13-3123; 13-3088
Ligon; Floyd v. City of New York

                                    UNITED STATES COURT OF APPEALS

                                          FOR THE SECOND CIRCUIT



                                              August Term, 2013

                                       (Decided: November 22, 2013)

                                    Docket Nos. 13-3123-cv, 13-3088-cv


                                             Jaenean Ligon, et al.,
                                              Plaintiffs-Appellants,

                                                      - v. -

                                           City of New York, et al.,
                                              Defendants-Appellees.


                                              David Floyd, et al.,
                                              Plaintiffs-Appellees,

                                                      - v. -

                                              City of New York,
                                              Defendant-Appellant,

                                     Sergeants Benevolent Association,
                                         Proposed Intervenor-Appellant,

                                       New York City Police Officer
                                   Rodriguez, in his official capacity, et al.,
                                                 Defendants.



                        Before: WALKER, CABRANES, AND PARKER, Circuit Judges


                                                    Alex B. Karteron, Christopher Thomas Dunn, Daniel
                                                    Mullkoff, New York Civil Liberties Union, New
                                                    York, NY; Juan Cartagena, Roberto Concepcion, Jr.,
                                                    Latino Justice, New York, NY; Michael Grunfel, John
                                                    A. Nathanson, Jeffrey J. Resetarits, Sherman &
                                                    Stearling LLP, New York, NY; Mariana Louise Kovel,
                                              The Bronx Defenders, New York, NY; J. McGregor
                                              Smyth, New York Lawyers for the Public Interest,
                                              New York NY, for Jaenean Ligon, et al.

                                              Darius Charney, Sunita Patel, Center for
                                              Constitutional Rights, New York, NY; Jennifer
                                              Rolnick Borchetta, Jonathan Clifford Moore, Beldock
                                              Levine & Hoffman LLP, New York, NY; Eric
                                              Hellerman, Kasey Lynn Martini, Covington & Burling
                                              LLP, New York, NY, for David Floyd, et al.

                                              Celeste L. Koeleveld, Deborah A. Brenner, Michael
                                              A. Cardozo, Kathy H. Chang, Heidi Grossman, Fay
                                              Sue Ng, New York City Law Department, New York,
                                              NY, for City of New York, et al.

                                              Anthony P. Coles, Courtney Gilligan Saleski, DLA
                                              Piper, Philadelphia, PA, New York, NY, for Sergeants
                                              Benevolent Association.

                                              Burt Neuborne, New York, NY, for Shira A. Scheindlin.



PER CURIAM:

       Pending before the Court are four motions. The first two, filed by Appellant City of New

York (the “City”), seek “modifi[cation] of the Stay Order dated October 31, 2013 to the extent of

vacating” the orders of the District Court dated February 14, 2013 and August 12, 2013. Ligon v.

City of New York, No. 13-3123, Dkt. 190; Floyd v. City of New York, No. 13-3088, Dkt. 265.

       The City’s motions, filed on November 9, 2013, were submitted without the benefit of

the legal analysis provided by the Court’s two opinions of November 13, 2013, In re Motion of

District Judge, --- F.3d ----, Nos. 13-3123, 13-3088 (2d Cir. Nov. 13, 2013), and In re

Reassignment of Cases, --- F.3d ----, Nos. 13-3123, 13-3088 (2d Cir. Nov. 13, 2013), which

superseded the Court’s order of October 31, 2013, and therefore, we DENY the City’s motions,

without prejudice to consideration as part of the appeal on the merits, or any application to us for

a return of the cases to the District Court for the purpose of exploring a resolution.


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       The third and fourth motions were filed on November 13, 2013, by Burt Neuborne, who

had previously sought leave to appear as counsel for Judge Scheindlin or as amicus curiae on her

behalf, see Floyd v. City of New York, No. 13-3088, Dkt. 263; Ligon v. City of New York, No. 13-

3123, Dkt. 187. These two motions request leave to move for, among other things, an order

denying on the merits the City’s motions to vacate. See Request for Leave to Submit Response

to Motion Filed by City of New York to Vacate (“Ligon Mot.”), No. 13-3123, Dkt. 207; Request

for Leave to Submit Response to Motion Filed by City of New York to Vacate (“Floyd Mot.”),

No. 13-3088, Dkt. 299.

