Betances v. Fischer et al
OPINION AND ORDER: For the foregoing reasons, plaintiffs' motion for an Order certifying defendants' interlocutory appeal as frivolous and retaining this Court's jurisdiction pending the appeal is GRANTED. SO ORDERED. (As further set forth within this Opinion.) (Signed by Judge Shira A. Scheindlin on 10/14/2015) (ajs)
SHIRA A. SCHEINDLIN, U.S.D.J.:
Beginning in 1998, New York mandated that certain violent felonies
be punished by a determinate prison sentence followed by a mandatory parole term
known as post-release supervision (“PRS”).1 The governing statute did not require
that the term of PRS be announced by the judge at sentencing. In thousands of
cases where the judge did not impose a PRS term at sentencing, the New York
State Department of Correctional Services (“DOCS”) imposed PRS upon felons
committed to its custody – either during their incarceration or as they were released
from prison. The New York State Division of Parole (“DOP”) then enforced those
On June 9, 2006, the Second Circuit held in Earley v. Murray that the
administrative imposition of PRS by DOCS violates the federal constitutional right
to due process.2 In May 2011, plaintiffs brought claims pursuant to section 1983 of
Title 42 of the United States Code against current and former officials at DOCS
and DOP, on behalf of all persons who were sentenced to prison in New York State
for determinate terms that did not include a term of PRS, but who nevertheless
See N.Y. Penal Law § 70.45(1).
See 451 F.3d 71, 75-76 (2d Cir. 2006).
were subjected to PRS after the maximum terms of their determinate sentences and
after the Earley decision was announced on June 9, 2006.
Over four years later, no trial has yet been held. During these
intervening years, defendants have argued (unsuccessfully) for qualified immunity
three times – twice before this Court and once before the Second Circuit.3 The
third and most recent of these arguments was raised in defendants’ May 8, 2015
summary judgment motion. In my August 6, 2015 summary judgment ruling, I
once again rejected defendants’ claim of qualified immunity and held that
defendants Anthony Annucci, Brian Fischer, and Terrence Tracy could be held
personally liable as a matter of law.4 On September 2, 2015, I set December 7,
2015 as a firm trial date on the issue of damages. Six days later, on September 8,
2015, defendants filed their second interlocutory appeal – this time from the
summary judgment decision – seeking a further delay in this case while the Second
Circuit re-reviews defendants’ assertions of qualified immunity.5
Defendants also sought, and were denied, rehearing and rehearing en
banc by the Second Circuit and certiorari by the Supreme Court on the issue of
Also in that Opinion, I dismissed plaintiffs’ claims against all other
Because there has been no final judgment in this case, defendants’
instant interlocutory appeal is limited to the sole issue of qualified immunity.
On September 25, 2015, plaintiffs filed a letter with this Court
requesting leave to seek an Order “‘certif[ying Defendants’ qualified] immunity
appeal as ‘frivolous,’ thus, enabling this Court ‘to retain jurisdiction pending
summary disposition of the appeal, and thereby minimiz[ing] disruption of the
ongoing proceedings’ in the district court.”6 At a conference before this Court on
October 8, 2015, plaintiffs made their motion and the parties presented their
arguments on this issue. For the following reasons, plaintiffs’ motion for an Order
certifying defendants’ interlocutory appeal as frivolous and retaining this Court’s
jurisdiction pending appeal is GRANTED.
Administrative Imposition of PRS
In 1998, the New York Legislature enacted Penal Law Section 70.45,
9/25/15 Letter from Plaintiffs to the Court at 1 (alterations in original)
(quoting Behrens v. Pelletier, 516 U.S. 299, 310 (1996) (further citations omitted)).
These facts are identical to those recited in this Court’s August 6,
2015 summary judgment Opinion and Order. As noted in that Opinion, defendants
repeatedly asserted, in response to plaintiffs’ 56.1 Statement, six blanket
objections, including that the representation is not material, does not accurately
reflect the record, and mischaracterizes deposition testimony – objections which
were, in the main, utterly frivolous and bordered on bad faith. As such, for any
facts relied on in this Opinion taken from plaintiffs’ 56.1 Statement to which
defendants objected, the objection is overruled.
which mandated PRS terms for individuals convicted of violent felonies.8
However, judges did not always pronounce PRS terms when sentencing defendants
covered by the statute or include PRS terms on their sentence and commitment
orders.9 In these circumstances, DOCS calculated terms of PRS and included those
terms on inmates’ records.10 These records were provided to the DOP.11 DOP
enforced the PRS terms as calculated by DOCS.12
On June 9, 2006, the Second Circuit held in Earley that the
administrative imposition of PRS by DOCS violates a prisoner’s federal
constitutional right to due process and that a sentence is “never anything other
than” the sentence imposed by the judge at the sentencing hearing and recorded in
the order of commitment.13 “The additional provision for post-release supervision
added by DOCS is a nullity. . . . The penalty administratively added by the
See N.Y. Penal Law § 70.45.
