Floyd v. City of New York

Filing 147

SUPPLEMENTARY PAPERS TO PETITION FOR REHEARING EN BANC [107], on behalf of Movant Shira A. Scheindlin in 13-3088, 13-3461, 13-3524, FILED. Service date 11/25/2013 by CM/ECF.[1100482][147] [13-3088, 13-3461, 13-3524]

UNITED STATES COURT OF APPEALS
for the
SECOND CIRCUIT

In re Re-Assignment of Cases
__________________________________________
In re Motion of District Judge
__________________________________________

David Floyd,
Plaintiffs-Appellees

13-3088

v.
City of New York,
Defendants-Appellants
__________________________________________
__________________________________________
Jaenean Ligon, et al.,
Plaintiffs-Appellees
v.

13-3123
(Corrected)

City of New York, et al.,
Defendants-Appellants
__________________________________________
Joint Supplemental Submission in Connection With
Pending Requests for En Banc Reconsideration of Motion Panel’s
Decision and Order, dated November 13, 2013
The undersigned are: (a) six retired United States District Judges and
thirteen Professors of Legal Ethics who have filed a brief amici curiae in support
of appellees’ pending motion for rehearing en banc; and (b) five members of the
1

bar of the Second Circuit Court of Appeals who seek leave to appear as counsel for
the District Judge, or as amici curiae on her behalf.
In light of the Motion Panel’s November 22, 2013 per curiam opinion and
order, a copy of which is annexed hereto, both sets of amici jointly submit this
statement supplementing their pending requests for en banc reconsideration of the
Motion Panel’s opinion and order dated November 13, 2013.
On November 18, 2013, six retired Federal District Judges and thirteen
Professors of Legal Ethics filed a brief amici curiae in support of appellees’
motion for en banc reconsideration of the Motion Panel’s November 13, 2013
order and opinion.
On November 18, 2013, the five undersigned members of the bar of the
Second Circuit moved pursuant to Rule 35 Fed. R. App. P. for en banc
reconsideration of the amended order and decision of the Motion Panel herein,
dated November 13, 2013, denying the undersigned leave to appear as counsel for
the District Judge, or as amici curiae on her behalf, in order to present objections
to the sua sponte order of the Motion Panel directing removal of the District Judge
in David Floyd v. City of New York (13-3088), and Jaenean Ligon, et al. v. City of
New York et al. (13-3123).
Among the issues raised by amici was whether the Motion Panel had access
to a formal transcript of a December 21, 2007 colloquy between counsel and the
2

District Judge in Daniels v. City of New York, an earlier case challenging NYPD’s
stop and frisk practices, when the Panel issued its first opinion and order on
October 31, 2013 directing removal of the District Judge, in large part because of
comments she made during the colloquy.
Amici noted that the October 31, 2013 order and opinion cited to a
newspaper article purporting to describe the colloquy, rather than the transcript
itself. On November 22, 2013, the Motion Panel issued a per curiam order and
opinion supplementing its November 13, 2013 order and opinion stating that the
Panel was, in fact, in possession of a transcript of the colloquy at the October 29,
2013 oral argument. The Motion Panel noted that members of the Panel had
referred to the Daniels colloquy during oral argument, and had referenced and
quoted from it in its October 31, 2013 opinion, albeit without citing to the
transcript itself.
1. In view of the supplemental information in the Panel’s November 22,
2013 order and opinion, amici withdraw any suggestion that the Panel
acted on October 31, 2013 without having access to a transcript of the
colloquy in question.
2. Unfortunately, however, the Panel’s assurance that it was in possession
of a transcript of the crucial colloquy at oral argument on October 29,

3

2013, illustrates the procedural unfairness of acting sua sponte to remove
a District Judge pursuant to 28 U.S.C.§2106, with no process whatever.
3. Despite the critical role the colloquy would come to play in the removal
process, the appellees in Floyd and Ligon did not possess a transcript of
the Daniels colloquy at oral argument, and had no notice that the Motion
Panel would find a six-year old colloquy in an earlier case relevant to a
motion for a stay pending appeal in Floyd and Ligon.
4. The documents constituting the record before the Motion Panel did not
contain a transcript of the colloquy, nor did the City raise its relevance in
briefing or oral argument concerning the motion for a stay.
5. The colloquy in question occurred almost six years ago in Daniels v. City
of New York. The records of the Southern District Court Reporters
indicate that a copy of the transcript was ordered by the City of New
York on December 26, 2007. Because the transcript was never docketed,
it was not made part of the record in Daniels, and was not publicly
available.
6. Upon information and belief, the City of New York, which was under no
legal duty to do so, did not make a copy of the transcript available to
plaintiffs in Daniels, Floyd, or Ligon.

