Civil Rights Corps. et al v. Pestana et al

Filing 109

ORDER with respect to 108 Letter Motion to Stay re: 108 LETTER MOTION to Stay proceedings pending interlocutory appeal addressed to Judge Victor Marrero from Krista Friedrich dated July 29, 2022. Plaintiffs are directed to respond by August 5, 2022, by letter not to exceed four pages, to the matter set forth above by Defendants requesting a stay pending appeal. SO ORDERED. (Signed by Judge Victor Marrero on 8/1/2022) (jca)

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T HE CITY OF NEW YORK
STEVEN STEIN CUSHMAN
Acting Corporation Counsel

LAW DEPARTMENT

KRISTA FRIEDRICH
Senior Counsel
Phone: [phone]
Fax: [phone]
E-mail: [e-mail]

100 CHURCH STREET
NEW YORK, NY 10007

July 29, 2022
BY ECF
The Honorable Victor Marrero
United States District Judge
Southern District of New York
500 Pearl Street
New York, NY 10007
Re: Civil Rights Corps, et al. v. Pestana, et al., 21-cv-9128 (VM)
Dear Judge Marrero:
This office represents defendants Georgia Pestana, former Corporation Counsel of
the City of New York, and Melinda Katz, District Attorney for Queens County (together, the
“City defendants”) in the above-referenced action. The City moved to dismiss the complaint on
the basis of, amongst other things, qualified immunity. This Court eschewed briefing on the
motion and construed defendants’ letters requesting permission to file motions to dismiss as
motions. The Court thereafter, in two separate orders, denied the construed motion in its entirety.
As pertinent here, the Court issued an Order dated June 13, 2022 (ECF No. 94), holding that the
City defendants are not entitled to qualified immunity for the actions at issue here (ECF No. 94
at 39).
Because the City’s motion raised important and novel legal issues, the City
defendants filed a Notice of Appeal (ECF No. 101) to present an interlocutory appeal to the
Second Circuit on the issue of the City defendants’ entitlement to immunity. The City defendants
now respectfully request, pursuant to Rule 8 of the Federal Rules of Appellate Procedure, that
this Court stay further proceedings pending the Second Circuit’s determination of the
interlocutory appeal. Plaintiffs object to this request because they believe the stay is unnecessary,
and all other parties take no position.
A denial of qualified immunity constitutes an immediately appealable
interlocutory decision because such immunity “is effectively lost if a case is erroneously
permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Such immunity furnishes
“an entitlement not to stand trial or face the other burdens of litigation,” including discovery
proceedings. Id. “Qualified immunity strikes a balance between the need to provide a means for
the vindication of constitutional guarantees and the societal costs that inhere in litigation against
public officials, including ‘the danger that fear of being sued will 'dampen the ardor of all but the

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most resolute, or the most irresponsible [public officials], in the unflinching discharge of their
duties.’” Loria v. Gorman, 306 F.3d 1271, 1281 (2d Cir. 2002), quoting Harlow v. Fitzgerald,
457 U.S. 800, 814 (1982).
In this case, the Court, relying on language in Kamasinski v. Judicial Review
Council, 44 F.3d 106 (2d Cir. 1994), held that the City defendants are not entitled to qualified
immunity because they “would have known” that, despite the confidentiality provisions
contained in the State Judiciary Law governing the attorney grievance process, the First
Amendment allowed grievance complaints to be published publicly (ECF 94 at 24, 38-39). City
defendants agree that “penalizing an individual for publicly disclosing complaints about the
conduct of a government official” would be unconstitutional, and never asserted otherwise. Id. at
111. But the Kamasinski court distinguished disclosing “the fact that a complaint has been filed
or that testimony has been given” from publicizing the substance of complaints individuals have
about public officials, recognizing “that the former might be subject to greater regulation than
the latter.” Id. Indeed, recognizing the state’s interest in “preserving the integrity of its
judiciary,” the Court held “that the limited ban on disclosure of the fact of filing or the fact that
testimony was given does not run afoul of the First Amendment.” Id. It is the former that is at
issue here. The City defendants also relied on the well-settled legal proposition that statutes are
presumed constitutional until found otherwise. Gonzales v. Raich, 545 U.S. 1, 28–29 (2005).
This, at a minimum, calls this Court’s holding into question and raises a legitimate issue for
appellate review.
Courts in this circuit apply a “general rule” that “when an appeal of the denial of
qualified immunity is under consideration, discovery should not proceed.” In re Facebook, Inc.,
42 F. Supp. 3d 556, 558 (S.D.N.Y. 2014). They frequently apply the “dual jurisdiction rule,
which divests a district court of jurisdiction immediately upon the filing of a request for
interlocutory review under the collateral order doctrine . . . in cases respecting a right not to be
tried, such as … qualified immunity.” In re S. African Apartheid Litig., No. 2009 U.S. Dist.
LEXIS 123437, at *2 (S.D.N.Y. July 6, 2009); see Edrei v. City of N.Y., 2017 U.S. Dist. LEXI S
141097, at *7 (S.D.N.Y. Aug. 31, 2017) (granting motion to stay proceedings pending resolution
of interlocutory appeal on issue of qualified immunity defense). 1 Alternatively, courts apply a
four-factor balancing test to determine whether a stay is warranted, considering “whether: (1) the
applicant will be irreparably injured absent a stay; (2) issuance of the stay will substantially
injure the other parties interested in the proceeding; (3) the stay applicant has made a strong
showing that he is likely to succeed on the merits; and (4) the stay is in the public interest.”
Plummer v. Quinn, 2008 U.S. Dist. LEXIS 9951, at *2 (S.D.N.Y. Feb. 12, 2008). Under either
analysis, a stay is necessary and appropriate here.