See Plaintiffs’ Statement of Undisputed Material Facts Pursuant to
Local Rule 56.1 (“Pl. 56.1”) ¶ 11.
See Defendants’ Statement of Undisputed Material Facts Pursuant to
Rule 56.1 (“Def. 56.1”) ¶ 26.
See id. ¶ 28; Pl. 56.1 ¶ 14.
See Pl. 56.1 ¶ 15.
Earley, 451 F.3d at 76 & n.1.
Department of Corrections was, quite simply, never a part of the sentence.”14
Defendants in Earley had argued that Section 70.45 mandated a period of PRS and
therefore was necessarily a part of the sentence — that is, any sentence without a
term of PRS was illegal.15 The Second Circuit disagreed that the term of PRS was
automatic, and stated that, rather than administratively imposing PRS, New York
law provided a remedy to correct any “illegal sentence[:] the state may move to
have the offending sentence vacated and the defendant resentenced by a judge,”
consistent with New York Criminal Procedure Law Section 440.40.16
Initial Response to Earley
Defendant Anthony Annucci served as DOCS’s counsel until October
1, 2007, when he became Executive Deputy Commissioner and counsel.17 In
December 2008, he retired as counsel but remained Executive Deputy
Commissioner of DOCS until April 2011, when he became Executive Deputy
Commissioner of the Department of Corrections and Community Supervision
(“DOCCS”), a new entity formed by the merger of DOCS and DOP.18
Id. at 76.
See id. (citing Bozza v. United States, 330 U.S. 160 (1947)).
See Pl. 56.1 ¶ 2.
See id. ¶¶ 1-2.
On July 20, 2006, Annucci sent an email to John Amodeo, counsel to
the New York State Office of Court Administration (“OCA”).19 In that email,
Annucci summarized the holding of Earley and anticipated that “numerous inmates
[would] file court actions seeking to eradicate their terms of PRS.”20 He
recommended that an instructional reminder be sent to all sitting criminal term
judges, stating that “[r]ecent case law provides that [PRS] can only be imposed on
the record by the sentencing judge at the time sentence is pronounced, and cannot
subsequently be added by a clerical staff person employed either with the court
system or the correctional system.”21 In August 2006, Annucci directed all DOCS
Inmate Records Coordinators to inform inmates who questioned their PRS terms
that DOCS officials would not follow Earley’s holding.22
Defendant Brian Fischer was the Commissioner of DOCS, and then
Commissioner of DOCCS, from January 1, 2007 until April 2013.23 Fischer was
aware of Earley, and, as Commissioner of DOCS, had the authority to decide
See 7/20/06 Email from Annucci to John Amodeo, Ex. A to
Declaration of Anthony J. Annucci (“Annucci Decl.”).
See Annucci Decl. ¶ 13.
See Pl. 56.1 ¶ 1.
whether to change DOCS’s policy relating to the imposition of PRS.24 Fischer
decided to maintain DOCS’s policy of administratively imposing PRS and await
further guidance from the legislature and the courts.25
Defendant Terrence Tracy was the chief counsel for DOP from
December 1996 through March 2011.26 Tracy was aware of Earley in 2006 and
understood that it could have an impact on the population under DOP’s
jurisdiction.27 Tracy also was aware of DOCS’s practice of adding PRS to
inmates’ sentence calculations where the sentence and commitment orders were
silent, and knew that there were individuals under DOP supervision who had not
been judicially sentenced to PRS.28 Tracy did not review any files after Earley to
determine which parolees were under supervision but had not been judicially
sentenced to PRS.29
See id. ¶ 27.
See 3/6/15 Deposition of Brian Fischer, Ex. 4 to Declaration of
Matthew D. Brinckerhoff (“Brinckerhoff Decl.”), at 23, 40-41, 61.
See Pl. 56.1 ¶ 3.
See id. ¶ 29; 1/26/15 Deposition of Terrence Tracy, Ex. 6 to
Brinckerhoff Decl., at 41.
See Pl. 56.1 ¶¶ 31-32.
See Tracy Dep. at 17.
