17‐1062‐pr
Irvin v. Harris

                   UNITED STATES COURT OF APPEALS
                       FOR THE SECOND CIRCUIT
                         ____________________

                             August Term, 2018

(Argued: February 7, 2019                           Decided: November 19, 2019)

                            Docket No. 17‐1062‐pr

                            ____________________

SAMUEL IRVIN,

                             Plaintiff‐Appellant,

DANIEL MILLER, DEMETRIO LIFREIRI, EUGENE MAZZIO,

                             Intervenors,

LOUIS MILBURN, A. BROWN, FOR CLASS OF LOUIS MILBURN,

                             Plaintiffs,

                  v.

DAVID R. HARRIS, SUPERINTENDENT, GREEN HAVEN
CORRECTIONAL FACILITY; THOMAS A. COUGHLIN, III,

                             Defendants‐Appellees,

HENRY S. DOGIN, ADMINISTRATOR LAW ENFORCEMENT
ASSISTANCE ADMINISTRATION, UNITED STATES DEPARTMENT
OF JUSTICE; PATRICIA HARRIS, SECRETARY OF HEALTH
EDUCATION AND WELFARE,

                                 Defendants.
                               ____________________

Before: POOLER, LOHIER, and CARNEY, Circuit Judges.

      Samuel Irvin appeals from an order entered in the United States District

Court for the Southern District of New York (Preska, J.), denying Irvin’s motion

under Federal Rule of Procedure 60(b) to reconsider termination of the Milburn

consent decree. We hold that Irvin has standing to invoke Rule 60(b) to challenge

the termination because he is sufficiently connected with the underlying

litigation and his interests are strongly affected by the termination. We also hold

that the termination of the consent decree violated Rule 23(a)(4) and the Due

Process Clause because the class was inadequately represented at the times

relevant to the termination proceedings.

      Accordingly, we reverse the denial of relief under Rule 60(b) and remand

to the district court for further proceedings.

      REVERSED and REMANDED.

      Judge Lohier concurs in a separate opinion.




                                           2
                   ____________________

                         BRIAN MARC FELDMAN, Harter Secrest & Emerly
                         LLP, Rochester, NY (Gregory M. Dickinson, on the brief),
                         for Plaintiff‐Appellant Samuel Irvin and Intervenors Daniel
                         Miller, Demetrio Lifreiri, and Eugene Mazzio.

                         MARC S. GRUBE, Assistant Solicitor General (Steven C.
                         Wu, Deputy Solicitor General, on the brief), for Barbara
                         D. Underwood, Attorney General, State of New York,
                         New York, NY, for Defendants‐Appellees David R. Harris
                         and Thomas A. Coughlin, III.



POOLER, Circuit Judge:

      Samuel Irvin appeals from an order entered in the United States District

Court for the Southern District of New York (Preska, J.), denying Irvin’s motion

under Federal Rule of Civil Procedure 60(b) to reconsider termination of the

Milburn consent decree. We hold that Irvin has standing to invoke Rule 60(b) to

challenge the termination because he is sufficiently connected with the

underlying litigation and his interests are strongly affected by the termination.

We also hold that the termination of the consent decree violated Rule 23(a)(4)

and the Due Process Clause because the class was inadequately represented at

the times relevant to the termination proceedings.




                                         3
                                 BACKGROUND

      This case stems from a termination of a consent decree in 2015 that was

first entered by the district court in 1982. The consent decree’s objective was to

ensure that inmates at Green Haven Correctional Facility had access to adequate

medical care. In September 1979, Louis Milburn, then an incarcerated inmate at

Green Haven, filed a pro se complaint alleging deficiencies in its provision of

health care services. In April 1980, Milburn, at this time represented, filed an

amended complaint with 13 other co‐plaintiff class representatives, alleging that

Green Haven’s health care services were so inadequate that they violated their

Eighth and Fourteenth Amendment rights to be free from cruel and unusual

punishment. The district court subsequently certified a class of “all persons who

are or will be confined at the Green Haven Correctional Facility” in December

1980. Joint App’x at 105.

      Eventually the parties stipulated to an entry of final judgment whereby

plaintiffs agreed to discontinue the action in exchange for certain reforms. In

August 1982, the district court entered a consent decree providing injunctive

relief to the class members.




