Posted on April 28th, 2022
This “Bulletin Board” contains information about recent disability decisions from the United States Supreme Court and the United States Court of Appeals for the Second Circuit.
We will continue to write more detailed articles about significant decisions as they are issued by these and other Courts, but we hope that this list will help advocates gain an overview of the body of recent judicial decisions that are important in our judicial circuit.
SUPREME COURT DECISIONS
Carr v. Saul, 141 S.Ct. 1352 (Apr. 22, 2021)
The Supreme Court held that a claimant is not precluded from raising a legal issue for the first time in U.S. District Court if it was not raised before the Administrative Law Judge (ALJ). The underlying issue in question in Carr and its companion cases was whether the ALJ was properly appointed under the Appointments Clause of the U.S. Constitution. In the aftermath of Lucia v. Securities and Exchange Commission, 138 S.Ct. 2044 (2018) challenging the constitutionality of SEC ALJs, Carr and other plaintiffs challenged the legitimacy of the ALJs who had denied their disability claims and sought new hearings. The Commissioner argued the plaintiffs had forfeited their Appointments Clause challenges because they had not raised them before SSA during the administrative appeals process. The Supreme Court resolved a conflict in the circuits by holding that given the non-adversarial nature of SSA hearings, issue-exhaustion is not required.
Smith v. Berryhill, 139 S.Ct. 1765 (2019)
The Supreme Court held that an Appeals Council dismissal of a request for review is a final decision subject to judicial review. The Court unanimously held that where the Appeals Council has dismissed a request for review as untimely after a claimant has obtained a hearing from an ALJ on the merits, the dismissal qualifies as a “final decision . . . made after a hearing” within the meaning of 42 U.S.C § 405(g). It distinguished its earlier ruling in Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), by emphasizing that as opposed to the denial of a request for reopening in Sanders, there had been a decision by an ALJ on the merits of the plaintiff’s claim.
Biestek v. Berryhill, 139 S.Ct. 1148 (2019)
In a 6-3 decision, the Court declined to adopt a categorical rule that a vocational expert’s supporting data must be provided in order for the testimony to constitute substantial evidence. But the majority acknowledged that in some cases it may be possible to draw an adverse inference against a VE who refuses to provide supporting data.
Astrue v. Capato, ex rel. B.N.C., 132 S.Ct. 2021 (2012)
A unanimous Supreme Court upheld SSA’s denial of survivors’ benefits to posthumously conceived twins because their home state of Florida does not allow them to inherit through intestate succession. The Court relied on Section 416(h) of the Social Security Act, which requires, inter alia, that an applicant must be eligible to inherit the insured’s personal property under state law in order to be eligible for benefits. In rejecting Capato’s argument that the children, conceived by in vitro fertilization after her husband’s death, fit the definition of child in Section 416(e), the Court deferred to SSA’s interpretation of the Act.
Barnhart v. Thomas, 124 S. Ct. 376 (2003)
The Supreme Court upheld SSA’s determination that it can find a claimant not disabled at Step Four of the sequential evaluation without investigation whether her past relevant work actually exists in significant numbers in the national economy. A unanimous Court deferred to the Commissioner’s interpretation that an ability to return to past relevant work can be the basis for a denial, even if the job is now obsolete and the claimant could otherwise prevail at Step Five (the “grids”). Adopted by SSA as AR 05-1c.
Barnhart v. Walton, 122 S. Ct. 1265 (2002)
The Supreme Court affirmed SSA’s policy of denying SSD and SSI benefits to claimants who return to work and engage in substantial gainful activity (SGA) prior to adjudication of disability within 12 months of onset of disability. The unanimous decision held that the 12-month durational requirement applies to the inability to engage in SGA as well as the underlying impairment itself.
Sims v. Apfel, 120 S. Ct. 2080 (2000)
The Supreme Court held that a Social Security or SSI claimant need not raise an issue before the Appeals Council in order to assert the issue in District Court. The Supreme Court explicitly limited its holding to failure to “exhaust” an issue with the Appeals Council and left open the possibility that one might be precluded from raising an issue.
Forney v. Apfel, 118 S. Ct. 1984 (1998)
The Supreme Court finally held that individual disability claimants, like the government, can appeal from District Court remand orders. In Sullivan v. Finkelstein, the Supreme Court held that remand orders under 42 U.S.C. 405(g) can constitute final judgments which are appealable to circuit courts. In that case the government was appealing the remand order.
Shalala v. Schaefer, 113 S. Ct. 2625 (1993)
The Court unanimously held that a final judgment for purposes of an EAJA petition in a Social Security case involving a remand is a judgment “entered by a Court of law and does not encompass decisions rendered by an administrative agency.” The Court, however, further complicated the issue by distinguishing between 42 USC §405(g) sentence four remands and sentence six remands.
SECOND CIRCUIT DECISIONS
Colgan v. Kijakazi, 22 F.4th 353 (2d Cir. Jan. 3, 2022)
The court remanded, finding the ALJ erred in failing to accord controlling weight to the opinion of the treating physician under the pre 2017 opinion evidence regulations that applied in this case. The court held the ALJ failed to find good reasons under the old regulations for discounting the opinion of a concussion specialist that the plaintiff would be off task 33% of the day and absent more than four days per month due to her headaches and other impairments. The ALJ also erred in discounting the opinion because it was presented in “check box” form; the opinion was supported by voluminous treatment notes. The court criticized the ALJ for “cherry-picking” particular instances of improvement to create inconsistencies with the treating source opinion. And it criticized the ALJ for relying too heavily on the opinions of consulting physicians, particularly where the consulting opinions did not address or dispute the crux of the treating source’s opinion.
Alexander v. Saul, 5 F.4th 139 (2d Cir. July 8, 2021)
The Second Circuit upheld a district court’s refusal to extend the time to appeal its decision affirming the Commissioner’s denial of an SSI claim. Although the Circuit was “sympathetic” to the plaintiff, it concluded the district court had not abused its discretion – even though the plaintiff filed her appeal and request for an extension only two days after the 60-day deadline expired. The district court had reasonably applied the “excusable neglect” factors rather “good cause” standard under Fed. R. App. P. 4(a)(5) because the plaintiff’s failure to appeal was at least partially due to her own inadvertence in failing to notify her attorney of her change of address rather than due to her alleged mental illness. The court refused to toll the Rule 4(a)(5) deadline as it is considered jurisdictional and less flexible than the statute of limitations governing the 60-day limit to seek judicial review under 42 U.S.C. § 405(g).
Sczepanski v. Saul, 946 F.3d 152 (2d Cir. 2020)
The court held that ability to complete work during the probationary period is relevant to a disability claim. It remanded for further proceedings at Step five of the Sequential Evaluation to determine whether the claimant could perform work as required during the probationary period, including meeting the levels for absenteeism tolerated by the employer.
Estrella v. Berryhill, 925 F.3d 90 (2d Cir. 2019),
The Court of Appeals endorsed in strong terms the value of treating source evidence and affirmed its prior treating physician rule cases. The court faulted the ALJ for failing to consider explicitly the Burgess factors incorporated into the former opinion evidence regulations, which were replaced in 2017 by 20 C.F.R. §§ 404.1520c(a) & 416.920c(a). The new regulations were not considered by the court.
Lockwood v. Comm’r of SSA, 914 F.3d 87 (2d Cir. 2019)
The Court of Appeals remanded because the ALJ had not met his affirmative obligation under SSR 00-4p to inquire about any possible or apparent conflicts between vocational testimony and the Dictionary of Occupational Titles (DOT). The court found the ALJ did not meet his burden simply by asking the vocational expert if her testimony was consistent, especially where the ALJ found the plaintiff could not reach overhead, but the three jobs to which the VE testified all required frequent or occasional reaching.