In early 2007, DOCS — at Annucci’s order as authorized by Fischer
— began to review inmate files to identify those whose sentence and commitment
orders did not indicate PRS, but who nevertheless had PRS added to their
sentences.30 Over four to six weeks, DOCS created a database to indicate whether
PRS was included in the commitment order, and kept this database updated as new
inmates entered DOCS’s custody.31 DOCS identified approximately 8,100
individuals whose sentence and commitment orders were silent regarding PRS but
whose terms of PRS had been calculated and added by DOCS.32
In April 2008, the New York Court of Appeals decided Garner v. New
York State Department of Correctional Services,33 and People v. Sparber,34 which
held that New York’s procedural law required judicial pronouncement of PRS.
DOCS, along with other agencies, including DOP, immediately launched the
“Post-Release Supervision Resentencing Initiatives,” which sought to resentence
individuals in DOCS custody who had not been judicially sentenced to PRS.35
See Pl. 56.1 ¶¶ 64-66; Def. 56.1 ¶ 58.
See Pl. 56.1 ¶¶ 69-70; Def. 56.1 ¶¶ 60-62.
See Pl. 56.1 ¶ 68; Annucci Decl. ¶ 24.
See 10 N.Y.3d 358 (2008).
See 10 N.Y.3d 457 (2008).
See Def. 56.1 ¶¶ 74-75.
From June 16 through June 20, 2008, DOP reviewed its records to determine
which individuals in its custody were being supervised without PRS terms in their
sentence and commitment orders.36 On June 30, 2008, the New York State
Legislature codified the procedures proposed by DOCS and DOP to remedy PRS
Defendants’ Motion to Dismiss and First Interlocutory Appeal
Plaintiffs brought this case in May 2011. On November 15, 2011,
defendants moved to dismiss the Complaint on the grounds that because plaintiffs’
constitutional rights were not “clearly established” at the time that those rights
were allegedly violated, state officials were entitled to qualified immunity for their
actions. On February 10, 2012, this Court held that defendants were not entitled to
qualified immunity.38 Defendants filed an interlocutory appeal of that ruling on
February 16, 2012, and discovery in this case was stayed pending the Second
Circuit’s qualified immunity decision.
On June 4, 2013, the Second Circuit affirmed this Court’s denial of
See id. ¶ 76; Pl. 56.1 ¶¶ 75, 77.
See Def. 56.1 ¶ 80.
See Bentley v. Dennison, 852 F. Supp. 2d 379 (S.D.N.Y. 2012).
qualified immunity for “substantially the same reasons stated in [its] reversal of the
grant of . . . immunity in Vincent [v. Yelich],” a case presenting “parallel” claims.39
Defendants then filed a petition for rehearing and rehearing en banc with the
Second Circuit. On June 27, 2014, the Second Circuit denied defendants’ petition
for rehearing, and the mandate affirming this Court’s February 10, 2012 decision
issued on July 8, 2014. On January 12, 2015, the Supreme Court denied
defendants’ petition for certiorari in Vincent and this case.40
Defendants’ Motion for Summary Judgment and Second
On October 31, 2014, plaintiffs moved for class certification, which
this Court granted on January 28, 2015. On May 8, 2015, defendants moved for
summary judgment, asserting (for the third time) that they are entitled to qualified
immunity, among other arguments. On August 6, 2015, this Court again rejected
defendants’ qualified immunity claims, holding that: “[b]ased on th[e] evidence,
defendants have failed to show that they made reasonable efforts to comply with
Earley,” and that the record demonstrated that defendants had “actively opposed
Betances v. Fischer, 519 Fed. App’x 39, 41 (2d Cir. 2013), reh’g &
reh’g en banc denied (2d Cir. 2014) (citing Vincent, 718 F.3d 157 (2d Cir. 2013)).
See Annucci v. Vincent, 135 S. Ct. 948 (2015).
compliance” with Earley.41 The August 6, 2015 Opinion also held that Annucci,
Fischer, and Tracy could be held personally liable as a matter of law and dismissed
plaintiffs’ claims against all other defendants. As a result, the only triable issue
remaining in this case is that of damages against defendants Annucci, Fischer, and
Tracy. On September 8, 2015, challenging the August 6, 2015 decision,
defendants filed their second interlocutory appeal to the Second Circuit on
qualified immunity grounds.
“[A]n order rejecting the defense of qualified immunity at either the
dismissal stage or the summary judgment stage is . . . subject to [interlocutory]
appeal.”42 However, “[a] district court’s denial of qualified immunity on a
summary judgment motion is an appealable final decision only to the extent the
denial turns on an issue of law.”43 “Appealable matters involve ‘disputes about the
substance and clarity of pre-existing law,’ not about ‘what occurred or why an
Betances v. Fischer, No. 11 Civ. 3200, 2015 WL 4692441, at *6
(S.D.N.Y. Aug. 6, 2015) (citing Vincent, 718 F.3d at 177).
Behrens, 516 U.S. at 307 (emphasis omitted).
