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Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Governor David Paterson is*
automatically substituted for former Governor Eliot Spitzer as a defendant in this case.
07-0581-cvMaloney v. Cuomo
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
______________
August Term, 2008
(Argued: December 15, 2008 Decided: January 28, 2009)
Docket No. 07-0581-cv
______________
JAMES M. MALONEY,
Plaintiff-Appellant,
—v.—
ANDREW CUOMO, in his official capacity as Attorney General of the State of New York, DAVID
PATERSON, in his official capacity as Governor of the State of New York, KATHLEEN A. RICE, inher official capacity as District Attorney of the County of Nassau, and their successors,*
Defendants-Appellees.
______________
B e f o r e:
POOLER, SOTOMAYOR, and KATZMANN, Circuit Judges.
______________
Appeal from a judgment of the United States District Court for the Eastern District ofNew York (Spatt, J.) dated January 17, 2007, granting defendants-appellees Andrew Cuomo andDavid Paterson’s motion to dismiss and defendant-appellee Kathleen A. Rice’s motion forjudgment on the pleadings, and from an order dated May 14, 2007, denying plaintiff-appellant’smotion for reconsideration. Affirmed.
There are two sections of the New York Penal Law numbered 265.00(14).1
2
______________
JAMES M. MALONEY, appearing pro se, for Plaintiff-Appellant.
KAREN HUTSON, Deputy County Attorney (Lorna B.Goodman, County Attorney, on the brief) for Defendant-Appellee Kathleen A. Rice, Nassau County DistrictAttorney, Mineola, N.Y.
______________
PER CURIAM:
Plaintiff-appellant James Maloney was arrested at his home on August 24, 2000, and
charged with possessing a chuka stick in violation of N.Y. Penal Law § 265.01(1). A “chuka
stick” (or “nunchaku”) is defined as
any device designed primarily as a weapon, consisting of two or more lengths of arigid material joined together by a thong, rope or chain in such a manner as toallow free movement of a portion of the device while held in the hand and capableof being rotated in such a manner as to inflict serious injury upon a person bystriking or choking.
Id. § 265.00(14). This charge was dismissed on January 28, 2003, and Appellant pleaded guilty1
to one count of disorderly conduct. As part of the plea, he agreed to the destruction of the
nunchaku seized from his home.
Appellant filed the initial complaint in this action on February 18, 2003, and then an
amended complaint on September 3, 2005, seeking a declaration that N.Y. Penal Law §§ 265.00
through 265.02 are unconstitutional insofar as they punish possession of nunchakus in one’s
home. The district court dismissed the amended complaint as against the New York State
Appellant makes no argument in his brief concerning the district court’s dismissal of his2
claims against the Attorney General and the Governor. We therefore deem any challenges to thataspect of the district court’s judgment waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540,541 n.1 (2d Cir. 2005).
3
Attorney General and the Governor for lack of standing, concluding that neither official is
responsible for enforcing the statutes at issue. The district court granted defendant Nassau
County District Attorney Kathleen Rice’s motion for judgment on the pleadings in relevant part
because the Second Amendment does not apply to the States and therefore imposed no
limitations on New York’s ability to prohibit the possession of nunchakus. Appellant moved for
reconsideration on the ground that the district court had failed to consider certain other claims
raised in his amended complaint; the district court denied that motion.
On appeal, Appellant challenges only the district court’s dismissal of his claims against
Rice. He argues, inter alia, that New York’s statutory ban on the possession of nunchakus2
violates (1) the Second Amendment because it infringes on his right to keep and bear arms, and
(2) the Fourteenth Amendment because it lacks a rational basis. Neither of these arguments has
any merit.
The Second Amendment provides: “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
U.S. Const. amend. II. The Supreme Court recently held that this confers an individual right on
citizens to keep and bear arms. See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008).
It is settled law, however, that the Second Amendment applies only to limitations the federal
government seeks to impose on this right. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886)
(stating that the Second Amendment “is a limitation only upon the power of congress and the
4
national government, and not upon that of the state”); Bach v. Pataki, 408 F.3d 75, 84, 86 (2d
Cir. 2005) (holding “that the Second Amendment’s ‘right to keep and bear arms’ imposes a
limitation on only federal, not state, legislative efforts” and noting that this outcome was
compelled by Presser), cert. denied, 546 U.S. 1174 (2006). Heller, a case involving a challenge
to the District of Columbia’s general prohibition on handguns, does not invalidate this
longstanding principle. See Heller, 128 S. Ct. at 2813 n.23 (noting that the case did not present
the question of whether the Second Amendment applies to the states). And to the extent that
Heller might be read to question the continuing validity of this principle, we “must follow
Presser” because “[w]here, as here, a Supreme Court precedent ‘has direct application in a case,
yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals
should follow the case which directly controls, leaving to the Supreme Court the prerogative of
overruling its own decisions.’” Bach, 408 F.3d at 86 (quoting Rodriguez de Quijas v.
Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)) (alteration marks omitted); see also State
Oil Co. v. Khan, 522 U.S. 3, 20 (1997). Thus, N.Y. Penal Law §§ 265.00 through 265.02 do not
violate the Second Amendment.
The Fourteenth Amendment similarly provides no relief for Appellant. “Legislative acts
that do not interfere with fundamental rights or single out suspect classifications carry with them
a strong presumption of constitutionality and must be upheld if ‘rationally related to a legitimate
state interest.’” Beatie v. City of New York, 123 F.3d 707, 711 (2d Cir. 1997) (quoting City of
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985)). We will uphold legislation if
we can identify “some reasonably conceivable state of facts that could provide a rational basis for
the legislative action. In other words, to escape invalidation by being declared irrational, the
5
legislation under scrutiny merely must find some footing in the realities of the subject addressed
by the law.” Id. at 712 (internal quotation marks and citations omitted).
The legislative history of section 265.00 makes plain that the ban on possession of
nunchakus imposed by section 265.01(1) is supported by a rational basis. Indeed, as Appellant
concedes, when the statute was under consideration, various parties submitted statements noting
the highly dangerous nature of nunchakus. For example, New York’s Attorney General, Louis J.
Lefkowitz, asserted that nunchakus “ha[ve] apparently been widely used by muggers and street
gangs and ha[ve] been the cause of many serious injuries.” Mem. from Attorney Gen. Louis J.
Lefkowitz to the Governor (Apr. 8, 1974). And the sponsor of the bill, Richard Ross, stated that
“[w]ith a minimum amount of practice, [the nunchaku] may be effectively used as a garrote,
bludgeon, thrusting or striking device. The [nunchaku] is designed primarily as a weapon and
has no purpose other than to maim or, in some instances, kill.” See N.Y. Penal Law § 265.00,
practice commentary, definitions (“Chuka stick”) (quoting Letter of Assemblyman Richard C.
Ross to the Counsel to the Governor (1974)).
Appellant does not dispute that nunchakus can be highly dangerous weapons. Rather, his
principal argument is that section 265.01(1) prevents martial artists from using nunchakus as part
of a training program. But the fact that nunchakus might be used as part of a martial-arts training
program cannot alter our analysis. Where, as here, a statute neither interferes with a fundamental
right nor singles out a suspect classification, “we will invalidate [that statute] on substantive due
process grounds only when a plaintiff can demonstrate that there is no rational relationship
between the legislation and a legitimate legislative purpose.” Beatie, 123 F.3d at 711. Appellant
has not carried this burden. Consequently, in light of the legislature’s view of the danger posed
6
by nunchakus, we find that the prohibition against the possession of nunchakus created by N.Y.
Penal Law § 265.01(1) is supported by a rational basis.
We have considered Appellant’s remaining arguments and find them to be without merit.
Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
Appellant’s pending motions to strike defendant Kathleen Rice’s brief and material in her July
28, 2008 Rule 28(j) letter are hereby DENIED.
06-4996-cv
Ricci v. DeStafano
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2007
(Argued: December 10, 2007 Decided: June 9, 2008)
Docket No. 06-4996-cv
FRANK RICCI, MICHAEL BLATCHLEY, GREG BOIVIN, GARY CARBONE, MICHAELCHRISTOFORO, 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 MARKVENDETTO,
Plaintiffs-Appellants,
-v-
JOHN 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.
2
KAREN LEE TORRE, Attorney, New Haven, CT, for Plaintiffs-Appellants.
RICHARD A. ROBERTS, Attorney, Cheshire, CT (Nicole C. Chomiak, Stacey L. Pitcher, andTodd 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.
06-4996-cvRicci v. DeStefano
- - - - - - - - - - - - - - - - - - - -X
- v.-
- - - - - - - - - - -X
Docket No. 06-4996-cv
Decided: June 9, 2008Order issued: June 12, 2008)
(Argued: December 10, 2007
UNITED STATES COURT OF APPEALS
August Term, 2007
FOR THE SECOND CIRCUIT
Plaintiffs-Appellants,
Defendants-Appellees
FRANK RICCI, MICHAEL BLATCHLEY, GREGBOIVIN, GARY CARBONE, MICHAELCHRISTOFORO, RYAN DIVITO, STEVENDURAND, WILLIAM GAMBARDELLA, BRIANJOOSS, JAMES KOTTAGE, MATTHEWMARCARELLI, THOMAS J. MICHAELS, SEANPATTON, CHRISTOPHER PARKER, EDWARDRIORDAN, KEVIN ROXBEE, TIMOTHY SCANLON,BENJAMIN VARGAS, JOHN VENDETTO AND MARKVENDETTO,
JOHN DESTEFANO, KAREN DUBOIS-WALTON,THOMAS UDE JR., TINA BURGETT, BOIKIMBER, MALCOM WEBER, ZELMA TIRADO ANDCITY OF NEW HAVEN,
1234567
89
10111213141516171819202122232425262728293031323334353637
38 FOR PLAINTIFFS-APPELLANTS: KAREN LEE TORRE, New Haven, CT3940 FOR DEFENDANTS-APPELLEES: RICHARD A. ROBERTS {Nicole C.
123456
7
Chomiak, Stacey L. Pitcher, andTodd J. Richardson,~~~), Cheshire, CT
ORDER
After disposition of this appeal by summary order dated
8 February 15, 2008, an active judge of Court requested a
9 poll on whether to rehear the case in banco A poll on
10 whether to rehear case in banc was conducted among the
11 active judges of the Cou After the poll was concluded,
12 on June 9, 2008, the original three-judge panel withdrew the
13 summary order and filed a per curiam opinion; no subsequent
14 poll has been requested. Because a majority of the
15 court's act judges voted to deny rehearing in banc,
16 rehearing is hereby DENIED.
17 Judges Calabresi, Straub, Pooler, Sack, Sotomayor,
18 Katzmann, and B.D. ker concur in the denial of rehearing
19 in banco Chief Judge Jacobs and Judges Cabranes, Raggi,
20 Wesley, Hall and vingston dissent from t denial of
21 rehearing in banco
22 With this order, Judge Katzmann is filing a
23 concurring opinion, in which Judges Pooler, Sack, Sotomayor
24 and B.D. Parker joins; Judge B.D. Parker is filing a
25 concurring opinion, in which Judges Calabresi, Pooler, Sack
2
1 and Sotomayor join; and Judge Cabranes is filing a
2 dissenting opinion, in which Chief Judge Jacobs and Judges
3 Raggi, Wesley, Hall and Judge vingston join.
4 Other opinions may be filed with respect to this case,
5 concurring or dissenting in the denial of in bane review.
3
KATZMANN, Circuit Judge, with whom Judge POOLER, Judge SACK, Judge SOTOMAYOR, andJudge B.D. PARKERjoin, concurring in the denial of rehearing en banc:
I concur in the denial ofrehearing en bane, consistent with our Circuit's longstandingtradition of general deference to panel adjudication a tradition which holds whether or not thejudges of the Court agree with the panel's disposition of the matter before it. Throughout ourhistory, 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 grantcertiorari, it has for its review the district court's opinion, the panel's per curiam opinion, andopinions concurring with and dissenting from the decision denying rehearing en bane. The issuesare therefore sharply defined for the Supreme Court's consideration of whether to grantcertiorari.
BARRINGTON D. PARKER. Circuit Judge. with whom Judge CALABRESI. Judge POOLER. JudgeSACK, 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
ofdisparate-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
1
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
I 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 byanyone in the Richmond construction industry." Croson, 488 U.S. at 500. Here, by contrast, theCity 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 liabilityunder 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 andlegislatively overruling Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 659 (1989)).
2
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 [ofa 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,
3
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.
4
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 straight
forward 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 ofper 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
1 Reproduced as .-\ppendix A.
1
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
2 Reproduced as .,-\ppendix B.
2
(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 cross
motions 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
3
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-reasonedopinion of the court below. In this case, the Civil Service Board found itself in the unfortunateposition of having no good alternatives. We are not unsympathetic to the plaintiffs' expressionof frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear tohave resulted in his scoring highly on one of the exams, only to have it invalidated. But itsimply 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
4
when confronted with test results that had a disproportionate racial impact, its actions wereprotected.
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 adistrict court is anything but novel" cannot be gainsaid. In appropriate cases, such a disposition is entirelyunobjectionable. \X'here significant questions of unsettled law are raised on appeal, however, a failure to address thosequestions--or even recognize their existence-should not be the approved modus operandi of the U.S. Court ofAppeals.
5
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 ageneralized assertion as to the classification's relevance to its goals. A governmental actorcannot render race a legitimate proxy for a particular condition merely by declaring that thecondition 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."
6
deference to legislative or executive pronouncements of necessity has no place in equalprotection 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 amost searching examination. Second, consistency: The standard of review under the EqualProtection Clause is not dependent on the race of those burdened or benefited by a particularclassification, i.e., all racial classifications reviewable under the Equal Protection Clause must bestrictly scrutinized. And third, congruence: Equal protection analysis in the Fifth Amendmentarea is the same as that under the Fourteenth Amendment. Taken together, these threepropositions lead to the conclusion that at!} person, ofwhatever race, has the right to demand that aI!}governmental actor su,?ject to the Constitutionjustifj af!) racial classification su,?jecting that person to unequaltreatment 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
7
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 onAfrican-American and Hispanic examinees; that promoting off of this list would underminetheir goal of diversity in the Fire Department and would fail to develop managerial role modelsfor aspiring firefighters; that it would sulyect the City to public criticism; and that it \vould likelysubject the City to Title VII lawsuitsfrom minority applicants that, for political reasons, the City did 110twant 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 discardingexamination results on the basis of race so that members of certain races could have a "second chance" to competeconstitutes the conferral or denial of a benefit on the basis of race.
8
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
9
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 thatan illegitimate factor had a motivating or substantial role in the employment decision. If theplaintiff convinces the factfinder that the illegitimate factor played such a role, the employeehas proved that the decision was made at least in part because of the illegitimate factor. At thispoint the employee is entitled to succeed subject only to the employer's opportunity to proveits affIrmative defense; that is, that it would have reached the same decision as to theemployee'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 orpromotional examination. . .. Ordinarily, as contemplated by the statute, the "complainingparty" bears the burden of proving a disparate impact, and the "respondent" bears the burdenof "demonstrat[ing] that the challenged practice is job related for the position in question andconsistent with business necessity," or, alternatively, the "complaining party" may prevail byshowing that an alternative employment practice with less disparate impact existed and that therespondent failed to utilize it. Here, the roles of the parties are in essence reversed, with thedefendants, 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 anadverse impact, and the plaintiffs, normally the "complaining party," arguing that the testresults 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 "rubberstamp" to the Ciry's race-based decisions. I simply question whether the Court of A.ppeals has set forth a standard fordetermining when such action is acceptable and when it violates the constitutional and statutory rights of citizens. If anyfault is to be levied in this regard, it falls on our Court for failing to provide guidance, and not on the District Courtwhich endeavored to confront this question of exceptional importance.
12
Appendix A
SUMMARY ORDER
Defendants-Appellees.
06-4996-cvRicci v. DeStefano
UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT
(06-4996-cv)
Plaintiffs-Appellants,
-v-
ROSEMARY S. POOLER,ROBERT D. SACK,SONIA SOTOMAYOR,
Circuit Judges,
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATIONTO SUMMARY ORDERS FILED AFTER JANUARY 1,2007, IS PERMITTED AND ISGOVERNED BY THIS COURT'S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATEPROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES ASUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEASTONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIEDBY THE NOTATION: "(SUMMARY ORDER)." A PARTY CITING A SUMMARY ORDERMUST SERVE A COpy OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER INWHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BYCOUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONICDATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PA YMENT OF FEE (SUCH ASTHE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOVI). IF NO COpy ISSERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE,THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKETNUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
Present:
At a stated Term of the United States Court of Appeals for the Second Circuit, held at theDaniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,on the 15th day of February, two thousand and eight.
FRANK RICCI, MICHAEL BLATCHLEY, GREG BOIVIN, GARY CARBONE, MICHAELCHRISTOFORO, 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 MARKVENDETTO,
JOHN DESTEFANO, KAREN DUBOIS-WALTON, THOMAS UDE JR., TINA BURGETT,BOISE KIMBER, MALCOM WEBER, ZELMA TIRADO AND CITY OF NEW HAVEN,
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10111213141516171819202122232425262728293031323334353637383940414243444546474849
The judgment of the district court is AFFIRMED.
By:. _
FOR THE COURT:Catherine O'Hagan Wolfe, Clerk
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.
Karen Lee Torre, New Haven, CT.Appearing for Plaintiffs-Appellants:
Appearing for Defendants-Appellants:
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,AND DECREED that the judgment of the distri~t court is AFFIRMED.
Richard A. Roberts (Nicole C. Chomiak,Stacey L. Pitcher, and Todd 1. Richardson
__________________~on:.:..:::.th.:.::e:...:b::.:.n.:.::·e::Jf),Cheshire, CT.
We affirm, substantially for the reasons stated in the thorough, thoughtful, and well-reasonedopinion of the court below. In this case, the Civil Service Board found itself in the unfortunateposition of having no good alternatives. We are not unsympathetic to the plaintiffs' expressionof frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear tohave resulted in his scoring highly on one of the exams, only to have it invalidated. But itsimply 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 whenconfronted with test results that had a disproportionate racial impact, its actions were protected.
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2
Appendix B
UNITED STATES DISTRICT COURTDISTRICT 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. In
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
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 RulingDenying 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%. Those with a total score above 70% on the exam would
pass.
Forty-one applicants took the Captain exam, of whom 25 were
white, 8 black, and 8 Hispanic. Twenty-two of those applicants
passed, of whom 16 were white, 3 black, and 3 Hispanic. Pl. Ex.
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. Thirty-four passed, of
whom 25 were white, 6,black and 3 Hispanic. Id. There were 8
vacancies, but because 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
characterized the exam results as ~a very significant disparate
impact . . . 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." Pl. Ex.
Vol. IV(A) at 32. 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
another way of saying it wasn't fair. A test can be job-related
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. Pl. Ex.
Vol. 1V(A) at 88. 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. Everyone of those questions came from the
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, ~, Statement of James Watson, at 85
("I think this test was unfair. We don't use ~ 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
houses were Essentials of Fire Fighting.... [T]hese books [on
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 ~Uniform
Guidelines of Employee Selection Procedures." Pl. Ex. Vol. IV(B)
at 11-12. Plaintiffs' counsel in the present case also ~poke 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
the director of the civil service in Bridgeport ~to 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. "Id. 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
merged into a metric called "criticality or essentiality." Id.
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 "high-
level questions about hazardous materials. "Id. 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. See Def. Ex. 16
("Written Examination Reference List"). 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." Pl. Ex. Vol.
IV(B) at 24-25. 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." at 13. However, he reviewed
stati~tics provided by the City and concluded that "we're seeing
relatively high adverse impact" from the lOS tests. Id. at 11.
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, hearsaystatement at the CSB hearing is inadmissible as non-disclosedexpert evidence. Plaintiffs' argument is rejected becausedefendants proffer Dr. Hornick's not for the truth of hisconclusion that the tests had a racially disparate impact, but toshow that defendants had a good faith belief, based in part onDr. Hornick's testimony, that such a disparate impact existed andjustified the decision not to certify the exams.
10
design." Id. at 12. He stated:
Normally, whites outperform ethnic minorities on themajority of standardized testing procedures. That is,in , the case with the data that we've seen in NewHaven.
I'm a little surprised at how much adverse impact thereis in these tests. And I hope at some point here we'llbe talking in detail about that. But my conclusion isthat we did have significant adverse impact. Some ofit is fairly typical of what we've seen in other areasof the countries (sic) and other tests that people havedeveloped. But in other ways it is somewhat worse thanwhat we're typically seeing in the profession practicedby 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. Id.
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
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. He stated that he had looked
~extensively at the Lieutenant's exam and a little less at the
Captain's exam," and believed that the candidates ~should know
that material." Id. at 34-35. 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
some of the minorities on testing,H or that ~more whites ...
take the exam. H Id. at 37-38.
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 Id. at 43. She did not examine the
specific tests at issue. 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 under
represented groups. And your data are not that inconsistent
with what predictions would say were the case. H Id. at 44
(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." Id. at
46. 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. Id.
at 48. With respect to the oral exam, Dr. Helms suggested that
people who are bilingual or "speak acc~nted speech" may elicit
more negative reactions from evaluators. Id. at 49-50. As
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, wasrecused because her brother, Lt. Gary Tinney, was a candidate forpromotion on the Captain's examination. She did not attend thehearings 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 re
departments. 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; Def. Am. L.R. 56(a)2 Stmt. ~~
64-90. 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 tostrike, such evidence is relevant as background information tothe 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
Judgment [Doc. # 52] at 4. Alternatively, they argue that they
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 ~ result of the
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.
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." Fed. R. Civ. P.
56(c). 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." Anderson v. Liberty Lobby,
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." Heublein, Inc. v. United States, 966
F.2d 1455, 1461 (2d Cir. 1993) (citing Schwabenbauer v. Board of
Educ. of Olean, 667 F.2d 305, 313 (2d Cir. 1981». "Rather, the
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." Schwabembauer,
667 F.2d at 314.
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). To
do so, they must prove: (1) membership in a protected class; (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
456, 467 (2d Cir. 2001). Defendants do not dispute the first
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.'" Schnabel v.
Abramson, 232 F.3d 83, 88 (2d Cir. 2000) (quoting St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 509 .(1993». In this case,
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. See Pl. Mem. of Law at 32, 34
35. 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 iently job-
related to be defensible under the law.
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 African-
American candidates for both the Lieutenant and Captain
positions, as judged by the EEOC Guidelines. Pl. L.R. 56 Stmt. ~
246; Def. 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 examineespassed the Captain's examination, while defendants assert thefigure 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. See Pl. L.R. 56(a) Stmt. ~ 246; Def. L.R. 56(a)
Stmt. ~ 246. 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
exam was 0.58, compared to 0.59 on the 2003 test. See Pl. L.R.
56(a) Stmt. ~ 246; Def. L.R. 56(a) Stmt. ~ 246. The 1999 Captain
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. Thus, the rank of the minority applicants is
also a key factor. 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
Lieutenant. Although the record lacks specification, witnesses
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 Titl~ VII were
pretextual.
b. Validation Study and Less DiscriminatoryAlternatives
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 job
related. 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 ~re a defense to a claim
of disparate impact." Def. Mem. of Law at 32 (emphasis
supplied). 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." 29 C.F.R. §
l607.3(A). The Guidelines further state:
Where two or more selection procedures are availablewhich serve the user's legitimate interest in efficientand trustworthy workmanship, and which aresubstantially equally valid for a given purpose, theuser should use the procedure which has beendemonstrated to have the lesser adverse impact.Accordingly, whenever a validity study is called for bythese guidelines, the user should include, as a part ofthe validity study, an investigation of suitablealternative selection procedures and suitablealternative methods of using the selection procedurewhich have as little adverse impact as possible, todetermine the appropriateness of using or validatingthem in accord with these guidelines.
Id. at § l607.3(B) .
. Where a selection procedure results in an adverseimpact on a race, sex, or ethnic group . . . and thatgroup is a significant factor in the relevant labormarket, the user generally should investigate thepossible existence of unfairness for that group if itis technically feasible to do so. The greater theseverity of the adverse impact on a group, the greaterthe need to investigate the possible existence ofunfairness.
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
specifically explaining what that approach entailed. As
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 rity with the methods lOS utilized to develop the
tests. 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
Police Department was operating under several cons~nt 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 theMayor's staff suggesting they desired to convince the CSB not tocertify, and further suggesting that if the CSB had certified,the Mayor would have announced his intention to refuse to forwardthe 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
them on the basis of race." The Court of Appeals rejected the
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. That
does not make such enactments or actions unla~ftil or
automatically suspect ... " Id. at 48-49 (quoting Raso v. Lago,
135 F.3d II, 16 (1st Cir.») (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
held that the initial results, particularly ~the 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
of discrimination" to warrant such a remedy. Id. at 228; see
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 African-
Americans 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 thegrounds that the "race-norming" procedures utilized in thosecases would be unlawful under the 1991 amendments to the CivilRights Act. 42 U.S.C. § 2000e-2(1) ("It shall be an unlawfulemployment practice for a respondent, in connection with theselection or referral of applicants or candidates for employmentor promotion, to adjust the scores of, use different cutoffscores for, or otherwise alter the .results of, employment relatedtests on the basis of race, color, religion, sex, or nationalorigin."). See also Hayden, 180 F.3d at 53 (this provision was"intended to prohibit 'race norming' and other methods of usingdifferent cut-offs for different races or altering scores basedon race.") (emphasis in original). While plaintiffs are correctthat Title VII now prohibits race-norming, none is alleged tohave happened here and the 1991 amendments do not affect thereasoning and holding of either case, namely, that a showing of a"sufficiently serious claim of discrimination" is adequate tojustify 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.3d1547, 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 actionplan to defend its decision to layoff a white teacher instead ofa black teacher with equal seniority, and the Third Circuit heldthat promoting racial diversity on the faculty, absent a historyof past discrimination, was insufficient justification for layingoff the white teacher because of her race and violated Title VII.Here, defendants had ample statistical evidence that the testshad an adverse impact on minority candidates and importantly didnot opt to select black applicants over white applicants forpromotion, but rather decided to select nobody at all. Williamsv. Consolo City of Jacksonville, No. 00cv469, 2002 U.S. Dist.LEXIS 27066 (D. Fla. July 5, 2002), can similarly bedistinguished as that case did not concern a decision not tocertify test results, but rather a post-certification decisionnot 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. It
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
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 . examination."
Hayden, 180 F:3d at 52. Here, plaintiffs. allege disparate
.treatment, not disparate impact. Nor do they have a viable claim
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 effortsto perform well on this infrequently given promotion exam, areunderstandably disappointed and frustrated that their successfulstudy efforts have come to naught this time, this result is notevidence of being disadvantaged because of their race norevidence of disparate impact because it does not show injury ordisadvantage, only uncertainty as to their performance in theCity'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
of Chicago, 869 F.2d 1033, 1038 (7th Cir. 1989) (where state law
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
[mandating a Rule of One for promotions] provide the refighters
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.'") (quoting Kirkland, 711 F.
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
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 motivationsmay be shown to have been intertwined with the race concern, thatdoes 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 reasonpersonal or political favoritism, a grudge, random conduct, anerror 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) (holding
that non-minority-owned business' ~allegation 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. Comer
v. Cisneros, 37 F.3d 775~' 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. Hayden, 180 F.3d
at 48. 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. This does not amount to a facial classification based
on race. I3 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 forselecting women and minority employees for layoff compared towhite male employees, and the Federal Circuit held that such aprogram should be subjected to strict scrutiny (without ruling onthe merits). Likewise, in Dallas Fire Fighters Assoc. v City ofDallas, 150 F.3d 438 (5th Cir. 1998), also relied on byplaintiffs, the city followed an affirmative action plan thatspecifically called for promoting African-American, Hispanic andfemale firefighters out of rank, ahead of white and NativeAmerican male fighters with higher test scores. Here, noclassification system was employed, as the test results werediscarded for every examinee regardless of race. Whiledefendants clearly were concerned with achieving diversity in thedepartment by enhancing minority promotional opportunity,plaintiffs offer no evidence that defendants employed an actualrace-based affirmative action plan that advantaged minority overwhite 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. Pl. Mem. in Opp.
at 64. 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.
256, 279 (1979». Nothing 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. Rather, they 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 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." Hayden, 180 F.3d
at 51. 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
Securities Corp., 7 F.3d 1085, 1088 (2d Cir. 1993) (evidence of
"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 theEqual 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
voted to certify the results. Plaintiffs argue that ~a 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 African
American 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.
lsiJanet Bond ArtertonUnited States Dis Judge
Dated at New Haven, Connecticut this 28th day of September, 2006.
48
- 1 -
06-4996-cv
Ricci v. DeStefano
UNITED STATES COURT OF APPEALSFOR 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 I join entirely Judge Parker’s opinion concurring in the denial of a rehearing en banc. I also
2 join fully Judge Katzmann’s opinion because, as he points out, going en banc is unnecessary as all
3 that is involved in this case has already been described in the filed opinions. I write today to
For an exceptionally thoughtful and thorough discussion of this area, see Richard A. Primus,1
Equal Protection and Disparate Impact: Round 3, 117 Harv. L. Rev. 494 (2003).
- 2 -
1 emphasize one reason that, I believe, makes it particularly inappropriate for us to exercise our purely
2 discretionary power to review this case en banc.
3 The question of whether a municipality incurs liability when, motivated only by a desire to
4 comply with federal anti-discrimination law, it takes race-neutral actions that have racially
5 significant consequences, is undoubtedly an interesting one. To reach that question one must,1
6 however, first examine whether the municipality’s proffered desire to comply with federal law is in
7 good faith and not a pretext. After that, we would normally ask whether that asserted desire,
8 although in good faith, is not also in part motivated by other, racial, considerations. In this case, the
9 municipality claimed that its actions were grounded solely in the desire to comply with federal law.
10 The plaintiffs alleged instead that this was not the real reason for the city’s actions, and asserted that
11 the city had other less salubrious, and directly racial-political, reasons for what it did.
12 The district court and the panel readily rejected the notion that the city’s stated reason was
13 just a pretext. But neither court went on to consider whether the city was influenced by mixed
14 motives. And that is why Judge Cabranes, in his dissent from the denial of en banc review, suggests
15 that, since the plaintiffs alleged that their race motivated the defendants’ decision, the district court
16 should have undertaken such a mixed motive analysis. He contends, that is, that the courts should
17 have examined the situation as one in which a legitimate motive may have combined with an
18 improper motive to bring about the challenged action. See Price Waterhouse v. Hopkins, 490 U.S.
19 228 (1989). He would be precisely right . . . except for the fact that that type of analysis is not
It is unavailable, that is, unless we reach out and consider a legal theory that the parties have2
eschewed. Sometimes – for example, in matters of life and death – such a reaching out may beappropriate. But generally, and specifically in this case, it is not.
- 3 -
1 available to us in this case. It is not available for the most traditional of legal reasons. The parties
2 did not present a mixed motive argument to the district court or to the panel. 2
3 It is the unavailability of mixed motive analysis that makes this case an especially undesirable
4 one for elective review. The interesting issue the case might present – concerning the obligations
5 of a municipality seeking only to comply with the relevant federal anti-discrimination law – is, in
6 the circumstances before us, clouded by the allegations that something more is going on. Given the
7 plaintiffs’ failure to argue mixed-motive analysis, those allegations cannot be adequately evaluated.
8 But they nevertheless cannot help but affect how we look at the city’s actions. And they may even
9 influence, inappropriately, how we are inclined to rule on the underlying, “interesting” issue.
10 Difficult issues should be decided only when they must be decided, or when they are truly
11 well presented. When they need not be decided – and rehearing en banc is always a matter of choice,
12 not necessity – it is wise to wait until they come up in a manner that helps, rather than hinders, clarity
13 of thought. That is not so in this case.
14 For this reason too, I concur in the denial of rehearing en banc.
15
I have not solicited concurrences for my opinion.1
1
06-4996-cvRicci v. DeStefano
1 DENNIS JACOBS, Chief Judge, dissenting from the denial of
2 rehearing in banc:
3
4 Along with almost half of the members of this Court, I
5 join Judge Cabranes’s dissent, which does the heavy lifting
6 on the procedural merits of in banc review. I write
7 separately to answer respectfully the concurring opinions of
8 Judge Calabresi and Judge Katzmann. 1
9 Judge Katzmann and those of my colleagues who signed
10 his opinion “recognize” that this case “presents difficult
11 issues,” but would leave further review and consideration to
12 the Supreme Court, citing a Circuit “tradition” of deference
13 to panel adjudication. In effect, this has become a Circuit
14 tradition of hearing virtually no cases in banc.
15 The grant or denial of in banc review is governed by
16 Fed. R. App. P. 35, which says that in banc rehearing is
17 disfavored--unless such review is needed for coherence of
In the alternative, Judge Calabresi contends that we2
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 the Court’s decisions or “the proceeding involves a question
2 of exceptional importance.” Fed. R. App. P. 35(a).
3 Accordingly, the next subdivision of Rule 35 requires the
4 petition to explain why the case falls within one or both of
5 these categories. See Fed. R. App. P. 35(b).
6 This weighing calls for an exercise of discretion.
7 Judge Calabresi’s concurring opinion deprecates this
8 standard as a “purely discretionary power” that is “always a
9 matter of choice” (emphasis added). He nevertheless
10 “join[s] fully” in both Judge Parker’s opinion, which
11 counsels against in banc review as a matter of (plain
12 ordinary) discretion, and Judge Katzmann’s opinion, which
13 decides against in banc review as a matter of tradition. I
14 understand Judge Calabresi to be saying, in effect, that
15 when it comes to in banc review, discretion should be
16 leavened by caprice. As applied to this case, that means
17 that there might be discretionary grounds for denying in
18 banc review were it not already foreclosed by tradition.2
“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 federalstatutes as they are written . . . and we are not bound byparties’ stipulations of law.”); Neilson v. D'Angelis, 409F.3d 100, 105 n.2 (2d Cir. 2005) (“The parties’ apparentagreement on the standard of ‘similarity’ for ‘class of one’cases does not control our judgment, because this court isnot bound by stipulations of law.”); United States v.Pabon-Cruz, 391 F.3d 86, 97 (2d Cir. 2004) (“It is clearthat we have the authority to resolve this question despiteits not having been raised in the District Court proceedingsor in the parties’ initial briefs.”).
3
1 This occluded view of our discretion to sit in banc
2 runs counter to the criteria set down for our guidance in
3 Rule 35. No doubt, the proper exercise of discretion
4 results in the denial of review in the overwhelming number
5 of cases. And the resulting pattern may resemble the
6 pattern of denial that would result from saying “no” by
7 tradition. But the decision to grant or deny in banc review
8 is like any other discretionary decision in the sense that
9 discretion should be exercised, not elided or stuck in a
4
1 default position. See United States v. Campo, 140 F.3d 415,
2 419 (2d Cir. 1998) (holding that “refusal to exercise
3 discretion accorded [the court] by law . . . constitutes an
4 error of law”).
5 The exercise of discretion to hear cases in banc is
6 integral to the judicial process. The advisory notes
7 emphasize that “an en banc proceeding provides a safeguard
8 against unnecessary intercircuit conflicts.” See Fed. R.
9 App. P. 35, Advisory Committee Notes (1998 Amendments). In
10 other words, issues of exceptional importance that may
11 divide the circuits should be subject to in banc review lest
12 a three-judge panel adopt a rule of law that would not
13 command a majority vote of the appeals court as a whole, and
14 thereby provoke an avoidable circuit conflict that the
15 Supreme Court would have to resolve.
16 That is why I respectfully disagree with those of my
17 colleagues who are pleased to defer as a matter of tradition
18 to the ruling of the three-judge panel, and thereby leave
19 further consideration to the Supreme Court. Cf. Landell v.
20 Sorrell, 406 F.3d 159, 167 (2d Cir 2005) (Sack, J., and
5
1 Katzmann, J., concurring) (observing that in banc hearing
2 should be avoided where it “would only forestall resolution
3 of issues destined appropriately for Supreme Court
4 consideration”).
5 I do not think it is enough for us to dilate on
6 exceptionally important issues in a sheaf of concurrences
7 and dissents arguing over the denial of in banc review. If
8 issues are important enough to warrant Supreme Court review,
9 they are important enough for our full Court to consider and
10 decide on the merits. Of course, if an in banc poll
11 discloses broad-based agreement with the panel opinion, in
12 banc review may be a spinning of wheels. Under such
13 circumstances, it may very well be an appropriate exercise
14 of discretion to deny rehearing in banc. But to rely on
15 tradition to deny rehearing in banc starts to look very much
16 like abuse of discretion.
UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUITAugust Term, 2005(Argued: June 8, 2006 Decided: January 25, 2007)Docket Nos. 04-6692-ag(L), 04-6693-ag(CON), 04-6694-ag(CON), 04-6695-ag(CON), 04-6696-ag(CON), 04-6697-ag(CON), 04-6698-ag(CON), 04-6699-ag(CON)_____________________________________________ RIVERKEEPER, INC., NATURAL RESOURCES DEFENSE COUNCIL, WATERKEEPERALLIANCE, SOUNDKEEPER, INC., SCENIC HUDSON, INC., SAVE THE BAY-PEOPLEFOR NARRAGANSETT BAY, FRIENDS OF CASCO BAY, AMERICAN LITTORALSOCIETY, DELAWARE RIVERKEEPER NETWORK, HACKENSACK RIVERKEEPER,INC., NEW YORK/NEW JERSEY BAYKEEPER, SANTA MONICA BAYKEEPER, SANDIEGO BAYKEEPER, CALIFORNIA COASTKEEPER, COLUMBIA RIVERKEEPER,CONSERVATION LAW FOUNDATION, SURFRIDER FOUNDATION, STATE OF RHODEISLAND, STATE OF CONNECTICUT, STATE OF DELAWARE, COMMONWEALTH OFMASSACHUSETTS, STATE OF NEW JERSEY, STATE OF NEW YORK, APPALACHIANPOWER COMPANY, ILLINOIS ENERGY ASSOCIATION, UTILITY WATER ACT GROUP,PSEG FOSSIL LLC, PSEG NUCLEAR LLC, ENTERGY CORPORATION, Petitioners,– v. – UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, STEPHEN L. JOHNSON, in his official capacity as ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondents.____________________________________________Before: STRAUB, SOTOMAYOR, and HALL, Circuit Judges.____________________________________________Petitioners challenge a final rule promulgated by the Environmental ProtectionAgency pursuant to section 316(b) of the Clean Water Act, 33 U.S.C. § 1326(b), that is intendedto protect aquatic organisms from being harmed or killed by cooling water intake structures atlarge, existing power-producing facilities. While we conclude that certain aspects of the rule are
2
based on a reasonable interpretation of the Clean Water Act and supported by substantialevidence in the administrative record, several aspects of the rule are not consistent with thestatute, are not supported by sufficient evidence, or were not properly subject to notice andcomment. We therefore grant in part and deny in part the petitions for review and dismiss in partone aspect of the petitions for lack of jurisdiction because there is no final agency action toreview. REED W. SUPER, Morningside Heights LegalServices, Inc., Environmental Law Clinic, ColumbiaUniversity School of Law (Michelle Avallone, JuliaErrea, Vivian Mills, Ian Dattner, Monique Mendez,Misti Duvall, Devon Knowles, Molly McOwan,Adam Orford, Scott Sneddon, on the brief; P. KentCorell, of counsel), New York, New York, forPetitioners Riverkeeper, Inc., Natural ResourcesDefense Council, Waterkeeper Alliance,Soundkeeper, Inc., Scenic Hudson, Inc., Save theBay–People for Narragansett Bay, Friends ofCasco Bay, American Littoral Society, DelawareRiverkeeper Network, Hackensack Riverkeeper,Inc., New York/New Jersey Baykeeper, SantaMonica Baykeeper, San Diego Baykeeper,California Coastkeeper, Columbia Riverkeeper,Conservation Law Foundation, and SurfriderFoundation.TRICIA K. JEDELE, Special Assistant AttorneyGeneral of Rhode Island, Providence, Rhode Island(Patrick C. Lynch, Attorney General of RhodeIsland; Michael Rubin, Special Assistant AttorneyGeneral, Providence, Rhode Island; RichardBlumenthal, Attorney General of Connecticut,Kimberly Massicotte and Matthew Levine,Assistant Attorneys General, Hartford, Connecticut;Carl C. Danberg, Attorney General of Delaware,Kevin Maloney, Deputy Attorney General,Wilmington, Delaware; Thomas F. Reilly, AttorneyGeneral of Massachusetts, Andrew Goldberg,
3
Assistant Attorney General, Boston, Massachusetts;Zulima V. Farber, Attorney General of New Jersey,Ellen Barney Balint, Deputy Attorney General,Trenton, New Jersey; Eliot Spitzer, AttorneyGeneral of New York, Maureen F. Leary, AssistantAttorney General, Albany, New York, on the brief),for State Petitioners Rhode Island, Connecticut,Delaware, Massachusetts, New Jersey, and NewYork.KRISTY A.N. BULLEIT, Hunton & Williams,Washington, D.C. (James N. Christman, ElizabethE. Aldridge, Hunton & Williams, Richmond,Virginia, on the brief), for Petitioners AppalachianPower Company, Illinois Energy Association, andUtility Water Act Group.KARL S. LYTZ, Latham & Watkins LLP, SanFrancisco, California (Christopher J. McAuliffe,PSEG Services Corporation, Newark, New Jersey;David J. Hayes, Cassandra Sturkie, Latham &Watkins LLP, Washington, D.C., on the brief), forPetitioners PSEG Fossil LLC and PSEG NuclearLLC.CHUCK D. BARLOW, Entergy Services, Inc.,Jackson, Mississippi and ELISE N. ZOLI, GoodwinProcter LLP, Boston, Massachusetts (Robert H.Fitzgerald, U. Gwyn Williams, Goodwin ProcterLLP, Boston, Massachusetts, on the brief), forPetitioner Entergy Corp.DAVID S. GUALTIERI, CYNTHIA J. MORRIS,and JESSICA O’DONNELL, United StatesDepartment of Justice (Sue Ellen Woolridge,Assistant Attorney General, John C. Cruden,Deputy Assistant Attorney General, on the brief;Leslie J. Darman, United States EnvironmentalProtection Agency, of counsel), Washington, D.C.,for Respondents.Lisa Madigan, Attorney General of Illinois,Matthew Dunn, Chief, Environmental Enforcement/
4
Asbestos Litigation Division, Ann Alexander,Environmental Counsel and Assistant AttorneyGeneral, Chicago, Illinois, for Amicus Curiae Stateof Illinois.Jon Bruning, Attorney General of Nebraska,Lincoln, Nebraska (David D. Cookson, SpecialCounsel to the Attorney General, Lincoln,Nebraska; Troy King, Attorney General ofAlabama, Montgomery, Alabama; Gregory D.Stumbo, Office of the Attorney General of theCommonwealth of Kentucky, Frankfort, Kentucky;Wayne Stenehjem, Attorney General of NorthDakota, Bismarck, North Dakota; Paul G. Summers,Attorney General of Tennessee, Nashville,Tennessee; Steve Carter, Office of the IndianaAttorney General, Indianapolis, Indiana, on thebrief), for State Amici Curiae Nebraska, Alabama,Kentucky, North Dakota, Tennessee, and Indiana.Nancy Elizabeth Olinger, Assistant AttorneyGeneral (Greg Abbott, Attorney General of Texas,Barry R. McBee, First Assistant Attorney General,Edward D. Burbach, Deputy Attorney General forLitigation, Karen W. Kornell, Chief, NaturalResources Division, on the brief), Austin, Texas, forAmicus Curiae Texas Commission onEnvironmental Quality. Russell S. Frye, FryeLaw PLLC, Washington, D.C.,for Amicus Curiae American Petroleum Institute. Jonathan F. Lewis, Clean Air Task Force, Boston,Massachusetts, for Amici Curiae Healthlink,Kentucky Resources Council, New England CleanWater Action, The Ohio Environmental Council,and Ohio Valley Environmental Council.Lisa Heinzerling, Georgetown University LawCenter, Washington, D.C., for Amicus Curiae OMBWatch.
1 We refer to statutory provisions mentioned in the text by their section in the CWA andprovide in citations both the section of the Act and the parallel section of the United States Code.5
SOTOMAYOR, Circuit Judge:This is a case about fish and other aquatic organisms. Power plants and otherindustrial operations withdraw billions of gallons of water from the nation’s waterways each dayto cool their facilities. The flow of water into these plants traps (or “impinges”) large aquaticorganisms against grills or screens, which cover the intake structures, and draws (or “entrains”)small aquatic organisms into the cooling mechanism; the resulting impingement and entrainmentfrom these operations kill or injure billions of aquatic organisms every year. Petitioners herechallenge a rule promulgated by the Environmental Protection Agency (“the EPA” or “theAgency”) pursuant to section 316(b) of the Clean Water Act (“CWA” or “the Act”), 33 U.S.C.§ 1326(b),1 that is intended to protect fish, shellfish, and other aquatic organisms from beingharmed or killed by regulating “cooling water intake structures” at large, existing power-producing facilities. For the reasons that follow, we grant in part and deny in part the petitions forreview, concluding that certain aspects of the EPA’s rule are based on a reasonable interpretationof the Act and supported by substantial evidence in the administrative record, but remandingseveral aspects of the rule because they are inadequately explained or inconsistent with thestatute, or because the EPA failed to give adequate notice of its rulemaking. We also dismiss forlack of jurisdiction one aspect of the petitions because there is no final agency action to review. BACKGROUNDOur decision in Riverkeeper, Inc. v. EPA, 358 F.3d 174 (2d. Cir. 2004)
6
(“Riverkeeper I”), which addressed challenges to the EPA’s rule governing cooling water intakestructures at new – as opposed to existing – facilities discusses at length the procedural andfactual background of the rulemaking pursuant to section 316(b). We presume familiarity withRiverkeeper I and provide here only a brief overview of the statute and the various stages of therulemaking. These consolidated petitions for review concern a final rule promulgated by theEPA regarding the water that large, existing power plants withdraw from rivers, lakes, and otherwaterways of the United States to cool their facilities. See 40 C.F.R. § 125.91(a). This coolingprocess requires power plants to extract billions of gallons of water per day from the nation’swaters, thereby impinging and entraining a huge number of aquatic organisms. Riverkeeper I,358 F.3d at 181. Indeed, a single power plant can kill or injure billions of aquatic organisms in asingle year. Id. Cognizant of this problem, Congress in 1972 amended the CWA, 33 U.S.C.§§ 1251-1387, to regulate cooling water intake structures. See Federal Water Pollution ControlAct Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816 (1972). We have describedCongress’s regulation of such structures as “something of an afterthought,” Riverkeeper I, 358F.3d at 186 n.12, given that the directive appears in a section of the Act addressing the seeminglyunrelated issue of thermal pollution, see CWA § 316(a), 33 U.S.C. § 1326(a). The Act, asamended, provides that “[a]ny standard established pursuant to section 1311 of this title [CWAsection 301] or section 1316 of this title [CWA section 306] and applicable to a point sourceshall require that the location, design, construction, and capacity of cooling water intakestructures reflect the best technology available for minimizing adverse environmental impact.”
2 A “point source” is “any discernible, confined and discrete conveyance . . . from whichpollutants are or may be discharged.” 33 U.S.C. § 1362(14). 7
CWA § 316(b), 33 U.S.C. § 1326(b). The provisions of the Act cross-referenced in section 316(b) direct the EPA toissue rules regulating the discharge of pollution from existing point sources, CWA § 301, 33U.S.C. § 1311, and new point sources, CWA § 306, 33 U.S.C. § 1316.2 As we noted inRiverkeeper I, “[w]hen the EPA established new source performance discharge standard[s] . . . itought then to have regulated . . . intake structures . . . .” 358 F.3d at 185 (internal quotationmarks omitted; emphasis in original). Put differently, section 316(b) required the EPA topromulgate regulations for cooling water intake structures at the same time that it establishedpollution discharge standards pursuant to sections 301 and 306. The EPA’s first attempt atregulation under section 316(b), however, was remanded by the Fourth Circuit in 1977 onprocedural grounds, and years passed without the EPA issuing new rules. Id. at 181 (citingAppalachian Power Co. v. Train, 566 F.2d 451 (4th Cir. 1977)). Environmental groupsultimately sued the EPA and won a consent decree, pursuant to which the Agency established atimetable to issue rules pursuant to Section 316(b) in three “phases.” Id. & n.3. Phase I –addressed in Riverkeeper I – governs new facilities; Phase II – addressed here – covers large,existing power plants; and Phase III will regulate existing power plants not governed by Phase II,as well as other industrial facilities. See Riverkeeper, Inc. v. Whitman, No. 93 Civ. 0314 (AGS),2001 WL 1505497, at *1 n.3 (S.D.N.Y. Nov. 27, 2001).Our interpretation of section 316(b) is informed by the two provisions it cross-references, CWA sections 301 and 306. Section 301 sets forth a framework under which
8
limitations on the discharge of pollutants from existing sources would become more stringentover time. CWA § 301(b), 33 U.S.C. § 1311(b); see Riverkeeper I, 358 F.3d at 185. Section 301(b)(1)(A) required the EPA, beginning in 1977, to set effluent limitations for existingsources based on “the best practicable control technology currently available,” or “BPT.” CWA§ 301(b)(1)(A), 33 U.S.C. § 1311(b)(1)(A). By 1989, existing source effluent limitations were tobe based on the more stringent “best available technology economically achievable,” or “BAT.” CWA § 301(b)(2)(A), 33 U.S.C. § 1311(b)(2)(A). Additionally, section 306 requires the EPA toestablish “standards of performance” for the control of the discharge of pollutants from newsources based on “the best available demonstrated control technology,” a standard that “reflectsthe greatest degree of effluent reduction.” CWA § 306(a)(1), 33 U.S.C. § 1316(a)(1). In section 316(b), Congress established yet another standard to govern coolingwater intake structures, which requires such structures to reflect the “best technology availablefor minimizing adverse environmental impact,” or “BTA.” CWA § 316(b), 33 U.S.C. § 1326(b). We noted in Riverkeeper I that “[a]lthough the EPA is permitted to consider a technology’s costin determining whether it is ‘practicable,’ ‘economically achievable,’ or ‘available,’ it shouldgive decreasing weight to expense as facilities have time to plan ahead to meet tougherrestrictions.” 358 F.3d at 185 (citations omitted). Additionally, we observed that “[b]ecausesection 316(b) refers to sections 301 and 306 but provides a different standard (‘best technologyavailable for minimizing adverse environmental impact’ instead of, for example, ‘best availabledemonstrated control technology’) and does not explicitly provide that regulations pursuant tosection 316(b) are subject to the requirements of sections 301 and 306, we think it is permissiblefor the EPA to look to those sections for guidance but to decide that not every statutory directive
3 As we noted in Riverkeeper I, Cooling water systems fall into three groups. “Once-through” systems take waterin, use it to absorb heat, and return the water to its source at a higher temperature. “Closed-cycle” systems recirculate the water (after allowing it to cool off in areservoir or tower before being reused) and add water to the system only toreplace that which is lost through evaporation. Closed-cycle systems, therefore,withdraw far less water than once-through systems. Dry cooling systems . . . useair drafts to transfer heat, and, as their name implies, they use little or no water.358 F.3d at 182 n.5 (internal citations omitted). 9
contained therein is applicable” to rulemaking under section 316(b). Id. at 187. With thisgeneral background in mind, we consider Phases I and II of the EPA’s rulemaking.I. The Phase I RuleOn December 18, 2001, the EPA issued its first rule (“the Phase I Rule”)governing cooling water intake structures for new – as opposed to existing – facilities. Regulations Addressing Cooling Water Intake Structures for New Facilities; Final Rule, 66 Fed.Reg. 65,256 (Dec. 18, 2001) (codified at 40 C.F.R. pts. 9, 122-25). The Phase I Rule establisheda two-track approach to regulating cooling water intake systems at new facilities, under which anew facility could choose one of two “tracks” to comply with the statute. Track I creatednational intake capacity and velocity standards based on closed-cycle cooling technology,3 whichthe EPA deemed the best technology available for minimizing adverse environmental impacts. See Riverkeeper I, 358 F.3d at 182-83. Track II did not require the use of any specific technologyso long as the facility “can show, in a demonstration study, ‘that the technologies employed willreduce the level of adverse environmental impact . . . to a comparable level to that which’ wouldbe achieved applying Track I’s capacity and velocity requirements.” Id. at 183 (quoting 40C.F.R. § 125.84(d)(1)).
10
Environmental and industry groups challenged certain aspects of the rule,including, inter alia, the part of the Track II procedure allowing power plants to comply withsection 316(b) by undertaking so-called “restoration measures,” such as restocking the waterbodywith fish, reclaiming abandoned mines to reduce drain-off, or removing barriers to fishmigration, to maintain fish and shellfish in a waterbody at certain levels. In Riverkeeper I, weupheld most aspects of the Phase I Rule, but remanded the provisions relating to the Track IIrestoration option. We found that the restoration option was inconsistent with section 316(b)’srequirement that the EPA minimize adverse environmental impacts by regulating the “‘location,design, construction, and capacity of cooling water intake structures’” because this option hasnothing to do with the location, design, construction, or capacity of such structures. Id. at 189(quoting CWA § 316(b), 33 U.S.C. § 1326(b)). Given this, we held that the EPA hadimpermissibly exceeded its authority in allowing Phase I facilities to use these restorationmeasures to comply with regulations implementing the statute. Id. II. The Phase II Rule On July 9, 2004, the EPA issued a final rule, pursuant to the second phase of theconsent decree (“the Phase II Rule” or “the Rule”), that governs cooling water intake structures atlarge, existing power plants. See Final Regulations to Establish Requirements for Cooling WaterIntake Structures at Phase II Existing Facilities, 69 Fed. Reg. 41,576 (July 9, 2004) (codified at40 C.F.R. pts. 9, 122-125). The Phase II Rule covers existing facilities that are “point sources”and that, as their primary activity, “both generate[] and transmit[] electric power, or generate[]electric power but sell[] it to another entity for transmission,” “use[] or propose[] to use coolingwater intake structures with a total design intake flow of 50 million gallons per day (MGD) or
11
more,” and “use[] at least 25 percent of water withdrawn exclusively for cooling purposes.” 40C.F.R. § 125.91. Although we will discuss the specifics of the Rule with respect to eachchallenge, we provide here an overview of the Rule. The Phase II Rule sets forth five compliance alternatives. See 40 C.F.R.§ 125.94(a). Section 125.94(a) requires that a facility select and implement one of the following“for establishing best technology available for minimizing adverse environmental impact”:(1)(i) You may demonstrate to the Director that you have reduced, or will reduce,your flow commensurate with a closed-cycle recirculating system. In this case,you are deemed to have met the applicable performance standards and will not berequired to demonstrate further that your facility meets the impingement mortalityand entrainment performance standards specified in paragraph (b) of thissection. . . .; or(ii) You may demonstrate to the Director that you have reduced, or will reduce, yourmaximum through-screen design intake velocity to 0.5 ft/s or less. In this case, you aredeemed to have met the impingement mortality performance standards and will not berequired to demonstrate further that your facility meets the performance standards forimpingement mortality specified in paragraph (b) of this section and you are not subjectto the requirements in §§ 125.95, 125.96, 125.97, or 125.98 as they apply to impingementmortality. However, you are still subject to any applicable requirements for entrainmentreduction . . . .[;](2) You may demonstrate to the Director that your existing design andconstruction technologies, operational measures, and/or restoration measures meetthe performance standards specified in paragraph (b) of this section and/or therestoration requirements in paragraph (c) of this section[;](3) You may demonstrate to the Director that you have selected, and will installand properly operate and maintain, design and construction technologies,operational measures, and/or restoration measures that will, in combination withany existing design and construction technologies, operational measures, and/orrestoration measures, meet the performance standards specified in paragraph (b)of this section and/or the restoration requirements in paragraph (c) of this section;(4) You may demonstrate to the Director that you have installed, or will install,and properly operate and maintain an approved design and constructiontechnology in accordance with § 125.99(a) or (b); or
4 The “calculation baseline” is “an estimate of impingement mortality and entrainmentthat would occur” at a specific site based on a number of quantitative assumptions regardingintake velocity and the location and design of the site’s intake structures. 40 C.F.R. § 125.93. The regulation also permits a site’s specific historical and current data on impingement and12
(5) You may demonstrate to the Director that you have selected, installed, and areproperly operating and maintaining, or will install and properly operate andmaintain design and construction technologies, operational measures, and/orrestoration measures that the Director has determined to be the best technologyavailable to minimize adverse environmental impact for your facility inaccordance with paragraphs (a)(5)(i) or (ii) of this section. . . .40 C.F.R. § 125.94(a). The Phase II Rule does not require large, existing power plants to install closed-cycle cooling systems, although a facility with such a system (or one whose intake flow iscommensurate with that of a closed-cycle system) will be considered in compliance with theRule. 40 C.F.R. § 125.94(a)(1)(i). The Rule instead references national performance standards,discussed below, that “are based on consideration of a range of technologies that EPA hasdetermined to be commercially available for the industries affected as a whole.” 69 Fed. Reg. at41,598-99. And rather than limiting BTA to technologies based on closed-cycle cooling systems,the EPA designated a “suite” of technologies – including fine- and wide-mesh wedgewirescreens, aquatic filter barrier systems, barrier nets, and fish return systems, among others, id. at41,599; see also 40 C.F.R. § 125.99(a) – as BTA for large, existing power plants.Section 125.94(b) establishes national performance standards to be achievedthrough one of the compliance alternatives set forth in section 125.94(a). With respect toimpingement mortality, it provides that facilities choosing “compliance alternatives in paragraphs(a)(2), (a)(3), or (a)(4) of this section . . . must reduce impingement mortality for all life stages offish and shellfish by 80 to 95 percent from the calculation baseline.”4 Id. § 125.94(b)(1). With
entrainment to serve as a basis for this baseline. Id. 13
respect to entrainment, facilities that choose compliance alternatives in paragraphs (a)(1)(ii), (a)(2), (a)(3), or (a)(4) of thissection . . . must also reduce entrainment of all life stages of fish and shellfish by60 to 90 percent from the calculation baseline if: (i) [the] facility has a capacity utilization rate of 15 percent or greater, and (ii)(A) . . . uses cooling water withdrawn from a tidal river, estuary, ocean, or oneof the Great Lakes; or (B) . . . uses cooling water withdrawn from a freshwaterriver or stream and the design intake flow of your cooling water intake structuresis greater than five percent of the mean annual flow.Id. § 125.94(b)(2). Section 125.94(c) permits facilities to comply with the Rule by implementingrestoration measures “in place of or as a supplement to installing design and control technologiesand/or adopting operational measures that reduce impingement mortality and entrainment.” Id.§ 125.94(c). In order to adopt restoration measures under the Rule, a facility must demonstratethat “meeting the applicable performance standards or site-specific requirements through the useof design and construction technologies and/or operational measures alone is less feasible, lesscost-effective, or less environmentally desirable than meeting the standards . . . through the useof restoration measures.” Id. § 125.94(c)(1). Moreover, the restoration measures implementedby the facility must produce ecological benefits “at a level that is substantially similar” to whatwould be achieved by meeting the national performance standards of section 125.94(b). Id.§ 125.94(c)(2). The compliance provision of section 125.94(a)(5) permits what is in effect a site-specific compliance alternative to the generally applicable performance standards in two
5 The NPDES process is promulgated under CWA section 402(a)(1), 33 U.S.C.§ 1342(a)(1). 14
circumstances. In the first circumstance (“the cost-cost compliance alternative” or “the cost-costvariance”), if a facility demonstrates that its compliance costs “would be significantly greaterthan the costs considered by the Administrator,” the permitting authority must make a site-specific determination of BTA that is “as close as practicable to the applicable performancestandards . . . without resulting in costs that are significantly greater than the costs considered bythe Administrator” in establishing those standards. 40 C.F.R. § 125.94(a)(5)(i). In the secondcircumstance (“the cost-benefit compliance alternative” or “the cost-benefit variance”), thepermitting authority must make a site-specific determination of BTA that is “as close aspracticable” to the national performance standards if a facility demonstrates that its compliancecosts would be “significantly greater than the benefits of complying” with the performancestandards at the facility. Id. § 125.94(a)(5)(ii).For those facilities installing technologies designated as BTA, section 125.94(d)allows the national performance standards set forth in section 125.94(b) to be satisfied bydemonstrating compliance with a technology installation and operation plan (“TIOP”), whichconcerns, inter alia, a facility’s installation, operation and maintenance of BTA. As the Rule isenforced through the permitting process under the National Pollutant Discharge EliminationSystem (“NPDES”),5 section 125.94(d)(1) provides that a facility that uses one of the compliancemethods other than closed-cycle cooling may request that compliance with the nationalperformance standards during the first permit cycle be determined with respect to whether thefacility has complied with the TIOP it submitted with its permit application. Section
6 The parties filed petitions for review here as well as in several of our sister circuits. Thepetitions were consolidated in the Ninth Circuit by order of the judicial panel on multi-districtlitigation pursuant to 28 U.S.C. §§ 1407 and 2112(a)(3). The Ninth Circuit thereafter transferredthe case here pursuant to 28 U.S.C. § 2112(a)(5).15
125.94(d)(2) authorizes facilities to request that compliance during subsequent permit terms bedetermined based on whether a facility remains in compliance with its TIOP, and in accordancewith any necessary revisions, “if applicable performance standards are not being met.” 40 C.F.R.§ 125.94(d)(2).Finally, section 125.94(f) applies solely to nuclear power facilities. It providesthat if a nuclear facility’s compliance with the Rule would conflict with a safety requirementestablished by the Nuclear Regulatory Commission, the EPA must make a site-specificdetermination of BTA that would not conflict with the Commission’s safety requirement. 40C.F.R. § 125.94(f).For purposes of judicial review, the Phase II Rule was promulgated on July 23,2004. See 69 Fed. Reg. at 41,576. Three sets of petitioners, discussed below, brought timelychallenges to the Rule.6
DISCUSSIONI. Standard of Review
We have jurisdiction to review this Rule pursuant to CWA section 509(b)(1), 33U.S.C. § 1369(b)(1). See Riverkeeper I, 358 F.3d at 183 (stating that the Phase I Rule is coveredby the jurisdictional grant of § 1369(b)(1)). As we explained in Riverkeeper I, our substantivereview is twofold. “First, we examine the regulation against the statute that contains the EPA’scharge.” Id. at 184. If Congress “has directly spoken to the precise question at issue” and its
16
intent is clear, we “must give effect to the unambiguously expressed intent of Congress.” Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). If,however, the statute is silent or ambiguous, we ask whether “the agency’s answer is based on apermissible construction of the statute.” Id. at 843. Second, if the agency has followed Congress’s unambiguously expressed intent orpermissibly construed an ambiguous statute, “we measure the regulation against the recorddeveloped during the rulemaking, but we ‘hold unlawful’ the agency’s regulation only if it is‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Riverkeeper I, 358 F.3d at 184 (quoting 5 U.S.C. § 706(2)(A)). “Normally, we must deemarbitrary and capricious an agency rule where ‘the agency has relied on factors which Congresshas not intended it to consider, entirely failed to consider an important aspect of the problem,offered an explanation for its decision that runs counter to the evidence before the agency, or isso implausible that it could not be ascribed to a difference in view or the product of agencyexpertise.’” Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 498 (2d Cir. 2005) (quoting MotorVehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal quotationmarks and citations omitted)).Finally, our review has a procedural dimension. The Administrative ProcedureAct (“APA”) requires that notice of proposed rulemaking be published in the Federal Register, 5U.S.C. § 553(b)(3), and that interested parties be allowed an opportunity to comment onproposed rules, id. § 553(c). Where an agency fails to comply with the APA’s notice andcomment provisions, we remand to the agency for further proceedings. See Sprint Corp. v. FCC,315 F.3d 369, 371 (D.C. Cir. 2003) (“Because the [agency] failed to provide adequate notice and
7 Rhode Island, Connecticut, Delaware, Massachusetts, New Jersey, and New York.8 Riverkeeper, Inc., Natural Resources Defense Council, Waterkeeper Alliance,Soundkeeper, Inc., Scenic Hudson, Inc., Save the Bay–People for Narragansett Bay, Friends ofCasco Bay, American Littoral Society, Delaware Riverkeeper Network, Hackensack Riverkeeper,Inc., New York/New Jersey Baykeeper, Santa Monica Baykeeper, San Diego Baykeeper,California Coastkeeper, Columbia Riverkeeper, Conservation Law Foundation, and SurfriderFoundation. 17
opportunity to comment, we grant the petition and remand the case to the [agency].”).II. The Petitions for ReviewThe state petitioners7 and the self-styled environmental petitioners8 challenge theRule on similar grounds. Their petitions contain the following arguments: (1) the EPA exceededits authority in rejecting closed-cycle cooling as BTA for existing facilities generally, and theAgency’s rejection of closed-cycle cooling as BTA for facilities on sensitive waterbodies is notentitled to deference because the decision was made at the direction of the Office of Managementand Budget (“OMB”); (2) the EPA exceeded its authority by establishing ranges of acceptableperformance rather than a single-numeric performance standard; (3) the CWA does not allowrestoration measures as a means of compliance; (4) the EPA failed to give adequate notice that itwould allow site-specific determinations of BTA based on cost-cost analysis, and the EPAimpermissibly construed the statute to allow site-specific determinations of BTA based on cost-benefit analysis; (5) the provision allowing that compliance with the performance standards bedetermined by establishing compliance with a facility’s TIOP is unauthorized and violates therulemaking requirement of notice and comment; and (6) the Agency has classified certain newconstructions as “existing facilities” contrary to the definitions set forth in the Phase I Rulewithout providing adequate notice and opportunity for comment.