Lesterhuis v. Colvin, 805 F.3d 83 (2d Cir. 2015)
The Court of Appeals remanded for consideration of a retrospective medical opinion from a treating physician submitted to the Appeals Council, citing Perez v. Chater, 77 F.3d 41, 54 (2d Cir. 1996). The ALJ’s decision was not supported by substantial evidence in light of the new and material medical opinion from the treating physician that the plaintiff would likely miss four days of work per month. Since the vocational expert had testified a claimant who would be absent that frequently would be unable to work, the physician’s opinion, if credited, would suffice to support a determination of disability. The court also faulted the district court for identifying gaps in the treating physician’s knowledge of the plaintiff’s condition. Citing Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008), the court reiterated it may not “affirm an administrative action on grounds different from those considered by the agency.”
Greek v. Colvin, 802 F.3d 370 (2d Cir 2015)
The court remanded for clarification of the treating source’s opinion, particularly as to the claimant’s ability to perform postural activities. The doctor had also opined that Mr. Greek would likely be absent from work more than four days a month as a result of his impairments. Since a vocational expert testified there were no jobs Mr. Greek could perform if he had to miss four or more days of work a month, the court found the ALJ’s error misapplication of the factors in the treating physician regulations was not harmless. “After all, SSA’s regulations provide a very specific process for evaluating a treating physician’s opinion and instruct ALJs to give such opinions ‘controlling weight’ in all but a limited range of circumstances. See 20 C.F.R. § 404.1527(c)(2); see also Burgess, 537 F.3d at 128.” (Emphasis supplied.)
McIntyre v. Colvin, 758 F.3d 146 (2d Cir. 2014)
The Court of Appeals for the Second Circuit found the ALJ’s failure to incorporate all of the plaintiff’s non-exertional limitations explicitly into the residual functional capacity (RCF) formulation or the hypothetical question posed to the vocational expert (VE) was harmless error. The court ruled that “an ALJ’s hypothetical should explicitly incorporate any limitations in concentration, persistence, and pace.” 758 F.3d at 152. But in this case, the evidence demonstrated the plaintiff could engage in simple, routine tasks, low stress tasks despite limits in concentration, persistence, and pace; the hypothetical thus implicitly incorporated those limitations. The court also held that the ALJ’s decision was not internally inconsistent simply because he concluded that the same impairments he had found severe at Step two were not ultimately disabling.
Cichocki v. Astrue, 729 F.3d 172 (2d Cir. 2013)
The Court held the failure to conduct a function-by-function analysis at Step four of the Sequential Evaluation is not a per se ground for remand. In affirming the decision of the district court, the Court ruled that despite the requirement of Social Security Ruling (SSR) 96-8p, it was joining other circuits in declining to adopt a per se rule that the functions referred to in the SSR must be addressed explicitly.
Selian v. Astrue, 708 F.3d 409 (2d Cir. 2013)
The Court held the ALJ improperly substituted her own lay opinion by rejecting the claimant’s contention that he has fibromyalgia despite a diagnosis by his treating physician. It found the ALJ misconstrued the treating physician’s treatment notes. It criticized the ALJ for relying too heavily on the findings of a consultative examiner based on a single examination. It also found the ALJ improperly substituted her own criteria for fibromyalgia. Citing the guidance from the American College of Rheumatology now made part of SSR 12-2p, the Court remanded for further proceedings, noting the required finding of tender points was not documented in the records.
The Court also held the ALJ’s RFC determination was not supported by substantial evidence. It found the opinion of the consultative examiner upon which the ALJ relied was “remarkably vague.” Finally, the court agreed the ALJ had erred in relying on the Grids to deny the claim. Although it upheld the ALJ’s determination that neither the claimant’s pain or depression were significant, it concluded the ALJ had not affirmatively determined whether the claimant’s reaching limitations were negligible.
Talavera v. Astrue, 697 F.3d 145 (2d Cir. 2012)
The Court of Appeals held that for purposes of Listing 12.05, evidence of a claimant’s cognitive limitations as an adult establishes a rebuttable presumption that those limitations arose before age 22. It also ruled that while IQ scores in the range specified by the subparts of Listing 12.05 may be prima facie evidence that an applicant suffers from “significantly subaverage general intellectual functioning,” the claimant has the burden of establishing that she also suffers from qualifying deficits in adaptive functioning. The court described deficits in adaptive functioning as the inability to cope with the challenges of ordinary everyday life.
Lockwood v. Comm’r of SSA, 914 F.3d 87 (2d Cir. 2019)
The Court of Appeals remanded because the ALJ had not met his affirmative obligation under SSR 00-4p to inquire about any possible or apparent conflicts between vocational testimony and the Dictionary of Occupational Titles (DOT). The court found the ALJ did not meet his burden simply by asking the vocational expert if her testimony was consistent, especially where the ALJ found the plaintiff could not reach overhead, but the three jobs to which the VE testified all required frequent or occasional reaching.
Posted on April 19th, 2022
Federal Equal Access to Justice (EAJA) rate charts (pdf)and spreadsheets (Microsoft Excel), have been updated for through March 2022.
- New York – Newark-Jersey City, NY-NJ-PA
- Northeast, and
- U.S. City Average.
Federal EAJA Hourly Rates – March 1996 through March 2022 (Pdf)
Federal EAJA Hourly Rates – March 1996 through March 2022 (Excel)
Posted on April 30th, 2020
Selected Second Circuit Summary Orders
Ferraro v. Saul, —F. App’x—, 2020 WL 1189399 (2d Cir. Mar. 12, 2020) (pro se) – court remanded, finding the ALJ failed to apply the Burgess factors or provide “good reasons” for assigning reduced weight to the opinions of plaintiff’s treating physicians. The ALJ’s mere acknowledgement of the physicians’ lengthy relationship with the plaintiff does not constitute explicity considering “the frequency, length, nature, and extent of treatment.” Nor did the ALJ give “good reasons” for discounting the medical evidence supporting their opinions. It also found the plaintiff’s ability to care for his father had little relevance to his ability to function in a work setting. It also faulted the ALJ for relying instead on the CE opinion.
Riccobono v. Saul, 796 F. App’x 49 (2d Cir. Mar. 4, 2020) (Bohr, Persaud) – court remanded based on ALJ’s failure to base her RFC on a medical opinion, as opposed to relying on her own lay interpretation of the diagnostic tests and other non-medical evidence. Citing Balsamo, the court found the ALJ over relied on the plaintiff’s past ability to exercise and play sports. The court also held the ALJ was obligated to develop the record to fill any gaps created by perceived inconsistencies in the medical opinions.
Gough v. Saul, — F.App’x —, 2020 WL 475745 (2d Cir. Jan. 13, 2020) (Schneider) – court remanded where ALJ had cherry-picked the evidence to find plaintiff’s limitations did not preclude full-time work where treatment notes and testimony did not contradict treating clinician opinions. The ALJ failed to identify conflicting evidence and failed to seek medical source statement where plaintiff appeared pro se before the ALJ. The court also noted a subsequent ALJ had found the plaintiff disabled based on the same record.
Stacey v. Commissioner, — F. App’x —, 2020 WL 61986 (2d Cir. Jan. 7, 2020) (Kubitschek) – court remanded for calculation of benefits, finding the ALJ erred in discounting the treating psychiatrist’s opinion as based on subjective symptoms. The court noted that mental health cases are less susceptible to objective testing and assessment. It also faulted the ALJ for cherry-picking isolated incidents of improvement and overemphasizing the plaintiff’s ability to get along with family members and perform simple, passive activities such as watching TV.