                                          4
      About seven years later, plaintiffs filed a motion to hold the Green Haven

defendants in contempt for violating the 1982 consent decree and to modify the

consent judgment to achieve its original purpose. In response the district court

appointed a medical auditor, Dr. Robert Cohen, who determined that Green

Haven was not in compliance with the consent judgment and recommended

additional modifications to improve health care at the facility. In 1991, the parties

entered a proposed stipulation for entry of a modified judgment, and plaintiffs

withdrew their motion when defendants agreed to amend the 1982 consent

decree. As with the 1982 consent decree, the court entered the 1991 consent

decree after concluding that the settlement was “fair, adequate and reasonable to

all members of the plaintiff class.” Joint App’x at 200.

      Meanwhile, Dr. Cohen continued to audit Green Haven’s health care

system for the next 23 years. His three‐year term was repeatedly extended

because Green Haven was not in full compliance with the 1991 consent decree. In

his most recent report in 2014, Dr. Cohen finally found that Green Haven was in

compliance with the terms of the modified final judgment.

      In July 2014, defendants moved to terminate the consent decree under

Section 802 of the Prison Litigation Reform Act (“PLRA”) of 1995, 18 U.S.C. §



                                          5
3626, on the basis that the consent judgment was no longer necessary “to correct

a current and ongoing” violation of any constitutional right and that, even if

some unconstitutional conditions persisted, the judgment was not the least

intrusive means necessary to correct the violation. Joint App’x at 385‐86.

      Initially, class counsel opposed and filed a cross‐motion to modify the 1991

consent decree to address ongoing deficiencies. But on August 15, 2014, class

counsel wrote a letter to certain inmates—specifically, “all class members with

whom counsel had any contact in the preceding two years,” Appellant’s Reply

Br. at 2 n.3—including Irvin and intervenor Demetrio Lifreiri, explaining why

counsel believed that the risk of an adverse decision should be avoided. Class

counsel also explained that they had not yet made a “final decision” on how to

proceed but they would nonetheless continue with discovery. Joint App’x at 344.

      Without further notice to any class members, class counsel next informed

the district court by letter dated March 2, 2015, that they would no longer oppose

termination. The letter informed the court that “Plaintiffs have agreed to

withdraw” their opposition to the motion to terminate, and that their opposition

was “based on the representation by counsel for Defendants that [certain Green

Haven officers] will promptly meet in person with Plaintiffs’ expert . . . to enable



                                         6
[him] to present his expert findings and recommendations with respect to

medical care and record keeping at Green Haven.” Joint App’x at 288. On March

4, 2015, again without any notice to the class members, the district court noted

the withdrawal, so‐ordered class counsel’s letter, and terminated the consent

decree. It is undisputed that at the time of termination, neither Louis Milburn,

nor any of the other class representatives, were still incarcerated at Green Haven.

Class counsel then informed certain class members by letter dated March 11,

2015 that the consent decree had been terminated. Appellant’s Reply Br. at 6 n.5.

      In June 2016, Irvin, a Green Haven inmate who was a member of the

Milburn class, filed the pro se Rule 60(b) motion at issue in this appeal, seeking

to set aside the district court’s termination order. Irvin purported to move on

behalf of himself and the entire “class of prisoners at [the] Green Haven.” Joint

App’x at 295.1 Specifically, his motion called attention to Green Haven’s “cutting

back on all the supplies,” its “eliminat[ion] [of] one of the day nurses and all the


1Three Green Haven prisoners submitted letters to the district court in February
2017, notifying it that Irvin “has not been authorized by any other Milburn Class
Member to engage in any type of negotiation or deal with the Defendants or their
Counsel.” Joint App’x at 63. In the letters, the prisoners explained that they had
“already been burned once” when class counsel “engaged in negotiations” and
agreed to termination “without any input by the Class.” Joint App’x at 357, 359,
361.


                                          7
emergency call buttons” in prisoners’ cells, and its “elimination of the overnight

nurse all together.” Joint App’x at 323.2

          The district court denied Irvin’s Rule 60(b) motion on two grounds. First, it

concluded that Irvin lacked standing to bring a Rule 60(b) motion because he

was merely a class member rather than a named class representative. Second, it

construed Irvin’s filing as a motion for relief under Federal Rules of Civil

Procedure 60(b)(1) and 60(b)(3), so it denied it as untimely under Rule 60(c),

which requires that motions under subsections “(1), (2), and (3) [be made] no

more than a year after the entry of the judgment.” Fed. R. Civ. P. 60(c). Even

construing the motion under the catchall provision, Rule 60(b)(6), the court

found that Irvin had not shown the “extraordinary circumstances” required for

relief.




