Floyd v. City of New York

Filing 120

OPPOSITION TO MOTION to file amicus curiae brief [1088212-2], for rehearing en banc [1088586-2], on behalf of Appellant Sergeants Benevolent Association in 13-3088, 13-3461, FILED. Service date 11/13/2013 by CM/ECF. [1090980][120] [13-3088, 13-3461, 13-3524]

IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
---------------------------------- X
DAVID FLOYD, et al.,
:
Plaintiffs/Appellees,
-againstCITY OF NEW YORK, et al.,

:
Docket No. 13-3088
:
:

Defendants/Appellants.
---------------------------------- X

OMNIBUS MEMORANDUM OF LAW OF SERGEANTS BENEVOLENT
ASSOCATION IN OPPOSITION TO THE DISTRICT JUDGE’S REQUEST
FOR LEAVE TO FILE MOTION AND THE MOTION OF PLAINTIFFSAPPELLEES FOR RECONSIDERATION BY THE EN BANC COURT
ANTHONY P. COLES
COURTNEY G. SALESKI
DLA PIPER LLP (US)
1251 Avenue of the Americas
New York, New York 10020
[phone]
Counsel for Proposed
Intervenor/Appellant
Sergeants Benevolent Association

TABLE OF CONTENTS
Page
I.

INTRODUCTION .......................................................................................... 1

II.

ARGUMENT .................................................................................................. 2
A.

This Court was Correct to Remove the District Judge......................... 2

B.

This Court had Jurisdiction to Remove the District Judge .................. 7

C.

The District Judge’s Request for Leave is Meritless ........................... 8
1.
2.

III.

Federal Rule of Appellate Procedure 21 Does Not Apply
Here ............................................................................................ 9
The District Judge Has No Protectable Right to “Due
Process of Law” in This Context .............................................11

CONCLUSION.............................................................................................12

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TABLE OF AUTHORITIES
Page(s)
CASES
Cruz v. Abbate,
812 F.2d 571 (9th Cir. 1987) ................................................................................ 4
Griggs v. Provident Consumer Discount Co.
459 U.S. 56 (1982) ................................................................................................ 7
Haines v. Liggett Grp. Inc.,
975 F.2d 81 (3d Cir. 1992) ................................................................................... 3
In re Austrian, German Holocaust Litig.,
250 F.3d 156 (2d Cir. 2001) ............................................................................... 11
In re Boston’s Children First,
244 F.3d 164 (1st Cir. 2001) ............................................................................. 5, 6
In re Int’l Bus. Machines Corp.,
45 F.3d 641 (2d Cir. 1995) ............................................................................... 3, 6
In re Murchison,
349 U.S. 133 (1955) .............................................................................................. 3
Liteky v. U.S.,
510 U.S. 540 (1994) .............................................................................................. 3
Negron v. United States,
394 F. App’x 788 (2d Cir. 2010) .......................................................................... 7
Spates v. Manson,
619 F.2d 204 (2d Cir. 1980) ................................................................................. 8
U.S. v. Cooley,
1 F.3d 985 (10th Cir. 1993) .................................................................................. 6
U.S. v. Microsoft Corp.,
253 F.3d 34 (D.C. Cir. 2001) ................................................................................ 6
U.S. v. Toohey,
448 F.3d 542 (2d Cir. 2006) ................................................................................. 3

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STATUTES AND RULES
28 U.S.C. § 455(a) ................................................................................................. 2, 6
28 U.S.C. § 1292(a)(1) ............................................................................................... 8
28 U.S.C. § 2106 ........................................................................................................ 2
FRAP Rule 13(c)........................................................................................................ 4
FRAP Rule 21 ..................................................................................................2, 9, 10
FRAP Rule 21(b) ...................................................................................................... 9
FRAP Rule 21(b)(4) ................................................................................................. 11
FRAP Rule 38 ....................................................................................................11, 12
OTHER AUTHORITIES
Code of Conduct for United States Judges, Canon 2................................................. 3
Code of Conduct for United States Judges, Canon 3(a)(6) ....................................... 4
Code of Conduct for United States Judges, Canon 3(c)(1) ....................................... 3
Jeffrey Toobin, A Judge Takes on Stop-and-Frisk,
The New Yorker, May 27, 2013 ........................................................................... 5
Larry Neumeister, NY “Frisk” Judge Calls Criticism “Below-the-Belt”,
The Associated Press, May 19, 2013 .................................................................... 6
Mark Hamblett, Stop-and-Frisk Judge Relishes her Independence,
N.Y. Law Journal, May 5, 2013 ........................................................................... 6

