Judge Sotomayor’s Civil Opinions – Part III
As part of our continuing examination into Judge Sotomayor’s opinions in civil cases, below are a handful of additional decisions on a variety of topics. Most do not involve resolution of controversial or momentous legal questions — as illustrated by the fact that most were decided unanimously — but rather give some insight into the Judge’s day-to-day work on cases of some factual or other interest.
Brissett v. Ashcroft, 363 F.3d 130 (2004), concerned the application of a federal statute that governs the citizenship status of the children of individuals who become naturalized citizens. The statute provides that ordinarily the child automatically becomes a U.S. citizen only if both his parents naturalize. However, if the parents have undergone a “legal separation,” then the child becomes a citizen so long as the parent who has custody has naturalized, even if the other parent has not. In Brissett, a child of separated parents claimed he had become a U.S. citizen (and thus could not be deported after having committed an aggravated felony) when his mother naturalized. Under the statute, that claim turned on his assertion that his parents were legally separated. His Jamican parents were living separately but had not gotten a court order approving a separation. However, his mother had obtained a protective order against the father, and an order for child support. Writing for a unanimous panel, Judge Sotomayor held that this was not enough. Judge Sotomayor deferred to the INS’s interpretation of the statute as requiring official proceedings resulting in either a divorce or legal separation of the parties to the marriage. She rejected the conclusion, adopted by another court, that this meant that there must be a judicial decree, given the diversity of family law practices around the world. But she required some kind of “formal act” and concluded that a restraining order or order of support would not suffice because the support order did not require or contemplate the separation of the couple, nor did the restraining order (which simply prohibited the husband from threatening, assaulting, or harassing his wife). As a result, the court affirmed the deportation order.
In United States v. Reimer, 356 F.3d 456 (2004), Judge Sotomayor and her colleagues unanimously affirmed the revocation of citizenship for a man accused of assisting the Nazi’s in persecuting Jews during World War II. The defendant was of German descent but born in Ukraine and was drafted into the Russian army when Germany invaded that country. He was captured by the Germans and sent to a camp in Poland, where he was trained to work as a guard in the “Wachmannschaften,” which assisted in guarding concentration camps and clearing Poland’s Jewish ghettos. After the war, he emigrated to the U.S. and was given citizenship. The case before Judge Sotomayor arose when the U.S. Government sought to strip him of his citizenship based on a statute that precluded Reimer from receiving citizenship if he had “assisted in the persecution of any person because of race, religion, or national origin.” Reimer argued that he did not fit this description because his participation in the Wachmannschaften was coerced and ministerial. But the Second Circuit affirmed the trial court’s finding that he had participated sufficiently in the persecution of Polish Jews to be ineligible for citizenship. Judge Sotomayor found especially relevant that Reimer had admitted to standing guard over a pit into which dead and dying Jews had been thrown and had complied with an order to shoot at moving victim in the pit (although he claimed that he had deliberately missed).
Anthony v. City of NY, 339 F.3d 129 (2003), was a civil rights suit by the family of a woman with Down Syndrome against New York City Police officers and others arising from an incident in which the police responded to a 911 call coming from the woman’s house. Finding her alone and incoherent, the police brought her in handcuffs to a hospital psychiatric ward, where she was kept overnight, tested for drugs, and given psychiatric medicines. Writing for a unanimous panel, Judge Sotomayor affirmed the dismissal of the complaint. First, she concluded that the police did not violate the Fourth Amendment by entering the woman’s home without a warrant because exigent circumstances existed in light of the 911 call. Judge Sotomayor distinguished prior circuit precedent which had held that an anonymous tip about an emergency in a neighbor’s house did not excuse the failure to secure a warrant. This case, she wrote, was different because the 911 call came from the same house that the police had entered. The panel further concluded that the police had acted reasonably in taking the woman to the hospital and did not violate her rights under the Constitution or the Americans with Disabilities Act.In
King v. American Airlines, 284 F.3d 352 (2002), Judge Sotomayor held that the civil rights claims of two African-American airline passengers were pre-empted by the Warsaw Convention, a treaty dealing with international air travel. The plaintiffs alleged that they had been involuntarily bumped off a flight because of their race. Judge Sotomayor, writing for a unanimous panel, held that their claim under 42 U.S.C. § 1981 was pre-empted by the Warsaw Convention even though the Convention itself provides no remedy for race discrimination. The Supreme Court, Judge Sotomayor explained, had been clear that U.S. statutory claims would be preempted so long as they fall within the “substantive scope” of the treaty, even if the treaty provides no remedy. And in this case, Article 17 of the treaty addressed injuries that take place “in the course of any operations of embarking or disembarking.” Because the plaintiff’s claims arose while they were attempting the board the plane, Judge Sotomayor reasoned, their injuries fell within the scope of Article 17 and therefore were pre-empted. She recognized that this meant that there is no federal civil rights action that can be brought to address race discrimination in the course of international air transportation. But she noted that FAA regulation prohibit such discrimination and the FAA can bring administrative actions to enforce that requirement.
In re Visa Check, 280 F.3d 124 (2001), was a massive antitrust class action brought by retailers against Visa and Mastercard, challenging the fees they charge merchants who use their debit and credit cards. The issue before Judge Sotomayor and her colleagues was the propriety of class certification. She and a district court judge, sitting by designation, voted to affirm the grant of class certification, over the dissent of Judge Jacobs. Of particular significance, Judge Sotomayor wrote that in ruling on a certification motion, although the district court must “conduct a "rigorous analysis’ to ensure that the prerequisites of Rule 23 have been satisfied . . . "a motion for class certification is not an occasion for examination of the merits of the case.’” As a result, she held, the trial judge should not “weigh conflicting expert evidence” but instead determine only whether the plaintiff’s expert testimony was “fatally flawed” and “thus inadmissible.” Applying that standard, she affirmed class certification in the case before her. The Second Circuit subsequently overruled this standard in In re IPO, 471 F.3d 24 (2006). In that later decision, the court ruled that the trial court may resolve factual disputes that go to the elements required for class certification, even if the issues overlap somewhat with the merits of the claim. And, the court specifically “disavow[ed] the suggestion in Visa Check that an expert’s testimony may establish a component of a Rule 23 requirement simply by being not fatally flawed.”