Byrne v. Berryhill, 752 F. App’x. 96 (2d Cir. 2019) (Bowes) – Court of Appeals remanded in light of the ALJ’s conclusory reasons for assigning “less” weight to three treating physician opinions. The ALJ failed to explain why the diagnostic tests cited by the physician were insufficient to support his conclusions. Nor did the court find the physician’s acknowledgement that physical therapy had been “helpful” inconsistent with his treatment notes.
Messina v. Comm’r of Soc. Sec. Admin., 747 F. App’x. 11 (2d Cir. 2018) (pro se) – court found ALJ did not provide good reasons for rejecting the opinion of the treating physician opinion that claimant could not sit more than one to three hours in an eight hour work day. Additionally, the court found the ALJ had an affirmative duty to re-contact the doctor if the report was unclear. Citing Byam v. Barnhart, 336 F.3d 172, 183 (2d Cir. 2003), the court held that treating source’s retrospective opinion could be accorded controlling weight even though the doctor was not treating claimant at the time he sustained his injuries. Finally, it criticized the ALJ for relying on the opinion of a state agency consultant who had misread some of the evidence.
Adelman v. Berryhill, 742 F. App’x. 566 (2d Cir. 2018) (Kubitschek) – remanded for the Commissioner to determine if claimant was entitled to ongoing benefits, as SSA had never issued a valid decision or reason why his benefits had been terminated. SSA had wrongfully terminated the claimant’s benefits and assessed an overpayment based on SGA without taking into account the provisions of 20 C.F.R. § 404.1573(c), which provides that work performed under “special conditions that take into account [the claimant’s] impairment may not constitute SGA. The district court had ruled that Adelman did not owe back payments from Feb. 2002-March 2003. On appeal, the claimant sought retroactive reinstatement and on-going benefits. The court ruled that on remand, it would be SSA’s burden to demonstrate the claimant’s entitlement ended. The court also ordered interim benefits.
Flynn v. Comm’r of Soc. Sec. Admin., 729 F. App’x. 119 (2d Cir. 2018) (Torrisi) – court remanded for calculation of benefits. Relying on some of its leading treating physician cases, the court, quoting Shaw, found the ALJ substituted his opinion when he concluded the claimant had nothing more than mild anxiety. The ALJ erred in overemphasizing and mischaracterizing a brief period during which the claimant’s condition was more positive. Nor was the physician’s statement that the claimant could work no more than four days per week inconsistent with his other statements, including that the claimant would be expected to miss two or more days a month due to his condition. The court also faulted the ALJ for relying too heavily on experts who did not examine the claimant, citing Selian.
Johnson v. Comm’r of Soc. Sec. Admin., — Fed. App’x —, 2020 WL 360431 (2d Cir. Jan. 22, 2020) (pro se) – court affirmed, finding the ALJ had properly considered the factors of the treating physician rule, even if not explicitly. The ALJ had observed that the treating physician had 1) seen the plaintiff on few occasions, 2) the opinion was not supported by treatment notes, 3) the functional limitations were not supported by record evident and were inconsistent with treatment notes, and 4) the treating physician specialized in internal medicine. The ALJ’s failure to mention the factors explicitly was harmless error. New disability opinions submitted to the Court of Appeals but not to the District Court were not found to be new and material.
Lau v. Commissioner of Social Sec., 787 F. App’x 59 (Dec. 13, 2019) (pro se) – court affirmed, finding the ALJ’s decision was supported by substantial evidence. It found the ALJ properly gave little weight to records from psychiatrists who did see the plaintiff during the relevant time period. It also agreed that the ALJ properly accounted for occasional exposure to pulmonary irritants.
Guerra v. Saul, 778 F. App’x 75 (Oct. 10, 2019) – court affirmed, finding the ALJ did not err in discounting the treating source opinion despite not explicitly considering the four factors discussed in Estrella, because a search of the record demonstrated the ALJ had provided good reasons. The opinions in workers compensation forms were meritless, conclusory, vague, and contradicted by other evidence, including the claimant’s testimony. The psychiatric opinions were belied by other evidence. The ALJ appropriately accorded weight to the consultative examiner.
Bachand v. Saul, 778 F. App’x 74 (Oct. 4, 2019) – court affirmed the District Court’s refusal to equitably toll the statute of limitations where complaint was untimely filed. The plaintiff mischaracterized the Appeals Council unintentional ambiguous statements as misconduct. And his attorney’s miscalculation was a garden variety claim of excusable neglect that did not warrant equitable tolling.
Salinovich v. Comm’r of Soc. Sec. Admin., 783 F. App’x 67, 2019 WL 4743723 (Sept. 30, 2019) – court affirmed, finding the ALJ did not err in according only some weight to the treating source and significant weight to the consultative examiner, where the treating source’s opinion was inconsistent with the treatment notes and the plaintiff’s testimony. Nor was the hypothetical posed to the vocational witness error where it tracked the RFC.
Posted on June 29th, 2018
Victory for low-income New Yorkers seeking economic security
Automobile’s equity value, as opposed to market value, will now be considered when determining public assistance eligibility
(For immediate release 6/29/2018)
On June 21, 2018, The Appellate Division, Third Department affirmed the Albany County Supreme Court’s decision in Stewart v. Roberts, holding that an automobile’s equity value, not its fair market value, is the appropriate standard to use when evaluating an automobile as a resource for public assistance eligibility.
Tricia Stewart applied for public assistance after losing her job of 10 years at a nursing home. Her application was denied because of the market value of her car. Although the law provides that certain cars below a certain value (currently $12,000) are exempt from being counted as a resource, Ms. Stewart’s car with a market value of $12,113, was over the limit. The law also states that a resource cannot disqualify someone from receiving public assistance if it is not “available.”
Although her car was not exempt because it was over the market value limit, Ms. Stewart owed $13,301 on the car. She was underwater on her car loan and the equity value was negative. She argued it had no countable value as a resource and she should be eligible for public assistance. The Albany County Supreme Court agreed and the Appellate Division affirmed, stating the OTDA’s interpretation to the contrary was “irrational and unreasonable.”
Client Tricia Stewart comments, “When I lost my job it was the first time I’d been unemployed and I needed a little help to get back on my feet. It was really frustrating and scary to be denied assistance because of the market value of my car, especially since I was underwater on my car loan. I’m so happy that other people won’t have to go through what I did.”
Most states (38) recognize that a reliable car is necessary to enable people work, and allow welfare recipients to own one car regardless of value. New York State’s rule is archaic and does not recognize the importance of a car to achieving self-sufficiency.
Julie Morse, Attorney at Legal Services of Central New York states, “I am happy New Yorkers like my client Tricia Stewart can now access public assistance when they need it, while keeping their safe reliable transportation and working towards economic security.”
Susan Antos, Senior Attorney at Empire Justice Center said, “This decision will have a significant positive impact on those facing hard times, making it possible to keep the asset that is most likely to help them move forward – a reliable car. It also affirms the common sense notion that a car that is worth less than is owed on the loan is not an available asset. Rather, it is a tool that provides more potential employment options , particularly in areas with little or no public transportation as we have upstate”.
Ms. Stewart was represented by Susan Antos, Saima Akhtar and Ray Burke at the Empire Justice Center, and Julie Morse of Legal Services of Central New York.
