In my view, the majority seriously misconceives the legal import of the ne exeat clause and, in so doing, undermines the Convention’s goal of “ensur[ing] that rights of custody . . . under the law of one Contracting State are effectively respected in the other Contracting States.” Hague Convention, art. 1, done Oct. 25, 1980, T.I.A.S. No. 11670 at 4, 1343 U.N.T.S. 89, 98, reprinted in 51 Fed. Reg. 10,494, 10,498 (1986), implemented by the International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. § 11601 et seq. I therefore respectfully dissent. The Hague Convention seeks “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.” Hague Convention, Preamble, 51 Fed. Reg. at 10,498. Significantly, the Convention draws a clear line between “rights of custody” and “rights of access,” reserving the remedy of return solely for breaches of the former. Compare Hague Convention, arts. 1, 3, id. (providing for the return of children removed or retained in violation of custody rights), with Hague Convention, art. 21, id. at 10,500 (providing that a party may petition for arrangements, short of the child’s return, to secure the effective exercise of

access rights). In this regard, the majority correctly observes that “an order of return is available only for wrongful removals or retentions, and removals or retentions are wrongful only if they are ‘in breach of rights of custody.’” Ante at [11] (quoting Hague Convention, art. 3, 51 Fed. Reg. at 10,498) (emphasis in original). Article 3 of the Convention provides that the removal or retention of a child is “wrongful” where: (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Hague Convention, art. 3, 51 Fed. Reg. at 10,498 (emphasis added). Thus, Mr. Croll cannot succeed in securing Christina’s return to Hong Kong unless he can demonstrate that her removal was “in breach of rights of custody” and, furthermore, that at the time of Christina’s removal from Hong Kong, those rights of custody “were actually exercised, either jointly or alone, or would have been so exercised but for the removal.” Hague Convention, art 3, id. For the reasons discussed below, I conclude that Christina’s removal to the United States was “wrongful” under the Convention because (1) it constituted a “breach of rights of custody” jointly held by Mr. Croll and the Hong Kong court, and (2) Mr. Croll would have exercised his custody rights under the ne exeat clause in the custody order but for Christina’s removal from Hong Kong.

2

I.

Was Christina Removed from Hong Kong “in Breach of Rights of Custody”? Under the terms of the Hong Kong custody order, Ms. Croll is vested with “[t]he

custody, care and control” of Christina,1 and Mr. Croll is vested with rights of “reasonable access.” Particularly relevant to this case, however, is the order’s further grant of rights to Mr. Croll under the ne exeat clause. The parties agree that under this provision, Ms. Croll may not remove Christina from Hong Kong without the consent of either Mr. Croll or the Hong Kong court.2 In other words, the ne exeat clause confers a veto power on Mr. Croll to block Christina’s international relocation, unless the Hong Kong court explicitly approves such removal. In essence, the ne exeat clause endows Mr. Croll with significant decisionmaking power: absent an order of the Hong Kong court to the contrary, he can require that Christina remain in Hong Kong or, alternatively, he can use his veto power as leverage to influence Ms. Croll’s selection of the destination country. Because Mr. Croll may not invoke the Convention’s return remedy based on his “reasonable access” rights, the issue in this case is whether he may secure Christina’s return under the Convention by virtue of his rights under the ne exeat clause.

The majority states that the custody order “confers the sole ‘custody, care and control’” upon Ms. Croll. Ante at [2] (emphasis added); see also id. at [18] (stating that “the custody order awards custody solely to the mother”) (emphasis added). However, nowhere does the Hong Kong court use the word “sole” or “solely” in connection with Ms. Croll’s custody rights. 2 The Hong Kong custody order also provides that “[e]ither parent may request the Immigration Department not to issue passports allowing the said child to go abroad without his/her knowledge.”
1

3

The majority mischaracterizes the issue as being a question of whether the ne exeat clause “transmute[s] access rights into custody rights under the Convention.” Ante at [28]. Clearly, the ne exeat clause works no such magic. In my view, the question presented is whether the ne exeat clause—wholly independent of Mr. Croll’s access rights—confers “rights of custody” under the Convention. The Convention’s text, object and purpose, as well as the relevant case law in this area, convincingly direct an answer in the affirmative.

A.

The Text, Object, and Purpose of the Convention The critical interpretive challenge in this case involves the definition of “rights of

custody” as used in the Convention. The majority begins this undertaking by surveying a host of American dictionaries to support its “intuition that custody is something other and more than a negative right or veto.” Ante at [14]. Relying on these sources, the majority finds that the “custody of a child entails the primary duty and ability to choose and give sustenance, shelter, clothing, moral and spiritual guidance, medical attention, education, etc., or the (revocable) selection of other people or institutions to give these things.” Ante at [15]. While traditional American notions of custody rights are certainly relevant to our interpretation of the Convention, the construction of an international treaty also requires that we look beyond parochial definitions to the broader meaning of the Convention, and assess the “ordinary meaning to be given to the terms of the treaty in their context and in the light of [the Convention’s] object and purpose.” Vienna Convention on the Law of Treaties, May 23, 1969, art. 31.1, 1155 U.N.T.S. 331, 340 (stating general rule on the interpretation of treaties); see

4

also Restatement (Third) of Foreign Relations Law § 325 (1987) (same). Contrary to the majority’s position that “[n]othing in the Hague Convention suggests that the drafters intended anything other than this ordinary understanding of custody,” ante at [15], the Convention and its official history reflect a notably more expansive conception of custody rights. The report containing the official history and commentary on the Convention clarifies that “the intention [of the Convention] is to protect all the ways in which custody of children can be exercised.” Elisa PérezVera, Explanatory Report to the Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session (Child Abduction) 426, para. 71 (1980) (emphasis in original) (“Pérez-Vera Report”). This broad notion of custody rights is also consistent with Article 3, which provides that “rights of custody” may arise from a variety of sources, including by “operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of [the child’s country of habitual residence].” Hague Convention, art. 3, 51 Fed. Reg. at 10,498. In this way, the Convention plainly favors “a flexible interpretation of the terms used, which allows the greatest possible number of cases to be brought into consideration.” Pérez-Vera Report, para. 67. Consequently, in determining whether the rights arising under a ne exeat clause constitute “rights of custody” under the Convention, I discern an intent of inclusion rather than exclusion, so as to effectuate the drafters’ goal of making the treaty applicable to all possible cases of wrongful removal.

5

Although the treaty does not generally define its legal terms, see Pérez-Vera Report, para. 83, the risk that “an incorrect interpretation of [custody and access rights] would . . . compromis[e] the Convention’s objects” led the drafters to include Article 5, which offers further guidance on the meaning of the term “rights of custody.” See Pérez-Vera Report, para. 83. I note, however, that the provision was left deliberately vague due to the drafters’ failure to agree on a more precise definition. See Pérez-Vera Report, para. 84 (“[S]ince all efforts to define custody rights in regard to [particular situations] failed, one has to rest content with the general description given [in the text].”). Article 5 provides that: For the purposes of this Convention – (a) “rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence; . . . Hague Convention, art. 5, 51 Fed. Reg. 10,498 (emphasis added); see also Pérez-Vera Report, para. 84 (noting that under Article 5, “rights of custody” include those rights relating to the care of the child, and that the Convention seeks to clarify this otherwise general definition “by emphasizing, as an example of the ‘care’ referred to, the right to determine the child’s place of residence.”). As I interpret the Convention, rights arising under a ne exeat clause include the “right to determine the child’s place of residence” because the clause provides a parent with decisionmaking authority regarding a child’s international relocation. Thus the ne exeat clause vests both Mr. Croll and the Hong Kong court with “rights of custody” for the purposes of the Convention. See Hague Convention, art. 5, 51 Fed. Reg. at 10,498.

6

A parent’s ne exeat rights fit comfortably within the category of custody rights the Convention seeks to protect. The Convention states at its outset that its object is, along with returning children wrongfully removed from their habitual residence, “to ensure that rights of custody . . . under the law of one Contracting State are effectively respected in the other Contracting States.” Hague Convention, art. 1, 51 Fed. Reg. at 10,498. The Pérez-Vera report explains that the problem with which the Convention deals . . . derives all of its legal importance from the possibility of individuals establishing legal and jurisdictional links [in the new country] which are more or less artificial. In fact, resorting to this expedient, an individual can change the applicable law and obtain a judicial decision favourable to him. [Such a decision] bears a legal title sufficient to ‘legalize’ a factual situation which none of the legal systems involved wished to see brought about. Pérez-Vera Report, para. 15. At its core, therefore, the Convention’s return remedy targets those individuals who cross international borders, presumably in search of a friendlier forum, flouting the custody law of the child’s home country in the process. See Blondin v. Dubois, 189 F.3d 240, 24546 (2d Cir. 1999) (describing the Convention’s purpose as “‘preserv[ing] the status quo and . . . deter[ring] parents from crossing international boundaries in search of a more sympathetic court.’”) (quoting Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993)). In light of the Convention’s broad purpose, the concept of “wrongful removal” clearly must encompass violations of ne exeat rights. When a parent takes a child abroad in violation of ne exeat rights granted to the other parent by an order from the country of habitual residence, she nullifies that country’s custody law as effectively as does the parent who kidnaps a child in violation of the rights of the parent with physical custody of that child.

7

Moreover, where, as here, the parent seeks a custody order in the new country, she seeks to legitimize the very action—removal of the child—that the home country, through its custody order, sought to prevent. To read the Convention so narrowly as to exclude the return remedy in such a situation would allow such parents to undermine the very purpose of the Convention.

B.