4

7. The records of the Southern District Court Reporter further indicate that
no other order for the transcript was placed prior to oral argument on
October 29, 2013.
8. Thus, while the Panel obtained a copy of the Daniels transcript prior to
oral argument, the appellees in Floyd and Ligon lacked a copy, and had
no notice that the Daniels transcript might be relevant.
9. When a member of the Motion Panel raised the Daniels colloquy sua
sponte during oral argument, appellees’ counsel in both Floyd and Ligon,
lacking a transcript of their own, and presumably having relied on the
City’s briefing to define the relevant issues before the Motion Panel,
were taken completely by surprise by the Panel’s questions.
10. Lacking a copy of the transcript, and with no notice of its relevance, it
would have been impossible for counsel in Floyd and Ligon to place the
language contained in a six-year old colloquy in another case in context
in response to the concerns voiced by the Motion Panel.
11. Nor, given the Motion Panel’s refusal to permit amici to appear on
behalf of the District Judge, has it been possible for the District Judge to
inform the Motion Panel of the colloquy’s context subsequent to the oral
argument.

5

12. Two days after the oral argument, on October 31, 2013, the Motion
Panel relied heavily on quotations culled from the colloquy to make a
determination that the District Judge had misapplied Local Rule 13
governing related cases.
13. On November 1, 2013, one day after the Motion Panel’s initial ruling,
the appellees in Floyd ordered a transcript of the Daniels colloquy.
Appellees made a copy available to Burt Neuborne, counsel of record for
five amici herein, on November 2, 2013.
14. A review of the entire 42 page transcript has led both sets of amici to
believe that the Motion Panel, lacking: (a) information concerning the
transcript’s context: (b) a copy of the settlement agreement in Daniels;
and (c) any factual information concerning the prevailing application of
Local Rule 13 in the Southern District of New York, misunderstood the
import of the quoted language.
15. Accordingly, both sets of amici have filed requests for en banc
reconsideration in order to provide the Court, for the first time in this
proceeding, with an explanation of the factual context of the transcript
needed to understand the import of the quoted language. The explanation
is set forth at paragraphs 8-31of the Neuborne amici’s November 18,
2013 motion for en banc reconsideration.
6

16. Amici believe that once the colloquy’s context is understood, an
observer in possession of the facts would not view it as a misapplication
of Local Rule 13, or as evidence of a lack of neutrality within the
meaning of 28 U.S.C §455(a).
17. This Court clearly possesses the power to utilize the procedural
protections afforded by Rule 21(b) (4) F. R. App. P. to assist the judges
of this Circuit in making necessary factual determinations in proceedings
pursuant to 28 U.S.C § 2106. Cases are legion in which courts imply
procedural protections in order to assure accurate fact-finding. And
where, as here, the issue arises in connection with consideration of the
procedures to be utilized in this Circuit in §2106 reassignment cases
involving contested issues of fact, there is no doubt that the Circuit sitting
en banc possess the power to adopt appropriate procedural safeguards.
18. The Motion Panel closed its November 22, 2013 per curiam opinion
with the following statement:
“In sum, the Panel was in possession of the relevant facts,
including the transcript, when it issued its orders dated October
31, 2013 and November 13, 2013. Any assertion to the
contrary is unfounded.”
19. With respect, thirty-eight years ago, an iconic judge of this court, Henry
J. Friendly, explained that no finder-of-fact can be confident that it is in
possession of the relevant facts when it insists upon acting sua sponte
7

with no process whatever, especially where, as here it acts: (a) in reliance
on a transcript available only to some of the interested parties; (b)
without having provided notice of the transcript’s relevance; and (c)
without permitting the District Judge an opportunity to explain the
colloquy’s context. 1
20. Given the procedural history of this matter, en banc reconsideration is
particularly appropriate to assure the existence of procedural norms of
fairness and accuracy governing an important aspect of this Circuit’s
relationship with District Court colleagues.
WHEREFORE, amici jointly renew their respective requests for en
banc reconsideration of the Motion Panel’s November 13, 2013 opinion
and order ordering removal of the District Judge without providing her
any opportunity to explain the context of the colloquy in question, and
request that this statement be considered as a supplement to the materials

