To summary order or not to summary order - a new twist on discriminatory whims of the 2nd Circuit at the expense of civil rights appellants

I've written on this blog extensively about the illegal, discriminatory and arbitrary policy of the U.S. Court of Appeals for the 2nd Circuit to issue only "summary orders" and not full precedential decisions explaining their rulings.

Here is how civil rights litigation works:

You file a civil rights case yourself or find an attorney from the increasingly shrinking number of attorneys willing to take civil rights cases in view of the avalanche of sanctions imposed by federal courts on civil rights attorneys "for frivolous conduct" - for making constitutional arguments judges do not like.

That costs you $400 in a filing fee.

The district court most often dismisses your lawsuit on a string of judge-created restrictions to its jurisdiction.  

Rarely the case survives and proceeds to a motion for a summary judgement (despite your demand for a jury trial and a requirement of the 7th Amendment to have a jury trial, which makes summary judgments in civil rights cases unconstitutional), see a law review article on unconstitutionality of summary judgments here.

If your case is dismissed or a summary judgement is granted, you have a right to appeal.

Kind of.

You have a right to pay $505 for filing a Notice of Appeal, being subjected to harassment of the federal appellate court as to every little comma or period that is out of place (not so if you are a governmental litigant or attorney, they escape with murder), and then, most likely, your appeal is decided by a "summary order" because, in the opinion of the judges, most of them - senior-age and senior-status (after all, civil rights appeals are such bothers) - issues that you raise in a constitutional civil rights lawsuit "do not warrant publication".

See the 2nd Circuit's policy here:

A well-known and notorious judge for the U.S. Court of Appeals for the 9th Circuit Alex Kozinski made a statement recently about the comparative time that it takes to produce a summary order on appeal as opposed to a full-blown decision (opinion):

“[Many non-precedential dispositions are] drafted by

the court’s central staff and presented to a panel of three 

judges in camera, with an average of five or 10 minutes 

devoted to each case.   During a two- or three-day monthly 

session, a panel of three judges may issue 100 to 150 

such rulings”,  Alex Kozinski, “In Opposition to Proposed 

Federal Rule of  Appellate Procedure 32.1”, 51 FED. LAW. 

36, 38 (June 2004), emphasis added

AND that 

"the process of anticipating how the language . . . will be read

by future litigants and courts, and how small variations

in wording might be imbued with meanings never intended—

takes exponentially more time and must be reserved,

         given our caseload, to the cases we designate for          
         publication", id., emphasis added.

Of course, the distinction of what is "worth" publication is not a decision that federal judges are allowed to make by the statute and by the Equal Protection Clause of the 14th Amendment requiring to treat all litigants the same way.

In New York, no state appellate courts have yet devised a procedure where they would escape with no opinion on the merits in deciding an appeal.

It is clear that deciding what is "worth publication" and what is not "worth publication" is an IRRELEVANT ISSUE for judges to decide whether to provide their full attention to one or other appeal, or simply to relegate the appeal to decisions practically by non-judicial court personnel.

Such a policy is illegal because:

(1) Article III of the U.S. Constitution governing the federal judiciary does not allow judges to engage in policy-making, it is an exclusive legislative function of the U.S. Congress;

(2) Whether a decision on appeal is "worth publication" is not a relevant factor in deciding whether to provide more or less time to decide a certain appeal;

(3) Distinctions of cases for the "fast and negligent track" and for the "full blown diligent track" are arbitrary and factors that go into such decision-making are not set or disclosed to the public and litigants, giving judges powers to neglect their duty of FULL AND EQUAL APPELLATE REVIEW OF ALL APPEALS THAT COME IN FRONT OF THEM;

(4) When people pay equal (and equally high) filing fees to have their appeal reviewed, the scope and manner of review should be equal, too, it's basic fairness;

(5) Distinctions between cases that are worth and not worth publication are necessarily content-based and require strict scrutiny (see e.g. the latest decision on strict scrutiny for content-based regulation, Reed v Town of Gilbert), while no scrutiny is provided, instead, an agreement of judges without providing any reasoning for such an agreement, is enough to push your case from the "diligent" track to the "fast and negligent track", see once again:

But, sometimes s**t happens which makes you wonder - why did that s**t happen.

For example, yesterday, the U.S. Court of Appeals for the 2nd Circuit suddenly, after about a year passed since its "summary order" issued by a panel of two judges, decided, after all, to issue a 49-page full-blown opinion instead.

The case name and number is Victory v Pataki, 13cv3592.

The previous summary order was issued on April 5, 2015.

The substituting 49-opinion was issued yesterday.

The docket report of the case is completely bare of any clues as to why such a change of mind suddenly happened.  There were no motions from any party to change the court's mind.

The only explanation the court has given for such an interesting - and unique - change of mind is in a footnote:

See how easy it is?

They "initially disposed" of the appeal by a summary order - well, at least they honestly admit what they did - they cast the appeal out, because in April of 2015 "they" (two judges) concluded that the civil rights litigant's case was not worthy of publication.

Now something has happened that changed the judges' mind 

(what happened, is not clear, because I checked the docket report in the court below, and nothing happened there since 2013 summary judgment despite a partial remand in 2015) 

and persuaded them that now the case would be "worth publication", and prompted them to now do some work that they were supposed to do in the first place back in April of 2015, and to produce a 49-page opinion instead of the "letter of rejection" which is what a rubber-stamped summary order prepared by non-judicial personnel is.

I believe that, at the very least, the court should be honest and RETURN THE MONEY to those appellants who paid an equal fee while getting an unequal appellate review.

Considering that over 85% or more of appellate cases (probably, close to 100% of civil rights appeals) are decided by federal courts through this neglectful "summary order" manner, if an avalanche of demands to return the money starts, and hits the mass media and social media, federal appellate courts might take notice, take their collective heads from where they are now and start providing proper appellate review.

And, please, do not tell me that they are overloaded and do not have enough time for cases.

First, I do not care - if they take equal money, they need to provide an equal service.

Second, look at the books federal appellate judges write, the panels on which they "serve" (takes time, you know), look at their side jobs as law professors in other states and towns, away from their courts (I will run a separate blog on that particular problem).

And, of course, do not forget the "cinema nights with booze" of Alex Kozinski where he invites his appellate supervisors, the U.S. Supreme Court justices - that takes time to organize.  That is more important to give a civil rights plaintiff an equal time in appellate review as those cases that, in the judges' sole unexplained arbitrary opinion, "are not worth publication".

All of those "endeavors" takes time.  Your time.  The time you paid for as a taxpayer, and as a litigant who, most likely, scrambled to pay a $505 appellate fee and deserves equal appellate review with those appellants who were given a full-blown opinion to your 2 or 3 pieces of paper called "the summary order" where the court says "it assumes familiarity of parties with the facts and procedural history of the case and affirm on substantially the same reasons as the district court's thoughtful and well-reasoned decision".