The Majority’s Approach In reaching the opposite conclusion, the majority contends that “rights of custody,” as

used in the Convention, refers to a “bundle of rights” of which a parent must possess a certain portion in order to be protected by the Convention, and that possession of only one of those rights — in this case, the “right to determine the child’s place of residence” by exercising and leveraging a veto power over the child’s international relocation —is insufficient to confer custody on the party possessing that power. See ante at [16]. In my view, however, the Convention’s definition of “rights of custody” contemplates a bundle of rights that are protected regardless of whether a parent holds one, several or all such custody rights, and whether the right or rights are held singly or jointly with the other parent. In fact, the Convention expressly protects joint custody rights, see Hague Convention, art. 3, 51 Fed. Reg. at 10,498, which may assume a number of forms, including situations in which one parent possesses sole physical custody of the child but shares certain decisionmaking authority with the other parent. The Convention contains no indication that in such an arrangement, a parent must possess some minimum number of rights of custody in order to qualify for protection. The majority also maintains that a parent’s ne exeat right does not equate with Article

8

5’s “right to determine the child’s place of residence” because the latter right necessarily entails “specific choices” regarding the child’s living situation rather than simply decisions regarding the country in which she lives. See ante at [16-18]. Like the majority’s definition of “custody,” however, this conclusion ignores the basic international character of the Hague Convention. While such “specific choices” certainly constitute facets of custody, the broader decision as to whether a child will live in England or Cuba, Hong Kong or the United States, is precisely the kind of choice the Convention is designed to protect. See Pérez-Vera Report, para. 56 (“Although the Convention does not contain any provision which expressly states the international nature of the situations envisaged, such a conclusion derives as much from its title as from its various articles. . . . [T]he international nature of the Convention arises out of a factual situation, that is to say the dispersal of members of a family among different countries.”). The Hague Convention provides a remedy not when a parent moves the child from city to suburb or from home to boarding school, but when he or she transports the child across national borders. In light of this international context, the term “place of residence,” as used in the Convention, logically contemplates decisions regarding international relocation. Accordingly, the right to choose the country in which a child lives, like the authority over the child’s more specific living arrangements, constitutes a “right to determine the child’s place of residence” under Article 5, and thus a “right of custody” under the Convention.3

To be sure, the right to prevent a child’s removal from her home country does not constitute an absolute right “to determine the child’s place of residence.” That a right is limited, however, does not render it meaningless for purposes of the Hague Convention. See Pérez-Vera Report, para. 71 (characterizing “joint custody” as “dividing the responsibilities inherent in custody
3

9

The majority avoids this conclusion by asserting that the power to determine a child’s country of residence “protects rights of custody and access alike, and [gives] no clue as to who has custody.” Ante at [17]. But while such a power may have the effect of ensuring a parent’s reasonable access, and in fact may be included in a custody order for precisely that purpose, ne exeat rights circumscribe the choices of the parent with physical custody of the child in a way that “reasonable access” rights do not. Absent a ne exeat clause, the international relocation of a child does not necessarily violate the other parent’s access rights; the parents still may work out an arrangement that satisfies the rights of “reasonable access” even across international borders. On the other hand, when a parent expatriates her child without securing the necessary consent, she has, by definition, violated the other parent’s ne exeat rights. The majority also posits that the Convention would be “unworkable” if it provided the return remedy for violations of a parent’s ne exeat rights. See ante at [20-21]. Because an order of return can require only Christina, and not Ms. Croll, to return to Hong Kong, the majority claims that “we cannot plausibly read the Convention to compel the removal of a child from a parent who exercises all rights of care to a country in which no one has that affirmative power or duty.” Ante at [21]. The majority mistakenly assumes that the custody order in a given case is the sole source of a parent’s rights and duties vis-a-vis his or her child. To the contrary, a parent’s duty to care for a child, like his or her

rights between both parents”). Furthermore, that a right is a veto or “negative right” does not diminish its status as a right. See, e.g., Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 281 (1990) (recognizing the due process right to refuse life-sustaining medical treatment). 10

rights of custody, may arise from many sources, including the law of the country of habitual residence. That the custody order in this case granted “custody, care and control” of Christina to Ms. Croll, therefore, does not direct the conclusion that Mr. Croll will have no responsibility to care for Christina upon her return to Hong Kong. 4 I therefore reject the majority’s dire forecast that ordering Christina’s return, without Ms. Croll at her side, risks leaving Christina helpless in Hong Kong without parental care.

The majority faults the dissent for its “assumption” that a court will “alter custody rights” upon the child’s return, and raises fears that absent such alteration, the child will be uncared for upon her return to Hong Kong. See ante at [23]. Christina’s care upon her return is neither premised on assumptions nor relevant to the issue before us. First, it strains credulity to suggest that a father who, as here, searches the world for his child to get her back and files a petition in a foreign forum in order to do so, would, upon succeeding in his efforts, simply permit his child to stand abandoned in the airport upon her return. The majority confuses physical care of a child with legally-ordered custody. Furthermore, if Christina’s care upon her return to Hong Kong were really a concern in the instant case, the appropriate remedy would not be reversal but a remand to the district court to assess the parties’ intentions. See Feder v. Evans-Feder, 63 F.3d 217, 226 (3d Cir. 1995) (“[I]n order to ameliorate any short-term harm to the child, courts in the appropriate circumstances have made return contingent upon ‘undertakings’ from the petitioning parent.”); In re Walsh, 31 F. Supp. 2d 200, 207 (D. Mass. 1998) (“Numerous courts granting petitions under the Convention have recognized the legitimacy of exacting appropriate undertakings from the parents designed to ensure that the children will be cared for properly during transit and that no harm will come to the children pending disposition in the country of habitual residence.”) (citations omitted), aff’d in part, rev’d in part on other grounds sub nom. Walsh v. Walsh, __ F.3d __, 2000 WL 1015863 (1st Cir. July 25, 2000). Second, the issues concerning Christina’s custody upon her return are beyond the scope of the Convention, which deals solely with returning a child to the country of habitual residence so that its courts, and not a foreign court in the country to which the child has been wrongfully removed, can adjudicate custody rights with respect to that child. This concept underlying the Convention — that the child is best served by entrusting decisions regarding his or her custody to the courts of the child’s country of habitual residence — stands in direct contradiction to the majority’s parochial view that foreign courts cannot be trusted in the same manner as American courts to competently make necessary decisions regarding the child. See ante at [23] (“on this point the dissent is generalizing from local American law”).
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Moreover, the majority’s characterization of a return remedy for violations of ne exeat rights as unworkable fails to account for the Convention’s protection of any number of joint custody arrangements in which the parents trade physical custody or in which one parent possesses physical custody and the other parent contributes to decisions about the child’s upbringing. By the majority’s reasoning, were the parent with physical custody to remove the child from the country of habitual residence, the court would have no power to return the child, because no adult would be required to care for him or her upon return. Such a conclusion, however, would largely eviscerate the Convention’s protection of joint custody rights. Far from being unworkable, the application of the return remedy in the context of ne exeat violations directly and fully advances the Convention’s goal of preventing parents from unilaterally circumventing the home country’s custody law. In contrast to access right violation cases where returning the child to her country of habitual residence would not itself guarantee the effective exercise of such rights, ordering the return of a child based on a ne exeat violation will, in and of itself, give full effect to a parent’s ne exeat rights. Finally, the majority cites to a string of authorities under the caption “Intent of the Drafters” to support its narrow reading of the Convention. See ante at [21-26]. With one exception, these authorities stand only for the unremarkable proposition that under the Convention, the return remedy is unavailable for breaches of parents’ access rights.5 In sum, those authorities shed no light on

The majority quotes A.E. Anton, the former chairman of the Hague Conference Commission, who opines that “breach of a right simply to give or to withhold consent to changes in a
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the issue relevant here, i.e., whether ne exeat rights constitute “rights of custody” for the purposes of the Convention.

C.

International Case Law While not essential to my conclusion that ne exeat rights constitute “rights of custody”

under the Convention, I note that my analysis is consistent with the decisions of most foreign courts to consider the issue. See generally Air France v. Saks, 470 U.S. 392, 404 (1985) (in construing the terms of a treaty, “the opinions of our sister signatories [are] entitled to considerable weight.”) (quoting Benjamins v. British European Airways, 572 F.2d 913, 919 (2d Cir. 1978)). Given the desirability

child’s place of residence is not to be construed as a breach of rights of custody in the sense of Article 3.” Ante at [22] (quoting A.E. Anton, The Hague Convention on International Child Abduction, 30 Int’l & Comp. L.Q. 537, 546 (1981)). Although Mr. Anton’s views support the majority’s interpretation of the Convention, the majority neglects to emphasize that his article represents only his personal views and not the official legislative history of the Convention. See Anton, supra at 537 (“This paper, however, must not be taken to reflect any views other than those of the author.”). His article is therefore appropriately viewed as simply the opinion of one scholar. Other scholars, in contrast, have concluded that ne exeat rights do constitute “rights of custody” under the Convention. See, e.g., Paul R. Beaumont & Peter E. McEleavy, The Hague Convention on International Child Abduction 7273 (1999) (“If an individual is a child’s sole custodian there are, prima facie, no restrictions on him relocating with that child. If there are such restrictions, that implies that the custody right must in some way be limited. Where this is so it must be that another body or individual holds a corresponding right in relation to the child. Therefore, should the primary carer remove the child abroad, . . . he would have breached the custody rights of the other party, if their consent had not been sought.”) (emphasis in original); Linda Silberman, “Custody Orders Under the Hague Abduction Convention,” in A New Vision for a Non-Violent World: Justice for Each Child (Proceedings of the 4th Biennial International Conference of the International Association of Women Judges, 1999), at 236 (arguing that in cases of non-removal order violations, “a failure to recognize the Convention remedy of return would be inconsistent with the careful compromise [between custody and access rights] that the Convention definition [of custody rights] has put in place.”). 13

of uniformity in treaty interpretation, see Denby v. Seaboard World Airlines, Inc., 737 F.2d 172, 176 n.5 (2d Cir. 1984), these cases lend support to my understanding of the Convention. Most foreign courts addressing this question have interpreted the notion of “rights of custody” broadly in light of the Convention’s purpose and structure. The Family Court of Australia, for example, has characterized the “spirit of the Convention” as ensuring “that children who are taken from one country to another wrongfully, in the sense of in breach of court orders or understood legal rights, are promptly returned to their country so that their future can properly be determined within that society.” In the Marriage of: Jose Garcia Resina Appellant/Husband and Muriel Ghislaine Henriette Resina Respondent/Wife, Appeal No. 52, 1991 (Fam.) (Austl.), para. 26. Accordingly, the court held that the custody order at issue—which provided reciprocal ne exeat rights for each parent—created “rights of custody” in the otherwise non-custodial father. The English Court of Appeal has employed a similarly broad reading of the Convention, holding that Article 5 “may in certain circumstances extend the concept of custody beyond the ordinarily understood domestic approach” so as to ensure “that within its scope [the Convention] is to be effective.” C. v. C., [1989] 1 W.L.R. 654, 658 (C.A.) (Eng.). In C. v. C., the court ordered the return of a child where an Australian order granted custody to the child’s mother, but also provided that the father and mother would remain “joint guardians” and that neither parent could remove the child from Australia without the consent of the other. See id. at 656. Interpreting the language of Article 5, the court found that because the Australian custody order allowed the father to exercise a measure of control over the child’s place of residence, the father possessed “custody rights” within the meaning of