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Proposed Intervenor/Appellant the Sergeants Benevolent Association (the
“SBA”) submits this omnibus memorandum of law in opposition to both the
Request for Leave of the Honorable Shira A. Scheindlin (the “District Judge”) to
file Motion to Address Order of Disqualification, and to the Motion of PlaintiffsAppellees for Reconsideration by the En Banc Court of the October 31, 2013
Mandate.
I.

INTRODUCTION
In its Corrected Mandate dated October 31, 2013 (the “Mandate”), this Court

correctly found that the District Court “ran afoul of the Code of Conduct for
United States Judges” and properly exercised its authority to reassign the case to a
different district judge. The Plaintiffs-Appellees and the District Judge fail to
provide any persuasive reason to vacate the decision or reconsider it en banc.
First, Plaintiffs-Appellees’ request for reconsideration of this Court’s
Mandate by the court sitting en banc should be denied. Plaintiffs-Appellees’
arguments that this Court lacked jurisdiction over both district-court opinions dated
August 12, 2013 (the “Liability Opinion” and the “Remedies Opinion”) and that
the disqualification and reassignment were without authority are meritless.
Second, the District Judge’s request for leave—which relies on inapplicable
Federal Rules of Appellate Procedure and seeks to create a due process right where
none exists—is procedurally improper and unsupported by any authority. The

Mandate, which directed the removal of the District Judge as the presiding judge in
both Floyd, et al. v. City of New York, et al. (No. 13-3088) and Ligon, et al. v. City
of New York, et al. (No. 13-3123), was not a decision on any party’s petition for
mandamus and, therefore, it does not implicate any of the provisions of Federal
Rule of Appellate Procedure 21. Moreover, Rule 21 does not provide a judge with
any right to participate in an appellate court’s determination of a party’s mandamus
petition, nor does it create any “due process” right for judges found to have
engaged in judicial misconduct. Simply put, the District Judge’s request has no
legitimate basis, and it should be denied.
II.

ARGUMENT
A.

This Court was Correct to Remove the District Judge.

“Any justice, judge, or magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might reasonably be
questioned.” 28 U.S.C. § 455(a) (emphasis added). This Court correctly
determined that the District Judge “ran afoul of the Code of Conduct for United
States Judges” and that “the appearance of impartiality surrounding this litigation
was compromised by the District Judge’s improper application of the Court’s
‘related case rule,’” and by a “series of media interviews.” (Corrected Mandate at
1-2.) Thus, disqualification under § 455(a) was warranted. The Court then
properly exercised its authority, under 28 U.S.C. § 2106, to reassign a case to a

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different district court judge on remand. See Liteky v. U.S., 510 U.S. 540, 554
(1994) (“Federal appellate courts’ ability to assign a case to a different judge on
remand rests not on the recusal statutes alone, but on the appellate courts’ statutory
power to ‘require such further proceedings to be had as may be just under the
circumstances[.]’”) (quoting 28 U.S.C.A. § 2106); see also U.S. v. Toohey, 448
F.3d 542, 546 (2d Cir. 2006) (“Although we ordinarily remand for resentencing to
the same district judge who conducted the initial sentencing proceedings . . . due to
the circumstances presented in this case, we conclude that it is necessary that the
matter be reassigned on remand to another district judge for resentencing.”).
Moreover, the right to trial by an impartial judge “is a basic requirement of
due process.” In re Murchison, 349 U.S. 133, 136 (1955). “To fulfill this
requirement—and to avoid both bias and the appearance of bias—this court has
supervisory authority to order cases reassigned to another district court judge.”
Haines v. Liggett Grp. Inc., 975 F.2d 81, 98 (3d Cir. 1992), cited in In re Int’l Bus.
Machines Corp., 45 F.3d 641, 645 (2d Cir. 1995). Under all of the above
principles, this Court correctly removed the District Judge, and it should not grant
Plaintiffs-Appellees’ request for rehearing en banc on the issue.
Canon 2 of the Code of Conduct for United States Judges provides that “a
judge should avoid impropriety and the appearance of impropriety in all activities.”
See also Canon 3(C)(1) (“A judge shall disqualify himself or herself in a