       In one of the Court’s per curiam opinions of November 13, 2013, In re Motion of District

Judge, we denied Judge Scheindlin’s request to appear in this Court as lacking a procedural

basis, and we need not revisit that issue. We now DENY these additional motions of Judge

Scheindlin, which seek leave to oppose the City’s motions, both for the reasons we stated earlier,

see In re Motion of District Judge, --- F.3d ----, Nos. 13-3123, 13-3088 (2d Cir. Nov. 13, 2013),

and because they are moot in light of our denial of the City’s motions that she seeks to oppose.

       We are, however, prompted to address several characterizations of fact contained in Mr.

Neuborne’s submissions to the Court. In one of these motions, he asserts that “[i]t now appears

that the Motion Panel did not have access to the [December 21, 2007] transcript” of proceedings

in Daniels v. City of New York, No. 99-1695, when it considered and entered its October 31,

2013 order, because “[u]pon information and belief, the transcript was not part of the record in

the Daniels case.” Ligon Mot. ¶ 13. The motion further alleges that “[i]n the absence of the

actual transcript, the Motion Panel relied [on] an inaccurate press report of the colloquy as the

principal basis for its sua sponte decision to order the prospective removal of the District Judge.”




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Id. ¶ 14. In his other motion, Mr. Neuborne reiterates his contention that “it is unclear whether

the Motion Panel had access to an actual transcript of the colloquy.” Floyd Mot. ¶ 14.

       These assertions have been echoed by other movants in this case. See, e.g., Br. of Amici

Curiae Six Retired United States District Court Judges and Thirteen Professors of Legal Ethics,

Ligon v. City of New York, No. 13-3123, Dkt. 221, Floyd v. City of New York, No. 13-3088, Dkt.

313, at 14 (“[I]n describing the colloquy with counsel concerning the related case doctrine on

which the Panel’s ruling rested, the Court relied on an inaccurate press account. Amici

understand that the colloquy was not available to the Panel at the time it ruled on October 31,

2013.”).

       A review of the record of the Court of Appeals, and of the October 29, 2013 extended

oral argument in these cases, will reveal that the panel members had the transcript of the

December 21, 2007 proceeding in front of them during the hearing, and that they asked questions

in open court regarding its substance. For example, during the oral argument, one member of the

panel twice referred to the proceedings in detail, and clearly noted that he was quoting from page

42 of the December 21, 2007 transcript. Our October 31, 2013 order specifically cited the

transcript by caption, docket number, and date, and it included quotations that had not been

reported in the New York Times article that was cited, or in any other public news report known

to the panel.

       In sum, the panel was in full possession of the relevant facts, including the transcript of

December 21, 2007, when it issued its orders of October 31, 2013, and November 13, 2013. Any

suggestion to the contrary is unfounded.




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                                           CONCLUSION

       For the foregoing reasons, we DENY the motions of appellant City of New York, seeking

to modify the Court’s stay order of October 31, 2013 to include vacatur of the District Court’s

February 14, 2013 order in Ligon v. City of New York, 925 F. Supp. 2d 478 (S.D.N.Y. 2013), and

August 12, 2013 orders in Floyd v. City of New York, --- F. Supp. 2d ----, No. 08-cv-1034, 2013

WL 4046209 (S.D.N.Y. Aug. 12, 2013); --- F. Supp. 2d ----, No. 08-cv-1034, 2013 WL 4046217

(S.D.N.Y. Aug. 12, 2013) without prejudice (as indicated above). We also DENY the November

13, 2013 motions by counsel for Judge Scheindlin to appear in order to oppose the City’s

motions for modification, for the reasons stated in In re Motion of District Judge, --- F.3d ----,

Nos. 13-3123, 13-3088 (2d Cir. Nov. 13, 2013), and, because in any event, they are moot.




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