2
 Nine Green Haven prisoners, including Irvin and intervenor Demetrio Lifreiri,
submitted pro se motions to amend the complaint in March 2017, and to “place
[their] name[s] on the mailing list, so that [they] can be . . . full participant[s] in
the proceedings.” See e.g., Joint App’x at 363. Irvin asserts that “[t]he intent,
evidently, was to amend the complaint to add the prisoners as named class
representatives in the case caption, as the court had done many years earlier for
the original class representatives by order dated April 11, 1980.” Appellant’s Br.
at 16 (citing Joint App’x at 2). The court construed the motions to amend as Rule
60(b) motions to reopen, so it denied them.
                                            8
      Irvin then timely appealed the denial of his Rule 60(b) motion. This Court

appointed pro bono counsel to represent Irvin, instructing counsel

      to brief, among any other issues, whether: (1) Appellant had
      standing to move for relief from the order terminating the consent
      decree (including whether he could have objected to class counsel’s
      decision to withdraw its opposition to the defendants’ motion to
      terminate that decree); (2) his motion for relief was timely under
      Federal Rule of Civil Procedure 60(b);3 and (3) he demonstrated
      extraordinary circumstances for such relief (including whether the
      existence of extraordinary circumstances could have been
      determined on the motion papers alone).

Order, Dkt. No. 49.

      In January 2018, Green Haven inmates Demetrio Lifreiri, Eugene Mazzio,

and Daniel Miller moved to intervene in the appeal. This Court granted the

motion. The intervenors also sought to reverse the district court’s order denying

Irvin’s pro se Rule 60(b) motion.




3 On appeal, Green Haven does not argue that Irvin’s motion—to the extent it is
made pursuant to Rule 60(b)(4)—was untimely. See “R” Best Produce, Inc. v.
DiSapio, 540 F.3d 115, 123‐24 (2d Cir. 2008) (“[A] motion under Rule 60(b)(4)[]
must be made ‘within a reasonable time,’ [but] this Court has been exceedingly
lenient in defining the term ‘reasonable time,’ with respect to voidness
challenges. In fact, it has been oft‐stated that, for all intents and purposes, a
motion to vacate a . . . judgment as void ‘may be made at any time.’”).
                                        9
                                   DISCUSSION

      Irvin argues on appeal that the district court’s judgment is void under

Federal Rule of Civil Procedure Rule 60(b)(4) because it violated due process. In

particular, he argues that (1) the class was not adequately represented, and that

(2) the district court was required to provide notice to the class or conduct a

fairness hearing. Because we agree with Irvin’s first argument, we do not

address the second.

      Generally, we review a district court’s ruling on a Rule 60(b) motion for

abuse of discretion. Lawrence v. Wink (In re Lawrence), 293 F.3d 615, 623 (2d Cir.

2002). But when we consider a Rule 60(b)(4) motion challenging a judgment

obtained without due process, “a deferential standard of review is not

appropriate because if the underlying judgment is void, it is a per se abuse of

discretion for a district court to deny a movant’s motion to vacate the judgment

under Rule 60(b)(4).” Central Vt. Pub. Serv. Corp. v. Herbert, 341 F.3d 186, 189 (2d

Cir. 2003) (internal quotation marks omitted). Indeed, Rule 60(b)(4) “is unique . . .

because relief is not discretionary and a meritorious defense is not necessary.”

Covington Indus., Inc. v. Resintex A.G., 629 F.2d 730, 733 n.3 (2d Cir. 1980).




                                          10
   I.      Forfeiture

        At the outset, we determine that Irvin has preserved his argument that the

district court’s judgment is void under Federal Rule of Civil Procedure 60(b). “It

is well established that the submissions of a pro se litigant must be construed

liberally and interpreted to raise the strongest arguments that they suggest.”