9 UWAG petitions this court in conjunction with the Appalachian Power Company andthe Illinois Energy Association. 18
Three groups of industry petitioners, which we will refer to collectively as the“industry petitioners” or individually as Entergy Corporation (“Entergy”), the Utility Water ActGroup (“UWAG”),9 and PSEG Fossil LLC and PSEG Nuclear LLC (“PSEG”), advance variouschallenges to the Phase II Rule. Their challenges raise the following arguments: (1)section 316(b) of the CWA does not apply to existing facilities; (2) the Agency’s definition of“adverse environmental impact” is insufficiently supported by the record; (3) the EPA’sassumption of zero entrainment survival is insufficiently supported by the record; (4) the EPAimproperly requires evaluation of qualitative non-use benefits in site-specific cost-benefitanalyses; (5) the Agency failed to account for the Rule’s disproportionate impact on nuclearfacilities; (6) the EPA gave inadequate notice of the independent-supplier provision; and (7) theAgency provided no notice of its post-rulemaking definition of “Great Lakes.” The industrypetitioners also seek to preserve the right on this petition for review to raise new challenges to theRule if we remand significant aspects of it. We consider first the challenges raised by the stateand environmental petitioners and then will turn to the industry petitioners’ challenges. III. The State and Environmental Petitioners
A. Determination of BTAPerhaps the most significant challenge to the Phase II Rule is the petitioners’contention that the EPA exceeded its authority in rejecting closed-cycle cooling, and selectinginstead the suite of technologies, as the “best technology available” as required by section 316(b),33 U.S.C. § 1326(b), in large part because the Agency engaged in improper cost considerations.
19
This challenge requires us at the outset to determine to what extent, if any, the EPA can considercost when selecting “the best technology available for minimizing adverse environmentalimpact” under the statute.1. Cost Analysis Pursuant to Sections 301 and 306Section 316(b) does not itself set forth or cross-reference another statutoryprovision enumerating the specific factors that the EPA must consider in determining BTA. Thestatute, however, does make specific reference to CWA sections 301 and 306, which we havetaken previously as “an invitation” to look to those sections for guidance in “discerning whatfactors Congress intended the EPA to consider in determining” BTA. Riverkeeper I, 358 F.3d at186. We look to each of these statutes in turn.Section 301(b)(1)(A) established the BPT standard that governed the effluentlimitations applicable to existing sources through 1989. Congress provided that, in determiningBPT, the Agency could consider “the total cost of application of technology in relation to theeffluent reduction benefits to be achieved from such application.” CWA § 304(b)(1)(B), 33U.S.C. § 1314(b)(1)(B). As noted above, however, the CWA created standards that were tobecome increasingly stringent over time, and in 1989, the more lenient BPT standard for existingsources was replaced by the BAT standard of section 301(b)(2)(A), in which Congress providedthat the EPA could consider only “the cost of achieving such effluent reduction.” CWA§ 304(b)(2)(B), 33 U.S.C. § 1314(b)(2)(B). Notably omitted from the list of permissible factorsto which the EPA could look in determining BAT was the cost of technology in relation to thebenefits that technology could achieve.This shift from BPT to BAT fundamentally altered the way in which the EPA
20
could factor cost into its CWA determinations. Indeed, in analyzing BTP and BAT, the SupremeCourt stated that in “assessing BAT[,] total cost is no longer to be considered in comparison toeffluent reduction benefits,” as it had been in assessing BPT. EPA v. Nat’l Crushed Stone Ass’n,449 U.S. 64, 71 (1980). The Court indicated that the less stringent BPT standard had allowed fora “limited cost-benefit analysis” intended to “‘limit the application of technology only where theadditional degree of effluent reduction is wholly out of proportion to the costs of achieving suchmarginal level of reduction.’” Id. at 71 n.10 (quoting Remarks of Senator Muskie reprinted inLegislative History of the Water Pollution Control Act Amendments of 1972 (Committee Printcompiled for the Senate Committee on Public Works by the Library of Congress) Ser. No. 93-1,p. 170 (1973)). In determining BAT, by contrast, the EPA may consider cost as a factor to alimited degree, see id., but only as to whether the cost of a given technology could be reasonablyborne by the industry and not the relation between that technology’s cost and the benefits itachieves, Riverkeeper I, 358 F.3d at 195. Section 306, which governs the effluent limitations that apply to new sources,provides that a “standard of performance” established by the EPA must reflect the “best availabledemonstrated control technology.” CWA § 306(a)(1), 33 U.S.C. § 1316(a)(1). In languageidentical to the text of § 304(b)(2)(B) governing BAT, Congress provided that in establishingstandards of performance, the EPA “shall take into consideration the cost of achieving sucheffluent reduction,” CWA § 306(b)(1)(B), 33 U.S.C. § 1316(b)(1)(B), but did not require theEPA to conduct cost-benefit analysis. Nat’l Wildlife Fed’n v. EPA, 286 F.3d 554, 570 (D.C. Cir.2002) (“[S]ection 306 requires that, when setting the [new source performance standards], theAdministrator must take costs into consideration, but does not require that she conduct a
10 See, e.g., OMB Circular A-94, Guidelines and Discount Rates for Benefit-Cost Analysisof Federal Programs, Appendix A (1992) (defining “benefit-cost analysis” as “[a] systematicquantitative method of assessing the desirability of government projects or policies when it isimportant to take a long view of future effects and a broad view of possible side-effects” and“cost-effectiveness” as “[a] systematic quantitative method for comparing the costs of alternativemeans of achieving the same stream of benefits or a given objective”).21
cost-benefit analysis.”). Sections 301 and 306 of the CWA thus demonstrate that, after 1989,cost is a lesser, more ancillary consideration in determining what technology the EPA shouldrequire for compliance under those sections. The shift from the BPT standard to the more stringent BAT one clearly signaledCongress’s intent to move cost considerations under the CWA from a cost-benefit analysis to acost-effectiveness one. We understand the difference between these two analyses to turn on thedifference between means and ends. Cost-benefit analysis, like BPT, compares the costs andbenefits of various ends, and chooses the end with the best net benefits. By contrast, cost-effectiveness considerations, like BAT, determine which means will be used to reach a specifiedlevel of benefit that has already been established.10 Given the above and considering the parallellanguage of sections 304(b)(2)(B) and 306(b)(1)(B), the reasoning of National Crushed Stonestrongly suggests that cost-benefit analysis is no longer permitted under those sections of theCWA. 2. Cost Analysis Pursuant to Section 316(b)As already noted, section 316(b) does not itself set forth the factors that theAgency can consider in determining the “best technology available for minimizing adverseenvironmental impact.” The BTA standard of section 316(b), however, is linguistically similarto the BAT standard of section 301 and the standard that applies to new sources under
22
section 306, and to the extent that cost-benefit analysis is precluded under those statutes, onemight reasonably conclude that it is similarly not permitted under section 316(b). We concludein any event that the language of section 316(b) itself plainly indicates that facilities must adoptthe best technology available and that cost-benefit analysis cannot be justified in light ofCongress’s directive. We stated in Riverkeeper I that the EPA can consider cost in establishing BTA,but only in a limited fashion and not as a primary consideration. Indeed, “[w]ith respect to costs,‘the Administrator must inquire into the initial and annual costs of applying the technology andmake an affirmative determination that those costs can be reasonably borne by the industry.’”Riverkeeper I, 358 F.3d at 195 (quoting Chem. Mfrs. Ass’n v. EPA, 870 F.2d 177, 262 (5th Cir.1989)) (emphasis added). While the statutory language suggests that the EPA may consider costsin determining BTA, in that a technology that cannot not be reasonably borne by the industry isnot “available” in any meaningful sense, cost-benefit analysis is not similarly supported by thelanguage or purpose of the statute. Section 316(b) expressly requires a technology-driven result,cf. Natural Res. Def. Council, Inc. v. EPA, 822 F.2d 104, 123 (D.C. Cir. 1987) (“[T]he mostsalient characteristic of [the CWA’s] statutory scheme, articulated time and again by its architectsand embedded in the statutory language, is that it is technology-forcing.”), not one driven by costconsiderations or an assessment of the desirability of reducing adverse environmental impacts inlight of the cost of doing so. A selection of BTA based on cost-benefit considerations is thusimpermissibly cost-driven, but a selection based in part on cost-effectiveness considerations,while taking cost into account, remains technology-driven. The statute therefore precludes cost-benefit analysis because “Congress itself defined the basic relationship between costs and
11 This conclusion accords with the analysis in Riverkeeper I that the EPA may considercost in establishing BTA pursuant to section 316(b), but only in a limited way. In our discussionof the EPA’s choice of closed-cycle, rather than dry, cooling as BTA for Phase I facilities, see358 F.3d at 194-95, 194 n.22, we noted that “dry cooling costs more than ten times as much peryear as closed-cycle wet cooling,” but emphasized that “it is estimated to reduce water intake byonly an additional 5 percent relative to once-through cooling.” Id. at 194 (internal footnotesomitted). We acknowledged that dry cooling is both much more effective and much moreexpensive than closed-cycle cooling in absolute terms, but stressed that, as compared to thebaseline of once-through cooling systems, the marginal benefits of dry cooling were small: “it isundeniably relevant that that difference represents a relatively small improvement overclosed-cycle cooling at a very significant cost.” Id. at 194 n.22. In dicta, we characterized thismode of analysis as “relevant” and stated that it “adds a useful perspective,” id., but did not treatit as the fulcrum of our analysis. Ultimately, we deferred to the EPA’s determination insofar as itwas based on the grounds that dry cooling was too expensive for industry reasonably to bear andthat dry cooling has negative environmental effects best left to the considered judgment of theAgency. Id. at 195-96. 23
benefits.” Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 509 (1981). Moreover, thisconclusion is further supported by the fact that Congress in establishing BTA did not expresslypermit the Agency to consider the relationship of a technology’s cost to the level of reduction ofadverse environmental impact it produces.11 “When Congress has intended that an agencyengage in cost-benefit analysis, it has clearly indicated such intent on the face of the statute.” Id.at 510. Given the above, the EPA may permissibly consider cost in two ways: (1) todetermine what technology can be “reasonably borne” by the industry and (2) to engage in cost-effectiveness analysis in determining BTA. Thus, the EPA must first determine what is the mosteffective technology that may reasonably be borne by the industry. In making this initialdetermination, the most effective technology must be based not on the average Phase II facilitybut on the optimally best performing Phase II facilities, see, e.g., Kennecott v. United States EPA,780 F.2d 445, 448 (4th Cir. 1985) (“In setting BAT, EPA uses not the average plant, but the
12 We note that the EPA is by no means required to engage in cost-effectiveness analysis.Indeed, to require the Agency to conduct cost-effectiveness analysis would transform suchanalysis into a primary factor in choosing BTA, which clearly is contrary to the technology-forcing principle that animates the CWA. Equally important, we note that the Agency may alsodepart from this performance benchmark because of other permissible considerations aside fromcost, for instance, energy efficiency or environmental impact. See Riverkeeper I, 358 F.3d at195-96 (noting “the EPA was permitted to consider . . . energy efficiency in determining the ‘besttechnology available’” and could also factor in environmental impact). While the EPA hasindicated throughout the record and its briefing before us that its determination of BTA hereincluded such considerations as energy efficiency and production concerns, we nevertheless mustremand, as we explain below, for further explanation from the Agency. Accordingly, we expressno view on the merits of the EPA’s determination regarding the other factors it claims influencedits decision. 24
optimally operating plant, the pilot plant which acts as a beacon to show what is possible.”),although, of course, the EPA must still ascertain whether the industry as a whole can reasonablybear the cost of the adoption of the technology, bearing in mind the aspirational and technology-forcing character of the CWA. This technology constitutes the benchmark for performance. Once this determination has been made, the EPA may then consider other factors, including cost-effectiveness, to choose a less expensive technology that achieves essentially the same results asthe benchmark.12 For example, assuming the EPA has determined that power plants governed bythe Phase II Rule can reasonably bear the price of technology that saves between 100 - 105 fish,the EPA, given a choice between a technology that costs $100 to save 99 - 101 fish and one thatcosts $150 to save 100 - 103 fish (with all other considerations, like energy production orefficiency, being equal), could appropriately choose the cheaper technology on cost-effectivenessgrounds. Cost-benefit analysis, however, is not permitted under the statute because, as noted,Congress has already specified the relationship between cost and benefits in requiring that the
13 For this reason, we reject Entergy’s argument that the Rule is improper because its costexceeds its benefits. 25
technology designated by the EPA be the best available.13 Cf. Am. Textile Mfrs. Inst., 452 U.S. at509-10. The Agency accordingly could not make the policy decision, in the face of Congress’sdetermination that facilities use the best technology available, that an economically feasible levelof reduction of impingement mortality and entrainment is not desirable in light of its cost. Indeed, in the example above, the EPA could not choose the cheaper technology on costconsiderations under section 316(b) if the EPA had first determined that the power plants couldreasonably bear the cost of technology that could save at least 102 fish. We nevertheless acknowledge that the comparable technologies considered by theAgency need not be identically effective for the Agency to engage in cost-effectiveness analysis. Were that the case, all that would be required would be the simple determination of which amongcompeting technologies that achieved the same degree of reduction of adverse environmentalimpacts is the cheapest. Instead, the specified level of benefit is more properly understood as anarrowly bounded range, within which the EPA may permissibly choose between two (or more)technologies that produce essentially the same benefits but have markedly different costs. Withthese considerations in mind, we turn to the Rule as promulgated.3. The Determination of BTA under the Phase II RuleAs noted previously, unlike the Phase I Rule, the Phase II Rule does not requirefacilities to reduce intake flow to a level commensurate with the intake of closed-cycle systems.Instead, the Rule requires facilities to meet the national performance standards associated withthe suite of technologies the EPA identified as BTA. Petitioners’ challenge here has two
14 While the state petitioners frame their argument as a challenge to the site-specificcompliance alternatives, their brief presses the view that closed-cycle cooling is the besttechnology available and that the EPA exceeded its authority in failing to require Phase IIfacilities to adopt it. 26
components. First, the state petitioners contend that closed-cycle cooling is the best technologyavailable and that the EPA has exceeded its authority by promulgating a rule that does not requireclosed-cycle cooling, or the use of technologies producing a commensurate reduction of waterusage for existing facilities in the same manner as the Phase I Rule required for new facilities.14 Second, the environmental petitioners argue that the EPA improperly rejected closed-cyclecooling as BTA for the largest facilities on the most sensitive waterbodies at the direction ofOMB because it sought to maximize net economic benefits rather than to minimize adverseenvironmental impact. They further argue that the BTA standard of section 316(b) requires acommitment of the maximum resources economically feasible to the goal of eliminating adverseenvironmental impacts and that the statute does not permit the EPA to select BTA on the basis ofcost-benefit analysis.For the reasons that follow, we conclude that the statute’s “best technologyavailable” standard permits cost-effectiveness considerations to influence the choice amongtechnologies whose performance does not essentially differ from the performance of the best-performing technology whose cost the industry reasonably can bear, but that the statute does notpermit the EPA to choose BTA on the basis of cost-benefit analysis. As we explain below,however, the record is unclear as to the basis for the EPA’s selection of the suite of technologiesas BTA, and we therefore remand for clarification of the basis for the Agency’s decision andpotentially for a reassessment of BTA.
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The EPA stated in the Rule’s preamble that the BTA standard should beinterpreted as “best technology available commercially at an economically practicable cost,” andexplained that “an important component of economic practicability” is “the relationship of coststo environmental benefits.” 69 Fed. Reg. at 41,604. The EPA further explained that this inquiryrequired that “there should be some reasonable relationship between the cost of cooling waterintake structure control technology and the environmental benefits associated with its use.” Id.(emphasis added).The EPA took this “economically practicable” concept directly from the text of afloor speech of a single representative – the only specific reference to section 316(b) in thecongressional debates. See Riverkeeper I, 358 F.3d at 186 n.12. We noted in Riverkeeper I thatthe “paucity” of legislative history “counsels against imputing much specific intent to Congressbeyond the section’s words themselves.” Id. Moreover, we find the EPA’s interpretation ofsection 316(b) problematic because its construction significantly resembles the less stringent, andnow obsolete, BPT standard of section 301(b)(1)(A). As noted earlier, in setting forth the factorsfor the EPA to consider in establishing BPT under section 301(b)(1)(A) and the more stringentBAT under section 301(b)(2)(A), Congress made only one distinction: while the Agency couldconsider the relationship between cost and benefits in establishing BPT, CWA § 304(b)(1)(B), 33U.S.C. § 1314(b)(1)(B), it could consider cost insofar as it can be “reasonably borne” by theindustry, but not the relationship between cost and benefits, in establishing BAT, CWA§ 304(b)(2)(B), 33 U.S.C. § 1314(b)(2)(B). Riverkeeper I, 358 F.3d at 195.This difference in how the EPA can consider cost under section 304(b) inestablishing BPT and BAT is directly mirrored by the most significant textual distinction
28
between sections 301(b)(1)(A) and 301(b)(2)(A) – the requirement that a technology be“practicable” under only the less stringent BPT standard. Compare CWA § 301(b)(1)(A), 33U.S.C. § 1311(b)(1)(A) (BPT is the “best practicable control technology”) with CWA§ 301(b)(2)(A), 33 U.S.C. 1311(b)(2)(A) (BAT is the “best available technology”). The use ofthe word “practicable,” therefore, when coupled with the permissible cost considerations undersection 304, signals that Congress intended the EPA to strike a balance between cost and benefitsin determining BPT. But the word “practicable” is missing from the more stringent BATstandard, under which Congress prohibited the EPA from considering the relation of cost tobenefits. This omission is thus significant. See Russello v. United States, 464 U.S. 16, 23 (1983)(“[W]here Congress includes particular language in one section of a statute but omits it inanother section of the same Act, it is generally presumed that Congress acts intentionally andpurposely in the disparate inclusion or exclusion.” (quotation marks and citation omitted;alteration in original)). Because Congress also omitted “practicable” from section 316(b), weare troubled by the Agency’s interpretation of the statute to require “practicability” analysis hereand its implicit corollary that the Agency can undertake a cost-benefit analysis in establishingBTA under section 316(b).Our concern with the EPA's determination with section 316(b) is further deepenedby the Agency’s rejection of closed-cycle cooling and selection of a suite of technologies as thebasis for BTA for existing facilities because the suite of technologies were the most “costeffective” option. 69 Fed. Reg. at 41,667. The EPA explained this decision on several grounds. It first noted that it was rejecting closed-cycle cooling as BTA because of (1) “its generally highcosts (due to conversions),” (2) “the fact that other technologies approach the performance of this
29
option,” and (3) “concerns for energy impacts due to retrofitting existing facilities, and otherconsiderations.” Id. at 41,605. The EPA emphasized that it selected BTA based on itsdetermination that “a national requirement to retrofit existing systems is not the most cost-effective approach and at many existing facilities, retrofits may be impossible or noteconomically practicable.” Id. It further explained that its rejection of closed-cycle cooling asBTA was based on “total social costs” and “lack of cost-effectiveness,” as well as “concernsregarding potential energy impacts.” Id. at 41,606. Given the EPA’s discussion, noted above, of economically practicability, it isunclear whether the Agency improperly weighed the benefits and the costs of requiring closed-cycle cooling. Indeed, a comparison between the cost of closed-cycle cooling and the monetizedbenefits of this technology appears to have played some role in the EPA’s rejection of this optionas BTA. In the preamble to the proposed Rule, for instance, the EPA examined whether torequire closed-cycle cooling on specific large bodies of waters and stated that “the incrementalcosts of [this closed-cycle cooling] option relative to the proposed option ($413 million)significantly outweigh the incremental benefits ($146 million).” 67 Fed. Reg. at 17,158. Otherrecord evidence on the EPA’s rejection of closed-cycle cooling as BTA is a terse EPAmemorandum indicating that a requirement commensurate with closed-cycle cooling for facilitieson sensitive waterbodies would cost three times as much as the option ultimately adopted by theEPA and reduce entrainment, at most, by 1.33 times that option. Given the above indications that the EPA engaged in cost-benefit analysis, weremand for the EPA to explain its conclusions. At the outset, it is difficult to discern from therecord how the EPA determined that the cost of closed-cycle cooling could not be reasonably
15 Indeed, at one point in the Rule’s proposal, the EPA mentions that requiring closed-cycle cooling at 539 existing power plants nationwide subject to the Phase II Rule would costupwards of $2.26 billion and could close nine power plants (about 1.6% of all Phase II facilities). 67 Fed. Reg. at 17,155. There is little discussion about whether the industry could reasonablybear this burden. We note that in Riverkeeper I, it appears the EPA supplied the court with betterdata on this question, noting that of the 83 facilities subject to the Phase I Rule, dry coolingcompliance costs would equal on average more than 4% of revenue for all 83 producers and morethan 10% of the revenue at 12 facilities (nearly 15% of all Phase I facilities), presenting apossibly high barrier to entry for new facilities. See Riverkeeper I, 358 F.3d at 194. We havefound no comparable data in the record, nor has the EPA cited any. 16 Some limited evidence, however, is available in the record in intelligible form. In theRule’s proposal, the EPA noted that closed-cycle systems “generally reduce the water flow from72 percent to 98 percent, thereby using only 2 percent to 28 percent of the water used by once-through systems.” Proposed Regulations to Establish Requirements for Cooling Water IntakeStructures at Phase II Existing Facilities; Proposed Rule, 67 Fed. Reg. 17,122, 17,189 (Apr. 9,2002). The Agency went on to state that “[i]t is generally assumed that this would result in acomparable reduction in impingement and entrainment,” id., indicating that closed-cycle systemsreduce the adverse impacts of impingement and entrainment by 72 to 98 percent. In a technicaldevelopment document (“TDD”) for the proposal, however, the EPA disaggregated these data,stating that closed-cycle cooling systems use 96 to 98 percent less fresh water and 70 to 96percent less salt water than once-through systems. TDD for the Proposed § 316(b) Phase IIExisting Facilities Rule 4-1; see also Riverkeeper I, 358 F.3d at 194 n.22 (“[C]losed-cycle wetcooling systems use 96 to 98 percent less fresh water (and 70 to 96 percent less salt water) thansimilarly situated once-through systems.” (citing 66 Fed. Reg. at 65,273)). The EPA’s analysis inits proposal suggests that the disaggregated data indicate that closed-cycle cooling would reduceimpingement mortality and entrainment by 96 to 98 percent at facilities that use fresh water andby 70 to 96 percent at facilities that use salt water. A 72 to 98 percent reduction of impingementmortality and entrainment, and the corresponding disaggregated percent reductions for facilitiesusing salt and fresh water, differs from the Phase II requirement that facilities reduceimpingement mortality by 80 to 95 percent and entrainment by 60 to 90 percent. Thesedifferences seem potentially significant, especially in determining whether this suite of BTAtechnologies achieve essentially the same result as closed-cycle cooling, but are neither explained30
borne by the industry.15 Additionally, the EPA did not explain its statement that the suite oftechnologies “approach[es]” the performance of closed-cycle cooling. We see no adequatecomparison in the Rule’s proposal, the final Rule or its preamble, or the EPA’s submissions tothis Court of the effectiveness of closed-cycle cooling and the group of technologies whoseeffectiveness provided the basis for the Phase II Rule’s performance standards.16 In a technical
nor adequately compared for purposes of our review here. For instance, there does not appear tobe any discussion regarding the seemingly large differences in the rates of impingement andentrainment reduction between closed-cycle cooling and the Phase II national performancestandards. 17 The Agency, however, did provide some indication of the relative costs of closed-cyclecooling and the suite of technologies identified as BTA. The EPA stated in the preamble to theRule that the “total social cost” of closed-cycle cooling would be “$3.5 billion per year,” 69 Fed.Reg. at 41,605, and that the “final rule will have total annualized social (pre-tax) costs of $389million,” id. at 41,650. 31
area of this sort, it is difficult for judges or interested parties to determine the propriety of theAgency’s action without a justification for the action supported by clearly identified substantialevidence whose import is explained. The record evidence alone here, which consists in large partof a voluminous database compilation of studies that assess the efficacy of various technologiesat different locations, is oblique, complicated, and insufficient to permit us to determine what theEPA relied upon in reaching its conclusion. As the Supreme Court has emphasized, “[o]urrecognition of Congress’ need to vest administrative agencies with ample power to assist in thedifficult task of governing a vast and complex industrial Nation carries with it the correlativeresponsibility of the agency to explain the rationale and factual basis for its decision, even thoughwe show respect for the agency’s judgment in both.” Bowen v. Am. Hosp. Ass’n, 476 U.S. 610,627 (1986) (plurality opinion).The EPA was required to explain its judgment and the basis for it. Because theEPA purported to base its decision in large part on cost-effectiveness considerations, it wasrequired to identify and explain any evidence indicating a minimal performance differencebetween comparable technologies, but it did not do so here. It stated only that the performanceof the technologies it identified as BTA “approach” the performance of closed-cycle cooling.17
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We therefore find it impossible to judge whether the performance of these technologies isessentially the same as the performance of closed-cycle cooling, or whether they simply arecheaper per percentage point of reduction in entrainment and impingement mortality. That is, onthe record before us, it is impossible to tell whether the EPA based its decision on permissiblecost-effectiveness analysis or exceeded its authority by relying impermissibly upon a cost-benefitanalysis. To the extent that the record does not indicate the EPA’s basis, however, its statementthat “the relationship of costs to environmental benefits is an important component of economicpracticability,” 69 Fed. Reg. at 41,604, indicates that cost-benefit analysis, under the cover ofconsiderations of “practicability,” was central to the Agency’s decisionmaking.In short, the EPA’s failure to explain its decision frustrates effective judicialreview. If the EPA construed the statute to permit cost-benefit analysis, its action was not “basedon a permissible construction of the statute.” Chevron, 467 U.S. at 843. It may also be that theEPA misunderstood or misapplied cost-effectiveness analysis. If so, its decision was arbitraryand capricious because the Agency relied on factors Congress has not intended it to consider. See Waterkeeper Alliance, 399 F.3d at 498. Finally, the EPA may have simply failed either toperform the required analysis or to explain adequately a decision that was within its authority tomake. We cannot opine on this subject, because we must consider only those justifications thatthe EPA offered at the time of the rulemaking. See SEC v. Chenery, 318 U.S. 80, 87-88 (1943). Moreover, while the EPA could rely on factors other than impingement and entrainment inestablishing BTA, such as negative environmental impacts or concerns about energy productionand efficiency, see Riverkeeper I, 358 F.3d at 195-96, we are unable to determine, on the recordbefore us, whether the EPA gave paramount consideration to an improper factor in determining
18 As previously noted, the environmental petitioners, supported by amicus curiae OMBWatch, have challenged the EPA’s decision to reject closed-cycle cooling as BTA for 59facilities on the most sensitive waterbodies in part because of OMB’s participation in therulemaking process. They contend that the EPA’s action is not entitled to deference because theEPA was improperly influenced by OMB in promulgating this aspect of the Phase II Rule. Thepetitioners and the EPA have also sought either to strike from the record or to supplement therecord with certain OMB review documents. Because we have granted the petitioners’ challengeto the EPA’s determination of BTA without considering OMB’s role in interagency review, wedo not reach the petitioner’s arguments regarding OMB’s involvement in the rulemaking anddeny the motions to strike and to supplement as moot. See Waterkeeper Alliance, 399 F.3d at524 n.34 (denying petitioners’ motion to supplement the record with OMB review documents asmoot where the Court granted the petitions without considering the OMB review documents).33
BTA. We therefore remand for clarification of the basis for the Agency’s action and possibly fora new determination of BTA.184. Performance Standards Expressed as RangesThe Phase II Rule establishes performance standards expressed as an 80 to 95percent reduction in impingement mortality and a 60 to 90 percent reduction in entrainment,which existing power plants must achieve, subject to certain exceptions, in order to be consideredin compliance with the Rule. 40 C.F.R. § 125.94(b)(1), (2). The environmental petitionerschallenge the Rule’s “wide and indeterminate ranges” as failing to constitute “precise single-levellimitations based on the best technology available for minimizing adverse environmental impact”and argue that these ranges are inconsistent with Congress’s intent that there be a nationalstandard under section 316(b). We agree in part and, because the EPA in reconsidering itsselection of BTA on remand may alter the suite of technologies it originally selected, therebycausing a coordinate alteration in the performance ranges, we provide some guidance to the EPAinsofar as the petitioners’ challenge touches on the limits of the Agency’s authority. Althoughthe EPA may, in the circumstances to be discussed, set performance standards as ranges, it must
34
require facilities to minimize the adverse environmental impacts attributable to their coolingwater intake structures to the best degree they can. The petitioners note that the EPA has found that certain screens and filter systemscan reduce impingement mortality by up to 99 percent and that similar technologies can produce80 to 90 percent reduction in entrainment. 69 Fed. Reg. at 41,599. They contend that the CWAtherefore requires the EPA to set BTA standards reflecting these best performers, see Texas Oil& Gas Ass’n v. EPA, 161 F.3d 923, 928 (5th Cir. 1998) (“Congress intended these [BAT]limitations to be based on the performance of the single best-performing plant in an industrialfield.” (citation and internal quotation marks omitted)), particularly given the EPA’sacknowledgment that “[t]he higher end of the range is a percent reduction that available datashow many facilities can and have achieved with the available technologies upon which theperformance standards are based.” 69 Fed. Reg. at 41,600. The petitioners emphasize that theRule’s ranges impermissibly fail to require facilities even to attempt to achieve performanceequal to the upper bound of the prescribed ranges. According to the EPA, section 316(b) does not require a single-numeric standardapplicable to all Phase II existing facilities, and expressing the performance standards as rangesis necessary to account for the variables involved in reducing impingement mortality andentrainment under local conditions at particular facilities. The EPA contends that “[b]ecause thePhase II requirements are applied in a variety of settings and to existing facilities of differenttypes and sizes, no single technology is most effective for all facilities subject to the Rule.” TheAgency argues that the technologies do not provide a fixed level of performance at all facilitiesand that their performance is affected by the nature of the waterbody, facility intake
19 The specific provision requires that when a facility’s permit expires, any reissuedpermit must contain a requirement that “the facility . . . reduce impingement mortality andentrainment . . . commensurate with the efficacy at the facility of the installed design andconstruction technologies, operational measures, and/or restoration measures.” 40 C.F.R.§ 125.98(b)(1)(iii). 35
requirements, climatic conditions, and the waterbody’s biology. The EPA argues also that thepermit process requires facilities to reduce impingement mortality and entrainmentcommensurate with the efficacy of the installed technologies, which it claims ensures that theinstalled technologies will be maintained to ensure their utmost efficacy.19 The difficulty withthe EPA’s arguments is that the Rule does not require facilities to choose technologies thatproduce the greatest reduction possible.Our decision in Riverkeeper I sheds some light on the parties’ arguments. In thatcase, we discussed the differences between the two tracks in the Phase I Rule: Track I set forthprecise velocity and capacity requirements while Track II permitted compliance via technologiesthat would achieve at least 90 percent of the reduction in impingement mortality and entrainmentthat compliance with Track I would yield. See 358 F.3d at 182-83. The petitioners in that casechallenged the Track II provision on the ground that it deviated from the statutory requirementthat the EPA establish a single level of performance applicable to all facilities. Id. at 187. TheEPA argued that Tracks I and II reflected the same standard and that 10 percent is an acceptablemargin of error given that measurements of reduction of impingement mortality and entrainmentare necessarily inexact and depend upon natural fluctuations in animal populations and samplingerrors. Id. at 188. In assessing the parties’ arguments, we stated that “the EPA, consistent withCongress’s intention that there be a national standard governing the discharge of pollutants, must
36
promulgate precise effluent limitations under sections 301 and 306 . . . .” Id. (emphasis added). We went on to note, however, that while pollutant concentration and the velocity and volume ofwater withdrawn can be measured accurately, impingement mortality and entrainment “cannotalways be measured directly and with mathematical precision.” Id. at 189. We concluded thatthe EPA acted reasonably in specifying “how much ambiguity it is willing to tolerate inmeasuring compliance and what it considers a reasonable margin of error in comparing theperformance of different technologies.” Id. In short, we acknowledged that the Track IIperformance requirements, unlike the Track I requirements, could not be measured precisely andthat it was therefore reasonable to consider a margin of error in comparing performance under thetwo standards.This case is not entirely similar to Riverkeeper I because of the rationales thatanimate the EPA’s creation of the performance ranges in Phases I and II. The Phase II Rulegenerally require facilities to reduce impingement mortality and entrainment by the specifiedpercent ranges from the calculation baseline. 40 C.F.R. § 125.94(b). These ranges, as explainedby the EPA, are based on the reductions achievable by using various technologies. See 69 Fed.Reg. at 41,599. The EPA explained that it expressed the performance standards “in the form ofranges rather than a single performance benchmark because of the uncertainty inherent inpredicting the efficacy of any one of these technologies.” Id. at 41,600. It stated further that thelower end of the range is the percent reduction it “expects all facilities could eventually achieve ifthey were to implement and optimize available design and construction technologies andoperational measures on which the performance standards are based” and that the higher end ofthe range “is a percent reduction that available data show many facilities can and have achieved
20 Nothing in Hooker Chems. & Plastics Corp. v. Train, 537 F.2d 620 (2d Cir. 1976),suggests the contrary. While we did announce in that case that performance ranges did notcomport with the effluent limitations established by the CWA, id. at 630, the dischargelimitations at issue there were easily measured, unlike the reductions in impingement andentrainment at issue in both this case and Riverkeeper I, which “cannot always be measureddirectly and with mathematical precision,” Riverkeeper I, 358 F.3d at 189. 37
with the available technologies upon which the performance standards are based.” Id. UnlikeRiverkeeper I, therefore, a margin of error from a relatively precise benchmark that is tolerablegiven measurement difficulties is not at issue here. Instead, the performance standards reflect therange of performance associated with various technologies identified as BTA. That performance,in turn, depends in part on local conditions and natural fluctuations. Id.Record evidence supports the EPA’s conclusion that the percent reduction ofimpingement mortality and entrainment is not completely within the control of a facility andtherefore may not be precisely achieved by a facility. See TDD for the Final § 316(b) Phase IIExisting Facilities Rule 4-3. Reducing these adverse environmental impacts is not as easilymeasured and controlled as are the discharge of pollutants and the capacity and flow rate of waterintake.20 We therefore acknowledge that in many cases it may be difficult, as a practical matter,for the EPA or other permitting authority to predict which plants will be able to achieve theupper, as opposed to the lower, end of the ranges. This uncertainty, however, does not justify arule that permits even those facilities that could achieve the upper end of a range to be deemed incompliance if they reach only the lower end, particularly when the EPA has acknowledged thatmany facilities “can and have” achieved reductions at the high end of the range. 69 Fed. Reg. at41,600. Congress’s use of the superlative “best” in the statute cannot be read to mean that afacility that achieves the lower end of the ranges, but could do better, has complied with the law.
21 Although it may be difficult to know ex ante which plants can achieve the upper end ofthe range, this is at least in part because the technologies preferred by the EPA are somewhat newand untested. In future permitting cycles, permitting authorities will be likely to have a clearernotion of which facilities can feasibly achieve the upper end of the range.Finally, the upper end of the range established by the EPA, should it retain thisprovision on remand, should not be set at a level that many facilities “have achieved” with theinstallation of one or more of the technologies determined to be BTA but, as we noted earlier, atthe best possible level of impingement and entrainment reduction the EPA determines thesetechnologies can achieve. See, e.g., Kennecott, 780 F.2d at 448 (“In setting BAT, EPA uses notthe average plant, but the optimally operating plant, the pilot plant which acts as a beacon toshow what is possible.”). If, at a particular Phase II facility, the adoption of BTA technologiescan achieve a 95% reduction in entrainment and impingement, it is unclear why, under ourjurisprudence and the clear dictates of the CWA, the EPA could establish a performance standardthat has placed the ceiling at the 90% threshold which “many” Phase II facilities “can and have”achieved with the same technology. See Am. Iron & Steel Institute v. EPA, 526 F.2d 1027, 1051(3d Cir. 1975) (“It will be sufficient, for the purpose of setting the level of control underavailable technology, that there be one operating facility which demonstrates that the level can beachieved.”) (internal quotation marks and citations omitted). This would not require every PhaseII facility to meet the upper end of the ranges, but only that each Phase II facility achieve thehighest reduction it can with the installation of technologies determined by the EPA to be BTA. The performance ranges, if retained on remand, should accordingly reflect this understanding. 38
The statutory directive requiring facilities to adopt the best technology cannot be construed topermit a facility to take measures that produce second-best results, see Chevron, 467 U.S. at 843,especially given the technology-forcing imperative behind the Act, Natural Res. Def. Council,822 F.2d at 123. Insofar as the EPA establishes performance standards instead of requiringfacilities to adopt particular technologies, it must require facilities to choose the technology thatpermits them to achieve as much reduction of adverse environmental impacts as istechnologically possible.21 For this reason, the EPA on remand should address these concerns ifin its BTA determination, it retains performance ranges.B. Restoration Measures
The Phase II Rule allows a facility to meet the national performance standards set
39
forth in 40 C.F.R. § 125.94(b) through the use of restoration measures such as restocking fishkilled by a cooling water system and improving the habitat surrounding the intake structure inorder, as the EPA explains, “to provide additional flexibility to facilities in complying with therule by eliminating or significantly offsetting the adverse environmental impact caused by theoperation of a cooling water intake structure.” 69 Fed. Reg. at 41,609; 40 C.F.R. § 125.94(c). The state and environmental petitioners contend that the EPA exceeded its authority by allowingcompliance with section 316(b) through restoration measures because Riverkeeper I held that thestatute’s meaning is plain and that restoration measures cannot substitute for the “best technologyavailable for minimizing adverse environmental impact” in cooling water intake structures. TheEPA contends that its interpretation of the statute to permit restoration measures as a means ofcompliance is entitled to deference because it defined certain statutory terms in the Phase II Rulethat it had not defined in the Phase I Rule. The EPA also relies on the Supreme Court’s holdingin National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S.967, 125 S. Ct. 2688 (2005), and our statement in Riverkeeper I limiting the decision’s reach tothe Phase I Rule, to argue that our prior interpretation of the statute does not trump the Agency’sconstruction. We agree with the petitioners that Riverkeeper I held that the Agency’s decision topermit restoration measures in the Phase I Rule was not “based on a permissible construction ofthe statute,” Chevron, 467 U.S. at 843, and that this holding applies equally here.We began Riverkeeper I by noting that we were remanding the Phase I restorationprovision because it “contradicts Congress’s clearly expressed intent.” 358 F.3d at 181. Wewent on to state that “however beneficial to the environment, [restoration measures] have nothingto do with the location, the design, the construction, or the capacity of cooling water intake
40
structures, because they are unrelated to the structures themselves.” Id. at 189. “Restorationmeasures correct for the adverse environmental impacts of impingement and entrainment,” wenoted, but “they do not minimize those impacts in the first place.” Id. (emphasis added). For thisreason and others, we concluded in Riverkeeper I that the EPA had exceeded its authority inpromulgating the Phase I Rule by allowing compliance with section 316(b) through restorationmeasures because this Rule was “plainly inconsistent” with the statute’s text and Congress’sintent. Id. at 189, 191. The EPA’s argument that Riverkeeper I is not binding on this issue here has threecomponents. First, the EPA contends that our rejection of the restoration measures at issue inRiverkeeper I did not turn on the statute’s text, but instead was based on various other indicatorsof Congressional intent. The Agency makes much of Riverkeeper I’s brief discussion ofCongress’s rejection of a proposed amendment to section 316(b) that would have explicitlyallowed restoration measures and of the EPA’s support of that amendment because in its opinion,the existing language did not authorize restoration measures. Id. at 190-91. Second, the EPAargues that its interpretation of section 316(b) in the Phase II Rule is entitled to deferencebecause the Rule defined certain statutory terms it had not defined in the previous rulemakingphase and that its reasonable interpretation of these terms is entitled to deference. Specifically,the Agency “defined” three statutory terms in the preamble: it (1) read the phrase “minimiz[e]adverse environmental impact” to let facilities “minimize adverse environmental impact byreducing impingement and entrainment, or to minimize adverse environmental impact bycompensating for those impacts after the fact,” 69 Fed. Reg. at 41,628; (2) interpreted “reflect” toauthorize it to consider the full range of technologies, including restoration measures, that
41
minimize adverse environmental impact; and (3) viewed “restoration measures as part of the‘design’ of a cooling water intake structure,” and “one of several technologies that may beemployed . . . to minimize adverse environmental impact,” 69 Fed. Reg. at 41,637. Finally, theEPA relies on our statement in Riverkeeper I that our ruling on the Phase I Rule was not meant to“predetermine the factors and standard[s] applicable to Phases II and III of the rulemaking,” 358F.3d at 186 n.13, and on the Supreme Court’s holding in Brand X that “[a] court’s prior judicialconstruction of a statute trumps an agency construction otherwise entitled to Chevron deferenceonly if the prior court decision holds that its construction follows from the unambiguous terms ofthe statute and thus leaves no room for agency discretion.” 545 U.S. at —, 125 S. Ct. at 2700. We reject each of the EPA’s contentions. First, our primary conclusion inRiverkeeper I was that restoration measures are “plainly inconsistent” with the statute’s text, 358F.3d at 189, and our statements regarding the legislative history of a proposed amendment, whichwe offered as ancillary, but not dispositive, support for our construction of the statute, in no waydiminish the force of our conclusion that Congress unambiguously expressed its intent in thestatute. See Chevron, 467 U.S. at 842-43 (“If the intent of Congress is clear, that is the end of thematter; for the court, as well as the agency, must give effect to the unambiguously expressedintent of Congress.”). Second, as to the EPA’s claim that its construction of the statute is entitledto deference because it has now interpreted certain statutory terms, our holding in Riverkeeper Iwas and remains clear: restoration measures contradict the unambiguous language ofsection 316(b). The EPA’s promulgation of the Phase II Rule obviously did nothing to alter thetext of section 316(b), and the Agency cannot create ambiguity where none otherwise exists bydefining statutory terms contrary to their plain meaning. Finally, as the foregoing analysis
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suggests, our decision in Riverkeeper I foreclosed the EPA from interpreting section 316(b) inthe Phase II Rule to permit restoration measures as a means of complying with the statute, and,therefore, nothing in Brand X undermines the precedential value of our prior holding. Ourstatement in Riverkeeper I that we did not “mean to predetermine the factors and standardapplicable to Phases II and III of the rulemaking,” was made in the narrow context of identifying“one reasonable reading” of particular statutory language relating to the standard for new andexisting sources, not the restoration measures. 358 F.3d at 186 n.13. Where we held that thestatutory language is unambiguous, Riverkeeper I is binding. Even assuming arguendo that we did not consider ourselves bound by RiverkeeperI, we are persuaded by its reasoning as applied here. Restoration measures are not part of thelocation, design, construction, or capacity of cooling water intake structures, Riverkeeper I, 358F.3d at 189, and a rule permitting compliance with the statute through restoration measuresallows facilities to avoid adopting any cooling water intake structure technology at all, incontravention of the Act’s clear language as well as its technology-forcing principle. As wenoted in Riverkeeper I, restoration measures substitute after-the-fact compensation for adverseenvironmental impacts that have already occurred for the minimization of those impacts in thefirst instance. Id. The Agency’s attempt to define the word “minimize” to include“compensati[on] . . . after the fact,” 69 Fed. Reg. at 41,628, is simply inconsistent with thatword’s dictionary definition: “to reduce to the smallest possible extent,” Webster’s Third NewInt’l Dictionary 1438 (1986). Accordingly, the EPA impermissibly construed the statute by allowingcompliance with section 316(b) via restoration measures, and we remand that aspect of the Rule.
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C. Site-Specific Compliance AlternativesAs noted earlier, the Phase II Rule includes two site-specific compliancealternatives or variances from the generally applicable requirements. The cost-cost alternativeauthorizes a site-specific determination that “data specific to [a] facility demonstrate that thecosts of compliance under . . . this section would be significantly greater than the costsconsidered by the Administrator . . . in establishing the applicable performance standards,” 40C.F.R. § 125.94(a)(5)(i), while the cost-benefit alternative authorizes a site-specificdetermination that “data specific to [a] facility demonstrate that the costs of compliance under . . .this section would be significantly greater than the benefits of complying with the applicableperformance standards.” Id. § 125.94(a)(5)(ii). If a facility makes either showing, the permittingauthority “must make a site-specific determination of the best technology available” and impose“site-specific alternative requirements” that are “as close as practicable to the applicableperformance standards.” Id. § 125.94(a)(5)(i), (ii).Petitioners challenge the cost-cost compliance alternative because, inter alia, theyclaim as a threshold matter that the Agency failed to comply with the APA’s notice and commentrequirements by disclosing cost data for specific facilities that would be used in determiningwhether a facility qualifies for the cost-cost compliance alternative only at the time the final Rulewas issued. Petitioners also challenge the cost-benefit compliance alternative on two substantivegrounds. They contend that this alternative (1) impermissibly allows compliance with the statuteto be based on cost-benefit analysis and (2) is analogous to a water-quality standard, which theAct permits only for thermal pollution. CWA § 316(a), 33 U.S.C. § 1326(a). We address each
22 Section 316(b) does not specifically authorize the Agency to allow variances fromgenerally applicable requirements. In Riverkeeper I, we accepted the argument that the EPA canallow variances even in the absence of explicit statutory authority. 358 F.3d at 193. Althoughthe statutes to which section 316(b) refers contained variance provisions, we did not read them torequire that section 316(b) permit (or by its silence prohibit) variances. Instead, we stated that[s]ection 316(b)’s silence with respect to variances does not . . . equal anunambiguous prohibition. In the absence of such a statutory bar, we think,consistent with precedent, that it is reasonable for the EPA to allow variancesfrom regulations promulgated pursuant to section 316(b), for a regulatory systemwhich allows flexibility, and a lessening of firm proscriptions in a proper case, canlend strength to the system as a whole.Id. at 193 (citation and internal quotation marks omitted). Riverkeeper I thus rejected the view that the EPA’s authority to grant a variancefrom the generally applicable requirements of a rule promulgated pursuant to section 316(b)derives from the statutory variance provisions in other sections of the Act. Instead, Riverkeeper Ifound that the variance provision would not be authorized if it left alternative requirements to theAgency’s “unfettered discretion” but would be authorized if it “guide[d] the permitting authorityto consider appropriate factors and allow[ed] relaxation of the Rule’s uniform technologyrequirements only insofar as necessary to account for unusual circumstances not considered bythe Agency during its rulemaking.” Id. at 193-94 (internal quotation marks omitted). 44
of these arguments in turn.221. Cost-Cost Compliance AlternativeAs already noted, a variance may be available to a facility pursuant to 40 C.F.R.§ 125.94(a)(5)(i) if the facility’s compliance costs would be “significantly greater than” the costsconsidered by the Agency “in establishing the applicable performance standards.” This variancerequires a calculation of compliance costs based on the suite of BTA technologies that the EPAhas identified and promulgated in the final Rule. 69 Fed. Reg. at 41,644-46. We remand thisprovision because (1) the EPA did not give interested parties the requisite notice and opportunityto challenge the variance by failing to identify cost data for actual, named facilities, as opposed tomodel facilities, until after the notice and comment period had ended, Sprint Corp., 315 F.3d at
23 This variance requires a comparison between the actual costs of compliance and thosecontemplated by EPA under the Rule. Because the Agency has calculated the costs it believesspecific facilities will incur in adopting the appropriate BTA technologies (as currently defined)and then promulgated these costs in the final Rule, any change in the selection of BTA onremand will necessarily alter these costs. 45
371, and (2) the variance is expressly premised on the validity of the BTA determination,23 whichitself has been remanded for further explanation, see, e.g., Solite Corp. v. U.S. EPA, 952 F.2d473, 494-95 (D.C. Cir. 1991) (remanding rule where the underlying grounds for its promulgationhad been remanded to the EPA for procedural defects); cf. Chenery, 318 U.S. at 87-88 (a rulemay only be upheld on the grounds that the agency proffers). In the Rule’s proposal, the EPA indicated that it had estimated compliance costsfor 539 “model plants” based on factors such as “fuel source, mode of electricity generation,existing intake technologies, waterbody type, geographic location, and intake flow.” 67 Fed.Reg. at 17,144. An accompanying technical development document set forth the Agency’s costcalculation methodology for these model plants and listed the compliance cost estimates for eachof the 539 model plants. The proposal indicated that a facility must “determine which modelplant [it] most closely” resembles in order to identify the costs considered by the Agency inestablishing the national performance standards. See id. The EPA subsequently published in theFederal Register a so-called Notice of Data Availability (“NODA”) in which it explained that ithad changed its methodology for estimating the model plants’ compliance costs. ProposedRegulations to Establish Requirements for Cooling Water Intake Structures at Phase II ExistingFacilities; Notice of Data Availability; Proposed Rule, 68 Fed. Reg. 13,522, 13,527 (Mar. 19,2003). Accompanying documents explained in greater detail the costing methodology and costdata underlying the revised approach. The revised proposal, however, did not depart from the
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“model plant” approach. The final Rule, by contrast, assigned cost estimates to specific, namedfacilities rather than model facilities. 69 Fed. Reg. at 41,670-82. The Agency explained in thepreamble to the final Rule that the EPA will adjust facility-specific costs pursuant to a multiple-step calculation formula to arrive at a final estimated cost the EPA considers a comparison forpurposes of the cost-cost variance. Id. at 41,644-47. The EPA acknowledges that it did not disclose in the proposal or the NODAspecific facility names in connection with cost data and explains that it failed to do so because itneeded to protect certain confidential business information (“CBI”) and had not developed duringthe proposal stage a means to protect that information while still providing cost data to thepublic. We accept the EPA’s argument that masking the facility names did not prevent interestedparties from commenting on the methodology and general cost data underlying the EPA’sapproach because the NODA explained the costing methodology and because the general costdata, while not identified by the Agency as relating to actual, specific facilities, was madeavailable to interested parties. Nat’l Wildlife Fed., 286 F.3d at 564-65 (holding that the EPAcannot be faulted for lack of notice in not releasing CBI data). We are persuaded, however, thatthe release of information and request for comments on the EPA’s new approach to developingcompliance cost modules via the NODA did not afford adequate notice of the costs associatedwith specific facilities promulgated in the final Rule.We have previously stated that “[n]otice is said not only to improve the quality ofrulemaking through exposure of a proposed rule to comment, but also to provide fairness tointerested parties and to enhance judicial review by the development of a record through thecommentary process.” Nat’l Black Media Coalition v. FCC, 791 F.2d 1016, 1022 (2d Cir. 1986).
24 The D.C. Circuit has phrased the test somewhat differently, stating that “[w]hether the‘logical outgrowth’ test is satisfied depends on whether the affected party ‘should haveanticipated’ the agency’s final course in light of the initial notice.” Covad Comms. Co. v. FCC,450 F.3d 528, 548 (D.C. Cir. 2006) (citation omitted). It has also indicated that “[t]he ‘logicaloutgrowth’ doctrine does not extend to a final rule that finds no roots in the agency’s proposalbecause something is not a logical outgrowth of nothing, nor does it apply where interestedparties would have had to divine the agency’s unspoken thoughts because the final rule wassurprisingly distant from the Agency’s proposal.” Envtl. Integrity Project v. EPA, 425 F.3d 992,996 (D.C. Cir. 2005) (citations, internal quotation marks, and alteration omitted). 47
“While a final rule need not be an exact replica of the rule proposed in the Notice, the final rulemust be a ‘logical outgrowth’ of the rule proposed.” Id. “The test that has been set forth iswhether the agency’s notice would fairly apprise interested persons of the subjects and issues” ofthe rulemaking. Id. (citation and internal quotation marks omitted).24 Agencies accordingly arenot permitted “to use the rulemaking process to pull a surprise switcheroo.” Envtl. IntegrityProject, 425 F.3d at 996.Here, only the final Rule identified facilities by name in estimating compliancecosts. Interested parties therefore could not comment on the basis for particular facilities’ costfigures that the EPA established. This is problematic because the availability of a variance turnson the relationship between the costs estimated in the Rule and those that a specific facilityestablishes in a permit proceeding. The EPA focuses on the notice it gave of its intendedmethodology for calculating the costs the Agency considered, but ignores the overridingimportance of the cost estimates for a particular facility in determining whether a site-specificcost-cost variance is appropriate. Thus, the EPA should have afforded notice and an opportunityto challenge the cost estimates for specific facilities and not simply an opportunity to comment
25 Because we remand on this procedural ground, we do not consider the provision on themerits. We presume that after comment on remand, however, the EPA will reevaluate the meritsof the cost-cost variance provision, particularly in light of any reevaluation of BTA in which theAgency may engage. While we do not decide the issue here, we note our discomfort with the“significantly greater than” standard of 40 C.F.R. § 125.94(a)(5)(i), given the historicalapplicability of a “wholly disproportionate to” standard and the use of the latter standard in thePhase I Rule. We have not found entirely persuasive the EPA’s position that [t]his difference in standards for new and existing facilities is based on (1) thegreater flexibility available to new facilities for selecting the location of theirintakes and installing technologies at lower costs relative to the costs associatedwith retrofitting existing facilities and (2) the desire to avoid economicallyimpracticable impacts on energy prices, production costs, and energy productionthat could occur if large numbers of Phase II existing facilities incurred costs thatwere more than “significantly greater” than but not “wholly out of proportion” tothe costs in EPA’s record.68 Fed. Reg. at 13,541. The EPA would presumably consider each of these two factors inestablishing BTA for existing facilities, and need not further consider them in determiningwhether a particular facility warrants a variance from the generally applicable BTA. Becausecost is not supposed to be a paramount consideration in determining BTA, see Riverkeeper I, 358F.3d at 185, the “significantly greater than” standard poses substantial concerns.26 In contrast to the cost-cost variance, the cost-benefit compliance alternative will notchange on remand for the reconsideration of BTA. We thus reach the merits here. 48
on the EPA’s methodology and general cost data.25 We remand this variance for inadequatenotice and because of our remand of the BTA determination.2. Cost-Benefit Compliance Alternative26If a facility requests that it be permitted to demonstrate compliance with the PhaseII Rule through the site-specific cost-benefit provision of 40 C.F.R. § 125.94(a)(5)(ii), the facilitymust submit with its application a Comprehensive Cost Evaluation Study, Benefits ValuationStudy, and Site Specific Technology Plan. 40 C.F.R. § 125.95(b)(6). As part of the BenefitsValuation Study, the facility must indicate the monetized value of commercial, recreational, andecological benefits of compliance with the generally applicable national performance standards
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as well as a qualitative assessment of any so-called “non-use” benefits that cannot be monetized. 40 C.F.R. § 125.95(b)(6)(ii)(A), (E). Ultimately, the facility must demonstrate that itscompliance costs are “significantly greater than” the benefits of compliance. The petitionerscontend that this alternative impermissibly focuses on cost-benefit considerations, contrary toCongress’s directive, and is analogous to the kind of water-quality-based standard we found to beinconsistent with the statute in Riverkeeper I. 358 F.3d at 190. For both reasons, we arepersuaded that the EPA exceeded its authority in permitting site-specific cost-benefit variances. In light of this conclusion, we do not reach the industry petitioners’ claim that the provisionimpermissibly requires consideration of qualitative non-use benefits in the cost-benefit analysis.As we discussed previously in analyzing the EPA’s determination of BTA, cost-benefit analysis is not consistent with the requirement of § 316(b) that cooling water intakestructures “reflect the best technology available for minimizing adverse environmental impact.” Indeed, the statutory language requires that the EPA’s selection of BTA be driven by technology,not cost. The Agency is therefore precluded from undertaking such cost-benefit analysis becausethe BTA standard represents Congress’s conclusion that the costs imposed on industry inadopting the best cooling water intake structure technology available (i.e., the best-performingtechnology that can be reasonably borne by the industry) are worth the benefits in reducingadverse environmental impacts. Cf. Am. Textile Mfrs. Inst., 452 U.S. at 509 (noting that whereCongress has defined the basic relationship between costs and benefits, a regulatory standard thatstrikes a different balance is inconsistent with the statute). Just as the Agency cannot determineBTA on the basis of cost-benefit analysis, it cannot authorize site-specific determinations of BTAbased on cost-benefit analysis.
27 As the petitioners note, section 316(a) permits consideration of the quality of thereceiving water for purposes of granting variances with respect to the rules concerning thermalpollution. Section 316(a) provides that the Administrator may issue a variance to the rulesgoverning “thermal discharges” to a facility that establishes that those rules “require effluentlimitations more stringent than necessary to assure the pro[t]ection and propagation of abalanced, indigenous population of shellfish, fish, and wildlife in and on the body of water intowhich the discharge is to be made.” CWA § 316(a), 33 U.S.C. § 1326(a). As the petitioners alsonote, section 316(b) does not similarly permit consideration of the quality of the receiving water,and this distinction is significant. See Russello, 464 U.S. at 23. Moreover, as we discussed inRiverkeeper I, the heat-pollution provision of section 316(a) is a “notable exception” to theCWA, which “otherwise relies on limitations on what a source can put into the water, not theultimate effect of that discharge.” 358 F.3d at 190. Nothing in the statute, therefore, supports theview that the EPA can consider the quality of the receiving water in granting variances from50
The cost-benefit variance also impermissibly authorizes the EPA to consider thedegraded quality of waterways in selecting a site-specific BTA. We stated in Riverkeeper I thatin enacting the CWA, Congress rejected regulation by reference to water quality standards. 358F.3d at 189-90. Before 1972, Congress “regulated point sources based on their effect on thesurrounding water and allowed sources to discharge pollutants provided the discharge did notcause water quality to dip below an acceptable level.” Id. at 189. Congress changed its approachin 1972, in part because a plaintiff attempting to prove a violation of the law faced a nearlyimpossible burden of showing that a particular polluter had caused the water quality to dip belowthe regulatory standards. Id. at 189-90. The Act now regulates discharges from point sourcesrather than water quality. We thus concluded in Riverkeeper I that water-quality standardscannot be considered under section 316(b). Id. at 190. Of course, “water quality” in the contextof the Act is generally understood to refer to pollutant concentration. As we noted inRiverkeeper I, however, for purposes of section 316(b), which regulates water intake rather thanthe discharge of pollutants, water quality is “measured by wildlife levels.” Id. at 189. Thisanalysis in Riverkeeper I is, thus, equally applicable here.27
generally applicable rules promulgated pursuant to section 316(b).51
The challenged provision of the Phase II Rule apparently would permit a facilityto argue that, based on water quality (i.e., the level of aquatic wildlife in a particular body ofwater), the cost of complying with the national performance standards is not justified. TheAgency explained in the preamble to the Rule that “in a waterbody that is already degraded, veryfew aquatic organisms may be subject to impingement or entrainment, and the costs ofretrofitting an existing cooling water intake structure may be significantly greater than thebenefits of doing so.” 69 Fed. Reg. at 41,604. This kind of water-quality-based regulation is notauthorized by the CWA because it would exempt facilities from meeting the mandatedperformance standards simply because wildlife levels in the waterbody were already low, and aswe held in Riverkeeper I, the CWA does permit the EPA to consider water quality in makingBTA determinations. Finally, we note that to the extent that facilities on highly degradedwaterbodies with relatively low wildlife levels face high compliance costs to achieve the nationalperformance standards, those facilities may qualify for the cost-cost variance if such variance isretained on remand. Because the EPA exceeded its authority under section 316(b) by permitting (1)cost-benefit analysis and (2) assessment of the quality of the receiving water (i.e., the receivingwater’s wildlife levels) in determining whether a variance is warranted, we do not need to deferto the Agency’s construction of the statute. We therefore remand this aspect of the Rule.