1

Henry J. Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267 (1975)

8

filed herein seeking en banc reconsideration of the Motion Panel’s order
and decision dated November 13, 2013.
Dated: New York, New York
November 25, 2013
Respectfully submitted,

Burt Neuborne

HISCOCK & BARCLAY

s/ burt neuborne
___________
(Counsel of Record)
Norman Dorsen
Arthur R. Miller
Judith Resnik
Frederick A.O. Schwarz, Jr.

brian e. whiteley
by ___________________
(Counsel of Record)
Six Retired Federal District Judges
Thirteen Professors of Legal Ethics
Amici Curiae on behalf of Appellees
One International Place, 14th fl.
Boston, Massachusetts 02110
617 274-2900

40 Washington Square
New York, New York 10012
212 998-6192
Proposed Amici Curiae
on behalf of District Judge

9

Case: 13-3123

Document: 238

Page: 1

11/22/2013

1099138

5

13-3123; 13-3088
Ligon; Floyd v. City of New York

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2013
(Decided: November 22, 2013)
Docket Nos. 13-3123-cv, 13-3088-cv
Jaenean Ligon, et al.,
Plaintiffs-Appellants,
- v. City of New York, et al.,
Defendants-Appellees.
David Floyd, et al.,
Plaintiffs-Appellees,
- v. City of New York,
Defendant-Appellant,
Sergeants Benevolent Association,
Proposed Intervenor-Appellant,
New York City Police Officer
Rodriguez, in his official capacity, et al.,
Defendants.

Before: WALKER, CABRANES, AND PARKER, Circuit Judges
Alex B. Karteron, Christopher Thomas Dunn, Daniel
Mullkoff, New York Civil Liberties Union, New
York, NY; Juan Cartagena, Roberto Concepcion, Jr.,
Latino Justice, New York, NY; Michael Grunfel, John
A. Nathanson, Jeffrey J. Resetarits, Sherman &
Stearling LLP, New York, NY; Mariana Louise Kovel,

Case: 13-3123

Document: 238

Page: 2

11/22/2013

1099138

5

The Bronx Defenders, New York, NY; J. McGregor
Smyth, New York Lawyers for the Public Interest,
New York NY, for Jaenean Ligon, et al.
Darius Charney, Sunita Patel, Center for
Constitutional Rights, New York, NY; Jennifer
Rolnick Borchetta, Jonathan Clifford Moore, Beldock
Levine & Hoffman LLP, New York, NY; Eric
Hellerman, Kasey Lynn Martini, Covington & Burling
LLP, New York, NY, for David Floyd, et al.
Celeste L. Koeleveld, Deborah A. Brenner, Michael
A. Cardozo, Kathy H. Chang, Heidi Grossman, Fay
Sue Ng, New York City Law Department, New York,
NY, for City of New York, et al.
Anthony P. Coles, Courtney Gilligan Saleski, DLA
Piper, Philadelphia, PA, New York, NY, for Sergeants
Benevolent Association.
Burt Neuborne, New York, NY, for Shira A. Scheindlin.

PER CURIAM:
Pending before the Court are four motions. The first two, filed by Appellant City of New
York (the “City”), seek “modifi[cation] of the Stay Order dated October 31, 2013 to the extent of
vacating” the orders of the District Court dated February 14, 2013 and August 12, 2013. Ligon v.
City of New York, No. 13-3123, Dkt. 190; Floyd v. City of New York, No. 13-3088, Dkt. 265.
The City’s motions, filed on November 9, 2013, were submitted without the benefit of
the legal analysis provided by the Court’s two opinions of November 13, 2013, In re Motion of
District Judge, --- F.3d ----, Nos. 13-3123, 13-3088 (2d Cir. Nov. 13, 2013), and In re
Reassignment of Cases, --- F.3d ----, Nos. 13-3123, 13-3088 (2d Cir. Nov. 13, 2013), which
superseded the Court’s order of October 31, 2013, and therefore, we DENY the City’s motions,
without prejudice to consideration as part of the appeal on the merits, or any application to us for
a return of the cases to the District Court for the purpose of exploring a resolution.
2