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proceeding in which the judge’s impartiality might reasonably be questioned[.]”).
And, in addition, Canon 3(A)(6) of the Code of Conduct for United States Judges
instructs that “[a] judge should not make public comment on the merits of a matter
pending or impending in any court.” The District Judge ran afoul of these canons.
First, the District Judge’s misapplication of the related case rule to assign
Floyd, at a minimum, created a strong appearance of impropriety. By making
comments in proceedings in another matter suggesting that the attorneys could
initiate a new case and mark it as related, the District Judge actually prompted a
violation of the related case rule, which requires (among other things) that cases
marked as related both be “pending” at the same time. See Southern District Rules
for the Division of Business Among Judges, Rule 13(c) (directing that “[a] case
designated as related shall be forwarded to the judge before whom the earlier-filed
case is then pending”) (emphasis added). The earlier case in which the District
Judge made those comments was no longer pending when Floyd was filed. Courts
have recognized that such manipulation of the procedure by which cases are
assigned to judges is a troubling matter that can damage both the actual and
perceived partiality of the court—potentially at great cost to a party. See, e.g.,
Cruz v. Abbate, 812 F.2d 571, 574 (9th Cir. 1987) (noting that “[w]hile a defendant
has no right to any particular procedure for the selection of the judge . . . he is
entitled to have that decision made in a manner free from bias or the desire to

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influence the outcome of the proceedings,” and that courts “must take great pains
to avoid any inference that assignments are being made for an improper purpose,”
because “[t]he suggestion that the case assignment process is being manipulated
for motives other than the efficient administration of justice casts a very long
shadow”).
Second, the media interviews and public statements made by the District
Judge both during and after the Floyd trial likewise created, at a minimum, an
appearance of impropriety that was sufficient to warrant her removal from the case.
Even to the extent that the comments the District Judge made are subject to
reasonable differences in interpretation, they must be evaluated “in the context in
which they were issued.” In re Boston’s Children First, 244 F.3d 164, 168 (1st
Cir. 2001). The context of the remarks only serves to highlight their impropriety.
In the District Judge’s comments, which appeared in news stories
specifically addressed to the stop-and-frisk litigation pending before her, the
District Judge described herself as “not afraid to rule against the government.” See
Jeffrey Toobin, A Judge Takes on Stop-and-Frisk, The New Yorker, May 27, 2013,
Declaration of Courtney G. Saleski, Ex. A. The District Judge also responded
publicly to a study regarding her rulings, which showed that she had ruled against
law enforcement in 60% of the cases in which she had published a written
decision—double the rate of the next-highest judge on the list, whose percentage

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was 30%. See Larry Neumeister, NY “Frisk” Judge Calls Criticism “Below-theBelt,” The Associated Press, May 19, 2013, Declaration of Courtney G. Saleski,
Ex. B. The District Judge called that challenge to her impartiality a “below-thebelt attack.” Id.; see also Mark Hamblett, Stop-and-Frisk Judge Relishes her
Independence, N.Y. Law Journal, May 5, 2013, Declaration of Courtney G.
Saleski, Ex. C.
Public reactions of this nature are not permitted and are not justified by
references to perceived “attacks.” See, e.g., In re Boston’s Children First, 244
F.3d at 170 (“The fact that [the district judge’s] comments were made in response
to what could be characterized as an attack by counsel on the procedures of her
court did not justify any comment by [the district judge] beyond an explanation of
those procedures.”). A reasonable person could perceive such remarks as “creating
an appearance of partiality.” Id. at 171. Moreover, comments like the District
Judge’s, in the midst of a highly publicized case involving a matter of great
national concern, as well as recent public statements in response to the Mandate,
are similar to public comments that other courts have found sufficient to require
removal of judges pursuant to 28 U.S.C. §455(a). See, e.g., U.S. v. Microsoft
Corp., 253 F.3d 34, 112-14 (D.C. Cir. 2001); In re IBM Corp., 45 F.3d at 645-46;
U.S. v. Cooley, 1 F.3d 985, 992-96 (10th Cir. 1993).