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal

quotation marks omitted) (emphasis in original). In his pro se Rule 60(b) motion,

Irvin argued that the termination should be rescinded because, among other

arguments: (1) if class counsel had just “taken the time to come to the prison and

seen for themselves, by interviewing some of the class members themselves, they

would have gotten completely different opinions,” Joint App’x at 304; (2) class

counsel “lacked enough information and the authority to withdraw the

opposition to the termination,” Joint App’x at 315; and (3) class counsel

withdrew their objections to termination “without consulting with any of the

individual members of the class, especially, those inmates housed in the Unit for

the Physically Disable[d],” Joint App’x at 299. Taken together, Irvin argued that

his interests were not adequately represented, even if he did not make the more




                                          11
specific point that the named representatives were no longer incarcerated at

Green Haven. Therefore, Irvin’s Rule 60(b) argument is preserved.

    II.      “Standing”4

          The district court concluded that Irvin lacked standing to bring his Rule

60(b) motion because he was a member of the Milburn class but not a named

class representative. On appeal, Irvin argues that he had standing to bring his

Rule 60(b) motion on two alternative bases: a) that he is a party under the

Supreme Court’s rationale in Devlin v. Scardelletti, 536 U.S. 1, 3 (2002) (holding

that nonnamed class members have standing where they “objected in a timely

manner to approval of [a] settlement at [a] fairness hearing”), id. at 14, and b) if

he is a nonparty, he nonetheless has standing pursuant to this Circuit’s case law

concerning circumstances where a nonparty’s interests are strongly affected. We

agree with Irvin as to the latter ground.




4 Although the district court referred to Irvin’s “standing,” Joint App’x at 388‐89,
the Supreme Court has made clear that “what has been called ‘statutory
standing’ in fact is not a standing issue, but simply a question of whether the
particular plaintiff ‘has a cause of action under the statute.’” Am. Psychiatric Ass’n
v. Anthem Health Plans, Inc., 821 F.3d 352, 359 (2d Cir. 2016) (quoting Lexmark Int’l,
Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 (2014)); see Devlin v.
Scardeletti, 536 U.S. 1, 6‐8 (2002). For ease of reference, however, we refer to
Irvin’s right to relief under the rule as his “standing.”
                                            12
      Under Rule 60(b), a motion to reopen a final judgment may be brought

only by “a party or its legal representative.” Fed. R. Civ. P. 60(b). Generally, a

nonnamed class member is not a “party” to the underlying class action for

purposes of Rule 60(b). See Devlin, 536 U.S. at 9‐10. Nonetheless, we have allowed

non‐parties to bring Rule 60(b) motions under certain limited circumstances. The

controlling cases on the issue of nonparty standing to invoke Rule 60(b), Dunlop

v. Pan Am. World Airways, Inc., 672 F.2d 1044 (2d Cir. 1982), and Grace v. Bank

Leumi Trust Co. of N.Y., 443 F.3d 180 (2d Cir. 2006), are fact‐specific.

      In Dunlop, the Secretary of Labor brought an action against Pan Am

alleging a pattern of discrimination in violation of federal law. 672 F.2d at 1047.

After learning of the settlement that resulted, former Pan Am employees filed a

Rule 60(b) motion seeking relief from the judgment and requesting clarification

that the stipulation of dismissal did not bar their own actions against Pan Am. Id.

at 1048‐49. The district court held that the former employees lacked standing

because they were nonparties. Id. at 1051. We reversed, concluding that

“[a]lthough Rule 60(b)(6) would not ordinarily be available to non‐parties to

modify final judgments, we hold that on the facts of this case appellants were




                                          13
sufficiently connected and identified with the Secretary’s suit to entitle them to

standing to invoke Rule 60(b)(6).” Id. at 1052.

      In our next key Rule 60(b) nonparty standing case, Grace, a group of

minority shareholders brought a derivative action against a corporation and its

majority shareholders to challenge a corporate merger. 443 F.3d at 183‐84. The

plaintiffs entered into a settlement of their claims against the corporation and an

individual defendant, then tried to use the unsatisfied judgment from the

settlement to pursue fraudulent conveyance actions against the creditors of the

company. Id. at 185‐86. The alleged conveyees filed a Rule 60(b) motion, which

the district court granted, seeking to invalidate the judgment as the result of a

settlement process tainted by due process violations. Id. at 186‐87. We affirmed,

concluding that even though the conveyees had not been parties to the earlier

action, they were entitled to seek Rule 60(b) relief because their “interests [were]

strongly affected” by the judgment that resulted. Id. at 188.