Terebisi v. Torreso, 764 F.3d 217, 229 (2d Cir. 2014) (quotation
marks and citation omitted).
action was taken or omitted.’”44 Interlocutory appellate “review is thus limited to
the defendants’ arguments that the [undisputed] facts [or facts alleged by the
plaintiff] show either that he ‘didn’t do it’ or that it was objectively reasonable for
him to believe that his action did not violate clearly established law.”45
As a general rule, “the filing of a notice of appeal . . . ‘divests the
district court of its control over those aspects of the case involved in the appeal.’”46
Noting that although “successive pretrial assertions of immunity seem to be a rare
occurrence,” the Supreme Court has recognized that “[u]ndeniably, the availability
of a second appeal affords an opportunity for abuse.”47 Accordingly, the Supreme
Court contemplated that “‘[i]t is well within the supervisory powers of the courts
of appeals to establish summary procedures and calendars to weed out frivolous
claims’” – such as the practice of a “[d]istrict [c]ourt appropriately certif[ying]
petitioner’s immunity appeal as ‘frivolous’ . . . [which] enables the district court to
retain jurisdiction pending summary disposition of the appeal and thereby
Id. (citing Ortiz v. Jordan, 562 U.S. 180 (2011)).
Id. (quotation marks and citation omitted).
Jin Zhao v. State Univ. of New York, No. 14-69, 2015 WL 4940355, at
*2 (2d Cir. Aug. 20, 2015) (quoting Griggs v. Provident Consumer Disc. Co., 459
U.S. 56, 58 (1982)).
Behrens, 516 U.S. at 310.
minimizes disruption of the ongoing proceedings.”48
This practice, sometimes referred to as “dual jurisdiction,” has been
endorsed by all circuits that have considered it.49 For example, in Apostol v.
Gallion, Seventh Circuit Judge Frank Easterbrook observed that during frivolous
qualified immunity appeals, “memories fade, attorneys’ meters tick, judges’
schedules become chaotic (to the detriment of litigants in other cases) [, and
p]laintiffs’ entitlements may be lost or undermined.”50 Nevertheless, “[d]efendants
may seek to stall because they gain from delay at plaintiffs’ expense, an incentive
Id. at 310-11 (quoting Abney v. United States, 431 U.S. 651, 662 n.8
(1977)) (further citations omitted).
See, e.g., Rivera-Torres v. Velez, 341 F.3d 86, 95-96 (1st Cir. 2003);
Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992); Yates v. Cleveland, 941 F.2d
444, 448-49 (6th Cir. 1991); Stewart v. Donges, 915 F.2d 572, 576-77 (10th Cir.
1990); Apostol v. Gallion, 870 F.2d 1335, 1339-40 (7th Cir. 1989). Accord Mathis
v. County of Lyon, No. 07 Civ. 628, 2014 WL 3611550 (D. Nev. July 21, 2014);
Englar v. Davis, No. 04 Civ. 73957, 2011 WL 2784801 (E.D. Mich. July 15,
2011); Rigdon v. Georgia Bd. of Regents, 594 F. Supp. 2d 1312, 1319 (S.D. Ga.
2008); Todd v. La Marque, No. 03-3995, 2008 WL 205591 (N.D. Cal. Jan. 24,
2008); Wilson v. Maricopa Cnty., 484 F. Supp. 2d 1015 (D. Ariz. 2006); Vladic v.
Hamann, No. 00-6739, 2002 WL 31248544 (N.D. Ill. Oct. 4, 2002). Cf. Blinco v.
Green Tree Servicing, LLC, 366 F.3d 1249, 1252 (11th Cir. 2004) (applying the
dual jurisdiction rule to frivolous motions to compel arbitration) (citing BradfordScott Data Corp v. Physician Computer Network, Inc., 128 F.3d 504, 506 (7th Cir.
870 F.2d at 1338.
yielding unjustified appeals.”51 Thus, analogizing to the double jeopardy context,
he found that “[i]f the [interlocutory] claim of immunity is a sham, . . . the notice
of appeal does not transfer jurisdiction to the court of appeals, and so does not stop
the district court in its tracks.”52
Although the Second Circuit has not specifically addressed dual
jurisdiction over frivolous qualified immunity claims, district courts across this
Circuit also have endorsed this approach.53 In so doing in City of New York v.
Beretta U.S.A. Corporation, District Judge Jack Weinstein wrote that: “[a]
defendant raising a meritless claim of a right not to stand trial cannot be permitted
to significantly delay and disrupt the course of the litigation, imperiling both the
rights of the plaintiff and the interest in judicial economy. . . .”54
“Qualified immunity shields government officials from civil damages
liability unless the official violated a statutory or constitutional right that was
Id. at 1339.