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the Convention:6 [T]he father had, in my judgment, the right to determine that the child should reside in Australia or outside the jurisdiction at the request of the mother. . . . [He has] some control over not only the child leaving the jurisdiction, but also as a place to which the child was going, and not only the country; for instance, to live in London under suitable circumstances. . . . The father does not have the right to determine the child’s place of residence within Australia but has the right to ensure that the child remains in Australia or lives anywhere outside Australia only with his approval. Id. at 658. The Israeli High Court of Justice, when presented with facts nearly identical to those in the instant case, similarly interpreted “rights of custody” to encompass a parent’s rights under a nonremoval order. See C.A. 5271/92, Foxman v. Foxman (H.C. 1992) (Isr.) (finding that the Convention’s definition of “custodial rights” should be “broadly construed,” so as to cover cases in which parental consent is required before a child is taken out of the country); cf. C.A. 1648/92, Tourna v. Meshulem (H.C. 1992) (Isr.) (finding “rights of custody” in a father who, by virtue of a joint custody order, had authority to refuse consent to the child’s change in residence). In addition to these cases, which address custody rights held by a parent with ne exeat rights, the English Court of Appeal has also held that a court entering the custody order in the child’s

The majority attempts to distinguish C. v. C. as involving an order of joint guardianship, see ante at [27], but the C. v. C. court explicitly relied on the language of the ne exeat provision and not the joint guardianship clause in determining that the father possessed “rights of custody” under the Convention. See [1989] 1 W.L.R. at 657-58 (“[The lower court judge] heard argument as to the effect of . . . joint guardianship. . . . [Accordingly, t]he judge’s attention does not appear to have been sufficiently drawn to the effect on the definition in article 5 of the Convention of clause 2 of the November 1986 order, that neither parent should remove the child from Australia without the consent of the other.”).
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place of habitual residence may itself possess “rights of custody” under the Convention in certain circumstances. See B. v. B., [1993] 2 All E.R. 144 (C.A.) (Eng.). The court in B. v. B. noted that under Article 3 an “institution or other body” as well as an individual may hold custody rights and thus concluded that the removal of the child by the parent with physical custody in breach of an interim custody order conditioned on the child remaining within the jurisdiction violated the rights of both the other parent and the court issuing the interim custody decree. See id. at 148-49. Echoing the reasoning of C v. C, the court found that because the restriction required the parent with physical custody to remain in the court’s jurisdiction, and thus impliedly gave the court and the parent without physical custody the right to veto an international move, it vested both with the power to determine the child’s residence. See id. at 148-49. The court therefore affirmed the order of return on the ground that the child’s removal had been wrongful within the meaning of the Convention. See id. at 153.7 These cases reflect strong support among our sister signatories for the proposition that “rights of custody” are implicated where a custody order vests either a parent or the court with the power to block a parent with physical custody from deciding to expatriate her child.8 While there are

It is not apparent to me how the majority turns this case — involving a veto power over international relocation possessed by a court and a parent — into a decision that requires return of the child “whenever a court enters a custody order” that is violated, regardless of the terms of that order. See ante at [19]. This dissent has never suggested that Mr. Croll or the court would be entitled to an order of return if they did not possess ne exeat rights, nor does B v. B or this dissent suggest that return would be required in the scenario posed by the majority of “expatriation in derogation solely of parental rights of access.” See ante at [19]. 8 Although the majority states that “we and the district court are the only courts in the United States,” ante at [9], to consider the issue before us, I note that two American courts have also recognized “rights of custody” in connection with custody orders containing a ne exeat clause. See
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several cases in other jurisdictions that are certainly in tension with this view, I find the reasoning in those cases unpersuasive. At least one French court has determined that a custody order requiring the mother to raise her children in England and Wales did not create custodial rights in the father because such a reading would infringe on the mother’s right to expatriate. See T.G.I. Periguex, Mar. 17, 1992, Ministere Public v. Mme Y., D.S. Jur. 1992 (Fr.). However, the court in Mme. Y. did not address the meaning of Article 5’s “right to determine the child’s place of residence” provision and instead focused on the mother’s expatriation rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms. See id. at 315-16. But deciding a Hague Convention case on the ground that the custodial parent must remain free to expatriate her child begs the crucial interpretive question of who, for purposes of the Convention, are “custodial parents” in the first place. Nothing in the Convention suggests that one parent’s right to expatriate overrides another parent’s rights of custody. On the contrary, the paramount importance the Convention places on custodial rights suggests that where custodial rights and expatriation rights conflict, the latter must yield to the former. To adopt another reading would, among other difficulties, make the Convention’s protection of joint custody impossible, as joint custody by its very nature limits each parent’s unilateral decisionmaking power,

David S. v. Zamira S., 151 Misc.2d 630, 574 N.Y.S.2d 429 (N.Y. Fam. Ct. 1991); JanakakisKostun v. Janakakis, 6 S.W.3d 843 (Ky. Ct. App. 1999), review denied (Dec. 9, 1999), petition for cert. filed, 68 U.S.L.W. 3595 (U.S. Mar. 8, 2000) (No. 99-1496). In my view, however, these cases are of limited utility because they fail precisely to define “custodial rights” or to differentiate them from access rights. 17

including his or her power to relocate to another country with the child. In my view, therefore, the legal presumption against restrictions on expatriation answers little.9 Apart from the Mme. Y. decision, two other cases are in tension with the proposition that ne exeat rights constitute “rights of custody” under the Convention. In two separate decisions, the Canadian Supreme Court has suggested — in dicta — that the Convention’s “wrongful removal” provision does not cover cases in which a parent acts in violation of an express provision in a custody order granting ne exeat rights. In the first, Thomson v. Thomson, [1994] 119 D.L.R. 4th 253 (Can.), the court ordered a child’s return based on an interim non-removal order in order to “preserve jurisdiction in the Scottish court to decide the issue of custody on its merits in a full hearing at a later date,” but noted in dicta that such a remedy would be unavailable for violation of a final non-removal order because the purpose of such an order was simply to “ensure permanent access to the noncustodial parent.” Id. at 281. In the second case, D.S. v. V.W. [1996] 134 D.L.R. 4th 481 (Can.), the court held that a return remedy was not available under the Convention for violation of an implicit removal restriction in a custody order, and — relying in part on the dicta in Thomson relating to express provisions in permanent custody orders — stated that a violation of such an implicit restriction would concern only access rights, not custodial rights. Id. at 501-06. However, the court nevertheless ultimately upheld the lower court’s order of return on the alternate ground that such return was in the

I also note that courts in France appear divided on this issue. See Martha Bailey, “Rights of Custody” Under the Hague Convention, 11 B.Y.U. J. Pub. L. 33, 40 (1997) (discussing French cases).
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best interests of the child under Quebec domestic legislation. Id. at 516-17. For the reasons explained above, supra I.A., I am unpersuaded by the argument that ne exeat clauses in permanent non-removal orders relate solely to access rights, the view endorsed by the Canadian Supreme Court. Nor do I consider significant the Canadian Supreme Court’s emphasis on the distinction between interim and permanent custody orders. To be sure, a court issuing an interim custody order has a strong interest in preventing a child’s removal before it has the opportunity to make its final custody determination. But nothing in the Convention’s language or official history supports the notion that this interest is any more important than the court’s interest in enforcing the final custody order once issued. The dichotomy between an interim and permanent custody order is, therefore, for the purposes of the Convention, a distinction without a difference. I note also that while the D.S. decision to uphold the order of return was unanimous, six (out of nine) justices expressed reservations regarding the opinion’s analysis of custodial rights and obligations, see 134 D.L.R. 4th at 484, 518; see also Bailey, supra, at 49, thereby raising serious doubts as to whether the opinion’s conception of ne exeat clauses in relation to the Convention truly represents the rule in Canada. Scholars have also strongly criticized the Canadian interpretation of custody rights under the Convention. See, e.g., Bailey, supra, at 42-50; Linda Silberman, “Custody Orders Under the Hague Abduction Convention,” in A New Vision for a Non-Violent World: Justice for Each Child (Proceedings of the 4th Biennial International Conference of the International Association of Women Judges, 1999), at 235-240. Therefore, following what I consider to be the more compelling reasoning of the English, Australian, and Israeli cases, I would join the courts of those

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countries in finding that rights arising under a ne exeat clause constitute “rights of custody” for the purposes of the Hague Convention.

II.

Did Mr. Croll Or The Hong Kong Court “Actually Exercise” Ne Exeat Rights? Apart from the central issue of whether ne exeat rights constitute “rights of custody”

under the Convention, the majority also holds that Mr. Croll’s petition fails to satisfy the requirement of Article 3(b) of the Convention, which provides: The removal or retention of a child is to be considered wrongful where . . . at the time of removal or retention those rights [of custody] were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Hague Convention, art. 3(b), 51 Fed. Reg. at 10,498 (emphasis added). According to the majority, “[t]he right conferred by the ne exeat clause is not one that Mr. Croll ‘actually exercised,’ and it is circular to say that he would have exercised it but for Christina’s removal, because the right itself concerns nothing but removal itself, and would never have been exercised had Mrs. Croll been content to stay in Hong Kong during Christina’s minority.” Ante at [19] (emphasis in original).10 description mischaracterizes the right that a ne exeat clause creates. The right given to Mr. Croll and the Hong Kong court by the ne exeat clause was the authority to withhold or grant consent to removing Christina from Hong Kong. Had they refused to grant Ms. Croll permission to take Christina to the United States, or even had they agreed to grant This

Ms. Croll does not argue on appeal that Mr. Croll’s petition was defective under Article 3(b) of the Convention. The majority reaches this issue sua sponte.
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permission, they would have “actually exercised” the custody rights granted by the custody order. While I agree that neither Mr. Croll nor the court did, in fact, “actually exercise” this right, it seems clear to me that Ms. Croll’s conduct in removing Christina without the necessary consent was precisely what prevented them from doing so. Because Ms. Croll deprived Mr. Croll and the court of the opportunity to exercise their veto power by surreptitiously removing Christina from Hong Kong without first seeking consent, the ne exeat right is one that “would have been so exercised” but for Christina’s unlawful removal. Article 3(b) therefore poses no barrier to finding that Christina’s removal was wrongful under the Convention. For the foregoing reasons, I conclude that Christina’s removal from Hong Kong to the United States was “wrongful” under the Convention because her removal (1) constituted a “breach of rights of custody” jointly held by Mr. Croll and the Hong Kong court, and (2) Mr. Croll or the court — or both — would have exercised their veto rights under the ne exeat clause but for Christina’s removal from Hong Kong. Accordingly, I would affirm the district court’s decision to grant Mr. Croll’s petition for an order of return.