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In short, ample authority and factual support exist for this Court’s decision
to remove the District Judge from these proceedings. Reconsideration, reversal,
and further briefing on the issue are all unwarranted remedies in the circumstances.
B.

This Court had Jurisdiction to Remove the District Judge.

Plaintiffs-Appellees are wrong to assert that this Court lacked jurisdiction
over this matter when it directed the removal of the District Judge. The effect of
the City’s appeal of the Liability Opinion, a final order, was to divest the district
court of jurisdiction over all matters addressed in that opinion and vest this Court
with exclusive jurisdiction. See Negron v. United States, 394 F. App’x 788, 792
(2d Cir. 2010) (noting that “[t]he filing of a notice of appeal is an event of
jurisdictional significance—it confers jurisdiction on the court of appeals and
divests the district court of its control over those aspects of the case involved in the
appeal”) (quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58,
(1982)) (internal quotation marks omitted).
And, as to the Remedies Opinion, while an order requiring a party only to
submit a remedial plan, without more, may not be appealable in some
circumstances (and thus the appellate court may lack jurisdiction over the case),
there are “two situations in which the normally non-appealable order to submit a
plan may be appealable: when the order contains other injunctive relief, or when

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the content of the plan to be submitted has already been substantially prescribed by
the district court.” Spates v. Manson, 619 F.2d 204, 209 (2d Cir. 1980).
Both circumstances exist here. First, the Remedies Opinion mandates
“Immediate Reforms,” and it directs the City to take certain immediate steps,
including reforming the NYPD’s policies and training regarding stop and frisk
practices. The Remedies Opinion’s direction requiring the NYPD to institute
reforms constitutes an injunction appealable under 28 U.S.C. § 1292(a)(1) because
it requires the City to do more than submit a plan.
Second, the “content of the plan to be submitted has already been
substantially prescribed by the district court.” Spates, 619 F.2d at 209. The
Remedies Order mandates the inclusion of specific components as part of the
“Immediate Reforms” to be “developed” by the Monitor in collaboration with the
parties.
Because this Court has properly exercised jurisdiction over this appeal, it
acted within its jurisdiction to remove the District Judge.
C.

The District Judge’s Request for Leave is Meritless.

In seeking leave, the District Court relies on inapplicable Federal Rules of
Appellate Procedure and seeks to create a due process right where none exists.
The District Judge’s request is procedurally improper and unsupported by any
authority.

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1.

Federal Rule of Appellate Procedure 21 Does Not Apply
Here.

The District Judge asks this Court to fashion a completely novel remedy that
has no support or precedent, and relies on the facially inapplicable Rule of
Appellate Procedure 21. That rule, which applies to writs of mandamus and
prohibition and other extraordinary writs filed by a party with a court of appeals—
and has no provision allowing filings of petitions by judges—sets forth, among
other things, the procedures a court of appeals may follow for directing
respondents to submit answers to a petition for an extraordinary writ. It contains
one sub-provision that contemplates the participation of a judge to address such a
petition. Fed. R. App. P. 21(b). Rule 21(b) reads, in full, as follows:
(b) Denial; Order Directing Answer; Briefs; Precedence.
(1) The court may deny the petition without an answer.
Otherwise, it must order the respondent, if any, to answer within a
fixed time.
(2) The clerk must serve the order to respond on all persons
directed to respond.
(3) Two or more respondents may answer jointly.
(4) The court of appeals may invite or order the trial-court
judge to address the petition or may invite an amicus curiae to do so.
The trial-court judge may request permission to address the petition
but may not do so unless invited or ordered to do so by the court of
appeals.
(5) If briefing or oral argument is required, the clerk must
advise the parties, and when appropriate, the trial-court judge or
amicus curiae.