D. TIOP ProvisionThe Phase II Rule’s TIOP provision, 40 C.F.R. § 125.94(d), permits a facility to
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comply with the national performance standards determined on the basis of whether the facilityhas “complied with the construction, operational, maintenance, monitoring, and adaptivemanagement requirements of a Technology Installation and Operation Plan.” Id. § 125.94(d)(1). The petitioners contend that this provision impermissibly allows a facility’s compliance to bedetermined not by reference to the performance standards themselves, but by evaluating whethera facility has complied with a plan to achieve the performance standards. In other words, theyargue that the TIOP provision essentially allows for an unauthorized margin of error. Thepetitioners also argue that the EPA denied the public an opportunity to comment on theprovision. Like the cost-cost compliance alternative, remand is appropriate here on two grounds: (1) the EPA did not give adequate notice regarding the provisions in section 125.94(d)(2); and(2) the record justification for the TIOP provision depends on the EPA’s selection of a suite oftechnologies as BTA, a selection which has been remanded for further explanation. Given this,we remand the TIOP provision without reaching the merits here.The Rule provides that during the first permit term, a facility may request that itscompliance be determined based on whether it has complied with its TIOP, which must bedesigned to meet the performance standards, 40 C.F.R. § 125.94(d)(1), and submitted with apermit application, id. § 125.95(b)(4)(ii). During subsequent permit terms, if a facility hascomplied with its TIOP but is not meeting the performance standards, the facility may requestthat its compliance with the standards during the following term be based on whether it remainsin compliance with its TIOP, revised in accordance with the facility’s adaptive management plan. 40 C.F.R. § 125.94(d)(2). The EPA explained in the Rule’s preamble that it is difficult todetermine reductions in impingement mortality and entrainment relative to what would have
53
occurred in the absence of control technologies given natural variability and the vagaries ofsampling methods. 69 Fed. Reg. at 41,613. The EPA explained further that it established theTIOP compliance options to account for these variabilities on the ability of a technology to meetthe performance standards consistently over time. Id. at 41,613-14. As previously noted, a “final rule must be a ‘logical outgrowth’ of the ruleproposed.” Nat’l Black Media Coalition, 791 F.2d at 1022. The final rule must have roots in theproposal, Envtl. Integrity Project, 425 F.3d at 996, which must “fairly apprise interested personsof the subjects and issues” involved in the rulemaking, Nat’l Black Media Coalition, 791 F.2d at1022. An agency cannot “pull a surprise switcheroo” on interested parties between a proposaland the issuance of a final rule. See Envtl. Integrity Project, 425 F.3d at 996.Although the Rule’s proposal notified interested parties that the Agency wasconsidering a provision that would give facilities time to achieve the performance standards afterimplementing new technologies, the EPA gave inadequate notice of the potentially indefinitescope of this provision. Specifically, the EPA failed to provide notice of the Rule codified at 40C.F.R. § 125.94(d)(2), which permits a facility to be deemed in compliance with the Phase IIRule in subsequent permit terms if it continues to adhere to its TIOP. In the Rule’s proposal, the EPA stated only that it was considering “the need forregulatory language that would allow facilities time to come into compliance [with theperformance standards] if they choose to install technologies to meet the performance standards.” 68 Fed. Reg. at 13,586. The proposal indicated further that the EPA was “evaluating andconsidering allowing six months, one year, two years, or five years (one permit term) for afacility to come into compliance after issuance of its permit.” Id. The TIOP provision in the
54
final Rule, by contrast, does not simply allow facilities additional time, up to one permit term, tocome into compliance with the performance standards. Instead, it appears to permit a facility tosatisfy the Rule’s requirements in subsequent permit terms, for an indefinite period, without everdemonstrating compliance with the performance standards, so long as the facility has adhered toits TIOP. 40 C.F.R. § 125.94(d)(2) (stating that “[d]uring subsequent permit terms” a facility“may request that compliance . . . be determined based on whether [it] remain[s] in compliancewith” its TIOP). This aspect of the TIOP provision appears then not to be a “logical outgrowth”of the proposal, see Nat’l Black Media Coalition, 791 F.2d at 1022, because interested partieswould not have divined from the proposal that facilities could be given an indefinite period tocome into compliance with the national performance standards.We thus remand the rule for failure to provide notice and comment and because therecord justification for the TIOP provision depends on the EPA’s selection of BTA, which hasbeen remanded.E. Definitions of “New Facility” and “Existing Facility”
The environmental petitioners challenge the reclassification in the Phase II Rulepreamble of certain new constructions as “existing facilities,” thereby rendering them subject tothe Phase II Rule rather than the more stringent Phase I requirements that apply to new facilities. We agree with the petitioners that the Agency interpretively modified a definition appearing inthe Phase I Rule via statements in the preamble to the Phase II Rule without providing interestedparties notice and an opportunity for comment.“An agency’s interpretation of its own . . . regulation must be given controlling
55
weight unless it is plainly erroneous or inconsistent with the regulation.” Fowlkes v. Adamec,432 F.3d 90, 97 (2d Cir. 2005) (citations and internal quotation marks omitted). Although wetypically owe considerable deference to an agency’s construction of its own regulation, Udall v.Tallman, 380 U.S. 1, 16 (1965), “[u]nder settled principles of statutory and rule construction, acourt may defer to administrative interpretations of a statute or regulation only when the plainmeaning of the rule itself is doubtful or ambiguous,” Pfizer, Inc. v. Heckler, 735 F.2d 1502, 1509(D.C. Cir. 1984) (emphasis in original). “Deference to agency interpretations is not in order ifthe rule’s meaning is clear on its face.” Id. Implicit in the rule that an agency cannot interpret aregulation contrary to its unambiguous meaning is the requirement that “an agency must adhereto its own rules and regulations.” Reuters Ltd. v. FCC, 781 F.2d 946, 950 (D.C. Cir. 1986). Anagency may modify a regulation that has already been promulgated, therefore, only through theprocess of notice and comment rulemaking. See Alaska Prof’l Hunters Ass’n, Inc. v. FAA, 177F.3d 1030, 1034 (D.C. Cir. 1999); see also 5 U.S.C. § 551(5) (defining “rule making,” which isgoverned by the notice and comment requirements of 5 U.S.C. § 553, as the “agency process forformulating, amending, or repealing a rule”); Shalala v. Guernsey Memorial Hosp., 514 U.S. 87,100 (1995) (noting in dicta that APA rulemaking is required where an agency interpretation“adopt[s] a new position inconsistent with . . . existing regulations”). The Phase I Rule defined “new facility” as any structure whose constructioncommenced after January 17, 2002 that meets both the definition of “new source” in 40 C.F.R.§ 122.29 (discussed below) and one of two other requirements: the structure must use either (1)“a newly constructed cooling water intake structure” or (2) “an existing cooling water intakestructure whose design capacity is increased to accommodate the intake of additional cooling
28 The Phase I Rule defined facilities meeting either of the first two tests ofsection 122.29(b) as “greenfield” facilities and facilities meeting the third test as “stand-alone”facilities. 40 C.F.R. § 125.83 (“A greenfield facility is a facility that is constructed at a site atwhich no other source is located, or that totally replaces the process or production equipment atan existing facility. A stand-alone facility . . . is constructed on property where an existingfacility is located and whose processes are substantially independent of the existing facility at thesame site.”). 56
water.” See 40 C.F.R. § 125.83. A “new source” under section 122.29 is a facility that (1) “isconstructed at a site at which no other source is located,” (2) “totally replaces the process orproduction equipment that causes the discharge of pollutants at an existing source,” or (3)undertakes “processes . . . substantially independent of an existing source at the same site.”28 40C.F.R. § 122.29(b) (emphasis added). Section 122.29(b) provides further that, in determiningwhether a facility is “substantially independent” of an existing source, the director shouldconsider “the extent to which the new facility is integrated with the existing plant; and the extentto which the new facility is engaged in the same general type of activity as the existing source.” 40 C.F.R. § 122.29(b)(iii). In determining whether a new construction qualifies as a “new facility” forpurposes of the Phase I Rule, therefore, the permitting authority must perform a two-part, but notnecessarily sequential, analysis. It must determine whether the construction uses a new coolingwater intake structure or an existing structure whose capacity has been increased. The permittingauthority must also determine whether the new construction qualifies as a “new source.” Failureto meet either part of this analysis precludes the new construction from qualifying as a “newfacility,” and thus from falling under the Phase I Rule’s purview.The Phase I Rule stated that “new facilities” meeting the foregoing requirements
29 A facility would clearly find it advantageous to classify a new construction on itsgrounds as one added for purposes of the same general industrial operation rather than as a stand-alone facility. A stand-alone facility is treated as an existing facility only if it uses an existingintake structure whose capacity is not increased; a “new unit,” by contrast, is treated as part of anexisting facility even if it requires the construction of a new intake structure or an increase in anexisting intake structure’s capacity. 57
include a “stand-alone” facility, which the Phase I Rule defined as “a new, separate facility that isconstructed on property where an existing facility is located and whose processes aresubstantially independent of the existing facility at the same site.” Id. § 125.83. This is becausesuch a facility, by definition, essentially qualifies as a “new source.” Compare id. with § 122.29(defining “new source” as including a facility that undertakes “processes . . . substantiallyindependent of an existing source at the same site”). The Phase I Rule clarified, however, that“new facility” does not include “new units that are added to a facility for purposes of the samegeneral industrial operation (for example, a new peaking unit at an electrical generating station).” Id. § 125.83. This is presumably because such units do not qualify as “new sources” in that theyare not substantially independent of existing sources. See id. § 122.29(b)(1)(iii) (setting forth thefactors to be considered in determining substantial independence, including “the extent to whichthe new facility is integrated with the existing plant; and the extent to which the new facility isengaged in the same general type of activity as the existing source”). The Phase I Rule thusappears to have left regulation over the following to a subsequent rulemaking phase: (1) newstand-alone facilities that use existing intake structures whose design capacity is not increasedand (2) new units that are added to a facility for purposes of the same general industrial operationeven if they require either an increase in the intake structure design capacity or the constructionof a new cooling water intake structure altogether. Id.29
30 We find no merit to the EPA’s argument that the state and environmental petitionershere are ostensibly challenging the Phase II Rule’s definition of “existing facility” but areactually seeking review of the meaning of “new facility” under the Phase I Rule – for which theirclaim would be time-barred. Though the EPA claims that “[n]othing in the Phase II Rule alteredor amended the definition of ‘new facility,’” it is clear from the discussion above that thepreamble to the Phase II Rule eliminates without notice or comment the analysis the Phase I Rulehad required. 58
The Phase II Rule defines “existing facility” as any facility whose constructioncommenced on or before January 17, 2002, “and any modification of, or any addition of a unit atsuch a facility that does not meet the definition of a new facility at § 125.83.” Id. § 125.93. Thus, from this definition, it appears that new stand-alone facilities that use existing, unmodifiedintake structures and new units added to a facility for purposes of the same industrial operation,regardless of their impact on the facility’s cooling water intake structure, (i.e., the two kinds ofnew constructions left unregulated by the Phase I Rule) are considered “existing facilities” andgoverned by the Phase II Rule.The parties’ dispute concerns statements in the preamble to the Phase II Rule thatpurportedly narrow, by way of interpretation, the Phase I Rule’s definition of “new facility”30
without the required procedures of notice and comment. In the preamble to the Phase II Rule, theEPA states that “the Phase I [R]ule treated almost all changes to existing facilities for purposes ofthe same industrial operation as existing facilities.” 69 Fed. Reg. at 41,579. The preamble thenappears to distinguish stand-alone facilities from new units that are part of the same industrialoperation, thereby defining the latter as existing facilities without reference to the definition of“new source” or the “substantial independence” test of 40 C.F.R. § 122.29. Id. at 41,579 n.2a. The preamble states that the “substantial independence” test does not apply where there is anaddition to an existing facility for purposes of the same industrial operation, such as the “addition
59
of new generating units at the same site” as an existing facility, id. at 41,579, because suchadditions “are categorically treated as ‘existing facilities’ regardless of any other considerationsunless they completely replace an existing facility and its cooling water design intake capacity isincreased,” id. at 41,579 n.2a. These comments are contrary to the plain meaning of the relevantportion of the Phase I Rule.The Phase I Rule unambiguously stated that “new facility” means any structurethat is a “new source,” as defined by 40 C.F.R. § 122.29, subject to certain other requirements. Under this provision, a source is considered “new” if, inter alia, “[i]ts processes are substantiallyindependent of an existing source at the same site.” 40 C.F.R. § 122.29(b)(1)(iii). A permittingauthority could not classify a source constructed at the site of an existing source as new orexisting for purposes of the Phase I Rule, therefore, without reference to the “substantialindependence” test. It is plain, then, that the Phase I Rule distinguished between “stand-alone”facilities and “new units,” where the new construction is not built at an empty site and does nottotally replace an existing source, by reference to the definition of a “new source.” A stand-alonefacility is “substantially independent” of an existing facility, and therefore a new source; a newunit that is part of the same industrial operation as an existing facility is not substantiallyindependent of an existing facility, and therefore not a new source. It is impossible to determinewhich classification applies to a particular construction under the Phase I Rule without referringto the definition of “new source,” i.e., whether it satisfies the “substantial independence” test. Put differently, the touchstone of the definition of “new facility” in the Phase I Rule is whether asource is a “new source.” The Phase I Rule’s plain terms thus indicate that a unit that is“substantially independent” of an existing facility is not “part of the same general industrial
60
operation” as the existing facility. Any elimination of the “substantial independence” inquiry,therefore, strikes at the heart of the Phase I Rule and its classification of what facilities aresubject to its requirements. The EPA claims that the Phase II Rule has in no way eliminated the “substantialindependence” test and that the Rule’s preamble merely makes clear that the fifth sentence insection 125.83 exempts “new units” from regulation under the Phase I Rule. This argument failsbecause the Phase I Rule provides no way to distinguish between stand-alone facilities and newunits where the construction is built on a site where a source is already located and does nottotally replace the existing source except by reference to the “substantial independence” test, i.e.,without assessing the factors set forth at 40 C.F.R. § 122.29(b)(1)(iii) in order to determinewhether the source is new or existing. Just as “stand-alone facility” has no intrinsic meaning,neither does “new unit.” The Phase I Rule defines each by reference to the “substantialindependence” test of section 122.29(b). Thus, while an existing facility can be repowered withnew generating units and remain an “existing facility” for regulatory purposes undersection 316(b), the determination can only be made by reference to whether a particular newgenerating unit is a stand-alone facility or a new unit that is part of the same general industrialoperation as an existing facility. In fact, a permitting authority must first determine whether asource is “new” within the meaning of 40 C.F.R. § 122.29(b) before it can conclude that thesource is a stand-alone facility or a new unit added to an existing facility for purposes of the samegeneral industrial operation. Because the Phase I Rule was not ambiguous, we do not owe deference to theAgency’s interpretation of the Phase I Rule in the preamble to the Phase II Rule. See Fowlkes,
61
432 F.3d at 97; Pfizer, 735 F.2d at 1509. By permitting the Agency to determine that a newconstruction is not subject to the Phase II Rule without any definitional guidance and incontravention of the Phase I Rule, the EPA has expanded the scope of what may be classified asa “new unit” while narrowing the Phase I definition of “stand-alone” facility. Moreover, byincluding a potentially expansive definition of “new unit” in the preamble to the Phase II Rule, the EPA has interpretively modified the definitions that appeared in the Phase I Rule withoutproviding interested parties an opportunity for notice and comment. Accordingly, we direct the EPA on remand to adhere to the definitions set forth inthe Phase I Rule, see Reuters, 781 F.2d at 950-52, or to amend those definitions following noticeand comment, see Alaska Prof’l Hunters, 177 F.3d at 1034.
IV. The Industry PetitionersA. Applicability of Section 316(b) to Existing Facilities
Entergy argues that the EPA lacks authority to apply CWA section 316(b) toexisting, as opposed to new, facilities. We disagree and conclude that, at the very least, the EPApermissibly interpreted the statute to cover existing facilities and that its interpretation istherefore entitled to deference under Chevron.Entergy’s argument turns primarily on the statutory language that the besttechnology available be reflected in the “location, design, construction, and capacity of coolingwater intake structures” – a collection of words Entergy contends indicates Congress’s intent to
31 Entergy cites a number of federal statutory and regulatory provisions using similarwords and argues that each provision applies only in the pre-construction context. Theenvironmental petitioners contend that the provisions upon which Entergy relies explicitly limittheir application to new facilities and that, as a result, the words “location, design, constructionand capacity,” standing alone, do not apply solely to new facilities; otherwise, the environmentalpetitioners’ argument goes, there would be no need to limit expressly the provisions’applicability to new facilities. For example, 49 U.S.C. § 60103, which governs safety standardsfor liquefied natural gas pipelines, by its express terms does not apply to certain existingfacilities. 49 U.S.C. § 60103(c) (“Except as provided in paragraph (2) of this subsection, adesign, location, installation, construction, initial inspection, or initial testing standard prescribedunder this chapter after March 1, 1978, does not apply to an existing liquefied natural gaspipeline facility . . . .”). These are additional reasons for the holding discussed in this opinion. 62
regulate only new facilities.31 Entergy argues further that the EPA has authority to approvecooling water intake structures only before construction and cannot regulate these structuresthrough the NPDES permits issued pursuant to CWA section 402(a)(1), 33 U.S.C. § 1342(a)(1),which allows the Administrator to “issue a permit for the discharge of any pollutant,” but not, inEntergy’s view, to cover existing intake structures.The EPA emphasizes that section 316(b) cross-references section 301, whichapplies to existing facilities, and that the Agency’s historical practice of applying section 316(b)to existing facilities effectuates Congress’s objectives in enacting the CWA. The EPA contendsthat Congress’s link between effluent limitations established pursuant to section 301 and BTAunder section 316(b) indicates an intent to regulate cooling water intake structures at existingfacilities. The EPA thus argues that the intake-structure standard is to be applied whenever anintake structure is present at a point source of pollutant discharge, whether that point source isnew or existing. As to Entergy’s argument concerning the ability to assess intake structuresduring NPDES permitting proceedings, the EPA argues that its decision to implement the PhaseII requirements through NPDES permits has a strong textual basis. It notes that section 402
32 We are not persuaded by Entergy’s selective definitions of the terms “location, design,construction, and capacity.” While we agree that words in a statute are to be accorded “theirordinary, contemporary, common meaning,” Harris v. Sullivan, 968 F.2d 263, 265 (2d Cir.1992), it is clear that the EPA’s interpretation of the statute does not deviate from thisrequirement. See, e.g., Black’s Law Dictionary 958 (8th ed. 1999) (“[L]ocation” is “[t]hespecific place or position of a person or thing.”); id. at 478 (“[D]esign” means “a plan or scheme”or “[t]he pattern or configuration of elements in something.”); id. at 332 (“[C]onstruction” is“[t]he act of building,” but also “the thing so built.”); Webster’s Third New Int’l Dictionary 330(1986) (“[C]apacity” means “the power or ability to hold, receive or accommodate” and “acontaining space: a measure of content for gas, liquid, or solid.”). Nothing in the abovedefinitions suggests the EPA could not have reasonably interpreted such words to includeexisting facilities. 63
provides for the issuance of “a permit for the discharge of any pollutant” so long as the dischargemeets “all applicable requirements under sections 1311 . . . [and] 1316,” sections 301 and 306 ofthe CWA respectively. CWA § 402(a)(1), 33 U.S.C. § 1342(a)(1). EPA contends that the PhaseII requirements are “requirements under sections 1311 . . . [and] 1316” and therefore that coolingwater intake structures may be regulated via permits issued pursuant to section 402. The EPA has the better of both arguments. As to whether section 316(b) appliesto existing facilities, we find Entergy’s textual argument, while superficially appealing,ultimately to be unavailing. Nothing in section 316(b) indicates that because it applies to the“location, design, construction, and capacity” of a facility’s cooling water intake structure, thesection is therefore limited to new facilities and does not require existing facilities either tomodify existing intake structures or to construct new intake structures in order to come intocompliance with the EPA’s Rule.32 In fact, given the cross-references in section 316(b) toprovisions governing both new and existing facilities, the EPA’s reading is far more reasonablethan Entergy’s. See E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 121 (1977) (“Section301(b) [to which section 316(b) expressly refers] defines the effluent limitations that shall be
64
achieved by existing point sources . . . .”); id. at 136 (holding that “301 does authorize the[Agency] to promulgate effluent limitations for classes and categories of existing point sources”). The cross-reference to section 301 is particularly significant given that Congress, having madethis explicit cross-reference, did not then limit section 316(b)’s application to new facilities –which would have been a simple task to do. At the very least, the EPA’s view that section 316(b)applies to existing facilities is a reasonable interpretation of the statute, and we therefore accordit deference. See Chevron, 467 U.S. at 842-43.Entergy’s argument concerning the permitting process presents a closer question,but it is ultimately not persuasive and does not undermine our conclusion that section 316(b), onits face, applies to existing facilities. The textual basis for the EPA to regulate cooling waterintake structures during the periodic permitting process applicable to the discharge of pollutantsis not immediately apparent. Section 402 conditions the issuance of a permit on the circumstancethat a “discharge will meet . . . all applicable requirements under sections 1311 . . [and] 1316.” CWA § 402(a)(1), 33 U.S.C. § 1342(a)(1) (emphasis added). While the Phase II requirementsare “requirements” under sections 301 and 306, they do not apply to the discharge of pollutants,and section 402 says nothing about conditioning a permit on compliance with other requirementsof sections 301 and 306, i.e., requirements not relating to the discharge of pollutants. Despitethis textual hiccup, the EPA’s decision to use the NPDES process to enforce section 316(b) is notunreasonable. Insofar as the provision applies to existing facilities – and the cross-reference insection 316(b) to section 301 provides a clear textual basis for that conclusion – the EPA couldenforce it only through some permit process following the issuance of an initial constructionpermit. Moreover, the structure of section 316(b) supports the view that its requirements are to
65
be enforced through the same process used to enforce the effluent limitations of sections 301 and306. As noted, the statute requires that any standard established by the EPA to govern thedischarge of pollutants from existing facilities must also regulate cooling water intake structures. CWA § 316(b), 33 U.S.C. § 1326(b) (providing that “[a]ny standard established pursuant tosection 1311 . . . or section 1316” shall also regulate the cooling water intake structures of pointsources). In light of this language, it is at least reasonable to conclude that Congress intended therequirements of section 316(b) to be part and parcel of any regulation of, and therefore anypermit issuance relating to, the discharge of pollutants. See Riverkeeper I, 358 F.3d at 185-86. Itis a fair conclusion that section 402 implicitly requires permitting authorities to ensurecompliance with section 316(b) as a permit condition. See U.S. Steel Corp. v. Train, 556 F.2d822, 850 (7th Cir. 1977) (“[Section] 402(a)(1) implicitly requires the Administrator to insurecompliance with § 316(b) as one of the permit conditions.”), overruled on other grounds by Cityof West Chicago, Ill. v. U.S. Nuclear Regulatory Comm’n, 701 F.2d 632, 644 (7th Cir. 1983)(abandoning the view that 5 U.S.C. § 558(c) independently provides that formal adjudicatoryhearings must be held when requested by a license applicant under CWA § 402). Section 402thus does not undermine the deference to which the Agency’s interpretation of section 316(b) isentitled under Chevron. Because section 316(b) plainly applies to existing facilities and Congress intendedthe requirements of section 316(b) to apply in tandem with the effluent limitations establishedpursuant to sections 301 and 306, we conclude that the EPA may regulate cooling water intakestructures via the NPDES permit process. Otherwise, Congress’s intent to regulate the intake
33 Entergy also contends that section 316(b) cannot be enforced via a citizen suit pursuantto section 505(a)(1), 33 U.S.C. § 1365(a)(1), because that provision covers only violations of “aneffluent standard or limitation” or “an order issued by the Administrator or a State with respect tosuch a standard or limitation,” and that the statute therefore applies only in the pre-constructioncontext. Because the case before us is not a citizen suit, we are not directly presented with thequestion of whether a citizen can sue to enforce section 316(b) and do not decide the question. We are not, however, persuaded by Entergy’s argument. The citizen suit provision states that acitizen may commence a suit against any person who is alleged to be in violation of “an effluentstandard or limitation under this chapter.” CWA § 505(a)(1), 33 U.S.C. § 1365(a)(1). Viewed inlight of this language alone, it is difficult to characterize a violation of regulations promulgatedpursuant to section 316(b) as a violation of an “effluent standard or limitation.” The statute,however, defines “effluent standard or limitation” to include “an effluent limitation or otherlimitation under section 1311” and a “standard of performance under section 1316.” CWA§ 505(f), 33 U.S.C. § 1365(f). Arguably, therefore, a limitation established pursuant tosection 316(b) is an “other limitation under section 1311” and a “standard of performance undersection 1316,” given the cross-reference to sections 301 and 306 in section 316(b), and thus fallswithin the scope of the citizen-suit provision. While we do not decide the question here, we donot read the citizen suit provision to undermine the deference we accord the EPA’s reasonableinterpretation pursuant to Chevron that section 316(b) applies to existing facilities.66
structures of existing facilities could not be effectuated.33 Accordingly, we reject this aspect ofEntergy’s challenge.B. Definition of “Adverse Environmental Impact”
In the Phase II Rule, as in the Phase I Rule, the EPA has interpreted the statutorydirective of section 316(b) to minimize “adverse environmental impact” (“AEI”) to require thereduction of “the number of aquatic organisms lost as a result of water withdrawals associated”with cooling water intake structures. 69 Fed. Reg. at 41,586. This interpretation reflects the factthat section 316(b) is a somewhat unusual provision of the CWA in that it governs theenvironmental effects of large scale withdrawals from waters of the United States rather than therelease of pollutants into receiving water. As did the industry petitioners in Riverkeeper I, PSEGargues that the EPA arbitrarily defined AEI to include any loss of or harm to aquatic organisms
34 PSEG relies on the Draft Guidance for Evaluating the Adverse Impact of CoolingWater Intake Structures on the Aquatic Environment, prepared by the EPA in 1977. While theEPA indicated in this document that “[a]dverse environmental impacts occur whenever there willbe entrainment or impingement damage as a result of the operation of a specific cooling waterintake structure,” PSEG focuses on the Agency’s statement that the “critical question” is “themagnitude of any adverse impact.”35 The environmental petitioners contend that PSEG has missed the mark here entirely. They argue that when organisms die of natural causes they remain available as food for toppredators, but that when organisms are entrained, and potentially disintegrated, they areconsumed by lower organisms. They argue also that entrained organisms are not available toconsume organisms lower on the food chain. The environmental petitioners thus contend thatone of the primary adverse environmental impacts of impingement mortality and entrainment istheir effect on the ecosystem as a whole by disrupting the food chain. The EPA discussed theseand other environmental impacts attributable to impingement mortality and entrainment in thepreamble to the Phase II Rule, concluding that “[d]ecreased numbers of aquatic organisms candisrupt aquatic food webs and alter species composition and overall levels of biodiversity.” 69Fed. Reg. at 41,586. 67
due to impingement mortality and entrainment rather than only more severe “population-leveleffects.” It contends that the EPA has historically focused on the “population dynamics” ofaquatic organisms and the fact that many of these organisms are “density dependent,” i.e., theyproduce large numbers of offspring, only a few of which survive to adulthood.34 On the theorythat the “vast majority” of entrained organisms would have died of natural causes in any event,PSEG argues that reduction of impingement mortality and entrainment will have only a marginalpositive environmental impact.35 PSEG contends that because the Agency has changed coursefrom its longstanding interpretation of AEI without giving a clear and reasoned justification forits decision, the EPA’s Rule is entitled to less deference than it otherwise would receive. PSEGalso argues that the Phase II Rule’s exclusion from the entrainment-reduction requirement offacilities withdrawing small amounts of water, facilities withdrawing water from lakes other thanthe Great Lakes, and facilities that have a small capacity utilization rate undercuts the EPA’s
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determination that impingement mortality and entrainment are per se adverse environmentalimpacts. We are not persuaded by PSEG’s arguments.We agree with the EPA that the Phase II Rule is based on substantially the samerecord evidence of impingement mortality and entrainment relied upon in promulgating the PhaseI Rule and that we rejected substantially the same arguments advanced here by the industrypetitioners in Riverkeeper I, 358 F.3d at 197 (“The EPA considered all of the factors that UWAGnow raises, and we are inclined to defer to the EPA’s judgment of how best to define andminimize ‘adverse environmental impact.’” (internal footnote omitted)). Riverkeeper I thuscontrols this issue. In Riverkeeper I, we rejected the arguments that some species are nuisances andrequire eradication, that other species respond to population losses by increasing theirreproduction, and that removing large numbers of aquatic organisms from waterbodies is not inand of itself an adverse impact. 358 F.3d at 196. We specifically rejected the view that “theEPA should only have sought to regulate impingement and entrainment where they havedeleterious effects on the overall fish and shellfish populations in the ecosystem, which can onlybe determined through a case-by-case, site-specific regulatory regime.” Id. We emphasized that“the EPA’s focus on the number of organisms killed or injured by cooling water intake structuresis eminently reasonable.” Id. We reiterated that Congress had “rejected a regulatory approachthat relies on water quality standards,” analogizing the argument pressed there as urging what isessentially a water quality standard that focuses on fish populations and consequential
36 We make an additional observation here, which we cited in Riverkeeper I as a reasonfor rejecting restoration measures as impermissible under the statute. It is significant that insection 316(a), which governs thermal discharges, Congress permits the EPA to vary the standardapplicable to a point source “by considering the particular receiving waterbody’s capacity todissipate the heat and preserve a ‘balanced, indigenous’ wildlife population.” 358 F.3d at 190. Itis also significant that Congress “did not include that [water quality or population level] approach(or make any reference to it) in the very next subsection,” id., since “where Congress includesparticular language in one section of a statute but omits it in another section of the same Act, it isgenerally presumed that Congress acts intentionally and purposely in the disparate inclusion orexclusion.” Id. (quoting Bates v. United States, 522 U.S. 23, 29-30 (1997) (internal quotationmarks omitted)). The statutory structure thus indicates that Congress did not intend to limit“adverse environmental impact” in section 316(b) to population-level effects.69
environmental harm.36 Id. at 196-97. Given that the record evidence on this issue has notchanged in any meaningful way since the Phase I rulemaking, we are both persuaded and boundby our statements on this issue in Riverkeeper I. Were we considering the issue in the first instance, however, we would beinclined to defer to the EPA’s judgment in any event. The EPA explained that it has set“performance standards for minimizing adverse environmental impact based on a relatively easyto measure and certain metric – reduction of impingement mortality and entrainment.” 69 Fed.Reg. at 41,600. It explained further that it chose this approach “because impingement andentrainment are primary, harmful environmental effects that can be reduced through the use ofspecific technologies” and stated that “where other impacts at the population, community, andecosystem levels exist, these will also be reduced by reducing impingement and mortality.” Id. We see no reason to second-guess this judgment, given the Agency’s consideration of the variousenvironmental consequences of cooling water intake structures. See Nat’l Wildlife Fed’n, 286F.3d at 570 (noting that courts afford the EPA considerable discretion to weigh and balance
37 We also find no merit in PSEG’s claim that the final Rule gave no notice of thesupposed change in the EPA’s view of “adverse environmental impact.” Not only did theproposed Rule seek comment on several competing definitions, one of which referred to gaugingsuch impact in part by examination of the “absolute damage” wrought by impingement andentrainment, but in which the EPA noted that “there will be adverse environmental impactwhenever there is entrainment or impingement ‘damage’ as a result of a cooling water intakestructure.” 67 Fed. Reg. at 17,162. While the EPA did not ultimately adopt any of the definitionsit noticed, it is clear that PSEG was “fairly apprise[d]” that the EPA was considering an approachto AEI that looked to entrainment and impingement at the individual level. Nat’l Black MediaCoalition, 791 F.2d at 1022. 70
various factors in determining how to establish performance standards).37 C. Zero Entrainment Survival Assumption
The Phase II Rule requires a reduction of impingement mortality, but a reductionof entrainment generally. See 40 C.F.R. § 125.94(b). The industry petitioners contend that theEPA improperly presumed that all entrained organisms are killed. They argue that the Rule’sassumption that no organisms survive entrainment is contrary to the evidence which, in theirview, indicates a survival rate of significantly more than zero. We conclude that in light ofuncertain record evidence, the EPA acted within its discretion in assuming zero entrainmentsurvival.The EPA explained in the preamble to the Phase II Rule that it assumed zeropercent entrainment survival because it “does not have sufficient data to establish performancestandards based on entrainment survival for the technologies used as the basis for today’s rule.” 69 Fed. Reg. at 41,620. It explained further that it “believes the current state of knowledge doesnot support reliable predictions of entrainment survival that would provide a defensible estimatefor entrainment survival above zero at a national level.” Id. It also stated that the performancestandard would likely have been higher had it incorporated entrainment survival into its
71
conclusions. Id. While impingement mortality can be readily quantified, the EPA contends,entrainment mortality cannot because many entrained organisms are small, fragile, and prone todisintegrate during entrainment. The EPA also contends that death from entrainment sometimesoccurs immediately but other times only after an organism is discharged back into the waterbody. In view of these factors, the EPA claims that it reasonably concluded that the available data didnot support an estimate of entrainment survival at the national level. None of the peer reviewers accepted the EPA’s assumption of zero percentsurvival. For instance, peer reviewer Dr. Mark Bain was “not convinced by the argumentspresented that fish do not survive entrainment in significant numbers” and concluded that there is“very strong evidence that entrainment survival is not zero.” Another peer reviewer, Dr. CharlesHocutt, concluded that the EPA’s assumption is based on inference and innuendo and does notstatistically refute opposing views. Although peer reviewer Dr. Greg Garman stated that thestudy submitted by the power industry was “very clearly biased” and “too seriously flawed toprovide a serious challenge to the EPA position,” he also noted that “EPA’s position is onlyslightly more defensible” given the lack of rigorous statistical analyses. No peer reviewer, however, expressed the belief that reliable national statistics onentrainment survival exist. Hocutt found “it difficult for the layman and professional alike todraw confident conclusions without a detailed analysis” of the evidence, and Garman suspected alack of sufficient data “to conduct a definitive and statistically valid test of the EPA zero survivalassumption.” While these comments do not, on balance, support the EPA’s assumption, neitherdo they reflect any meaningful agreement on the incidence of entrainment survival.Given the statutory directive to set national standards and the well-documented
72
uncertainty in the entrainment data, the EPA was well within its authority to determine that itcould not provide a reasonable estimate of entrainment survival on a national basis. Judicialreview is considerably deferential when “the agency’s decision rests on an evaluation of complexscientific data within the agency’s technical expertise.” Texas Oil & Gas Ass’n, 161 F.3d at 934;City of Waukesha v. EPA, 320 F.3d 228, 247 (D.C. Cir. 2003) (stating that an agency is entitledto “an extreme degree of deference . . . when it is evaluating scientific data within its technicalexpertise” (citation and internal quotation marks omitted)). Moreover, “it is within EPA’sdiscretion to decide that in the wake of uncertainty, it would be better to give the values aconservative bent rather than err on the other side.” Am. Iron & Steel Inst. v. EPA, 115 F.3d 979,993 (D.C. Cir. 1997). Indeed, one peer reviewer expressly noted that the EPA had adopted a“conservative approach” by its assumption of zero entrainment survival in the Rule. It is thusclear that the EPA acted well within its discretion in presuming zero entrainment survival afterthe Agency had reviewed a substantial body of complex scientific data, and acknowledging thatthe evidence is inconclusive, it adopted a conservative approach. For these reasons and those stated in Riverkeeper I, we therefore “defer to theEPA’s judgment of how best to define and minimize ‘adverse environmental impact.’” 358 F.3dat 197.
D. Nuclear PlantsEntergy contends that the Phase II Rule fails to account for its purportedlydisproportionate impacts on nuclear power plants and is therefore arbitrary and capricious.Entergy argues that nuclear facilities face unique safety concerns associated with the stable flowof cooling water to ensure safe reactor operation and shutdown. Any change in water intake or
73
obstruction of water intake systems due to, for example, the clogging of screens, it argues further,affects nuclear power facilities in specific and serious ways. Entergy takes the position that theEPA failed to account for these issues in the Phase II Rule. We disagree because the recorddemonstrates adequate consideration by the EPA of nuclear plants’ particular concerns. The EPA considered and responded to comments from nuclear facilities duringthe rulemaking process. Most importantly, the Agency considered whether the Rule’srequirements presented any concerns relating to the safety of nuclear facilities. 69 Fed. Reg. at41,585 (noting that the EPA had coordinated with the Nuclear Regulatory Commission to ensurethat there would not be a conflict between the EPA Rule and safety requirements applicable tonuclear facilities). The EPA ultimately included in the Phase II Rule a provision that accountsfor this concern by providing for a site-specific compliance alternative for nuclear facilities. Thisprovision states that if a nuclear facility “demonstrate[s] to the [EPA] based on consultation withthe Nuclear Regulatory Commission that compliance with this subpart would result in a conflictwith a safety requirement established by the Commission, the [EPA] must make a site-specificdetermination of best technology available for minimizing adverse environmental impact thatwould not result in a conflict.” 40 C.F.R. § 125.94(f). We defer to the EPA’s determination that this compliance alternative ensures thatany safety concerns unique to nuclear facilities will prevail over application of the general PhaseII requirements. See Nat’l Wildlife Fed’n, 286 F.3d at 570 (noting that appellate courts give anagency considerable discretion when it has weighed and balanced the appropriate factors); BPExploration & Oil, Inc. v. EPA, 66 F.3d 784, 802 (6th Cir. 1995) (“The overriding principle inour review of the Final Rule is that the agency has broad discretion to weigh all relevant factors
38 The Phase I Rule provided that[u]se of a cooling water intake structure includes obtaining cooling water by anysort of contract or arrangement with an independent supplier (or multiplesuppliers) of cooling water if the supplier or suppliers withdraw(s) water fromwaters of the United States. . . . [t]his provision is intended to prevent74
during rulemaking. The CWA does not state what weight should be accorded to the relevantfactors; rather, the Act gives EPA the discretion to make those determinations.”). Moreover, weare persuaded that the generous cost-cost compliance alternative, which we remand for lack ofnotice but do not address on the merits, may further account for Entergy’s concerns. Accordingly, we deny the petition for review insofar as it challenges the Rule’sapplication to nuclear facilities.
E. Independent SuppliersThe Phase II Rule provides that a large, existing facility is subject to the Rule’srequirements even when it obtains cooling water from an independent supplier that is not itself aPhase II existing facility. 40 C.F.R. § 125.91(c). Put differently, a Phase II facility can purchasecooling water only from suppliers whose intake structures are in compliance with the Phase IIRule. The provision is intended to prevent circumvention of the Rule by purchasing coolingwater from non-Phase II entities. UWAG argues that the EPA gave inadequate notice of thescope of this so-called third-party or independent-supplier Rule. We agree.UWAG contends that while the Phase I Rule included an independent-supplierprovision similar to the one at issue here, the parallel provision of the Phase I Rule applies onlyto third-party suppliers that are not point sources, and thus do not need discharge permits and arenot subject to any rule promulgated pursuant to section 316(b).38 UWAG argues that the Rule’s
circumvention of these requirements by creating arrangements to receive coolingwater from an entity that is not itself a point source.40 C.F.R. § 125.81(b). 75
proposal indicated that the Phase II provision would track the language of the Phase I provision. UWAG contends, therefore, that the EPA gave inadequate notice of the more broadly phrasedprovision that was actually promulgated: a rule applying both to the intake structures of third-parties that are not point sources, and therefore not subject to direct regulation undersection 316(b), as well as to facilities with intake structures that will be governed by the Phase IIIrule, which will encompass smaller power plants and other facilities. The issue is thus whetherthe EPA provided adequate notice that the Rule ultimately promulgated would impose Phase IIrequirements on Phase III facilities that supply cooling water to Phase II facilities. As we have noted, our inquiry into whether an agency has provided adequatenotice of its rulemaking as required by the APA is guided by the “logical outgrowth” test. Nat’lBlack Media Coalition, 791 F.2d at 1022. That is, we must determine whether the Agency’snotice fairly apprised interested parties of the rulemaking, id., or whether the final Rule wassufficiently remote or distant from the Agency’s proposal to constitute a “surprise switcheroo,”Envtl. Integrity Project, 425 F.3d at 996.The proposed Rule published in the Federal Register stated that “[u]se of acooling water intake structure includes obtaining cooling water by any sort of contract orarrangement with an independent supplier (or multiple suppliers) of cooling water if the supplieror suppliers withdraw(s) water from waters of the United States.” 67 Fed. Reg. at 17,220. Thenotice then stated that the provision was intended “to prevent circumvention of these
39 The final Rule provides that “[u]se of a cooling water intake structure includesobtaining cooling water by any sort of contract or arrangement with one or more independentsuppliers of cooling water if the supplier withdraws water from waters of the United States but isnot itself a Phase II existing facility . . . . This provision is intended to prevent circumvention ofthe requirements by creating arrangements to receive cooling water from an entity that is notitself a Phase II existing facility.” 40 C.F.R. § 125.91(c). 76
requirements by creating arrangements to receive cooling water from an entity that is not itself apoint source,” id. (emphasis added), indicating that the provision would track the Phase I Rule’slanguage. The initial language of the provision appearing in the proposal – defining“independent supplier” as any provider that withdraws water from waters of the United States –is virtually identical to the language in the final Rule.39 The final Rule, however, states that it “isintended to prevent circumvention of these requirements by creating arrangements to receivecooling water from an entity that is not itself a Phase II existing facility.” 40 C.F.R. § 125.91(c)(emphasis added). This difference, while small, is not insignificant. As noted, under theproposed Rule, Phase II facilities could purchase cooling water from facilities complying withthe Phase I, II, or III requirements. Under the final Rule, by contrast, Phase II facilities canpurchase cooling water only from facilities complying with the Phase II Rule. The proposaltherefore apprised affected parties of the general subject, but not the scope, of the Rule ultimatelypromulgated. Interested parties were thus given notice that the EPA sought to preventcircumvention of its rules and an opportunity to comment on this general policy, but could nothave anticipated the final Rule’s scope. Indeed, while the final provision has roots in theproposal, it clearly reaches further than the proposed provision and even the more stringent PhaseI Rule. Affected parties would therefore have had no reason to anticipate the Agency’s final
77
course in light of the initial notice. Because the EPA provided inadequate notice of the scope ofthe Phase II Rule’s independent-supplier provision, we conclude that the Rule ultimatelypromulgated is not a “logical outgrowth” of the proposed Rule. Nat’l Black Media Coalition,791 F.2d at 1022. Our conclusion rests in large part on the similarity between the Phase I Rule’sindependent-supplier provision and the proposed Phase II Rule’s parallel provision. Given thatthe requirements under the Phase I Rule are more stringent than those imposed under the Phase IIRule, the proposal provided no notice that the Phase II Rule’s independent-supplier provisionwould be more stringent than the Phase I Rule’s provision. We therefore remand this aspect ofthe Rule.
F. Definition of “Great Lakes”The entrainment performance standard of 40 C.F.R. § 125.94(b)(2) applies tofacilities that use cooling water “withdrawn from . . . one of the Great Lakes.” 40 C.F.R.§ 125.49(b)(2)(ii)(A). “Great Lakes,” however, is not defined in the Rule. An affidavit ofUWAG’s counsel states that UWAG members
have been told by state regulators that they have been told by EPA Headquartersthat EPA would apply the Great Lakes national performance standards regardingimpingement and entrainment to the cooling water intake structures located in theGreat Lakes connecting channels or in waterways with open fish passage to aGreat Lake and within 30 miles from a Great Lake. UWAG argues that interested parties were given no notice of this interpretation of the Phase IIRule or opportunity to comment on it and that the interpretation has no record support. UWAGalso remarks that the EPA mentioned in the preamble to the Rule that in assessing the national
78
environmental benefits of its final Phase II Rule, it had evaluated the benefits in seven studyregions. The EPA defined the Great Lakes region for that purpose as follows:The Great Lakes region includes all facilities in scope of the Phase II rule thatwithdraw water from Lakes Ontario, Erie, Michigan, Huron, and Superior or arelocated on a waterway with open fish passage to a Great Lake and within 30 milesof the lake.
69 Fed. Reg. at 41,655. UWAG contends that the EPA never indicated that this definition wouldapply to § 125.94(b)(2) and seeks either a ruling that “Great Lakes” has its ordinary meaning or aremand for an express definition of what the term means. Notwithstanding UWAG’s proffer that the EPA has informally interpreted “GreatLakes,” the Rule itself does not define what is encompassed by the term, and UWAG hasprovided no documentary evidence that the EPA has issued a formal and binding definition oreven applied a particular definition in a permitting proceeding. There is, therefore, no finalagency action for us to review. We agree with the holding of the Seventh Circuit in AmericanPaper Institute, Inc. v. Environmental Protection Agency, that in the absence of a formal andbinding rule or some other final agency action, judicial review is not available at this time. 882F.2d 287, 289 (7th Cir. 1989). We therefore dismiss for lack of jurisdiction so much of thepetition for review as challenges the purported definition of “Great Lakes.”
G. Preemptive Preservation of IssuesUWAG has purported to “preserve” the right to raise new challenges to the PhaseII Rule if we remand significant aspects of it to the EPA because UWAG views the Rule as anintegrated whole. If certain aspects of the Rule are remanded, UWAG suggests, previouslyunobjectionable provisions may become, in its view, unacceptable. We are not sure what
79
challenges UWAG seeks to preserve. Of course, UWAG will have the right to challenge any rulethe EPA may promulgate on remand through a new petition for review. See 33 U.S.C. § 1369(b). Insofar as UWAG seeks to raise further challenges following the issuance of our ruling butbefore the EPA acts on remand, however, it waived those challenges by failing to raise them inthe briefs it has already submitted to this Court. See Norton v. Sam’s Club, 145 F.3d 114, 117(2d Cir. 1998) (noting that issues not argued in a party’s briefs are considered waived). We thusreject UWAG’s claim to have preserved the right to raise new challenges to the Rule currentlybefore us on this petition for review. CONCLUSION
For the foregoing reasons, the state and environmental petitioners’ petitions aregranted in part and denied in part, and the industry petitioners’ petitions granted in part, denied inpart, and dismissed in part for lack of jurisdiction. We remand to the EPA the provisionestablishing BTA so that it may provide either a reasoned explanation of its decision or a newdetermination of BTA based on permissible considerations. We further remand the site-specificcost-cost variance and the TIOP provision because the cost-cost variance and subpart (d)(2) ofthe TIOP provision provided inadequate notice and both depend on the BTA determination,which we remand today. We remand as based on impermissible constructions of the statute thoseprovisions that (1) set performance standards as ranges without requiring facilities to achieve thegreatest reduction of adverse impacts they can; (2) allow compliance through restorationmeasures; and (3) authorize a site-specific cost-benefit variance as impermissible under thestatute. We further remand for notice and comment the independent suppliers provision. We
80
also direct the EPA on remand to adhere to the definition of “new facility” set forth in the Phase IRule or to amend that definition by rulemaking subject to notice and comment. Finally, wedismiss for lack of jurisdiction so much of the petitions as challenges the purported definition of“Great Lakes” and deny as moot the motions to strike certain material from the record and tosupplement the record with other material.
1
UNITED STATES COURT OF APPEALSFOR 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 UNITEDMETHODIST 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 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 thesupplemental letter-briefs. First, the majority writes that “appellant argues that the RFRA is
2
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
inapplicable only because it is unconstitutional.” Maj. Op. at 12. On the contrary, appellantargues also that RFRA is inapplicable because “[t]here is no substantial burden to the freeexercise of religion that could result from a ruling by this court” that appellees violated theADEA. 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 thequestion 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 anyevent, “application of RFRA to federal law is unconstitutional.” Appellees, in turn, argue thatRFRA is constitutional but should not affect the outcome of this case.
3
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
2 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 tobe applied.” 472 U.S. at 501 (citation and internal quotation marks omitted).
3 Like RFRA, RLUIPA prohibits the government from imposing substantial burdens onreligion 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 judicialproceeding 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 assertthat violation as a claim or defense in a judicial proceeding and obtain appropriate relief against agovernment.”). 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 involvingland use regulations and correctional facilities. See 42 U.S.C. §§ 2000cc, 2000cc-1.
4
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
5
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]
4 I express no view on whether RFRA is constitutional as applied to federal law because itis unnecessary for us to reach this question.
5 Before Boerne, a reasonable argument could have been made that all Free ExerciseClause 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, evenwhere the parties had not raised a claim or defense under the statute. In a subsequent en bancopinion, however, the Tenth Circuit recognized that Boerne had undermined its earlierconclusion:
[I]n Werner, decided prior to City of Boerne, we were laboring under the falseunderstanding that RFRA “legislatively overturned a number of recent SupremeCourt [free exercise] decisions” and that it created a new rule of constitutionallaw. Thus, we concluded that because the language of RFRA made it applicableto “all cases where free exercise of religion is substantially burdened,” its standardought to control a Free Exercise Clause claim even when not raised. Because theSupreme Court has made clear that the Werner court’s assumptions about RFRAwere faulty, its rationale is no longer convincing.
United States v. Hardman, 297 F.3d 1116, 1125 n.15 (10th Cir. 2002) (en banc) (alteration inoriginal) (citations omitted).
6
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.
6 As recently emphasized by a plurality of Justices, the Supreme Court has not applied theLemon 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, thatwould invalidate a neutral, generally applicable law imposing an incidental but substantialburden on religion.
7
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
7 The closest appellees come to making a RFRA argument, as opposed to a FirstAmendment 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 onlyoccasion, however, in which appellees employ RFRA-like language by referring to the allegedintrusion on their rights as a “substantial[] burden,” and it is clear from context that the statementformed part of appellees’ Establishment Clause argument that application of the ADEA wouldfoster an excessive entanglement with religion. The brief did not purport to raise a separatedefense under RFRA. In any event, even if appellees’ mention of a “substantial[] burden” intheir 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 notseek to invoke RFRA’s protections.
8
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
9
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.
8 There are two plausible ways to reconcile section 2000bb-1(b) of RFRA with themajority opinion in this case. The first would be to require government intervention in everyprivate suit where one of the parties asserts that a law has—even incidentally—imposed asubstantial burden on religious freedom. Absent a clear statement that Congress intended such aresult, it is not the role of this Court to mandate such widespread and automatic federalintervention in lawsuits between private parties. Moreover, were we to read the statute to requiregovernment 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 theburden RFRA places on the government. The statute gives no indication that Congress intendedprivate parties to bear such a burden, nor would it be appropriate to require private parties tosatisfy the stringent burden RFRA places on the government.
10
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
9 All of the examples cited in the Senate and House Reports on RFRA involve actual orhypothetical 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 suitbetween private parties in these Reports tends to confirm what is evident from the plain languageof the statute: It was not intended to apply to suits between private parties.
11
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.
10 The majority cites dicta from district court opinions in Indiana and Arizona butconcedes that those courts “assumed” that RFRA could apply without analyzing the issue in anydepth. See Maj. Op. at 25-26 n.4.
12
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
11 The Court reached this conclusion even though the NLRA did not expressly includereligious institutions in its list of eight types of employers exempted from the act. See CatholicBishop, 440 U.S. at 511 (Brennan, J., dissenting) (citing 29 U.S.C. § 152(2)).
13
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)).
12 As discussed below, DeMarco also found the ADEA distinguishable from the NLRAbecause Congress clearly intended the ADEA to apply to religious institutions. See 4 F.3d at172.
14
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 age-
discrimination 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. &
15
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
13 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 FirstAmendment grounds from employment discrimination suits brought by clergy members or otheremployees serving primarily religious roles. See Roman Catholic Diocese of Raleigh, N.C., 213F.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 UnitedMethodist Church, 173 F.3d 343, 351 (5th Cir. 1999); EEOC v. Catholic Univ. of Am., 83 F.3d455, 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 (8thCir. 1991). Most circuits have reached the constitutional question directly and have held that theFirst 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 wouldapply Catholic Bishop’s principles of statutory construction so as to avoid making definitivepronouncements on the constitutional question. See 440 U.S. at 507; see also Scharon, 929 F.2dat 361-63 (applying the Catholic Bishop analysis to an employment discrimination action broughtby a priest). Despite this difference, my conclusion is substantially the same as that of otherCircuits: courts may not adjudicate employment discrimination lawsuits brought by clergymembers challenging a religious body’s refusal to select or retain them as spiritual leaders.
16
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.
14 I take no issue, however, with the analysis of the ADEA’s procedural requirements insection (a) of the majority’s opinion. See Maj. Op. at 5-8.