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United States Court of Appeals
FOR THE

SECOND CIRCUIT __________________

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the day of two thousand,

______________________________________________ Lee N. Koehler, Plaintiff-Appellant, v. Bank of Bermuda (New York) Ltd. Defendant-Appellee, ______________________________________________ A request for a vote as to whether the panel decision should be reconsidered sua sponte by the Court in banc having been made by a judge of the Court, and a poll of the judges in regular active service having been taken, a majority of the Court has voted not to reconsider the decision in banc. The mandate shall therefore issue. Judges Leval, Calabresi and Sotomayor dissent. 98-9624

FOR THE COURT: Roseann B. MacKechnie, Clerk By:_____________________ Beth J. Meador, Administrative Attorney

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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 1999 (Argued: August 30, 1999 Decided: April 10, 2000) (On Reconsideration by the Court In Banc Dissent: September 28, 2000) Docket No. 98-9624 ____________________________________________________________________________ LEE N. KOEHLER, Petitioner-Appellant, v. THE BANK OF BERMUDA (NEW YORK) LIMITED, a New York Corporation, THE BANK OF BERMUDA LIMITED, a Bermuda Corporation, REEFS BEACH CLUB LIMITED, a Bermuda Corporation, and A. DAVID DODWELL, a Bermuda citizen, Defendants-Appellees. ____________________________________________________________________________

SOTOMAYOR, Circuit Judge, with whom Judge LEVAL concurs, dissenting from the denial of rehearing in banc: Judge Calabresi dissents in a separate opinion. Federal courts may, under their alienage jurisdiction, hear controversies between “citizens of a State and citizens or subjects of a foreign state.” 28 U.S.C. § 1332(a)(2) (1994). Based upon a prior holding of this Court in Matimak Trading Co. v. Khalily, 118 F.3d 76 (2d Cir. 1997), cert. denied, 522 U.S. 1091 (1998), the panel in this case concluded that Bermuda corporations and a Bermuda citizen were not “citizens or subjects of a foreign state,” and, therefore, that a controversy involving such parties was not within the alienage jurisdiction of the federal courts. Koehler v. Bank of Bermuda (New York) Ltd., 209 F.3d 130, 139 (2d Cir. 2000). Because a rehearing in banc would
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provide a much-needed opportunity for the full Court to reexamine the flawed and internationally troublesome position that corporations and individuals from territories of the United Kingdom do not fall within the alienage jurisdiction of the federal courts, I dissent from the denial of the petition for rehearing in banc.

I. This is a question of “exceptional importance.” Fed. R. App. P. 35(a)(2). Its import reaches well beyond our government, to our relations with foreign nations, and the access of foreign entities and individuals to the federal courts. Both the Executive Branch and the government of the United Kingdom of Great Britain and Northern Ireland have asked that we reconsider the reasoning we employed in Matimak. This Circuit’s understanding of the scope of alienage jurisdiction is squarely in conflict with that of the other circuit courts that have addressed this question. When issues of such enduring significance are presented, I believe that the Court in banc should reexamine the merits of its conclusion to ensure that substantial numbers of individuals and corporations are not erroneously deprived of access to our federal courts. The defendants in this case include Bermuda corporations and a Bermuda citizen. Bermuda is not recognized by our State Department as an independent state. It is, rather, a “British Overseas Territory.”1 Essential to this case is the fact that despite the myriad ways in

The British Overseas Territories (also referred to as “Dependent Territories”) include Anguilla, Bermuda, British Indian Ocean Territory, the British Virgin Islands, the Cayman Islands, the Falkland Islands, Gibralter, Montserrat, the Pitcairn Islands, Saint Helena and dependencies, South Georgia and the South Sandwich Islands, and the Turks and Caicos Islands. See Brief Amicus Curiae of the Government of the United Kingdom of Great Britain and Northern Ireland in Support of Matimak Trading Co. as Petitioner for Writ of Certiorari at 6 n.5, Matimak Trading Co. v. Khalily (97-893) (hereinafter U.K. Matimak Brief). Some of the British Overseas Territories have become important commercial centers. As of
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which the United Kingdom exercises dominion over Bermuda, British law terms Bermudan citizens and corporations “nationals,” but not “subjects,” of the United Kingdom. See United Kingdom Government’s Diplomatic Service Procedure Manual, Vol. 7, Annex 1, Rules 1(b), 2(a) (1996). Previously, this Court in Matimak held that a corporation organized under the laws of Hong Kong could not sue New York defendants in federal court because Hong Kong was, at the time, a Dependent Territory of the United Kingdom, and therefore the plaintiff corporation was not a “citizen or subject” of a foreign “state.”2 Relying on Matimak, the panel here concluded that Bermuda corporations and a Bermuda citizen were not “citizens or subjects of a foreign state,” 28 U.S.C. § 1332(a)(2) (1994), and therefore not within our alienage jurisdiction. The people of Bermuda would undoubtedly be surprised to learn that they are “stateless.” But this is precisely the conclusion upon which these decisions rest. See Matimak, 118 F.3d at 86 (“[Plaintiff-Hong Kong corporation] is thus stateless. And a stateless person–the proverbial man without a country–cannot sue a United States citizen under alienage jurisdiction.”). Having found such entities or individuals “stateless,” the panels in this case and in Matimak had no difficulty denying these litigants access to the federal courts because “[t]he raison d’etre of alienage jurisdiction is to avoid entanglements with other sovereigns that might ensue from failure to treat the legal controversies of

1997, 563 banks and 34,169 other companies were incorporated in the Cayman Islands, at least 8,224 businesses were incorporated in Bermuda, at least 100,000 companies were incorporated in the British Virgin Islands, and 12,911 companies were incorporated in the Turks and Caicos. See id. at 10-11. Several of these territories, including the Cayman Islands and Bermuda, are considered significant tax havens. See Mark Baker, Lost in the Judicial Wilderness: The Stateless Corporation After Matimak Trading, 19 Nw. J. Int'l L. & Bus. 130, 132 n.8 (1998) (noting that the holding in Matimak adds an “element of unpredictability” to the world of tax structuring). The Matimak decision has been extensively criticized by commentators. See III Finance Ltd. v. Aegis Consumer Funding Group, Inc., No. 99 Civ. 2579, 1999 WL 1080371, at *2 (S.D.N.Y. Nov. 30, 1999) (collecting sources).
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aliens on a national level.” Matimak, 118 F.3d at 82 (internal quotation omitted). These panels implicitly reason that absent a “state,” there is no sovereign to offend and therefore no cause to provide federal alienage jurisdiction. This assurance is undermined by the strong reaction to our decisions by the United Kingdom.3 Whatever other intention the panels here and in Matimak may have had, there can be no doubt that the fundamental purpose of alienage jurisdiction--to void offense to foreign nations--is frustrated by the Matimak decision and its further application by this panel. Paradoxically, the country we offend by these holdings is not only a strong ally, but the very country the drafters of the alienage jurisdiction provision had in mind more than two hundred years ago when they sought to open the federal courts to foreign litigants. See Kevin R. Johnson, Why Alienage Jurisdiction? Historical Foundations and Modern Justifications over Disputes Involving Noncitizens, 21 Yale J. Int’l L. 1, 7-8 (1996) (noting the failure of state courts to enforce debts owed to British creditors following the Revolutionary War). This Court, in Matimak, attempted to shift responsibility for the disturbing consequences of its reasoning to the Executive Branch. Because the Department of State maintains that British Overseas Territories are not independent “states,” the Matimak court reasoned that it was

See U.K. Matimak Brief at 9 (“The United Kingdom is keenly concerned that the citizens and corporations of its Dependent Territories be able to bring and defend suits in neutral foreign fora concerning their global commerce.”); Brief Amicus Curiae of the Government of the United Kingdom of Great Britain and Northern Ireland in Support of Appellant at 2, III Finance Ltd. v. Aegis Consumer Funding Group (No. 00-7016) (hereinafter U.K. Aegis Brief) (“The United Kingdom Government submits that it would not be in the interest of its trading relationship with the United States for the corporations of the United Kingdom Overseas Territories to be excluded from United States federal courts.”); Diplomatic Note No. 13/2000 from the British Embassy in Washington, D.C. to the United States Department of State, Feb. 2, 2000 at 1 (“The United Kingdom [] views with great concern the potential application of the Matimak rationale to individual Overseas Territories residents, as well as to commercial enterprises.”) .
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forced to conclude that Bermuda corporations were stateless. See Matimak, 118 F.3d at 83 (commenting that “it is for the Executive Branch, not the courts, to anticipate where potential ‘entanglements’ with such entities are appreciable enough to recognize sovereign status”). The Executive Branch, however, has urged us not to use the definition of “statehood” taken from the context of diplomatic recognition as a basis for denying British Overseas Territories the benefit of federal alienage jurisdiction. The Executive Branch has emphasized that to do so may cause the United States to “face an international controversy with British authorities for failure to provide a neutral forum” for individuals or corporations of a British Overseas Territory in federal court. Brief Amicus Curiae for the United States at 8, Matimak Trading Co. v. Khalily (96-9117). Our Circuit is alone in concluding that federal alienage jurisdiction does not extend to citizens and corporations of British Overseas Territories. The Third Circuit, largely out of deference to the Executive Branch’s position that Hong Kong corporations were considered, at the time, “subject to British sovereignty,” found that they fell within the federal courts’ alienage jurisdiction. Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 413 (3rd Cir.1999). The Seventh Circuit has held that a Cayman Islands corporation could be sued in federal court under alienage jurisdiction, explaining that, “[c]ertainly, the exercise of American judicial authority over the citizens of a British Dependent Territory implicates this country’s relationship with the United Kingdom–precisely the raison d’etre for applying alienage jurisdiction.” Wilson v. Humphrys (Cayman) Ltd., 916 F.2d 1239, 1243 (7th Cir.1990), cert. denied, 499 U.S. 947 (1991). The Fourth Circuit, without discussion of the issue, has found that a Bermuda resident–apparently the same individual defendant sued in this case--was a “citizen” or “subject” of a foreign state for alienage jurisdiction purposes. Koehler v. Dodwell, 152 F.3d 304, 308 (4th Cir. 1998). Owing to the fact that our characterization of corporations and citizens of British
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Overseas Territories as “stateless” has given rise to precisely the sort of damage to foreign relations the statute was meant to avoid, it is questionable that this distinction has its origins in the statute. Nor is this dubious characterization imposed upon us by the Executive Branch, which has advocated a contrary rule. Neither has this distinction been accepted by our sister circuits. Moreover, this Circuit has previously concluded, albeit without discussion, that “[t]here is no question” that alienage jurisdiction existed between citizens of the United States and a Bermuda corporation. Netherlands Shipmortgage Corp. v. Madias, 717 F.2d 731, 735 (2d Cir. 1983). Finally, two respected senior circuit judges from the panel in this case, Judge Jon O. Newman and Judge Richard J. Cardamone, have expressed disagreement with the merits of our precedent in Matimak. See Koehler v. Bank of Bermuda (New York) Ltd., __ F.3d __, __ n. _ (2d Cir. 2000). All this being the case, it seems incumbent upon us, as a full Court, to reexamine the basis upon which our panels both here and in Matimak reached their conclusions. II. An examination of the merits leads to the conclusion that Matimak misapplied the terms “citizens or subjects of a foreign state” in a fashion inconsistent with both the historical understanding of these terms and a contemporary understanding of the relationship between the United Kingdom and its Overseas Territories. The panel in Matimak began its analysis with the unremarkable proposition that “a foreign state is entitled to define who are its citizens or subjects.” Matimak, 118 F.3d at 85 (citing, inter alia, United States v. Wong Kin Ark, 169 U.S. 649 (1898)). The court then concluded that a British Overseas Territory corporation did not fall within the scope of alienage jurisdiction because British law did not designate the corporation a “citizen” or “subject” of the United Kingdom or indicate