Case: 13-3123

Document: 238

Page: 3

11/22/2013

1099138

5

The third and fourth motions were filed on November 13, 2013, by Burt Neuborne, who
had previously sought leave to appear as counsel for Judge Scheindlin or as amicus curiae on her
behalf, see Floyd v. City of New York, No. 13-3088, Dkt. 263; Ligon v. City of New York, No. 133123, Dkt. 187. These two motions request leave to move for, among other things, an order
denying on the merits the City’s motions to vacate. See Request for Leave to Submit Response
to Motion Filed by City of New York to Vacate (“Ligon Mot.”), No. 13-3123, Dkt. 207; Request
for Leave to Submit Response to Motion Filed by City of New York to Vacate (“Floyd Mot.”),
No. 13-3088, Dkt. 299.
In one of the Court’s per curiam opinions of November 13, 2013, In re Motion of District
Judge, we denied Judge Scheindlin’s request to appear in this Court as lacking a procedural
basis, and we need not revisit that issue. We now DENY these additional motions of Judge
Scheindlin, which seek leave to oppose the City’s motions, both for the reasons we stated earlier,
see In re Motion of District Judge, --- F.3d ----, Nos. 13-3123, 13-3088 (2d Cir. Nov. 13, 2013),
and because they are moot in light of our denial of the City’s motions that she seeks to oppose.
We are, however, prompted to address several characterizations of fact contained in Mr.
Neuborne’s submissions to the Court. In one of these motions, he asserts that “[i]t now appears
that the Motion Panel did not have access to the [December 21, 2007] transcript” of proceedings
in Daniels v. City of New York, No. 99-1695, when it considered and entered its October 31,
2013 order, because “[u]pon information and belief, the transcript was not part of the record in
the Daniels case.” Ligon Mot. ¶ 13. The motion further alleges that “[i]n the absence of the
actual transcript, the Motion Panel relied [on] an inaccurate press report of the colloquy as the
principal basis for its sua sponte decision to order the prospective removal of the District Judge.”

3

Case: 13-3123

Document: 238

Page: 4

11/22/2013

1099138

5

Id. ¶ 14. In his other motion, Mr. Neuborne reiterates his contention that “it is unclear whether
the Motion Panel had access to an actual transcript of the colloquy.” Floyd Mot. ¶ 14.
These assertions have been echoed by other movants in this case. See, e.g., Br. of Amici
Curiae Six Retired United States District Court Judges and Thirteen Professors of Legal Ethics,
Ligon v. City of New York, No. 13-3123, Dkt. 221, Floyd v. City of New York, No. 13-3088, Dkt.
313, at 14 (“[I]n describing the colloquy with counsel concerning the related case doctrine on
which the Panel’s ruling rested, the Court relied on an inaccurate press account. Amici
understand that the colloquy was not available to the Panel at the time it ruled on October 31,
2013.”).
A review of the record of the Court of Appeals, and of the October 29, 2013 extended
oral argument in these cases, will reveal that the panel members had the transcript of the
December 21, 2007 proceeding in front of them during the hearing, and that they asked questions
in open court regarding its substance. For example, during the oral argument, one member of the
panel twice referred to the proceedings in detail, and clearly noted that he was quoting from page
42 of the December 21, 2007 transcript. Our October 31, 2013 order specifically cited the
transcript by caption, docket number, and date, and it included quotations that had not been
reported in the New York Times article that was cited, or in any other public news report known
to the panel.
In sum, the panel was in full possession of the relevant facts, including the transcript of
December 21, 2007, when it issued its orders of October 31, 2013, and November 13, 2013. Any
suggestion to the contrary is unfounded.

4

Case: 13-3123

Document: 238

Page: 5

11/22/2013

1099138

5

CONCLUSION
For the foregoing reasons, we DENY the motions of appellant City of New York, seeking
to modify the Court’s stay order of October 31, 2013 to include vacatur of the District Court’s
February 14, 2013 order in Ligon v. City of New York, 925 F. Supp. 2d 478 (S.D.N.Y. 2013), and
August 12, 2013 orders in Floyd v. City of New York, --- F. Supp. 2d ----, No. 08-cv-1034, 2013
WL 4046209 (S.D.N.Y. Aug. 12, 2013); --- F. Supp. 2d ----, No. 08-cv-1034, 2013 WL 4046217
(S.D.N.Y. Aug. 12, 2013) without prejudice (as indicated above). We also DENY the November
13, 2013 motions by counsel for Judge Scheindlin to appear in order to oppose the City’s
motions for modification, for the reasons stated in In re Motion of District Judge, --- F.3d ----,
Nos. 13-3123, 13-3088 (2d Cir. Nov. 13, 2013), and, because in any event, they are moot.

5