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(6) The proceeding must be given preference over ordinary civil
cases.
(7) The circuit clerk must send a copy of the final disposition to
the trial-court judge.
Id. (emphasis added).
By its terms, Rule 21 does not apply here. No petition for mandamus has
been filed. The District Judge has not been invited or ordered to address any
petition for mandamus. Finally, and perhaps most importantly, even if there were
a mandamus petition pending before this Court, it would remain completely within
this Court’s discretion to “invite” or “order” the District Judge to address the
petition before the Court issued a decision. Even assuming arguendo the relevance
of this rule, the Court already has decided the issue of the District Judge’s conduct
below and reasonably chose not to invite the District Judge to address the issue.
Accordingly, no basis exists for the District Judge’s request. Contrary to the
District Judge’s assertion, Rule 21 does not “carefully assure that where a district
judge is charged with conduct amounting to judicial misbehavior, the judge will
receive notice of the allegations and an opportunity to seek leave to be heard.”
Dist. Judge’s Mot. for Leave ¶ 16. Nowhere does such a concept appear in Rule 21
or in any other procedural rule or case law.1

1

The District Judge asserts that “the practice in this Circuit is to grant a district judge’s request
to be heard . . . prior to issuing an order [regarding misconduct by the judge].” Dist. Judge’s
Mot. for Leave ¶ 19. The cases the District Judge cites do not appear to support this proposition.
One of them is apparently unpublished, and the District Judge provides no reference to a written

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The District Judge’s filing effectively attempts to simulate, or invoke by
analogy, a scenario in which a party’s request for disqualification of a trial-court
judge is denied, and then the party applies to an appellate court for a writ of
mandamus directing the trial-court judge to recuse herself. Such a procedural
posture theoretically would trigger the application of Rule 21(b)(4), which permits
this Court to “invite” or “order” the trial-court judge to address the merits of the
petition. Again, however, whether to invite such participation by the trial-court
judge is wholly within the discretion of the court of appeals and it does not, as the
District Judge asserts, amount to “formal protections” extended to a trial-court
judge.
2.

The District Judge Has No Protectable Right to “Due
Process of Law” in This Context.

The District Judge also argues, without citation to any case law, that Rule
38, which addresses sanctions against parties for bringing frivolous appeals,
addresses a situation that is “analogous” to this one. Dist. Judge’s Mot. for Leave
¶ 24. Because Rule 38 contemplates notice and an opportunity for a party to be
heard before the court issues sanctions, the District Judge maintains that the
District Judge should have received such due process protections in the form of
“notice and an opportunity to defend herself.” Id. ¶ 25.
order or disposition that would enable the SBA to evaluate the principle she claims it supports.
The other, In re Austrian, German Holocaust Litig., 250 F.3d 156 (2d Cir. 2001), says nothing
whatsoever about misconduct or bias by a judge, nor does it in any way support the notion that a
judge has any personal rights in mandamus proceedings.

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Rule 38 is inapplicable and no rule or other authority gives the District Judge
“due process” rights in this context. The District Judge is not a party, the District
Judge has not been sanctioned, and this Court was not required either to notify
District Judge that it was considering the Judge’s misconduct or give the Judge an
opportunity to defend it. The District Judge’s reliance on Rule 38 is misplaced.
III.

CONCLUSION
For all of the above reasons, the SBA respectfully requests that the Court

deny the District Judge’s Request for Leave to File Motion to Address Order of
Disqualification, and deny Plaintiffs-Appellees’ Motion for Reconsideration by the
En Banc Court of the October 31, 2013 Mandate.
Dated: New York, New York.
November 13, 2013

Respectfully submitted,
DLA PIPER LLP (US)
1251 Avenue of the Americas, 27th
Floor
New York, NY 10020-1104
212.335.4500

By: /s/ Anthony P. Coles
Anthony P. Coles
Courtney G. Saleski
Attorneys for Proposed Intervenor
Sergeants Benevolent Association

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