See, e.g., Bradley v. Jusino, No. 04 Civ. 8411, 2009 WL 1403891, at
*1-2 (S.D.N.Y. May 18, 2009); Plummer v. Quinn, No. 07 Civ. 6154, 2008 WL
383507, at *2 (S.D.N.Y. Feb. 12, 2008); Palmer v. Goss, No. 02 Civ. 5804, 2003
WL 22519454, at *1 (S.D.N.Y. Nov. 5, 2003); Bean v. City of Buffalo, 822 F.
Supp. 1016, 1019 (W.D.N.Y. 1993).
234 F.R.D. 46, 51 (E.D.N.Y. 2006) (citing United States v. Claiborne,
727 F.2d 842, 850 (9th Cir. 1984)).
clearly established at the time of the challenged conduct.”55 The Second Circuit
has held that “[a] right is clearly established if (1) the law is defined with
reasonable clarity, (2) the Supreme Court or Second Circuit has recognized the
right, and (3) a reasonable defendant [would] have understood from the existing
law that [his or her] conduct was unlawful.”56 “[A] conclusion that the defendant
official’s conduct was objectively reasonable as a matter of law may be appropriate
where there is no dispute as to the material historical facts . . . .”57
Defendants’ most recent interlocutory appeal is their fourth attempt at
asserting qualified immunity in as many years. During that time, this case has been
unable to proceed to trial and claims affecting thousands of class members remain
pending before this Court. In fact, defendants’ first interlocutory appeal on
qualified immunity suspended the district court proceedings for nearly two and a
half years. Now, defendants seek to further delay this case on the same grounds.
Taylor v. Barkes, 135 S. Ct. 2042 (2015) (quotation marks omitted).
Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003) (quotation
marks omitted). Accord Taravella v. Town of Wolcott, 599 F.3d 129, 134 (2d Cir.
2010) (“Even where the law is clearly established and the scope of an official’s
permissible conduct is clearly defined, the qualified immunity defense also protects
an official if it was objectively reasonable for him at the time of the challenged
action to believe his acts were lawful.”) (quotation marks and citations omitted).
Taravella, 599 F.3d at 135.
For the following reasons, dual jurisdiction is warranted between the district court
and Court of Appeals – thereby allowing the litigation to proceed efficiently in the
district court while the Court of Appeals re-reviews defendants’ previouslyrejected qualified immunity assertions.
Defendants’ Renewed Qualified Immunity Claims Are Frivolous
In Vincent, the Second Circuit held that because Earley clearly
established that administrative imposition of PRS violated federal due process
guarantees, the district court in that case had erred in ruling that Annucci was
entitled to qualified immunity.58 The court also observed that “the very conduct”
that was challenged in Vincent was “the conduct that was held unconstitutional in
Earley.”59 In so holding, the court noted that further discovery could reveal facts
material to the qualified immunity inquiry. Specifically, the court stated that
evidence might exist “that could establish that Annucci made reasonable efforts
either to seek resentencing [of individuals with administratively-imposed PRS] or
to end their unconstitutional imprisonment and excise PRS from their prison
records.”60 Therefore, the court remanded the case to the district court to develop
See Vincent, 718 F.3d at 173-74.
Id. at 170.
Id. at 174.
the record “as to the objective reasonableness of Annucci’s efforts to relieve [the
individuals] of the burdens of those unlawfully imposed terms after he knew it had
been ruled that the imposition violated federal law.”61 In doing so, the court
we think it clear that DOCS, which (a) unconstitutionally imposed
PRS, (b) was custodian of the record in which PRS was imposed
and from which PRS was required to be excised (in the absence of
appropriate resentencing), and (c) resumed custody of persons
who violated the unconstitutionally imposed conditions and were
penalized for those violations by reimprisonment, had an
obligation to at least attempt to cease its administrative and
custodial operations that had been held to violate federal law.62
Seizing upon Vincent’s observation that a more developed record on
remand could alter the availability of qualified immunity,63 defendants in this case
argue that their instant interlocutory appeal is not frivolous because “it is at least
debatable” whether their post-Earley “efforts between 2006 and 2008 that w[ere]
not considered by the Second Circuit in the prior appeal” were “sufficiently
reasonable to entitle defendants to qualified immunity.”64 The undisputed record in
this case, however, leaves no room for debate. Defendants’ appeal is frivolous
Id. at 177.
Id. at 172.
See id. at 177.