Legal Services of Central New York
For more than 50 years, Legal Services of Central New York has fought to help people overcome obstacles, achieve goals, and pursue justice. Our team of 45 attorneys offers expertise in confronting community-wide problems and representing individuals with low-income. In 2017 we helped more than 15,000 people in 5,600 cases. We serve a 13-county region of Central New York (Broome, Cayuga, Chenango, Cortland, Delaware, Herkimer, Jefferson, Lewis, Madison, Oneida, Onondaga, Otsego, and Oswego), fighting for justice and opportunity for all. For free legal assistance apply online at www.lscny.org or call (877) 777-6152.
Justice, equality, and opportunity for all people throughout the 13-county region we serve.
We help people and communities in Central New York change law, policy, and systems to promote equity and create pathways out of poverty.
Empire Justice Center
Empire Justice Center is a statewide, multi-issue, multi-strategy, public interest law firm focused on changing the “systems” within which poor and low-income families live. Empire Justice protects and strengthens the legal rights of people in New York State who are poor, disabled or disenfranchised through: systems change advocacy, training and support to other advocates and organizations, and high quality direct civil legal representation. Empire Justice has four offices in Albany, Rochester, Yonkers, White Plains and Central Islip on Long Island. For more information, please visit our website: www.empirejustice.org.
Posted on April 5th, 2013
Myers v. Batavia City Board of Education, 13-CV-342S
On April 5, 2013 Empire Justice Center filed a class action suit against Batavia City School District on behalf of three female softball players and their families, alleging wide disparities in treatment between girls’ softball and boys’ baseball. We are proud of the girls and their families for joining the ranks of so many brave Title IX plaintiffs who have stood up for their civil rights and in doing so helped to level the playing field for women in sports.
Read the complaint and learn more about the facts of the case.
Read the press release regarding the agreement (June 2, 2014)
U.S. District Court Judge William M. Skretny ruled that the Batavia City School District now owes an additional $68,545 in fees to reimburse the Empire Justice Center for its legal work on behalf of the players and their families.
Posted on November 10th, 2011
HOSPITAL CARE IN NEW YORK
Enforceability of the Right to Meaningful Language Access
November 10, 2011
Author: Linda Hassberg
By Bradley J. Schloss 1 and Linda Hassberg
Hospitals in New York State are required to provide language assistance to consumers with limited English proficiency (LEP). LEP individuals are unable to communicate effectively in English because their primary language is not English and they have not developed fluency in the English language. 2 This article provides an overview and analysis of the applicable federal and state law and complaint processes challenging violations of the right to meaningful language access available to LEP persons receiving services in New York hospitals.
II. Enforceability of Title VI
In 1964, Congress enacted the Civil Rights Act to prohibit discrimination in many areas of society. 3 Title VI of the Civil Rights Act prohibits national origin discrimination by agencies and entities that receive federal funding. 4 In 1974, the Supreme Court issued the landmark decision, entitled Lau v. Nichols, which determined that the failure to provide meaningful language access to LEP individuals constituted national origin discrimination. The Court held that Title VI required the defendant school district to take reasonable steps to provide the plaintiff and other LEP students with a meaningful opportunity to participate in federally funded education programs. 5 The Court found that the United States Department of Health, Education, and Welfare’s (HEW) Title VI implementing regulations and guidelines described the obligation of the school district to take affirmative steps to rectify language deficiencies in order to open instructional programs to LEP students. 6 Since most hospitals receive federal funding, the holding in Lau v. Nichols also extends to, a hospital’s failure to take reasonable steps to ensure meaningful access for its LEP consumers.
Unfortunately, the ability of affected individuals to ensure compliance of hospitals and health care providers with the antidiscrimination mandates of Title VI was significantly curtailed by a subsequent Supreme Court decision. The question of enforceability of the rights provided under Title VI was addressed in Alexander v. Sandoval 7 , in which a Spanish-speaking woman challenged Alabama’s English-only policy requiring the state driver’s license tests to be administered solely in English. 8 Mrs. Sandoval argued that the policy had a disproportionate consequence on applicants for driver’s licenses who had limited proficiency in English. 9
The Supreme Court held that individuals alleging intentional (or “direct”) discrimination under Title VI had a private right of action to sue a federally funded agency under §601. However, the Sandoval Court found no language in Title VI demonstrating Congress’ intent to provide a private right of action under §602, the Section which prohibits disparate (“indirect”) impact discrimination. In other words, individual claims of Title VI discrimination will be dismissed unless they allege that an agency acted to intentionally discriminate against private individuals on the basis of national origin. After Sandoval, the only private right of action under Title VI is a claim of intentional discrimination, not disparate impact.
III. Federal Complaint
Although the Sandoval decision has extinguished the right of private parties to sue for disparate impact discrimination, Title VI regulations and federal funding mechanisms provide alternative means to enforce language access mandates. Pursuant to Title VI, Executive Order 13166 10 requires recipients of federal funds to take reasonable steps to ensure meaningful access to their programs by LEP persons. To determine whether a recipient has done so, the starting point is an individualized assessment that balances four factors:
- the number or proportion of LEP persons eligible to be served or likely to be encountered by the program;
- the frequency with which LEP individuals come in contact with the program;
- the nature and importance of the program, activity, or service provided by the program to people’s lives; and
- the resources available to the recipient and costs. 11
The Executive Order directs federal agencies to provide guidance to their finance assistance recipients regarding language assistance to LEP individuals so that it constitutes meaningful access.
For hospitals, the United States Department of Health and Human Services (HHS) requires the provision of language access as a condition of federal funding. A patient denied language services by a hospital has the option to file a complaint with the HHS Office of Civil Rights (OCR).
A complaint must:
- be filed in writing, either on paper or electronically, by mail, fax, or e-mail;
- name the health care or social service provider involved, and describe the acts or omissions, that violated the civil rights laws or regulations; and
- be filed within 180 days of when the complainant knew that the act or omission complained of occurred. OCR may extend the 180-day period upon a showing of “good cause.” 12
Following the filing of a complaint, report, or receipt of other information that alleges or indicates possible noncompliance with Title VI or its regulations, OCR begins an investigation. If the investigation results in a finding of compliance, OCR will inform the recipient in writing of this determination, including the basis for the determination. However, if a case investigation results in a finding of noncompliance, OCR must inform the recipient of the noncompliance through a “Letter of Findings” that sets out the areas of noncompliance and the steps that must be taken to correct the noncompliance. OCR must attempt to secure voluntary compliance through informal means. If the matter cannot be resolved informally, OCR may secure compliance through the termination of federal assistance after the recipient has been given an opportunity for an administrative hearing. OCR may also refer the matter to the Department of Justice to secure compliance through any other means authorized by law. 13
The following examples of successfully resolved complaints are taken directly from the HHS web site: 14
- University of New Mexico (UNM) Hospital (NM) – OCR Region VI resolved a complaint which alleged that a 75-year old Spanish speaking individual was not provided with language assistance services during her medical appointment. In response to OCR’s investigation and provision of technical assistance, the Hospital, a 431-bed facility, took corrective action to improve its language services program, including:
- revising its limited English proficiency (LEP) policy;
- coordinating its interpreters and translations through a recently established Interpreter Language Service Department;
- mandating a staff training program on language services;
- implementing an interpreter qualification testing and training program;
- posting signs informing the public of the availability of language assistance services;
- translating over 900 forms and vital documents; and
- conducting periodic reviews and monitoring to ensure the effectiveness of language services for LEP persons.
These corrective actions also were implemented at the Hospital’s off-site clinics, as well as the UNM Children’s Hospital, UNM Children’s Psychiatric Center, UNM Adult Psychiatric Center, the UNM Cancer Center, and the UNM Carrie Tingley Hospital.