17
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
1
UNITED STATES COURT OF APPEALS12
FOR THE SECOND CIRCUIT34
August Term, 200456
(Argued: January 5, 2005 Decided: February 16, 2006)78
Docket No. 04-0743-cv9101112
JOHN PAUL HANKINS,1314
Plaintiff-Appellant,1516
v.1718
ERNEST S. LYGHT and NEW YORK ANNUAL CONFERENCE OF THE UNITED19METHODIST CHURCH,20
21Defendants-Appellees,22
23STONY BROOK COMMUNITY CHURCH,24
25Defendant.26
272829
B e f o r e: WINTER, SOTOMAYOR, and B.D. PARKER, Circuit30Judges.31
32Appeal from the dismissal of a minister’s age discrimination33
action against his church in the Eastern District of New York34
(Denis R. Hurley, Judge). We hold that the Religious Freedom35
Restoration Act of 1993 is constitutional as applied to federal36
law. It therefore amended the ADEA and governs the merits of37
this action. We vacate and remand for reconsideration in light38
of the RFRA.39
Judge Sotomayor dissents in a separate opinion.40
41
2
BRUCE MILES SULLIVAN, Stony Brook,1New York, for Plaintiff-Appellant.2
3FREDERICK K. BREWINGTON, Hempstead,4New York, for Defendants-Appellees.5
6WINTER, Circuit Judge:7
8John Paul Hankins appeals from the dismissal by Judge Hurley9
of his age discrimination action. Hankins was a clergy member10
ordained by appellee New York Annual Conference of the United11
Methodist Church ("NYAC"). He was forced into retirement when he12
attained the age of 70. Appellee Ernest S. Lyght is the Bishop13
of the NYAC and has the power to appoint clergy to NYAC churches.14
Hankins claims that the NYAC’s mandatory retirement policy15
violates the Age Discrimination in Employment Act of 196716
("ADEA"), 29 U.S.C. § 621 et seq. We hold that the Religious17
Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. § 2000bb et18
seq., is constitutional as applied to federal law; it therefore19
amended the ADEA and governs the merits of the principal issue20
raised by the parties. We vacate the dismissal of Hankins’21
complaint and remand for a determination of whether application22
of the ADEA to Hankins’ relationship with the NYAC and Lyght23
violates the RFRA.24
BACKGROUND25
We assume the existence of the facts as alleged in the26
complaint. Hankins was ordained by the NYAC and served as a27
clergy member from 1962 to July 1, 2003. He turned 70 on28
3
November 5, 2002, and was forced into retirement on July 1,1
2003, as prescribed by paragraph 356 of the Methodist Book of2
Discipline. 3
According to a statement by the Methodist Church's Council4
of Bishops, the Book of Discipline is neither "sacrosanct" nor5
"infallible, but . . . is the most current statement of how6
United Methodists agree to live together" as "an inclusive7
society without regard to ethnic origin, economic condition,8
gender, age, or the disabilities of its constituents." The9
complaint alleges that the Book of Discipline contains "subject10
matters that are sectarian and ecclesiastical in nature[,] being11
related to the nature of the Deity and the Trinity, the12
scriptures, the tenets of the United Methodist Church, the13
theological grounding of biblical faith, the teachings of John14
Wesley and/or other religious principles or values (. . .15
‘religious considerations')," as well as "subject matters that16
are secular, temporal and/or civil in nature[,] not being17
determined, controlled or influenced by any religious18
considerations." The complaint further claims that paragraph19
356, under which Hankins was mandatorily retired, "is a secular,20
temporal, and/or civil subject matter, not being determined,21
controlled or influenced by any religious considerations." 22
Bishop Lyght told Hankins and other members of the Church23
that he had the authority to reappoint Hankins as pastor, despite24
4
the fact that Hankins is over 70 years old. However, Bishop1
Lyght also stated that it is his "personal policy (as2
distinguished from the policy set forth in the Book of3
Discipline) never to reappoint members of the clergy who have4
attained age seventy to the church out of which they were5
retired." 6
Appellant brought an age discrimination charge to the Equal7
Employment Opportunity Commission ("EEOC") on March 19, 2003. 8
The EEOC issued a Notice of Right to Sue on April 11, 2003. 9
Appellant also filed a Verified Complaint with the New York10
Division of Human Rights on June 11, 2003; that Complaint was11
dismissed for administrative convenience on July 1, 2003. 12
Appellant filed the instant suit on July 3, 2003. 13
Appellant’s complaint claimed that the mandatory retirement14
policy violated the ADEA, the New York Human Rights Law, and the15
NYAC's covenant with him (Counts I, II, and IV); and that Bishop16
Lyght's personal policy against reappointing retired clergy17
violated the ADEA and Human Rights Law (Count III).1 18
Appellees moved to dismiss for lack of subject matter19
jurisdiction and for failure to state a claim upon which relief20
could be granted, under Rules 12(b)(1) and (6) respectively. The21
district court, ruling orally, declined to decide the 12(b)(1)22
motion, which was apparently based on deficiencies in the EEOC’s23
review of appellant’s charge. Instead, the court granted the24
5
12(b)(6) motion based on a “ministerial exception” to the ADEA --1
a rule adopted by several circuits that civil rights laws cannot2
govern church employment relationships with ministers without3
violating the free exercise clause because they substantially4
burden religious freedom. See, e.g., McClure v. Salvation Army,5
460 F.2d 553, 560 (5th Cir. 1972) (applying Title VII to church-6
minister relationship "would result in an encroachment by the7
State into an area of religious freedom into which it is8
forbidden to enter" by the Free Exercise Clause). The court9
dismissed the complaint under Rule 12(b)(6). 10
DISCUSSION11
Appellant argues that the ministerial exception should not12
insulate a church’s non-religious regulations that discriminate13
against ministers on the basis of age. Appellees assert that14
this action is barred by EEOC errors. Alternatively, they15
continue to rely upon "the ministerial exception," the Free16
Exercise clause, and the Establishment Clause, claiming that17
applying the ADEA to the church-minister relationship would18
substantially burden religion. In that regard, appellees note19
that "for this very reason" Congress passed the RFRA. We address20
the alleged EEOC errors before turning to the main issue: 21
whether the RFRA amended the ADEA.22
a) Completion of Administrative Proceedings23
Appellees argue that the district court lacked jurisdiction24
6
because the EEOC issued appellant’s Notice of Right to Sue fewer1
than sixty days after his charge was filed.2 We disagree. 2
Appellant satisfied all statutory requirements for bringing3
this private action under the ADEA. He filed an age4
discrimination charge with the EEOC on March 19, 2003; the EEOC5
issued a Notice of Right to Sue on April 11, 2003. Under 296
U.S.C. § 626(d) and (e), appellant had to file the instant suit7
more than sixty days after filing his EEOC complaint and within8
ninety days of his receipt of the EEOC Notice. Hankins complied9
with both requirements by filing suit on July 3, 2003 -- more10
than 60 days after March 19, and 83 days after April 11. 11
Furthermore, contrary to appellees’ arguments, the instant suit12
was not barred by appellant’s June 11, 2003 filing of a Complaint13
with the New York Division of Human Rights because the Division14
dismissed the complaint on July 1, 2003, before appellant filed15
this suit. See 29 U.S.C. § 633(b) (ADEA prohibits bringing suit16
before 60 days after commencement of state proceedings, "unless17
such proceedings have been earlier terminated"). 18
Appellees rely for their jurisdictional contention on two19
Title VII cases: Martini v. Fed. Nat’l Mortgage Ass’n, 178 F.3d20
1336 (D.C. Cir. 1999), and Rodriguez v. Connection Tech. Inc., 6521
F. Supp. 2d 107 (E.D.N.Y. 1999). These cases inferred from the22
language of 42 U.S.C. § 2000e-5(f)(1)3 that the EEOC lacks23
authority to issue right-to-sue notices based on Title VII claims24
7
before 180 days after a charge is filed. E.g., Martini, 178 F.3d1
at 1347 (“[T]he EEOC’s power to authorize private suits within2
180 days undermines its express statutory duty to investigate3
every charge filed, as well as Congress’s unambiguous policy of4
encouraging informal resolution of charges up to the 180th5
day.”). We have not decided whether the regulation allowing6
early issuance of right-to-sue notices, 29 C.F.R. §7
1601.28(a)(2), is a permissible construction of Section 2000e-5. 8
We express no opinion on the issue here, although we note that9
two circuits and several district courts within this circuit have10
disagreed with Martini and Rodriguez. Sims v. Trus Joist11
MacMillan, 22 F.3d 1059, 1061-63 (11th Cir. 1994) (early issuance12
of right-to-sue letter by EEOC does not bar a Title VII suit);13
Saulsbury v. Wismer & Becker, Inc., 644 F.2d 1251, 1257 (9th Cir.14
1980) (same); Commodari v. Long Island Univ., 89 F. Supp. 2d 353,15
381-83 (E.D.N.Y. 2000) (same); Palumbo v. Lufthansa German16
Airlines, 1999 U.S. Dist. LEXIS 11412, No. 98 Civ. 5005, 1999 WL17
540446, at *2 (S.D.N.Y. July 26, 1999) (same); Figueira v. Black18
Entm’t Television, Inc., 944 F. Supp. 299, 303-08 (S.D.N.Y. 1996)19
(same).20
The key fact in the present matter is that the language of21
29 U.S.C. § 626, which authorizes suits under the ADEA, differs22
significantly from that of Section 2000e-5(f)(1). Section 62623
provides that “[n]o civil action may be commenced by an24
8
individual under this section until 60 days after a charge1
alleging unlawful discrimination has been filed with the [EEOC]." 2
Id. § 626(d). Appellant complied with this provision by waiting3
sixty days after filing his EEOC charge before bringing the4
instant suit. The fact that the EEOC terminated its proceedings5
prior to the expiration of sixty days was irrelevant to the6
district court’s authority to entertain the case. This is7
especially so because Section 626, unlike Section 2000e-5,8
explicitly contemplates early termination of EEOC investigations. 9
Id. § 626(e) (“If a charge filed with the [EEOC] under this10
chapter is dismissed or the proceedings of the [EEOC] are11
otherwise terminated by the [EEOC], the [EEOC] shall notify the12
person aggrieved.”). This suit was therefore properly before the13
district court.14
b) The Religious Freedom Restoration Act15
In our view, the dispositive issue in this matter concerns16
the application of the RFRA. The statute's substantive17
provisions state:18
(a) In general. Government shall not substantially19burden a person's exercise of religion even if the20burden results from a rule of general applicability,21except as provided in subsection (b).22(b) Exception. Government may substantially burden a23person's exercise of religion only if it demonstrates24that application of the burden to the person--25(1) is in furtherance of a compelling governmental26interest; and27(2) is the least restrictive means of furthering that28compelling governmental interest.29
30
9
42 U.S.C. § 2000bb-1.1
The test set out in Subsection (b)(1) and (2) “applies to2
all Federal law, and the implementation of that law, whether3
statutory or otherwise, and whether adopted before or after4
November 16, 1993.” Id. § 2000bb-3(a). The RFRA's remedial5
provision states that “[a] person whose religious exercise has6
been burdened in violation of this section may assert that7
violation as a claim or defense in a judicial proceeding and8
obtain appropriate relief against a government.” Id. §9
2000bb-1(c). "[G]overnment" is in turn defined to include any10
"branch, department, agency, instrumentality, and official (or11
other person acting under color of law) of the United States." 12
Id. § 2000bb-2(1). 13
The present action is a suit against a church and an14
official of that church. The suit claims that the defendants15
violated a federal statute, the ADEA, and seeks judicial16
remedies; appellees claim that application of the statute would17
substantially burden the exercise of their religion. If the18
RFRA's test for evaluating burdens on religious activity --19
Subsections (b)(1) and (2) -- is not met, appellees can arguably20
assert a violation of the RFRA as a complete defense. 21
The district court dismissed the case based on a22
"ministerial exception" that some courts had read into various23
anti-discrimination laws -- an unresolved issue in this circuit -24
10
- including the ADEA. Whatever the merits of that exception as1
statutory interpretation or policy, it has no basis in statutory2
text, whereas the RFRA, if applicable, is explicit legislation3
that could not be more on point. Given the absence of other4
relevant statutory language, the RFRA must be deemed the full5
expression of Congress’s intent with regard to the religion-6
related issues before us and displace earlier judge-made7
doctrines that might have been used to ameliorate the ADEA’s8
impact on religious organizations and activities. City of9
Milwaukee v. Illinois, 451 U.S. 304, 314 (1981) ("Federal common10
law is a necessary expedient, and when Congress addresses a11
question previously governed by a decision rested on federal12
common law the need for such an unusual exercise of lawmaking by13
federal courts disappears.") (internal quotation marks and14
citations omitted).15
There is little caselaw addressing the issue whether the16
RFRA applies to an action by a private party seeking relief under17
a federal statute against another private party who claims that18
the federal statute substantially burdens his or her exercise of19
religion.4 The RFRA's language surely seems broad enough to20
encompass such a case. The statutory language states that it21
"applies to all federal law, and the implementation of that law,"22
42 U.S.C. § 2000bb-3(a), and that a defendant arguing that such a23
law substantially burdens the exercise of religion "may assert [a24
11
violation of the RFRA] as a . . . defense in a judicial1
proceeding." Id. § 2000bb-1(c). This language easily covers2
the present action. The only conceivably narrowing language is3
the phrase immediately following: "and obtain appropriate relief4
against a government." Id. However, this language would seem5
most reasonably read as broadening, rather than narrowing, the6
rights of a party asserting the RFRA. The narrowing7
interpretation -- permitting the assertion of the RFRA as a8
defense only when relief is also sought against a governmental9
party -- involves a convoluted drawing of a hardly inevitable10
negative implication. If such a limitation was intended,11
Congress chose a most awkward way of inserting it. The12
legislative history is neither directly helpful nor harmful to13
that view.14
We need not, however, decide whether the RFRA applies to a15
federal law enforceable only in private actions between private16
parties. The ADEA is enforceable by the EEOC as well as private17
plaintiffs, and the substance of the ADEA's prohibitions cannot18
change depending on whether it is enforced by the EEOC or an19
aggrieved private party. See United States v. Brown, 79 F.3d20
1550, 1559 n.16 (11th Cir. 1996) ("The meaning of the statutory21
words 'scheme to defraud' does not change depending on whether22
the case is Civil RICO or criminal."). An action brought by an23
agency such as the EEOC is clearly one in which the RFRA may be24
12
asserted as a defense, and no policy of either the RFRA or the1
ADEA should tempt a court to render a different decision on the2
merits in a case such as the present one. Indeed, appellant3
argues that the RFRA is inapplicable only because it is4
unconstitutional.5
1. Waiver6
First, however, we must address whether appellees have7
waived or forfeited reliance upon the RFRA. In their original8
brief, as noted, appellees argued that the ADEA was an unlawful9
burden on their religious activities and that Congress has10
enacted the RFRA, a statute that applied to all federal laws,11
"for this very reason." Appellant’s Brief at 28. Believing that12
this reference to a seemingly dispositive but otherwise13
unmentioned statute needed some elaboration and unconvinced that14
appellant's claim that the Supreme Court had held the RFRA15
unconstitutional in all circumstances was correct, we asked for16
further briefing.17
Somewhat to our surprise, appellees’ post-argument letter-18
brief states that, although all pertinent portions of the RFRA19
are constitutional, the statute is inapplicable because “the case20
at bar is a matter relating to a private employment situation and21
does not involve actions by the government.” Nevertheless,22
appellees continue to rely upon the "ministerial exception" and23
the Free Exercise and Establishment Clauses.24
13
In our view, as discussed above, the RFRA’s provisions are1
directly on point, and allow parties who, like appellees, claim2
that a federal statute, like the ADEA, substantially burdens the3
exercise of their religion to assert the RFRA as a defense to any4
action asserting a claim based on the ADEA. The issue then is5
whether their post-argument letter-brief constitutes a waiver or6
forfeiture of that defense.7
A party may certainly waive or forfeit a RFRA defense by8
failing to argue that a law or action substantially burdens the9
party’s religion. For example, in United States v. Amer,10
appellant had forfeited the defense that his child kidnaping11
conviction violated the RFRA, because “[a]t no point during the12
pretrial, trial, or sentencing proceedings did [appellant] argue13
that his act of removing and retaining the children was14
religiously mandated or inspired.” 110 F.3d 873, 879 & n.1 (2d15
Cir. 1997). Where a party fails to assert a substantial burden16
on religious exercise before a district court, therefore, the17
party may not raise that issue -- an inherently fact-based one --18
for the first time on appeal.19
However, appellees argued in the district court and here --20
and continue to argue -- that application of the ADEA to the21
relationship between their church and appellant substantially22
burdens their religion. They continue to assert the "ministerial23
exception," which in their view tracks the Free Exercise clause24
14
of the Constitution and the Establishment Clause as well. 1
Appellees’ Brief at 4-15; see Elvig v. Calvin Presbyterian2
Church, 397 F.3d 790, 790 (9th Cir. 2005) ("[T]he 'ministerial3
exception' to Title VII is carved out from the statute based on4
the commands of the Free Exercise and Establishment Clauses of5
the First Amendment."). In substance, therefore, they ask us to6
apply the RFRA, but not to mention it.7
Appellees' position that the RFRA does not apply to suits8
between private parties is not determinative of our analysis,9
given that they have vigorously pursued and preserved the10
substance of the issue. We are required to interpret federal11
statutes as they are written -- in this case the ADEA as amended12
by the RFRA -- and we are not bound by parties’ stipulations of13
law. Becker v. Poling Transp. Corp., 356 F.3d 381, 390 (2d Cir.14
2004); see also Kamen v. Kemper Fin. Servs. Inc., 500 U.S. 90, 9915
("When an issue or claim is properly before the court, the court16
is not limited to the particular legal theories advanced by the17
parties, but rather retains the independent power to identify and18
apply the proper construction of governing law."). We are not in19
the business of deciding cases according to hypothetical legal20
schemes, particularly when the hypothetical scheme posed by a21
party tracks the actual law in all but name.22
2. Constitutionality23
In addressing the constitutional issues raised by appellant24
15
with regard to the RFRA, we first describe the statutory1
background.2
The RFRA was passed in response to Employment Div. v. Smith,3
494 U.S. 872 (1990). The Supreme Court held there that "the4
right of free exercise does not relieve an individual of the5
obligation to comply with a valid and neutral law of general6
applicability on the ground that the law proscribes (or7
prescribes) conduct that his religion prescribes (or8
proscribes)." Id. at 879 (internal quotation marks and citation9
omitted). Smith limited the applicability of the "compelling10
state interest" test the Court had previously applied to neutral11
laws before allowing them to place a substantial burden on12
religious practice. Id. at 883-84 (limiting test to mean that13
"where the State has in place a system of individual exemptions,14
it may not refuse to extend that system to cases of ‘religious15
hardship' without compelling reason").516
Congress enacted the RFRA pursuant to two sources of17
authority, Section 5 of the Fourteenth Amendment and the18
Necessary and Proper Clause of the Constitution. See H.R. Rep.19
No. 103-88, at 17 (1993) (“Finally, the Committee believes that20
Congress has the constitutional authority to enact [the RFRA]. 21
Pursuant to Section 5 of the Fourteenth Amendment and the22
Necessary and Proper Clause of the Constitution, the legislative23
branch has been given the authority to provide statutory24
16
protection for a constitutional value . . . .”). The Supreme1
Court held that the RFRA could not be enacted under Section 5 of2
the Fourteenth Amendment, which empowers Congress to enforce the3
Amendment's other provisions against the states. City of Boerne4
v. Flores, 521 U.S. 507, 519 (1997) (“Congress does not enforce a5
constitutional right by changing what that right is.”). The RFRA6
is therefore unconstitutional as applied to state law.7
However, the RFRA applies by its terms not only to the8
states but also to “all Federal law, and the implementation of9
that law, whether statutory or otherwise, and whether adopted10
before or after November 16, 1993.” 42 U.S.C. § 2000bb-3(a); see11
also id. § 2000bb-2(1) (“‘[G]overnment’ includes a branch,12
department, agency, instrumentality, and official (or other13
person acting under color of law) of the United States.”). 14
Boerne could not have addressed whether the RFRA was validly15
enacted under the Necessary and Proper Clause because the only16
issue before the Court was the denial of a building permit to a17
church by local zoning authorities. 521 U.S. at 512. Since18
Boerne, “[e]very appellate court that has squarely addressed the19
question has held that the RFRA governs the activities of federal20
officers and agencies." O'Bryan v. Bureau of Prisons, 349 F.3d21
399, 401 (7th Cir. 2003); Guam v. Guerrero, 290 F.3d 1210, 122122
(9th Cir. 2002); Henderson v. Kennedy, 265 F.3d 1072, 1073 (D.C.23
Cir. 2001); Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir.24
17
2001); Christians v. Crystal Evangelical Free Church (In re1
Young), 141 F.3d 854, 856 (8th Cir. 1998); see also Madison v.2
Riter, 355 F.3d 310, 315 (4th Cir. 2003). 3
We join the other circuits in holding that the RFRA is4
constitutional as applied to federal law under the Necessary and5
Proper Clause of the Constitution. As presented in this case,6
the issue is simply whether Congress had the authority to amend7
the ADEA to include the RFRA standard. See In re Young, 141 F.3d8
at 861 (the RFRA “has effectively amended the Bankruptcy Code,9
and has engrafted the additional clause to § 548(a)(2)(A) that a10
recovery that places a substantial burden on a debtor's exercise11
of religion will not be allowed unless it is the least12
restrictive means to satisfy a compelling governmental13
interest.”).14
Congress enacted the ADEA pursuant to its Commerce Clause15
powers under Article I. Kimel v. Fla. Bd. of Regents, 528 U.S.16
62, 78 (2000) (“the ADEA constitutes a valid exercise of17
Congress' power ‘[t]o regulate Commerce . . . among the several18
States’”) (citing EEOC v. Wyoming, 460 U.S. 226, 243 (1983))19
(alterations in original); McGinty v. New York, 251 F.3d 84, 9120
(2d Cir. 2001); see U.S. Const., Art. I, § 8, cl. 3 (“The21
Congress shall have power . . . [t]o regulate commerce with22
foreign Nations, and among the several States, and with the23
Indian Tribes."). Furthermore, the Necessary and Proper Clause24
18
authorizes Congress “[t]o make all Laws which shall be necessary1
and Proper for carrying into Execution” its Article I powers,2
including its Commerce Clause powers. U.S. Const. art. I, § 8,3
cl. 18. The Clause allows all legitimate legislation “plainly4
adapted” to a constitutional end. M’Culloch v. Maryland, 17 U.S.5
(4 Wheat.) 316, 421 (1819) (“Let the end be legitimate, let it be6
within the scope of the constitution, and all means which are7
appropriate, which are plainly adapted to that end, which are not8
prohibited, but consist with the letter and spirit of the9
constitution, are constitutional.”). Finally, the "plainly10
adapted" standard requires only “that the effectuating11
legislation bear a rational relationship to a permissible12
constitutional end.” United States v. Wang Kun Lue, 134 F.3d 79,13
84 (2d Cir. 1998).14
It is obvious to us that because Congress had the power to15
enact the ADEA, it also had the power to amend that statute by16
passing the RFRA. The RFRA was authorized by the Necessary and17
Proper Clause because its purpose -- to protect First Amendment18
rights as interpreted by the Congress, see S. Rep. No. 103-111,19
at 14 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1903 -- was20
permissible. “When Congress acts within its sphere of power and21
responsibilities, it has not just the right but the duty to make22
its own informed judgment on the meaning and force of the23
Constitution.” Boerne, 521 U.S. at 535. 24
19
The RFRA was also proper as applied to the ADEA in1
particular because, as noted, Congress had authority to enact2
that statute under the Commerce Clause. See INS v. Chadha, 4623
U.S. 919, 941 (1983) ("’Congress has plenary authority in all4
cases in which it has substantive legislative jurisdiction, so5
long as the exercise of that authority does not offend some other6
constitutional restriction.’”) (quoting Buckley v. Valeo, 4247
U.S. 1, 132 (1976)) (internal citation omitted); Guerrero, 2908
F.3d at 1220 (“Congress derives its ability to protect the free9
exercise of religion from its plenary authority found in Article10
I of the Constitution; it can carve out a religious exemption11
from otherwise neutral, generally applicable laws based on its12
power to enact the underlying statute in the first place.”); In13
re Young, 141 F.3d at 861 (“[W]e can conceive of no argument to14
support the contention[] that Congress is incapable of amending15
the legislation that it has passed.”).616
In his post-argument letter-brief, appellant argues that17
application of the RFRA to federal law violates separation of18
powers principles and the Establishment Clause of the19
Constitution.7 We address these issues in turn.20
Appellant's separation of powers challenge is that because21
the RFRA mandates evaluation of laws and actions that burden22
religion by a standard different from that prescribed by the23
Supreme Court, it is a Congressional usurpation of judicial24
20
power. However, we agree with the Eighth Circuit that “[t]he key1
to the separation of powers issue in this case is . . . not2
whether Congress disagreed with the Supreme Court’s3
constitutional analysis, but whether Congress acted beyond the4
scope of its constitutional authority in applying RFRA to federal5
law.” In re Young, 141 F.3d at 860; United States v. Marengo6
County Comm'n, 731 F.2d 1546, 1562 (11th Cir. 1984)7
(“[C]ongressional disapproval of a Supreme Court decision does8
not impair the power of Congress to legislate a different result,9
as long as Congress had that power in the first place.”). 10
Indeed, “Congress has often provided statutory protection of11
individual liberties that exceed the Supreme Court’s12
interpretation of constitutional protection.” In re Young, 14113
F.3d at 860 (collecting examples); Guerrero, 290 F.3d at 122114
(“Certainly Congress can provide more individual liberties in the15
federal realm than the Constitution requires without violating16
vital separation of powers principles.”). That the RFRA provides17
more protection from federal actors and statutes than may be18
required by the First Amendment hardly undermines separation of19
powers principles.20
With respect to appellant's Establishment Clause argument,21
the Clause provides that "Congress shall make no law respecting22
an establishment of religion." U.S. Const. amend. I. The23
Supreme Court has established a three-prong test to determine24
21
whether a statute violates the Clause. 1
First, the statute must have a secular legislative2purpose; second, its principal or primary effect must3be one that neither advances nor inhibits religion;4finally, the statute must not foster an excessive5government entanglement with religion. 6
7
Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (quotations and8
citations omitted). Applying this test, the Court has held that9
exempting religious organizations from compliance with neutral10
laws does not violate the Constitution. E.g., Corp. of the11
Presiding Bishop of the Church of Jesus Christ of Later-Day12
Saints v. Amos, 483 U.S. 327, 338-40 (1987) (exemption from13
federal antidiscrimination laws for religious organizations does14
not violate Establishment Clause); see also Gillette v. United15
States, 401 U.S. 437, 460 (1971) (exemption from military draft16
for religious conscientious objectors does not violate17
Establishment Clause); Walz v. Tax Comm'n, 397 U.S. 664, 68018
(1970) (state property tax exemption for religious organizations19
does not violate Establishment Clause).20
Given these holdings, appellant faces an unwinnable battle21
in claiming that the RFRA -- a limited exemption for religious22
organizations from compliance with neutral laws -- violates the23
Establishment Clause. The RFRA had a secular legislative purpose24
within the meaning of Lemon -- namely, to protect individual25
First Amendment rights as interpreted by the Congress. As noted,26
this purpose was not only permissible but was also required by27
22
Congress’s duty to interpret the Constitution. Boerne, 521 U.S.1
at 535. A “secular legislative purpose” need not be “unrelated2
to religion”; rather, Lemon’s first prong aims to prevent3
Congress “from abandoning neutrality and acting with the intent4
of promoting a particular point of view in religious matters.” 5
Amos, 483 U.S. at 335; Gillette, 401 U.S. at 454 ("'Neutrality'6
in matters of religion is not inconsistent with 'benevolence' by7
way of exemptions from onerous duties, so long as an exemption is8
tailored broadly enough that it reflects valid secular9
purposes.") (citation omitted). The RFRA reflected no purpose to10
promote a particular religious point of view.11
The RFRA also satisfies the other two prongs of the Lemon12
test. Its principal effect neither advances nor inhibits13
religion within the meaning of Lemon. “For a law to have14
forbidden ‘effects’ under Lemon, it must be fair to say that the15
government itself has advanced religion through its own16
activities and influence,” rather than simply by granting an17
exemption to religious organizations. Amos, 483 U.S. at 337-3818
(“Where . . . government acts with the proper purpose of lifting19
a regulation that burdens the exercise of religion, we see no20
reason to require that the exemption come packaged with benefits21
to secular entities.”). Although the RFRA certainly provides22
some benefit to religious organizations, “a law is not23
unconstitutional simply because it allows churches to advance24
23
religion, which is their very purpose.” Id. at 337. Finally,1
there is no question that the RFRA decreases rather than fosters2
government entanglement with religion, as required by the third3
prong of Lemon. Amos, 483 U.S. at 339 (An exemption “effectuates4
a more complete separation of [church and state] and avoids . . .5
intrusive inquiry into religious belief.”).6
We note in general that the Supreme Court approved of and7
invited legislative enactments of religious exceptions to neutral8
laws in Smith itself. 494 U.S. at 890. The court pointed to9
state exceptions to drug laws for sacramental peyote use and10
noted with approval that “a society that believes in the negative11
protection accorded to religious belief can be expected to be12
solicitous of that value in its legislation as well.” Id. 13
(“[T]o say that a nondiscriminatory religious-practice exemption14
is permitted, or even that it is desirable, is not to say that it15
is constitutionally required.”). We therefore hold that the16
RFRA, as applicable to federal law, does not violate the17
Establishment Clause of the Constitution.18
Having found the portions of the RFRA applicable to the19
federal government and federal law constitutional, we have little20
difficulty finding those portions severable from the RFRA’s21
unconstitutional sections. A court must sever the invalid parts22
of a statute from the valid parts “unless it is evident that the23
Legislature would not have enacted those provisions which are24
24
within its power, independently of that which is not.” Chadha,1
462 U.S. at 931-32 (internal quotation marks, citations, and2
alterations omitted); Alaska Airlines, Inc. v. Brock, 480 U.S.3
678, 684 (1987) (“A court should refrain from invalidating more4
of the statute than is necessary.”) (alteration omitted). We5
know of no evidence that Congress would not have applied the RFRA6
to the federal government unless it could also be applied to7
state and local governments. We therefore hold the portion of8
the RFRA applicable to the federal government severable from its9
unconstitutional portions. See Kikumura, 242 F.3d at 959-6010
(finding federal portions of the RFRA severable); In re Young,11
141 F.3d at 859 (same).12
CONCLUSION13
The RFRA is an amendment to the ADEA and, as such, is14
constitutional. The parties have not briefed the issue of how it15
impacts the merits of this case. The district court did not16
apply the RFRA, relying instead on the “ministerial exception” to17
the ADEA. We believe that, while the RFRA's application is a18
matter of law, it would be appropriate to hear from the district19
court first, rather than seek yet further briefing in this court. 20
We therefore vacate and remand for reconsideration under the21
RFRA standards.22
23
24
25
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 . . . isdismissed by the Commission, or if within one hundredand eighty days from the filing of such charge . . .the Commission has not filed a civil action . . . orthe Commission has not entered into a conciliationagreement to which the person aggrieved is a party, theCommission . . . shall so notify the person aggrievedand within ninety days after the giving of such noticea civil action may be brought against the respondentnamed in the charge. . . .
4. No court appears to have addressed the issue squarely, but
some suggestive caselaw exists. Some courts seem to have assumed
FOOTNOTES
26
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
27
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
RFRA in direct response to the Court’s decision in" Smith. City
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.” Boerne, 521 U.S. at 536. The argument is
entirely unconvincing. The quoted language simply explained why
Congress could not enact the RFRA pursuant to its Section 5
28
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.” Id.
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. See
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.”).
1We direct the Clerk of Court to change the official caption to comport with this
decision.
1
04-5711(L)-cv, 04-5943-cvWalczyk 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)
THOMAS WALCZYK, ELIZABETH WALCZYK, MAXIMINA WALCZYK, EACH
INDIVIDUALLY AND AS P.P.A. FOR MICHELLE WALCZYK, A MINOR CHILD,1
Plaintiffs-Appellees-Cross-Appellants,
—v.—
JAMES RIO, BRIAN KILLIANY, JAMES JEPSEN, WILLIAM TYLER,
ANGELA DESCHENES, AND SHAWN BROWN,
Defendants-Appellants-Cross-Appellees.
Before:
CABRANES, SOTOMAYOR, 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
2
and state constitutional challenges to the execution of arrest and search warrants. Cross-
appeal 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.
REVERSED AND REMANDED on part of defendants’ qualified immunity appeal.
AFFIRMED in all other respects.
Judge Sotomayor concurs in a separate opinion.
THOMAS R. GERARDE (John J. Radshaw, III, on the brief), Howd & Ludorf,
LLC, Hartford, Connecticut, for Defendants-Appellants-Cross-
Appellees.
JON L. SCHOENHORN (Jennifer L. Bourn, on the brief), Jon L. Schoenhorn &
Associates, Hartford, Connecticut, for Plaintiffs-Appellees-Cross-
Appellants.
REENA RAGGI, 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,
3
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
2Lucien Walczyk is not a party to this lawsuit, having died prior to its commencement.
4
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
5
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
3In 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. cv-
950465712S, 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
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
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
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
4Walczyk 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
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 Walczyk 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
5Although Walczyk was initially charged with threatening, the state’s attorney
ultimately declined prosecution.
6Originally 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.
7John 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
police protection at the disputed property site during any work periods.
3. The Challenged Arrest and Search Warrants
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
8At 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
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
9 We use the term “magistrate” as a general term for a judicial officer in the State of
Connecticut.
11
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
12
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. Walczyk 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
10The arrest warrant affidavit contained identical facts, but did not include the last
paragraph describing the Tunxis Street residences.
13
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
The challenged warrants were executed on September 7, 1999. On that date,
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,
11Under Connecticut law, police officers are empowered to set temporary bail. See
Conn. Gen. Stat. § 54-63c(a) (discussed infra at [43-45]).
12Walczyk 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.
13Although 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
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 Warrants
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. Walczyk, 76 Conn. App. at 180-82, 818 A.2d at 875-76.13 In reaching
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
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
16
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
17
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
14We 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.
15To 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
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
19
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
20
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
21
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
22
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
16Our 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. Within 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
approvingly in Saucier v. Katz, 533 U.S. at 202).16
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.
17“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.
18“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
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);
25
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.
26
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
27
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
28
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
29
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 Walczyk
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. § 53a-
19Although 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
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;
31
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. Walczyk, 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
20Walczyk 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
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
21We 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
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.
34
(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
35
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,”
36
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
37
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
38
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 non-
disclosure 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 Walczyk’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
39
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
22As 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
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 Walczyk’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
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).
23The 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
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 Walczyk. 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.”
42
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. § 54-
63d 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
43
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
44
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 REVERSED and the case is REMANDED for entry of such a
judgment. In all other respects the appealed summary judgment rulings of the district court
are AFFIRMED.
1 To the extent the majority holds that courts may continue to rely on this language1
from Malley, Maj. Op. at [25 n.16], I note that such a holding is unnecessary and serves no2
purpose in this case except to complicate the law further.3
2 Although I also disagree with the majority’s use of the term “arguable probable1
cause” and its reliance on whether “officers of reasonable competence could disagree,” Maj.2
Op. at [41], I join Part II(B)(2)(c)(2) of the majority opinion because I agree with its3
conclusion that questions of disputed fact preclude judicial resolution of whether the officers4
are entitled to qualified immunity for their search of Elizabeth Walczyk’s house.5
45
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,
46
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
3 The Supreme Court has stated, however, that the “clearly established” standard does1
not mean that “an official action is protected by qualified immunity unless the very action in2
question has previously been held unlawful,” Anderson v. Creighton, 483 U.S. 635, 6403
(1987), nor does the standard necessarily require that the facts of earlier cases be “materially4
similar” to the case under consideration, Hope v. Pelzer, 536 U.S. 730, 739-41 (2002). The5
standard is one of “fair warning,” id. at 741, such that “unlawfulness must be apparent” in6
light of pre-existing law, Anderson, 483 U.S. at 640. 7
47
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
48
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, 199-
200 (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
49
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)
4 Other courts of appeals have also used the term “arguable probable cause” in a1
similar way as this Court. See, e.g., Williams v. Jaglowski, 269 F.3d 778, 781-82 (7th Cir.2
2001); Jones v. Cannon, 174 F.3d 1271, 1283 & n.3 (11th Cir. 1999). 3
50
(“[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
5 This language also appears in the majority opinion as part of the explanation of1
“arguable probable cause.” Maj. Op. at [41]. Notably, however, by stating that “[a]rguable2
probable cause exists if either (a) it was objectively reasonable for the officer to believe that3
probable cause existed, or (b) officers of reasonable competence could disagree on whether4
the probable cause test was met,” id. (emphasis added; internal quotation marks and citation5
omitted), this passage seems to support the argument that whether “officers of reasonable6
competence could disagree” is not an objective reasonableness test. In addition, by adding7
two steps to the qualified immunity analysis beyond whether the particular right was clearly8
established, the majority’s discussion of “arguable probable cause” further splinters our9
qualified immunity test.10
6 Although Saucier does not specifically refer to the reasonable officer’s competence,1
I have no quarrel with the assumption that a “reasonable officer” is also a competent officer.2
51
“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
52
(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
53
might hold, rather than engaging in the objective reasonableness determination that courts are well-
equipped 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
7 This caution against transforming a reasonableness inquiry into a consensus1
requirement is instructive notwithstanding the plurality’s statement that the particular statute2
at issue was not meant to codify the standard for qualified immunity into the law of habeas3
review. See Williams, 529 U.S. at 380 n.12 (plurality opinion).4
54
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
55
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.
1
02-4611-ag, 02-4629-ag, 03-40837-ag Lin et. al. v. U.S. Dept. of Justice
1 UNITED STATES COURT OF APPEALS2 FOR THE SECOND CIRCUIT
3 August Term, 2006
4 (Argued: March 7, 2007 Decided: July 16, 2007)
5
6 Docket Nos. 02-4611-ag, 02-4629-ag, 03-40837-ag
7 _____________________
8 SHI LIANG LIN,9
10 Petitioner,1112 v.1314 UNITED STATES DEPARTMENT OF JUSTICE; ATTORNEY GENERAL GONZALES,1516 Respondents;17 _____________________1819 ZHEN HUA DONG,2021 Petitioner,2223 v.2425 UNITED STATES DEPARTMENT OF JUSTICE; ATTORNEY GENERAL GONZALES
2627 Respondents;28 _____________________2930 XIAN ZOU,3132 Petitioner,3334 v.3536 ATTORNEY GENERAL GONZALES,
2
1 Respondent.2 _____________________
3 Before: JACOBS, Chief Judge, CALABRESI, CABRANES, STRAUB, POOLER, SACK, SOTOMAYOR,
4 KATZMANN, PARKER, RAGGI, WESLEY, and HALL, Circuit Judges.
5 Petitions for review of orders of the Board of Immigration Appeals denying applications6 for asylum, withholding of removal, and relief under the Convention Against Torture. The7 petition for review of Zhen Hua Dong is DENIED. Xian Zou’s and Shi Liang Lin’s petitions are8 DISMISSED for lack of jurisdiction.9
10 Judge PARKER delivered the opinion of the Court, in which JACOBS, C.J., and CABRANES,11 SACK, RAGGI, WESLEY, and HALL, JJ., joined.1213 Judge KATZMANN filed a concurring opinion, in which STRAUB, POOLER, and14 SOTOMAYOR, JJ., joined.1516 Judge SOTOMAYOR filed a concurring opinion, in which POOLER, J., joined.1718 Judge CALABRESI filed an opinion concurring in part and dissenting in part.192021 BRUNO JOSEPH BEMBI, Hempstead, NY, for Petitioners Shi22 Liang Lin and Zhen Hua Dong.2324 ALEKSANDER MILCH, Christophe & Associates, P.C., New25 York, NY, for Petitioner Xian Zou.2627 KATHY S. MARKS, Assistant United States Attorney, (Sara28 L. Shudofsky, Assistant United States Attorney, of counsel)29 for Michael J. Garcia, United States Attorney for the30 Southern District of New York, New York, NY, for31 Respondents the United States Department of Justice and32 Attorney General Gonzales.3334 BARRINGTON D. PARKER, Circuit Judge:3536 In 1997 the Board of Immigration Appeals (“BIA”) held in Matter of C-Y-Z-, 21 I. & N.
37 Dec. 915 (B.I.A. 1997) (en banc) that an individual whose spouse has been forced to abort a
38 pregnancy, undergone involuntary sterilization, or been persecuted under a coercive population
See In re Shi Liang Lin, No. A70 895 638 (B.I.A. Sept. 29, 2002), aff’g No. A70 8951
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 322595 (B.I.A. Aug. 27, 2002), aff’g No. A77 322 595 (Immig. Ct. N.Y. City Apr. 4, 2002).
3
1 control program could automatically qualify for asylum as a “refugee” under § 601(a) of the
2 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) (amending 8
3 U.S.C. § 1101(a)(42), Immigration and Nationality Act (“INA”) § 101(a)(42)). See In re S-L-L-,
4 24 I. & N. Dec. 1, 3 (B.I.A. 2006) (en banc) (“In Matter of C-Y-Z-, . . . we held that a husband
5 whose wife was forcibly sterilized could establish past persecution under this amendment to
6 section 101(a)(42) of the [INA].”). This appeal considers whether the BIA’s interpretation of the
7 statute was correct. We conclude it was not.
8 Petitioners Shi Liang Lin, Zhen Hua Dong, and Xian Zou are citizens of the People’s
9 Republic of China and unmarried partners of individuals allegedly victimized by China’s
10 coercive family planning policies. Each seeks review of an order of the BIA summarily
11 affirming the denial of an application for asylum based, in part, on the BIA’s holding in C-Y-Z. 1
12 We remanded these petitions to the BIA to afford it the opportunity to explain its rationale in C-
13 Y-Z- for reading § 601(a) to say that the spouses of those directly victimized by coercive family
14 planning policies are per se eligible for asylum as if they were directly victimized themselves
15 and also to clarify the status of boyfriends and fiancés under that statute. See Lin v. U.S. Dep’t of
16 Justice, 416 F.3d 184, 187 (2d Cir. 2005). We retained jurisdiction. Id.
17 On remand, the BIA reaffirmed its holding in C-Y-Z- that spouses are entitled to
18 automatic eligibility under § 601(a) but limited this per se eligibility to legally married
19 applicants. S-L-L-, 24 I. & N. Dec. 1. Eschewing a text-based analysis, the BIA elected to
Subsequent to oral arguments, we learned that Lin has had no contact with his attorneys2
since “early 2004,” and that his attorney believes that he has either returned to China or isdeceased. (Aff. of Yee Ling Poon, ¶¶ 3-5). Accordingly, Lin’s case is moot. See 8 C.F.R. §
4
1 interpret the forced abortion and sterilization clause of the section “in light of the overall purpose
2 of the amendment” to include both parties to a marriage. Id. at 8. The Board reaffirmed the
3 dismissal of the appeals of petitioners Lin, id., and Dong, In re Zhen Hua Dong, No. A77 293
4 661 (B.I.A. Nov. 27, 2006), and remanded Zou’s petition for a determination of whether he
5 qualified for asylum based on the “other resistance to a coercive population control program”
6 clause in § 601(a), In re Xian Zou, No. A73 178 541 (B.I.A. Nov. 21, 2006).
7 Following the BIA’s decision, we ordered rehearing en banc to consider two issues:
8 First, whether § 601(a)’s provisions are ambiguous, so that the BIA’s construction of them
9 warrants Chevron deference; and second, whether the BIA reasonably construed § 601(a) to
10 extend automatic asylum eligibility to a petitioner whose legally married spouse was subjected to
11 an involuntary abortion or sterilization but not to a domestic partner or fiancé whose claim is
12 derivative unless the petitioner engaged in “other resistance” to a coercive population control
13 policy. Lin v. U.S. Dep’t of Justice, Nos. 02-4611, 02-4629, 03-40837 (2d Cir. Nov. 13, 2006)
14 (order) (“En banc order”). See S-L-L-, 24 I. & N. Dec. 1; Chevron U.S.A. Inc. v. Natural Res.
15 Def. Council, Inc., 467 U.S. 837 (1984).
16 We now conclude that the BIA erred in its interpretation of 8 U.S.C. § 1101(a)(42) by
17 failing to acknowledge language in § 601(a), viewed in the context of the statutory scheme
18 governing entitlement to asylum, that is unambiguous and that does not extend automatic refugee
19 status to spouses or unmarried partners of individuals § 601(a) expressly protects. Accordingly,
20 the petition of Zhen Hua Dong is denied. The petition of Shi Liang Lin is dismissed as moot. 2
1208.8.
We no longer have jurisdiction over Zou’s petition because the BIA has remanded the3
case to the immigration court for further findings. See In re Xian Zou, No. A77 322 295 (B.I.A.Nov. 21, 2006).
A number of our sister circuits have deferred to the BIA’s interpretation of § 601(a). 4
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 (9thCir. 2003); Li v. Ashcroft, 82 Fed. App’x 357, 358 (5th Cir. 2003) (unpublished per curiamopinion). While the Third Circuit had questioned the BIA’s reading of the plain language of theamendment, stating that “[i]t takes some effort to reconcile [the BIA’s] interpretation with thelanguage of the 1996 amendment, since the phrase ‘a person who has been forced to abort apregnancy or to undergo involuntary sterilization’ is most naturally read as referring only to aperson 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’sinterpretation 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 individualswho marry in traditional ceremonies not recognized by their government and later seek asylumbased on the forced abortion or sterilization of their “common law spouses.” The Seventh andNinth 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 theamendment does not cover unmarried partners, even when they have been prevented frommarrying 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). Whilethey have not reached the issue of traditional marriage ceremonies, the Fifth and EleventhCircuits have declined to extend IIRIRA § 601 to cover boyfriends of individuals who have beensubjected 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) (unpublishedopinion).
5
1 The petition of Xian Zou is dismissed for lack of jurisdiction. We recognize that this decision3
2 creates a split among the circuits.4
3 I. BACKGROUND
4 Congress has given the Attorney General the discretionary authority to grant asylum to
5 an alien who qualifies as a “refugee” because he or she “is unable or unwilling to avail himself
6
1 or herself of the protection of [his or her native country] because of persecution or a well-
2 founded fear of persecution on account of race, religion, nationality, membership in a particular
3 social group, or political opinion.” 8 U.S.C. § 1101(a)(42). A showing of past persecution gives
4 rise to a rebuttable presumption of a well-founded fear of future persecution. 8 C.F.R. §
5 1208.13(b)(1).
6 In 1996, Congress passed IIRIRA § 601(a), which amended 8 U.S.C. § 1101(a)(42) by
7 broadening its definition of “refugee,” adding the following language:
8 [A] person who has been forced to abort a pregnancy or to undergo involuntary9 sterilization, or who has been persecuted for failure or refusal to undergo such a
10 procedure or for other resistance to a coercive population control program, shall11 be deemed to have been persecuted on account of political opinion, and a person12 who has a well founded fear that he or she will be forced to undergo such a13 procedure or subject to persecution for such failure, refusal, or resistance shall be14 deemed to have a well founded fear of persecution on account of political15 opinion.1617 8 U.S.C. § 1101(a)(42).
18 The next year, the BIA held that “past persecution of one spouse can be established by
19 coerced abortion or sterilization of the other spouse,” so that spouses of individuals directly
20 victimized by coercive family planning policies are per se eligible for asylum pursuant to §
21 1101(a)(42). See Matter of C-Y-Z-, 21 I. & N. Dec 915, 917-18 (B.I.A. 1997) (en banc). The
22 BIA gave no reasons for reading the statute to compel this result.
23 Petitioner Lin entered the United States in January 1991 and filed an application for
24 asylum and withholding of removal in June 1993. According to Lin’s application, he had sought
25 the required governmental permission to marry his girlfriend and have children with her, but she
26 was too young under Chinese law. After his girlfriend became pregnant and was forced to have
7
1 an abortion, Lin left China. His girlfriend remained in China because she was too weak to travel.
2 Following a hearing, the IJ found Lin credible, but concluded that he did not qualify for asylum
3 based on his girlfriend’s forced abortion and denied the petition. The BIA affirmed without
4 opinion. See In re Shi Liang Lin, No. A70 895 638 (B.I.A. Sept. 29, 2002), aff’g No. A70 895
5 638 (Immig. Ct. N.Y. City May 9, 2000).
6 Petitioner Dong attempted to enter the United States in October 1999, and was detained
7 by INS officials. When the INS commenced removal proceedings, Dong requested asylum,
8 withholding of removal, and relief under the Convention Against Torture (“CAT”). His asylum
9 petition was based on a claim that his fiancée (who continued to reside in China) had been forced
10 to undergo two abortions and that he would be jailed and fined for having left China illegally
11 were he to be deported. The IJ denied Dong’s petition, finding that, although he was credible, he
12 did not qualify for refugee status as a fiancé of a woman who had undergone forced abortions,
13 and had not established other grounds for relief. The BIA affirmed the IJ’s decision. See In re
14 Zhen Hua Dong, No. A77 293 661 (B.I.A. Sept. 25, 2002), aff’g No. A77 293 661 (Immig. Ct.
15 N.Y. City Oct. 12, 2000).
16 Petitioner Zou was taken into custody by the INS when he attempted to enter the United
17 States in September 2000. After removal proceedings commenced, Zou filed for asylum. Under
18 Chinese law, Zou and his girlfriend had been too young to marry. He claimed that she had been
19 forced to have an abortion and he had been threatened with arrest after protesting to family
20 planning officials. An IJ denied the application. The IJ found Zou’s testimony concerning his
21 threatened arrest incredible, doubting that Zou would be able to evade the Chinese authorities
22 and travel to the United States with an outstanding warrant of arrest from the Chinese
8
1 government. Left only with Zou’s claim that his girlfriend had undergone a forced abortion, the
2 IJ held that Zou did not qualify for relief under § 1101(a)(42) on that basis. Zou appealed to the
3 BIA, which affirmed the decision of the IJ. See In re Zou, No. A77 322 595 (B.I.A. Aug. 27,
4 2002), aff’g No. A77 322 595 (Immig. Ct. N.Y. City Apr. 4, 2002). The three petitioners sought
5 review here and the cases were heard in tandem.
6 Three different interpretations of the application of “refugee” status to the facts in these
7 cases have been proposed by the parties throughout the litigation. When we heard the petitions
8 in tandem, the Department of Justice argued that § 601(a) of IIRIRA should be understood to
9 confer per se refugee status on spouses of individuals who had undergone forced abortions or
10 involuntary sterilizations, but not to boyfriends or fiancés, who were covered, if at all, under the
11 “other resistance” language of the amendment. Second, the petitioners argued, both before this
12 Court and before the BIA, that the distinction between spouses and unmarried partners was
13 arbitrary and that the statute should be interpreted to extend per se refugee status to the
14 committed partners of individuals who have been forced to undergo an abortion or involuntarily
15 sterilization.
16 The third, a text-based interpretation, was put forth before the BIA by the Department of
17 Homeland Security (“DHS”), which is “charged with the administration and enforcement of . . .
18 laws relating to the immigration and naturalization of aliens,” 8 U.S.C § 1103(a)(1). In its brief
19 to the BIA, the DHS insisted that no support existed in the statute for the BIA’s automatic
20 extension of § 601(a) to spouses. Specifically, the DHS asserted that the BIA’s interpretation
21 was “at odds with the most natural reading of the statute and with established principles of
22 asylum law.” Brief of DHS on Remand at 5, In re S-L-L-, 24 I. & N. Dec. 1 (B.I.A. 2006) (en
9
1 banc) (No. A 70 895 638) (“DHS brief”). Carefully considering the text of § 601(a), the DHS
2 concluded that a rule conferring per se refugee status on spouses of individuals persecuted under
3 coercive family planning policies contradicted the unambiguous language of the amendment.
4 Further, the DHS stated that such a rule was at odds with the legislative history of the
5 amendment, as well as “a fundamental precept of U.S. refugee law . . . that, to qualify for
6 protection, an applicant must demonstrate that he will be targeted for his own protected belief or
7 characteristic.” DHS brief at 8-9, 11. The DHS understood that the statute required a “case-by-
8 case” application to individuals who have not themselves been victims of a forced abortion or
9 involuntary sterilization. Under this approach, spouses, boyfriends, and fiancés would have to
10 demonstrate their qualification for refugee status under the “for other resistance to a coercive
11 population control program” provision of § 601(a).
12 On remand, in S-L-L-, 24 I. & N. Dec 1, the BIA affirmed its earlier decision in C-Y-Z
13 that under § 601(a) an applicant whose spouse was forced to undergo an abortion or sterilization
14 procedure is automatically entitled to asylum, while limiting its interpretation to individuals who
15 were opposed to their legal spouse’s abortion or sterilization. Id. at 4. The BIA reasoned that §
16 601(a) provided “no clear or obvious answer to the scope of the protections . . . to partners of
17 persons forced to submit to an abortion or sterilization.” Id. As a result of this perceived
18 ambiguity, the majority chose to ground its interpretation “in the context of the history and
19 purposes of the Act as a whole,” finding that
20 absent evidence that the spouse did not oppose an abortion or sterilization21 procedure, we interpret the forced abortion and sterilization clause of section22 101(a)(42) of the Act, in light of the overall purpose of the amendment, to include23 both parties to a marriage.24
10
1 Id. at 8. While the decision rested on “the forced abortion and sterilization clause of section
2 101(a)(42),” the Board noted that it was applying “general principles regarding nexus and level
3 of harm.” Id. at 5.
4 The majority based its conclusion on a number of policy-based factors, including the
5 positions taken by the litigants and the fact that C-Y-Z-, as a ten-year-old decision, constituted
6 long-standing precedent. The majority was also influenced by the shared responsibility of
7 married couples regarding family planning decisions under Chinese law and the “profound
8 impact” that a forced abortion or sterilization has on both parties to a marriage. Id. at 6-8.
9 The majority stopped short of extending a per se presumption to boyfriends, fiancés, and
10 other unmarried partners. It concluded that they were not comparable to husbands because “the
11 sanctity of marriage and the long term commitment reflected by marriage place the husband in a
12 distinctly different position from that of an unmarried father.” Id. at 9. The BIA dismissed the
13 appeals of Lin, id., and Dong, In re Zhen Hua Dong, No. A77 293 661 (B.I.A. Nov. 27, 2006),
14 and remanded Zou’s case to the immigration court “for further evidence on the issues of
15 resistance and harm” based on the “other resistance” clause of § 1101(a)(42), In re Xian Zou,
16 No. A73 178 541 (B.I.A. Nov. 21, 2006).
17 Board Member Pauley concurred. While deferring to the BIA’s prior decision in C-Y-Z
18 as long-standing and widely accepted precedent, he conceded that:
19 [w]ere we writing on a clean slate, I would adopt the lately arrived at position of20 the Department of Homeland Security . . . that whether or not the spouse of a21 forcibly sterilized or aborted individual can be found to have been persecuted22 depends on a case-by-case assessment of whether that spouse was persecuted on23 account of “other resistance” to a coercive population control system, because the24 language of the Act does not support extending refugee status to any person other25 than the one sterilized or aborted, aside from the “other resistance” ground.
While here, as throughout the opinion, we refer to a male petitioner with a wife or5
girlfriend who has been forced to undergo an abortion or sterilization, our reasoning applies withequal force to the perhaps more uncommon situation in which a female petitioner’s male spouseor boyfriend has been forced to undergo sterilization.
11
1 Id. at 13 (Pauley, B.M., concurring).
2 Board Member Filppu, joined by Board Member Cole, concurred in the result but
3 dissented from the majority’s reaffirmation of C-Y-Z. They reasoned that the language of the
4 statute was unambiguous in “focus[ing] on ‘a person’ who has been forced to abort a pregnancy,
5 not on a ‘couple,’ let alone a married couple . . . .” Id. at 16 (Filppu, B.M., concurring and
6 dissenting). Understanding that “statutory interpretation must begin with reference to the
7 language and structure of the statute,” id. at 15, and “Congress expresses its intent through the
8 language it chooses,” id. at 19 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n.12
9 (1987)), the dissenters concluded that an individual who has not been subjected to a forcible
10 abortion or sterilization procedure can qualify for refugee status in relation to a coercive family
11 planning policy only if he proves that he was persecuted or has a well-founded fear of future
12 persecution “for other resistance to a coercive population control program.” Id.5
13 Following the BIA’s decision, we ordered an en banc rehearing to determine whether §
14 601(a) is ambiguous, whether the BIA’s interpretation of “refugee” should be accorded Chevron
15 deference, and “[w]hether the BIA reasonably construed IIRIRA § 601’s definition of “refugee”
16 to: (a) include a petitioner whose legally married spouse was subjected to an involuntary
17 abortion or sterilization . . . ; and (b) not include a petitioner whose claim is derivatively based
18 on any other relationship with a person who was subjected to such a procedure, unless the
19 petitioner has engaged in ‘other resistance’ to a coercive population control program . . . .” See
We announced our intention to reach this question in our order that this case be reheard6
en banc. In that order we instructed the parties to address the BIA’s interpretation of § 601 as itrelated to both spouses and non-married partners of individuals subjected to an involuntaryabortion or sterilization. All members of this en banc panel joined the order, including thosewho now express confusion as to why we reach the question. We are particularly perplexed bythe position taken by our colleagues Judge Katzmann and Judge Sotomayor, who contend we areoverreaching by considering whether the BIA’s per se rule survives review under Chevron stepone, 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.
12
1 En banc order. We now conclude that the BIA’s interpretation of the statute is not correct.
2 II. DISCUSSION
3 When reviewing the BIA’s interpretation of statutes that it administers, we apply the
4 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 the5
unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43; see also INS v.6
7 Cardoza-Fonseca, 480 U.S. 421, 447-48 (1987). Only if the statute is silent or ambiguous do we
8 turn to the second inquiry – whether the BIA’s interpretation constitutes “a permissible
9 construction of the statute.” Chevron, 467 U.S. at 843.
10 While the petitioners in this case are unmarried partners, and not spouses, of individuals
11 who have been subjected to forced abortions, we review the BIA’s interpretation of § 601, as
12 articulated in its decision below, to extend a per se presumption of persecution to spouses, but
13 not to non-married partners, of individuals who have been involuntarily subjected to an abortion
14 or sterilization. It is the existence of this spousal policy that the petitioners argue is an arbitrary6
15 and capricious interpretation of the statute. If the BIA’s policy is at odds with the plain language
16 of the statute, it makes little sense to consider only whether it can reasonably be limited to
17 couples who are formally married.
13
1 Accordingly, we start our Chevron analysis of § 601(a) by asking whether Congress has
2 spoken directly to the question of whether an individual can establish past persecution based
3 solely on his spouse or partner’s forced abortion or sterilization. 467 U.S. at 842-43. In S-L-L-,
4 the BIA, without elaboration or explanation, observed that “[t]here is no clear or obvious answer
5 to the scope of the protections afforded by the amendment to partners of persons forced to
6 submit to an abortion or sterilization.” 24 I. & N. Dec. at 4. We disagree. We conclude that
7 Congress has spoken to this issue and that it has done so unambiguously.
8 In the past, this Court, when following the BIA’s holding in C-Y-Z-, has deferred to the
9 BIA’s interpretation without performing a threshold Chevron analysis of the ambiguity of the
10 statute. In Yuan v. U.S. Dep’t of Justice, for example, we stated of IIRIRA § 601 that, “[b]y its
11 plain language, the law would seem to extend refugee status only to actual victims of persecution
12 – for example, a woman who was ‘forced to abort a pregnancy,’ but not her husband.” 416 F.3d
13 192, 196 (2d Cir. 2005). Despite this recognition of the amendment’s plain language, we went
14 on to defer to the interpretation of the BIA, stating that, “we have held that spouses of people
15 actually subject to persecution under coercive family planning policies are per se eligible for
16 asylum. . . . In doing so, however, we did not explain why. Rather, we followed the lead of the
17 BIA.” Id. at 196-97 (internal citation omitted); see also Zhang v. I.N.S., 386 F.3d 66, 73 (2d Cir.
18 2004); Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir. 2003). To the extent that deference implicit
19 in these cases can be read to say that deference is due, they are overruled.
20 The amendment provides:
21 [(1)] a person who has been forced to abort a pregnancy or to undergo involuntary22 sterilization, or [(2)] who has been persecuted for failure or refusal to undergo23 such a procedure or [(3)] for other resistance to a coercive population control
14
1 program, shall be deemed to have been persecuted on account of political opinion,2 and [(4)] a person who has a well founded fear that he or she will be forced to3 undergo such a procedure or [(5)] subject to persecution for such failure, refusal, 4 or [(6)] resistance shall be deemed to have a well founded fear of persecution on5 account of political opinion.67 8 U.S.C. § 1101(a)(42). The language of the first clause, which refers to “a person who has been
8 forced to abort a pregnancy or to undergo involuntary sterilization,” could not be more clear in
9 its reference to “a person,” rather than “a couple,” who has been subjected to a forced abortion or
10 involuntary sterilization. This interpretation follows two cardinal rules: first that “[s]tatutory
11 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,12
13 Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985); and, second, that “we begin with the
14 understanding that Congress says in a statute what it means and means in a statute what it says
15 there,” Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000)
16 (internal quotation marks omitted).
17 As the statute is written, “a person who has been forced to abort a pregnancy”
18 unambiguously refers to a woman who has been physically subjected to a forced abortion, and “a
19 person who has been forced . . . to undergo involuntary sterilization” means an individual who
20 has physically undergone an involuntary medical procedure intended to result in infertility. Had
21 Congress intended this clause to refer to a spouse or partner of someone who has been physically
22 subjected to a forced procedure, “it could simply have said so.” Id. at 7.
23 Similarly, the second clause of the amendment refers to “a person” who “has been
24 persecuted for failure or refusal to undergo [an abortion or involuntary sterilization.]” 8 U.S.C. §
No member of the en banc Court disputes this reading of IIRIRA § 601(a). Instead, our7
colleagues assert that other language in 8 U.S.C. § 1101(a)(42) – language predating adoption ofthe amendment – might (in the case of our colleague, Judge Calabresi) or does (in the case of ourcolleagues Judge Katzmann and Judge Sotomayor) somehow support the BIA’s per se rule.
15
1 1101(a)(42). Like the preceding clause, this language refers to individuals who have failed or
2 refused to undergo (i.e., “submit to”) a procedure affecting their own bodies. Under the
3 language used by Congress, having someone else, such as one’s spouse, undergo a forced
4 procedure does not suffice to qualify an individual for refugee status.
5 A parallel analysis governs the categories of § 601(a) relating to the establishment of a
6 well-founded fear of future persecution. The fourth category covers “a person who has a well
7 founded fear that he or she will be forced to undergo [an abortion or involuntary sterilization].”
8 This category plainly excludes an individual who does not fear that she herself will be subjected
9 to a forced abortion or sterilization. Not only does it refer to “a person,” and indicate that that
10 person will “undergo” the procedure his- or herself, the use of the pronouns “he” and “she”
11 reinforces the intention of Congress to limit the application of the clause to individuals who are
12 themselves physically forced to undergo an abortion or sterilization.
13 Finally, the fifth category of individuals refers to “a person who has a well founded fear
14 that he or she will be . . . subject to persecution for such failure [or] refusal [to undergo an
15 abortion or involuntary sterilization].” Like the language of the previous clauses, this phrase is
16 unambiguous in its reference to “a person” who fears that “he or she” will be persecuted for his
17 or her reaction to a threat of “undergo[ing]” an abortion or sterilization to his or her own body.
18 This section, like the previous three categories discussed, cannot be read reasonably to cover an
19 individual’s fears arising from a coercive procedure performed on someone else. 7
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 apparentlydisagree with its analysis, asserts that § 601(a) contains an ambiguity that the BIA is empoweredto fill. See Sun Wen Chen, 2007 WL 1760658, at *4 (“The C-Y-Z- rule . . . fleshes out an issuegermane to the application of [§ 601(a)] that was not addressed by Congress, and so poses noChevron 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 concludesthat the absence of ‘spouse’ in the statute creates a vacuum that the Attorney General may rushin 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 roomhere for a step two inquiry under Chevron. . . . I believe Congress meant what it said, and I donot assume that the omission of any reference to a ‘spouse’ is accidental or insignificant.”).
16
1 In S-L-L-, the BIA noted that it was applying “general principles regarding nexus and
2 level of harm,” 24 I. & N. Dec. at 5 – principles derived from the general refugee definition
3 subsection of § 1101(a)(42) – to reach its holding. We believe that this approach was not
4 correct. The general definition of a “refugee” under § 1101(a)(42) permits “any person” who
5 experiences “persecution or a well-founded fear of persecution on account of race, religion,
6 nationality, membership in a particular social group, or political opinion” to obtain asylum. 8
7 U.S.C. § 1101(a)(42). Nothing in the general definition of refugee would permit “any person”
8 who has not personally experienced persecution or a well-founded fear of future persecution on a
9 protected ground to obtain asylum, as the BIA’s per se rule would permit. Indeed, an
10 examination of the overall statutory scheme reassures us that, pursuant to Chevron, we must
11 conclude that Congress has clearly and unambiguously spoken to the issue at hand. See FDA v.
12 Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-33 (2000) (“In determining whether
13 Congress has specifically addressed the question at issue [under Chevron step one], a reviewing
14 court should not confine itself to examining a particular statutory provision in isolation. . . . A
Judge Katzmann contends that we have employed this well-known canon of statutory8
construction to conclude that IIRIRA § 601(a) restricts, rather than expands, the availability ofasylum relief. Op. of Judge Katzmann at 5. This contention is misplaced. We acknowledge thatIIRIRA § 601(a) expands the availability of asylum, but find it significant that it does so only tospecifically-enumerated categories of asylum applications – categories that do not include thebeneficiaries of the BIA’s per se rule.
17
1 court must . . . interpret the statute as a symmetrical and coherent regulatory scheme.” (citation
2 and internal quotation marks omitted)).
3 It is apparent to us that when Congress rejected the BIA’s view in Matter of Chang, 20 I.
4 & N. Dec. 38 (B.I.A. 1989), of birth control policies in other nations as an avenue for asylum, it
5 did so in clear and unmistakable language. It identified those to whom asylum could be granted
6 and reaffirmed the need for direct personal persecution. Congress’s specific designation of some
7 persons (i.e., those who fear, resist, or undergo particular medical procedures) is incompatible
8 with the view that others (e.g., their spouses) should also be granted asylum per se because of
9 birth control policies. The inclusion of some obviously results in the exclusion of others. See
10 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).811
12 The language of § 601(a) does nothing to alter the pre-IIRIRA definition of “political
13 opinion” in § 1101(a)(42), and this further demonstrates the exclusivity of the group of persons
14 entitled to asylum per se under § 601(a). Congress could have announced that the term “political
15 opinion” included any reproductive act in violation of a coercive population control program, but
16 instead it chose to create a specific exception to the general statutory requirement that a person
17 claiming refugee status based on past persecution has the burden of demonstrating that the
18 particular conduct experienced by him rose to the level of persecution and the persecution had a
To “deem” is “[t]o treat (something) as if (1) it were really something else, or (2) it has9
qualities that it doesn’t have,” or, in the alternative, “[t]o consider, think, or judge.” Black’s LawDictionary 446 (8th ed. 2004). Black’s Law Dictionary further notes that the word deem “hasbeen traditionally considered to be a useful word when it is necessary to establish a legal fictioneither 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. (quotingG.C. Thornton, Legislative Drafting 99 (4th ed. 1996)).
18
1 specified impermissible nexus. See 8 U.S.C. § 1158(b)(1)(B)(i) (stating that “[t]he burden of
2 proof is on the applicant to establish that the applicant is a refugee”). IIRIRA § 601(a) states that
3 certain individuals affected by coercive population control programs “shall be deemed”
4 persecuted by reason of political opinion. In using the word “deem” in this context, § 601(a)9
5 makes clear that those who benefit from the amendment would not be entitled to per se political
6 opinion asylum relief absent the amendment. In other words, their political opinion exists de
7 jure rather than as a matter of fact on which the applicant bears the burden of proof. For an
8 asylum applicant who does not fall within this limited exception, the burden remains on the
9 applicant – and the opportunity remains open – to demonstrate, in light of the particular facts of
10 the case, that he has (i) a well-founded fear of personal persecution (ii) based on political opinion
11 or some other impermissible ground.
12 This is consistent with what we know: While it is plain that suffering a forced medical
13 procedure can be a persecution if it is on account of a protected ground, the conception of a child
14 is no more an expression of political opinion than birth, death, sleep, or the taking of
15 nourishment. If the language of § 601(a) indicates that the woman who is subjugated to the
16 outrage of a forced abortion has not herself been persecuted for the “political opinion” of
17 conceiving a child under pre-IIRIRA § 1101(a)(42), then so much less the man who has
19
1 impregnated her; but unlike his wife or partner, he is not “deemed” under § 601(a) to hold a
2 political opinion and he must prove the existence of a political opinion or other protected ground
3 under § 1158(b)(1)(B)(i). Accordingly, we conclude that the statutory scheme unambiguously
4 dictates that applicants can become candidates for asylum relief only based on persecution that
5 they themselves have suffered or must suffer. See Sun Wen Chen, 2007 WL 1760658, at *11
6 (McKee, J., dissenting) (“Congress could have easily drafted [§ 601(a)] to extend to ‘married
7 couples who have been subjected to a forced abortion or involuntary sterilization.’ So drafted,
8 an actual victim of persecution under a coercive population control program, as well as his/her
9 spouse, would qualify for relief under the statute. However, Congress did not draft the statute in
10 this way, and we can not rewrite the statute's explicit text to achieve that result.”).
11 Indeed, the critical defect in the BIA’s policy of according per se refugee status to
12 spouses of individuals explicitly protected by § 601(a) is its creation of an irrebuttable
13 presumption of refugee status for a new class of persons. This policy effectively absolves large
14 numbers of asylum applicants of the statutory burden to prove that they have (i) a well-founded
15 fear of persecution (ii) based on an impermissible nexus. Such a presumption is contrary to the
16 text of 8 U.S.C. § 1158(b)(1)(B), which specifies that “[t]he burden of proof is on the applicant,”
17 that “the applicant must establish that . . . political opinion was or will be at least one central
18 reason for persecuting the applicant,” and that an applicant’s testimony may be sufficient to meet
19 this burden only if it “refers to specific facts sufficient to demonstrate that the applicant is a
20 refugee.” The law is clear that “an agency is not free to ignore statutory language by creating a
21 presumption on grounds of policy to avoid the necessity for finding that which the legislature
20
1 requires to be found.” United Scenic Artists v. NLRB, 762 F.2d 1027, 1034 (D.C. Cir. 1985).
2 The creation of such a presumption “is beyond the [agency’s] statutory authority.” Id. at 1035;
3 see also Cerrillo-Perez v. INS, 809 F.2d 1419, 1426-27 (9th Cir. 1987) (holding that the “BIA
4 cannot adopt a general presumption” unfavorable to applicant but instead “must consider the
5 specific facts and circumstances of each case”). Thus, the BIA lacks authority to adopt a policy
6 that presumes that every person whose spouse was subjected to a forced abortion or sterilization
7 has himself experienced persecution based on political opinion.
8 Our concurring colleagues Judge Katzmann and Judge Sotomayor suggest that the
9 political nexus prong of this presumption is, in fact, inherent in Congress’s 1996 amendments.
10 Op. of Judge Katzmann at 15; op. of Judge Sotomayor at 7. However, this contention is
11 irreconcilable with the language of § 601(a), in which Congress created this presumption for
12 specifically identified persons – those who were themselves subjected to or threatened with a
13 forcible abortion or sterilization. To the extent that the amendments overruled Matter of
14 Chang’s categorical rejection of such a nexus, 20 I. & N. Dec. 38, this means that an asylum
15 applicant is no longer foreclosed from relying on evidence of a forced abortion or sterilization –
16 whether personal or spousal – in attempting to demonstrate persecution based on political
17 opinion. However, the fact remains that Congress has relieved only persons who actually
18 experienced, or are threatened with, a forcible abortion or sterilization from the burden of
19 proving a political nexus in their particular cases.
20 We do not deny that an individual whose spouse undergoes, or is threatened with, a
21 forced abortion or involuntary sterilization may suffer a profound emotional loss as a partner and
If this conclusion is inconsistent with Congress’s intentions, it can, if it so chooses, of10
course, amend the statute, as it did when it adopted IIRIRA § 601(a) in response to the BIA’sdecision in Matter of Chang, 20 I. & N. Dec. 38 (B.I.A. 1989).
21
1 a potential parent. But such a loss does not change the requirement that we must follow the
2 “ordinary meaning” of the language chosen by Congress, according to which an individual does
3 not automatically qualify for “refugee” status on account of a coercive procedure performed on
4 someone else. See Moskal v. United States, 498 U.S. 103, 108 (1990) (stressing the importance
5 of “giving the ‘words used’ their ‘ordinary meaning.’”); Cardoza-Fonseca, 480 U.S. at 453
6 (“Where the language of [a] law[] is clear, we are not free to replace it with an unenacted
7 legislative intent.”).10
8 Under Chevron, once it is apparent that the statute is unambiguous, our inquiry stops. “If
9 the intent of Congress is clear, that is the end of the matter,” and we are required to refrain from
10 deferring to an agency’s contradictory interpretation. 467 U.S. at 842-43; see, e.g., Barnhart v.
11 Sigmon Coal Co., Inc., 534 U.S. 438, 462 (2002); Brown & Williamson Tobacco Corp., 529 U.S.
12 at 160-61; Nat’l Credit Union Admin. v. First Nat. Bank & Trust Co., 522 U.S. 479, 500 (1998);
13 MCI Telecommunications Corp. v. American Tel. & Tel. Co., 512 U.S. 218, 226-28 (1994);
14 Cardoza-Fonseca, 480 U.S. at 447-48. Congress’s choices of language in the phrases, “a person
15 who has been forced to abort a pregnancy or to undergo involuntary sterilization,” “[a person]
16 who has been persecuted for failure or refusal to undergo such a procedure,” and “a person who
17 has a well founded fear that he or she will be forced to undergo such a procedure or subject to
18 persecution for such failure [or] refusal,” is uniformly unambiguous in its reference to an
19 individual who is subjected to, or threatened with, an involuntary abortion or sterilization
While no party before us argues that the rule in S-L-L- fails under Chevron step one,11
DHS did argue this point before the BIA, and the BIA considered and rejected the argument overa persuasive dissent by two members of the Board. In any event, we cannot defer to theDepartment of Justice’s argument (opposed below by DHS, the agency charged with enforcingimmigration laws) that the rule in S-L-L- survives review under Chevron step one if the rulefinds no support in the statutory text. Accordingly, we assume that the Solicitor General willtake appropriate action to recommend or assure that the views of DHS and this Court will berepresented in any future proceedings.
22
1 affecting his or her own body, and the statutory scheme of § 1101(a)(42) only reinforces that
2 conclusion.
3 As a result, we conclude that the statute does not provide that a spouse – and a fortiori, a
4 boyfriend or fiancé – of someone who has been forced to undergo, or is threatened with, an
5 abortion or sterilization is automatically eligible for “refugee” status. Instead, to qualify for
6 refugee status under the amendment, such an individual must turn to the two remaining
7 categories of § 601(a), which provide protection to petitioners who demonstrate “other resistance
8 to a coercive population control program” or “a well founded fear that he or she will be . . .
9 subject to persecution for such . . . resistance . . . .” 8 U.S.C. § 1101(a)(42). 11
10 In S-L-L, the BIA was influenced by the fact that C-Y-Z- “is a precedent of long standing
11 at this point . . . and numerous court decisions have deferred to the holding.” S-L-L-, 24 I. & N.
12 Dec. at 4; see also id. at 14 (Pauley, B.M., concurring) (“[N]otwithstanding my belief that Matter
13 of C-Y-Z-, . . . was wrongly decided, I would not overrule it now, clearly a decade later and in the
14 aftermath of thousands of decisions applying it . . . .”). However, the Supreme Court has made
15 clear that “[s]tare decisis is not an inexorable command; rather, it is a principle of policy and not
16 a mechanical formula of adherence to the latest decision.” Payne v. Tennessee, 501 U.S. 808,
17 828 (1991) (internal quotation marks omitted).
23
1 While stare decisis is undoubtedly of considerable importance to questions of statutory
2 interpretation, the Supreme Court “ha[s] never applied stare decisis mechanically to prohibit
3 overruling . . . earlier decisions determining the meaning of statutes.” Monell v. Dep’t of Social
4 Servs., 436 U.S. 658, 695 (1978). We should not do so either. The fact that we have failed to
5 follow the plain language of a law of Congress for ten years does not require that we do so
6 indefinitely. That would “place on the shoulders of Congress the burden of the Court's own
7 error.” Girouard v. United States, 328 U.S. 61, 70 (1946).
8 Given the clarity of the statute, there is no need to resort to legislative history, which is a
9 tool of construction that we employ only if the statutory text at issue in the context of the statute
10 as a whole is ambiguous. However, were we to examine the statute’s legislative history, we
11 would find that our interpretation of § 601(a) comports with Congress’s stated purpose in
12 passing the amendment. The House Report accompanying the passage of the amendment states
13 that its
14 primary intent . . . is to overturn several decisions of the Board of Immigration15 Appeals, principally Matter of Chang and Matter of G- . . . which . . . hold that a16 person who has been compelled to undergo an abortion or sterilization, or has17 been severely punished for refusal to submit to such a procedure, cannot be18 eligible on that basis for refugee or asylee status unless the alien was singled out19 for such treatment on account of factors such as religious belief or political20 opinion.2122 H.R. Rep. 104-469(I) at 173-74 (1996) (emphasis added).
23 The report mentions as examples of victims of coercive family planning policies women
24 who have been subjected to involuntary abortions, men and women who are forcibly sterilized,
25 and “couples with unauthorized children [who are] subjected to excessive fines,” but not spouses
Judge Katzmann asserts that Congress, when it adopted IIRIRA § 601(a) in 1996,12
intended to accomplish the same goal as a 1993 order of former Attorney General Barr that wasnever enacted and never reviewed by any court. That order would have explicitly grantedasylum 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 persecutionvictims, 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 theamendment. Even more precarious is Judge Katzmann’s reliance on the various messages he
24
1 of individuals who have been subjected to forced abortions or sterilizations. Id. While Congress
2 disapproved of coercive family planning policies as a whole, the amendment was meant to
3 provide protection for individuals who were subjected to persecution themselves. As the report
4 goes on to state:
5 The Committee emphasizes that the burden of proof remains on the6 applicant, as in every other case, to establish by credible evidence that he7 or she has been subject to persecution - in this case, to coercive abortion or8 sterilization - or has a well-founded fear of such treatment. The Committee9 is aware that asylum claims based on coercive family planning are often
10 made by entire groups of smuggled aliens, thus suggesting that at least11 some of the claims, if not the majority, have been "coached." Section12 [601(a)] is not intended to protect persons who have not actually been13 subjected to coercive measures or specifically threatened with such14 measures . . . .15 16 Id. at 174 (emphasis added). There is nothing in the legislative history that leads us to question
17 “the strong presumption that Congress expresses its intent through the language it chooses.”
18 Cardoza-Fonesca, 480 U.S. at 432 n.12. Here, the language Congress employed in § 601(a)
19 demonstrates that it wanted to cover “a person,” not “a couple,” not a “significant other” and not
20 an “intimate friend.” Moreover, Congress’s “emphasi[s]” on its intention that “the burden of
21 proof remains on the applicant” demonstrates that no other subsection of § 1101(a)(42) could
22 support the BIA’s interpretation of the statute. See Sun Wen Chen, 2007 WL 1760658, at *1612
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 doubt13
on Jorge-Tzoc v. Gonzales, 435 F.3d 146 (2d Cir. 2006) (remanding asylum claim to BIA ondetermination that a “combination of circumstances” experienced by applicant in Guatemala as adependent 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 doesnot preclude the BIA from considering the totality of circumstances in any particular case todetermine if an asylum applicant has carried his statutory burden.