9/30/15 Letter from Defendants to the Court at 2.
because in no way could their post-Earley conduct be described as the
“objective[ly] reasonable . . . efforts to relieve [class members] of the burdens of
those unlawfully imposed terms” contemplated by Vincent.65 Rather, as discussed
below, despite defendants’ admitted awareness of Earley, they made institutional
decisions to ignore, and in fact obstruct, this law – including by informing inmates
that DOCS would not follow Earley’s holding, opposing Earley’s holding when
individuals sought relief from administratively-imposed PRS, continuing to
administratively impose PRS, and failing to seek resentencing or expungement of
illegal PRS sentences of which they were aware.
Defendants’ Refusal to Comply with Earley Was Not
After Vincent, this Court undertook a rigorous analysis on summary
judgment of whether defendants had, in fact, made objectively reasonable efforts to
comply with Earley.66 The undisputed record demonstrated, however, that
defendants had not only failed to make reasonable compliance efforts, but also
actively opposed compliance with that ruling. Specifically, the Opinion observed
that between 2006 and 2008,
[t]here is no dispute about the actions taken by defendants. Soon
Vincent, 718 F.3d at 177.
See Betances, 2015 WL 4692441, at *6.
after Earley was decided, Annucci sent an email to OCA
summarizing Earley’s holding and recommending that a
notification be sent to judges so that, going forward, defendants
would be properly sentenced to terms including PRS. Beyond
this, no defendant took any action to comply with Earley. . . .
After Earley had declared the practice unconstitutional, DOCS
continued to administratively impose PRS. Annucci instructed
DOCS to inform inmates who, in light of Earley, questioned their
PRS terms, that DOCS officials would not follow Earley’s
holding. Defendants acknowledge this, but insist that they did
take reasonable actions to comply. They assert that they
“attempted to refer PRS challenges to sentencing courts,” but this
contention profoundly misrepresents defendants’ actions. In
reality, when affected individuals sought relief from enforcement
of administrative PRS, DOCS and DOP opposed the petitions and
took the position that PRS was automatic. They also asserted —
but only as an argument in the alternative — that if administrative
PRS could not be enforced, the petitions should still be denied and
the cases referred to the petitioners’ original sentencing courts so
that PRS could be retroactively imposed. Thus defendants’
purported attempt to resentence affected individuals was only in
response to those individuals seeking relief from administrative
PRS, and only as a last resort — they made no affirmative efforts.
Finally, DOCS created a database to identify affected
individuals, and kept that database updated, but did not take any
steps to have any of those individuals resentenced, or to expunge
the administratively-imposed PRS terms from their sentences.
DOP did not begin to identify affected individuals until almost
two years after Earley was decided. DOCS and DOP did not take
affirmative steps to resentence any individuals until May 2008.67
A number of these findings were confirmed during the oral argument
on this motion. In particular, defendants conceded that their “first line” position
Id. (citations to plaintiffs’ and defendants’ Rule 56.1 Statements and
other supporting documentation omitted) (emphasis in original).
was that “Earley was wrongly decided”68 so that in New York
Article 78 or state habeas corpus proceedings [brought by
individuals] seeking release from the burdens of [PRS,] DOCS
and [DOP] attempted in those cases to, one, argue what they
believed they could argue, which was along with the DAs and
with many of the courts, that PRS was automatic. They also
alternatively argued . . . that these individuals should be referred
by the courts . . . to their sentencing courts for resentencing. . . .69
Defendants also conceded that, after Earley, “DOCS did continue the policy” of
administratively imposing PRS.70
Defendants’ instant appeal is perhaps unlike most qualified immunity
appeals in that Vincent offers specific guidance as to what would render
defendants’ post-Earley conduct objectively reasonable, and the undisputed record
in this case shows that defendants failed to meet these post-Earley obligations. In
light of defendants’ explicit refusal to comply with Earley, their renewed
interlocutory appeal is patently frivolous and should not delay this litigation any
Transcript of October 8, 2015 Oral Argument (“Tr.”) at 64:11
(Assistant Attorney General (“AAG”) Michael Keane).
Id. at 17:18-18:2 (emphasis added) (AAG Keane).
Id. at 24:13-16 (AAG Keane). Defendants also suggest that their
continued imposition of PRS after Earley is of minimal importance because “very
few people, if any, were affected by that policy.” Id. at 24:15-16 (AAG Keane).
However, the relevant issue is whether the policy was an objectively reasonable
effort at compliance – not the number of individuals affected by that policy.
Defendants’ Qualified Immunity Appeal Presents No Legal
Relatedly, defendants’ appeal is frivolous given that their renewed
qualified immunity claims do not present any legal questions for appellate review.