1

“‘While the Second Circuit has not directly held that the filing of an interlocutory qualified
immunity appeal automatically divests district courts of jurisdiction, the First, Fifth, Seventh, and
Ninth Circuits have all held that district courts are automatically divested of jurisdiction.’” NRA
of Am. v. Cuomo, 2022 U.S. Dist. LEXIS 8849, at *3-4 (N.D.N.Y. Jan. 18, 2022) (citations
omitted).

2

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Moreover, while not addressed by this Court, the City has also asserted an absolute
immunity defense. 2 “Absolute immunity gives ‘public officials entrusted with sensitive tasks a
protected area of discretion within which to carry out their responsibilities.’” Mangiafico v.
Blumenthal, 471 F.3d 391, 394 (2d Cir. 2006), quoting Barr v. Abrams, 810 F.2d 358, 361 (2d
Cir. 1987). Government attorneys enjoy absolute immunity when functioning as advocates “in a
way that is intimately associated with the judicial process.” Mangiafico v. Blumenthal, 47F.3d
391, 396 (2d Cir. 2006). Here, the former Corporation Counsels were advocating on behalf of
our client the Queens District Attorney’s office in a quasi-judicial forum open to both plaintiffs
and defendants. This advocacy, which carried no greater legal weight than that of the plaintiffs,
is precisely the sort of matter for which the Corporation Counsel and her assistants have
consistently been afforded absolute immunity in order to fully participate in the adjudicative
process. The City’s colorable absolute immunity defense provides another strong basis for a stay,
for the same reasons.
Neither of the City defendants has any interest in unnecessarily prolonging this
litigation. Nonetheless, the Court’s decision to deny Ms. Pestana and Ms. Katz immunity prior to
trial raises significant legal and policy concerns that City defendants cannot ignore in the interest
of expediency. A stay of this case pending appeal is the only vehicle available to the defendants
to ensure that the City defendants can be heard by the Second Circuit prior to being subjected to
the burdens of litigation and trial.
Denying a stay would not only extinguish the City defendants’ rights recognized
by the Supreme Court in Mitchell but doing so would also frustrate the important policy
considerations articulated by the Supreme Court in Harlow behind qualified immunity. As the
Court recognized in its order, the City defendants’ intent will be at issue in discovery. The issue
to be resolved on appeal, involving the Court’s holding that the City defendants “would have
known” the legal argument they were advancing was unconstitutional is a judicial conclusion
that directly implicates the City defendants’ state of mind that will certainly be a central issue
during discovery on the unresolved claims and in all subsequent proceedings before this Court.
By contrast, plaintiffs will not suffer any prejudice if this Court grants a stay.
This Court has already held that the First Amendment permits plaintiffs to publish any attorney
grievance complaints that they file, as well as any papers, records, and documents that they
receive related to those complaints (ECF No. 94 at 24, 30). During a stay pending the resolution
of the City defendants’ appeal on the narrow issue of immunity, plaintiffs will remain free to
publicize their present and future grievance complaints and any associated documents in their
possession. As City defendants have previously stated, they fully intend to abide by this Court’s
ruling in this regard.
2

In the May 5, 2022 Order, the Court observed that based on its review of the pre-motion letters
regarding potential motions to dismiss “the City Defendants do not appear to be arguing that they
are absolutely immune from suit” (ECF No. 90 at 21 n.4). While the City Defendants did in fact
clarify they are asserting an absolute immunity argument in their opposition to plaintiffs’
summary judgment motion (See ECF No. 77 at 13), that argument was not addressed in the
Court’s June 13, 2022 Order.

3

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Important legal and policy considerations surrounding the City defendants’
entitlement to immunity tip the balance in favor of granting a stay in this case. Accordingly, the
City defendants urge this Court to grant the requested stay and allow Ms. Pestana and Ms. Katz
an opportunity to pursue their appeal, which they will do expeditiously.
Respectfully submitted,
/s/ Krista Friedrich
Krista Friedrich
Assistant Corporation Counsel
cc: Counsel of record (via ECF)

Plaintiffs are
Augu
g st 5,, 2022
August
four
Defendants requesting a stay pending appeal.

8/1/2022

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