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that the corporation was under the control of the United Kingdom. Matimak, 118 F.3d at 85-6.4 None would argue with the notion that a foreign state is entitled to define what persons or entities fall into its categories of “citizen “or “subject,” or any other of a variety of legal forms that exist under its own domestic immigration, nationality, and commercial law. The domestic meaning that any particular country may give to the terms “citizen” or “subject” does not, however, bind our courts in determining whether an individual or entity falls within the statutory meaning of such terms as provided by our law of alienage jurisdiction. The wide disparity in meaning that exists among countries concerning such terms requires that our alienage jurisdiction be determined not according to the appearance of the words “citizen” or “subject” (or translation thereof) in the pages of a country’s domestic code, but according to whether United States law deems such persons or entities to be “citizens or subjects” under our Constitution and statutes for the purpose of alienage jurisdiction. To proceed otherwise would be to “allow foreign law to deny privileges afforded under the Constitution . .

Aside from the substantial authority cited for the proposition that a foreign state determines its own citizenship and nationality law, and for the relationship between the terms “citizen” and “subject,” the Matimak opinion contains little authority to support its analysis of the “citizenship” or “subjecthood” of corporations in British Overseas Territories. See Matimak, 118 F.3d at 85-86. One unpublished district court opinion is cited to support the suggestion that the corporate law of the Cayman Islands, another British Overseas Territory, is “clearly independent from the United Kingdom’s [law].” See id. at 86 (citing St. Germain v. West Bay Leasing, Ltd., No. 81-CV-3945 (E.D.N.Y. Sept. 30, 1982)). Another district court opinion from 1979 is cited to argue that corporations formed in Hong Kong were not given the benefit of British nationality. See id. (citing Windert Watch Co. v. Remex Elecs. Ltd., 468 F. Supp. 1242 (S.D.N.Y. 1979)). Although the Matimak opinion cites also to a leading treatise, the same treatise currently reaches the opposite conclusion from the panel. See 15 James Wm. Moore, et al., Moore’s Federal Practice § 102.76 (3d ed., 1999) (“A citizen of a British dependent territory is deemed to be a citizen of the United Kingdom and its Overseas Territory. Consequently, federal courts may properly invoke diversity jurisdiction over suits in which a citizen of the Cayman Islands or Bermuda is a party.”). The cases cited by the Matimak court in support of the proposition that a stateless person cannot sue a United States citizen in federal court regard an individual whose citizenship has been revoked by a sovereign and nowhere suggest that a British Overseas Territory’s people or corporations could exist in a condition of perpetual statelessness. See Matimak, 118 F.3d at 86.
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. [and perhaps] unintentionally promote discrimination against certain classes of people or entities.” Matimak, 118 F.3d at 89-90 (Altimari, J., dissenting).5 As an historical matter, the drafters of the Constitution chose the words “citizens” or “subjects” to refer to the broad category of those under the authority of a foreign power. See Bank of the United States v. Deveaux, 9 U.S. (5 Cranch) 61, 87 (1809) (Marshall, C.J.) (recognizing that the Constitution “established national tribunals for the decision of controversies between aliens and a citizen [of the United States]”), overruled in part on other grounds by Louisville, Cincinnati & Charleston R.R. Co. v. Letson, 43 U.S. (2 How.) 497 (1844). The Judiciary Act of 1789 used the word “alien” apparently as an equivalent term to “citizens” or “subjects” in the first rendering of the statutory grant of authority to exercise federal alienage jurisdiction. Compare U.S. Const. art. III, sec. 2, cl. 1 (extending jurisdiction to controversies “between a State, or the Citizens thereof, and foreign States, Citizens or Subjects”) with Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73, 78 (extending jurisdiction to suits in which “an alien is a party”).6 Oliver Ellsworth, the principal architect of the Judiciary Act of 1789 that contained the alienage jurisdiction provision, referred to the need to provide a federal forum for controversies between United States citizens and “foreigners.” See Charles Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 60 (1932) (quoting Letter of Oliver Ellsworth to Judge Richard Law, Apr. 30, 1789). “[T]he Framers often referred to [non-U.S.]

This task is analogous to that of deciding the state of domicile of a party in a diversity action in federal court. See 28 U.S.C. § 1332(a)(1) (1994) (providing federal jurisdiction for suits between “citizens of different States”). While a court may look to state law definitions of domicile and state citizenship for guidance, “[d]etermination of a litigant’s state of domicile for purposes of diversity is controlled by federal common law, not by the law of any state.” 15 James Wm. Moore, et. al., Moore’s Federal Practice § 102.34[3][a] (3d ed., 1997). The legislative debates concerning the Judiciary Act of 1789 referred to the alienage jurisdiction provision as providing access to the federal courts for “foreigners” or “aliens.” See 1 Annals of Congress (1st Cong.) 810, 814, 825 (Joseph Gales ed., 1834) (House debates).
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citizens, subjects and foreigners interchangeably,” and “while foreign modes of government are hardly ‘technicalities’ in any other sense, the Framers apparently did not consider them relevant to the exercise of federal jurisdiction.” Southern Cross Overseas, 181 F.3d at 416 (internal quotation marks and citations omitted).7 In 1875, the alienage jurisdiction provision was amended, replacing the term “alien” with the current reference to “citizens” or “subjects.” Act of Mar. 3, 1875, 18 Stat. 470, 470. This change, causing the statute to mirror the language of the Constitution, was motivated by the need to clarify that an alien could not sue another alien in federal court, and not from dissatisfaction with the original statutory term “alien” as impermissibly broader than the terms “citizens” or “subjects” found in the Constitution. See Johnson, 21 Yale J. Int’l L. at 21. Although early cases did not explore the precise boundaries of the terms “citizen” and “subject” as used in alienage jurisdiction, the Supreme Court did have the opportunity to interpret these same terms in other contexts. Their general use confirmed that these terms referred to a range of relationships characterized by the acceptance of the authority and protection of a sovereign and an offer of allegiance. In 1830, Justice Story, addressing the issue of United States citizenship for expatriates

At the time the Constitution was written and the first alienage jurisdiction statute was enacted, the term “subject” referred to a person who lived under the control of another. See Samuel Johnson, A Dictionary of the English Language (1755) (defining a “subject” as “[o]ne who lives under the dominion of another”). See also 2 Noah Webster, American Dictionary of the English Language at 84 (1st ed., 1828; facsimile ed. Foundation for American Christian Education 1985) (defining a “subject” as “[o]ne that owes allegiance to a sovereign and is governed by his laws. The natives of Great Britain are subjects of the British government. The natives of the United States, and naturalized foreigners, are subjects of the federal government. Men in free governments are subjects as well as citizens; as citizens, they enjoy rights and franchises; as subjects, they are bound to obey the laws.”) (emphasis in original); 2 James Kent, Commentaries on American Law 258 n.b (6th ed., 1848) (“Subject and citizen are, in a degree, convertible terms as applied to natives; and though the term citizen seems to be appropriate to republican freemen, yet we are equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.”) (emphasis in original).
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noted that “[t]he rule commonly laid down in the books is, that every person who is born within the ligeance of a sovereign is a subject; and, e converso, that every person born without such allegiance is an alien.” Inglis v. Trustees of the Sailors' Snug Harbour, 28 U.S. (3 Pet.) 99, 155 (1830) (Story, J).8 In construing the terms of the Spanish Treaty of 1795, the Supreme Court in The Pizzaro, 15 U.S. (2 Wheat) 227 (1817), rejected the claim that the term “subject” in the treaty applied “only to persons who, by birth or naturalization owe a permanent allegiance to the Spanish government,” holding more simply that, “in the language of the law of nations . . . a person domiciled in a country, and enjoying the protection of its sovereign, is deemed a subject of that country.” Id. 245-46.