- Marin General Hospital (MGH), Greenbrae (CA) – A community advocate on behalf of a Spanish-speaking LEP person filed this complaint against MGH. Marin County has a substantial LEP Latino population. The complaint alleged that MGH discriminated against an LEP individual on the basis of his national origin by failing to provide him with an interpreter during his hospital stay and when given discharge instructions, and that MGH’s failure to provide language assistance to LEP persons denied them an equal opportunity to access MGH’s services.
OCR’s investigation substantiated the allegations in the complaint and as a result of our investigation, MGH has taken substantial action steps to augment services to its LEP patients. In response to OCR’s finding, MGH took the following actions:
- formed an Interpreter Task Force to enhance its services to LEP patients and visitors;
- revised its policy on providing language assistance to LEP persons;
- provided OCR with information on a new program offered by MGH’s parent corporation that determines if willing MGH employees can provide basic and/or medical interpretation for LEP patients and visitors;
- contracted with a service to provide telephonic interpretation for LEP patients;
- appointed a translation services coordinator to oversee the facility’s interpretation and translation services; and
- began monthly training of all new hospital employees on its translation services programs and MGH’s LEP policies and procedures.
Importantly, MGH now determines if a patient is LEP during the admitting process and regularly translates discharge instructions into Spanish for its Spanish-speaking patients. MGH also provided OCR with documentation of multilingual posters; interpreter services notices, and hospital signage available in Spanish.
- Northwestern Medical Faculty Foundation (NMFF) – Based on reports from advocacy groups, OCR conducted a review of NMFF to determine the extent to which NMFF was providing interpreter services to its patients who are limited in their English proficiency (LEP), and OCR also reviewed NMFF services to persons who are hearing-impaired. In June 2005, NMFF’s president signed two agreements with OCR, one pertaining to NMFF’s services to its hearing-impaired patients and the other pertaining to its services to its LEP patients. On the LEP issues, the covered entity agreed:
- to increase patient awareness of the availability of language assistance and increase staff awareness of procedures for providing language assistance;
- to make changes in its patient tracking system to ensure that if an LEP patient used an interpreter on one visit, the patient would be asked if he or she would require an interpreter on all subsequent visits;
- to make technological changes helpful in facilitating language assistance;
- to include the right to interpreter services in the NMFF “Patient Bill of Rights” and provide pamphlets about the availability of interpreter services in all of its doctors’ offices;
- to train all staff, including its physicians, on their obligations under Section 504 and Title VI; and,
- to publish pamphlets about the availability of interpreter services that will be prominently displayed in its physician members’ offices.
Based on the descriptions of resolutions procured by HHS after investigation, it appears that a federal administrative complaint can be very effective. As noted earlier, OCR can refer a complaint to the U.S. Department of Justice for prosecution if it deems the resolution process to be unsuccessful. 15 However, complainants do not have any control over the investigatory process and we were unable to ascertain the length of time it might take for OCR to conduct an investigation and achieve results or make a determination to refer to the Justice Department.
IV. State Law
Article 28 of NY Public Health Law sets forth the legal obligations of hospitals, residential health care facilities, and other health care providers to their patients. The statute also charges the Commissioner of the New York State Department of Health (NYDOH) with the responsibility of monitoring compliance. Although the statute itself does not address language access in a hospital setting, the regulations make it clear that meaningful language access is a patient right. 16
Specifically, the Patient’s Bill of Rights requires that:
(7) the hospital shall develop a Language Assistance Program to ensure meaningful access to the hospital’s services and reasonable accommodation for all patients who require language assistance. Program requirements shall include:
(i) the designation of a Language Assistance Coordinator who shall report to the hospital administration and who shall provide oversight for the provision of language assistance services;
(ii) policies and procedures that assure timely identification and ongoing access for patients in need of language assistance services;
(iii) the development of materials that will be made available for patients and potential patients that summarize the process and method to access free language assistance services;
(iv) ongoing education and training for administrative, clinical and other employees with direct patient care contact regarding the importance of culturally and linguistically competent service delivery and how to access the hospital’s language assistance services on behalf of patients;
(v) signage, as designated by the Department of Health, regarding the availability of free language assistance services in public entry locations and other public locations;
(vi) identification of language of preference and language needs of each patient upon initial visit to the hospital;
(vii) documentation in the medical record of the patient’s language of preference, language needs, and the acceptance or refusal of language assistance services;
(viii) a provision that family members, friends, or non-hospital personnel may not act as interpreters, unless:
(a) the patient agrees to their use;
(b) free interpreter services have been offered by the hospital and refused; and
(c) issues of age, competency, confidentiality, or conflicts of interest are taken into account. Any individual acting as an interpreter should be 16 years of age or older; individuals younger than 16 ears of age should only be used in emergent circumstances and their use documented in the medical record. 17
A. Administrative Complaints
NYDOH provides a complaint process for patients whose rights under the Patient’s Bill of Rights may have been violated. As a first step, the patient should “express complaints about the care and services provided and to have the hospital investigate such complaints.” 18 As a follow up, the hospital must notify the patient that he or she can request a written response indicating the findings of the investigation.
If the patient is not satisfied with the hospital’s response, the patient may file a complaint 19 with the NYDOH’s Office of Health Systems Management. 20 The NYDOH is tasked with monitoring all health providers in New York State and the New York State Commissioner of Health has the power to conduct a comprehensive investigation of any hospital. Such comprehensive inspection shall include, but not be limited to, a survey to determine compliance by the facility with applicable statutes and regulations, and observation of a representative sample of all patients or residents and their medical records to determine the quality and adequacy of the care and treatment provided. 21
If the commissioner determines that a hospital has violated state public health rules and regulations, then he may levy fines and other penalties. 22 In the event that these penalties do not cure the problem, “the commissioner may institute or cause to be instituted in a court of competent jurisdiction proceedings to compel compliance with the provisions of this article or the determinations, rules, regulations and orders of the commissioner or the council.” 23
There is no clear statutory basis for an LEP patient to sue a hospital directly for violation of the right to language access. Although the statute does not expressly preclude suit by the aggrieved individual who exhausts the complaint process and remains unsatisfied with the results, we were unable to find any state court determination that a hospital had violated the rights of individual complainants established by the NY Patients’ Bill of Rights. 24
VI. Alternative Strategies
A few legal advocates have had success in changing local hospital policy and culture to become more receptive and responsive to the needs of the community through a form of social justice advocacy that focuses on organizing, mobilizing, and empowering affected individuals and community groups. One example of a successful social advocacy emerged from a partnership between Make the Road and New York Lawyers for the Public Interest (NYLPI) in Bushwick, Brooklyn. 25 Using a community lawyering approach, community residents actively worked alongside organizers and lawyers in the day-to-day strategic planning of a campaign to increase meaningful access to health care.
The collaborative effort included a variety of legal and non-legal actions to force hospitals to provide equal access to health services for people with limited English proficiency. 26 Community education workshops were conducted to inform health consumers of their legal rights. Residents were interviewed and asked to respond to surveys about their experiences at the local hospital. The advocates compiled examples of incidents from the interviews and survey results involving: inability to communicate with doctors because of a lack of interpreters, failure to provide translations of crucial documents, and poor medical outcomes that could be ascribed to language barriers between patients and hospital staff. 27
NYLPI used the compilation to file two civil rights complaints on behalf of Make the Road. The organizations then held a press conference to announce the complaints and released their findings to the public and the media. 28 They also engaged in public demonstrations, administrative advocacy, and lobbying that eventually succeeded in getting hospital administrators and employees to address their needs. 29
Neither federal nor New York State law offer a private right of action to challenge a hospital’s failure to provide adequate language access to LEP individuals. These restrictions severely curtail a traditional legal response to discrimination. Advocates and aggrieved individuals must instead rely on administrative complaints and the willingness of federal and state agencies to mandate compliance by hospitals through investigation, recommendations for policy and procedural changes, and enforcement in the courts. Individuals and advocacy organizations can file complaints with either the OCR or with the NYDOH. However, complainants cannot control the scope or pace of investigation nor decide whether to pursue enforcement if persuasive methods fail.