      In the instant case, the district court concluded that Irvin did not qualify

for nonparty standing because “nothing is ‘sufficiently extraordinary’ to warrant

the extension of the Dunlop/Grace exception to the facts of this case.” Joint App’x

at 390 (quoting Baker v. Gates, 638 F. App’x 25, 29 (2d Cir. 2015)); see also Federman



                                          14
v. Artzt, 339 F. App’x 31, 34 (2d Cir. 2009) (“Both Dunlop and Grace involved

extraordinary circumstances in which a non‐party had interests on which the

outcome of the proceedings had significant consequences for the movants, yet

those interests had not been adequately represented during litigation.”) (internal

quotation marks omitted).

      While we cabined our decisions in Dunlop and Grace to the facts of those

cases, Grace, 443 F.3d at 188, the troubling circumstances presented here also

warrant extending to Irvin nonparty standing to invoke Rule 60(b). As we

discuss in more detail below in connection with our conclusion that the Milburn

class was inadequately represented, it is undisputed that no named

representatives were present to protect the interests of the class during

termination proceedings, because none of them were still incarcerated at Green

Haven and no new representatives had been substituted in. This exemplifies

“extraordinary circumstances in which a non‐party had interests on which the

outcome of the proceedings had significant consequences . . . yet those interests

had not been adequately represented during litigation, because of the peculiar

structure of [the] case.” Federman, 339 F. App’x at 34. As a Green Haven inmate

and member of the Milburn class, Irvin was “sufficiently connected and



                                        15
identified with the . . . suit.” Dunlop, 672 F.2d at 1052. Irvin is currently bound by

the judgment terminating the consent decree. Surely Irvin’s interest in obtaining

adequate medical care—such as care that may include the presence of medical

supplies, nurses, and emergency call buttons in prisoners’ cells —is “strongly

affected” by the judgment. Grace, 443 F.3d at 188.5

      These circumstances are made more problematic by the fact that class

counsel did not even notify class members of counsel’s decision to withdraw

opposition to the motion to terminate. Counsel’s letter to class members on

August 15, 2014, explained that a “final decision” had not been made as to how

to proceed and that discovery was forthcoming. Joint App’x at 344. Counsel did

not send the March 11, 2015, letter to class members until after counsel withdrew

their motion in opposition and after the district court entered the termination

order. Appellant’s Reply Br. at 6. Significantly, both letters appear to have been

sent only to class members “at Green Haven that [had] contacted [counsel]

within the past two years.” Appellant’s Reply Br. at 6 n. 5; see id. at 2 n. 3.


5In denying Irvin’s Rule 60(b) motion, the district court reasoned that “[i]t may
be the case that Mr. Irvin and other inmates . . . have been inconvenienced by”
the changes in medical care at Green Haven, such as Irvin’s allegations regarding
“the elimination of the overnight and morning nurses . . . as well as the
elimination of emergency call buttons.” Joint App’x at 392‐93. We note that there
have been no findings regarding Irvin’s allegations.
                                          16
      In accordance with Dunlop and Grace and under these circumstances,

where Irvin was not notified of counsel’s decision to withdraw opposition until

after the termination order was entered and no named representatives of an

inmate class remained incarcerated at the facility in question when a

longstanding consent decree was terminated, Irvin, a member of the class, has

“standing” to invoke Rule 60(b) to challenge the judgment.

   III.   Adequacy of Representation

      Class actions are an exception to the general rule that “one is not bound by

a judgment” in a suit in which he or she is not a named party. Hansberry v. Lee,

311 U.S. 32, 40 (1940). “In order to justify a departure from that rule, a class

representative must be part of the class and possess the same interest and suffer

the same injury as the class members.” Wal‐Mart Stores, Inc. v. Dukes, 564 U.S.

338, 348‐49 (2011) (internal quotation marks omitted). Federal Rule of Civil

Procedure 23 requires that “representative parties . . . fairly and adequately

protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). And “the Due Process

Clause of course requires that the named plaintiff at all times adequately

represent the interests of the absent class members.” Phillips Petroleum Co. v.

Shutts, 472 U.S. 797, 812 (1985).