25
1 (McKee, J., dissenting) (“The House Report . . . expresses a congressional intent to restrict
2 asylum to the ‘person’ who undergoes the coercive procedure just as clearly as the text of the
3 statute.”).
4 This reading of the statute is further supported by the Supreme Court’s pronouncement
5 about what “refugee” means. In INS v. Elias-Zacharias, the Supreme Court held that under the
6 plain language of the general refugee definition subsection of § 1101(a)(42), “‘persecution on
7 account of . . . political opinion’ in [§ 1101(a)(42)] is persecution on account of the victim’s
8 political opinion,” 502 U.S. 478, 482 (1992) (emphasis in original), not persecution on account
9 of a political opinion held by someone else. Similarly, a spouse who has not demonstrated that
10 he himself is a victim of persecution cannot be entitled to asylum under this section of the
11 statute. It would be unreasonable to conclude otherwise, whether under § 601(a), or under §
12 1101(a)(42) as a whole.13
13 Our conclusion that Congress never intended § 601 – or § 1101(a)(42) – to apply
14 automatically to spouses is reinforced by the fact that Congress already provides for family
15 members elsewhere in the statute by authorizing derivative asylum status for spouses and
16 children of individuals who qualify as “refugees.” 8 U.S.C. § 1158(b)(3)(A). Specifically, under
26
1 § 1158(b)(3)(A), an individual whose spouse or parent has been granted asylum on the basis of
2 having undergone or been threatened with the prospect of a forced abortion or sterilization is
3 automatically eligible for derivative asylum: “[a] spouse or child . . . of an alien who is granted
4 asylum under this subsection may, if not otherwise eligible for asylum under this section, be
5 granted the same status as the alien if accompanying, or following to join, such alien.”
6 What Congress did by providing in § 1158(b)(3)(A) for automatic asylum for spouses of
7 individuals who have been granted “refugee” status as a result of having been forced to undergo
8 an abortion or involuntary sterilization reflects a policy decision to encourage the preservation of
9 families. Under § 1158(b)(3)(A) the benefits of asylum are extended first to the person Congress
10 understood to be most deserving of protection – the direct victim. Once the victim gains asylum,
11 so does the spouse, and so do their children. This structure encourages couples to remain
12 together, or, in circumstances where this is not possible, facilitates reunion.
13 T he BIA’s interpretation of the statute in S-L-L cuts in a different direction since it has
14 the perverse effect of creating incentives for husbands to leave their wives. As hundreds of
15 cases in the courts illustrate, the policy allows a married man to “capitalize on the persecution of
16 his wife to obtain asylum even though he has left his wife behind and she might never join him
17 and he might intend that she not do so,” Chen v. Ashcroft, 376 F.3d 215, 223 n.2 (3d Cir. 2004).
18 It is highly unlikely – indeed, inconceivable – that Congress would approve of, much less
19 intended, any of this. These counterintuitive results reinforce our conclusion that in § 601(a)
20 Congress intended to grant automatic asylum to an individual directly victimized by a coercive
21 birth control policy, and that no part of § 1101(a)(42) extends this automatic asylum to spouses.
For an analysis of what “resistance” might mean when someone has not been forcibly14
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 womanwho announced her opposition to government population control policies and was thereaftersubjected to a forced gynecological exam and threatened with future abortion, sterilization of herboyfriend, and arrest).
27
1 Congress did not, at the same time it adopted § 601(a), intend to gut or to undermine §
2 1158(b)(3)(A), which already contained a synchronous, sensible way of addressing the
3 compelling problems faced by spouses and children of direct victims.
4 Although we conclude that Congress has spoken unambiguously to whether an asylum
5 applicant is per se eligible for asylum if his spouse or partner has suffered as a result of a
6 coercive population control program, the phrase “other resistance” is ambiguous and leaves
7 room for the BIA’s reasonable interpretation where the applicant relies on something beyond his
8 spouse’s or partner’s persecution. See Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1203 (11th Cir.14
9 2005) (“There is very little case law analyzing the ‘other resistance’ clause in the asylum statute.
10 Additionally, a review of the legislative history behind the 1996 Amendment does not reveal any
11 clear intent from Congress on the scope of the ‘other resistance clause.’”).
12 In its decision, the BIA held that an applicant claiming persecution for “other resistance”
13 must demonstrate (1) “resistance” to a coercive family planning policy, which can “cover[] a
14 wide range of circumstances, including expressions of general opposition, attempts to interfere
15 with enforcement of government policy in particular cases, and other overt forms of resistance to
16 the requirements of the family planning law”; and (2) that the applicant has “suffered harm
17 amounting to persecution on account of that resistance.” S-L-L-, 24 I. & N. Dec. at 10. An
18 individual whose spouse or partner has been subjected to a forced abortion or involuntary
Judge Calabresi asserts first that our holding conflicts—if not in actuality, then in15
“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, 126S. Ct. 1613 (2006) (per curiam), and second that we rush to reach a particular result. Wedisagree with both of these assertions. First, Orlando Ventura and Thomas held that a reviewingcourt should ordinarily remand rather than pass upon a matter that is (1) primarily committed tothe BIA’s discretion, and (2) has not yet been considered by the BIA. See Orlando Ventura, 537U.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 aparticular agency interpretation is consistent with the unambiguously expressed intent of
28
1 sterilization can therefore qualify for “refugee” status under this interpretation if that individual
2 can prove past persecution or a fear of future persecution for “resistance” that is directly related
3 to his or her own opposition to a coercive family planning policy.
4 Whatever interpretation the BIA chooses to give to the meaning of “resistance,” it is clear
5 that the fact that an individual’s spouse has been forced to have an abortion or undergo
6 involuntary sterilization does not, on its own, constitute resistance to coercive family planning
7 policies. See Zhang, 395 F.3d at 532 (“[M]erely impregnating one's girlfriend is not alone an act
8 of ‘resistance.’”). Nor could the resistance of an individual’s spouse or partner to a family
9 planning policy – whether by failure or refusal to undergo a procedure, or for “other resistance”
10 – constitute, on its own, “resistance” under regulations implementing § 1101(a)(42). Instead, as
11 the DHS has argued, “where the applicant himself has not resisted [coercive family control
12 policies], he would need to demonstrate, though persuasive direct or circumstantial evidence,
13 that his wife’s, fiancee’s, or girlfriend’s resistance has been or will be imputed to him.” DHS
14 brief at 17 (citing Singh v. INS, 134 F.3d 962, 970 (9th Cir. 1998)). The fact that someone’s
15 spouse has been subjected to a forced abortion or sterilization would not be irrelevant to such an
16 analysis, it simply could not provide for asylum status per se. 15
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 theBIA in 1997, in its opinion in C-Y-Z-, 21 I. & N. Dec. at 915. In 2005, we remanded this case tothe BIA to give it the opportunity to reconsider whether the rule in C-Y-Z- could find support inthe language of § 601(a). See Lin, 416 F.3d at 187. On remand, DHS explicitly argued to theBIA that its per se rule was foreclosed by the plain language of § 601(a) and the statutoryscheme. A majority of the BIA considered and rejected this argument over the forceful, andpersuasive, 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 instatutory text.
29
1 Before turning to the dispositions of the petitioners’ claims, we address some practical
2 implications of our decision. We affirm the result of the BIA’s decision in S-L-L- denying per
3 se refugee status to boyfriends or fiancés of individuals who have been persecuted directly under
4 coercive family planning policies. A necessary predicate for this result is our conclusion that §
5 601 does not confer automatic asylum eligibility on spouses, whether legal spouses or spouses
6 from a traditional marriage, but only on individuals who themselves have undergone or been
7 threatened with coercive birth control procedures. Thus, although none of the petitioners before
8 us is legally married, we understand that our reading of the statute would necessarily exclude
9 spouses of those directly victimized from per se asylum eligibility as well.
10 We emphasize that our holding today should not be read to presage the reopening of
11 cases of aliens who have already been granted asylum based on the BIA’s interpretation of § 601
12 in C-Y-Z-. Under 8 U.S.C. § 1158(c)(2)(A), the DHS is permitted to seek the termination of
13 asylum when an alien no longer qualifies for refugee status “because, owing to a fundamental
14 change in circumstances relating to the original claim, the alien's life or freedom no longer would
15 be threatened on account of race, religion, nationality, membership in a particular social group,
30
1 or political opinion in the country from which deportation or removal was withheld.” 8 C.F.R. §
2 208.24(b)(1) (emphasis added). Just as a change in United States asylum law does not qualify as
3 a “change in circumstances” sufficient to reopen an asylum case under 8 C.F.R. §
4 1003.2(c)(3)(ii) (permitting motion to reopen “based on changed circumstances arising in the
5 country of nationality or in the country to which deportation is ordered”), see Azanor v. Ashcroft,
6 364 F.3d 1013, 1022 (9th Cir. 2004), a change in the BIA’s interpretation of section 601(a) as a
7 result of our decision should not be seen as a “fundamental change in circumstances relating to
8 the original claim” under 8 C.F.R. § 208.24(b)(1) so as to allow the termination of an asylum
9 claim that has already been granted. See S-L-L-, 24 I. & N. Dec. at 21 n.2 (Filppu, B.M.,
10 concurring and dissenting) (“We are not now concerned with reopening past cases.”).
11 III. PETITIONERS’ CLAIMS
12 We agree with the BIA that none of the petitioners can qualify for automatic refugee
13 status as a result of the treatment of their girlfriends or fiancées. Instead, each petitioner must
14 demonstrate “other resistance to a coercive population control program” or “a well founded fear
15 that he . . . will be . . . subject to persecution for such . . . resistance . . . .” 8 U.S.C. §
16 1101(a)(42).
17 Petitioner Dong’s application for asylum was based upon his fiancée’s two forced
18 abortions and threats from family planning officials that they would fine and sterilize Dong if his
19 fiancée became pregnant again. But Dong failed to demonstrate that he acted in a manner that
20 could constitute “resistance” or opposition to a coercive family control program. Nor can we
21 find that Dong has a fear of future persecution as a result of the threat that the Chinese
31
1 government would sterilize him if his fiancée became pregnant again. Dong submitted evidence
2 to the immigration court that his fiancée had moved to Taiwan to be with her father. The IJ thus
3 found that Dong was unlikely to return to China, and his fear of sterilization was conjectural.
4 Moreover, as the BIA notes, were Dong’s fiancée to return to China, Dong and his fiancée would
5 now meet the age requirements for marriage. See In re Dong, A. 77 293 661 (B.I.A. Nov. 27,
6 2006). In addition, the immigration judge correctly determined that Dong did not demonstrate
7 that he would “more likely than not” be persecuted as grounds for a withholding of removal, or
8 that he would be subjected to torture within the meaning of the Convention Against Torture. See
9 id. Accordingly, we deny Dong’s petition for review.
10 Petitioner Lin’s claim for asylum is that he and his girlfriend were refused permission to
11 marry or have a child out of wedlock, and his girlfriend was forced to undergo an abortion. Lin
12 did not claim before the immigration court, the BIA, or this Court that he had “otherwise
13 resisted” China’s coercive family planning policies. Even if he had, we agree with the BIA that
14 a request, through the appropriate legal channels, for permission to have a child, combined with
15 the subsequent abortion performed on his girlfriend, does not constitute “resistance to a coercive
16 population control program.” S-L-L-, 24 I. & N. at 10-12. However, we do not have jurisdiction
17 over Lin’s petition for review, as we find that his petition is moot. Lin’s attorney has informed
18 this Court that he has never had any contact with the petitioner, and that Lin’s prior attorney has
19 not spoken to him in approximately three years. In addition, an individual from Lin’s village in
20 China has told the attorney that “he heard from other villagers that Lin was terminally ill and had
21 returned to China not too long ago and died.” Aff. of Yee Ling Poon ¶ 5. When the possibility
32
1 of relief is “so remote and speculative that any decision on the merits . . . would amount to a
2 ‘declar[ation of] principles or rules of law which cannot affect the matter in issue in the case
3 before [us],’” United States v. Blackburn, 461 F.3d 259, 262 (2d Cir. 2006) (quoting Mills v.
4 Green, 159 U.S. 651, 653 (1895) (alterations in original)), we would run afoul of Article III were
5 we to decide the claim. Given that we do not retain jurisdiction over Lin’s claim if he has
6 returned to China and has provided no explanation to overcome the presumption that his asylum
7 application has been abandoned, see 8 C.F.R. § 1208.8, or if he is deceased, Lin’s petition is
8 dismissed as moot.
9 Petitioner Zou’s petition has been remanded by the BIA to the immigration court to
10 review its findings of adverse credibility and determine whether Zou qualifies as a refugee for
11 “resistance” to a coercive family planning policy. See In re Xian Zou, No. A77 322 295 (B.I.A.
12 Nov. 21, 2006). Accordingly, we no longer have jurisdiction over Zou’s petition. See 8 U.S.C.
13 § 1252(a)(1) (giving courts of appeals jurisdiction to review only final orders of removal).
14 CONCLUSION
15 For these reasons, the petition for review of Zhen Hua Dong is DENIED. The petitions
16 for review of Shi Liang Lin and Xian Zou are DISMISSED for lack of jurisdiction.
17
18
19
20
21
33
1
2
3
4
5
6
7
8
9
10
11
12
The Department of Homeland Security (“DHS”) advanced a different view before the1
BIA. The majority “assume[s] that the Solicitor General will take appropriate action torecommend or assure that the views of DHS and this Court will be represented in any futureproceedings.” Maj. Op. at 23 n.11. In so doing, the majority ignores the historic independenceof the Office of the Solicitor General in determining the executive branch’s position before theSupreme Court. When agencies of the executive branch have taken inconsistent positions, asthey have here, the Solicitor General may choose among those positions, or it may adopt anyother available litigation position. The Solicitor General has no obligation to endorse thepreferred legal theory of the court below. To the extent the majority attempts to influence theposition the Solicitor General will take in future proceedings, that effort is inappropriate.
34
1 KATZMANN, Circuit Judge, with whom Judges Straub, Pooler, and Sotomayor join, concurring in
2 the judgment:
3 With the majority’s emphasis on denying asylum relief to legal spouses under
4 § 101(a)(42) of the Immigration and Nationality Act (the “INA”), it is easy to lose sight of one
5 fact central to the disposition of these cases: Not one of the petitioners in these consolidated
6 cases was married. In each case, it was the plaintiff’s girlfriend, not his wife, who was forced to
7 abort her pregnancy. It is thus unnecessary for us to resolve whether the BIA can legally extend
8 asylum relief to legal spouses; indeed, in doing so, we are addressing not only an issue not
9 presently before us, but also one that the parties in these cases do not even dispute. In their
10 briefs before us, both the petitioners and the Government agree that the statute is ambiguous. 1
11 The question the parties dispute, and the only one that these cases require us to answer, is
12 whether the BIA’s interpretation of the statute as applied to boyfriends and fiancés is reasonable.
13 Every judge on this Court who reaches this issue agrees that it is.
14 Thus, this case could have been resolved simply and nearly unanimously by assuming the
15 reasonableness of the BIA’s construction of the statute as applied to legal spouses and then
16 holding that it was also reasonable as applied to boyfriends and fiancés. See Cai Luan Chen v.
In a related context, we remanded to the BIA to address the proper scope of the term2
“refugee” in the first instance, noting that “it would be unsound for each of the several Courts ofAppeals 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).
The majority finds my decision to engage in this analysis “perplex[ing]” given my belief3
that we need not—and should not—answer today a question that this case does not require us toanswer and the proper resolution of which the parties do not dispute. Although I believe weshould have limited our decision to the BIA’s treatment of boyfriends, the majority has
35
1 Ashcroft, 381 F.3d 221, 227 (3d Cir. 2004) (Alito, J.) (assuming “for the sake of argument” that
2 “C–Y–Z–’s interpretation is permissible” as applied to legal spouses and then determining
3 whether the BIA was reasonable in distinguishing “between married and unmarried couples”).
4 Instead, the majority has gone out of its way to create a circuit split where none need exist, see
5 Maj. Op. at 5 n.4, thereby frustrating the BIA’s uniform enforcement of a national immigration
6 policy. Finding in textual silence an expression of unambiguous congressional intent, the2
7 majority has rejected the BIA’s determination that § 101(a)(42) is ambiguous.
8 When a governmental body with substantial experience in interpreting a complex
9 statutory scheme concludes that a statute is ambiguous, that determination should give us pause.
10 Here, the fact that the BIA concluded that the INA is ambiguous with respect to the question we
11 are called upon to answer suggests that we would do well to probe further, to consider whether
12 the seemingly plain language belies a more complicated meaning. It suggests that we should
13 consider carefully not only the text of the statute, but also the context—both the events that gave
14 rise to that text and the various agency and judicial responses to it. Text without context can
15 lead to confusion and misunderstanding. The majority’s analysis is testament to that
16 proposition. 3
nonetheless chosen to address its treatment of husbands. I would be remiss if I did not discussboth why I believe the majority’s discussion of this issue is unnecessary and also why I believe itis wrong.
Although we remanded to the BIA to “more precisely explain its rationale for4
construing IIRIRA § 601(a)” to protect spouses, Shi Liang Lin v. U.S. Dep’t of Justice, 416 F.3d184, 187 (2d Cir. 2005), nothing in that decision precluded the BIA from looking to the moregeneral language in the statute in determining whether to extend relief to spouses. Indeed, theBIA had the authority to interpret the meaning of 8 U.S.C. § 1101(a)(42) independent of ourremand 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 theAttorney General by law in the course of considering and determining cases before it. Based on
36
1 In answering the first of the questions set out in Chevron, U.S.A., Inc. v. Natural
2 Resources Defense Council, 467 U.S. 837 (1984), that is, whether “the statute is silent or
3 ambiguous with respect to the specific issue,” id. at 843, we must look to the text of § 101(a)(42)
4 of the INA. That text provides, in pertinent part, that a refugee is
5 any person who is outside any country of such person’s nationality6 . . . and who is unable or unwilling to return to . . . that country7 because of persecution . . . on account of . . . political opinion . . . .8 For purposes of determinations under this chapter, a person who has9 been forced to abort a pregnancy or to undergo involuntary
10 sterilization . . . shall be deemed to have been persecuted on account11 of political opinion . . . .1213 8 U.S.C. § 1101(a)(42). The majority focuses its textual analysis on the final sentence of that
14 provision, that is, § 601(a) of the Illegal Immigration Reform and Immigration Responsibility
15 Act of 1996 (“IIRIRA”), concluding that the BIA’s decision “rested on” that sentence, and not
16 the general definition of “refugee” in 8 U.S.C. § 1101(a)(42). Maj. Op. at 10. Yet, as the
17 majority notes, the BIA found that “‘[t]here is no clear or obvious answer to the scope of the
18 protections afforded by the amendment to partners of persons forced to submit to an abortion or
19 sterilization.’” Maj. Op. at 13. Reasoning that the “lack of . . . a reference” to spouses in the4
this allocation of authority, we [have] recognized . . . that the BIA should be accorded Chevrondeference as it gives ambiguous statutory terms concrete meaning through a process of case-by-case adjudication . . . .” (quotation marks and citation omitted)); see also Kuhali v. Reno, 266F.3d 93, 102 (2d Cir. 2001) (granting “Chevron deference to the Board’s construction of theINA, which it . . . administer[s]”).
Even if the BIA construed only the 1996 amendment, it would still be necessary to5
consider the text of the entire statute and the context against which that amendment was enactedto 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 interpretingthe plain language of the statute, we must look to the particular statutory language at issue, aswell as the language and design of the statute as a whole, and, where appropriate, its legislative
37
1 1996 amendment “does not necessarily preclude an applicant from demonstrating past
2 persecution based on harm inflicted on a spouse when both spouses are harmed by government
3 acts motivated by a couple’s shared protected characteristic,” the Board looked to the “general
4 principles regarding nexus and level of harm” for guidance. In re S–L–L–, 24 I. & N. Dec. 1, 5
5 (B.I.A. 2006); see also id. at 5 n.5 (citing to the general regulatory framework that defines when
6 an applicant may qualify as a refugee); id. at 6 (considering the “well-established principles
7 regarding nexus and level of harm for past persecution”).
8 Thus, although the majority places great emphasis on its view that the “language in §
9 601(a) . . . is unambiguous and . . . does not extend automatic refugee status to spouses or
10 unmarried partners of individuals § 601(a) expressly protects,” Maj. Op. at 4, I find the focus on
11 the amendment misplaced. I believe we must look instead to the entirety of 8 U.S.C.
12 § 1101(a)(42) to determine whether the statute is ambiguous. See SEC v. Chenery Corp., 332
13 U.S. 194, 196 (1947) (“[A] reviewing court, in dealing with a determination or judgment which
14 an administrative agency alone is authorized to make, must judge the propriety of such action
15 solely by the grounds invoked by the agency.”). That section provides that a “refugee” is any5
history.” (quotation marks omitted)). Because I believe the BIA held that the entire provisionwas ambiguous, it is not necessary to determine here whether the 1996 amendment alone isambiguous. Thus, contrary to Judge Calabresi’s suggestion, Judge Calabresi Op. at 16 n.6, I donot necessarily agree that the BIA could not have relied on § 601(a) to provide asylum relief tospouses.
I agree with Judge Calabresi that this “general language” in 8 U.S.C. § 1101(a)(42)6
means that the BIA, with its expertise in this area, is particularly well-suited to exercise itsdiscretion and decide how that language should be interpreted. Judge Calabresi Op. at 8. JudgeCalabresi and I differ as to whether the BIA has already exercised that discretion.
38
1 individual who cannot return to his or her home country because of “persecution . . . on account
2 of . . . political opinion.” None of these terms is defined in any way, and none explicitly
3 addresses whether the spouses of those who have been forced to undergo an abortion or
4 sterilization are entitled to asylum relief. Hence, the statute, on its face, does not “directly6
5 address[] the precise question at issue.” Chevron, 467 U.S. at 843; cf. Sun Wen Chen v. U.S.
6 Att’y Gen., No. 05-4011, 2007 WL 1760658, at *4 (3d Cir. June 20, 2007) (“[T]he C–Y–Z– rule
7 thus fleshes out an issue germane to the application of § 1101(a)(42)(B) that was not addressed
8 by Congress, and so poses no Chevron step one problem.”).
9 Indeed, the majority points to no language in the statute that explicitly denies asylum
10 relief to these spouses, or that precludes the BIA from extending it to them. Cf. 8 U.S.C. §
11 1101(a)(42) (explicitly precluding from the definition of “refugee” individuals “who ordered,
12 incited, assisted, or otherwise participated in the persecution of any person on account of race,
13 religion, nationality, membership in a particular social group, or political opinion”). Rather, the
14 majority takes the position that “Congress’s specific designation of some persons (i.e., those who
15 fear, resist, or undergo particular medical procedures) is incompatible with the view that others
16 (e.g., their spouses) should also be granted asylum per se because of birth control policies. The
The majority’s recognition that § 601(a) expanded the availability of asylum relief does7
nothing to explain why this language, which by its terms only expands relief, should also be read
39
1 inclusion of some obviously results in the exclusion of others.” Maj. Op. at 17-18. But where
2 the majority reads the language of the 1996 amendment and sees it as a limitation on the
3 availability of asylum relief, I see it, in the context in which it was enacted, as an expansion of
4 that relief.
5 I believe one question is fundamental: What was Congress’s purpose in enacting the 1996
6 amendment? Cf. Ai Feng Yuan v. U.S. Dep’t of Justice, 416 F.3d 192, 197 (2d Cir. 2005) (noting
7 the “canon of statutory construction that requires us to reconcile a statute’s plain language with
8 its purpose”). In answering that question, we should not limit our inquiry to the language of the
9 amendment; instead, we must look at the statutory scheme of which that amendment is a part and
10 the legislative activity that led to its enactment. Congress’s intent in enacting IIRIRA § 601(a)
11 was to clarify that, contrary to the BIA’s prior rulings, the imposition of some aspects of China’s
12 family planning policy can constitute persecution on the basis of political opinion, and that
13 certain victims of that persecution are entitled to protection under our asylum laws. Nothing in
14 the amendment suggests that Congress intended to prevent the BIA from extending relief to
15 victims other than those explicitly identified in the amendment. See Sun Wen Chen, 2007 WL
16 1760658, at *6 (“We are not convinced that Congress, in expanding asylum to include more
17 reproductive rights-based claims, intended to define the outer limits of relief in such cases.”).
18 There is thus some irony in the majority’s approach: By giving short shrift to context, it infers an
19 intent to limit the availability of asylum relief; had it looked more closely at context, it would
20 have recognized Congress’s intent was only to expand that relief. Context makes clear what7
to have limited the BIA’s preexisting authority to further expand it. Although the majoritysuggests that I rely on “messages [I] hear[] in the sounds of Congressional silence,” Maj. Op. at26 n.12, all that I actually find in silence, especially given the context, is ambiguity. SeeChevron, 467 U.S. at 843 (noting that we turn to Chevron step two “if the statute is silent orambiguous 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 asgap-fillers in situations of statutory silence.”). It is the majority that appears to find in silenceclear evidence of Congress’s intent.
These amendments to the asylum regulations appear to contemplate the possibility that8
asylum relief would be available to the spouses of those who were subject to forced abortion orsterilization. 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 apregnancy or to be sterilized in violation of a country’s family planning policy, and who has a
40
1 text alone fails to convey.
2 The INA provides asylum relief to individuals who have been “persecut[ed] . . . on
3 account of . . . political opinion,” but does not define those terms. In Matter of Chang, 20 I. &
4 N. Dec. 38 (B.I.A. 1989), the BIA held that whatever else “persecution” might mean, it did not
5 encompass any retribution visited upon individuals who violated China’s “one couple, one child”
6 policy. The BIA ruled that the policy “is [not] on its face persecutive” and does not “persecut[e]
7 any portion of the Chinese citizenry on account of one of the reasons enumerated in section
8 101(a)(42)(A) of the Act.” Id. at 43, 44.
9 Others in the executive branch took a different view. The next year, the Department of
10 Justice issued “interpretative rules and general statements of policy for establishing statutory
11 eligibility for asylum or withholding of deportation on the basis of political opinion for aliens
12 who express a fear of coercive population control policies in their homeland.” Refugee Status,
13 Withholding of Deportation and Asylum; Burden of Proof, 55 Fed. Reg. 2803, 2804 (Jan. 29,
14 1990). President George H.W. Bush reaffirmed his Administration’s support of the interim rule8
well-founded fear that he or she will be required to abort the pregnancy or to be sterilized orotherwise 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 onaccount of political opinion is established by the respondent who establishes that he or she (orrespondent’s spouse) will be required to abort a pregnancy or to be sterilized . . . .”).
41
1 with the promulgation of Executive Order 12,711, which provided for “enhanced consideration
2 under the immigration laws for individuals from any country who express a fear of persecution
3 upon return to their country related to that country’s policy of forced abortion or coerced
4 sterilization.” Exec. Order No. 12,711, 55 Fed. Reg. 13,897, 13,897 (Apr. 11, 1990).
5 Although the INS, in July 1990, set forth a final rule that did not address this issue, see
6 Aliens and Nationality; Asylum and Withholding of Deportation Procedures, 55 Fed. Reg.
7 30,674 (July 27, 1990), the Office of the General Counsel of the INS subsequently sent a letter to
8 Regional and District Counsel stating that “Department of Justice and INS ‘policy with respect
9 to aliens claiming asylum or withholding of deportation based upon coercive family planning
10 policies is that the application of such coercive policies does constitute persecution on account of
11 political opinion.’” Xin-Chang Zhang v. Slattery, 55 F.3d 732, 740 (2d Cir. 1995), superseded
12 by 8 U.S.C. § 1101(a)(42) (quoting INS letter to Regional and District Counsel).
13 In January 1993, Attorney General William P. Barr signed a final rule that would have
14 made this view law. It provided, in pertinent part, that “[a]n applicant (and the applicant’s
15 spouse, if also an applicant) shall be found to be a refugee on the basis of past persecution on
16 account of political opinion if the applicant establishes that, pursuant to the implementation . . .
17 of a family planning policy . . . the applicant has been forced to abort a pregnancy or to undergo
18 sterilization or has been persecuted for failure or refusal to do so.” AG Order No. 1659-93, at 14
42
1 (Jan. 15, 1993) (to be codified at 8 C.F.R. 208) (“January 1993 Rule”). Although this rule was
2 sent to the Federal Register, where it was made available for public inspection and scheduled for
3 publication, it was never published due to the change in presidential administrations. Xin-Chang
4 Zhang, 55 F.3d at 741. In February, additional regulations pertaining to asylum were published,
5 but these made no mention of the January rule. Id.
6 Against the background of these conflicting BIA decisions and administrative
7 regulations,
8 we were asked to determine whether asylum relief was available to victims of China’s family
9 planning policy. We held that such relief was not available, explaining that “[e]ven were we to
10 accept [the] view that the ‘administrative cacophony’ surrounding the issue justified diminished
11 deference to Chang, our result would not change. It is difficult to frame a result different from
12 the holding of Chang that would be ‘reasonable’ under both Elias-Zacarias and the existing
13 immigration laws.” Id. at 752; see also INS v. Elias-Zacarias, 502 U.S. 478 (1992). We did not
14 stop there, however. Instead, we called upon Congress and the President to determine whether
15 relief should be available to the victims of China’s family planning policy: “No doubt, the
16 President and the Congress acting together have power to create an exception to the existing
17 immigration laws for PRC citizens . . . .” Id.
18 The next year, Congress enacted IIRIRA § 601(a). The House Committee Report
19 explained that Congress’s “primary intent” in amending the definition of refugee was “to
20 overturn several decisions of the [BIA], principally Matter of Chang and Matter of G–,” H.R.
21 Rep. No. 104-469(I), 1996 WL 168955, at *173 (1996), in which the BIA had held that “the
As previously noted, Attorney General Barr had attempted to “supersede the [BIA]9
decision in Matter of Chang,” January 1993 Rule, at 4-5, but his efforts fell victim to a change inpresidential administrations. See Xin-Chang Zhang, 55 F.3d at 741. Noting that the nextadministration had thus far failed to take action, Congress stepped in to accomplish the samegoal through legislation. See H.R. Rep. No. 104-469(I), 1996 WL 168955, at *174 (“[T]heAdministration, which has the authority to overrule the BIA decisions through regulation orthrough decision of the Attorney General, has not done so. Nor has it offered adequate relief topersons who have undergone such coercion.”).
43
1 Chinese Government’s implementation of its family planning policies is not on its face
2 persecutive and does not by itself create a well-founded fear of persecution on account of one of
3 the five grounds delineated in the Act, even to the extent that involuntary sterilization may
4 occur,” Matter of G-, 20 I. & N. Dec. 764, 778 (B.I.A. 1993); Matter of Chang, 20 I. & N. Dec.
5 at 43-44; see also Junshao Zhang v. Gonzales, 434 F.3d 993, 995 (7th Cir. 2006) (“The impact
6 of that amendment was to overrule Chang, and allow for the granting of asylum applications in
7 cases in which the claim of persecution stemmed from the enforcement of China’s coercive
8 population control policies.”); H.R. Rep. No. 104-469(I), 1996 WL 168955, at *174 (criticizing
9 the BIA decisions for “effectively preclud[ing] from protection persons who have been
10 submitted to undeniable and grotesque violations of fundamental human rights”); id. (noting that
11 “the BIA’s rationale for these opinions—that policies of coercive family planning are ‘laws of
12 general application’ motivated by concerns over population growth, and thus are not
13 ‘persecutory’—is unduly restrictive”).9
14 When Congress stated that “[f]or purposes of determinations under this [Act], a person
15 who has been forced to abort a pregnancy or to undergo involuntary sterilization . . . shall be
16 deemed to have been persecuted on account of political opinion,” 8 U.S.C. § 1101(a)(42)(a), it
17 was not providing an exhaustive list of those who could claim asylum relief because they were
That two definitions of the term exist suggests, at the very least, that there is ambiguity10
in Congress’s use of the term, and the fact that Black’s Law Dictionary may favor one definitionis hardly sufficient to dispel that ambiguity. Indeed, although Black’s Law Dictionary maydescribe the majority’s preferred usage as the more “traditional[]” one and may discourage otheruses, 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
44
1 victimized by China’s family planning policy. Rather, it was expressing a congressional
2 determination that, contrary to the BIA’s prior rulings, China’s “one couple, one child” policy is
3 on its face persecutory, and victims of that policy who experienced persecution should be able to
4 qualify for asylum relief without making an additional showing of their own political opinion.
5 The majority takes the position that § 601(a) does not “alter the pre-IIRIRA definition of
6 ‘political opinion’ in § 1101(a)(42)” and that, for the individuals identified in § 601(a), “their
7 political opinion exists de jure rather than as a matter of fact on which the applicant bears the
8 burden of proof.” Maj. Op. at 18, 19. It notes, in this regard, that the amendment provides that
9 those who have been subjected to forced procedures “‘shall be deemed’ persecuted by reason of
10 political opinion,” Maj. Op. at 18-19, and that “[t]o ‘deem’ is ‘[t]o treat (something) as if (1) it
11 were really something else, or (2) it has qualities that it doesn’t have,’” Maj. Op. at 18-19 n.9
12 (quoting Black’s Law Dictionary 446 (8th ed. 2004)). But, as the majority acknowledges, there
13 is more than one definition of the word “deem”; it may also mean “[t]o consider, think, or
14 judge.” Black’s Law Dictionary 446 (8th ed. 2004). Thus, in this context, Congress’s use of the
15 word “deemed” may mean that these individuals should be “judged” as having been persecuted
16 on account of political opinion, just as the proposed 1993 rule provided that these applicants
17 “shall be found to be . . . refugee[s] on the basis of past persecution on account of political
18 opinion.” January 1993 Rule, at 14. Indeed, the legislative history suggests that Congress was10
propose Amendments to this Constitution . . . .” (emphasis added)); 15 U.S.C. § 80b-3(j) (“TheCommission is authorized to adopt rules, regulations, and orders . . . as it deems appropriate toimplement 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 “specialimmigrant” to include “an immigrant who is present in the United States . . . who has beendeclared dependent on a juvenile court located in the United States or whom such a court haslegally committed to, or placed under the custody of, an agency or department of a State and whohas been deemed eligible by that court for long-term foster care due to abuse, neglect, orabandonment” (emphasis added)); id. § 1103(a)(3) (providing that the Secretary of HomelandSecurity may “perform such other acts as he deems necessary for carrying out his authority underthe 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 thesame 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 notconclusively resolve any ambiguity created by the existence of the two definitions, Congress’suse of the allegedly disfavored definition elsewhere in the INA renders the meaning of “deemed”in § 1101(a)(42), at the very least, ambiguous.
45
1 not attempting to create an exception to Matter of Chang, but to overrule it; and if Congress were
2 attempting to carve out an exception to the normal requirement that applicants must establish
3 that they have faced persecution on account of one of the protected grounds, it could have done
4 so in much plainer language. In any event, the statute is, at a minimum, ambiguous, and it is the
5 BIA, not the courts, that is charged with construing the statute in the face of that ambiguity.
6 Other circuits to have considered this issue have held that when Congress enacted the
7 1996 amendment it intended to protect both members of couples that are targeted under China’s
8 family planning policy. See, e.g., Junshao Zhang, 434 F.3d at 999 (“Congress passed §
9 601(a)(1) of the IIRIRA to ensure that families who are victims of forced abortion and
10 sterilization under China’s population control policy would receive asylum . . . .” (emphasis
11 added)); Kui Rong Ma v. Ashcroft, 361 F.3d 553, 559 (9th Cir. 2004) (identifying “Congress’s
12 goal in passing the amendments—to provide relief for ‘couples’ persecuted on account of an
Although “[g]eneral language of a statutory provision . . . will not be held to apply to a11
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 provisiondoes not address whether spouses should be entitled to relief. In the 1996 amendment, Congressidentified a particular category of individuals entitled to relief, but left to the BIA the task ofdetermining whether to expand upon that relief, just as the BIA routinely defines whatindividuals are entitled to asylum relief in a myriad of other contexts.
Indeed, there is some language in the legislative history which suggests that Congressmay have considered the possibility that individuals other than those who had been forced toundergo an abortion or sterilization might qualify for asylum. The House Committee Report onthe amendment noted that “[d]etermining . . . whether the actual or threatened harm rises to thelevel of persecution is a difficult and complex task, but no more so in the case of claims based oncoercive family planning than in cases based on other factual situations. Asylum officers andimmigration judges are capable of making such judgments.” H.R. Rep. No. 104-469(I), 1996WL 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’sharm rises to the level of persecution, given that the amendment explicitly provides that a forcedabortion or sterilization does rise to this level.
46
1 ‘unauthorized’ pregnancy and to keep families together” (emphasis added)). We need not go as
2 far as these courts to affirm the BIA’s decision here. Even if Congress did not specifically
3 intend to protect “couples,” there is nothing in the text of the amendment, or the context that
4 gave rise to it, that indicates that it intended to preclude the BIA from extending asylum relief to
5 both members of a couple. See Sun Wen Chen, 2007 WL 1760658, at *5 (granting Chevron
6 deference to the BIA’s interpretation in In re S–L–L–). 11
7 Just as nothing in the language or history of the amendment indicates a congressional
8 intent to foreclose the extension of relief to spouses, Congress has done nothing to indicate such
9 an intent in the years since the amendment’s enactment, notwithstanding that the BIA interpreted
10 § 1101(a)(42) to cover spouses a decade ago and numerous courts of appeals have upheld this
11 interpretation as reasonable. See, e.g., Yuan, 416 F.3d at 197; Junshao Zhang, 434 F.3d at 999;
12 Kui Rong Ma, 361 F.3d at 559 (“The BIA and the courts have uniformly applied the statute’s
47
1 protections to husbands whose wives have undergone abortions or sterilization procedures, as
2 well as to the wives themselves.”); In re C–Y–Z–, 21 I. & N. Dec. 915, 918-19 (B.I.A. 1997) (en
3 banc). There are obscure areas of public policy, largely hidden from public attention and
4 concern, in which it makes little sense to ascribe meaning to the absence of congressional
5 response to administrative and judicial interpretations of a statute. Immigration is hardly one of
6 those areas. To the contrary, immigration—and the issue of the appropriate scope of asylum
7 relief—have consistently been on Congress’s radar. Immigration is frequently in the news, and
8 Congress has repeatedly legislated in this area. Indeed, as recently as 2005, Congress revisited
9 this very provision and removed the annual cap on the number of asylees who could be admitted
10 under it. See REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, §§ 101(g)(2), (h)(5), 119 Stat.
11 231, 305-06 (May 11, 2005). While the fact that Congress, in the course of its active attention to
12 immigration issues and legislation, has not amended 8 U.S.C. § 1101(a)(42) in light of the
13 interpretation it has been given by the BIA and the courts does not definitively mean that
14 Congress intended to protect spouses, it does suggest, at the very least, that it was not Congress’s
15 intent to foreclose that relief.
16 The majority nonetheless holds that it was “not correct” for the BIA to construe the
17 general definition of “refugee” to allow for the provision of this relief because “the statutory
18 scheme unambiguously dictates that applicants can become candidates for asylum relief only
19 based on persecution that they themselves have suffered or must suffer.” Maj. Op. at 19. I agree
20 that an individual must have personally experienced persecution to be entitled to asylum relief,
21 but that statement begs the question of what constitutes persecution.
48
1 The statute does not, in either the 1996 amendment or in its general definition of the term
2 “refugee,” prescribe exactly how much harm or what kind of harm an individual must experience
3 to have been “persecuted” within the meaning of the statute. See Ivanishvili v. U.S. Dep’t of
4 Justice, 433 F.3d 332, 340 (2d Cir. 2006) (noting that the term “persecution” is “not defined by
5 the Immigration and Nationality Act”); see also Matter of Acosta, 19 I. & N. Dec. 211, 222
6 (B.I.A. 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (B.I.A.
7 1987) (defining persecution as “either a threat to the life or freedom of, or the infliction of
8 suffering or harm upon, those who differ in a way regarded as offensive” (emphasis added)); see
9 also Ivanishvili, 433 F.3d at 341 (acknowledging the BIA’s definition of “persecution” as “the
10 infliction of suffering or harm upon those who differ on the basis of a protected statutory
11 ground.”). The 1996 amendment states that when one is forced to undergo an abortion or
12 sterilization, the harm thereby experienced is sufficient to qualify for asylum, but it hardly makes
13 that level of harm necessary.
14 The majority may view the 1996 amendment as providing that only individuals who have
15 undergone a forced abortion or sterilization have experienced “persecution.” If so, we again
16 differ on our interpretation of the significance of the 1996 amendment. I believe Congress
17 enacted the 1996 amendment not primarily to define the term “persecution,” but to clarify what it
18 means to be persecuted “on account of political opinion.” As noted above, Congress sought to
19 make clear, contrary to the BIA’s earlier decision in Matter of Chang, that the imposition of
20 penalties through the implementation of China’s family planning policy can constitute
21 persecution “on account of political opinion” by effectively adopting the position taken in the
49
1 commentary to the 1993 rule that, “[a]lthough . . . prosecution and punishment under a law of
2 general applicability will not ordinarily constitute persecution ‘on account of’ one of the
3 statutory grounds, . . . [p]ersecution on account of political opinion encompasses persecution of
4 people whose violation of laws may not be motivated by their political opinions but is regarded
5 by the state as political disloyalty.” January 1993 Rule, at 8.
6 Thus, I do not think that § 601(a) unambiguously defines the term persecution, and the
7 majority has pointed to nothing in the statute that suggests that the emotional and psychological
8 harm one suffers when one’s spouse is forced to undergo an abortion or sterilization is not severe
9 enough to constitute persecution. Nor does anything in the statute preclude the BIA from
10 considering the effect that China’s family planning policies may have on a couple’s shared right
11 to reproduce and raise children. Because Congress did not specifically address these issues, the
12 statute is ambiguous. It therefore falls to the BIA to determine whether the harm an individual
13 experiences when his or her spouse is subjected to a forced abortion or sterilization is sufficient
14 to constitute persecution. See, e.g., Kuhali, 266 F.3d at 102 (granting “Chevron deference to the
15 Board’s construction of the INA, which it . . . administer[s]”); cf. Sun Wen Chen, 2007 WL
16 1760658, at *5 (noting that the BIA “exercised its delegated gap-filling authority reasonably”
17 when it recognized the harms an individual experiences as a result of the forced abortion or
18 sterilization of his spouse). By holding that persecution cannot encompass such individuals, the
19 majority, as Judge Sotomayor cogently explains, usurps the BIA’s task of giving meaning to
20 ambiguous statutory terms. Further, by suggesting that the BIA is creating a presumption which
21 allows individuals to be granted asylum without proving that they were “persecuted . . . on
The majority’s assertion that § 601 “relieve[s] . . . persons who actually experienced a12
forcible abortion or sterilization from the burden of proving a political nexus” is similarlyproblematic. Maj. Op. at 21. In my view, Congress did not relieve anyone of the burden ofproving political nexus. Rather, it determined that an applicant can meet this burden byestablishing proof of persecution pursuant to a coercive family planning policy. Given themajority’s agreement that any asylum applicant may “rely[] on evidence of a forced abortion orsterilization—whether personal or spousal—in attempting to demonstrate persecution based onpolitical opinion,” Maj. Op. at 21 (emphasis added), I fail to see what additional evidence anapplicant whose spouse was subjected to a forced abortion or sterilization would have to show tocarry his burden of proving political nexus.
50
1 account of political opinion,” the majority errs. The BIA here created no presumption; rather,
2 fulfilling a basic responsibility, it simply discerned the meaning of those ambiguous terms. 12
3 Finally, the majority finds support for its reading of the statute in its perception that there
4 is some tension between this rule and the provision of derivative asylum status for spouses of
5 individuals who qualify as “refugees.” Maj. Op. at 26-28. But in adopting this rule, the BIA
6 provided a basis by which individuals could claim asylum relief in their own right for harm they
7 suffered as a result of their spouses’ forced abortion or sterilization. There is no apparent tension
8 in providing derivative asylum status to spouses who have not themselves suffered any harm and
9 providing an additional basis of relief to those spouses who have, that is, those who have
10 themselves suffered harm when their partners were subjected to a forced abortion or sterilization.
11 See 8 U.S.C. § 1158(b)(3)(A) (providing derivative asylum to spouses who are “not otherwise
12 eligible for asylum under this section”); cf. Junshao Zhang, 434 F.3d at 1001 (noting that “it
13 would be particularly perverse for courts to treat a subsequent break-up of the marriage as
14 somehow lessening the impact of [the prior] persecution [of the husband]”). Because there is no
15 tension in providing these two separate, distinct forms of relief, it does not seem to me that the
16 availability of derivative asylum relief unambiguously precludes the BIA from providing an
51
1 additional basis of relief to those whose spouses have been subjected to a forced abortion or
2 sterilization. See Sun Wen Chen, 2007 WL 1760658, at *4 (“We . . . do not believe that the
3 existence of derivative asylum status under a statute implies that Congress intended to foreclose
4 additional pathways to asylum specific to spouses.”).
5 At bottom, the majority seems to be motivated by a concern that the BIA’s rule will “gut
6 or . . . undermine” the availability of derivative asylum relief or have “the perverse effect of
7 creating incentives for husbands to leave their wives.” Maj. Op. at 28, 27. But nothing in the
8 BIA’s rule denies relief of any kind to husbands who come to this country with their wives;
9 moreover I think it very likely that husbands will find it advantageous to come with their wives
10 when possible because doing so will buttress the credibility of their claims. In the end, however,
11 my views of the policy consequences of the BIA rule are immaterial; so, too, are those of the
12 majority. Once we determine that the statute is ambiguous, we must defer to the BIA’s
13 interpretation of the statute if it is reasonable, whatever our own personal policy preferences.
14 See, e.g., Udall v. Tallman, 380 U.S. 1, 16 (1965) (“To sustain the Commission’s application of
15 this statutory term, we need not find that its construction is the only reasonable one, or even that
16 it is the result we would have reached had the question arisen in the first instance in judicial
17 proceedings.” (quotation marks omitted)).
18 In considering the reasonableness of the BIA’s interpretation under step two of Chevron,
19 our charge is not to determine whether the BIA’s interpretation of the statute is the one we would
20 have adopted in the first instance. Instead, “the question for the court is whether the agency’s
21 answer is based on a permissible construction of the statute”; we must defer to “legislative
52
1 regulations . . . unless they are arbitrary, capricious, or manifestly contrary to the statute.”
2 Chevron, 467 U.S. at 843, 844. Here, in determining whether to extend asylum relief to spouses,
3 the BIA reasonably considered the general principles underlying the definition of persecution
4 and concluded that a husband is persecuted “when the government forces an abortion on a
5 married couple.” In re S–L–L–, 24 I. & N. Dec. at 6; see also id. (“When the government
6 intervenes in the private affairs of a married couple to force an abortion or sterilization, it
7 persecutes the married couple as an entity.”). I see no reason why the BIA could not reasonably
8 conclude that one has suffered harm or injury sufficiently severe to constitute persecution when
9 one’s spouse is forced to undergo an abortion or sterilization. Indeed, this determination finds
10 support in the decisions of a number of courts that have explicitly recognized that non-physical
11 harm may support a finding of past persecution in at least some circumstances. See Junshao
12 Zhang, 434 F.3d at 1001 (rejecting explicitly the “notion that [a husband] suffers no persecution
13 independent of his wife, as the result of the forcible abortion of his child” and holding that
14 “[a]lthough his wife was certainly a very direct victim of China’s population control measures,
15 Zhang was a victim as well. The forcible abortion has deprived him of his unborn child, of the
16 ability to realize the family that his wife and he had desired, and forever deprived him of the
17 ability to become a parent to that unborn son or daughter with his wife”); see also Ouk v.
18 Gonzales, 464 F.3d 108, 111 (1st Cir. 2006) (noting that “[u]nder the right set of circumstances,
19 a finding of past persecution might rest on a showing of psychological harm” (quotation marks
20 omitted)); Mashiri v. Ashcroft, 383 F.3d 1112, 1120 (9th Cir. 2004) (“Persecution may be
21 emotional or psychological, as well as physical.”); Abay v. Ashcroft, 368 F.3d 634, 642 (6th Cir.
Because petitioner Dong, the only petitioner whose claim we address on this appeal,13
had not participated in a traditional marriage ceremony, I need not determine now whether theBIA’s rule would also be reasonable as applied to individuals who were not old enough to marryunder Chinese law and who participated in such a ceremony. Compare Junshao Zhang, 434F.3d at 999 (holding that the BIA rule is unreasonable in this context), and Kui Rong Ma, 361F.3d at 560 (same), with Cai Luan Chen, 381 F.3d at 231 (holding that the BIA rule isreasonable).
53
1 2004) (holding that the applicant was entitled to asylum “based on her fear that her daughter will
2 be forced to undergo female genital mutilation” because her “fear of . . . being forced to witness
3 the pain and suffering of her daughter is well-founded”).
4 The BIA also determined that there were not “convincing reasons to extend the nexus and
5 level of harm attributed to a husband who was opposed to his wife’s forced abortion to a
6 boyfriend or fiancé.” In re S–L–L–, 24 I. & N. Dec. at 9. Recognizing that “marriage place[s]13
7 the husband in a distinctly different position from that of an unmarried father,” id., the BIA noted
8 that unmarried fathers do not bear the same legal and societal responsibility for violations of
9 family planning policies. Indeed, because their relationships with their partners are not
10 registered with the government and may not even be known within the community, the
11 government may often be unaware of their identities. See id. at 9-10. The BIA thus presumed
12 that the family planning officials target legal spouses for persecution to a greater extent than
13 boyfriends and fiancés. See id. Furthermore, “[p]roof or presumption of paternity . . . may be
14 considerably more difficult when a boyfriend claims to have fathered a child who was forcibly
15 aborted by government officials.” Id. at 10. Although, as the BIA itself acknowledges,
16 “drawing the line at marriage is not” perfect, id. at 9, and reasonable policymakers could differ
17 as to how to draw the line, I cannot say that, under the deferential standard which guides us, the
Because petitioner Dong was not married and has not otherwise established his14
eligibility for asylum relief, I agree with the majority that his petition for review should bedenied. I also agree that the petitions of Lin and Zou should be dismissed.
The BIA, too, remains free to revisit its decision. Although Judge Calabresi suggests15
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 donot purport to offer an authoritative constructive of 8 U.S.C. § 1101(a)(42); I would hold onlythat the statute is ambiguous and that the BIA’s interpretation is reasonable. As Judge Calabresielsewhere acknowledges, id. at 2, the BIA may always change its own interpretation of statutorylaw, 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 adequatelyexplains the reasons for a reversal of policy, change is not invalidating, since the whole point ofChevron is to leave the discretion provided by the ambiguities of a statute with the implementingagency.” (quotation marks omitted)).
54
1 BIA’s reading is not based on a permissible construction of the statute. See Chevron, 467 U.S. at
2 843. If Congress disagrees with the BIA’s interpretation, it can overturn the decision. 14 15
3 This case presents difficult and challenging questions at the heart of our immigration
4 laws. How we respond will affect the hopes and dreams of human beings seeking to live in
5 freedom. In enacting the INA, Congress established a framework for determining when asylum
6 relief should be provided to such individuals, and in doing so, it delegated considerable authority
7 to the BIA to fill in statutory gaps and define the broad language used in the INA. It is in
8 situations such as these that we should be particularly mindful of the views of the agency
9 charged by Congress with administering the statute, views that will reflect the agency’s
10 considerable experience and expertise. We should recognize that in such circumstances what is
11 advanced as the obvious answer may not be the right one. Here, the meaning of the text
12 becomes much less clear when one examines context, and the BIA, recognizing that ambiguity,
13 has offered a reasonable interpretation of the statute. I would defer to that interpretation.
The majority claims to be perplexed by my concern that today’s decision reaches a1
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 theBIA’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, butrather the majority’s unnecessary but apparently pressing need to decide a question which thefacts of petitioners’ appeals simply do not present. Like Judge Katzmann, I engage the questionthe majority answers because I would be remiss in not voicing my profound disagreement withthe majority’s conclusions.
55
1 SOTOMAYOR, Circuit Judge, with whom Judge POOLER joins, concurring in the judgment:
2 Today’s decision marks an extraordinary and unwarranted departure from our
3 longstanding principles of deference and judicial restraint. Instead of answering the limited
4 question before us – whether the BIA’s denial of asylum to the unmarried partners of women
5 forced to undergo abortions or sterilization was unreasonable – the majority has chosen to go far
6 beyond it to address an issue that is unbriefed, unargued, and unnecessary to resolve this appeal.
7 Indeed, the cases before us, which involve only unmarried petitioners, are inappropriate vehicles
8 through which to opine on the merits of the BIA’s position with respect to spouses under
9 8 U.S.C. § 1101(a)(42). See Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.)1
10 (“The premise of our adversarial system is that appellate courts do not sit as self-directed boards
11 of legal inquiry and research, but essentially as arbiters of legal questions presented and argued
12 by the parties before them.”); see also Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 224 (1997)
13 (declining to reach question which received little or no attention from the parties and noting
14 “prudence dictates that we not decide this question based on such scant argumentation”).
15 Moreover, as Judge Katzmann’s concurrence, in which I fully join, cogently notes, today’s
16 holding simply ignores the context animating § 601’s enactment and further upends
56
1 congressional intent by reading the statute too narrowly. Section 601 was, after all, expressly
2 enacted to expand, not contract, the availability of asylum under § 1101(a)(42) in the context of
3 coercive population control programs.
4 I will not reiterate what Judge Katzmann has already ably stated. I write separately to
5 highlight the potentially ill-considered breadth of the majority opinion, which appears to cast
6 doubt on our own circuit’s caselaw, as well as to create further circuit conflicts when such
7 outcomes are easily avoided. Most importantly, however, I write because the majority’s zeal in
8 reaching a question not before us requires the unprecedented step of constricting the BIA’s
9 congressionally delegated powers – a decision whose ramifications we are ill-prepared, given the
10 procedural posture of this case, to understand or appreciate fully.
11 The majority analyzes § 601 within the broader framework of the INA and concludes that
12 “[n]othing in the general definition of refugee would permit ‘any person’ who has not personally
13 experienced persecution or a well-founded fear of future persecution . . . to obtain asylum.” Maj.
14 Op. at 17. Again, I agree fully with Judge Katzmann’s discussion of the fatal flaws in this
15 analysis, and I seek only to emphasize the majority’s apparent failure to appreciate that this
16 deceptively simple proposition may unduly and inappropriately limit the BIA not merely in cases
17 under § 601 but in others as well.
18 In coming to its conclusion, the majority endorses the view that “persecution” can only
19 be direct and personal, by which it appears to mean that the granting of asylum can never be
20 based on, in whole or in part, harm to others, no matter how closely related the harm or the
21 person harmed is to the applicant or whether harm to another is directed in whole or in part
In another portion of the majority opinion, the Court states “we conclude that the statutory2
scheme unambiguously dictates that applicants can become candidates for asylum relief onlybased on persecution that they themselves have suffered or must suffer.” Maj. Op. at 19. By thispronouncement, the opinion suggests that harm to others cannot form a part of the rationale forgranting asylum. I further agree with Judge Katzmann’s analysis of the majority’s misplaced reliance on 83
U.S.C. § 1158 to support its conclusion here.
57
1 toward the applicant. The majority tries to anchor this limiting principle to the text of the2
2 statute, but such a reading is unwarranted and unsupportable. It is pellucidly clear from the text
3 of § 1101(a)(42) that Congress did not define nor intend to define “persecution” to exclude
4 harms “not personally” suffered by an applicant. The statute instead reads that “any person”
5 who “because of persecution or a well-founded fear of persecution” is “unable or unwilling” to
6 return to his or her country is entitled to asylum. There is no indication whatsoever of how
7 personal or direct the harm or injury must be, only that persecution to an individual can merit
8 asylum protection. We should, moreover, eschew the limiting construction of § 601 and3
9 § 1101(a)(42) urged in today’s opinion because such a construction could lead to absurd results.
10 United States v. Dauray, 215 F.3d 257, 264 (2d Cir. 2000) (“A statute should be interpreted in a
11 way that avoids absurd results.”). If government officials shot and killed an asylum applicant’s
12 child to force him or her to convert to another religion, would that harm, which the majority
13 would ostensibly label “not personal,” be insufficient in itself to demonstrate persecution of that
14 applicant? Or what if the parent of an adult applicant was kidnapped and tortured to force the
15 applicant to renounce an opposition political party or endorse a government candidate? In the
16 end, I see no unambiguous language in the text of § 1101(a)(42) that compels the limiting
17 construction of the INA that the majority now divines.
I note that this and other circuits have found “persecution” to be an ambiguous term in other4
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” inthe 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 “doesnot define ‘persecution’ or specify what acts constitute persecution”).
58
1 Requiring an applicant’s eligibility for asylum to rest only on instances where he or she
2 suffers persecution “personally” merely begs the question of what personal harm is and how to
3 define it. As with any ambiguous statutory term, it is for the BIA to determine within its
4 expertise what exactly constitutes “persecution” so long as its interpretation is reasonable. 4
5 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984). From its
6 decision in In re S-L-L-, 24 I. & N. Dec. 1 (B.I.A. 2006), the BIA clearly construed
7 “persecution” as not only entailing the spouse forced to undergo the procedure but also including
8 the other spouse who, while physically unharmed, was nevertheless also targeted by the
9 government for punishment and persecution. The BIA reached this conclusion by utilizing its
10 traditional tests of nexus and level of harm, id. at 5, that is, by examining how the procedure
11 affected each spouse’s respective health and emotional well-being as well as the couple’s interest
12 in procreation and child-rearing. Perhaps most importantly of all, the BIA also considered to
13 whom the government’s actions were directed.
14 It is this last factor that is crucial. The majority concedes that both spouses suffer a
15 “profound emotional loss” as a result of a forced abortion or sterilization, but it never sufficiently
16 explains why the harm of sterilization or abortion constitutes persecution only for the person
17 who is forced to undergo such a procedure and not for that person’s spouse as well. Maj. Op. at
18 21. This conclusion rests on two principal conclusions, both equally flawed. First, the majority
59
1 clings to the notion that the persecution suffered is physically visited upon only one spouse, but
2 this simply ignores the question of whom exactly the government was seeking to persecute when
3 it acted. On this point, the harm is clearly directed at the couple who dared to continue an
4 unauthorized pregnancy in hopes of enlarging the family unit. Indeed, the majority’s conclusion
5 disregards the immutable fact that a desired pregnancy in a country with a coercive population
6 control program necessarily requires both spouses to occur, and that the state’s interference with
7 this fundamental right “may have subtle, farreaching and devastating effects” for both husband
8 and wife. See Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942). The
9 termination of a wanted pregnancy under a coercive population control program can only be
10 devastating to any couple, akin, no doubt, to the killing of a child. Similarly, as to sterilization,
11 the Ninth Circuit has aptly observed that:
12 In addition to the physical and psychological trauma that is common to many13 forms of persecution, sterilization involves drastic and emotionally painful14 consequences that are unending: The couple is forever denied a pro-creative life15 together. As the BIA explained,1617 The act of forced sterilization should not be viewed as a discrete onetime18 act, comparable to a term in prison, or an incident of severe beating or19 even torture. Coerced sterilization is better viewed as a permanent and20 continuing act of persecution that has deprived a couple of the natural21 fruits of conjugal life, and the society and comfort of the child or children22 that might eventually have been born to them.2324 Qili Qu v. Gonzales, 399 F.3d 1195, 1202 (9th Cir. 2005) (quoting In re Y-T-L-, 23 I. & N. Dec.
25 601, 607 (B.I.A. 2003)). Viewed in this light, the harm here is directed as much at the husband
26 as at the wife. By its action, after all, the state is preventing both members of the couple from
27 procreating as a unit, and as the BIA found in In re Y-T-L-, such harm is not limited in time to
The majority incorrectly asserts that the Third Circuit’s analysis in Sun Wen Chen is5
incongruent with my own analysis because the court there held that § 601(a) contains anambiguity. Maj. Op. at 16 n.7. The Third Circuit found that § 601(a) is ambivalent on thetreatment of spouses and that the existence of derivative asylum was not “intended to forecloseadditional pathways to asylum specific to spouses.” Sun Wen Chen, --- F.3d ---, 2007 WL1760658, at *4 (emphasis added); see also id. (“[W]e see nothing in the statute evincingCongressional intent to establish a particular policy regarding spousal eligibility.”). The ThirdCircuit then reasoned that because § 601(a) “establishes that forced abortion and sterilizationconstitute persecution,” id., it is entirely within the BIA’s authority to “interpret[] the scope ofthat persecution,” id., including its applicability to spouses. It is my contention that we shoulddefer 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 directand personal and that harm to another, even if directed at the applicant, is never sufficient for thepurposes of § 1101(a)(42). These analyses are not incongruent because they both center on thedeference we owe to the BIA on defining persecution.
The majority notes that its decision corrects the “perverse effect of creating incentives for6
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
1 the moment of sterilization, but is an ongoing harm that affects a married couple indefinitely. 23
2 I. & N. Dec. at 607. As the Third Circuit recently observed in Sun Wen Chen v. Attorney
3 General of the United States, --- F.3d ---, 2007 WL 1760658, at *5 (3d Cir. June 20, 2007), the
4 “persecution of one spouse can be one of the most potent and cruel ways of hurting the other
5 spouse.” In the end, I fail to understand how the majority can claim that the harm caused by a5
6 spouse’s forced abortion or sterilization is not a personal harm to both spouses – either or both of
7 whom can be sterilized for violations of the population control programs – especially given the
8 unique biological nature of pregnancy and special reverence every civilization has accorded to
9 child-rearing and parenthood in marriage. I similarly fail to understand how the majority
10 justifies limiting the BIA’s ability to take this special and egregious harm into consideration and
11 to determine within its expertise that such acts constitute persecution against both a wife and
12 husband. 6
fact, attempting to flee alone; he and his fiancée planned to leave China together but she wasunfortunately caught before she could escape. More importantly, however, the majority’sassertion 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. Wesimply have no foundation on which to conclude that all couples have the financial resources toescape at the same time, and as the government stated at oral argument, it is not uncommon forChinese couples to separate and have one spouse go abroad in order to amass the necessaryresources 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 orempirical evidence.
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1 Second, the majority argues that the BIA has impermissibly created an irrebuttable
2 presumption that relieves applicants from the statutory burden of proving that they have a well-
3 founded fear of persecution based on an impermissible nexus. As Judge Katzmann correctly
4 observes, however, the presumption argument is merely a red herring. In enacting § 601,
5 Congress was not creating a presumption but merely expanding the BIA’s unduly restrictive
6 definition in Matter of Chang of the terms “persecution” and “political opinion.” Thus, § 601
7 defined “persecution” and “political opinion” to include an individual’s forced abortion or
8 sterilization under a restrictive population control policy. No presumption was created, however,
9 as the applicant still bears the burden of establishing that he or she was subject to the conduct
10 that qualifies under this expanded definition of persecution. And, while the majority places great
11 weight on the fact that § 601 supposedly creates a presumption that “relieved only persons who
12 actually experienced a forcible abortion or sterilization from the burden of proving a political
13 nexus,” and not those married to such persons, Maj. Op. at 21, his conclusion ignores the clear
14 congressional intent of § 601, expressed in the legislative history, that
15 [n]othing in [§ 601] is intended to lower the evidentiary burden of proof for any16 alien, no matter how serious the nature of the claim. The Committee emphasizes17 that the burden of proof remains on the applicant, as in every other case, to18 establish by credible evidence that he or she has been subject to persecution-in
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1 this case, to coercive abortion or sterilization-or has a well-founded fear of such2 treatment. 34 H.R. Rep. No. 104-469(I), 1996 WL 168955, at *174 (1996). Quite simply, there is no way to
5 read in § 601 the presumption the majority discusses, nor a limitation on the BIA in extending
6 § 601’s reach to spouses. Either the persecution occurred or it did not, and the applicant retains
7 the burden of proving such circumstances. The BIA accordingly did not err in interpreting
8 ambiguous terms in the INA to determine that either spouse may qualify as a refugee where one
9 of them has in fact undergone forced abortion or sterilization.