Social justice advocacy that combines legal action with community and health care provider organizing may offer an alternative that will not only improve hospital services, but empower local community members to demand that their needs be addressed. The hope is that such advocacy will forge a better relationship between the institution and the community it serves, one that encourages communication and interaction on a variety of issues.
Empire Justice Center is currently exploring these and other alternatives to assist LEP people who have limited legal rights. For example, staff are collecting and analyzing information from community organizations and health care advocates about a local hospital on Long Island that reportedly is not providing appropriate language access in direct care or ancillary services such as billing, insurance applications, and charity care to the Spanish-speaking community it serves. Please contact Linda Hassberg for additional information.
- Bradley Schloss was a 2011 summer law intern at Empire Justice Center on Long Island. The authors thank Lawrence Antoniello, a volunteer attorney at the Long Island office, for his assistance in editing this article.
- U.S. Dept. of Justice, Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 65 Fed. Reg. 50,123, 50,124 (August 16, 2000), available at: http://www.usdoj.gov/crt/cor/Pubs/guidfr.pdf. Federal financial assistance includes grants, training, and use of equipment, donations of surplus property, and any other assistance provided to a recipient agency or to a program or service provided by that agency or entities that receive funding from that agency. See 28 C.F.R. § 42.102.
- 42 U.S.C. §2000d et seq.
- Title VI of the Civil Rights Act of 1964 provides: “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
- Lau v. Nichols, 414 U.S. 563, 566 (1974).
- Id. at 567-68.
- 532 U.S. 275 (2001)
- Id. at 278-79.
- Id. at 279.
- Exec. Order No. 13166, 65 Fed Reg. 50,121 (Aug. 11, 2000).
- 67 FR 41455
- 10 NYCRR § 405.7
- 10 N.Y.C.R.R. §405.7(a)(7)
- 10 N.Y.C.R.R. § 405.7(c)
- Complaint form can be found at http://www.health.ny.gov/nysdoh/healthinfo/complaintform.htm
- 10 N.Y.C.R.R. § 405.7(b)(23)
- NY CLS Pub Health § 2803(1)(a)
- NY CLS Pub Health § 2803 (3)
- NY CLS Pub Health § 2803(5)
- Actions were brought against the hospitals by patients pursuant to the NY Patients’ Bill of Rights in addition to the Americans with Disabilities Act (“ADA”) and Rehabilitation Act (“RA”). in two federal district court cases. Loeffler v. Staten Island University Hospital. Loeffler v. Staten Island University Hosp., 582 F.3d 268, 279 (2d Cir. 2009); Walters v. New York City Health Hosp. Corp., 2005 U.S. Dist. LEXIS 1895. However, the claims were barred or withdrawn for procedural reasons. Neither court ruled upon the validity of the claim, but the Walters court stated in dicta that the statute did not appear to set forth a private right of action.
- For a detailed description of the Bushwick campaign and an analysis of the strengths and weaknesses of the community lawyering approach, see Rose Cuison Villazor, Community Lawyering: An Approach to Addressing Inequalities in Access to Health Care for Poor, Of Color, and Immigrant Communities, 8 N.Y.U. J. Legis. & Pub. Pol’y 35, 49- (2004-2005).
- Id. at 54-58.
- Id. at 56.
- Id. at 58, n. 141.
Posted on August 17th, 2011
DICKERSON V. THOMPSON
The Fight to Dissolve Civil Unions in New York
August 17, 2011
Author: Amy Schwartz-Wallace
Beginning in 2000, Vermont became the first state in the country to offer civil unions.1 Like many other states, Vermont imposed no residency requirement on celebrants. As a result, many non-Vermonters travelled there to gain access to what was, at the time, the most significant, state-sanctioned legal relationship status granting comprehensive rights and benefits to gay and lesbian couples.2 In fact, within the first two years of the Vermont civil union law’s existence, nearly 400 New York couples entered in Vermont civil unions – the most from any state other than Vermont itself and approximately 11% of all who entered in Vermont civil unions during that period.3 Numerous states 4 have since extended many or all of the rights afforded by their state law to marriages or some other type of formalized same-sex relationship, such as civil union or domestic partnership. Civil unions were previously available in New Hampshire, Connecticut and Vermont before those states enacted marriage equality. Presently, civil unions are available in New Jersey, Hawaii, Rhode Island, Delaware and Illinois. 5
Parties to a state-created legal status, such as marriage or civil union, cannot simply unbind themselves at will. States require a judicial dissolution process through the court system. As noted in Boddie v. Connecticut,6 such judicial process was acknowledged to be “not only the paramount dispute-resolution technique, but the only one.” Additionally, states impose residency requirements as a jurisdictional pre-condition for such judicial dissolution and divorce. For example, to obtain dissolution of a civil union under Vermont’s Domestic Relations Law, at least one of the parties must reside in Vermont for at least six months prior to the commencement of an action and for one year before a final hearing on the matter. Where same-sex couples, who reside in one of the civil union states, legally formalize their relationship under that state’s law, they will need to instigate court proceedings in order to judicially dissolve their unions when they end. For these couples, pursuit of dissolution is relatively simple.
Dissolving Non-Resident Civil Unions
However, non-resident, same-sex couples who solemnized their relationships with a civil union in a celebration state ,such as Vermont, are not as fortunate. When their relationships sour, these couples cannot commence dissolution proceedings there because of statutory residency hurdles. Even more alarming, where their home state does not recognize their civil union status or otherwise provide a specific statutory mechanism for dissolution, these couples have often been relegated to a kind of legal purgatory because dissolution was improbable, if not impossible. Many couples in such a predicament physically separated, but remained legally shackled to their former partner.7 While legal relationship recognition and marriage equality advances have supported many same-sex couples, in these instances such advances impose new legal challenges. This was the precise dilemma faced by Audrey Dickerson.
Lifelong residents of New York, Audrey Dickerson and Sonya Thompson travelled to Vermont in 2003 and entered into a civil union. They returned to their New York home and began their lives together as “civilly unioned” spouses. However, their relationship deteriorated as a result of intimate partner abuse and they separated in spring 2006. At the time their relationship ended, the parties had no children in common, nor did they have joint debts or other property to divide. The only outstanding matter still related to their legal relationship was the civil union itself, as well as the ongoing attendant rights and obligations that flowed directly from such legal status. Desiring to fully sever all ties to her former partner and move forward with her life, Ms. Dickerson reached out for legal assistance.