It has long been established that “a corporation created by the laws of a foreign state may, for the purposes of suing and being sued in the courts of the Union, be treated as a ‘citizen’ or ‘subject’ of such a foreign state.” National Steam-Ship Co. v. Tugman, 106 U.S. 118, 121 (1882). The defendant-Bermuda corporations in this suit were created under the laws of two different countries–Bermuda and the United Kingdom–but under the laws of only one recognized “state,” the United Kingdom.9 While the Bermuda’s Companies Act of 1981 provides procedures for incorporating companies in Bermuda, 6 Revised Laws of Bermuda, Title 17, Item 5, Part II (1989 &

Justice Story continued, “ [t]wo things usually concur to create citizenship; first, birth locally within the dominions of the sovereign; and secondly, birth within the protection and obedience, or in other words, within the ligenance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and consequently owe obedience or allegiance to the sovereign, as such, de facto.” Inglis, 28 (3 Pet.) U.S. at 155. The characterization of such corporations as “stateless” by the Matimak court is particularly jarring considering that corporations are creations purely of law, and, unlike individuals, exist only through an exercise of sovereignty. See Matimak, 118 F.3d at 89 (Altimari, J., dissenting) (“A stateless corporation is an oxymoron.”).
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Update 1996), Bermuda and its government exist “under the sovereignty of the Crown.” 6 Halsbury’s Laws of England, para. 803 (4th ed. reissue, 1992).10 All authority to make laws for the “peace, order, welfare and good government” of Bermuda is granted to the Bermuda legislature solely by the United Kingdom, which regulates Bermuda lawmaking. Id. at para. 1027.11 Despite this, the panel in this case stated simply that “[b]ecause Bermuda is also a British Dependent Territory, Matimak governs . . . [and t]he district court therefore lacked subject matter jurisdiction over the state law claims against the Bermuda defendants.” Koehler, 209 F.3d at 139. In such cases, when our Department of State determines that a country is not a sovereign state, the more reasonable conclusion is not that its corporations are “stateless,” but rather that they are subject to some other sovereign. Dependent upon the law of the United Kingdom, Bermuda corporations exist under the sovereignty of the United Kingdom. They are, for purposes of 28 U.S.C. § 1332(a)(2), “subjects” of the United Kingdom. 12

Similarly, a corporation formed under the local Company law of Northern Ireland is not a “British” company in the sense of being formed under the British Companies Act 1985, but is nevertheless regarded by the British government as a national of the United Kingdom and therefore within the scope of § 1332(a)(2). See U.K. Aegis Brief at 11. Bermuda was permitted to draft a constitution by the British Parliament pursuant to the Bermuda Constitution Act 1967, 7 Halsbury’s Statutes of England and Wales, Bermuda Constitution Act 1967 (4th ed., 1999 reissue), which can be revoked by an Act of the British Parliament. 6 Halsbury’s Laws of England, para. 1042 (4th ed. reissue, 1992). Bermuda’s government is administered by a governor appointed by the Crown, id. at para. 994, who has the power to adjourn or dissolve Bermuda’s legislative assembly. Id. at para. 1000. An act dissolving the legislative assembly is deemed to be an executive act of the Queen. Id. at para. 1024 & n.1. The United Kingdom maintains supreme control over Bermuda’s external relations and national defense, id. at para. 983, and has the power to alter Bermuda’s boundaries. Id. at para. 992. This conclusion corresponds to the position taken by the Department of State, see, e.g., Letter of Linda Jacobson, Assistant Legal Adviser of the Department of State to Alan W. Dunch (submitted in the Koehler litigation) (“[I]t is the position of the United States . . . that Bermuda residents and corporations are subjects of a foreign state, i.e., Great Britain, for purposes of the federal diversity statute, 28 U.S.C. § 1332.”); Southern Cross, 181 F.3d at 417 (citing Department of State’s view
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The people of Bermuda, because they live under the sovereignty of the United Kingdom, are “citizens or subjects” of the United Kingdom for purposes of alienage jurisdiction. The individual defendant in this case, like other Bermudians, is a national of the United Kingdom for purposes of its own laws. The status of being a “national” of the United Kingdom, conferred by virtue of birth in a British Overseas Territory, fits comfortably within the original meaning of “citizen” or “subject” for the purposes of alienage jurisdiction. The United Kingdom continues to function as sovereign over Bermuda, ruling over its affairs, protecting it, and enjoying the allegiance of its citizens. The narrowness with which the panels in this case and in Matimak attempted to apply the terms “citizen” and “subject” is uncharacteristic of the history of their use and the principles underlying their adoption. 13 CONCLUSION

that “since the ultimate sovereign authority over [a Hong Kong corporation was] the British Crown, [it] should be treated as a subject of United Kingdom sovereignty for purposes of alienage diversity jurisdiction.”), the Department of Justice, see, e.g., Matimak, 118 F.3d at 86 (“The Justice Department concludes that because the ultimate sovereign authority over the plaintiff is the British Crown, Matimak should be treated as a subject of United Kingdom sovereignty for purposes of § 1332.”), and the British government, see, e.g., U.K. Matimak Brief at 7 (“Corporations of the British Dependent Territories should be considered ‘subjects’ of the United Kingdom for purposes of the alienage jurisdiction of 28 U.S.C. § 1332.”); U.K. Aegis Brief at 4 (“The position of the United Kingdom Government is that entities incorporated in any territory for which the United Kingdom is internationally responsible are regarded by the United Kingdom Government as United Kingdom nationals and, therefore, are “citizens of subjects” of the United Kingdom for purposes of alienage jurisdiction.”). The reasoning of Matimak applied to all foreign corporations would produce an absurd result. The term “national” is often used instead of “citizen” or “subject” to describe the identify of a foreign corporation. See Restatement (Third) of Foreign Relations Law § 213 (1987) (“For purposes of international law, a corporation has the nationality of the state under the laws of which the corporation is organized.”). If indeed courts must rely solely on the words found in the domestic codes of other countries and there we discover that corporations are referred to only as “nationals” and not as “subjects” or “citizens” of a particular country, the Matimak analysis would force us to deny them access to the federal courts.
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Alienage jurisdiction was established by our Constitution and early statutes to strengthen our relations–particularly our commercial relations--with foreign nations. The importance of these goals has only increased with time as both international relations and global trade have become more complex and our nation has assumed a central role in both. Having deprived a considerable number of foreign entities and individuals of an opportunity to adjudicate their claims in a federal forum, the full Court should consider whether the reasoning of the panels here and in Matimak is sound. Because these panel decisions have caused a clear split in authority with the other circuit courts, and in light of the potential damage to relations between the United States and the United Kingdom and other nations, it can only be hoped that the Supreme Court chooses to address the resolution of this issue expeditiously

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

LEE N. KOEHLER, Plaintiff-Appellant, v. THE BANK OF BERMUDA (NEW YORK) LIMITED, a New York Corporation, THE BANK OF BERMUDA LIMITED, a Bermuda Corporation, REEFS BEACH CLUB LIMITED, a Bermuda Corporation, and A. DAVID DODWELL, a Bermuda citizen, Defendants-Appellees. No. 98-9624

CALABRESI, Circuit Judge, dissenting from the denial of a rehearing in banc: For the reasons ably stated by Judge Sotomayor in her opinion dissenting from a denial of rehearing in banc, this case involves an issue of exceptional importance. The underlying question has divided any number of federal judges. On that basis, if no other, review of the panel opinion is warranted. Accordingly, I join Judges Leval and Sotomayor in dissenting from the denial of rehearing in banc.

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IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT MARILYN BARTLETT, Plaintiff-Appellee v. NEW YORK STATE BOARD OF LAW EXAMINERS, et al., Defendants-Appellants ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK SUPPLEMENTAL BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

MARY JO WHITE United States Attorney for the Southern District of New York SARA L. SHUDOFSKY Assistant United States Attorney

BILL LANN LEE Acting Assistant Attorney General JESSICA DUNSAY SILVER MARIE K. McELDERRY Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-3068

___________________________________________________________________ ___________________________________________________________________

TABLE OF CONTENTS PAGE ARGUMENT: THIS COURT CORRECTLY CONCLUDED THAT BARTLETT IS AN INDIVIDUAL WITH A DISABILITY UNDER TITLE II OF THE ADA . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. B. The Record Is Clear That Bartlett Lacks Automaticity In Her Reading . . . . . . . . . . . . . . 4 Bartlett Is Substantially Limited In Reading Even When Taking Into Account Her Self-Accommodation Techniques . . . . . . . . . . . 8 This Court’s Determination That Bartlett Has A Disability That Causes Substantial Limitations In The Major Life Activity Of Reading Is Consistent With The Supreme Court’s Decisions In Sutton, Murphy, And Albertsons . . . . . . . . . . 11 . . . . . . . . . . . . . . . . . . . . . . . . . . 16

C.

CONCLUSION

CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

CASES: Albertsons, Inc. v. Kirkingburg, 119 S. Ct. 2162 (1999) . . Bartlett v. New York State Bd. of Law Exam’rs, 970 F. Supp. 1094 (S.D.N.Y. 1997), reconsideration denied, 2 F. Supp. 2d 388 (S.D.N.Y. 1997), aff’d in part, vacated in part, 156 F.3d 321 (2d Cir. 1998), vacated and remanded, 119 S. Ct. 2388 (1999) . . . . . Bragdon v. Abbott, 524 U.S. 624 (1998)

PAGE passim

passim 14

. . . . . . . . . . . .

Murphy v. United Parcel Serv., Inc., 119 S. Ct. 2133 (1999) . . . . . . . . . . . . . . . . . . . . . Sutton v. United Air Lines, Inc., 119 S. Ct. 2139 (1999) . . . . . . . . . . . . . . . . . . . . .

passim passim 14

Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . . STATUTES:

Americans with Disabilities Act of 1990, 42 U.S.C. 12102(2)(A) . . . . . . . . . . . . . . . . . . 2 Title II, 42 U.S.C. 12131 et seq. . . . . . . . . . . . . . 2 RULES AND REGULATIONS: 29 C.F.R. 1630.2(j)(3)(i) . . . . . . . . . . . . . . . . . . . MISCELLANEOUS: Jeanne S. Chall, Stages of Reading Development (1983) . . . . . . 4 135 Cong. Rec. 8519 (1989) . . . . . . . . . . . . . . . . . . 15 16

Patricia R. Dahl, A mastery based experimental program for teaching high speed word recognition skills (abstract), 11 Reading Res. Q. 203 (1975-1976) . . . . . . . 4 Sally E. Shaywitz, Current Concepts: Dyslexia, 338 New Eng. J. Med. 307 (1998) . . . . . . . . . . . . . - ii 15

IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 97-9162 MARILYN BARTLETT, Plaintiff-Appellee v. NEW YORK STATE BOARD OF LAW EXAMINERS, et al., Defendants-Appellants

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK SUPPLEMENTAL BRIEF FOR THE UNITED STATES AS AMICUS CURIAE On June 24, 1999, the Supreme Court granted the petition for a writ of certiorari in New York State Board of Law Examiners v. Bartlett, No. 98-1285, vacated this Court's September 14, 1998, decision, and remanded the case to this Court for reconsideration in light of Sutton v. United Air Lines, Inc., 119 S. Ct. 2139 (1999), Murphy v. United Parcel Service, Inc., 119 S. Ct. 2133 (1999), and Albertsons, Inc. v. Kirkingburg, 119 S. Ct. 2162 (1999). On July 30, 1999, this Court issued an order directing the

parties to file supplemental briefs to consider the effect of those three decisions. Having previously filed a brief as amicus curiae

in this appeal, the United States hereby submits this supplemental brief to address the issue presented by the Supreme Court's remand.