10 Finally, if adopted, the majority’s limiting construction may have significant, unintended
11 consequences, broader than the Court today acknowledges. By claiming categorically that an
12 applicant cannot rely on the harm inflicted on others in § 601 cases – no matter how closely
13 related the harm or the person harmed is to the applicant or whether the harm is directed in
14 whole or in part towards the applicant – to establish persecution or entitlement to asylum, this
15 Court suggests that the BIA is precluded from ever considering harm to others as evidence of
16 persecution to the applicant. While I agree that there are certainly limits as to when harm to
17 another may inform persecution or a well-founded fear of persecution of an applicant, I cannot
18 endorse the majority’s apparent per se conclusion. As noted above, this is a question of statutory
19 construction properly answered by the BIA, which, in its administrative expertise, may interpret
20 the ambiguity inherent in “persecution” to determine when a harm is direct or personal enough to
21 be considered persecution of an applicant. And, in certain limited contexts pertinent to this
22 appeal, the BIA has done precisely this, examining the harm to family members in determining
23 whether an asylum applicant has in fact suffered past persecution, particularly where an
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1 immediate family member has been subjected to significant and enduring mistreatment. In
2 Matter of Chen, 20 I. & N. Dec. 16, 19-21 (B.I.A. 1989), the seminal BIA decision recognizing
3 the availability of humanitarian asylum for victims of severe past persecution, the BIA recited a
4 litany of horrific acts visited on and suffered by Chen’s parents during the Cultural Revolution,
5 and such evidence – when coupled with the Chinese government’s treatment of the petitioner
6 himself – supported the BIA’s conclusion that “the respondent has clearly established that he and
7 his family were severely persecuted in the past in China.” Id. at 21. Similarly, in In re H-, 21 I.
8 & N. Dec. 337, 345 (B.I.A. 1996), where an applicant had testified about the severe physical
9 beatings he had suffered as the member of a subclan in Somalia, the BIA based its finding of past
10 persecution in part on the applicant’s testimony that his father and brother, also members of the
11 same subclan, were beaten and killed. In examining the allegations concerning the deaths of his
12 father and brother, the BIA specifically noted that “evidence of treatment of persons similarly
13 situated is persuasive of an applicant’s claim of political persecution.” Id. at 345 (quoting Matter
14 of Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987)); see also In re N-M-A-, 22 I. & N. 312, 326
15 (B.I.A. 1998) (finding in the context of humanitarian asylum that the applicant had suffered past
16 persecution in part because of “the disappearance and likely death of his father”). The BIA has
17 thus identified specific situations in which the harm to close family members could be central to
18 the finding of persecution and the granting of refugee status. The majority’s misguided exercise
19 in statutory interpretation, however, undermines this agency determination and suggests that
20 because the years-long harassment and egregious mistreatment of Chen’s parents or the deaths of
The regulations governing the claims under the Convention Against Torture explicitly7
recognize that torture encompasses not only physical harm to the individual but also “mentalpain or suffering” that results from the threat of infliction of physical pain or suffering onanother person. See 8 C.F.R. § 1208.18(a)(4)(iv). By analogy, this regulation further supportsthe position that persecution is not limited to direct and physical harm upon an individual but canencompass 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 . . . .”).
The passing statement in a footnote in Melgar de Torres v. Reno, 191 F.3d 307, 313 n.2 (2d8
Cir. 1999), that the death of the applicant’s uncle did not constitute political persecution of her isnot to the contrary. As noted in Jorge-Tzoc, the petitioner in Melgar de Torres “was an adultwho offered no objective evidence that her uncle’s killing was politically motivated.” 435 F.3d at150. To the extent that Melgar de Torres suggested, furthermore, that even if the petitioner hadestablished the link between her uncle’s killing and his political activities, such killing couldthen 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-Tzoc9
and claims that nothing in today’s decision “preclude[s] the BIA from considering the totality ofcircumstances in any particular case to determine if an asylum applicant has carried his statutory
64
1 H-’s brother and father were “not personally experienced” by the applicants, neither Chen nor H-
2 could base their asylum applications on such harm after today’s decision. 7
3 The holding today also calls into question our own caselaw – as well that of other circuits
4 – in which appellate panels have recognized that harm inflicted upon one individual may give
5 rise to, or at least help establish, persecution of another in certain circumstances. In Jorge-Tzoc
6 v. Gonzales, 435 F.3d 146 (2d Cir. 2006) (per curiam), this Court, acknowledging that petitioner
7 had not been “victimized directly” when as a young boy, his sister and her family were killed for
8 their political activities, nevertheless remanded the case to the BIA for further proceedings to
9 determine whether his age, coupled with the harm to his family members, helped to establish
10 past persecution. Id. at 150 (internal quotation marks omitted). While the decision rested in8
11 great part on the petitioner’s age, this decision illustrates another category of asylum cases where
12 it might be appropriate to consider harm to others in determining past persecution. Similarly,9
burden.” Maj. Op. at 26 n.13. Yet, the majority fails to explain why the totality ofcircumstances may not be applied in the context of married couples who suffer under coercivepopulation control programs. If the BIA could consider the direct harm to Jorge-Tzoc’s familymembers in determining whether Jorge-Tzoc himself had been persecuted, it should be able toconsider the targeting of and effect on an individual when his or her spouse is forced to undergoan abortion or sterilization.
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1 other circuits have confronted situations where they found persecution relying in whole or in part
2 on harm to others in certain circumstances. In Sun Wen Chen, the Third Circuit upheld In re S-
3 L-L-, the very BIA determination the majority strikes down today, in part by acknowledging that
4 the physical harm to one’s spouse is nevertheless harm to both spouses in the family planning
5 context. --- F.3d ---, 2007 WL 1760658, at *5 (“In a great many cases, forced abortion or
6 involuntary sterilization of one spouse will directly affect the reproductive opportunities of the
7 other spouse . . . . And persecution of one spouse can be one of the most potent and cruel ways of
8 hurting the other spouse . . . .”). The Sixth Circuit in Abay v. Ashcroft, 368 F.3d 634, 642 (6th
9 Cir. 2004), determined that an applicant was entitled to asylum because she had fled Ethiopia
10 with her teenage daughter to protect the teenager from undergoing forced genital mutilation.
11 The Abay court specifically noted that derivative asylum under § 1158 was not available to Abay
12 – as she was neither a spouse nor a child of a persecuted individual – but granted her asylum,
13 observing that several oral IJ and BIA decisions “suggest a governing principle in favor of
14 refugee status in cases where a parent and protector is faced with exposing her child to the clear
15 risk of being subjected against her will to a practice that is a form of physical torture causing
16 grave and permanent harm.” Id. at 642.
17 Having carefully weighed the law and arguments presented in this appeal, I must concur
18 in the judgment for the reasons already stated ably by Judge Katzmann. I agree in particular
While I ultimately agree with Third Circuit’s recent pronouncement in Sun Wen Chen10
that the BIA properly interpreted an ambiguity in § 601 and § 1101(a)(42) to extend asylumprotection to spouses of individuals forced to abort pregnancies or undergo sterilization, SunWen 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 outlinedby then-Judge Alito in Cai Luan Chen.
Unlike my esteemed colleague Judge Calabresi, I do not find that the BIA limited its analysis11
to § 601 in In re S-L-L-, but rather was grounding its interpretation in both the specific languageof § 601 and the more general definition of “refugee” in § 1101(a)(42). Because the statute isambiguous, I would defer to the BIA’s interpretation here.
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1 with Judge Katzmann that the Third Circuit in Cai Luan Chen v. Ashcroft, 381 F.3d 221 (3d Cir.
2 2004) (Alito, J.), did what we should have done here. In that case, then-Judge Alito found no
3 need to reach the question of whether § 601 or § 1101(a)(42) were ambiguous because Chen,
4 who was not married to his fiancée on whom the forced abortion was performed, could prevail
5 only if the BIA’s distinction between married and unmarried couples was unreasonable. Id. at10
6 227. Judge Alito ultimately ruled that the distinction was reasonable and denied the petition. Id.
7 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
67
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.
68
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
69
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 family-
planning 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.
See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).1
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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. But once it is admitted that some1
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
71
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
72
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
The question of whether, as a matter of Chevron Step Two “reasonableness” review, the2
BIA could base its C-Y-Z- decision on § 1101(a)(42)(A), is arguably neither a pure question offact, nor of statutory interpretation. And the extent to which such mixed questions may beresolved by a Court of Appeals, without first remanding to the agency for its consideration, hasnot been clearly settled by the Supreme Court. Compare Thomas, 126 S. Ct. at 1615 (“[T]heproper course, except in rare circumstances, is to remand to the agency for additionalinvestigation or explanation.” (quoting Ventura, 537 U.S. at 16) (internal quotation marksomitted)) with id. (requiring remand, and observing that “[t]he matter requires determining thefacts 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 bythe BIA, and statutory issues, and reasoning that Ventura and Thomas were directed only towardfactual 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 — inconcluding that the Thomas-Ventura remand rule did not apply to the particular issue inquestion); Ucelo-Gomez, 464 F.3d at 170 (“[I]f a reviewing court can state with assuredconfidence (absent agency guidance as to its protectability under the INA) that a group would orwould not under any reasonable scenario qualify as a ‘particular social group,’ it need notremand, and may rule on the issue in the first instance.”).
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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, it should have remanded his case as a matter of wise2
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.”).
75
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
To cite just one of the many possibilities which the majority prematurely forecloses: had3
the BIA not relied on § 601(a)’s automatic persecution rule, but instead focused on the generalnotion 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 congressionalpolicy of keeping families together, and (b) extend asylum eligibility to individuals not alreadycovered by § 601(a)); but (2) that husbands who are legally married at the time of a wife’s forcedabortion, but who choose to leave their wives behind for good, are not.
I am mindful that the Supreme Court has cautioned that respect for the role and4
expertise of agencies does not “require that we convert judicial review of agency action into aping-pong game,” and that, therefore, remand is not required when it “would be an idle anduseless formality.” NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969); see also Li ZuGuan 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 idealclarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974); see also Motor Vehicle Mfrs. Ass’n v. StateFarm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (same).
But, regardless of whether these cases, which limit the necessity to remand, areunderstood to be “exceptions” to the Chenery and Ventura-Thomas requirements, or merely areflection of the deeper truth that formulaic statements cannot substitute for sound judgment inparticular cases, see Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 112 (2d Cir. 2006), itremains 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 considerthe general language of § 1101(a)(42)(A) in the first instance, in relation to spouses and partnersof 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, whilenot perfectly clear, can “reasonably be discerned”; nor is it a case in which the agency’s likelyresponse to a remand can be predicted with confidence. Rather, it is a case in which (1) the BIAhas not yet spoken — at all, and certainly not clearly — on § 1101(a)(42)(A)’s breadth in thisarea, and (2) our court has, unfortunately, chosen to make further inquiry impossible.
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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. In this respect, the majority opinion keeps the agency3
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
* * * *
77
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
78
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
79
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
80
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) moreprecisely 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 Actis an act of persecution against the other spouse’ and that, as a result, the spousesof those directly victimized by coercive family planning policies are per se aseligible for asylum as those directly victimized themselves; and (b) clarifywhether, when, and why boyfriends and fiancés may or may not similarly qualifyas 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
The “IIRIRA amendment” refers, of course, to § 601(a).5
81
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.
82
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
83
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 automatic-
eligibility 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
The majority, attempting to answer my opinion, says, at footnote 15, that remanding6
Zhen Hua Dong’s case to the BIA would be engaging in useless “ping pong.” With greatrespect, the majority in that footnote simply repeats its conflation of two quite separate things. Itis 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 tospouses under that section. But it has never been asked what the status of spouses or of peoplesituated 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 givenspouses per se persecutee status under § 1101(a)(42)(A). The majority holds that even if the BIAwere 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 reasonsindicated in Ventura and Thomas. It is not proper for appellate courts to speak for the BIA andto decide the validity of that “speech,” before the agency has had a full and focused opportunityto make its position clear. On § 1101(a)(42)(A), the agency has not yet had that opportunity. Itis not ping pong when only one player has been invited to the relevant table.
84
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
85
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.
69E.E.O.C. v. J.B. HUNT TRANSPORT, INC.Cite as 321 F.3d 69 (2nd Cir. 2003)
cal in directing that any lack of claritymust be resolved in favor of the insured.See Ferraiolo Const. Co., 584 A.2d at 609(‘‘Any ambiguity must be resolved in favorof a duty to defend.’’) (Maine law); Wil-kin Insulation Co., 161 Ill.Dec. 280, 578N.E.2d at 930 (‘‘All doubts and ambiguitiesmust be resolved in favor of the insured.’’)(Illinois law); Lime Tree Vill. Cmty. ClubAss’n, 980 F.2d at 1405 (‘‘If the allegationsof the complaint leave any doubt as to theduty to defend, the question must be re-solved in favor of the insured.’’) (Floridalaw). Regardless of which of the threestate’s laws applied, the potential for cov-erage existed at the time CI refused todefend Auto Europe. The duty to defendwas therefore ‘‘clear’’ and, accordingly, thedistrict court properly awarded attorney’sfees.
VI. Conclusion
The district court properly concludedthat this insurance coverage disputeshould be heard in Maine and resolvedpursuant to Maine law. Because CI’s dutyto defend was clear, the district courtproperly awarded attorney’s fees to AutoEurope.
The judgment of the district court istherefore affirmed.
,
EQUAL EMPLOYMENT OPPOR-TUNITY 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.
Equal Employment Opportunity Com-mission (EEOC) commenced action pursu-ant to the Americans with Disabilities Act(ADA), alleging that truckload motor carri-er violated the ADA by discriminatingagainst over-the-road truck drivers whoused certain prescription medications. Onparties’ cross-motions for summary judg-ment, the United States District Court forthe Northern District of New York, Nor-man A. Mordue, J., 128 F.Supp.2d 117,granted summary judgment in favor ofcarrier, and EEOC appealed. The Court ofAppeals, F.I. Parker, Circuit Judge, heldthat applicants perceived as unsuitable forposition of over-the-road truck driverswere not perceived as substantially limitedin major life activity of working, as wouldestablish ‘‘disability’’ under the ADA.
Affirmed.
Sotomayor, Circuit Judge, dissentedand filed opinion.
leaves some ambiguity on whether allegationsof intentional conduct eliminate the duty todefend pursuant to an intentional acts policyexclusion even when facts could be developedat trial to support judgment for the plaintiff
based on non-intentional conduct. See, e.g.,Applestein, 377 So.2d at 231 (holding thatallegations of malice and deliberate ‘‘ ‘attemptto discredit’ ’’ negated coverage).
70 321 FEDERAL REPORTER, 3d SERIES
1. Federal Courts O776, 802
The Court of Appeals reviews a dis-trict court’s grant of summary judgmentde novo, construing the evidence presentedbelow in the light most favorable to thenon-moving party.
2. Federal Courts O759.1, 766
While the Court of Appeals may af-firm a district court’s grant of summaryjudgment on any ground with adequatesupport in the record, it may not affirmsummary judgment where any evidence inthe record would support a reasonable in-ference in favor of the opposing party.
3. Civil Rights O173.1
Applicants’ perceived unsuitability forposition of over-the-road truck drivers,based on their use of prescription medi-cations with side effects that could impairdriving ability, was not a perceived inabili-ty to perform broad range or class of jobs,but rather was limitation on particular jobwithin larger group of jobs, and thus appli-cants failed to establish that they wereperceived as substantially limited in majorlife activity of working, as would establish‘‘disability’’ under the ADA. Americanswith Disabilities Act of 1990, § 3(2), 42U.S.C.A. § 12102(2); 29 C.F.R.§ 1630.2(j)(3)(i).
4. Civil Rights O173.1
Truckload motor carrier did not viewapplicants who were perceived unsuitablefor position of over-the-road truck driversbased on their use of prescription medi-cations with side effects that could impairdriving ability as unable to drive anytrucks, so as to regard them as disabledwithin meaning of ADA, but rather per-ceived applicants as unfit to perform spe-cific job of long-distance, freight-carrying,tractor-trailer driving. Americans withDisabilities 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 thanultimate hiring authorities suggesting thatcertain applicants for position of over-the-road truck drivers were not suited to anyform of professional driving, based on theiruse of prescription medications with sideeffects that could impair driving ability,were not sufficient to indicate that truck-load motor carrier thought applicants weremore broadly limited in major life activityof working, so as to regard them as dis-abled within meaning of ADA, where carri-er had its own safety requirements aboveand beyond those of federal standards, andit did hire some applicants on medicationsat issue. Americans with Disabilities Actof 1990, § 3(2), 42 U.S.C.A. § 12102(2); 29C.F.R. § 1630.2(j)(3)(i).
6. Civil Rights O173.1
A finding of perceived disability, forpurposes of a discrimination action underthe ADA, may not rest merely on a singleemployer’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 ac-tion under the ADA, courts will not pre-sume a mistaken assumption of disabilitybased only on an employer’s decision notto hire certain candidates. Americanswith 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 truckdriver positions who suffered from condi-tions treated with prescription medicationswith side effects that could impair drivingability were not regarded as substantiallylimited in major life activity of workingbased on underlying condition itself, aswould establish ‘‘disability’’ under theADA; rather, employer perceived appli-
71E.E.O.C. v. J.B. HUNT TRANSPORT, INC.Cite as 321 F.3d 69 (2nd Cir. 2003)
cants as unfit for positions based on use ofmedications 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 Em-ployment Commission (Nicholas M. Inzeo,Acting Deputy General Counsel, Philip B.Sklover, Associate General Counsel, Vin-cent J. Blackwood, Assistant GeneralCounsel, on brief), for Plaintiff–Appellant.
James H. Hanson, Scopelitis, Garvin,Light & Hanson, Indianapolis, IN (LaurieT. Baulig, Scopelitis, Garvin, Light & Han-son, Washington, DC, Thomas J. Grooms,Bond Schoeneck & King, Syracuse, NY, onbrief), for Defendant–Appellee.
Before: JACOBS, F.I. PARKER,SOTOMAYOR, Circuit Judges.
F.I. PARKER, Circuit Judge.
J.B. Hunt Transport, Inc. chose not toemploy over-the-road truck drivers whoused prescription medications with side ef-fects that might impair driving ability.The Equal Employment Opportunity Com-mission argued that under the Americanswith Disabilities Act, Hunt’s decision vio-lated the rights of job applicants usingthose medications. We disagree.
I.
Plaintiff–Appellant Equal EmploymentOpportunity Commission (‘‘EEOC’’) ap-peals from the February 8, 2001 decisionof the United States District Court for theNorthern District of New York (NormanA. Mordue, Judge ) granting defendantJ.B. Hunt Transport Inc.’s (‘‘Hunt’’ ’s) mo-tion for summary judgment and denyingplaintiff EEOC’s cross-motion for sum-mary judgment. The district court found
that the applicants in question had beendenied over-the-road driving positions withHunt because of their use of medicationswith potentially harmful side effects, andnot as a result of an actual or perceiveddisability or a record of disability as con-templated by the Americans with Disabili-ties Act of 1990, 42 U.S.C. § 12101, et seq.(‘‘ADA’’). On appeal, the EEOC arguesexclusively that Hunt regarded the reject-ed applicants as disabled, i.e., substantiallylimited from a major life activity, as de-fined by 42 U.S.C. § 12102(2)(C) becauseof their use of certain medications. Be-cause we find that Hunt did not regard theapplicants as disabled as defined by theADA, we affirm the decision of the districtcourt.
II.
J.B. Hunt Transportation, Inc. (‘‘Hunt’’)is the nation’s largest publicly held motorcarrier company. Hunt operates for-hireproperty transport services in the forty-eight contiguous states, the District of Co-lumbia, Canada, and Mexico. Its fleet in-cludes 8,000 tractors, and it employs ap-proximately 12,000 individuals to drive thetrucks. Of these employees, approximate-ly 10,000 are the over-the-road (‘‘OTR’’)drivers whose positions are at issue in thiscase. These OTR drivers operate vehiclesweighing approximately 80,000 poundsover irregular routes under particularlydifficult work conditions, including sleepdeprivation, 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 andvibrations. According to Hunt, the largevehicle size and extreme driving conditionsfaced by its OTR drivers warrant height-ened safety evaluations of those OTR driv-ers.
72 321 FEDERAL REPORTER, 3d SERIES
Like other motor carriers, Hunt is sub-ject to federal regulation under the De-partment of Transportation’s Federal Mo-tor Carrier Safety Act Regulations(‘‘FMCSAR’’). 49 C.F.R. § 301, et seq.(2001). These regulations establish mini-mum qualifications for any person drivinga commercial motor vehicle, as well asminimum duties for motor carriers usingOTR drivers. The regulations specificallyallow an operator to require and enforce‘‘more stringent requirements relating tosafety of operation and employee safetyand health’’, 49 C.F.R. § 390.3(d), and re-quire operators to restrict drivers fromoperating vehicles ‘‘while the driver’s abili-ty or alertness is so impaired, or so likelyto become impaired, through fatigue, ill-ness, or any other cause, as to make itunsafe for him/her to begin or continue tooperate the commercial motor vehicle.’’ Id.at § 392.3 (2001). A motor carrier is re-quired to ensure that drivers do not oper-ate unless they are in compliance with theDOT regulations. 49 C.F.R. §§ 391.11,392.3, 392.4(b)(2001).
A. The Drug Review List
Between September 1993 and May1994, in an effort to comply with theFMCSAR in its hiring processes, Huntcreated a Drug Review List (‘‘DRL’’) ofmedications known to have side effectsthat might impair driving ability. Thelist, thirty-seven pages in length and in-cluding over 836 medications, was com-piled by Hunt’s Safety Department Di-rector of Compliance, David Whiteside
(‘‘Whiteside’’), based entirely on notationsin the 1993 edition of the Physician’s DeskReference (‘‘PDR’’). Whiteside dividedthe DRL into six columns labeled ‘‘name,’’‘‘class,’’ ‘‘comment,’’ ‘‘restriction,’’ ‘‘treats,’’and ‘‘1993 PDR page number.’’ In the‘‘restriction’’ column, Whiteside indicatedthe impact a particular drug might haveon an applicant’s eligibility. Whitesidedesignated five categories of restrictions:‘‘Rule Out Side [E]ffects,’’ ‘‘Not Permit-ted,’’ ‘‘Unsafe [E]ffects,’’ ‘‘Heart Condi-tion,’’ and ‘‘Disqualifying Condition.’’ 1 Anapplicant whose medication had a ‘‘RuleOut Side Effects’’ notation was required toobtain a release from the prescribing doc-tor certifying that the applicant couldsafely drive a tractor trailer truck whileusing the medication. An applicant takinga ‘‘Not Permitted,’’ ‘‘Unsafe Effects,’’‘‘Disqualifying Condition,’’ or ‘‘Heart Con-dition’’ medication could not drive forHunt while using the indicated medi-cation.2 The notation ‘‘Unsafe Effects’’ in-dicated either that the PDR cautionedusers against operating heavy equipmentor driving automobiles while taking thedrug (noted as ‘‘warning on driving’’ in thecomment column) or that the drug causeddrowsiness, sedation, or a high incidenceof dizziness. A ‘‘Rule Out Side Effects’’notation indicated that a medication couldcause side effects similar to, but less per-vasive than, those warranting an ‘‘UnsafeEffects’’ label. Finally, ‘‘Heart Condition’’indicated that the medication was general-ly used for heart problems that could dis-qualify drivers under DOT regulations.
1. The Court will use the corrected labels‘‘Rule Out Side Effects’’ for ‘‘Rule Out SideAffects’’ and ‘‘Unsafe Effects’’ for ‘‘Unsafe Af-fects’’ throughout the opinion.
2. The district court found that Whiteside mis-takenly believed that the DOT prohibiteddrivers from using any Schedule II–V medi-cations, rather than only Schedule I medi-cations, and that he therefore included all of
these medications in the ‘‘Not Permitted’’ cat-egory. Equal Employment OpportunityComm’n v. J.B. Hunt Transp., Inc., 128F.Supp.2d 117, 120 n. 2 (N.D.N.Y.2001); see49 C.F.R. § 391.42(b)(12)(i) (prohibiting useof Schedule I drugs, amphetamines, narcot-ics, and other habit-forming drugs); 49C.F.R. § 392.2 (same).
73E.E.O.C. v. J.B. HUNT TRANSPORT, INC.Cite as 321 F.3d 69 (2nd Cir. 2003)
B. The Hunt Hiring Process
Upon receiving an application for a com-mercial driving position, Hunt forwardedthe application to its Corporate DriverPersonnel Department in Lowell, Arkan-sas for screening of motor vehicle, crimi-nal, and prior employment records and fora review of listed references. If an appli-cant passed this first level of screening andreceived a conditional employment offer,the applicant underwent medical screen-ing, including questioning regarding theapplicant’s use of prescription medicationfor the last five years. Hunt used non-medical personnel to conduct these screen-ings. If the applicant indicated use of aprescription drug, the reviewing employeeconsulted Hunt’s medical guidelines 3 andthe DRL to determine the applicant’s med-ical eligibility.
C. The EEOC Claim
EEOC claims that Hunt improperly re-jected 546 applicants in violation of theADA on the basis of a ‘‘blanket’’ exclusion-ary policy. EEOC admits, however, thatHunt hired several applicants who wereusing drugs prohibited under the DRL—in1995, two applicants using drugs labeled‘‘Disqualifying Condition’’ and eleven usingdrugs labeled ‘‘Unsafe Effects,’’ and in1996 and 1997, one applicant taking a ‘‘Dis-qualifying Condition’’ drug and thirteenusing drugs with ‘‘Unsafe Effects.’’ Priorto commencing work, each of these newemployees provided Hunt with medicaldocumentation from a treating physicianor health care provider certifying that heor she did not suffer from the potentiallyproblematic side effects and could operatea truck safely while taking the drug.
III.
EEOC filed its complaint in the UnitedStates District Court for the NorthernDistrict of New York on October 24, 1997.Both sides moved for summary judgment.EEOC alleged that Hunt violated the ADAby discriminating against individuals withdisabilities or ‘‘perceived’’ disabilities.Hunt alleged that the DRL was a safety-related qualification standard addressingserious business concerns. The districtcourt granted summary judgment forHunt and denied EEOC’s summary judg-ment motion based on (1) its conclusionthat ADA protections did not extend to theexcluded driver-applicants because the ap-plicants were not, by virtue of their use ofcertain medications, disabled within themeaning of the ADA, and (2) its findingthat the EEOC had failed to contradictHunt’s assertion that its use of the DRLas a safety measure was reasonable withinDOT guidelines. Equal Employment Op-portunity Comm’n. v. J.B. Hunt Transp.,Inc., 128 F.Supp.2d 117, 135–36 (N.D.N.Y.2001). On appeal, EEOC abandoned itsargument that the excluded applicantswere ‘‘disabled’’ under the ADA, claimingonly that the district court erred by grant-ing summary judgment to Hunt when theevidence supported the conclusion thatHunt regarded the applicants as disabledbecause of their use of medications on theDRL.
IV.
[1, 2] We review a district court’sgrant of summary judgment de novo, con-struing the evidence presented below inthe light most favorable to the non-movingparty. Manning v. Utils. Mut. Ins. Co.,254 F.3d 387, 391 (2d Cir.2001). While
3. As the district court found, Hunt maintaineda restrictive policy on the use of drugs forpsychological conditions separate from theDRL. An applicant was not eligible to drive
for Hunt unless he or she had been off suchdrugs for at least thirty days before commenc-ing work. Hunt Medical Guidelines, April 11,1996.
74 321 FEDERAL REPORTER, 3d SERIES
this Court may affirm on any ground withadequate support in the record, we maynot affirm summary judgment where anyevidence in the record would support areasonable inference in favor of the oppos-ing party. See McCarthy v. Am. Int’lGroup, Inc., 283 F.3d 121, 124 (2d Cir.2002); VKK Corp. v. Nat’l FootballLeague, 244 F.3d 114, 119 (2d Cir.2001).
A. The Statutory Framework and theDefinition of ‘‘Disability.’’
The ADA provides a deceptively simpledefinition of disability:
The term ‘‘disability’’ means, with re-spect to an individual—
(A) a physical or mental impairmentthat substantially limits one or moreof the major life activities of suchindividual;(B) a record of such an impairment;or(C) being regarded as having such animpairment.
42 U.S.C. § 12102(2)(1995). EEOC regu-lations further develop this definition, ex-plaining ‘‘physical or mental impairment’’as:
(1) Any physiological disorder, or condi-tion, cosmetic disfigurement, or anatomi-cal loss affecting one or more of thefollowing 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 disor-der, such as mental retardation, organicbrain syndrome, emotional or mental ill-ness, and specific learning disabilities.
29 C.F.R. § 1630.2(h) (2001).
Although EEOC initially challengedHunt’s reliance on the DRL under allthree prongs of the statutory definition of
‘‘disability,’’ on appeal, EEOC alleges onlythat the rejected OTR driver applicantswere ‘‘regarded as’’ disabled by Huntbased on their use of certain medications,invoking the statutory definition of disabil-ity under § 12102(2)(C). As the SupremeCourt explained in Sutton v. United AirLines, Inc., ‘‘[t]here are two apparentways in which individuals may fall withinthis [§ 12102(2)(C) ] statutory definition:(1) a covered entity mistakenly believesthat a person has a physical impairmentthat substantially limits one or more majorlife activities, or (2) a covered entity mis-takenly believes that an actual, nonlimitingimpairment substantially limits one ormore major life activities.’’ 527 U.S. 471,489, 119 S.Ct. 2139, 144 L.Ed.2d 450(1999).
Evaluating the evidence before the dis-trict court, this Court agrees with thecourt below that EEOC failed to put forthevidence sufficient to demonstrate that therejected applicants were ‘‘disabled’’ withinthe meaning of the ADA. Specifically,EEOC failed to set forth evidence suffi-cient to establish that Hunt perceived re-jected applicants as substantially limited intheir ability to perform a major life activi-ty.
B. The Evidence Is Insufficient ToSupport the Inference that HuntRegarded Applicants as Having a‘‘Substantial Limitation’’ on a ‘‘Ma-jor Life Activity.’’
To qualify for ADA protections, a per-son’s ‘‘impairment’’ must ‘‘substantiallylimit’’ a ‘‘major life activit[y].’’ 42 U.S.C.§ 12102(2). Major life activities may in-clude ‘‘caring for oneself, performing man-ual tasks, walking, seeing, hearing, speak-ing, breathing, learning,’’ and, pertinent tothis appeal, ‘‘working.’’ 29 C.F.R.§ 1630.2(i). An activity is ‘‘substantiallylimited’’ when an individual cannot per-
75E.E.O.C. v. J.B. HUNT TRANSPORT, INC.Cite as 321 F.3d 69 (2nd Cir. 2003)
form the activity that an average person inthe general population could perform orfaces significant restrictions in the ‘‘condi-tion, manner, or duration under which theindividual can TTT perform [the] activity.’’29 C.F.R. § 1630.2(j)(i)-(ii). The activityof ‘‘working’’ is further defined by theregulations as follows:
With respect to the major life activity ofworking—(i) The term substantially limits meanssignificantly restricted in the ability toperform either a class of jobs or a broadrange of jobs in various classes as com-pared to the average person having com-parable training, skills and abilities.The inability to perform a single, partic-ular job does not constitute a substantiallimitation in the major life activity ofworking.
29 C.F.R. § 1630.2(j)(3)(i). Thus, unlessHunt perceived the applicants in questionas limited from a class of jobs or a broadrange of jobs, the EEOC’s claim must fail.
1. Driving 40–Ton, 18–Wheel TrucksOver Long Distances for ExtendedPeriods is Neither a ‘‘Class of Job’’nor a ‘‘Broad Range of Jobs’’ Withinthe Meaning of the ADA.
[3] Driving freight-carrying tractor-trailer trucks over long distances for ex-tended periods of time is neither a ‘‘classof jobs’’ nor a ‘‘broad range of jobs,’’ as theEEOC alleges, but rather a specific jobwith specific requirements. Such a posi-tion requires specific abilities, especiallythe ability to stay alert over long hoursunder difficult conditions. A Hunt OTRdriver’s alertness cannot flag. He or shemust be able to stay alert and withstandthe mesmerizing affect of driving an eigh-teen-wheel vehicle for hours at a stretch,sometimes at night, with continuous vibra-tion over long distances. Given these de-manding requirements, the fact that onemay not be able to perform the specific job
of a Hunt OTR driver does not mean thatone could not successfully engage in othertypes of truck driving, let alone in otherkinds of safety-sensitive work.
In Sutton, the Supreme Court consid-ered the claims of pilots who had beendenied positions as ‘‘global pilots’’ withUnited Airlines. The Supreme Court heldthat the position of ‘‘global pilot’’ was ‘‘asingle job’’ and, therefore, was not suffi-ciently broad to satisfy the ‘‘major lifeactivity requirement’’. Sutton, 527 U.S. at493, 119 S.Ct. 2139. The Court reasonedthat ‘‘there are a number of other positionsutilizing petitioners’ skills, such as regionalpilot and pilot instructor to name a few.’’Id.
Like the limitation that United Airlinesplaced on global airline pilots in Sutton,the limitation that Hunt placed on appli-cants for the position of OTR driver was alimitation on a particular job within a larg-er group of jobs, and not a substantiallimitation on working. See Baulos v.Roadway Express, Inc., 139 F.3d 1147,-1154 (7th Cir.1998) (driving sleeper trucksis a specific job within the broader class oftruck driving jobs). Therefore, the appli-cants’ perceived unsuitability for the posi-tion of OTR driver cannot be characterizedas a perceived inability to perform a broadrange or a class of jobs. This is true evenassuming that truck-driving in general is asufficiently broad range or class of jobs toconstitute a ‘‘major life activity’’, an issuewe do not need to reach. As the dissentreadily acknowledges, persons licensed todrive the types of vehicles driven by HuntOTR 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 per-ceived applicants rejected under the DRLas substantially limited in a major life ac-
76 321 FEDERAL REPORTER, 3d SERIES
tivity, the EEOC must show that Huntviewed such applicants as limited from abroader range or class of jobs than merelyOTR positions at Hunt.
2. The Evidence Is Not Sufficient ToSupport a Reasonable Inference thatHunt Regarded Applicants RejectedUnder the ‘‘Not Permitted’’ and‘‘Unsafe Effects’’ Categories as Sub-stantially Limited in a Broad Rangeor Class of Jobs.
[4] The EEOC argues that Hunt re-garded applicants who took particularmedications as incapable of driving trucks,which according to the EEOC constituteseither a ‘‘class of jobs’’ or a ‘‘broad rangeof jobs.’’ The record, however, only showsthat Hunt saw the applicants as unfit toperform a job for which they were seekingapplicants: long-distance, freight-carrying,tractor-trailer driving. The SupremeCourt has clearly stated that ‘‘[t]he inabili-ty to perform a single, particular job,’’however, ‘‘does not constitute a substantiallimitation in the major life activity of work-ing.’’ Sutton v. United Air Lines, Inc.,527 U.S. 471, 493, 119 S.Ct. 2139, 144L.Ed.2d 450 (1999). Here, Hunt dismissedthe applicants as unable to meet Hunt’sown safety requirements—requirementsabove and beyond the DOT’s industry-widestandards and unique from the require-ments of other trucking companies. SeeCompl. ¶ 8c; Def.’s Statement of MaterialFacts at 7; see also Adair Dep. at 85–86;J.B. Hunt Transp., Inc., 128 F.Supp.2d at129 n. 17 (noting drivers were employed byother trucking companies while takingsame medications).
The evidence suggests that Hunt foundthe applicants unsuited for long-distancedriving of Hunt’s 40–ton trucks on irregu-lar, stressful schedules, but does not indi-cate that Hunt perceived the applicants asmore broadly limited. The fact that Hunt
did not have another, less demanding driv-ing position to offer the candidates doesnot indicate that Hunt perceived the candi-dates as being unqualified for any drivingposition at all. Giordano v. City of NewYork, 274 F.3d 740, 748–50 (2d Cir.2001)(finding inability of the New York PoliceDepartment to offer light duty, non-patrolposition to officer taking anti-coagulationmedication did not demonstrate that offi-cer was substantially limited in workingwhere other security and law enforcementjobs in the area had such positions); seealso Baulos v. Roadway Express Inc., 139F.3d 1147, 1154 (2d Cir.1998) (concludingthat truck drivers unable to operate sleep-er trucks did not show that they wereregarded as disabled where employer didnot offer them less demanding, non-over-night positions that were taken by driverswith more seniority).
[5] EEOC references a few commentsfrom Hunt’s evaluators to candidates sug-gesting that certain candidates were notsuited to any form of professional driving.These comments, made by people otherthan the ultimate hiring authorities, simplyare not sufficient to indicate that Huntthought the applicants were more broadlylimited given the heightened nature ofHunt’s standards and the fact that Huntdid hire some applicants on DRL medi-cations. Although a few evaluators’ com-ments could be more broadly interpreted,there is no evidence that Hunt’s reviewers,relying on Hunt’s own DRL and drug liststo make a judgment on qualification for aposition at Hunt, intended to make anevaluation beyond Hunt’s specific guide-lines. Nor is there sufficient evidence tosupport a finding that Hunt viewed thedriving limitation as extending beyondHunt. Furthermore, as the Supreme Courthas clearly stated, ‘‘[i]t is not enough tosay that if the physical criteria of a singleemployer were imputed to all similar em-
77E.E.O.C. v. J.B. HUNT TRANSPORT, INC.Cite as 321 F.3d 69 (2nd Cir. 2003)
ployers one would be regarded as substan-tially limited in the major life activity ofworking only as a result of this imputa-tion.’’ Sutton, 527 U.S. at 493, 119 S.Ct.2139.
[6] In short, EEOC demonstrated onlythat Hunt refused to hire certain appli-cants according to its own hiring criteria;however, a finding of perceived disabilitymay not rest merely on a single employer’sfailure to hire a candidate. Baulos, 139F.3d at 1154 (‘‘Courts have uniformly heldthat an employer does not necessarily re-gard an employee as handicapped simplyby finding the employee to be incapable ofsatisfying the singular demands of a par-ticular job.’’ (internal citation omitted)).
[7] Thus, we affirm the district court’sgrant of summary judgment in favor ofHunt as to the applicants rejected under atleast the ‘‘Not Permitted’’ and ‘‘UnsafeEffects’’ categories because EEOC hasfailed to demonstrate that Hunt mistaken-ly perceived that the rejected applicants’had impairments that substantially limiteda ‘‘major life activity.’’ Accordingly,EEOC has failed to show that the appli-cants were ‘‘disabled’’ within the meaningof the ADA. In so holding, we emphasizethat this Court will not presume a mistak-en assumption of disability based only on
an employer’s decision not to hire certaincandidates.
3. The Evidence Is Also Not SufficientTo Support a Reasonable Inferencethat Hunt Regarded Applicants Re-jected Under the ‘‘DisqualifyingCondition’’ and ‘‘Heart Condition’’Categories as Substantially Limitedin a Broad Range or Class of Jobs.
As noted above, two of the categories inthe DRL appear, at least superficially, torefer to the condition causing the relianceon a DRL drug, not merely the applicants’use of a DRL medication.4 Although theevidence suggests that these applicantswere, like those in the other categories,often told that they were disqualified onthe basis of the drug they were usingrather than on the basis of the conditionsupporting their use of the drug, we brief-ly consider whether applicants using drugsfrom these two categories warrant a differ-ent legal conclusion. We conclude thatthey do not.
[8] Individuals suffering from the con-ditions treated with the ‘‘Heart Condition’’or ‘‘Disqualifying Condition’’ drugs are po-tentially explicitly barred from truck driv-ing by 49 C.F.R. § 391.41.5 Hunt therefore
4. As noted in the discussion of the pertinentfacts, the DRL contained five categories ofdrugs: ‘‘Rule out Side Effects,’’ ‘‘Not Permit-ted,’’ ‘‘Unsafe Effects,’’ ‘‘Heart Condition,’’and ‘‘Disqualifying Condition.’’ The EEOCdoes not represent in this appeal any appli-cants rejected under the ‘‘Rule Out Side Ef-fects’’ category, thus removing that categoryfrom our consideration. J.B. Hunt Transp.,Inc., 128 F.Supp.2d at 122, n. 7.
5. Review of the DRL reveals that the label‘‘Disqualifying Condition’’ attached to drugstreating Parkinson’s Disease, serious arryth-mia, alcoholism, epilepsy, seizure, migraines,dementia, depression, schizophrenia, diabe-tes, severe arthritis, severe hypertension, opi-ate addiction, subarachnoid hemorrhage, ar-
tery occlusion, and severe headache, whilethe label ‘‘Heart Condition’’ attached to medi-cines treating heart failure, thrombosis, ede-ma, congestive heart failure, ischemia, andventric arrythmia. 49 C.F.R. § 391.41 ap-pears to exclude persons with all of theseconditions from driving a commercial vehiclewhere those conditions are likely to interferewith their ability to safely drive a commercialvehicle. 49 C.F.R. §§ 391.41(b)(3) (diabetes),391.41(b)(4) (‘‘myocardial infarction, anginapectoris, coronary insufficiency, thrombosis,or any other cardiovascular disease of a vari-ety known to be accompanied by syncope,dyspnea, collapse or congestive heart fail-ure’’), 391.41(b)(6) (high blood pressure),391.41(b)(7) (‘‘rheumatic, arthritic, orthope-dic, muscular, neuromuscular, or vascular
78 321 FEDERAL REPORTER, 3d SERIES
potentially regarded applicants using thesedrugs as substantially limited not justfrom driving Hunt vehicles according tothe rules of the DRL and other companyregulations, but as prevented from drivinglegally for any commercial trucking com-pany. As with the other categories in theDRL, however, the restrictions on themedications labeled ‘‘Disqualifying Condi-tion’’ or ‘‘Heart Condition’’ were placed onapplicants taking the drug, not on appli-cants with the underlying condition itself.Even though in some cases, the company,under 49 C.F.R. § 391.41, could have cre-ated a policy excluding the applicant onthe basis of the underlying condition, thebasis for the exclusion from employmentwas the use of a listed drug, not anypotential ‘‘disability’’ created by the treat-ed disease.6
We conclude, therefore, that any claimsarising under the ‘‘Heart Condition’’ and‘‘Disqualifying Condition’’ categories arenot distinguishable from the claims underthe ‘‘Not Permitted’’ and ‘‘Unsafe Effects’’categories and so they must also fail.
V.
Although Hunt admittedly rejected theapplicants for its OTR driving positionsbecause of their use of certain prescriptionmedications, the EEOC cannot succeed inits ADA claim on behalf the rejected appli-cants. The record only shows that Huntregarded the applicants in question as ine-ligible for a specific position within Hunt,not that Hunt regarded them as ‘‘disabled’’within the meaning of the ADA. The appli-cants, through the EEOC, therefore do nothave a valid ADA claim.
For the reasons set forth above, thisCourt affirms the district court’s grant ofsummary judgment to defendant Hunt andits denial of the cross-motion by plaintiffEEOC.
The judgment of the district court isAFFIRMED.
SOTOMAYOR, Circuit Judge,dissenting.
This case is quite straightforward.Based upon a list of drugs and their poten-
disease’’), 391.41(b)(8) (epilepsy or ‘‘any othercondition which is likely to cause loss of con-sciousness’’), 391.41(b)(9) (‘‘mental, nervous,organic, or functional disease or psychiatricdisorder’’), 391.41(b)(12)(i) (controlled sub-stances), 391.41(b)(13) (alcoholism). ‘‘Mi-granes’’ or ‘‘severe headaches,’’ as ‘‘vascularheadache[s],’’ DORLAND’S ILLUSTRATEDMEDICAL DICTIONARY 1042 (28thed.1994), potentially fall within§ 391.41(b)(7)’s restriction on vascular dis-ease.
EEOC alleged that Hunt misinterpreted aDOT report cautioning about the effects ofdrugs used to treat heart conditions, claimingthat the report merely required individual as-sessment of each patient. The DOT subse-quently issued a report clarifying that the useof Coumadin, a anticoagulator previouslyquestioned, was not automatically disqualify-ing. J.B. Hunt Transp., Inc., 128 F.Supp.2dat 120 n. 3 (describing reports). According tothe DRL, however, Coumadin treats thrombo-sis, a condition specifically prohibited by the
current regulations. See 49 C.F.R.§ 391.41(b)(4).
6. For example, Amandtadine Hydrochloride,a drug to which the ‘‘Disqualifying Condi-tion’’ label attaches treats both Parkinson’sDisease and the flu. While an applicant tak-ing the drug for Parkinson’s might be dis-abled on the basis of the disease within themeaning of the ADA, an applicant using thedrug for the flu would not likely so qualify.Hunt, however, would have excluded eitherapplicant because of the drug usage. Fur-thermore, some ‘‘Disqualifying Condition’’drugs treat the same underlying diseases asdrugs given other labels. For example Zoloft,a drug used for treatment of, inter alia, de-pression, is listed as ‘‘Unsafe Effects,’’ whileProzac, also for depression, is listed as ‘‘Dis-qualifying Condition.’’ This further supportsthe idea that the drug, not the condition itself,was the true basis of Hunt’s hiring ban.
79E.E.O.C. v. J.B. HUNT TRANSPORT, INC.Cite as 321 F.3d 69 (2nd Cir. 2003)
tial side effects compiled by David White-side, a Hunt employee with no medicaltraining, and a Medical Guidelines policydeveloped by Michael Gray, a former RedLobster cashier with no medical trainingwho was, nevertheless, Hunt’s Medical Ad-visor, Hunt determined that certain appli-cants were unfit to be truck drivers. TheEEOC has provided substantial evidencethat Hunt believed that these individualswere unfit to drive a truck, or, for thatmatter, to drive at all and were incapableof performing the broad class of jobs thatfall under the classification ‘‘truck driving.’’Based upon this showing, I would vacatethe district court’s grant of summary judg-ment and hold that there is a genuinedispute of material fact with respect towhether the EEOC has established a pri-ma facie case of disability discrimination.I therefore respectfully dissent.
I agree with the majority that the issuein this appeal is whether the applicantswere denied truck driving positions atHunt because of their perceived disabilitywithin the meaning of the ADA. Ignoringsignificant evidence that Hunt perceivedthe applicants as more broadly limited,however, the majority holds that theEEOC has only provided evidence thatHunt perceived the rejected applicants as‘‘ineligible for a specific position withinHunt.’’ Ante at 78. In doing so, the major-ity reasons that long haul trucking is not asufficiently broad class of jobs such that asubstantial limitation on an individual’sability to be a long haul trucker wouldimply that the individual was disabledwithin the meaning of the ADA. See anteat 75–76. The majority asserts that alimitation on an individual’s ability to be along haul truck driver does not substan-tially limit his or her ability to engage inthe major life activity of working, as manyother truck driving jobs are available forthese individuals. See ante at 75–76. Themajority does not, however, hold that
truck driving in general is such a specificclass of jobs that a substantial limitationon truck driving would fail to imply adisability; its holding relies solely upon aninappropriately narrow view that Huntperceived the applicants as limited only intheir ability to work as long haul truckersfor Hunt.
Contrary to the majority’s assertion, theEEOC has produced significant evidencethat Hunt regarded the applicants as sub-stantially limited in the major life activityof working as truck drivers in general. Anemployer perceives an employee to be sub-stantially limited in his or her ability towork if it believes the employee is:
significantly restricted in the ability toperform either a class of jobs or a broadrange of jobs in various classes as com-pared to the average person having com-parable training, skills and abilities.The inability to perform a single, partic-ular job does not constitute a substantiallimitation in the major life activity ofworking.
29 C.F.R. § 1630.2(j)(3)(i); see also Bart-lett v. N.Y. State Bd. of Law Exam’rs, 226F.3d 69, 82–83 (2d Cir.2000). Factors thatmay be considered under this standardinclude the geographical area to which anindividual has reasonable access; the num-ber and types of jobs utilizing similartraining, knowledge, skills or abilities asthe job from which the applicant has beendisqualified; and the number and types ofjobs not utilizing similar training, knowl-edge, skills or abilities from which theapplicant will also be disqualified. 29C.F.R. § 1630.2(j)(3)(ii).
If other jobs utilizing an individual’sskills are available, that person is not sub-stantially limited in a class of jobs, even ifthis alternate employment would not allowthe individual to showcase his or her spe-cial talents. Sutton v. United Air Lines,
80 321 FEDERAL REPORTER, 3d SERIES
Inc., 527 U.S. 471, 492, 119 S.Ct. 2139, 144L.Ed.2d 450 (1999). In Sutton, the Su-preme Court determined that plaintiffs ap-plying for positions as global airline pilotscould use their particular skills to obtainother piloting positions from which theywere not disqualified, so these plaintiffswere not regarded as being shut out froman entire occupational class. Id. at 492–93,119 S.Ct. 2139. In applying this rubric,the Second Circuit has found that practic-ing law is a broad occupational class, seeBartlett, 226 F.3d at 84, but that workingas a policeman is a specific position withinthe class of investigative or security jobs,see Giordano v. City of New York, 274F.3d 740, 749 (2d Cir.2001).
The EEOC has proffered evidence thatthe members of the plaintiff class haveundergone specialized driver training,earned commercial drivers’ licenses,passed road tests and received medicalcertifications pursuant to DOT regulations.The set of jobs that call for these qualifica-tions includes driving various types ofsmall and large trucks, including tractor-trailers, moving trucks, and cargo vans.See Office of Management & Budget, Stan-dard Occupational Classification Manual220 (2000), available at http://www.bls.gov/soc/soc v3d0.htm. The De-partment of Labor classifies truck drivingas a separate occupation within the overallcategory of ‘‘Transportation and MaterialMoving Occupations,’’ as does the Office ofManagement and Budget. Id. The De-partment of Labor estimated that in 2000there were more than 3.3 million jobs thatcame under the heading of ‘‘Truckdriverand Driver/Sales Workers.’’ 1 Bureau of
Labor Statistics, Occupational OutlookHandbook 577 (2002–03), available athttp://www.bls.gov/oco/pdf/ocos246.pdf.This evidence demonstrates that truckdriving is a general field of employmentrather than a specific position. AccordBaulos v. Roadway Express, Inc., 139F.3d 1147, 1154 (7th Cir.1998) (holdingthat driving a sleeper car is a specific jobwithin the class of truck drivers); Best v.Shell Oil Co., 107 F.3d 544, 548 (7th Cir.1997) (holding that truck driving is a classof jobs).
The majority does not reach the ques-tion whether truck driving is a class ofjobs. Instead, the majority argues thatHunt only dismissed the applicants be-cause ‘‘Hunt found the applicants unsuitedfor long-distance driving of Hunt’s 40–tontrucks on irregular, stressful schedules.’’Ante at 76. Such hyperbole is inapposite.Whether long haul trucking is, in fact,different from other types of truck drivingis not the central issue in this appeal;Hunt’s perception of the applicants as sub-stantially limited in their ability to drivetrucks, without further limitation to longhaul truck driving, is the central issue.
Beyond this basic misconception, themajority also misrepresents the record byasserting that the evidence ‘‘does not indi-cate that Hunt perceived the applicants asmore broadly limited.’’ Ante at 77. To thecontrary, the EEOC provided significantevidence that Hunt believed that the appli-cants were unfit to drive trucks. Numer-ous drugs were listed on the DRL as ‘‘NotPermitted,’’ 2 reflecting a belief that the
1. Driver/Sales Workers drive trucks and workas sales agents for the goods they haul; bothof these aspects are integral to their jobs. SeeOccupational Outlook Handbook 576–77(2002–03).
2. The majority discusses the categories ‘‘NotPermitted’’ and ‘‘Unsafe Effects’’ separately
from the two condition-based categories,‘‘Disqualifying Condition’’ and ‘‘Heart Condi-tion.’’ Ultimately, the majority finds no legaldistinction between the ‘‘condition’’ catego-ries and the others. See ante at 78.
81E.E.O.C. v. J.B. HUNT TRANSPORT, INC.Cite as 321 F.3d 69 (2nd Cir. 2003)
applicant was prohibited by DOT regula-tions from driving a commercial vehiclewhile taking that particular medication.Dr. Cooper, Hunt’s physician consultant,testified with respect to one applicant thathe did not feel it was ‘‘in this patient’s bestinterest to pursue this profession.’’ Inter-view records show that the company be-lieved another applicant ‘‘would most likelyhave difficulty functioning in the lifestyleof a trucker.’’ Similarly, Dr. Cooper indi-cated with regard to another applicant thather ‘‘problems with sleep and concentra-tion under stress are not very compatiblewith the lifestyle expected of a driver.’’Applicant Joseph Lisa was told by a Hunt
employee that he would ‘‘never drive foranybody,’’ and numerous other applicantswere told that the medications they weretaking made it unsafe for them to drive atruck, or drive in general. See, e.g., CurtinDecl., Exh. 13 (reviewer told applicant‘‘that she could not be on [the medication]and drive [because] it can cause unsafeaffect [sic]’’); id. (reviewer told applicant‘‘that he could not drive[ ] while on thismedication’’); 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]othdrugs are not approved for driving’’); id.(reviewer ‘‘informed applicant that he can-
I agree that all four categories of medi-cations on the DRL at issue here should betreated identically. I disagree, however,with the majority’s statement that ‘‘the basisfor the exclusion from employment was theuse of a listed drug, not any potential ‘dis-ability’ created by the treated disease.’’ Anteat 77–78. The EEOC has produced signifi-cant evidence that demonstrates the link be-tween the drug categories and potential un-derlying conditions. For example, one ofHunt’s interviewers noted that the ‘‘applicantdid not indicate the reason he is taking [themedication]. [N]eed to verify why he is onthis medication.’’ Similar comments weremade by reviewers with respect to applicantstaking medications in each of Hunt’s catego-ries. See, e.g., Curtin Decl., Exh. 18 (appli-cant needs to provide ‘‘headach [sic] releaseTTT [and a] statement that she is not taking[the medication] for depression’’) (‘‘Not Per-mitted’’ category); id. (‘‘Sent to Brenda forreview on cardiovasular [sic] condition’’)(‘‘Not Permitted’’ category); Curtin Decl.,Exh. 20 (‘‘the diagnosis and severity of hercondition for which she takes the medicationis considered disqualifying’’) (‘‘Unsafe Ef-fects’’ category); id. (applicant ‘‘will need tocomplete his treatments TTT and send in allrecords when his condition is resolved’’)(‘‘Unsafe Effects’’ category); Curtin Decl.,Exhs. 23, 25 (applicant needs to ‘‘provide astatment [sic] that TTT his condition is finew/out the meds’’) (‘‘Disqualifying Condition’’or ‘‘Heart Condition’’ category); id. (Hunt‘‘need[ed] all records on [applicant’s] condi-tion’’) (‘‘Disqualifying Condition’’ or ‘‘Heart
Condition’’ category). In addition, Hunt’sMedical Guidelines relating to mental andpsychological conditions required that in or-der to qualify for a job, an applicant takingmedication for depression must remain offthe medication for thirty days and submit aletter from a doctor stating that he or she nolonger suffers from the underlying condition.Contrary to the majority’s assertion, this evi-dence provides a direct causal link betweenthe applicants’ underlying conditions andHunt’s perception of the applicants as sub-stantially limited in their ability to work astruck drivers.
To make a further distinction that it ulti-mately finds insignificant, the majority assertsthat ‘‘[i]ndividuals suffering from the condi-tions treated with the ‘Heart Condition’ or‘Disqualifying Condition’ drugs are potentiallyexplicitly barred from truck driving by 49C.F.R. § 391.41.’’ Ante at 76–77 & n. 5 Manyof the conditions listed in this regulation onlydisqualify an individual if the condition is‘‘likely to interfere with his/her ability to con-trol and drive a commercial motor vehiclesafely,’’ 49 C.F.R. § 391.41(b)(5), or otherwisesuggest that an individualized determinationof potential safety concerns is required. Seeid. § 391.41(b)(6)-(12). In relying on theseregulations to support Hunt’s policy, the ma-jority ignores the crucial difference betweenindividualized determinations of driver safetyand Hunt’s explicit policy to create a per sebar from truck driving with respect to theseindividuals. Hunt’s policy simply assumes,without justification, that these individualsare unfit to drive trucks.
82 321 FEDERAL REPORTER, 3d SERIES
not take [the medication] and drive’’);Curtin Decl., Exhs. 23, 25 (reviewer ‘‘in-formed appl[icant] that he could not takethe med[ication] on [the] truck’’); CurtinDecl., Adair Depo. (representative told ap-plicant ‘‘it’s illegal to drive a truck withthat [medication]’’); Curtin Decl., ManningDepo. (representative told applicant ‘‘itwas illegal for a driver to drive while onthis medication’’). The EEOC has provid-ed sufficient evidence to create a factualissue whether Hunt perceived the appli-cants as broadly limited in their ability towork as a truck driver.
The majority explains this evidence bystating:
Although a few evaluators’ commentscould be more broadly interpreted, thereis no evidence that Hunt’s reviewers,relying on Hunt’s own DRL and druglists to make a judgment on qualificationfor a position at Hunt, intended to makean evaluation beyond Hunt’s specificguidelines.
Ante at 76–77. In reviewing a grant ofsummary judgment, however, we do notrefuse to credit a broad, but reasonable,interpretation of the evidence. Giordano,274 F.3d at 749–50. Even if this were thestandard, Hunt’s reviewers stated that oneapplicant would ‘‘never drive for anybody,’’and made similar statements about manyother applicants; it is difficult to imagine aclearer statement that the reviewers in-tended to say that the applicants were, infact, substantially limited in their ability towork as a truck driver for any company.
The majority asserts that becauseHunt’s reviewers were not the ultimatedecision makers, the comments ‘‘simplyare not sufficient to indicate that Huntthought the applicants were more broadlylimited.’’ Ante at 76–77. Again, this is amatter for the factfinder to decide.Hunt’s own employees stated on severaloccasions that applicants were unfit to
drive; a factfinder reasonably could im-pute these statements to Hunt, even ifthese employees were not the ultimate de-cision makers. Hunt proffers no evidencethat these unidentified ‘‘ultimate hiring au-thorities’’ did not share the reviewers’ per-ceptions or rely upon their statementsabout the applicants’ limitations. Indeed,Hunt does not argue otherwise; it simplyargues that its employees’ statements im-plicitly refer only to jobs at Hunt. A fact-finder is certainly allowed to determinewhether the statement that an applicantwould ‘‘never drive for anybody’’ implicitlyrefers only to jobs at Hunt; it is not,however, this Court’s job to do so. Inreviewing whether summary judgment isappropriate, this Court does not make fac-tual determinations or refuse to credit le-gitimate inferences based upon the evi-dence presented, but views the evidence inthe light most favorable to the nonmovingparty. See Giordano, 274 F.3d at 746.
Hunt also argues that the statements ofDr. Cooper should not be imputed to it.The EEOC provides significant evidencethat Hunt relied on Dr. Cooper’s advice,including, for example, a reviewer’s state-ment that the applicant was ‘‘disqualifiedper Dr. Cooper.’’ This suffices to providea direct link between Dr. Cooper’s opin-ions regarding applicants and Hunt’s viewof the applicants as disabled.
Finally, the majority’s argument thatHunt’s policy should not be imputed toother companies in determining whetherthe applicants were perceived as disabledis immaterial. Contrary to the majority’sassertion, this is not a case in which thepotential imputation of Hunt’s policy toother companies would result in the appli-cants being regarded as ‘‘substantially lim-ited in the major life activity of workingonly as a result of this imputation.’’ Sut-ton, 527 U.S. at 493, 119 S.Ct. 2139. It isHunt’s explicit statement that it believed
83CICIO v. DOESCite as 321 F.3d 83 (2nd Cir. 2003)
applicants to be unfit to drive a truck thatsupports Hunt’s perception of these indi-viduals as substantially limited in theirability to drive a truck; no potential impu-tation is required. Thus, the EEOC hasprovided sufficient evidence that a factfin-der could reasonably conclude that Huntregarded the rejected applicants as sub-stantially limited in the major life activityof working, because Hunt regarded themas unfit to be truck drivers.
CONCLUSION
Because I find ample support in therecord for the assertion that Hunt regard-ed the applicants as d substantially limitedin the major life activity of working, andthus, the applicants were disabled withinthe meaning of the ADA, I respectfullydissent.
,
Bonnie CICIO, individually and as Ad-ministratrix of the Estate of Car-
mine 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 herlate husband’s estate, brought state court
suit against plan administrator for employ-ee benefits plan, its medical director, andothers, alleging state law claims arisingout of decision to deny preauthorization formedical procedure recommended by treat-ing physician. Defendants removed actionand moved to dismiss for failure to stateclaim. Widow moved to remand. The Unit-ed States District Court for the EasternDistrict of New York, Joanna Seybert, J.,208 F.Supp.2d 288, adopting the reportand recommendation of United StatesMagistrate Judge E. Thomas Boyle, grant-ed motion to dismiss on ground of preemp-tion under the Employee Retirement In-come Security Act (ERISA), and widowappealed. The Court of Appeals, Sack, Cir-cuit Judge, held that: (1) negligent delayand misrepresentation claims were remov-able under complete preemption doctrine;(2) court had supplemental jurisdictionover medical malpractice claim; (3) negli-gent delay and misrepresentation claimswere subject to dismissal as conflictpreempted; and (4) on issue of first im-pression, state law medical malpracticeclaim brought with respect to a medicaldecision made in the course of prospectiveutilization review by a managed care orga-nization or health insurer is not preemptedunder ERISA.
Affirmed in part, vacated in part, andremanded.
Calabresi, Circuit Judge, filed an opin-ion dissenting in part.
1. Removal of Cases O107(9)
District court’s denial of a motion toremand is reviewed de novo.
2. Federal Courts O776
District court’s decision to grant amotion to dismiss for failure to state aclaim is reviewed de novo. Fed.Rules Civ.Proc.Rule 12(b)(6), 28 U.S.C.A.
UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT
August Term, 2000
(Argued: June 20, 2001 Decided: September 18, 2002)
Docket No. 00-9488
_________________________________________
VALERIE KRIMSTOCK, CHARLES FLATOW, ISMAEL DELAPAZ, CLARENCEWALTERS, JAMES WEBB, MICHAEL ZURLO, and SANDRA JONES, individually and onbehalf of all other persons similarly situated,
Plaintiffs-Appellants,
v.
RAYMOND W. KELLY, in his official capacity as Commissioner of the New York City PoliceDepartment, PROPERTY CLERK, NEW YORK CITY POLICE DEPARTMENT, and THECITY 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 post-
seizure, 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, forplaintiffs-appellants.
1 The New York City Corporation Counsel has delegated to the Property Clerk of theNew York City Police Department the authority, under New York City’s Administrative Code, tobring 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 defendantsCommissioner of the New York City Police Department, the Property Clerk of the New YorkCity Police Department, and the City of New York, collectively, as the “City.”
2
JULIE STEINER, Assistant Corporation Counsel, New York, NewYork, for Michael D. Hess, Corporation Counsel of the Cityof New York (Stephen J. McGrath, on the brief), fordefendants-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
3
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 committingcrime or employed in aid or in furtherance of crime . . . , a personwho so . . . used [or] employed . . . any such . . . property orpermitted or suffered the same to be used [or] employed . . . or whowas a participant or accomplice in any such act, or a person whoderives his or her claim in any manner from or through any suchperson, 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
2 As noted below, the remedies available to those who have had their property seizedunder New York state civil forfeiture law (N.Y. C.P.L.R. art. 13-A) do not apply to seizuresunder N.Y.C. Code § 14-140. Other remedies suggested by the City, specifically a Request forJudicial Intervention and an Article 78 proceeding brought under New York state law, do notprovide a prompt retention hearing, as discussed below.
4
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
3 The applicable rules state that “[i]f a timely demand is made for the return of theproperty before the forfeiture proceeding is instituted, such proceeding shall be brought no laterthan . . . within 25 days after the date of demand. If such proceeding is not commenced withinthis time period, the property clerk shall give written notice to the claimant or the claimant’srepresentative, at his or her last known address . . . that the property will be returned forthwith tothat person.” 38-A R.C.N.Y. § 12-36(a). Absent a demand for the return of the property, theCity may commence forfeiture proceedings on its own initiative, often at the conclusion of thecriminal proceedings. See id. (“If such proceeding is instituted before the termination of criminalproceedings against the claimant, this subchapter shall not be construed to effect [sic] any right ofa party to the forfeiture proceeding to have the forfeiture proceeding stayed for such period as thecourt may determine.”).
4 This provision and several others found in the rules governing forfeitures under thepresent statute were adopted as a result of this Court’s determination that certain aspects of thepredecessor statute were unconstitutional. See McClendon v. Rosetti, 460 F.2d 111, 114-16 (2dCir. 1972) (striking down procedures for reclaiming property after termination of criminalproceedings 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 thestatute. Krimstock v. Safir, No. 99 Civ. 12041, 2000 WL 1702035, at *4 (S.D.N.Y. Nov. 13,2000).