Together with pro bono counsel, Geri Pomerantz, Empire Justice Center undertook representation of Ms. Dickerson in 2007. Extensive research determined that commencement of an action under New York Supreme Court’s broad equity jurisdiction was the most appropriate posture; her need for dissolution relief was significant, the request novel and, otherwise, without any other specific statutory mechanism in this state. Additionally a judgment declaring the respective rights and responsibilities of the parties following judicial dissolution of her civil union was sought. The complaint specifically did not request divorce-related relief under New York’ Domestic Relations Law, as divorce appeared to be inapplicable for dissolving out-of-state civil unions because of its specific application to marriages.8
Ms. Dickerson commenced her action in Schenectady County Supreme Court in 2007. After Ms. Thompson failed to respond to the complaint, Ms. Dickerson then moved for a default judgment granting the requested relief. Despite the fact that a Supreme Court possesses both general and equitable jurisdiction, the trial court dismissed Ms. Dickerson’s complaint sua sponte. The court opined that New York’s public policy did not permit legal recognition of any same-sex relationships, and that the exercise of its equitable powers to dissolve the civil union and issue a declaratory judgment freeing her of the incidents of the civil union status, was a unique remedy that would impermissibly usurp the Legislature’s authority to determine whether same-sex relationships are to be legally recognized. Ms. Dickerson appealed arguing that the court ignored existing (and growing) New York jurisprudence, state law, and policies recognizing same-sex relationships. Further, she argued that as a court of law and of general and equity jurisdiction, there was no question that Supreme Court possessed the requisite subject matter jurisdiction necessary to adjudicate a request for both equitable and statutory declaratory judgment relief.
In its March 2010 landmark ruling,9 the Third Department unanimously agreed with Ms. Dickerson and held that the Supreme Court was, indeed, competent to hear and determine a dissolution case such as hers. In support of its position, the appellate court acknowledged and detailed New York’s evolving public policies recognizing many types of same-sex relationships. The court also held that New York may recognize Ms. Dickerson’s civil union under principles of comity. Because the lower court never moved beyond subject matter jurisdiction, the matter was remanded back for a determination of what relief was available on the merits.
On remand, the lower court finally entertained Ms. Dickerson’s motion for a default judgment, as instructed by the appellate court. However, during this next phase of litigation, the trial court provided only partial relief when it granted a judgment relieving the parties of the rights and obligations attendant to the civil union, but failed to dissolve the relationship itself. Despite the appellate court’s holding to the contrary in Dickerson I, the trial court again refused to dissolve the relationship, ruling that it had limited authority and was powerless to grant the requested relief because New York had not established any specific statutory mechanism by which a court could grant dissolution of a civil union entered into in another state. In denying the dissolution, the lower court made no mention of equity principles and their application to the equitable matter at bar.
Ms. Dickerson returned to the Appellate Division a second time. On this occasion, she argued that Supreme Court’s general and equity jurisdiction gave the court sufficient authority to dissolve the civil union, precisely because no other court in New York had the power or the competence to entertain such an action. Further, detailing long-standing equity principles, she argued that the absence of a legislatively-created mechanism for affording relief was a critical factor that militated in favor of crafting an equitable remedy for a litigant in need of one. Finally, she argued that, in the absence of a definitive civil union dissolution, the declaration alone was an inadequate, incomplete, and confusing remedy that left Ms. Dickerson interminably bound with significant ongoing actual and potential legal consequences. Specifically, in many jurisdictions she was precluded from entering into another state-created, same-sex legal relationship with a new partner because the intact civil union left her unable to truthfully affirm that there were no outstanding legal impediments.10 Given the growing number of jurisdictions offering or recognizing civil unions, as well as the increasing levels of comity-based respect for them in New York, the precise nature of Ms. Dickerson’s relationship with and to Ms. Thompson was complicated by the grant of incomplete relief. She was also concerned that uncertainty regarding her status left open the possibility of ongoing legal questions and litigation related to matters such as parentage,11 medical decision-making, debt, and inheritance.
Subsequent to Dickerson I, other Supreme Courts around the state (Erie, New York, Monroe, Tompkins, Onondaga, Kings and Westchester) understood that case to mean that they had the power to equitably dissolve civil unions in New York and did so with relative ease.12 It was, therefore, particularly ironic that the only civil union dissolution request which had been denied since the decision in Dickerson I was Audrey Dickerson’s. It was clear that civilly unioned parties around the state were in need of dissolution help and Dickerson I provided the necessary precedent that assured Supreme Courts in all four Departments of their power and competence to entertain these cases. As part of the litigation strategy, plaintiff actively collected these unpublished decisions/orders from litigators statewide who had successfully used Dickerson I to obtain dissolution relief for their own clients. Those cases were then submitted to the Appellate Division, along with our brief.
Third Department Knockout
In another landmark decision issued on July 21, 2011, Audrey Dickerson again prevailed before the Third Department.13 Agreeing with the decision to commence the case within the court’s broad equity jurisdiction, Justice Peters wrote “[w]hile plaintiff lacks a remedy at law, the dissolution of a civil union falls squarely within the scope of the Supreme Court’s broad equity jurisdiction.” The appellate court determined that given Ms. Dickerson’s need for a legal remedy, “the exercise of Supreme Court’s equitable powers to grant a dissolution of the civil union was clearly warranted here.”
The appellate court also agreed that, notwithstanding the declaratory judgment, as the only relief it provided resulted “in uncertainty and confusion regarding the precise nature of the parties’ legal relationship, particularly with respect to the various rights that New York affords to parties to a civil union.” Specifically citing the Court of Appeals 2011 ruling in Debra H. v. Janice R, the appellate court was concerned that if either Ms. Dickerson or Ms. Thompson bore a child while still bound in union, parentage may vest in the other party despite their long estrangement. Also troubling to the court was Ms. Dickerson’s inability to move on with another partner and enter into any other type of civil union, marriage,14 or domestic partnership in New York or elsewhere because of the legal disability imposed by the intact civil union. The majority opinion noted:
These chilling effects, both potential and actual, flowing from plaintiff’s continued status as a partner to the civil union further support our conclusion that the exercise of the court’s equitable power to dissolve the parties’ civil union was warranted.
Recognizing the strange irony afflicting Ms. Dickerson, the court aptly stated, “Indeed, it would be patently incongruous for the courts of this state to render civil unions more durable than marriages.” Reviewing the case’s uncontested evidence, the appellate court applied Vermont’s dissolution law, and determined that equity would be served by granting Ms. Dickerson the requested relief. They further determined that by failing to invoke its equitable powers to provide this relief, the lower court erred and abused its discretion. The court modified the judgment below in pertinent part and directly dissolved Ms. Dickerson’s civil union on the law themselves. As this was a default, the case is finally over and Ms. Dickerson is free.
While all five judges on the panel agreed with the outcome, Justices Lahtinen and Malone wrote a separate concurrence opining, among other things, that the trial court did not abuse its discretion by refusing to dissolve the union itself. However, the concurring opinion noted, given New York’s evolving public policy on same-sex relationship dissolution, the majority’s substitution of its own discretion was appropriate.
The Dickerson Legacy
Most importantly, for Audrey Dickerson, justice has been served. Beyond that, the significance of these two decisions for unhappy, civilly unioned, same-sex couples cannot be understated – there is now a judicially sanctioned way out of legal purgatory.15 Together these rulings have provided a clear framework for other courts to follow in the absence of specific legislation. As a result:
- New York may recognize out-of-state civil unions as a matter of comity
- An action for dissolution of an out-of-state civil union should be commenced in Supreme Court seeking exercise of that court’s broad equity jurisdiction
- Supreme Court should apply that state’s law to determine if sufficient grounds exist entitling parties to a dissolution in the celebration state
- If grounds are sufficient, the Supreme Court must then determine if equity would be served by granting dissolution relief
In essence, Dickerson I began charting the course and Dickerson II completed the roadmap. We hope that, as the first appellate ruling in the country on point, these cases will provide meaningful precedent to other states as they, too, wrestle with these critical issues.
1 In 2009, Vermont changed its law to provide same-sex couples with marriage rights and benefits. See Vt. Stat. Ann. tit.15 §8 (eff. Sept. 1, 2009). However, existing civil unions entered in that state remain valid and continue to be recognized as civil unions.