                                          17
      We conclude that the Milburn class was inadequately represented during

the termination proceedings. For named class representatives to be “adequate”

under Rule 23, “[t]wo factors generally inform [the inquiry]: (1) absence of

conflict and (2) assurance of vigorous prosecution.” Robinson v. Metro‐North

Commuter R.R. Co., 267 F.3d 147, 170 (2d Cir. 2001), abrogated on other grounds by

Wal‐Mart, 564 U.S. 338. For this reason, “[t]he named plaintiffs in a class action

cannot represent a class of whom they are not a part, and can represent a class of

whom they are a part only to the extent of the interests they possess in common

with members of the class.” Nat’l Super Spuds, Inc. v. N.Y. Mercantile Exch., 660

F.2d 9, 17 (2d Cir. 1981) (citation and internal quotation marks omitted).

      Here, the class was defined as “all persons who are or will be confined at

the Green Haven Correctional Facility.” Joint App’x at 105. But none of the

named class representatives remained incarcerated at Green Haven during any

time period relevant to the termination proceedings, and no new representatives

were substituted after the original representatives were released. There is no

record evidence that any of the named plaintiffs retained “interests . . . in

common” with the class, Nat’l Super Spuds, 660 F.2d at 17, which would provide

“assurance of vigorous prosecution,” Robinson, 267 F.3d at 170; cf. Sosna v. Iowa,



                                         18
419 U.S. 393, 395‐97, 403 (1975). In short, named representatives of a Green

Haven inmate class certified 35 years before the relevant proceedings do not

adequately represent the class when they are no longer Green Haven inmates

and have not continued to pursue the litigation.

      Contrary to appellees reasoning, adequate class counsel cannot make up

for inadequate class representatives. “Both class representatives and class

counsel have responsibilities to absent members of the class.” Maywalt v. Parker &

Parsley Petroleum Co., 67 F.3d 1072, 1078 (2d Cir. 1995) (citation omitted). The

decision “as to the course to be followed . . . cannot rest entirely with either the

named plaintiffs or with class counsel.” Id. at 1079. Likewise, it is not incumbent

upon class members to intervene to preserve their right to named

representatives. Due process “requires that the named plaintiff at all times

adequately represent the interests of the absent class members.” Phillips

Petroleum Co., 472 U.S. at 812 (emphasis added). To ensure that named

representatives do so, “an absent class‐action plaintiff is not required to do

anything. He may sit back and allow the litigation to run its course, content in

knowing that there are safeguards provided for his protection.” Id. at 810.




                                          19
      In sum, the termination of the 1991 consent decree violated Federal Rule of

Civil Procedure 23(a)(4) and the Due Process Clause of the Fifth Amendment

because the class was inadequately represented. Accordingly, the termination

judgment is void, and the district court’s denial of Irvin’s Rule 60(b) motion to set

it aside must be reversed. After substituting new class representatives or

otherwise addressing the deficiency in representation, the district court should

once again provide the class “an opportunity to show current and ongoing

violations of their federal rights” before terminating the litigation. Benjamin v.

Jacobson, 172 F.3d 144, 166 (2d Cir. 1999) (en banc).

                                   CONCLUSION

      This case, in which class members seek an opportunity to obtain adequate

medical care while incarcerated by the state, demonstrates the importance of

adequate representation as required by Rule 23 and the Due Process Clause. We

remind district courts that even for longstanding consent decrees such as the one

here, the named representatives must adequately represent class members’

interests at all times. For the foregoing reasons, the district court’s denial of

Irvin’s Rule 60(b) motion is REVERSED, and the case is REMANDED for further

proceedings consistent with this opinion.



                                          20
1   LOHIER, Circuit Judge, concurring:

2         I fully concur in the majority opinion. I write separately only to

3   emphasize, as we have done in prior cases, the fact‐specific nature of our

4   holding, and to note that the majority opinion expresses no view on whether

5   Irvin would have “standing” if he had received notice of counsel’s decision to

6   withdraw its opposition or if the inadequate representation had not occurred

7   during such a critical phase of the litigation. See Grace v. Bank Leumi Tr. Co. of

8   N.Y., 443 F.3d 180, 188 (2d Cir. 2006); Dunlop v. Pan Am. World Airways, Inc.,

9   672 F.2d 1044, 1052 (2d Cir. 1982).