The operative complaints in Vincent and this case allege no efforts by defendants
to comply with Earley. Accepting these allegations as true on appeal from
a motion to dismiss, the Second Circuit held in Vincent that Earley clearly
established that administratively-imposed PRS violated due process and denied
qualified immunity because “the present record [in Vincent] d[id] not indicate that
[defendants] took prompt action in light of Earley.”72 In other words, Vincent held
that qualified immunity is unavailable absent evidence of “prompt action” to
comply with Earley.73
Thus, after Vincent, the only remaining qualified immunity question
in this case was whether defendants could produce evidence that they had taken
Notably, defendants’ Civil Appeal Pre-Argument Statement (Form C,
Addendum A) for their similar (but earlier) qualified immunity appeal in Hassell v.
Fischer, No. 15-2438 (2d Cir. Aug. 27, 2015) [Dkt. No. 30-2], includes no citation
to Vincent, 718 F.3d 157, as existing authority.
Vincent, 718 F.3d at 173.
objectively reasonable steps – i.e., “prompt action” – to comply with Earley.
Accordingly, the undisputed summary judgment record demonstrates not only that
defendants failed to take any such “prompt action” but also that they ignored and
actively opposed Earley. This record forecloses defendants’ qualified immunity
defense. Because Vincent found it unreasonable for defendants not to undertake
any post-Earley compliance efforts, defendants’ recalcitrant response to Earley
could not have been an objectively reasonable effort at complying with that ruling.
Defendants’ Remaining Arguments Are Unavailing
To justify their response to Earley, defendants argue that they were
blocked – practically and authoritatively – from referring individuals to courts for
resentencing or excising unconstitutionally-imposed PRS sentences themselves.
Defendants’ reasoning, however, misconstrues their obligations after Earley and
does not render their chosen strategy – that of ignoring and opposing Earley –
First, although defendants admit that they did not attempt to refer
individuals to the courts for resentencing, they assert that “[i]t was objectively
reasonable for DOCS and [DOP], in the face of judges and district attorneys who
[weren’t] . . . entertain[ing] resentencing, to have not made . . . referrals to the
sentencing courts to get . . . people resentenced.”74 Even assuming that some
district attorneys and some state courts were unwilling to follow Earley,75
Tr. at 17:3-7 (AAG Keane).
Defendants also contend that confusion amongst New York courts
after Earley renders their opposition to Earley objectively reasonable. This
argument, however, is an impermissible attempt at resurrecting the issue settled by
the Second Circuit of when it became “clearly established” that administrativelyimposed PRS is unconstitutional: Vincent has already considered and rejected this
same argument in holding that Earley clearly established that administrative
imposition of PRS violates constitutional due process. See Vincent, 718 F.3d at
169-70 (explaining that “none of the state court decisions cited by defendants
demonstrates any confusion about whether Earley prohibited DOCS from
imposing PRS”); id. at 173-74. In doing so, Vincent explained that:
[a]s a general matter, [f]ederal constitutional standards rather than
state law define the requirements of procedural due process. . . .
State court decisions that rejected Earley’s holding could not
disestablish the federal right to due process for the purposes of
qualified immunity analysis. . . . [A] decision by a state court
contrary to a holding of this court cannot unsettle or de-establish
the clarity of federal law because we begin our inquiry by looking
to binding precedent [and i]f the right is clearly established by
decisional authority of the Supreme Court or this Circuit, our
inquiry should come to an end. Because Earley[’s] explicit ruling
that [DOCS] has no . . . power to alter a sentence clearly
established the right plaintiffs seek to vindicate, our inquiry ends
Id. at 169-70 (quotation marks and citations omitted) (emphasis in original).
Furthermore, the qualified immunity inquiry does not include a subjective “good
faith” component because the good faith “inquiry [would be] inherently factual and
require resolution by jury[,] . . . undermin[ing] the very purpose of qualified
immunity . . . [of] dismiss[ing] insubstantial claims against government officials
before trial.” Jenkins v. City of New York, 478 F.3d 76, 87 n.9 (citing Harlow v.
defendants had the ability – and indeed, as Vincent observed, the obligation – to
bring unconstitutionally-imposed sentences to the judiciary’s attention.76 Nothing
prohibited defendants from taking this initial step. In fact, defendants had the
necessary information to do this – as evidenced by the database DOCS created in
2007 to identify those 8,100 individuals within DOCS custody whose PRS
sentences had been nullified by Earley.77 Despite the existence of this database,
defendants did not produce this information until after the state courts decided
Garner and Sparber in late 2008 – instead requiring affected individuals to file for
PRS relief themselves (and even in those cases, continuing to oppose Earley before
the courts by arguing “that PRS was automatic”).78
Second, defendants argue that they were unable to release individuals
from unconstitutionally-imposed PRS until Garber and Sparber clarified their
authority to do so in 2008.79 Again, this argument misstates defendants’ postFitzgerald, 457 U.S. 800, 815-16 (1982)) (further citation omitted). Accordingly,
any disagreement among state courts about Earley’s holding is irrelevant to the
present inquiry into whether defendants’ post-Earley conduct could have been
considered objectively reasonable efforts at compliance with that clearlyestablished law.