5
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. § 12-
36(a).3 Even if the City chooses to commence a civil forfeiture proceeding within the twenty-
five 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
5 The state statute prohibits the operation of a motor vehicle if the driver “has .10 of oneper 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 oneyear, or both. Id. § 1193(1)(b).
6
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
6 Judge Jacobs does not subscribe to the four preceding paragraphs which recount andrely upon the circumstances particular to the named plaintiffs in this putative class action. Hisreasons are as follows: (1) The opinion implicitly generalizes from circumstances of theindividual plaintiffs—for example, that this one had never been arrested before, that this one is aretired person, and so forth. The named plaintiffs in a putative class action are frequentlyselected to be especially sympathetic and appealing, but the rule we make will also governvehicles seized from persons who are habitual drunks. (2) The fact that the six “DWI arrestees
7
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
. . . pleaded guilty to the lesser charge of driving while impaired” does not remotely call intoquestion the arresting officer’s probable cause to arrest them for drunk driving. It goes withoutsaying that plea bargains in misdemeanor cases are offered for many reasons other than factualinnocence or even insufficiency of evidence.
7 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 toseizure and forfeiture (a Fourth Amendment concern, as applied through the FourteenthAmendment) and the City’s justification for retaining their vehicles pendente lite (a FourteenthAmendment concern). We address both issues.
8 The court did abstain from hearing plaintiffs’ claim that they had a due process right to ameaningful 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
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
9
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 Here and throughout this opinion, we use the phrase “innocent owner” as a term of artdenoting a person who has an ownership interest in property threatened with civil forfeiture butwho neither participated in nor permitted or suffered the alleged illegal use of the property, andpersons who claim that status. Our use of the term is not intended to suggest that drivers or otherpersons initially charged with a vehicle-related crime are not presumed innocent until provenguilty in a criminal proceeding or are presumptively unlikely to prevail in a civil forfeitureproceeding.
10
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
11
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
12
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
10 Marine Midland Bank involved the seizure of interbank funds under the federal civilforfeiture laws and upon a warrant issued by a federal magistrate judge, who had determined thatthe government had probable cause to believe that interbank accounts were being used to laundernarcotics proceeds. Marine Midland Bank, 11 F.3d at 1121. The banks moved for return of theseized funds by order to show cause pursuant to Fed. R. Crim. P. 41(e). Holding that “[t]hemagistrate judge’s probable cause determination should be subject to judicial review,” this Courtfound that the warrant had not been supported by probable cause and therefore ordered therelease of certain of the interbank funds. Id. at 1125.
13
[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
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 probablecause to arrest defendant for DWI, despite contradictory testimony of defendant and hispassenger 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 aDWI arrest for which the police must have probable cause. The arresting officer evaluates anoffense committed in his or her presence. Indicia of alcohol consumption and objective testsconfirming the presence of alcohol minimize the risk of erroneous deprivation.”), aff’d, 266A.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 byreliable hearsay, including information provided by fellow officer present at the arrest scene).
14
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 § 14-
140’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).
15
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).
16
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
12 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 hearingrequired by due process.’” Krimstock, 2000 WL 1702035, at *5. The Supreme Court in VonNeumann, however, was addressing the different issue of what process was due in proceedingsfor remission or mitigation under U.S. customs laws when a claimant could challenge the seizureof his or her property in judicial forfeiture proceedings. Von Neumann, 474 U.S. at 249-50. Wenote that under the customs laws applicable in Von Neumann, the claimant could file a motionunder Fed. R. Crim. P. 41(e) for return of the seized vehicle if he or she “believe[d] the initialseizure was improper,” id. at 244 n.3, and that, in the case of Von Neumann, Customs releasedthe claimant’s vehicle after he had posted a bond pursuant to 19 U.S.C. § 1614, id. at 246.
17
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
18
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
19
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.
13 The 25-day rule under 38-A R.C.N.Y. § 12-36(a) represents a legislative expansion ofthe 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 aclaimant’s timely demand.
14 In contrast, while the statute here requires only that a forfeiture proceeding be initiatedwithin 25 days after a claim is made, the California controlled substances act requires that, once aperson claiming an interest in seized property files a verified claim, “the [civil] forfeitureproceeding shall be set for hearing on a day not less than 30 days therefrom, and the proceedingshall have priority over other civil cases.” Cal. Health & Safety Code § 11488.5(c)(1) (emphasisadded). Similarly, the civil forfeiture provision of the Wisconsin controlled substances act statesthat “the action shall be set for hearing within 60 days of the service of the answer but may becontinued for cause or upon stipulation of the parties.” Wis. Stat. § 961.555(2)(b); see also Statev. Rosen, 240 N.W.2d 168, 171-72 (Wis. 1976) (holding that the 60-day rule under theWisconsin controlled substances act is mandatory and that failure to set the hearing within thatperiod deprived the trial court of jurisdiction). In South Carolina, when a motorist is convictedof 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 knowledgeand authorization. “The hearing must be held within ten days from the date of receipt of therequest.” S.C. Code Ann. § 56-5-6240(A).
20
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.
Some legislatures have sought to mitigate the depreciation of property values and othercosts incurred through delays of civil forfeiture proceedings. See, e.g., Ariz. Rev. Stat. § 13-4310(I) (“Before staying civil discovery [in a forfeiture proceeding until a related criminal trial isconcluded], the court shall make adequate provision to prevent any loss or expense to any victimor 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 thevalue of the property.”).
21
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 personentitled to notice of the seizure. Notice provided by certified mailmust be mailed within 5 working days after the seizure and muststate that a person entitled to notice may request an adversarialpreliminary hearing within 15 days after receiving such notice. . . .The seizing agency shall set and notice the hearing, which must beheld within 10 days after the request is received or as soon aspracticable 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
22
§ 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
15 In Bennis v. Michigan, 516 U.S. 442 (1996), the Supreme Court held that a statenuisance-abatement law under which authorities sought the forfeiture of a vehicle used for illegalsexual activity did not violate the Due Process Clause of the Fourteenth Amendment by notpermitting an innocent co-owner of the vehicle to contest the abatement. Id. at 453. Unlike thefederal forfeiture law at issue in James Daniel Good Real Property, however, the statute inBennis did not provide for an affirmative defense of innocent ownership. Moreover, the Court inBennis suggested that the apparent unfairness of the Michigan law was mitigated by the trialcourt’s “remedial discretion” to consider whether forfeiture of a vehicle would leave its owner orowners without transportation and to order payment of one-half of any sale proceeds to aninnocent co-owner. Id. at 444-45, 453. We also note that the nuisance-abatement statute inquestion, Mich. Comp. Laws § 600.3825, authorized “removal” and “sale” of property uponentry of an order of abatement only after the property had been deemed a nuisance in a civilaction. Id. at 444 n.3. Nothing on the face of the provision, or in the Bennis case, suggests thatthe statute permitted seizure and retention of property prior to adjudication of its status as anuisance.
23
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 § 14-
140 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
16 This cumbersome construction, defining those subject to forfeiture proceedings interms of who is not a “lawful claimant” to the property, appears to reflect the former practiceunder which the burden rested on a claimant to bring a civil action in replevin to obtain the returnof seized property. See Hofferman v. Simmons, 290 N.Y. 449, 454 (1943) (“Since these arereplevin 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, theburden of proof was shifted from the claimant to establish a lawful entitlement, to the City toestablish the forfeitability of the property. McClendon, 369 F. Supp. at 1394.
17 The relevant portion of the section provides:
Where moneys or property . . . have been used as a means of committing crime oremployed in aid or in furtherance of crime or held, used or sold in violation oflaw, . . . a person who . . . so used, employed, sold or held any such moneys orproperty 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 suchperson, shall not be deemed to be the lawful claimant entitled to any such moneysor property . . . .
N.Y.C. Code § 14-140(e)(1). The statute also deems not a lawful claimant any “person whoderives his or her claim in any manner from or through any such person.” Id. This formulationevidently could include other potentially innocent owners and interest holders, such as securedlenders, mortgagees, and lienholders, as well as purchasers, inheritors, and other transferees ofproperty interests.
24
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
18 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 innocentownership 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 theburden. See Property Clerk v. Pagano, 170 A.D.2d 30, 35, 573 N.Y.S.2d 658, 661 (1st Dep’t1991) (“[A] proceeding brought under § 14-140 differs substantially from one brought pursuantto a forfeiture statute which expressly places the burden on a claimant to establish his innocentstate of mind. Clearly, § 14-140 contains no such language and, on the contrary, must beconstrued by its own terms to place an affirmative burden on [the City] . . . of proving thatrespondent ‘permitted or suffered’ the illegal use of the property.”).
19 Many state statutes, while permitting seizure of forfeitable property, are much moreexplicit than N.Y.C. Code § 14-140 in limiting or exempting the forfeiture liability of innocentowners. These statutes generally provide for affirmative defenses by innocent owners or makeproof of the owners’ culpable knowledge part of the seizing authority’s burden. For example, aMaine statute that permits forfeiture of a motor vehicle upon a defendant’s simultaneousconviction for operating under the influence (“OUI”) and operating after suspension for a priorOUI 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 thatvehicle” precluded forfeiture of a vehicle jointly owned by defendant’s wife). Other state statutescontain 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 personother than the owner” during commission or omission of an act; owners who “did not know andcould not reasonably have known of the act or omission”; and bona fide purchasers for value “notknowingly taking part in an illegal transaction” and “reasonably without notice of the act oromission giving rise to forfeiture”); Cal. Health & Safety Code §§ 11470(e)-(h) (persons otherthan defendant with a community property interest in the vehicle; bona fide purchasers andencumbrancers), 11488.5(e) (owners who did not have “actual knowledge that the seizedproperty would be or was used for a purpose for which forfeiture is permitted and consented tothat use”); Fla. Stat. § 932.703(6)-(7) (spouses, lienholders, lessors, joint owners, and otherparties 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 involvedin or aware of the unlawful activity and . . . had done all that could reasonably be expected toprevent 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, bonafide security-interest holders, and lessors). Notably, New York state civil forfeiture statutes
25
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
likewise provide a defense for innocent owners. See N.Y. C.P.L.R. 1311(4)(d)(ii)-(iii) (innocentpersons subject to “adverse impact of a forfeiture”; defendants acquitted of the underlyingcrime), 1311(3)(b)(iv) (non-criminal defendants who either did not know “that theinstrumentality was or would be used in the commission of a crime” or did not knowingly obtainan “interest in the instrumentality to avoid forfeiture”). In Property Clerk v. Ferris, 77 N.Y.2d428, 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 articlesuggests that it applies in the limited forfeiture proceedings available pursuant to AdministrativeCode § 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, 21U.S.C. § 881, contained an express “innocent owner” defense, which stated that “no conveyanceshall be forfeited . . . to the extent of an interest of an owner, by reason of any act or omissionestablished by that owner to have been committed or omitted without the knowledge, consent, orwillful blindness of the owner.” 21 U.S.C. § 881(a)(4)(C). Replacing this provision, the CivilAsset Forfeiture Reform Act of 2000, Pub. L. No. 106-185, 114 Stat. 202 (codified as amendedat 18 U.S.C. § 983), creates a uniform innocent owner defense whereby a claimant mayaffirmatively 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 toforfeiture”; bona fide purchasers or sellers for value; claimants who acquired a property interestthrough marriage, divorce, or legal separation; spouses or legal dependents who acquiredproperty by inheritance or probate; and joint tenants and others with a partial interest in property.
20 In contrast, for orders of attachment granted without notice under New York state civilforfeiture law, contained at N.Y. C.P.L.R. art. 13-A, the claiming authority must move for ahearing within five days of the seizure. N.Y. C.P.L.R. 1317, 1329 (providing for ex parteattachment of assets for five days, after which the attaching authority must move for an order
26
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
confirming the attachment and permitting the defendant to challenge the attachment, with theburden 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 tothe constitutionality under the Fourteenth Amendment of ex parte pre-judgment attachment, theNew York Court of Appeals relied, inter alia, on available means to challenge promptly the basisfor 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 § 14-140. Grinberg, 181 Misc. 2d at 449, 694 N.Y.S.2d at 320-21 (quotation marks omitted).
27
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 § 14-
140 is constitutionally required.
3. Other Suggested Remedies Do Not Provide Prompt Post-SeizureReview.
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 evenmake this motion. Likewise, the CPLR does not provide for such ahearing. Defendant has circumvented the traditional rules of civilprocedure by asking this court to entertain, and plaintiff to defend,against a motion that has no legal basis and a hearing that wouldclearly 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
21 The New York court rules include among “matters to be considered” at the conferencethe simplification of issues, setting a schedule for discovery, addition of necessary parties, andsettlement, 22 N.Y. Comp. Codes R. & Regs. § 202.12(c)(1)-(4), and “any other matters that thecourt may deem relevant,” id. § 202.12(c)(5).
28
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 forty-
five 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
22 Plaintiffs have represented that, in the New York Supreme Court, First JudicialDepartment, Civil Branch, all forfeiture actions under N.Y.C. Code § 14-140 are assigned to thesame judge, making further delays likely.
29
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.
30
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, pre-
judgment deprivations of property in civil forfeiture proceedings. Cf. James Daniel Good Real
31
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
23 In contrast, a provision of the federal civil forfeiture statute allows release of propertypendente lite under certain circumstances, including when “continued possession by theGovernment . . . will cause substantial hardship to the claimant, such as preventing thefunctioning of a business, preventing an individual from working, or leaving an individualhomeless; [and] the claimant’s likely hardship . . . outweighs the risk that the property will bedestroyed, damaged, lost, concealed, or transferred if it is returned to the claimant during thependency 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 ofjustice”—for example, in light of “the seriousness and circumstances of the crime to which theproperty is connected relative to the impact of forfeiture of property upon the person whocommitted the crime.” As noted earlier, however, N.Y. C.P.L.R. 1311 does not apply to “thelimited forfeiture proceedings available pursuant to Administrative Code § 14-140.” Ferris, 77N.Y.2d at 431, 568 N.Y.S.2d at 579.
32
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
33
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
34
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 theProbable 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
24 On several occasions, the Second Circuit has stressed that “[f]orfeiture is a harsh andoppressive 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 forfeitureto be a powerful weapon in the war on drugs, it would, indeed, be a Pyrrhic victory for thecountry, if the government’s relentless and imaginative use of that weapon were to leave theconstitution itself a casualty.”) (internal quotation marks and citations omitted), abrogated onother grounds, Florida v. White, 526 U.S. 559 (1999).
25 Some state statutes expressly admonish against governmental opportunism in seizingand forfeiting property. See Cal. Health & Safety Code § 11469(a) (“Law enforcement is theprincipal objective of forfeiture. Potential revenue must not be allowed to jeopardize theeffective investigation and prosecution of criminal offenses, officer safety, the integrity of
35
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
ongoing investigations, or the due process rights of citizens.”); id. § 11469(f) (“Seizing agenciesshall 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 theprovisions of the Florida Contraband Forfeiture Act to deter and prevent the continued use ofcontraband articles for criminal purposes while protecting the proprietary interests of innocentowners and lienholders and to authorize such law enforcement agencies to use the proceedscollected . . . as supplemental funding for authorized purposes. The potential for obtainingrevenues from forfeitures must not override fundamental considerations . . . . It is also the policyof this state that law enforcement agencies ensure that, in all seizures made under [the Act], theirofficers adhere to federal and state constitutional limitations regarding an individual’s right to befree from unreasonable searches and seizures . . . .”).
36
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 recompensefor losses caused by erroneous seizure. Given the congested civildockets in federal courts, a claimant may not receive an adversaryhearing until many months after the seizure. And even if theultimate judicial decision is that the claimant was an innocentowner, or that the Government lacked probable cause, thisdetermination, coming months after the seizure, “would not curethe temporary deprivation that an earlier hearing might haveprevented.”
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
37
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
38
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
26 We note that in contrast to the forfeiture statute at issue in the present case, the PuertoRican statute in Calero-Toledo required that seized motor vehicles be appraised for theirmonetary 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
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
27 In addition, we note that the City does not caption these civil forfeiture actions asproceedings in rem. Instead, they are styled as in personam actions—for example, PropertyClerk v. Ismael Delapaz.
40
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
28 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
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
29 In Statewide Auto Parts, this Court considered a due process challenge to the federalgovernment’s seizure of real and personal commercial properties pursuant to an ex parte warrantand the federal civil forfeiture statute. Statewide Auto Parts, 971 F.2d at 898-99. In other cases
42
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
involving seizure of real property, this Court has been careful to emphasize the value of lessdrastic 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., 889F.2d 1258, 1265 (2d Cir. 1989) (“Any exigency that might be posed by the threat of anencumbrance 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 orderor 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 meansthan outright seizure], the Court has explored the possibility of these less drastic means with theparties.”); 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 lawfulbusiness pending trial, as a less restrictive measure than outright seizure of the leasehold underfederal 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 CertainAdmiralty and Maritime Claims, Rule E(4)(f) (providing, except where the United States isseeking forfeiture, for a “prompt hearing at which the plaintiff shall be required to show why thearrest or attachment [of property] should not be vacated or other relief granted consistent withthese rules”); Fla. Stat. § 932.703(d) (providing that, if the court determines that probable causeexists to believe that property was used in violation of the state contraband forfeiture statute, “thecourt 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 securityequivalent to the value of the property”).
43
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.
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 forfeituretrial as well as to the filing of the action, there is a due process violation at some point.” UnitedStates v. Banco Cafetero Panama, 797 F.2d 1154, 1163 (2d Cir. 1986). “The Governmentargues that, once an action is filed, delays of any length may be granted to allow completion ofrelated criminal proceedings. To require prompt filing of a forfeiture action but allow indefinitepostponement of the trial would reduce the filing requirement to a nullity.” Id.
44
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
31 Pursuant to 38-A R.C.N.Y. § 12-32, the voucher issued to an arrestee by the policeupon arrest and seizure must notify the arrestee of procedures for demanding the return ofproperty and the possible actions that the Property Clerk may take after the demand has beenmade. See also Butler v. Castro, 896 F.2d 698, 702 (2d Cir. 1990) (“[A] voucher must be givento an arrestee for non-contraband property seized [and] must also give notice of the procedures tobe followed to recover such property.”). Adequate notice of the right to a post-seizure retentionhearing 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.
32 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 heldby the Property Clerk for forfeiture, because they were used in furtherance of a crime.” In anyevent, it is hard to imagine how an arrestee’s vehicle could serve as evidence in the ordinaryDWI case.
45
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
33 For example, we do not expect that these limited hearings will resemble the sometimesprolonged pretrial hearings that district courts in this Circuit have conducted to address probablecause for the government’s seizure of property under federal forfeiture laws. See, e.g., NamesRegistry Publ’g, 68 F.3d at 579 (noting that the district court below had held a two-day pretrialhearing to examine probable cause for an ex parte seizure of bank funds under federal forfeiturelaw); Daccarett, 6 F.3d at 45 (three-day pretrial evidentiary hearing to examine probable causefor seizure of electronic transfer funds under federal forfeiture law); Statewide Auto Parts, 971F.2d at 900 (oral argument followed by further written evidentiary submissions on the issue ofprobable cause to seize real and personal commercial properties under federal forfeiture law); seealso 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 theforfeiture trial are expedited and the government must establish probable cause for the forfeitureprior to the forfeiture trial.”), vacated on other grounds, 68 F.3d 577 (2d Cir. 1995). Unlikefederal forfeiture actions, which often involve complex evidentiary issues, multiple parties andwitnesses, and elaborate underlying criminal allegations, actions instituted against vehicle owners
46
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
under the New York City forfeiture statute typically present relatively discrete, straightforwardissues.
34 At the time of oral argument before this Court, three of the seven namedplaintiffs—Jones, Krimstock, and Walters—had recovered their vehicles. Inasmuch as plaintiffsprimarily seek relief in the form of a preliminary injunction and class certification, the questionarises whether the claims of some plaintiffs have been rendered moot, and this is a question that acourt must address sua sponte. The Supreme Court has held in some cases, however, that “thetermination of a class representative’s claim does not moot the claims of the unnamed membersof the class. . . . That the class was not certified until after the named plaintiffs’ claims hadbecome moot does not deprive us of jurisdiction. . . . In such cases, the ‘relation back’ doctrine isproperly invoked to preserve the merits of the case for judicial resolution.” County of Riversidev. McLaughlin, 500 U.S. 44, 51-52 (1991) (internal quotation marks and citations omitted); seealso 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 courtwill not have even enough time to rule on a motion for class certification before the proposedrepresentative’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 inwhich the claims of named plaintiffs have become moot prior to class certification, “the courtspermit the class certification to relate back to the filing of the complaint and hold that theplaintiffs 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
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
48
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.
UNITED STATES COURT OF APPEALS1FOR THE SECOND CIRCUIT2
3August Term, 20014
5(Argued: March 13, 2002 Decided: September 13, 2002)6
7Docket No. 01-61688
9_____________________________________________ 10
11THE CENTER FOR REPRODUCTIVE LAW AND POLICY, JANET BENSHOOF, ANIKA12
RAHMAN, KATHERINE HALL MARTINEZ, JULIA ERNST, LAURA KATZIVE, MELISSA13UPRETI, CHRISTINA ZAMPAS,14
15Plaintiffs-Appellants,16
17v.18
19GEORGE W. BUSH, in his official capacity as President of the United States, COLIN20
POWELL, in his official capacity as Secretary of State, ANDREW NATSIOS, in his official21capacity as Administrator of the United States Agency for International Development, 22
23Defendants-Appellees.24
_____________________________________________2526
Before: McLAUGHLIN, LEVAL, and SOTOMAYOR, Circuit Judges. 2728
The United States District Court for the Southern District of New York (Preska,29
J.) dismissed for lack of Article III standing plaintiffs’ constitutional challenge to the federal30
government’s “Mexico City Policy” restricting the disbursement of funds to foreign non-31
governmental organizations. Finding that this case falls under an exception to the Supreme32
Court’s rule against assuming the existence of jurisdiction, we dismiss plaintiffs’ First33
Amendment claim on the merits without reaching the question of constitutional standing. We34
dismiss plaintiffs’ due process claim for lack of prudential standing, and we dismiss plaintiffs’35
equal protection claim on the merits. 36
Dismissal affirmed on different grounds.37
2
1
_______________________________________________23
SIMON HELLER, The Center for Reproductive Law &4Policy, New York, NY (Janet Benshoof, on the brief), for5Plaintiffs-Appellants. 6
7GREGORY G. KATSAS, Deputy Assistant Attorney8General, Washington, D.C. (Robert D. McCallum, Jr.,9Assistant Attorney General; Robert M. Loeb and Sharon10Swingle, Attorneys, Department of Justice Civil Division;11James B. Comey, United States Attorney; Gideon A. Schor,12Chief Appellate Attorney, on the brief), for Defendants-13Appellees.14
______________________________________________1516
SOTOMAYOR, Circuit Judge:17
This suit was brought by a domestic organization that advocates reproductive18
rights and by attorneys employed by the organization. Plaintiffs challenge the so-called “Mexico19
City Policy,” pursuant to which the United States government requires foreign organizations, as a20
condition of receiving government funds, to agree neither to perform abortions nor to promote21
abortion generally. Plaintiffs maintain that these restrictions violate their First Amendment rights22
to freedom of speech and association. The district court dismissed the case for lack of subject23
matter jurisdiction, finding that plaintiffs lack standing under Article III of the Constitution. The24
district court was following the general rule, set forth by the Supreme Court in Steel Co. v.25
Citizens for a Better Environment, 523 U.S. 83, 94-95 (1998), that a federal court may not26
assume it has jurisdiction over a matter and proceed directly to the merits. The instant case is27
exceptional, however. Some twelve years ago we entertained and rejected, on the merits, the28
same constitutional challenge to the provision at issue here. We therefore find that this case falls29
3
within an exception recognized by the Supreme Court in Steel Co., and we dismiss the First1
Amendment claim on the merits without deciding the standing question. Plaintiffs also bring2
claims under the Due Process Clause and the equal protection component of the Fifth3
Amendment. We dismiss the due process claim under the doctrine of prudential standing, as4
plaintiffs’ alleged harm does not fall within the zone of interests protected by the Due Process5
Clause. We dismiss the equal protection claim as without merit; while plaintiffs do have6
standing for this claim under the concept we have dubbed “competitive advocate standing,” the7
classification they challenge does not constitute an equal protection violation. 8
BACKGROUND9
We accept the allegations in the complaint as true on this motion to dismiss. The10
facts of this case, which are set forth in greater detail by the district court, see Center for11
Reproductive Law & Policy v. Bush, No. 01 CIV. 4986, 2001 WL 868007 (S.D.N.Y. July 31,12
2001) (“CRLP”), are as follows. Plaintiff The Center for Reproductive Law & Policy (“CRLP”)13
is a nonprofit advocacy organization devoted to the promotion of reproductive rights. Individual14
plaintiffs Janet Benshoof, Anika Rahman, Katherine Hall Martinez, Julia Ernst, Laura Katzive,15
Melissa Upreti and Christina Zampas are CRLP staff attorneys engaged in the organization’s16
global mission of reproductive law reform. Defendant George W. Bush is the President of the17
United States. Defendant Colin Powell is the U.S. Secretary of State and is thus responsible for18
“ensuring program and policy coordination among agencies of the United States Government in19
carrying out the policies set forth in the Foreign Assistance Act. . . .” 22 U.S.C. § 6593(b)(2). 20
Defendant Andrew Natsios is the Administrator of the United States Agency for International21
1 The term derives from a United Nations conference held in Mexico City in 1984, atwhich the United States delegation presented a policy statement outlining the type of abortion-related restrictions at issue in this case. CRLP, 2001 WL 868007, at *2 n.1.
4
Development (“USAID”). At issue in this case is the so-called “Mexico City Policy”1 of the1
United States government, whereby foreign non-governmental organizations (“NGOs”) receiving2
U.S. government funds must agree to a provision called the “Standard Clause,” which prohibits3
the organizations from engaging in activities that promote abortion (also referred to as the4
“challenged restrictions”). 5
The Foreign Assistance Act of 1961 (“FAA”) authorizes the President “to furnish6
assistance, on such terms and conditions as he may determine, for voluntary population7
planning.” 22 U.S.C. § 2151b(b). The President’s authority to allocate FAA funding has been8
delegated to the Secretary of State and, in turn, to the Administrator of USAID. See Exec. Order9
No. 13,118, 64 Fed. Reg. 16,595 (Mar. 31, 1999); State Department Delegation of Authority No.10
145-1, 45 Fed. Reg. 51,974 (Aug. 5 1980); International Development Cooperation Agency11
Delegation of Authority No. 7, 45 Fed. Reg. 52,470 (Aug. 7, 1980). In 1973, Congress enacted12
the Helms Amendment, which prohibits the use of foreign assistance funds to pay for, among13
other things, “the performance of abortions as a method of family planning or to motivate or14
coerce any person to practice abortions.” 22 U.S.C. § 2151b(f)(1). This restriction applies only15
to the use of U.S. government funds; foreign NGOs receiving assistance may still promote16
abortion with non-U.S. government funds without violating the terms of the statute. The17
executive branch, however, has attached additional conditions to the granting of foreign18
assistance funds, as it is authorized to do by the FAA. See 22 U.S.C. § 2151b(b). These19
additional conditions are the subject of this suit.20
5
The challenged restrictions originated in August 1984, when President Ronald1
Reagan announced the Mexico City Policy (“the Policy”). The Policy expressed the2
government’s disapproval of abortion as an element of family planning programs and set forth3
various ways in which the government would prohibit its funds from being used to support4
abortion overseas. Among these, it was announced that “the United States will no longer5
contribute to separate nongovernmental organizations which perform or actively promote6
abortion as a method of family planning in other nations.” CRLP, 2001 WL 868007, at *47
(citations omitted). 8
Pursuant to the Mexico City Policy, USAID incorporated the “Standard Clause”9
into its family planning assistance agreements and contracts. The Standard Clause provides that10
in order to be eligible for USAID funding, a foreign NGO must certify in writing that it “will not,11
while receiving assistance under the grant, perform or actively promote abortion as a method of12
family planning in AID-recipient countries or provide financial support to other foreign13
nongovernmental organizations that conduct such activities.” Id. at *5 (quotation marks14
omitted). The restrictions established in the Standard Clause extend to all activities of recipient15
NGOs, not merely to projects funded by USAID. Thus, in order to receive U.S. government16
funds, a foreign NGO may not engage in any activities that promote abortion. These restrictions17
do not apply to domestic NGOs such as plaintiff CRLP. 18
The Mexico City Policy was rescinded by President Bill Clinton in January 1993,19
but was reinstated by President George W. Bush in March 2001. President Bush issued an20
official memorandum that restored the abortion-related restrictions discussed above, including21
the Standard Clause. See Memorandum, Restoration of the Mexico City Policy, 66 Fed. Reg.22
2 “Abortion as a method of family planning” does not include “abortions performed if thelife of the mother would be endangered if the fetus were carried to term or abortions performedfollowing rape or incest (since abortion under these circumstances is not a family planning act).” Restoration Memorandum, 66 Fed. Reg. at 17,306.
6
17,303, 17,309 (Mar. 28, 2001) (“Restoration Memorandum”). Accordingly, as a condition of1
receiving U.S. government funds, foreign NGOs again are required to agree not to perform or2
actively promote abortion as a method of family planning.2 3
Plaintiffs bring this suit for injunctive and declaratory relief. Plaintiffs’ primary4
claim, and the one with which the district court appears exclusively to have concerned itself, is5
based on the First Amendment. The thrust of this claim is that, as a result of the challenged6
restrictions, foreign NGOs are chilled from interacting and communicating with domestic7
abortion rights groups such as plaintiff CRLP, thus depriving plaintiffs of their rights to freedom8
of speech and association in carrying out the mission of the organization. Plaintiffs also allege9
that the restrictions violate the Equal Protection Clause of the Fifth Amendment by preventing10
plaintiffs from competing on “equal footing” with domestic anti-abortion groups, and that they11
violate the Due Process Clause by failing to give clear notice of what speech and activities they12
prohibit and by encouraging arbitrary and discriminatory enforcement. Finally, plaintiffs attempt13
to bring a claim under customary international law, the substance of which appears to be identical14
to their First Amendment claim.15
The district court dismissed the action in its entirety on the ground that plaintiffs16
lack standing under Article III of the Constitution. The court first noted that because the17
challenged restrictions apply only to foreign NGOs, not to domestic organizations such as CRLP,18
the Mexico City Policy does not affect plaintiffs directly. CRLP, 2001 WL 868007, at *7. The19
7
court then applied the three-pronged standing test set out by the Supreme Court in Lujan v.1
Defenders of Wildlife, 504 U.S. 555 (1992), and concluded that plaintiffs had failed to2
demonstrate that (1) concrete injury in fact, (2) a causal connection between the alleged injury3
and the government’s conduct, and (3) that the alleged injury is sufficiently redressable by a4
favorable decision. CRLP, 2001 WL 868007, at *8-*12. 5
Our review is de novo. See Connecticut v. Physicians Health Servs. of Conn.,6
Inc., 287 F.3d 110, 114 (2d Cir. 2002). “The reviewing court may, of course, affirm on any7
ground appearing in the record below.” MFS Sec. Corp. v. New York Stock Exch., Inc., 277 F.3d8
613, 617 (2d Cir. 2002). 9
DISCUSSION10
I. First Amendment Claim 11
A. Plaintiffs’ Allegations12
The crux of plaintiffs’ First Amendment claim is their contention that the13
restrictions chill foreign NGOs from collaborating with domestic NGOs like CRLP because such14
collaboration may be viewed as promoting abortion and thus would jeopardize the foreign15
NGOs’ receipt of U.S. government funds. Plaintiffs argue that such collaboration is essential to16
their ability to carry out their mission as advocates of reproductive rights and that depriving them17
of this ability violates their freedom of speech and association. 18
Specifically, plaintiffs allege that they depend on collaboration with foreign19
NGOs in order to advocate abortion law reform in foreign countries; to gather reliable20
information regarding abortion laws; to disseminate publications and reports; to reach audiences21
worldwide in order to promote abortion law reform; to access victims and witnesses of human22
8
rights abuses; to lobby the United States government to rescind the Restoration Memorandum; to1
influence international conferences, international legal tribunals, and world public opinion; to2
increase protection for the right to abortion in the United States; and to engage in open and free3
discussion about abortion. See Am. Compl. ¶¶ 7, 85, 88, 90, 91, 105-107. 4
Plaintiffs list several countries in which they currently have projects involving5
these activities and where foreign NGOs have agreed to the Standard Clause, id. ¶ 71, and they6
allege that all of these activities are significantly hindered in those countries. The use of the7
Standard Clause, according to plaintiffs, “prevents Plaintiffs from forming alliances with8
potential partner organizations in order to increase their abortion-related advocacy efforts’9
effectiveness.” Id. ¶ 100. One of the ways in which this problem manifests itself is by depriving10
plaintiffs of their audience for reproductive rights advocacy. Plaintiffs allege that the use of the11
Standard Clause “interferes with Plaintiffs’ conveyance of their ideas and political speech about12
abortion by chilling or prohibiting [foreign NGOs] from attending presentations given by13
Plaintiffs and from listening to Plaintiffs’ political advocacy.” Id. ¶ 106. These hindrances,14
according to plaintiffs, violate their right to freedom of speech and association. Similarly,15
plaintiffs allege that the challenged restrictions impede their ability to disseminate publications16
and reports “because [foreign NGOs] that would otherwise distribute the publications in foreign17
countries are prohibited or chilled from doing so.” Id. ¶ 103. Plaintiffs argue that this harm is18
actionable under Supreme Court precedent holding that “[t]he First Amendment protects19
[individuals’] right not only to advocate their cause but also to select what they believe to be the20
most effective means for so doing.” Meyer v. Grant, 486 U.S. 414, 424 (1988). Plaintiffs also21
invoke their right to receive information, claiming that the Standard Clause “interferes with22
9
Plaintiffs’ ability to obtain information necessary to accomplish their abortion law reform efforts1
from USAID recipient [foreign NGOs],” and impedes plaintiffs’ access to victims and witnesses2
of human rights abuses related to reproductive issues. Am. Compl. ¶¶ 101-102. Plaintiffs3
explain that foreign NGOs are often the only vehicle to provide access to both general4
information and first-hand accounts regarding conditions in foreign countries, id., and that5
obtaining such information is necessary for domestic NGOs to fulfill their mission of advocating6
reproductive rights—including their ability to lobby the United States government, id. ¶ 108. 7
B. The Planned Parenthood Case8
We have been over this ground before. In Planned Parenthood Federation of9
America, Inc. v. Agency for International Development, 915 F.2d 59 (2d Cir. 1990), this Court10
entertained a constitutional challenge to the same Standard Clause incorporated by the USAID11
into financial assistance agreements with foreign NGOs. Like the instant case, Planned12
Parenthood involved a First Amendment challenge, based on freedom of speech and association,13
brought by domestic NGOs. As in the instant case, the plaintiffs argued before this Court that the14
Mexico City Policy effectively prevented them from associating and collaborating with foreign15
NGOs, which in turn prevented them from fulfilling their mission regarding reproductive rights16
advocacy. Planned Parenthood, 915 F.2d at 62-63. 17
This Court rejected the challenge on the merits, finding “no constitutional rights18
implicated” by the Policy and the Standard Clause. Planned Parenthood, 915 F.2d at 66. The19
Court reasoned that the domestic NGOs remained free to use their own funds to pursue abortion-20
related activities in foreign countries and that “[t]he harm alleged in the complaint is the result of21
choices made by foreign NGOs to take AID’s money rather than engage in non-AID funded22
3 The Standard Clause as restored under President George W. Bush contains minoralterations from the original version challenged in the Planned Parenthood case. They are not ofsignificance here. The only substantive difference in the restored Standard Clause is that“treatment of injuries or illnesses caused by legal or illegal abortions” is now excluded from thedefinition of prohibited abortion-related activities. Restoration Memorandum, 66 Fed. Reg. at17,311. Other minor alternations include the change from “AID” to “USAID,” “grant” to“award,” and “birth spacing” to “child spacing.” CRLP, 2001 WL 868007, at *6 n.6.
10
cooperative efforts with plaintiffs-appellants.” Id. at 64. “Such an incidental effect” on the1
activities of the domestic NGOs, the Court held, did not rise to the level of a constitutional2
violation. Id. The Court concluded that “the Standard Clause does not prohibit plaintiffs-3
appellants from exercising their first amendment rights.” Id. Moreover, the Court explained that4
whatever one might think of the Mexico City Policy, “the wisdom of, and motivation behind, this5
policy are not justiciable issues,” and the Court found the restrictions to be rationally related to6
the “otherwise nonjusticiable decision limiting the class of beneficiaries of foreign aid.” Id. at7
64-65. Having rejected plaintiffs’ claims on the merits, this Court declined to address the8
question of whether plaintiffs had standing under Article III. Id. at 66. 9
Planned Parenthood not only controls this case conceptually; it presented the10
same issue. Planned Parenthood rejected the same First Amendment challenge to the same11
provision—the Standard Clause that was first instituted by President Reagan in the 1980s and12
was reinstated by President George W. Bush in 20013—and no intervening Supreme Court case13
law alters its precedential value.14
Plaintiffs’ attempts to distinguish Planned Parenthood are unavailing. First,15
plaintiffs argue that Planned Parenthood did not involve an equal protection challenge. This is16
true, but does not affect the First Amendment question. Second, plaintiffs argue that Planned17
Parenthood “mischaracterizes the [restrictions’] effect as ‘incidental.’” This argument does not18
11
distinguish Planned Parenthood at all, but simply disagrees with its holding. Third, plaintiffs1
argue that the effect on their speech is more substantial than in Planned Parenthood because the2
provision “impedes Plaintiffs’ entire mission, not just one component of that mission.” The3
significance of this point is not clear to us as a legal matter and, in any event, the allegations4
made in the two cases are far too similar to support this distinction as a factual matter. 5
Finally, plaintiffs argue that Planned Parenthood “did not assess the right to6
obtain and impart information,” and that the litigants in Planned Parenthood “did not claim that7
their law reform advocacy in the United States and the United Nations was impeded.” By8
rejecting plaintiffs’ claim that the Mexico City Policy prevented them from associating and9
collaborating with foreign NGOs, however, this Court’s opinion in Planned Parenthood did, in10
fact, assess and reject the claim that plaintiffs’ right to obtain and impart information was11
impeded. See Planned Parenthood, 915 F.2d at 63-64 (noting and rejecting plaintiffs’ argument12
that “it is impractical for United States citizens or organizations to engage in abortion-related13
activities abroad without the cooperation of foreign organizations and that the Standard Clause14
deters ‘many of the most logical and effective foreign partners’”); Planned Parenthood Fed’n of15
Am., Inc. v. Agency for Int’l Dev., No. 87 CIV. 0248, 1990 WL 26306, at *5 (S.D.N.Y. Mar. 7,16
1990) (“[P]laintiffs argue that [the Standard Clause] has the effect of preventing foreign NGOs17
that receive AID funds and domestic NGOs from associating with each other for purposes of18
receiving or disseminating abortion information using non-U.S. government money . . . .”19
(emphasis added)). Likewise, although this Court’s opinion in Planned Parenthood did not20
explicitly describe the scope of plaintiffs’ claim regarding the restrictions on their law reform21
advocacy to include advocacy in the U.S. and in international tribunals, our holding clearly22
12
contemplated and rejected that claim. See Planned Parenthood, 915 F.2d at 62 (noting that the1
Standard Clause does not hinder plaintiffs’ use of non-AID funds “in the United States or2
abroad”); Planned Parenthood, 1990 WL 26306, at *7 (“[Plaintiffs] also allege that the ‘reason3
for the promulgation of the policy and the Standard Clause was to advance the Reagan4
Administration’s effort to suppress pro-choice views and activities in the United States . . . and5
not for any purported concern with foreign policy . . . .’” (quoting complaint)).6
C. The Standing Issue7
The district court dismissed the instant case, not on the merits as we did in8
Planned Parenthood, but for lack of constitutional standing. A federal court has jurisdiction only9
if a claim presents a “case” or “controversy” under Article III of the U.S. Constitution. This10
“irreducible constitutional minimum” of standing requires (1) that the plaintiff has suffered an11
“injury in fact,” i.e., an invasion of a judicially cognizable interest which is concrete and12
particularized as well as actual or imminent, rather than conjectural or hypothetical; (2) that there13
is a causal connection such that the injury is fairly traceable to the challenged conduct; and (3)14
that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable15
decision. Lujan, 504 U.S. at 560-61. “Since this case remains at the pleading stage, all facts16
averred by the plaintiffs must be taken as true for purposes of the standing inquiry—as they must17
be for any other issue presented.” Lerman v. Bd. of Elections, 232 F.3d 135, 142 (2d Cir. 2000). 18
The district court held that plaintiffs failed to show these elements of standing. 19
See CRLP, 2001 WL 868007, at *8-*12. In reaching its conclusion, the court relied heavily on20
our analysis in Planned Parenthood. See, e.g., id. at *10 (“The Court of Appeals has already21
held that the government is within its constitutional authority in imposing restrictions or22
13
conditions on the receipt of USAID funding by [foreign NGOs].”). In particular, the district1
court placed great weight on our statement in Planned Parenthood that the harm alleged by2
domestic NGOs is the result not of the Mexico City Policy itself, but of “choices made by foreign3
NGOs to take AID’s money rather than engage in non-AID funded cooperative efforts with4
plaintiffs-appellants.” Id. at *10, *11 (quoting Planned Parenthood, 915 F.2d at 64). Based on5
this language from Planned Parenthood, the district court found that “plaintiffs have failed to6
show that their alleged harms are caused by the challenged government policies.” Id. at *12. 7
It is not clear, however, that the district court’s reliance on Planned Parenthood is8
entirely justified in this context. We found in Planned Parenthood that the alleged harm suffered9
by domestic NGOs is attributable to independent decisions of foreign NGOs, but only for10
purposes of the merits of plaintiffs’ First Amendment claims. It does not necessarily follow that11
Planned Parenthood answers the question of causation with respect to constitutional standing. 12
One reason why Planned Parenthood might be deemed to resolve the standing13
question is that Planned Parenthood, though adjudicated on the merits, was decided on the14
pleadings. Thus, one could argue that this Court decided as a matter of law that the Mexico City15
Policy could not be deemed the legal “cause” of the alleged harm to domestic NGOs. Although16
this finding was used to form a different conclusion in Planned Parenthood—that plaintiffs’17
claims failed on the merits—it arguably could be employed in our standing analysis here. On the18
other hand, it could be argued that Planned Parenthood is not dispositive, particularly in light of19
an intervening Supreme Court case that clarified the causation aspect of the standing inquiry. In20
Bennett v. Spear, 520 U.S. 154, 167 (1997), plaintiffs argued that a Biological Opinion by the21
Fish and Wildlife Service influenced the Bureau of Reclamation to reduce the quantity of22
14
irrigation water available to plaintiffs. Rejecting the government’s contention that plaintiffs1
lacked standing because the Bureau’s conduct constituted an “independent” act breaking the2
chain of causation under Lujan, the Supreme Court explained that “[t]his wrongly equates injury3
‘fairly traceable’ to the defendant with injury as to which the defendant’s actions are the very last4
step in the chain of causation.” Id. at 168-69. The Court stated that while “it does not suffice if5
the injury complained of is the result of the independent action of some third party not before the6
court . . . that does not exclude injury produced by determinative or coercive effect upon the7
action of someone else.” Id. at 169 (quotation marks and alterations omitted). Bennett can be8
read to support plaintiffs’ standing argument in the instant case. 9
We are thus faced with a situation of a sui generis nature, inasmuch as our10
conclusion depends in large part on how much weight one places on our language in Planned11
Parenthood—a case that analyzed essentially the same factual allegations as the instant case but12
in a somewhat different context. As Planned Parenthood does not, as the district court implied,13
resolve the standing issue conclusively, we are confronted with a novel question of Article III14
standing.15
D. The Steel Co. Case and Our Authority to Proceed to the Merits16
Because we believe that our decision in Planned Parenthood dooms plaintiffs’17
First Amendment claims on the merits, we must decide whether we should first address18
plaintiffs’ novel theory of constitutional standing with respect to these claims. 19
Between the time that we decided Planned Parenthood and the filing of the20
instant action, the Supreme Court issued a decision in which it criticized the practice whereby a21
court proceeds directly to the merits of a case while assuming arguendo that the plaintiffs have22
15
constitutional standing to bring the suit. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,1
94-101 (1998). This practice, referred to by some courts as “hypothetical jurisdiction,” United2
States v. Troescher, 99 F.3d 933, 934 n.1 (9th Cir. 1996), was often used by federal courts3
seeking to avoid a difficult or novel issue of standing in favor of a relatively easy merits question. 4
In Steel Co., however, Justice Scalia explained that the determination of standing is a question of5
subject matter jurisdiction, and that a court lacks the authority to rule on a case unless it6
determines that jurisdiction exists. Steel Co., 523 U.S. at 94. “For a court to pronounce upon the7
meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is,8
by very definition, for a court to act ultra vires.” Id. at 101-02. Justice Scalia’s decision in Steel9
Co. commanded a five-Justice majority, although two of the five issued a concurring opinion,10
which expressed a more permissive view toward the practice of assumed jurisdiction. See id. at11
110-11 (O’Connor, J., concurring, joined by Kennedy, J.) (stating that “the Court’s opinion12
should not be read as cataloging an exhaustive list of circumstances under which federal courts13
may exercise judgment in reserving difficult questions of jurisdiction when the case alternatively14
could be resolved on the merits in favor of the same party”) (quotation marks and alterations15
omitted). This Court has heeded the admonitions of Steel Co., acknowledging that ordinarily we16
are not to assume the existence of jurisdiction in favor of reaching an “easier” merits issue. 17
Fidelity Partners, Inc. v. First Trust Co. of N.Y., 142 F.3d 560, 565 (2d Cir. 1998); see also In re18
Rationis Enters., Inc. of Panama, 261 F.3d 264, 267-68 (2d Cir. 2001) (citing Steel Co. rule).19
The Steel Co. majority opinion, however, discussed several previous Supreme20
Court decisions which, according to the Court, “must be acknowledged to have diluted the21
absolute purity of the rule that Article III jurisdiction is always an antecedent question.” Steel22
4 See Joan Steinman, After Steel Co.: “Hypothetical Jurisdiction” in the FederalAppellate Courts, 58 Wash. & Lee L. Rev. 855, 862 (2001) (noting the Steel Co. Court’s“embrace, rather than disavowal,” of cases such as Norton and Avrech, both discussed infra).
16
Co., 523 U.S. at 101. Moreover, the Court chose not to state simply that, to the extent that1
previous cases might be read to permit assumed jurisdiction, those cases are overruled. Instead,2
the Court distinguished the cases on various grounds, thus leaving their precedential value3
intact.4 Two such cases are of particular relevance here.4
The first is Norton v. Matthews, 427 U.S. 524 (1976), in which the Court declined5
to address a jurisdictional issue and answered the merits question regarding whether certain6
aspects of the Social Security Act were unconstitutional. The Steel Co. Court distinguished7
Norton on the ground that, in Norton, “[w]e declined to decide th[e] jurisdictional question,8
because the merits question was decided in a companion case, Mathews v. Lucas, with the9
consequence that the jurisdictional question could have no effect on the outcome.” Steel Co.,10
523 U.S. at 98 (internal citation omitted). The Steel Co. Court explained that the outcome in11
Norton was “foreordained by Lucas” and thus “Norton did not use the pretermission of the12
jurisdictional question as a device for reaching a question of law that otherwise would have gone13
unaddressed.” Id.14
The Steel Co. Court also distinguished and did not overrule Secretary of Navy v.15
Avrech, 418 U.S. 676 (1974). The Court explained, “Avrech also involved an instance in which16
an intervening Supreme Court decision definitively answered the merits question.” Steel Co.,17
523 U.S. at 98-99. Avrech involved a constitutional challenge to a provision of the Code of18
Military Justice. When another case, Parker v. Levy, 417 U.S. 733 (1974), rejected a similar19
5 The Steel Co. Court seems to acknowledge this when, after recognizing that cases suchas Norton and Avrech “have diluted the absolute purity of the rule that Article III jurisdiction isalways an antecedent question,” the Court urges that these cases do not support a rule that“enables a court to resolve contested questions of law when its jurisdiction is in doubt.” SteelCo., 523 U.S. at 101 (emphasis added). Moreover, a majority of the Justices in Steel Co. citedNorton approvingly for the proposition that a court may assume the existence of jurisdiction incertain circumstances. See id. at 110-11 (O’Connor, J., concurring, joined by Kennedy, J.); id. at111 (Breyer, J., concurring in part and concurring in the judgment); id. at 122 n.15 (Stevens, J.,concurring in the judgment, joined in relevant part by Souter, J.).
17
constitutional challenge to the same provision, the Court decided to dispose of Avrech on the1
merits, stating that it was “unwilling to decide the difficult jurisdictional issue which the parties2
have briefed.” Avrech, 418 U.S. at 677. The Avrech Court explained its rationale: “We believe3
that even the most diligent and zealous advocate could find his ardor somewhat dampened in4
arguing a jurisdictional issue where the decision on the merits is thus foreordained.” Id. at 678. 5
The Steel Co. Court thus distinguished Avrech, finding that the “peculiar circumstances” of6
Avrech did not permit the case to be cited for the more general proposition that any “easy” merits7
question may be decided on the assumption of jurisdiction. Steel Co., 523 U.S. at 99. 8
Thus, the majority opinion in Steel Co. appears to allow an exception to the rule9
against assuming the existence of standing in those “peculiar circumstances” where the outcome10
on the merits has been “foreordained” by another case such that “the jurisdictional question could11
have no effect on the outcome,” provided the court “d[oes] not use the pretermission of the12
jurisdictional question as a device for reaching a question of law that otherwise would have gone13
unaddressed.” Id. at 98;5 cf. Nippon Steel Corp. v. United States, 219 F.3d 1348, 1352-53 (Fed.14
Cir. 2000) (using the Steel Co. Court’s approval of Norton as authority to bypass a jurisdictional15
question and decide the merits in an “unusual situation” where the two issues are intertwined). 16
We find ourselves in largely the same situation as the Supreme Court found itself in Norton and17
18
Avrech: plaintiffs in this case challenge a governmental provision (the use of the Standard1
Clause) as unconstitutional, and there is a controlling case in which this Court entertained and2
rejected the same constitutional challenge to the same provision. Our outcome on the merits is3
thus “foreordained” by Planned Parenthood. Under the Norton/Avrech exception acknowledged4
in Steel Co., we need not reach the academic question of Article III standing in this case.5
Our approach not only comports with the language of the Steel Co. majority6
opinion, but also advances the underlying rationale of Steel Co. and makes good sense as a7
constitutional matter. The concern of the Steel Co. majority was that deciding a case on the mere8
assumption of jurisdiction can lead to the rendering of advisory opinions in violation of Article9
III: “Hypothetical jurisdiction produces nothing more than a hypothetical judgment—which10
comes to the same thing as an advisory opinion, disapproved by this Court from the beginning.” 11
Steel Co., 523 U.S. at 101 (citations omitted). Turning to the instant case, we note that where the12
precise merits question has already been decided in another case by the same court, it is the13
adjudication of the standing issue that resembles an advisory opinion—the very concern that14
animates the Steel Co. rule. It would be ironic if, in our desire to avoid rendering an advisory15
opinion, we were to address a novel standing question in a case where the result is foreordained16
by another decision of this Court. See id. at 123-24 (Stevens, J., concurring in the judgment)17
(noting that by addressing a standing issue unnecessarily “the Court is engaged in a version of the18
‘hypothetical jurisdiction’ that it has taken pains to condemn”). We further note that the question19
of Article III standing is itself of constitutional dimensions, see id. at 124, and “the Supreme20
Court has for generations warned against reaching out to adjudicate constitutional matters21
unnecessarily,” Horne v. Coughlin, 191 F.3d 244, 246 (2d Cir. 1999). 22
6 As plaintiffs’ claims based on customary international law are substantivelyindistinguishable from their First Amendment claims, they are dismissed on the same ground. We express no view as to whether those claims are otherwise viable.
19
We hold that where, as here, a governmental provision is challenged as1
unconstitutional, and a controlling decision of this Court has already entertained and rejected the2
same constitutional challenge to the same provision, the Court may dispose of the case on the3
merits without addressing a novel question of jurisdiction. The Supreme Court followed this4
approach in Norton and Avrech, and approved of those cases in Steel Co. Plaintiffs’ First5
Amendment claims are therefore dismissed for failure to state a claim.66
II. Due Process Claim: Lack of Prudential Standing 7
Because Planned Parenthood did not address due process claims brought by8
domestic NGOs in this context, we address the due process claim separately and dismiss it on the9
alternative ground of prudential standing. 10
“The doctrine of standing, which addresses the question of whether the plaintiff is11
entitled to have the court decide the merits of the dispute or of particular issues, embraces both12
‘constitutional’ and ‘prudential’ requirements.” Sullivan v. Syracuse Hous. Auth., 962 F.2d13
1101, 1106 (2d Cir. 1992) (quotation marks and brackets omitted). The constitutional14
requirements, derived from Article III, are the injury in fact, causation, and redressability15
elements set out by the Supreme Court in Lujan. On the other hand, “[t]he prudential16
requirements of standing have been developed by the Supreme Court on its own accord and17
applied in a more discretionary fashion as rules of judicial ‘self-restraint’ further to protect, to the18
extent necessary under the circumstances, the purpose of Article III.” Id. (internal citations19
omitted). Pursuant to the doctrine of prudential standing, a court must ask whether a plaintiff’s20
20
claim rests on the legal rights of a third party, asserts only a generalized grievance, or asserts a1
claim that falls outside the zone of interests protected by the legal provision invoked. See Valley2
Forge Christian Coll. v. Ams. United, 454 U.S. 464, 474-75 (1982); In re Appointment of Indep.3
Counsel, 766 F.2d 70, 74 (2d Cir. 1985). Of particular concern in the instant case is “the4
requirement that a plaintiff’s complaint fall within the zone of interests protected by the law5
invoked,” Crist v. Comm’n on Presidential Debates, 262 F.3d 193, 195 (2d Cir. 2001) (quoting6
Allen v. Wright, 468 U.S. 737, 750-51 (1984)), coupled with the rule against asserting the rights7
of a third party. Plaintiffs’ claims do not fall within the “zone of interests” protected by the Due8
Process Clause. 9
Plaintiffs’ due process claim is based on their allegation that the challenged10
restrictions fail to give clear notice of what political speech, public education, and law reform11
activities they prohibit and that they encourage arbitrary and discriminatory enforcement. Am.12
Compl. ¶ 140. It is not the plaintiffs, however, who are allegedly left uncertain of their rights by13
unconstitutionally vague language in a government provision; it is the foreign NGOs who are14
allegedly left in this position. Plaintiffs’ harm is derivative of this due process-type harm, and15
their alleged injury (albeit an unactionable one) concerns First Amendment interests. Plaintiffs’16
allegation, simply put, is that the vague language of the Standard Clause causes the foreign17
NGOs to be overly cautious in avoiding interaction with plaintiffs, which in turn harms18
plaintiffs’ speech and association interests. On appeal, plaintiffs expressly acknowledge that19
“[t]his vagueness claim is premised on the [restrictions’] chilling effect on protected speech and20
association.” As plaintiffs do not assert a harm to their own interest in receiving due process of21
law, this is precisely the sort of claim that the prudential standing doctrine is designed to22
21
foreclose. Plaintiffs cannot make their First Amendment claims actionable merely by attaching1
them to a third party’s due process interests. See Haitian Refugee Ctr. v. Gracey, 809 F.2d 794,2
809 (D.C. Cir. 1987) (explaining that because due process rights “do not protect a relationship”3
between a third party and a litigant, a plaintiff “could never have standing to challenge a statute4
solely on the ground that it failed to provide due process to third parties not before the court”). 5
Plaintiffs’ due process claim is therefore dismissed for lack of prudential standing. 6
III. Equal Protection Claim7
A. Plaintiffs Have “Competitive Advocate Standing”8
Plaintiffs argue that the district court failed to undertake a separate analysis of9
their Article III standing to bring an equal protection claim. Because we agree with plaintiffs that10
the case law regarding constitutional standing for equal protection claims is distinct, and because11
Planned Parenthood does not foreclose this claim on the merits, we address the question of12
Article III standing with respect to this claim. As the case law and the legal theories involved are13
quite different, this constitutional standing analysis does not inform the question on which we14
reserved judgment above regarding constitutional standing to bring the First Amendment claims. 15
We find that plaintiffs do have constitutional standing to bring an equal protection claim. 16
With respect to the equal protection claim, the relevant portion of the complaint17
reads:18
The [use of the Standard Clause] violates the Equal Protection component of the Fifth19Amendment to the United States Constitution because it prohibits plaintiffs from20associating with USAID-recipient [foreign NGOs] for the purpose of promoting abortion21law reform, but permits other United States citizens and residents to associate with22USAID-recipient [foreign NGOs] for the purpose of opposing abortion law reform, and,23more generally, permits association with USAID-recipient [foreign NGOs] for the24purpose of rendering speech opposed to abortion more effective.25
22
Am. Compl. ¶ 138. On appeal, plaintiffs flesh out the equal protection claim by explaining that1
the use of the Standard Clause, “by prohibiting [foreign NGOs] from collaborating with2
Plaintiffs, denies Plaintiffs the opportunity to compete on an equal footing with opponents of3
abortion law reform.”4
Though plaintiffs do not employ the term, this argument is essentially a theory5
that this Court has dubbed “competitive advocate standing.” We have acknowledged the6
possibility that a plaintiff may have standing to bring an equal protection claim where the7
government’s allocation of a particular benefit “creates an uneven playing field” for8
organizations advocating their views in the public arena. In re United States Catholic9
Conference, 885 F.2d 1020, 1029 (2d Cir. 1989). In order to “satisfy the rule that he was10
personally disadvantaged,” a plaintiff must “show that he personally competes in the same arena11
with the party to whom the government has bestowed the assertedly illegal benefit.” Id.12
Plaintiffs have standing under this theory. CRLP is an advocacy organization that13
communicates its viewpoint regarding issues of abortion and reproductive rights, and it competes14
with anti-abortion groups engaged in advocacy around the very same issues. The Standard15
Clause has bestowed a benefit on plaintiffs’ competitive adversaries by rewarding their suppliers16
of information, the foreign NGOs, with government grants, while withholding those grants from17
suppliers of information who would deal with CRLP. This is precisely the type of situation that18
the doctrine of competitive advocate standing contemplates. See id.; cf. Adarand Constructors,19
Inc. v. Pena, 515 U.S. 200, 211 (1995) (finding, under the test for standing articulated in Lujan,20
504 U.S. at 560, that a non-minority subcontractor had standing to contest a government policy21
that gave a financial incentive to general contractors to give preference to minority22
23
subcontractors in awarding subcontracts).1
B. The Equal Protection Claim is Without Merit2
Because this classification “neither proceeds along suspect lines nor infringes3
fundamental constitutional rights,” it must “be upheld against equal protection challenge if there4
is any reasonable state of facts that could provide a rational basis for the classification.” F.C.C.5
v. Beach Communications, Inc., 508 U.S. 307, 313 (1993); see also Weinstein v. Albright, 2616
F.3d 127, 140 (2d Cir. 2001). Here there can be no question that the classification survives7
rational basis review. The Supreme Court has made clear that the government is free to favor the8
anti-abortion position over the pro-choice position, and can do so with public funds. See Rust v.9
Sullivan, 500 U.S. 173, 192-94 (1991). Plaintiffs’ equal protection challenge is thus without10
merit.11
CONCLUSION12
For the reasons stated, we affirm the district court’s dismissal of this action,13
though on different grounds.14
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
2
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 otherbody, either jointly or alone, under the law of the State in which the child was habituallyresident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointlyor 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.
1 The majority states that the custody order “confers the sole ‘custody, care andcontrol’” upon Ms. Croll. Ante at [2] (emphasis added); see also id. at [18] (stating that “the custodyorder awards custody solely to the mother”) (emphasis added). However, nowhere does the HongKong 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 theImmigration Department not to issue passports allowing the said child to go abroad without his/herknowledge.”
3
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.
4
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
5
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 Pérez-
Vera, 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.
6
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 ofthe child and, in particular, the right to determine the child’s place ofresidence; . . .
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.
7
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 legalimportance from the possibility of individuals establishing legal and jurisdictionallinks [in the new country] which are more or less artificial. In fact, resorting tothis expedient, an individual can change the applicable law and obtain a judicialdecision favourable to him. [Such a decision] bears a legal title sufficient to‘legalize’ a factual situation which none of the legal systems involved wished tosee 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, 245-
46 (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.
8
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
3 To be sure, the right to prevent a child’s removal from her home country does notconstitute 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-VeraReport, para. 71 (characterizing “joint custody” as “dividing the responsibilities inherent in custody
9
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
rights between both parents”). Furthermore, that a right is a veto or “negative right” does not diminishits 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
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
4 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 uponher return to Hong Kong. See ante at [23]. Christina’s care upon her return is neither premised onassumptions nor relevant to the issue before us. First, it strains credulity to suggest that a father who, ashere, searches the world for his child to get her back and files a petition in a foreign forum in order todo so, would, upon succeeding in his efforts, simply permit his child to stand abandoned in the airportupon 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 ameliorateany short-term harm to the child, courts in the appropriate circumstances have made return contingentupon ‘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 ofexacting appropriate undertakings from the parents designed to ensure that the children will be caredfor properly during transit and that no harm will come to the children pending disposition in the countryof 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 issuesconcerning Christina’s custody upon her return are beyond the scope of the Convention, which dealssolely with returning a child to the country of habitual residence so that its courts, and not a foreigncourt in the country to which the child has been wrongfully removed, can adjudicate custody rights withrespect to that child. This concept underlying the Convention — that the child is best served byentrusting decisions regarding his or her custody to the courts of the child’s country of habitualresidence — stands in direct contradiction to the majority’s parochial view that foreign courts cannot betrusted in the same manner as American courts to competently make necessary decisions regarding thechild. See ante at [23] (“on this point the dissent is generalizing from local American law”).
11
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.
5 The majority quotes A.E. Anton, the former chairman of the Hague ConferenceCommission, who opines that “breach of a right simply to give or to withhold consent to changes in a
12
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
child’s place of residence is not to be construed as a breach of rights of custody in the sense of Article3.” Ante at [22] (quoting A.E. Anton, The Hague Convention on International Child Abduction, 30Int’l & Comp. L.Q. 537, 546 (1981)). Although Mr. Anton’s views support the majority’sinterpretation of the Convention, the majority neglects to emphasize that his article represents only hispersonal views and not the official legislative history of the Convention. See Anton, supra at 537 (“Thispaper, however, must not be taken to reflect any views other than those of the author.”). His article istherefore appropriately viewed as simply the opinion of one scholar. Other scholars, in contrast, haveconcluded that ne exeat rights do constitute “rights of custody” under the Convention. See, e.g., PaulR. Beaumont & Peter E. McEleavy, The Hague Convention on International Child Abduction 72-73 (1999) (“If an individual is a child’s sole custodian there are, prima facie, no restrictions on himrelocating with that child. If there are such restrictions, that implies that the custody right must in someway be limited. Where this is so it must be that another body or individual holds a corresponding rightin relation to the child. Therefore, should the primary carer remove the child abroad, . . . he wouldhave breached the custody rights of the other party, if their consent had not been sought.”) (emphasis inoriginal); Linda Silberman, “Custody Orders Under the Hague Abduction Convention,” in A NewVision for a Non-Violent World: Justice for Each Child (Proceedings of the 4th Biennial InternationalConference of the International Association of Women Judges, 1999), at 236 (arguing that in cases ofnon-removal order violations, “a failure to recognize the Convention remedy of return would beinconsistent with the careful compromise [between custody and access rights] that the Conventiondefinition [of custody rights] has put in place.”).
13
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
14
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
6 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 andnot the joint guardianship clause in determining that the father possessed “rights of custody” under theConvention. See [1989] 1 W.L.R. at 657-58 (“[The lower court judge] heard argument as to theeffect of . . . joint guardianship. . . . [Accordingly, t]he judge’s attention does not appear to have beensufficiently drawn to the effect on the definition in article 5 of the Convention of clause 2 of theNovember 1986 order, that neither parent should remove the child from Australia without the consentof the other.”).