2 During the first four years civil unions were offered in Vermont, more than 75% of Vermont civil unions were obtained by non-Vermonters. See Williams Institute, Marriage, Registration and Dissolution by Same-Sex Couples in the U.S. (July 2008), p. 12 fig. 7, (available at: http://repositories.cdlib.org/cgi/viewcontent.cgi?article=1005&context=uclalaw/Williams).
3 See Report of the Vt. Civil Union Review Comm’n, Finding 3 (July 2002) (available at: http://www.leg.state.vt.us/baker/Final%20CURC%20Report%20for%202002.pdf ).
4 The National Conference of State Legislatures tracks this information at: http://www.ncsl.org/default.aspx?tabid=16430.
5 Despite the general view from LGBT community that civil unions provide only a “second-class status”, many of these states passed their civil union legislation in 2011. Notably, except for NJ and RI, these other civil union states all have existing state laws that define “marriage” as between “one man and one woman”, so marriage equality is not a viable option at this time.
6 401 U.S. 371, 376 (1971).
7 Anecdotally, many couples in this position handled all property, financial ,and custody matters either via contract or other types of court proceedings, but for dissolution. Alternatively, some couples just moved on without formal settlement and had children, acquired property, and the like. Apart from dissolution, the Dickerson v. Thompson precedents do not directly address any other issues attendant to the civil union. See, for example, Wesley v. Smith-Lasofsky, NYLJ, Pg. 30, Vol. 246, No. 21 (August 1, 2011)(holding that child adopted subsequent to civilly-unioned parties’ break-up, was not a child of the marriage). As the law evolves, we expect to see more litigation around these issues at some future date.
8 Langan v. State Farm Fire and Casualty, 48 A.D.3d 76, 79-81 (3rd Dept. 2007); B.S. v. F.B.,883 N.Y.S.2d 458, 2009 N.Y. Slip. Op. 29315 (Sup. Ct., Westchester County, July 15, 2009).
9 Dickerson v. Thompson, 73 A.D.3d 52 (3rd Dept. 2010).
10 The basic principle that parties entering a marriage, civil union, or domestic partnership must be single may be applied to a party to a sister state’s civil union given that New York, and other jurisdictions, may recognize that legal status as a matter of comity. See, for example, pending litigation in Massachusetts, Todd Elia-Warnken v. Richard Elia, Case # 2011-P-0069, Commonwealth of Massachusetts Appeals Court (appellant arguing that his subsequent marriage to his partner was void because partner failed to dissolve his civil union prior to entry).
11 In 2010, the Court of Appeals specifically accorded comity to a Vermont civil union to recognize parentage created by the legal status in New York. Debra H. v. Janice R., 4 N.Y.3d 576, 601 (2010).
12 Most of these decisions are cited in FN 4 in Dickerson II; see also Parker v. Waronker, 30 Misc.3d 917 (Sup. Ct. Onondaga Co.2010).
13 Dickerson v. Thompson, — N.Y.S.2d —-, 2011 WL 2899241 (N.Y.A.D. 3 Dept.), 2011 N.Y. Slip Op. 06009.
14 After July 24, 2011’s implementation of the marriage equity law Ms. Dickerson might also have been precluded from marrying a new partner in New York.
15 Karen Hartman, “Bound in a Gay Union by a State Denying It”, New York Times (July 15, 2011) (available online at: http://www.nytimes.com/2011/07/17/nyregion/bound-in-a-gay-union-by-a-state-that-didnt-recognize-it.html?pagewanted=2&_r=1&ref=nyregion).
Posted on February 1st, 2008
February 1, 2008
Author: Jonathan Feldman
The Greece Central School District, a suburban district outside of Rochester, NY, is the eighth largest district in the state, with enrollment of approximately 13,000 students, of whom 1,300 are classified as students with disabilities pursuant to federal law. See Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq. (2004). In 2003 and 2004, our office began receiving complaints that the District was imposing unacceptable limitations upon special education services. As the Wall Street Journal has explained, “Upset at what they describe as the district’s increasing refusal to provide services, a group of [Greece] parents began meeting and comparing notes. They suspected that the district was . . . simply capping the number of students eligible for services. Some children who were classified as special-education students were declassified and placed in regular classrooms with little or no additional help.” John Hechinger, Schools Accused of Pushing Mainstreaming to Cut Costs, Wall Street Journal (Dec. 14, 2007, at A1).
Our office saw a pattern of systemic violations, and we began to develop a class action lawsuit. Before we could proceed, however, we had to await the outcome in J.S. v. Attica Central Schools, 386 F.3d 107 (2d Cir. 2004), a case in which we participated as amicus. There, a school district faced with a class action lawsuit had asserted that individual class members were required to exhaust administrative remedies before the class action could proceed. Fortunately, the Second Circuit rejected this theory, and held that special education plaintiffs who asserted systemic violations within a school district could bypass administrative hearings and file directly in federal court.
With the green light to go forward, we began interviewing parents, and ultimately eight families came forward to represent the class. We filed the class action complaint in K.B. v. Greece Central School District in May of 2005, and asserted that the District had denied a free appropriate public education to the plaintiff class by imposing illegal caps on the number of students classified and by curtailing the services and supports made available to classified students.
Shortly after we filed, a new Board of Education was elected in Greece, and a new superintendent came on board, as well. The new administration expressed a strong interest in attempting to settle the case, and toward that end the parties employed a novel settlement mechanism: we agreed to use a joint expert, who would report to both sides, and who was charged with investigating the allegations of systemic violations and issuing recommendations to cure any illegal practices. The parties drafted an agreement governing the joint expert’s role, and both sides agreed to negotiate in good faith to try to reach a settlement after the joint expert had issued her report.
The parties selected Professor Margaret (Maggie) McLaughlin of the University of Maryland to play this role. She came to Greece to conduct interviews and data analysis during the spring and summer of 2006, and she issued her report in August of that year. Although we had agreed to keep her findings confidential, we were able to rely upon her report in attempting to negotiate a comprehensive settlement with the District. For one year following the promulgation of her report, we met regularly with the District and were able to move closer and closer to settlement.
Finally, in August of 2007, the parties reached agreement on all issues and presented the proposed consent decree to Judge Larimer, U.S. District Judge, W.D.N.Y., for his approval. Although the consent decree stipulated that a class should be certified, the parties jointly moved the judge to waive the notice and hearing usually required for class action settlements. We relied on precedent which allowed for such a waiver when the terms of the settlement provide near complete relief to the plaintiffs, and there is no evidence of collusion between the parties. Doe v. Perales, 782 F.Supp. 201, 206-7 (W.D.N.Y. 1991). On August 27, 2007, after oral argument, Judge Larimer granted this motion and “so-ordered” the proposed consent decree with no modifications.
The consent decree is a victory for the students, for the District has pledged to provide all existing special education students, as well as students who should be found eligible, the supports and services to which they are entitled, based upon each student’s individual needs. The consent decree will remain in effect for a minimum of two years, and a maximum of four, depending on the District’s progress in achieving full compliance. It provides for our ongoing monitoring during this period, as counsel for the plaintiff class. The class is represented by Trilby de Jung and myself, and contributions have also been made by Jane Gabriele, Beth Trittipo, and Bryan Hetherington.
The Greece case raised some interesting legal issues (exhaustion of administrative remedies, use of a joint expert, and waiver of notice and hearing in class action settlements), and showed what can be accomplished for children and their parents when both sides are interested in achieving a comprehensive settlement.