See, e.g., Vincent, 157 F.3d at 177.
See Pl. 56.1 ¶ 68; Annucci Decl. ¶ 24.
Tr. at 17:22-23 (AAG Keane).
See id. at 25:21-26:8 (AAG Keane).
Earley obligations. As part of the executive branch, defendants have a nondiscretionary obligation to obey the law. Accordingly, after the Second Circuit’s
decision Earley, administratively-imposed PRS sentences became “nullit[ies]” and
defendants had no authority to hold individuals in violation of their clearlyestablished constitutional right to sentencing by a judge.80 As such, defendants
were not required to wait until the Garber and Sparber decisions before releasing
individuals from administrative PRS – Earley itself stripped defendants of any
authority to continue holding those individuals. This is further supported by
Vincent, which observed that an individual “who was then in prison for violating
the administratively imposed PRS terms, was entitled, unless he was resentenced,
to be released from DOCS’s custody.”81 In fact, Vincent explicitly rejected a
magistrate’s finding that “‘DOCS had no authority . . . to seek’” to have an
[individual] resentenced, or to “‘unilaterally revoke the PRS’” it had
administratively imposed, until the law was changed in . . . 2008.”82
Third, defendants claim that “even if they felt they could excise
Earley, 451 F.3d at 76.
718 F.3d at 172.
Id. at 165 (quoting Earley v. Annucci, No. 08 Civ. 669, 2011 WL
7112917, at *6 (N.D.N.Y. Dec. 28, 2011)).
[PRS],”83 it was impossible for them to review the majority of sentences to
ascertain whether “the judicially imposed sentence” included PRS.84 This
argument is entirely unconvincing, given that the administrative imposition of PRS
required defendants to do just this (and that defendants apparently had sufficient
information to compile the 2007 DOCS database identifying at least 8,100
individuals whose sentences were implicated by Earley).85 In fact, defendants
concede that “DOCS is bound by the four corners of the sentencing commitment”
issued by the judge.86 Thus, for each individual, the sentencing commitment either
did or did not include “judicially imposed” PRS. If the sentencing commitment
did not include this information, then defendants would have known that there was
no judicially-imposed PRS and that the individual could not be held lawfully once
the sentence of incarceration was complete.
The Interests of Justice and Judicial Economy Favor Dual
Tr. at 27:18-19 (AAG Keane).
Id. at 27:24-25 (AAG Keane).
See Pl. 56.1 ¶ 68; Annucci Decl. ¶ 24.
Tr. at 68:4-5 (AAG Keane). Accord 2/27/15 Deposition of Richard
De Simone, Ex. 5 to Brinckerhoff Decl., at 30-32 (explaining that for sentences
that seem inconsistent with the convicted offense, “[w]hen somebody comes in
with a commitment, we enter on our computer system what the commitment said. .
. . [W]e would notify the DA, the judge and the defense attorney [when] the
commitment appears to be improper or the sentence appears to be improper”).
Furthermore, as the court recognized in Apostol, divesting the district
court of jurisdiction pending a frivolous qualified immunity appeal “protects the
interests of the defendants claiming qualified immunity, . . . [but] may injure the
legitimate interests of other litigants and the judicial system.”87 Given the
particular constitutional importance, widespread impact, and protracted history of
this case, dual jurisdiction strikes the appropriate balance between the interests of
plaintiffs, defendants, and the judiciary.
The delays in this case have caused substantial hardship to plaintiffs
(and, needless to say, have been caused by defendants’ relentless efforts to prevail
on qualified immunity). For over four years, thousands of class members have
waited for their due process claims to be adjudicated – additional postponements
will only exacerbate these harms.
A critical factor weighing in favor of dual jurisdiction, however, is the
uniquely minimal burden that would be placed on defendants from allowing this
case to proceed to trial while the Second Circuit considers the qualified immunity
appeal. Because of the advanced procedural posture of this case, the only triable
issue is that of damages against Annucci, Fischer, and Tracy. As a result, the trial
870 F.2d at 1338.
Matthew D. Brinckerhoff, Esq.
Hayley Horowitz, Esq.
Emery Celli Brinckerhoff & Abady, LLP
600 Fifth Avenue, 10th Floor
New York, NY 10020
Michael J. Keane
Christina Chinwe Okereke
James Brennan Cooney
Assistant Attorneys General
State of New York
New York, NY 10271
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