15
the Convention:6
[T]he father had, in my judgment, the right to determine that the child shouldreside 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 alsoas 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 havethe right to determine the child’s place of residence within Australia but has theright to ensure that the child remains in Australia or lives anywhere outsideAustralia 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 non-
removal 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
7 It is not apparent to me how the majority turns this case — involving a veto power overinternational relocation possessed by a court and a parent — into a decision that requires return of thechild “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 anorder of return if they did not possess ne exeat rights, nor does B v. B or this dissent suggest that returnwould be required in the scenario posed by the majority of “expatriation in derogation solely of parentalrights of access.” See ante at [19].
8 Although the majority states that “we and the district court are the only courts in theUnited States,” ante at [9], to consider the issue before us, I note that two American courts have alsorecognized “rights of custody” in connection with custody orders containing a ne exeat clause. See
16
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
David S. v. Zamira S., 151 Misc.2d 630, 574 N.Y.S.2d 429 (N.Y. Fam. Ct. 1991); Janakakis-Kostun v. Janakakis, 6 S.W.3d 843 (Ky. Ct. App. 1999), review denied (Dec. 9, 1999), petitionfor cert. filed, 68 U.S.L.W. 3595 (U.S. Mar. 8, 2000) (No. 99-1496). In my view, however, thesecases are of limited utility because they fail precisely to define “custodial rights” or to differentiate themfrom access rights.
17
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,
9 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) (discussingFrench cases).
18
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 non-
custodial 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
19
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
10 Ms. Croll does not argue on appeal that Mr. Croll’s petition was defective underArticle 3(b) of the Convention. The majority reaches this issue sua sponte.
20
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 timeof removal or retention those rights [of custody] were actually exercised, either jointlyor 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 This
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
21
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.
United States Court of AppealsFOR THE
SECOND CIRCUIT__________________
At a stated Term of the United States Court of Appeals for the SecondCircuit, 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. 98-9624
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 inbanc having been made by a judge of the Court, and a poll of the judges in regular active service havingbeen taken, a majority of the Court has voted not to reconsider the decision in banc. The mandate shalltherefore issue. Judges Leval, Calabresi and Sotomayor dissent.
FOR THE COURT: Roseann B. MacKechnie, Clerk
By:____________________________ Beth J. Meador,
Administrative Attorney
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UNITED STATES COURT OF APPEALS1FOR THE SECOND CIRCUIT2
3August Term, 19994
5(Argued: August 30, 1999 Decided: April 10, 2000)6
(On Reconsideration by the Court In Banc Dissent: September 28, 2000)78
Docket No. 98-9624910
____________________________________________________________________________1112
LEE N. KOEHLER, 1314
Petitioner-Appellant,1516
v.1718
THE BANK OF BERMUDA (NEW YORK) LIMITED, a New York Corporation, THE BANK 19OF BERMUDA LIMITED, a Bermuda Corporation, REEFS BEACH CLUB LIMITED, a 20Bermuda Corporation, and A. DAVID DODWELL, a Bermuda citizen, 21
22Defendants-Appellees.23
____________________________________________________________________________24252627
SOTOMAYOR, Circuit Judge, with whom Judge LEVAL concurs, dissenting from the denial of28rehearing in banc: 29
30Judge Calabresi dissents in a separate opinion.31
32Federal courts may, under their alienage jurisdiction, hear controversies between 33
“citizens of a State and citizens or subjects of a foreign state.” 28 U.S.C. § 1332(a)(2) (1994). Based34
upon a prior holding of this Court in Matimak Trading Co. v. Khalily, 118 F.3d 76 (2d Cir. 1997),35
cert. denied, 522 U.S. 1091 (1998), the panel in this case concluded that Bermuda corporations and a36
Bermuda citizen were not “citizens or subjects of a foreign state,” and, therefore, that a controversy37
involving such parties was not within the alienage jurisdiction of the federal courts. Koehler v. Bank of38
Bermuda (New York) Ltd., 209 F.3d 130, 139 (2d Cir. 2000). Because a rehearing in banc would39
1 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 FalklandIslands, Gibralter, Montserrat, the Pitcairn Islands, Saint Helena and dependencies, South Georgia andthe South Sandwich Islands, and the Turks and Caicos Islands. See Brief Amicus Curiae of theGovernment of the United Kingdom of Great Britain and Northern Ireland in Support of MatimakTrading 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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provide a much-needed opportunity for the full Court to reexamine the flawed and internationally1
troublesome position that corporations and individuals from territories of the United Kingdom do not fall2
within the alienage jurisdiction of the federal courts, I dissent from the denial of the petition for rehearing3
in banc. 4
5
I. 6
This is a question of “exceptional importance.” Fed. R. App. P. 35(a)(2). Its import7
reaches well beyond our government, to our relations with foreign nations, and the access of foreign8
entities and individuals to the federal courts. Both the Executive Branch and the government of the9
United Kingdom of Great Britain and Northern Ireland have asked that we reconsider the reasoning we10
employed in Matimak. This Circuit’s understanding of the scope of alienage jurisdiction is squarely in11
conflict with that of the other circuit courts that have addressed this question. When issues of such12
enduring significance are presented, I believe that the Court in banc should reexamine the merits of its13
conclusion to ensure that substantial numbers of individuals and corporations are not erroneously14
deprived of access to our federal courts. 15
The defendants in this case include Bermuda corporations and a Bermuda citizen. 16
Bermuda is not recognized by our State Department as an independent state. It is, rather, a “British17
Overseas Territory.”1 Essential to this case is the fact that despite the myriad ways in 18
1997, 563 banks and 34,169 other companies were incorporated in the Cayman Islands, at least 8,224businesses were incorporated in Bermuda, at least 100,000 companies were incorporated in the BritishVirgin 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 consideredsignificant tax havens. See Mark Baker, Lost in the Judicial Wilderness: The Stateless CorporationAfter Matimak Trading, 19 Nw. J. Int'l L. & Bus. 130, 132 n.8 (1998) (noting that the holding inMatimak adds an “element of unpredictability” to the world of tax structuring).
2 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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which the United Kingdom exercises dominion over Bermuda, British law terms Bermudan citizens and1
corporations “nationals,” but not “subjects,” of the United Kingdom. See United Kingdom2
Government’s Diplomatic Service Procedure Manual, Vol. 7, Annex 1, Rules 1(b), 2(a) (1996). 3
Previously, this Court in Matimak held that a corporation organized under the laws of Hong Kong4
could not sue New York defendants in federal court because Hong Kong was, at the time, a5
Dependent Territory of the United Kingdom, and therefore the plaintiff corporation was not a “citizen6
or subject” of a foreign “state.”2 Relying on Matimak, the panel here concluded that Bermuda7
corporations and a Bermuda citizen were not “citizens or subjects of a foreign state,” 28 U.S.C. §8
1332(a)(2) (1994), and therefore not within our alienage jurisdiction. 9
The people of Bermuda would undoubtedly be surprised to learn that they are10
“stateless.” But this is precisely the conclusion upon which these decisions rest. See Matimak, 11811
F.3d at 86 (“[Plaintiff-Hong Kong corporation] is thus stateless. And a stateless person–the proverbial12
man without a country–cannot sue a United States citizen under alienage jurisdiction.”). Having found13
such entities or individuals “stateless,” the panels in this case and in Matimak had no difficulty denying14
these litigants access to the federal courts because “[t]he raison d’etre of alienage jurisdiction is to avoid15
entanglements with other sovereigns that might ensue from failure to treat the legal controversies of16
3 See U.K. Matimak Brief at 9 (“The United Kingdom is keenly concerned that the citizens andcorporations of its Dependent Territories be able to bring and defend suits in neutral foreign foraconcerning their global commerce.”); Brief Amicus Curiae of the Government of the United Kingdomof Great Britain and Northern Ireland in Support of Appellant at 2, III Finance Ltd. v. AegisConsumer Funding Group (No. 00-7016) (hereinafter U.K. Aegis Brief) (“The United KingdomGovernment submits that it would not be in the interest of its trading relationship with the United Statesfor the corporations of the United Kingdom Overseas Territories to be excluded from United Statesfederal courts.”); Diplomatic Note No. 13/2000 from the British Embassy in Washington, D.C. to theUnited States Department of State, Feb. 2, 2000 at 1 (“The United Kingdom [] views with greatconcern the potential application of the Matimak rationale to individual Overseas Territories residents,as well as to commercial enterprises.”) .
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aliens on a national level.” Matimak, 118 F.3d at 82 (internal quotation omitted). These panels1
implicitly reason that absent a “state,” there is no sovereign to offend and therefore no cause to provide2
federal alienage jurisdiction. 3
This assurance is undermined by the strong reaction to our decisions by the United4
Kingdom.3 Whatever other intention the panels here and in Matimak may have had, there can be no5
doubt that the fundamental purpose of alienage jurisdiction--to void offense to foreign nations--is6
frustrated by the Matimak decision and its further application by this panel. Paradoxically, the country7
we offend by these holdings is not only a strong ally, but the very country the drafters of the alienage8
jurisdiction provision had in mind more than two hundred years ago when they sought to open the9
federal courts to foreign litigants. See Kevin R. Johnson, Why Alienage Jurisdiction? Historical10
Foundations and Modern Justifications over Disputes Involving Noncitizens, 21 Yale J. Int’l L. 1,11
7-8 (1996) (noting the failure of state courts to enforce debts owed to British creditors following the12
Revolutionary War). 13
This Court, in Matimak, attempted to shift responsibility for the disturbing14
consequences of its reasoning to the Executive Branch. Because the Department of State maintains that15
British Overseas Territories are not independent “states,” the Matimak court reasoned that it was16
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forced to conclude that Bermuda corporations were stateless. See Matimak, 118 F.3d at 831
(commenting that “it is for the Executive Branch, not the courts, to anticipate where potential2
‘entanglements’ with such entities are appreciable enough to recognize sovereign status”). The3
Executive Branch, however, has urged us not to use the definition of “statehood” taken from the4
context of diplomatic recognition as a basis for denying British Overseas Territories the benefit of5
federal alienage jurisdiction. The Executive Branch has emphasized that to do so may cause the United6
States to “face an international controversy with British authorities for failure to provide a neutral forum”7
for individuals or corporations of a British Overseas Territory in federal court. Brief Amicus Curiae for8
the United States at 8, Matimak Trading Co. v. Khalily (96-9117). 9
Our Circuit is alone in concluding that federal alienage jurisdiction does not extend to10
citizens and corporations of British Overseas Territories. The Third Circuit, largely out of deference to11
the Executive Branch’s position that Hong Kong corporations were considered, at the time, “subject to12
British sovereignty,” found that they fell within the federal courts’ alienage jurisdiction. Southern Cross13
Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 413 (3rd Cir.1999). 14
The Seventh Circuit has held that a Cayman Islands corporation could be sued in federal court under15
alienage jurisdiction, explaining that, “[c]ertainly, the exercise of American judicial authority over the16
citizens of a British Dependent Territory implicates this country’s relationship with the United17
Kingdom–precisely the raison d’etre for applying alienage jurisdiction.” Wilson v. Humphrys18
(Cayman) Ltd., 916 F.2d 1239, 1243 (7th Cir.1990), cert. denied, 499 U.S. 947 (1991). The19
Fourth Circuit, without discussion of the issue, has found that a Bermuda resident–apparently the same20
individual defendant sued in this case--was a “citizen” or “subject” of a foreign state for alienage21
jurisdiction purposes. Koehler v. Dodwell, 152 F.3d 304, 308 (4th Cir. 1998). 22
Owing to the fact that our characterization of corporations and citizens of British23
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Overseas Territories as “stateless” has given rise to precisely the sort of damage to foreign relations the1
statute was meant to avoid, it is questionable that this distinction has its origins in the statute. Nor is this2
dubious characterization imposed upon us by the Executive Branch, which has advocated a contrary3
rule. Neither has this distinction been accepted by our sister circuits. Moreover, this Circuit has4
previously concluded, albeit without discussion, that “[t]here is no question” that alienage jurisdiction5
existed between citizens of the United States and a Bermuda corporation. Netherlands Shipmortgage6
Corp. v. Madias, 717 F.2d 731, 735 (2d Cir. 1983). Finally, two respected senior circuit judges from7
the panel in this case, Judge Jon O. Newman and Judge Richard J. Cardamone, have expressed8
disagreement with the merits of our precedent in Matimak. See Koehler v. Bank of Bermuda (New9
York) Ltd., __ F.3d __, __ n. _ (2d Cir. 2000). All this being the case, it seems incumbent upon us, as10
a full Court, to reexamine the basis upon which our panels both here and in Matimak reached their11
conclusions. 12
II.13
An examination of the merits leads to the conclusion that Matimak misapplied the terms14
“citizens or subjects of a foreign state” in a fashion inconsistent with both the historical understanding of15
these terms and a contemporary understanding of the relationship between the United Kingdom and its16
Overseas Territories.17
The panel in Matimak began its analysis with the unremarkable proposition that “a18
foreign state is entitled to define who are its citizens or subjects.” Matimak, 118 F.3d at 85 (citing,19
inter alia, United States v. Wong Kin Ark, 169 U.S. 649 (1898)). The court then concluded that a20
British Overseas Territory corporation did not fall within the scope of alienage jurisdiction because21
British law did not designate the corporation a “citizen” or “subject” of the United Kingdom or indicate22
4 Aside from the substantial authority cited for the proposition that a foreign state determines its owncitizenship and nationality law, and for the relationship between the terms “citizen” and “subject,” theMatimak opinion contains little authority to support its analysis of the “citizenship” or “subjecthood” ofcorporations in British Overseas Territories. See Matimak, 118 F.3d at 85-86. One unpublisheddistrict 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 werenot 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 isdeemed to be a citizen of the United Kingdom and its Overseas Territory. Consequently, federalcourts may properly invoke diversity jurisdiction over suits in which a citizen of the Cayman Islands orBermuda is a party.”).
The cases cited by the Matimak court in support of the proposition that a stateless personcannot sue a United States citizen in federal court regard an individual whose citizenship has beenrevoked by a sovereign and nowhere suggest that a British Overseas Territory’s people or corporationscould exist in a condition of perpetual statelessness. See Matimak, 118 F.3d at 86.
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that the corporation was under the control of the United Kingdom. Matimak, 118 F.3d at 85-6.4 1
None would argue with the notion that a foreign state is entitled to define what persons2
or entities fall into its categories of “citizen “or “subject,” or any other of a variety of legal forms that3
exist under its own domestic immigration, nationality, and commercial law. The domestic meaning that4
any particular country may give to the terms “citizen” or “subject” does not, however, bind our courts in5
determining whether an individual or entity falls within the statutory meaning of such terms as provided6
by our law of alienage jurisdiction. The wide disparity in meaning that exists among countries7
concerning such terms requires that our alienage jurisdiction be determined not according to the8
appearance of the words “citizen” or “subject” (or translation thereof) in the pages of a country’s9
domestic code, but according to whether United States law deems such persons or entities to be10
“citizens or subjects” under our Constitution and statutes for the purpose of alienage jurisdiction. To11
proceed otherwise would be to “allow foreign law to deny privileges afforded under the Constitution . .12
5 This task is analogous to that of deciding the state of domicile of a party in a diversity action infederal 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 statecitizenship for guidance, “[d]etermination of a litigant’s state of domicile for purposes of diversity iscontrolled 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).
6 The legislative debates concerning the Judiciary Act of 1789 referred to the alienage jurisdictionprovision as providing access to the federal courts for “foreigners” or “aliens.” See 1 Annals ofCongress (1st Cong.) 810, 814, 825 (Joseph Gales ed., 1834) (House debates).
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. [and perhaps] unintentionally promote discrimination against certain classes of people or entities.” 1
Matimak, 118 F.3d at 89-90 (Altimari, J., dissenting).5 2
As an historical matter, the drafters of the Constitution chose the words “citizens” or3
“subjects” to refer to the broad category of those under the authority of a foreign power. See Bank of4
the United States v. Deveaux, 9 U.S. (5 Cranch) 61, 87 (1809) (Marshall, C.J.) (recognizing that the5
Constitution “established national tribunals for the decision of controversies between aliens and a citizen6
[of the United States]”), overruled in part on other grounds by Louisville, Cincinnati & Charleston7
R.R. Co. v. Letson, 43 U.S. (2 How.) 497 (1844). The Judiciary Act of 1789 used the word “alien”8
apparently as an equivalent term to “citizens” or “subjects” in the first rendering of the statutory grant of9
authority to exercise federal alienage jurisdiction. Compare U.S. Const. art. III, sec. 2, cl. 110
(extending jurisdiction to controversies “between a State, or the Citizens thereof, and foreign States,11
Citizens or Subjects”) with Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73, 78 (extending jurisdiction12
to suits in which “an alien is a party”).6 Oliver Ellsworth, the principal architect of the Judiciary Act of13
1789 that contained the alienage jurisdiction provision, referred to the need to provide a federal forum14
for controversies between United States citizens and “foreigners.” See Charles Warren, New Light on15
the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 60 (1932) (quoting Letter of16
Oliver Ellsworth to Judge Richard Law, Apr. 30, 1789). “[T]he Framers often referred to [non-U.S.]17
7 At the time the Constitution was written and the first alienage jurisdiction statute was enacted, theterm “subject” referred to a person who lived under the control of another. See Samuel Johnson, ADictionary of the English Language (1755) (defining a “subject” as “[o]ne who lives under the dominionof 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]nethat owes allegiance to a sovereign and is governed by his laws. The natives of Great Britain aresubjects of the British government. The natives of the United States, and naturalized foreigners, aresubjects of the federal government. Men in free governments are subjects as well as citizens; ascitizens, they enjoy rights and franchises; as subjects, they are bound to obey the laws.”) (emphasis inoriginal); 2 James Kent, Commentaries on American Law 258 n.b (6th ed., 1848) (“Subject andcitizen are, in a degree, convertible terms as applied to natives; and though the term citizen seems to beappropriate 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 theland.”) (emphasis in original).
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citizens, subjects and foreigners interchangeably,” and “while foreign modes of government are hardly1
‘technicalities’ in any other sense, the Framers apparently did not consider them relevant to the exercise2
of federal jurisdiction.” Southern Cross Overseas, 181 F.3d at 416 (internal quotation marks and3
citations omitted).7 4
In 1875, the alienage jurisdiction provision was amended, replacing the term “alien”5
with the current reference to “citizens” or “subjects.” Act of Mar. 3, 1875, 18 Stat. 470, 470. This6
change, causing the statute to mirror the language of the Constitution, was motivated by the need to7
clarify that an alien could not sue another alien in federal court, and not from dissatisfaction with the8
original statutory term “alien” as impermissibly broader than the terms “citizens” or “subjects” found in9
the Constitution. See Johnson, 21 Yale J. Int’l L. at 21. 10
Although early cases did not explore the precise boundaries of the terms “citizen” and11
“subject” as used in alienage jurisdiction, the Supreme Court did have the opportunity to interpret these12
same terms in other contexts. Their general use confirmed that these terms referred to a range of13
relationships characterized by the acceptance of the authority and protection of a sovereign and an offer14
of allegiance. In 1830, Justice Story, addressing the issue of United States citizenship for expatriates15
8 Justice Story continued, “ [t]wo things usually concur to create citizenship; first, birth locally withinthe dominions of the sovereign; and secondly, birth within the protection and obedience, or in otherwords, within the ligenance of the sovereign. That is, the party must be born within a place where thesovereign is at the time in full possession and exercise of his power, and the party must also at his birthderive protection from, and consequently owe obedience or allegiance to the sovereign, as such, defacto.” Inglis, 28 (3 Pet.) U.S. at 155.
9 The characterization of such corporations as “stateless” by the Matimak court is particularlyjarring considering that corporations are creations purely of law, and, unlike individuals, exist onlythrough an exercise of sovereignty. See Matimak, 118 F.3d at 89 (Altimari, J., dissenting) (“Astateless corporation is an oxymoron.”).
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noted that “[t]he rule commonly laid down in the books is, that every person who is born within the1
ligeance of a sovereign is a subject; and, e converso, that every person born without such allegiance is2
an alien.” Inglis v. Trustees of the Sailors' Snug Harbour, 28 U.S. (3 Pet.) 99, 155 (1830) (Story,3
J).8 In construing the terms of the Spanish Treaty of 1795, the Supreme Court in The Pizzaro, 154
U.S. (2 Wheat) 227 (1817), rejected the claim that the term “subject” in the treaty applied “only to5
persons who, by birth or naturalization owe a permanent allegiance to the Spanish government,” holding6
more simply that, “in the language of the law of nations . . . a person domiciled in a country, and7
enjoying the protection of its sovereign, is deemed a subject of that country.” Id. 245-46. 8
9
It has long been established that “a corporation created by the laws of a foreign state10
may, for the purposes of suing and being sued in the courts of the Union, be treated as a ‘citizen’ or11
‘subject’ of such a foreign state.” National Steam-Ship Co. v. Tugman, 106 U.S. 118, 121 (1882). 12
The defendant-Bermuda corporations in this suit were created under the laws of two different13
countries–Bermuda and the United Kingdom–but under the laws of only one recognized “state,” the14
United Kingdom.9 While the Bermuda’s Companies Act of 1981 provides procedures for15
incorporating companies in Bermuda, 6 Revised Laws of Bermuda, Title 17, Item 5, Part II (1989 &16
10 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 isnevertheless regarded by the British government as a national of the United Kingdom and thereforewithin the scope of § 1332(a)(2). See U.K. Aegis Brief at 11.
11 Bermuda was permitted to draft a constitution by the British Parliament pursuant to the BermudaConstitution 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 Lawsof England, para. 1042 (4th ed. reissue, 1992). Bermuda’s government is administered by a governorappointed by the Crown, id. at para. 994, who has the power to adjourn or dissolve Bermuda’slegislative assembly. Id. at para. 1000. An act dissolving the legislative assembly is deemed to be anexecutive act of the Queen. Id. at para. 1024 & n.1. The United Kingdom maintains supreme controlover Bermuda’s external relations and national defense, id. at para. 983, and has the power to alterBermuda’s boundaries. Id. at para. 992.
12 This conclusion corresponds to the position taken by the Department of State, see, e.g., Letter ofLinda Jacobson, Assistant Legal Adviser of the Department of State to Alan W. Dunch (submitted inthe Koehler litigation) (“[I]t is the position of the United States . . . that Bermuda residents andcorporations are subjects of a foreign state, i.e., Great Britain, for purposes of the federal diversitystatute, 28 U.S.C. § 1332.”); Southern Cross, 181 F.3d at 417 (citing Department of State’s view
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Update 1996), Bermuda and its government exist “under the sovereignty of the Crown.” 6 Halsbury’s1
Laws of England, para. 803 (4th ed. reissue, 1992).10 All authority to make laws for the “peace, order,2
welfare and good government” of Bermuda is granted to the Bermuda legislature solely by the United3
Kingdom, which regulates Bermuda lawmaking. Id. at para. 1027.11 4
Despite this, the panel in this case stated simply that “[b]ecause Bermuda is also a5
British Dependent Territory, Matimak governs . . . [and t]he district court therefore lacked subject6
matter jurisdiction over the state law claims against the Bermuda defendants.” Koehler, 209 F.3d at7
139. In such cases, when our Department of State determines that a country is not a sovereign state,8
the more reasonable conclusion is not that its corporations are “stateless,” but rather that they are9
subject to some other sovereign. Dependent upon the law of the United Kingdom, Bermuda10
corporations exist under the sovereignty of the United Kingdom. They are, for purposes of 28 U.S.C.11
§ 1332(a)(2), “subjects” of the United Kingdom.1212
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 diversityjurisdiction.”), the Department of Justice, see, e.g., Matimak, 118 F.3d at 86 (“The JusticeDepartment concludes that because the ultimate sovereign authority over the plaintiff is the BritishCrown, 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 BritishDependent Territories should be considered ‘subjects’ of the United Kingdom for purposes of thealienage jurisdiction of 28 U.S.C. § 1332.”); U.K. Aegis Brief at 4 (“The position of the UnitedKingdom Government is that entities incorporated in any territory for which the United Kingdom isinternationally responsible are regarded by the United Kingdom Government as United Kingdomnationals and, therefore, are “citizens of subjects” of the United Kingdom for purposes of alienagejurisdiction.”).
13 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 foreigncorporation. See Restatement (Third) of Foreign Relations Law § 213 (1987) (“For purposes ofinternational law, a corporation has the nationality of the state under the laws of which the corporation isorganized.”). If indeed courts must rely solely on the words found in the domestic codes of othercountries 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 themaccess to the federal courts.
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The people of Bermuda, because they live under the sovereignty of the United1
Kingdom, are “citizens or subjects” of the United Kingdom for purposes of alienage jurisdiction. The2
individual defendant in this case, like other Bermudians, is a national of the United Kingdom for3
purposes of its own laws. The status of being a “national” of the United Kingdom, conferred by virtue4
of birth in a British Overseas Territory, fits comfortably within the original meaning of “citizen” or5
“subject” for the purposes of alienage jurisdiction. The United Kingdom continues to function as6
sovereign over Bermuda, ruling over its affairs, protecting it, and enjoying the allegiance of its citizens. 7
The narrowness with which the panels in this case and in Matimak attempted to apply the terms8
“citizen” and “subject” is uncharacteristic of the history of their use and the principles underlying their9
adoption.13 10
CONCLUSION11
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Alienage jurisdiction was established by our Constitution and early statutes to1
strengthen our relations–particularly our commercial relations--with foreign nations. The 2
importance of these goals has only increased with time as both international relations and global trade3
have become more complex and our nation has assumed a central role in both. Having deprived a4
considerable number of foreign entities and individuals of an opportunity to adjudicate their claims in a5
federal forum, the full Court should consider whether the reasoning of the panels here and in Matimak6
is sound. Because these panel decisions have caused a clear split in authority with the other circuit7
courts, and in light of the potential damage to relations between the United States and the United8
Kingdom and other nations, it can only be hoped that the Supreme Court chooses to address the9
resolution of this issue expeditiously10
11
12
13
14
15
16
17
18
19
20
21
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1
2
UNITED STATES COURT OF APPEALS3FOR THE SECOND CIRCUIT4
56789
10LEE N. KOEHLER,11
12Plaintiff-Appellant,13
14v. No. 98-962415
16THE BANK OF BERMUDA (NEW YORK) LIMITED, a17New York Corporation, THE BANK OF BERMUDA18LIMITED, a Bermuda Corporation, REEFS BEACH CLUB19LIMITED, a Bermuda Corporation, and A. DAVID20DODWELL, a Bermuda citizen,21
22Defendants-Appellees.23
24252627
CALABRESI, Circuit Judge, dissenting from the denial of a rehearing in banc:28
For the reasons ably stated by Judge Sotomayor in her opinion dissenting from a denial of29
rehearing in banc, this case involves an issue of exceptional importance. The underlying question30
has divided any number of federal judges. On that basis, if no other, review of the panel opinion is31
warranted. Accordingly, I join Judges Leval and Sotomayor in dissenting from the denial of32
rehearing in banc.33
34
* The Honorable Ellsworth A. Van Graafeiland was originally assigned as a member of thepanel but, due to illness, did not attend oral argument or participate in the disposition of thisappeal. The appeal is being determined by the remaining members of the panel, who are inagreement. See 2d Cir. R. § 0.14(b); Murray v. National Broad. Co., 35 F.3d 45, 46 (2d Cir.1994).
UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT
August Term, 1999
(Argued: April 19, 2000 Decided: October 06, 2000 )
Docket No. 99-7995
_____________________________________________
JOHN E. MALESKO,
Plaintiff-Appellant,
v.
CORRECTIONAL SERVICES CORPORATION, formerly known asEsmor Correctional Services Inc. and “JOHN DOES #1 TO JOHN DOES #10,”inclusive, the names of said John Doe Defendants are presently unknown butintended to indicate officers and managers and guards of the corporate defendant,
Defendants-Appellees._____________________________________________
Before: POOLER and SOTOMAYOR, Circuit Judges.*
Appeal from a judgment of the United States District Court for the Southern District of
New York (Martin, Judge). The district court dismissed Malesko’s complaint against the Correctional
Services Corporation (“CSC”) on the grounds that: (1) Malesko could not assert against CSC, a
private corporation acting on behalf of the federal government, the cause of action
2
set forth in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388,
397 (1971), which provides a damage remedy for violations of constitutional rights by federal agents,
and (2) CSC could invoke government contractor immunity to such a claim in any event. The district
court also dismissed Malesko’s Bivens claims against an individual CSC employee as untimely and, for
the same reason, denied Malesko’s motion for leave to amend the complaint to substitute additional
CSC employees for “DOE” defendants. We agree with the district court’s decisions as to the
individual defendants, but we find that the court erred in dismissing the complaint as to CSC.
Affirmed in part; vacated and remanded in part.
STEVEN PASTERNAK, Pasternak, Feldman &Plutnick, P.A., Livingston, NJ, for plaintiff-appellant.
GEORGE P. STASIUK, Clifton Budd & DeMaria,LLP, New York, NY (George F. Brenlla, onthe brief), for defendants-appellees.
SOTOMAYOR, Circuit Judge:
Plaintiff-appellant John E. Malesko appeals from the July 28, 1999 judgment of the
United States District Court for the Southern District of New York (Martin, Judge) dismissing his
complaint against defendant-appellee Correctional Services Corporation (“CSC”) and a specifically
named CSC employee, and denying him leave to file a second amended complaint. For the reasons
that follow, we vacate the district court’s dismissal of the claims against CSC. We affirm, however, the
district court’s dismissal of Malesko’s claim against the individual CSC employee as time-barred and
3
the denial of leave to file the second amended complaint on the same ground.
BACKGROUND
On December 3, 1992, following his conviction for federal securities fraud, Malesko
was sentenced to eighteen months imprisonment under the supervision of the Federal Bureau of Prisons
(“BOP”). While in the custody and care of BOP, Malesko was diagnosed with a heart condition,
which was treated with prescription medication. On February 2, 1994, Malesko was transferred to Le
Marquis Community Corrections Center, a halfway house where he was to serve out the balance of his
sentence. The halfway house is operated on behalf of BOP by CSC, a private corporation.
Malesko was assigned to living quarters on the fifth floor of the halfway house and was
permitted to use the elevator to travel from the lobby to his room. On or about March 1, 1994,
however, CSC allegedly instituted a policy requiring inmates residing below the sixth floor to use only
the staircase to travel from the first-floor lobby to their rooms. Despite CSC’s policy, Malesko claims
that he was permitted to use the elevator because CSC staff knew of his medical condition. According
to Malesko, however, on March 28, 1994, a CSC employee prevented him from using the elevator to
go from the lobby to his room on the fifth floor. The employee instead directed Malesko to climb the
staircase, even though Malesko reminded the employee of his heart condition. While climbing the
stairs, Malesko suffered a heart attack, fell, and injured himself. Malesko also claims that
approximately ten days prior to this incident, he had run out of the medication prescribed for his heart
condition, and that CSC had failed to replenish his medication as of that date.
1 Defendants-Appellees do not dispute that the CSC employee in question was Jorge Urena.
4
On March 27, 1997, Malesko filed a pro se action against CSC in the United States
District Court for the Southern District of New York, claiming violations of his rights in connection with
the foregoing. Malesko did not name any specific individuals as defendants; instead, he named ten
“unknown” “DOE” defendants. Malesko’s complaint bore the following caption:
JOHN E. MALESKO, Plaintiff -against- CORRECTIONAL SERVICESCORPORATION FORMERLY KNOWN AS ESMOR CORRECTIONALSERVICES INC., “JOHN DOE #1 TO JOHN DOE #10" INCLUSIVE, THENAMES OF SAID JOHN DOE DEFENDANTS ARE PRESENTLY UNKNOWNBUT INTENDED TO INDICATE OFFICERS AND MANAGERS AND GUARDSOF THE CORPORATE DEFENDANT
On February 2, 1999, Malesko, by counsel, filed an Amended Complaint, which was identical to the
initial complaint in all material respects except that it substituted Jorge Urena as “JOHN DOE
DEFENDANT #1" and alleged that Urena was the CSC employee who prevented Malesko’s use of
the elevator on March 28, 1994 and directed Malesko to climb the stairs.1 On February 10, 1999,
CSC moved to dismiss the Amended Complaint. On February 17, 1999, Malesko cross-moved
seeking to file a second amended complaint to name as “DOE” defendants additional CSC employees
allegedly responsible for Malesko’s injuries.
On July 28, 1999, the district court entered a judgment granting CSC’s motion to
dismiss the Amended Complaint, denying Malesko’s motion to file a second amended complaint,
dismissing the Amended Complaint as against Urena and instructing the Clerk of Court to close the
case. See Malesko v. Corrections Servs. Corp., No. 97 Civ. 4080 (JSM), 1999 WL 549003
5
(S.D.N.Y. July 28, 1999). The district court treated Malesko’s Amended Complaint as raising claims
under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397
(1971), which provides for a cause of action for damages against federal agents who violate
constitutional rights.
The district court dismissed the Amended Complaint as to CSC on two grounds. First,
it held that Malesko could not bring a Bivens claim against a corporation such as CSC because,
according to the district court, “[a] Bivens action may only be maintained against an individual.” Id. at
*1. Second, the district court held that, even if Malesko could assert a Bivens claim against a private
corporation, CSC was nevertheless “shielded from liability” because CSC had “contracted with the
federal government to carry out a project on behalf of the government.” Id.
The district court also denied Malesko’s motion to file a second amended complaint
naming additional specific CSC employees as defendants. The district court found that because the
statute of limitations had run on Malesko’s Bivens claims as of March 28, 1997 (one day after he filed
his initial complaint), Malesko’s subsequent assertion of such claims against additional defendants was
time-barred and therefore a “futile amendment” under Fed R. Civ. P. 15. See id. at *2. The district
court rejected Malesko’s contention that his substitution of specifically named defendants for the
“DOE” defendants should “relate back” to the filing date of his initial complaint. See id. at *2-*3.
The district court dismissed the Amended Complaint as to Urena on similar grounds,
finding that the Amended Complaint substituting Urena as a defendant had been filed nearly two years
after the statute of limitations had run. See id. at *3. This appeal followed.
6
DISCUSSION
I. Claims Against CSC
Because the district court dismissed Malesko’s claims against CSC on the pleadings,
we review that decision de novo, accepting as true all material factual allegations in the complaint. See
Jones v. New York Div. of Military and Naval Affairs, 166 F.3d 45, 48 (2d Cir. 1999).
A. Bivens Claims and Private Corporations
We note initially that the question of whether a Bivens claim may lie against a private
corporation is an issue of first impression in this Circuit. The district court dismissed Malesko’s Bivens
claim against CSC because it concluded that a Bivens claim may only be asserted against an individual
federal agent, not against private corporations such as CSC. The district court reached this result
through a purported application of the Supreme Court’s decision in FDIC v. Meyer, 510 U.S. 471
(1994), which held that Bivens claims may not be brought against agencies of the federal government.
See Malesko, 1999 WL 549003 at *1 (citing Meyer, 510 U.S. at 483-87). The district court did not
explain why Meyer’s holding regarding federal agencies precluded a Bivens claim against CSC, which
is not a federal agency. Reviewing this question de novo, we now hold that a private corporation
acting under color of federal law may be subject to a Bivens claim.
Although the issue is new in this Circuit, several circuit courts recognized prior to the
Meyer decision that Bivens-type claims could be asserted against private corporations so long as the
corporations engaged in “federal action,” i.e., they acted under color of federal law. See, e.g.,
Schowengerdt v. General Dynamics Corp., 823 F.2d 1328 (9th Cir. 1987) (holding that private
7
corporation employed by Department of Navy to provide security services would be subject to Bivens
claims if, on remand, its actions were found to constitute federal action); Gerena v. Puerto Rico Legal
Serv., Inc., 697 F.2d 447 (1st Cir. 1983) (recognizing that private entities may be subject to Bivens
claims, but dismissing claims at issue against legal assistance corporation because it did not engage in
federal action); Dobyns v. E-Systems, Inc., 667 F.2d 1219 (5th Cir. 1982) (permitting Bivens claim
against private contractor that supplied personnel, materials, transportation and services to federal
government); Yiamouyiannis v. Chemical Abstracts Serv., 521 F.2d 1392 (6th Cir. 1975) (per
curiam) (remanding for factual determination of whether private corporation engaged in federal action
for purposes of Bivens). During this pre-Meyer time period, no circuit court ever held that private
entities were not subject to Bivens claims.
In 1994, the Supreme Court addressed in Meyer whether “to expand the category of
defendants against whom Bivens-type actions may be brought to include not only federal agents, but
federal agencies as well.” 510 U.S. at 484. Meyer involved a Bivens claim against the Federal
Savings and Loan Insurance Corporation based on an alleged violation of an individual’s due process
rights. See id. at 484-85. The Court, noting that no Court of Appeals decision other than the decision
on appeal had ever implied a Bivens cause of action directly against a federal agency, declined to do so
for several reasons. First, part of the rationale for creating the Bivens cause of action against federal
officials had been to compensate for the fact that “a direct action against the government was not
available.” Id. at 485. Second, allowing Bivens suits against agencies would contravene “the purpose
of Bivens [which] is to deter the officer.” Id. The Supreme Court explained that, because a plaintiff
2 In Reuber, the D.C. Circuit had held that Bivens encompassed actions against private partiesacting under color of federal law, and had remanded the case for a determination of whether thedefendant, an operator of a government-owned facility pursuant to a contract with the National CancerInstitute, had so acted. Id.
8
bringing a Bivens claim against an agency could thereby avoid facing the qualified immunity defense
available to officers, “there would be no reason for aggrieved parties to bring damages actions against
individual officers” and “the deterrent effects of the Bivens remedy would be lost.” Id. Finally, the
Court, observing that “a direct action for damages against federal agencies . . . would be creating a
potentially enormous financial burden for the Federal Government,” refused to expand the
government’s direct liability without congressional legislation to that effect. Id. at 486.
Although Meyer addressed only whether Bivens claims could be brought against
federal agencies and thus, on its face, did not appear to implicate the question of whether a private
corporation could be sued under Bivens, other circuits have subsequently reached differing conclusions
regarding its impact on such claims. In the D.C. Circuit, the Court of Appeals has held that Meyer
precludes Bivens suits against private entities acting under color of federal law, thereby overruling an
earlier pre-Meyer D.C. Circuit decision allowing such claims. See Kauffman v. Anglo-American
School of Sofia, 28 F.3d 1223 (D.C. Cir. 1994), overruling
Reuber v. United States, 750 F.2d 1039 (D.C. Cir. 1985).2 Declaring in Kauffman that its decision
was “controlled by FDIC v. Meyer,” the D.C. Circuit, over a vigorous dissent by then-Chief Judge
Mikva, held that Bivens claims could not be asserted against the Anglo-American School of Sofia, a
“private and independent organisation” established by the U.S. Department of State “to provide
9
elementary-level instruction to the children of American and British diplomats stationed in Sofia,
Bulgaria.” 28 F.3d at 1224 (internal quotation marks omitted). The Kauffman majority reasoned that
because a private entity must act under color of federal law in order to be subject to Bivens, such an
entity is “equivalent” to a federal agency and, under Meyer, must be treated as “if [it] were really a
federal agency.” Id. at 1227.
The Kauffman majority, echoing Meyer’s rationale that the deterrence purpose of
Bivens would be frustrated if claims could be asserted against federal agencies, found that employees
of private entities would be undeterred from engaging in unconstitutional conduct if claims could be
asserted against their employers. See id. at 1227. The court similarly adopted Meyer’s reasoning that
Bivens claims against federal agencies would create a “potentially large financial drain on the
government” and concluded that the “diversion of resources from a private entity created to advance
federal interests has effects similar to those of diversion of resources directly from the [federal]
Treasury” because such costs would be passed on to the government. Id. at 1227-28. The Kauffman
majority thus held that Meyer’s reasoning precluded Bivens claims against private entities acting under
color of federal law. Id. at 1228.
In contrast, the Sixth Circuit in Hammons v. Norfolk Southern Corp., 156 F.3d 701
(6th Cir. 1998), concluded that “[n]othing in Meyer prohibits a Bivens claim against a private
corporation that engages in federal action,” and held that such claims should be allowed. Id. at 705.
The Hammons court observed that while Meyer had focused on Bivens’s deterrence rationale in
concluding that claims should not be asserted against federal agencies, “the primary goal of Bivens was
10
to provide a remedy for victims of constitutional violations by federal agents where no other remedy
exists, regardless of whether the official would be deterred in the future from engaging in such conduct.”
Id. at 706 (citing Bivens, 403 U.S. at 407-08 (Harlan, J., concurring)). The court therefore concluded
that “the importance of remedying constitutional violations” favored the allowance of Bivens claims
against private entities acting under color of federal law regardless of whether such allowance deterred
future violations. Id. The Hammons court also found, in contrast to the D.C. Circuit, that Meyer’s
concern about “the potentially enormous financial burden on the Government” was inapplicable with
respect to private corporations because claims against private corporations do not directly impact the
“federal purse” and thus “do[] not implicate federal fiscal policy.” Id. (citations and internal quotation
marks omitted).
Having determined that “Meyer [was] not dispositive” on the matter, id. at 706, the
Sixth Circuit proceeded to address whether private corporations should be subject to Bivens claims.
The court observed that Bivens claims against federal officers have consistently been treated in the
same manner as claims against state officers under 42 U.S.C. § 1983 (1994). See id. at 707 (“[T]he
standards of liability in Bivens actions are similar to the standards under
§ 1983. Both the Supreme Court and this Court have noted that actions brought under § 1983 raise
identical concerns as those raised in Bivens actions.” (citing Butz v. Economou, 438 U.S. 478, 500
(1978))). The court further noted that “[i]t is undisputed that corporations engaging in state action can
be sued under § 1983.” Id. (citations omitted). Accordingly, the Hammons court held that
corporations engaging in federal action should, by analogy, be subject to Bivens claims. See id. at 708.
11
In so holding, the court observed that it joined the Courts of Appeals for the First, Fifth and Ninth
Circuits in their conclusions (albeit pre-Meyer) that a Bivens claim may be brought against private
corporations engaging in federal action. See id.
We find the Sixth Circuit’s analysis in Hammons persuasive and, substantially for the
reasons articulated by that court, we hold that a private corporation acting under color of federal law
may be sued under Bivens. As an initial matter, we do not believe that Meyer is dispositive here
because private entities acting on behalf of the federal government are not the equivalent of federal
agencies. In Cohen v. Empire Blue Cross, 176 F.3d 35 (2d Cir. 1999), we found that Empire Blue
Cross, acting as a fiscal intermediary on behalf of the government to process Medicare claims, was akin
to an agent of the government and not a federal agency. See id. at 42 (“[Defendant] is a private not-
for-profit corporation established under the laws of the State of New York. It is not funded by the
United States, and the United States has no proprietary interest in its operations . . . . [It] may act as
an agent for the government, [but] it is not an institutional arm of the government such as a department,
commission, board, or bureau.”). We see no reason to treat differently other private corporations
acting on behalf of the government.
Moreover, the reasons the Supreme Court articulated in Meyer for declining to extend
liability to federal agencies are not compelling with respect to the question of whether private
corporations should be subject to Bivens liability. Although deterring wrongdoing by individuals is an
important goal of Bivens liability, we find an extension of such liability to be warranted even absent a
substantial deterrent effect in order to accomplish the more important Bivens goal of providing a
3 In our view, the non-unanimous Kauffman decision finding such impact is incorrect, or, at best,resulted from the fact that the entity at issue was arguably a federal government agency. Although theKauffman majority referred to the defendant school as a “private” entity, the school had been set up bythe U.S. Department of State, part of its governing board was appointed by a U.S. ambassador, and itwas directly funded, in part, by the U.S. government. See Kauffman, 28 F.3d at 1224.
12
remedy for constitutional violations. Justice Harlan, in his concurring opinion in Bivens, elaborated
upon the relationship between these two goals:
I agree with the Court that the appropriateness of according Bivens compensatory reliefdoes not turn simply on the deterrent effect liability will have on federal official conduct. Damages as a traditional form of compensation for invasion of a legally protectedinterest may be entirely appropriate even if no substantial deterrent effects on futureofficial lawlessness might be thought to result. Bivens, after all, has invoked judicialprocesses claiming entitlement to compensation for injuries resulting from allegedlylawless official behavior, if those injuries are properly compensable in money damages. I do not think a court of law–vested with the power to accord a remedy–should denyhim his relief simply because he cannot show that future lawless conduct will thereby bedeterred.
Bivens, 403 U.S. at 407-08 (Harlan, J., concurring). In any event, we are not convinced that allowing
Bivens claims against private corporations would undermine the deterrence purpose of Bivens. Even
assuming a plaintiff would decline to sue the offending employee and sue only the employer, we believe
that an employer facing exposure to such liability would be motivated to prevent unlawful acts by its
employees. Furthermore, although a private entity contracting to carry out governmental functions
might pass on the costs of Bivens liability to the government, we do not believe such liability has the
type of direct impact on federal fiscal policy that the Supreme Court in Meyer was concerned would
result from imposing Bivens liability directly upon federal agencies.3
Finally, as noted above, several Courts of Appeals before Meyer’s issuance recognized
13
that private corporations may be subject to Bivens claims. We are not persuaded that the Supreme
Court implicitly overruled this long line of cases in the Meyer opinion without making reference to any
of them. We therefore find that Meyer does not control our analysis of whether Bivens claims may be
brought against private corporations.
In deciding that Bivens liability should extend to private corporations, we are influenced
strongly by the law governing § 1983 claims. We have consistently treated Bivens and § 1983 actions
as analogous for most purposes, and we “have typically incorporated § 1983 law into Bivens actions.”
Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995) (per curiam) (citing Carlson v. Green, 446 U.S.
14, 18-20 (1980)); see also Ayeni v. Mottola, 35 F.3d 680, 688 n.10 (2d Cir. 1994); Ellis v. Blum,
643 F.2d 68, 84 (2d Cir. 1981). The Supreme Court has made it clear that private corporations
engaging in state action may be sued under § 1983. See Lugar v. Edmonson Oil Co., 457 U.S. 922,
936-37 (1982). We see no reason not to incorporate that law into the Bivens context and permit suits
against private corporations engaging in federal action. Moreover, we find that extending Bivens
liability to reach private corporations furthers Bivens’s overriding purpose: providing redress for
violations of constitutional rights. See Bivens, 403 U.S. at 407-08 (Harlan, J., concurring).
Accordingly, we join the Courts of Appeals for the First, Fifth, Sixth and Ninth Circuits
and hold that a private corporation acting under color of federal law may be subject to liability under
Bivens.
14
B. Government Contractor Defense
In addition to finding that a Bivens action could not be maintained against CSC, the
district court held that CSC would have been immune from such a suit in any event by virtue of the
immunity for government contractors set forth in Boyle v. United Technologies, Corp., 487 U.S. 500
(1988). See Malesko, 1999 WL 549003 at *1 (citing Boyle, 487 U.S. at 505-09; Yearsley v. W.A.
Ross Const. Co., 309 U.S. 18, 19 (1940); Norwood v. Esmor, Inc., No. 95 Civ. 8281 (LAP), 1997
WL 65913 (S.D.N.Y. Feb. 13, 1997)). We disagree and hold that on the record presented to the
district court, CSC may not avail itself of the government contractor defense.
In Boyle, the Supreme Court articulated the standard for determining when federal law
shields government contractors from state tort liability arising from design defects in military equipment.
See Boyle, 487 U.S. at 512. The Supreme Court held:
Liability for design defects in military equipment cannot be imposed, pursuant to statelaw, when (1) the United States approved reasonably precise specifications; (2) theequipment conformed to those specifications; and (3) the supplier warned the UnitedStates about the dangers in the use of the equipment that were known to the supplierbut not to the United States.
Boyle, 487 U.S. at 512. The Supreme Court reasoned that “selection of the appropriate design for
military equipment” involved “judgment as to the balancing of technical, military, and even social
considerations” that should not be “second-guess[ed] . . . through state tort suits against contractors”
carrying out the design specifications of the federal government. Id. at 511 (citations and internal
quotation marks omitted). Thus, the Court concluded that “state law which holds Government
contractors liable for design defects in military equipment does in some circumstances present a
4 We also question, although need not decide, whether the government contractor defense mayever be invoked as a shield against Bivens claims. As the Court in Boyle explained, the governmentcontractor defense exists to protect against situations where the “application of state law [claims]would frustrate specific objectives of federal legislation.” Id. at 507 (internal quotation marks omitted)(emphasis added). The Bivens cause of action, however, was created to advance federalconstitutional interests. Such claims are not state law claims but rather arise under the U.S.Constitution.
15
‘significant conflict’ with federal policy and must be displaced.” Id. at 512.
Although the government contractor defense has primarily developed in the context of
military contractors, the defense has been applied more broadly by some courts to protect contractors
in non-military contexts. See, e.g., Boruski v. United States, 803 F.2d 1421, 1430 (7th Cir. 1986)
(defense applies in “civilian relationships” where “a contractor has acted in the sovereign's stead and
can prove the elements of the defense”) (citation and internal quotation marks omitted); Burgess v.
Colorado Serum Co., 772 F.2d 844, 846 (11th Cir. 1985) (“Both the history of the defense and its
general rationale lead us to the conclusion that it would be illogical to limit the availability of the defense
solely to ‘military’ contractors”). This Circuit has never expressly addressed the issue.4 However, this
case does not present the appropriate forum in which to do so since, even assuming the potential
applicability of the defense outside the military context, the requirements necessary for its application
are not satisfied here.
The government contractor defense only shields a government contractor from claims
arising out of its actions where the government has exercised its discretion and judgment in approving
precise specifications to which the contractor must adhere. See Lewis v. Babcock Indus., Inc., 985
F.2d 83, 86-87 (2d Cir. 1993) (holding that government contractor defense requires “that the design
16
feature in question was considered by Government officers, and not merely by the contractor”). In
other words, “[s]tripped to its essentials,” the government contractor defense is “to claim, ‘The
Government made me do it.’” In re Joint Eastern and Southern Dist. New York Asbestos Litg.,
897 F.2d 626, 632 (2d Cir. 1990). Here, Malesko alleges that various CSC policies or practices led
to his injury — assigning him to a room on the fifth floor, forbidding him from using the elevator, and
failing to refill his heart medication prescription — but neither he nor CSC claims that the government
played any role in formulating or approving these policies or practices. Because no allegation exists in
the record before the district court that the government played any role in these decisions, we conclude
that the district court erred in holding that CSC was protected from liability by the government
contractor defense. See, e.g., In re Hawaii Asbestos Cases, 960 F.2d 806, 813 (9th Cir. 1992)
(holding that suppliers of insulation products containing asbestos to the Navy could not invoke defense
where suppliers “simply failed to allege, let alone establish, that . . . they were acting in compliance with
‘reasonably precise specifications’ imposed on them by the United States”) (quoting Boyle, 487 U.S. at
512).
II. Claims Against Individual Defendants
The district court dismissed the Bivens claims against Jorge Urena on the ground that
the claims were time-barred. See Malesko, 1999 WL 549003 at *3. For the same reason, the district
court denied as “futile” Malesko’s motion to file a second amended complaint substituting additional
specific individuals for “DOE” defendants. Id. at *2-*3. We review de novo the district court’s
17
dismissal of the Bivens claims against Urena on the pleadings. See Jones, 166 F.3d at 49. We review
the district court’s denial of leave to amend the complaint for abuse of discretion. Id. If that denial was
based on a legal interpretation, however, we review the decision de novo. Id.
In New York, the statute of limitations for bringing a Bivens action is three years from
the accrual of the claim. See Chin v. Bowen, 833 F.2d 21, 24 (2d Cir. 1987). The parties do not
dispute that Malesko’s claim accrued on March 28, 1994, the day on which he suffered his heart attack
while climbing the CSC stairs. Thus, the statute of limitations on Malesko’s Bivens claims expired on
March 28, 1997, one day after he filed his original complaint.
Malesko, however, did not identify any of the alleged “DOE” defendants listed on his
original complaint until February 2, 1999, when he submitted an Amended Complaint substituting Jorge
Urena as “JOHN DOE DEFENDANT #1.” On February 17, 1999, Malesko moved for leave to file
a second amended complaint that would purportedly have substituted additional CSC employees as
“DOE” defendants. It is therefore clear from the record that the statute of limitations expired on
Malesko’s Bivens claims before he added or sought to add any individual defendants. Malesko
attempts to avoid this conclusion by arguing that, pursuant to Fed. R. Civ. P. 15(c), the date of filing for
his amendments identifying individual defendants may “relate back” to the timely date on which the
original complaint was filed. See Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1075 (2d Cir.
1993) (stating that “‘John Doe’ pleadings” can “be used to circumvent statutes of limitations” where “all
the specifications of Fed. R. Civ. P. 15(c) are met”).
Under Rule 15(c), when an attempt is made to bring in a new party, the date of the
18
amendment adding that party will “relate back” to the date of the original complaint only when (1) the
claim arises out of the same conduct originally pleaded and (2) within (ordinarily) 120 days of the
original filing date,
the party to be brought in by amendment (A) has received such notice of the institutionof the action that the party will not be prejudiced in maintaining a defense on the merits,and (B) knew or should have known that, but for a mistake concerning the identityof the proper party, the action would have been brought against the party.
Fed. R. Civ. P. 15(c)(3) (emphasis added). Thus, in order to have the filing dates for the Amended
Complaint and second amended complaint relate back to the date of the original Complaint, Malesko
must show, inter alia, that he failed to name Urena and other specific CSC employees due to a
“mistake concerning the identity of the proper party.” Fed. R. Civ. P. 15(c)(3)(B). A plaintiff is not
considered to have made such a “mistake,” however, if the plaintiff knew that he was required to name
an individual as a defendant but did not do so because he did not know the individual’s identity. See
Barrow v. Wethersfield Police Dep’t, 66 F.3d 466, 470 (2d Cir. 1996) (“Rule 15(c) does not allow
an amended complaint adding new defendants to relate back if the newly-added defendants were not
named originally because the plaintiff did not know their identities.”).
Here, it is clear that Malesko believed that there existed individual defendants who
were potentially liable for his injuries, but did not know their exact identities prior to the expiration of
the statute of limitations. As revealed by the caption from his original complaint, Malesko
“INTENDED TO INDICATE OFFICERS AND MANAGERS AND GUARDS OF THE
CORPORATE DEFENDANT [CSC],” but he did not do so because “THE NAMES OF SAID
19
JOHN DOE DEFENDANTS ARE PRESENTLY UNKNOWN.” Under these circumstances,
Malesko cannot avail himself of Rule 15(c) such that his untimely substitution of specifically named
individuals for “DOE” defendants may “relate back” to the date he filed his original complaint. See
Tapia-Ortiz v. Doe, 171 F.3d 150, 151-52 (2d Cir. 1999) (holding that plaintiff, who, in his original
complaint, sued “Doe” defendant officers who allegedly applied excessive force, could not “relate
back” his amendment naming specific officers two years after the statute of limitations had run);
Barrow, 66 F.3d at 470 (holding that plaintiff named “John Does” because he did not know the
arresting officers’ names and that, “[s]ince the new names were [subsequently] added not to correct a
mistake but to correct a lack of knowledge, the requirements of Rule 15(c) for relation back are not
met”).
We therefore affirm the district court’s decision dismissing the Amended Complaint as
to Urena and denying Malesko’s motion to file the second amended complaint because these claims
were barred by the statute of limitations.
5 In a discussion spanning less than one page of his appellate brief, Malesko argues for the firsttime that he is entitled to recover under the Americans With Disabilities Act, 42 U.S.C. § 12131, etseq., and the Rehabilitation Act of 1973, 29 U.S.C. § 794. Although CSC invites us to address themerits of these claims, we decline to do so. The district court may consider the arguments on remandafter the issue has been adequately briefed. See Able v. United States, 88 F.3d 1280, 1292 (2d Cir.1996) (declining to address the merits of a claim where the issue was not considered in the district courtand remanding for such consideration).
20
CONCLUSION
For the foregoing reasons, we affirm the district court’s dismissal of Bivens claims
against defendant Urena and its denial of leave to file the second amended complaint, but vacate the
district court’s dismissal of claims against CSC and remand for further proceedings consistent with this
opinion.5
No.97-9162
IN THE UNITED STATES COURT OF APPEALSFOR 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 DISTRICTCOURT FOR THE SOUTHERN DISTRICT OF NEW YORK
SUPPLEMENTAL BRIEF FOR THE UNITED STATESAS AMICUS CURIAE
MARY JO WHITE BILL LANN LEE United States Attorney Acting Assistant Attorney for the Southern District General of New York
SARA L. SHUDOFSKY JESSICA DUNSAY SILVER Assistant United States MARIE K. McELDERRY Attorney Attorneys Department of Justice
P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-3068
______________________________________________________________________________________________________________________________________
TABLE OF CONTENTS
PAGEARGUMENT:
THIS COURT CORRECTLY CONCLUDED THAT BARTLETT ISAN INDIVIDUAL WITH A DISABILITY UNDER TITLE II OF THE ADA . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. The Record Is Clear That Bartlett LacksAutomaticity In Her Reading . . . . . . . . . . . . . . 4
B. Bartlett Is Substantially Limited In Reading Even When Taking Into AccountHer Self-Accommodation Techniques . . . . . . . . . . . 8
C. This Court’s Determination That Bartlett Has A DisabilityThat Causes Substantial Limitations In The Major Life Activity Of Reading Is Consistent With The Supreme Court’s Decisions In Sutton, Murphy, And Albertsons . . . . . . . . . . 11
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 16
CERTIFICATE OF SERVICE
- i -
TABLE OF AUTHORITIES
CASES: PAGE
Albertsons, Inc. v. Kirkingburg, 119 S. Ct. 2162 (1999) . . passim
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) . . . . . passim
Bragdon v. Abbott, 524 U.S. 624 (1998) . . . . . . . . . . . . 14
Murphy v. United Parcel Serv., Inc., 119 S. Ct. 2133 (1999) . . . . . . . . . . . . . . . . . . . . . passim
Sutton v. United Air Lines, Inc., 119 S. Ct. 2139 (1999) . . . . . . . . . . . . . . . . . . . . . passim
Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . . 14
STATUTES:
Americans with Disabilities Act of 1990, 42 U.S.C. 12102(2)(A) . . . . . . . . . . . . . . . . . . 2Title II, 42 U.S.C. 12131 et seq. . . . . . . . . . . . . . 2
RULES AND REGULATIONS:
29 C.F.R. 1630.2(j)(3)(i) . . . . . . . . . . . . . . . . . . . 16
MISCELLANEOUS:
Jeanne S. Chall, Stages of Reading Development (1983) . . . . . . 4
135 Cong. Rec. 8519 (1989) . . . . . . . . . . . . . . . . . . 15
Patricia R. Dahl, A mastery based experimental programfor 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) . . . . . . . . . . . . . 15
- ii -
IN THE UNITED STATES COURT OF APPEALSFOR 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 DISTRICTCOURT 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 -
1/ Plaintiffs in Sutton had severe myopia, but with the useof corrective lenses, their vision was 20/20 or better. 119 S.Ct. at 2143.
2/ As relevant to this case, the statutory definition ofdisability is "a physical or mental impairment that substantiallylimits one or more of the major life activities of [an]individual." 42 U.S.C. 12102(2)(A).
ARGUMENT
THIS COURT CORRECTLY CONCLUDED THAT BARTLETT IS ANINDIVIDUAL 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." 119 S.
Ct. at 2146.1/ 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
Bd. of Law Exam'rs, 156 F.3d 321 (2d Cir. 1998).2/ In reaching
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
- 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 -
3/ See, e.g., Pl.'s Ex. 129, Jeanne S. Chall, Stages ofReading Development 119 (1983), citing Patricia R. Dahl, Amastery based experimental program for teaching high speed wordrecognition skills (abstract), 11 Reading Res. Q. 203, 209 (1975-1976).
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
- 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. Accordingly, the district
court properly 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.” Id.
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
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." Id. at
1107. 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. Bartletttypically read the passages over two or three timesbefore she could respond to that test item. She usescontextual cues to facilitate her decoding. She readsvery slowly. She will reread a phrase or sentence tomake sure she gets it. You can often see her lips moveor hear her read quietly to herself and when she doesthis, you can hear the mispronunciations. When she is
- 6 -
4/ The district court also credited the studies of adultdyslexics conducted by Dr. Maggie Bruck, on which the Board’sexperts relied to support their testimony. Dr. Bruck stated, and
(continued...)
faced with an unfamiliar polysyllabic word she is veryslow to break down the word to different parts and shewill mispronounce parts of the word. She is slow tosynthesize 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
Bartlett revealed her difficulties in arriving at answers. Dr.
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 hearthat it sounds incorrect she will start over and oftencorrects her reading of the word after severalattempts. On the Woodcock, this would be credited as acorrect response, even though it took her threeattempts to get it right and took more time than itwould have taken a person who did not have to read inthis 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.” Id. at 1107-1108.4/
- 7 -
4/(...continued)the district court found, that the Woodcock subtests are "poordiscriminators" for measuring whether an adult has a learningdisability "unless the subject’s reaction time [i]s measured." 970 F. Supp. at 1113-1114. In addition, Dr. Rosa Hagin testifiedthat, because the Woodcock subtests do not test automaticity orreading rate, "they are poor indicators of a decoding problem inindividuals like plaintiff who function at higher cognitivelevels." Id. at 1110.
5/ The record also contains test data from the DiagnosticReading Test (DRT). 970 F. Supp. at 1108. Bartlett’s readingrate was compared with the highest grade norm for that test,which is college freshmen. Ibid. (table). The test results showthat Bartlett’s slow reading rate is comparable to the 4thpercentile of college freshmen when timed, while hercomprehension was at the 50th percentile. When she took the testuntimed, her comprehension was at the 98th percentile, but, atthe same time, that required her to read at an even slower rate,comparable to the 1st percentile of college freshmen. Ibid.
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
- 8 -
6/ Indeed, as the district court noted, the Board’s expert"acknowledge[d] the Woodcock’s weakness with regard todiscriminating for lack of automaticity." 970 F. Supp. at 1114.
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
Identification subtests. As noted above, this Court clearly
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
- 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.” Id. at 1107 (internal quotation marks
omitted). She "had to sound out the words repeatedly before
coming to an answer." Id. at 1113. Dr. Hagin credited
Bartlett’s "earlier work as a school teacher where phonics were
stressed" in allowing her to attempt to develop "self-
accommodations." 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. They do not measure
the fact that she reads without automaticity. 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.” 156 F.3d at
329.
C. This Court’s Determination That Barlett Has A Disability That Causes Substantial
- 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 alack of automaticity and a phonologicalprocessing defect that significantlyrestricts her ability to identify timely anddecode the written word, that is, to read ascompared to the manner and conditions underwhich the average person in the generalpopulation can read or learn.
Accordingly, the "extent of the limitation in terms of"
Bartlett’s "own experience * * * is substantial." Albertsons,
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
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 self-
accommodation techniques she has learned. Deciphering words
without automaticity requires an enormous amount of conscious
effort. As the district court noted, Bartlett reads “slowly,
haltingly, and laboriously.” 970 F. Supp. at 1099. “She simply
- 14 -
7/ See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 309(3d Cir. 1999) (individual with bipolar disorder who takeslithium to control most severe aspects of disorder can still besubstantially limited in major life activity of thinking becauseof effect of uncontrolled symptoms and side effects of the drug).
does not read in the manner of an average person.” Ibid.
Accordingly, Bartlett experiences substantial "limitations that
persist despite [the mitigating measure]." Murphy, 119 S. Ct. at
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
“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)
- 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. See
135 Cong. Rec. 8519 (1989) (remarks of Sen. Cranston). 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. To such an individual,
time is her ramp. 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 -
8/ Since the record demonstrates that Bartlett issubstantially limited in reading, we agree with this Court’sdetermination, see 156 F.3d at 329, that it is unnecessary todecide whether she is substantially limited in the major lifeactivity of working.
compared with the average person in the general population. 29
C.F.R. 1630.2(j)(3)(i). The Supreme Court’s remand does not
compel this Court to reach a different conclusion because
Bartlett’s lack of automaticity is not improved by any self-
accommodation 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
- 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 JESSICA DUNSAY SILVER Assistant United States MARIE K. McELDERRY Attorney 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 SpitzerAttorney General of the State of New YorkPreeta D. Bansal Solicitor GeneralDeon J. Nossel Assistant Solicitor General120 BroadwayNew York, New York 10271
Jo Anne SimonPatricia Ballner257 Dean StreetBrooklyn, New York 11217
This day of November, 1999.
Marie K. McElderry Attorney
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