- 2 ARGUMENT THIS COURT CORRECTLY CONCLUDED THAT BARTLETT IS AN INDIVIDUAL WITH A DISABILITY UNDER TITLE II OF THE ADA The Supreme Court determined in Sutton that "if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures -- both positive and negative -- must be taken into account when judging whether that person is 'substantially limited' in a major life activity and thus 'disabled' under the [Americans with Disabilities] Act." Ct. at 2146.1/ 119 S.

In so holding, the Court relied in part upon the

fact that the ADA requires an individualized inquiry into the question whether an individual has a disability. Id. at 2147.

In its September 14, 1998, decision, this Court held that plaintiff Marilyn Bartlett is an individual with a disability protected by Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12131, et seq. Bartlett v. New York State In reaching

Bd. of Law Exam'rs, 156 F.3d 321 (2d Cir. 1998).2/

that conclusion, this Court stated that a disability should be assessed without regard to the availability of mitigating measures. Id. at 329. As a result, the Supreme Court granted

the Board's petition, vacated this Court's decision, and remanded

Plaintiffs in Sutton had severe myopia, but with the use of corrective lenses, their vision was 20/20 or better. 119 S. Ct. at 2143. As relevant to this case, the statutory definition of disability is "a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual." 42 U.S.C. 12102(2)(A).
2/

1/

- 3 the case to this Court for reconsideration under the legal standard announced in Sutton, Murphy, and Albertsons. Although in reaching its decision in this case this Court endorsed a principle that has subsequently been rejected by the Supreme Court, the Court’s conclusion that Bartlett is an individual with a disability remains correct. Following Sutton

and the related cases, the appropriate inquiry in determining whether an individual has a disability within the meaning of the ADA is whether, notwithstanding the use of a corrective device or mitigating measures, the "limitations an individual with an impairment actually faces are in fact substantially limiting." 119 S. Ct. at 2149. As discussed below, the record in this case

demonstrates that, despite her efforts at self-accommodation, Bartlett is substantially limited in the major life activity of reading. 156 F.3d at 329. The self-accommodation techniques

used by Bartlett do not mitigate the crucial element of her dyslexia: her lack of automaticity in reading. Accordingly, even

when taking her attempts at self-accommodation into account, Bartlett is substantially limited in the major life activity of reading. Because that is the only conclusion that can be drawn

from the record, together with the district court’s findings, the district court’s judgment should be affirmed on that basis.

- 4 A. The Record Is Clear That Bartlett Lacks Automaticity In Her Reading

Experts recognize that the skill of reading has at least two major components3/: accuracy of word identification and

“automaticity”--the ability to "recognize[] a printed word and [be] able to read it accurately, and immediately; in other words, automatically and without [conscious effort]." Bartlett v. New

York State Bd. of Law Exam'rs, 970 F. Supp. 1094, 1107, 1113 (S.D.N.Y. 1997). The Board of Law Examiners took the position in

the district court that Bartlett's scores on the Word Attack and Word Identification subtests of the Woodcock Reading Mastery Test (Woodcock subtests) were alone sufficient to determine whether Bartlett has a learning disability. The Woodcock subtests used

by the Board’s expert, however, measure only one of the components of reading, i.e., the ability to identify words accurately and not the major component underlying adult reading, i.e., automaticity. Automaticity has to be assessed by a reading

measure that includes time; the scores on the Woodcock subtests did not measure Bartlett’s lack of automaticity because those tests are untimed and do not reflect the great difficulty she has in deciphering each word. As the district court recognized, the

principal problem with using the scores on psychometric testing as the sole determinant of whether an individual has a learning

See, e.g., Pl.'s Ex. 129, Jeanne S. Chall, Stages of Reading Development 119 (1983), citing Patricia R. Dahl, A mastery based experimental program for teaching high speed word recognition skills (abstract), 11 Reading Res. Q. 203, 209 (19751976).

3/

- 5 disability is the fact that "no test measures automaticity directly." 970 F. Supp. at 1113. The Board’s complete reliance

on Bartlett’s scores on the Woodcock subtests to determine whether she has a learning disability therefore presents an incomplete and misleading picture. court properly Accordingly, the district

rejected the Board’s position that the Woodcock

subtests scores should be determinative, finding that “[b]y its very nature, diagnosing a learning disability requires clinical judgment,” and “is not quantifiable merely in test scores.” at 1114. Recognizing the importance of clinical judgment, the district court relied on the experts’ clinical observations of Bartlett when she read aloud. The opinion of all three experts Id.

who observed her noted her "stark lack of automaticity" under those circumstances. 970 F. Supp. at 1113. In his trial

affidavit, Dr. Richard Heath testified that Bartlett "reads aloud in a hesitant manner, slowly and without automaticity." 1107. Id. at

He stated that, "[i]n particular, [Bartlett] had a great

deal of difficulty reading polysyllabic words, vowels (especially diphthongs, digraphs and in ascertaining differences between long and short vowels), consonant blends and silent consonant conventions." Ibid. He reported (ibid.) that

on the more complex reading passages, Dr. Bartlett typically read the passages over two or three times before she could respond to that test item. She uses contextual cues to facilitate her decoding. She reads very slowly. She will reread a phrase or sentence to make sure she gets it. You can often see her lips move or hear her read quietly to herself and when she does this, you can hear the mispronunciations. When she is

- 6 faced with an unfamiliar polysyllabic word she is very slow to break down the word to different parts and she will mispronounce parts of the word. She is slow to synthesize the morphemes into a word. Dr. Heath administered the same Woodcock subtests used by the Board, and his opinion was that the results of that testing confirmed Dr. Phillip Massad’s earlier diagnosis of learning disability. 970 F. Supp. at 1107. His clinical observation of Dr.

Bartlett revealed her difficulties in arriving at answers. Heath described the fact that Bartlett "had to make several

attempts to sound out words which should have been second nature to her,” and her "reading was full of hesitations, and self corrections.” Ibid. (quoting Heath affidavit). As an example,

Dr. Heath stated (ibid.): [P]laintiff will attempt to read a word such as "instigator" as "investigator." Since she will hear that it sounds incorrect she will start over and often corrects her reading of the word after several attempts. On the Woodcock, this would be credited as a correct response, even though it took her three attempts to get it right and took more time than it would have taken a person who did not have to read in this fashion. Dr. Heath also stated that, although “[w]ord attack skills are generally well formed by junior high school age,” Bartlett's “pattern of word attack is indicative of someone whose decoding skills are not fully formed,” and that she “decodes pseudo-words at a fourth grade level.”
4/

Id. at 1107-1108.4/

The district court also credited the studies of adult dyslexics conducted by Dr. Maggie Bruck, on which the Board’s experts relied to support their testimony. Dr. Bruck stated, and (continued...)

- 7 During the hearing, the district court also directly observed the condition and manner used by Bartlett to read and write, including using her fingers to keep her place in the text, spelling errors, and mirror writing. She read aloud, "haltingly

and laboriously," at 40 words per minute and took approximately ten minutes to write a 48-word passage that was dictated to her. 970 F. Supp. at 1110.5/ This Court agreed with the district court in rejecting the Board’s argument that scores on the Woodcock subtests are the "dispositive measure" of whether an adult has a learning disability, 156 F.3d at 329, and nothing in the Supreme Court’s

decisions in Sutton and the related cases calls that conclusion into question. B. Bartlett Is Substantially Limited In Reading Even When Taking Into Account Her Self-Accommodation Techniques

(...continued) the district court found, that the Woodcock subtests are "poor discriminators" for measuring whether an adult has a learning disability "unless the subject’s reaction time [i]s measured." 970 F. Supp. at 1113-1114. In addition, Dr. Rosa Hagin testified that, because the Woodcock subtests do not test automaticity or reading rate, "they are poor indicators of a decoding problem in individuals like plaintiff who function at higher cognitive levels." Id. at 1110. The record also contains test data from the Diagnostic Reading Test (DRT). 970 F. Supp. at 1108. Bartlett’s reading rate was compared with the highest grade norm for that test, which is college freshmen. Ibid. (table). The test results show that Bartlett’s slow reading rate is comparable to the 4th percentile of college freshmen when timed, while her comprehension was at the 50th percentile. When she took the test untimed, her comprehension was at the 98th percentile, but, at the same time, that required her to read at an even slower rate, comparable to the 1st percentile of college freshmen. Ibid.
5/

4/

- 8 The Board does not appear to dispute the finding that Bartlett reads without automaticity.6/ Rather, the Board’s

principal argument here (Defendants-Appellants’ Supplemental Br. 6-7) is that Bartlett’s "self-accommodation permits her to read at an average level compared to the average person in the general population," and thus that she "does not have a reading or learning disability that would entitle her to accommodations" for taking the New York bar examination. That argument is based upon

the district court's finding that, when compared to the general population, Bartlett has achieved "roughly average reading skills (on some measures)." 970 F. Supp. at 1120.

The Board’s reliance on this aspect of the district court’s finding is at odds with this Court’s clear rejection of the Board’s argument that scores on the Woodcock subtests are the "dispositive measure" of whether an adult has a learning disability. 156 F.3d at 329. The district court’s finding was

specifically qualified by the court as being based on “some measures.” Those measures were the Woodcock Word Attack and Word As noted above, this Court clearly

Identification subtests.

found that those measures were not adequate to judge whether Bartlett has a learning disability. Since the Woodcock subtests

measure only her ability to identify words, without regard to the time it takes or the mistakes she makes before arriving at the correct answer, Bartlett's average scores on those subtests do Indeed, as the district court noted, the Board’s expert "acknowledge[d] the Woodcock’s weakness with regard to discriminating for lack of automaticity." 970 F. Supp. at 1114.
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- 9 not identify the substantial limitations she experiences in the reading process. As discussed below, Bartlett’s self-

accommodation techniques provide a degree of mitigation with respect to the word identification component of the reading process; they do not, however, provide mitigation with respect to Bartlett’s lack of automaticity in her reading. Dr. Rosa Hagin, an expert who testified during the hearing in the district court, described the "set of personal skills" that Bartlett has "evolved * * * to compensate for her disability." 970 F. Supp. at 1109. The "cues" Bartlett used to

assist her were "slowing down the rate of response, verbal rehearsal of rote sequencing items, [and] pointing cues to assist in keeping her place on visual text." Ibid. She “use[d] her

finger to keep her place,” and read the more complex passages over several times as a means of obtaining “contextual cues to facilitate her decoding.” omitted). Id. at 1107 (internal quotation marks

She "had to sound out the words repeatedly before Id. at 1113. Dr. Hagin credited

coming to an answer."

Bartlett’s "earlier work as a school teacher where phonics were stressed" in allowing her to attempt to develop "selfaccommodations." Id. at 1109. Significantly, however, Dr. Hagin

noted that those self-accommodations, which permit her to decode words if she has a sufficient amount of time, "account for her ability to spell better and to perform better on [the untimed Woodcock] word identity and word attack tests than would be expected of a reading disabled person," ibid., because, as this

- 10 Court noted, 156 F.3d at 329, both of those subtests allow Bartlett unlimited time to identify a word. the fact that she reads without automaticity. They do not measure Ibid. Thus,

although Bartlett has developed methods that permit her, with additional time, to decipher the written words, the record shows that the essential component of automaticity continues to be absent in her reading. Accepting the district court's subsidiary findings, this Court found, in essence, that Bartlett's barely average scores on the Woodcock subtests are only a part of the picture and that lack of automaticity is the crucial element in her dyslexia. This Court therefore rejected the district court’s conclusion that Bartlett was not substantially limited in the major life activity of reading, Bartlett v. New York State Bd. of Law Exam'rs, 2 F. Supp. 2d 388, 392 (S.D.N.Y. 1997), making a legal determination that the district court’s finding concerning Bartlett’s average scores on the Woodcock subtests was not a sufficient basis for that conclusion. Instead, this Court

properly relied upon the record and subsidiary findings made by the district court in concluding that Bartlett was substantially limited in the major life activity of reading, and her impairment significantly restricts the condition and manner of her reading “as compared to the manner and conditions under which the average person in the general population can read or learn.” 329. C. This Court’s Determination That Barlett Has A Disability That Causes Substantial 156 F.3d at

- 11 Limitations In The Major Life Activity Of Reading Is Consistent With The Supreme Court’s Decisions In Sutton, Murphy, And Albertsons Nothing in the Supreme Court’s decisions in Sutton, Murphy, or Albertsons calls into question this Court’s conclusion that Bartlett is a person with a disability. Bartlett's “history of

self-accommodations” does not foreclose a finding that she has a disability. 156 F.3d at 329. In Sutton, the Supreme Court made

clear that the "use or nonuse of a corrective device does not determine whether an individual is disabled; that determination depends on whether the limitations an individual with an impairment actually faces are in fact substantially limiting." 119 S. Ct. at 2149 (emphasis added). Because, with the use of

corrective measures, the plaintiffs in Sutton reached 20/20 visual acuity and could "function identically to individuals without a similar impairment," ibid., the Court held that they were not substantially limited in any major life activity. Thereafter, in Murphy, the Supreme Court accepted the Tenth Circuit’s conclusion that "when medicated, petitioner’s high blood pressure does not substantially limit him in any major life activity." 119 S. Ct. at 2137. In Murphy, the Court was

presented solely with the question whether mitigating measures should be considered in determining whether an individual’s impairment substantially limits a major life activity; the Court was not presented with the question whether the Tenth Circuit’s conclusion as to substantial limitation was correct. Specifically, the Supreme Court in Murphy had "no occasion * * *

- 12 to consider whether petitioner is ‘disabled’ due to limitations that persist despite his medication." Ibid. (emphasis added).

Finally, in Albertsons, the Supreme Court amplified its ruling in Sutton, holding that mitigating measures undertaken within the body’s own systems, just as those undertaken with the use of artificial aids like medications and devices, must be considered in determining whether an individual is disabled under the ADA. 119 S. Ct. at 2169. The Supreme Court did not consider

whether plaintiff, who had monocular vision, was disabled under the ADA, but merely held that the statute requires "monocular individuals, like others claiming the Act’s protection, to prove a disability by offering evidence that the extent of the limitation in terms of their own experience * * * is substantial." Ibid.

The Supreme Court’s holdings in Sutton, Murphy, and Albertsons do not, therefore, compel a different conclusion than the conclusion reached by the Court in this case: that Bartlett is substantially limited in the major life activity of reading. The record in this case amply demonstrates that the limitations Bartlett "actually faces are in fact substantially limiting." Sutton, 119 S. Ct. at 2149. As discussed above, on the basis of

the district court’s findings concerning (1) the shortcomings of reliance on the Woodcock subtest scores alone, and (2) the extensive expert testimony, based upon clinical observation, concerning the manner in which Bartlett reads, this Court concluded (156 F.3d at 329):

- 13 In this case, Dr. Bartlett suffers from a lack of automaticity and a phonological processing defect that significantly restricts her ability to identify timely and decode the written word, that is, to read as compared to the manner and conditions under which the average person in the general population can read or learn. Accordingly, the "extent of the limitation in terms of" Bartlett’s "own experience * * * is substantial." 119 S. Ct. at 2169. Nor do the attempted self-accommodation techniques employed by Bartlett change this result: reading remains slow, effortful, and extremely time-consuming. The record in this case is clear Albertsons,

that the self-accommodations that Bartlett has developed do not mitigate the crucial element in her dyslexia: her lack of automaticity in reading. Unlike the situation in Sutton, where

corrective lenses brought the plaintiffs' eyesight to 20/20, there is no medication or corrective device that can permit Bartlett to read with automaticity. As this Court found,

individuals with dyslexia suffer a persistent, chronic deficit in their ability to “decode the written word.” 156 F.3d at 329. As

a result of that impairment, Bartlett always experiences a lack of automaticity when she reads. Without automaticity, Bartlett

will never be able to read at a rate and in a manner that approaches the norm, even with her attempts at using the selfaccommodation techniques she has learned. Deciphering words

without automaticity requires an enormous amount of conscious effort. As the district court noted, Bartlett reads “slowly, 970 F. Supp. at 1099. “She simply

haltingly, and laboriously.”

- 14 does not read in the manner of an average person.” Ibid.

Accordingly, Bartlett experiences substantial "limitations that persist despite [the mitigating measure]." 2137. Bartlett’s situation is analogous to the individuals described by the Court in Sutton who use a prosthetic limb or a wheelchair for mobility. The Court noted that such individuals Murphy, 119 S. Ct. at

“may be mobile and capable of functioning in society but still be disabled because of a substantial limitation on their ability to walk or run.” 119 S. Ct. at 2149. The ADA “addresses

substantial limitations on major life activities, not utter inabilities.” Bragdon v. Abbott, 524 U.S. 624, 641 (1998).7/

The fact that an individual such as Bartlett has succeeded in obtaining advanced educational degrees in other fields and has completed law school does not prevent her from being an individual with a disability within the meaning of the ADA. Although individuals with dyslexia such as Bartlett have a deficit in phonological processing impairing the manner and ease with which they are able to decipher words, the “higher-order cognitive and linguistic functions involved in comprehension, such as general intelligence and reasoning, vocabulary, and syntax, are generally intact.” Sally E. Shaywitz, Current

Concepts: Dyslexia, 338 New Eng. J. Med. 307, 308 (1998) See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 309 (3d Cir. 1999) (individual with bipolar disorder who takes lithium to control most severe aspects of disorder can still be substantially limited in major life activity of thinking because of effect of uncontrolled symptoms and side effects of the drug).
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- 15 (footnotes omitted). This “pattern” helps to explain the

“paradox of otherwise intelligent people who experience great difficulty in reading.” Ibid.

One of the chief purposes of the ADA is to remove barriers that prevent persons with disabilities from reaching their full potential and to allow them to participate fully in society. 135 Cong. Rec. 8519 (1989) (remarks of Sen. Cranston). See

In order

for Bartlett to access her higher-order cognitive abilities, she needs more time than an individual without a phonological processing deficit to decode and identify the printed word and she needs other accommodations that would help to compensate for the effects of that deficit. Just as a person in a wheelchair

can use an above-ground entrance to gain access to a building if a ramp is available, an individual with a learning disability can draw meaning from high level text if she is allowed the time she requires to slowly decipher each word. time is her ramp. To such an individual,

The record demonstrates that Bartlett’s

achievements thus far have come as a result of extraordinary efforts not required by individuals without disabilities. She

should not be excluded from the protections of the Act because of accomplishments made despite her disability. As we have argued, the record is sufficient for this Court to reaffirm its earlier decision. The fact that Bartlett’s lack

of automaticity is not susceptible to self-accommodation means that this Court’s conclusion that she is substantially limited in the major life activity of reading is correct, even when she is

- 16 compared with the average person in the general population. C.F.R. 1630.2(j)(3)(i). The Supreme Court’s remand does not 29

compel this Court to reach a different conclusion because Bartlett’s lack of automaticity is not improved by any selfaccommodation or mitigation.8/ CONCLUSION For the foregoing reasons, this Court should reinstate its earlier determination that Bartlett is an individual with a disability who is entitled to accommodations for taking the New York bar examination. Alternatively, if this Court believes that

further findings by the district court are necessary, it can

Since the record demonstrates that Bartlett is substantially limited in reading, we agree with this Court’s determination, see 156 F.3d at 329, that it is unnecessary to decide whether she is substantially limited in the major life activity of working.

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- 17 remand the case to the district court for a determination whether Bartlett’s lack of automaticity results in a substantial limitation in reading. Respectfully submitted, MARY JO WHITE BILL LANN LEE United States Attorney Acting Assistant Attorney for the Southern District General of New York SARA L. SHUDOFSKY Assistant United States Attorney JESSICA DUNSAY SILVER MARIE K. McELDERRY Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-3068

CERTIFICATE OF SERVICE I hereby certify that I have served the foregoing Supplemental Brief for the United States as Amicus Curiae by mailing two copies, first-class, postage prepaid on counsel of record at the following addresses: Eliot Spitzer Attorney General of the State of New York Preeta D. Bansal Solicitor General Deon J. Nossel Assistant Solicitor General 120 Broadway New York, New York 10271 Jo Anne Simon Patricia Ballner 257 Dean Street Brooklyn, New York 11217 This day of November, 1999.

Marie K. McElderry Attorney


				
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Description: Selected Cases of Judge Sonia Sotomayor