SDNY Notes Split Re Conflict between Federal Reserve Act and State Anti-Discrimination Law

Per Goonan v. Federal Reserve Bank of New York, --- F.Supp.2d ----, 2013 WL 69196 (S.D.N.Y. Jan. 7, 2013:

The proper interpretation of the FRA's dismiss at pleasure provision is undeniably a difficult question. Some courts have concluded that there is no conflict between the FRA and state anti-discrimination laws because this provision speaks only to contractual and other common law rights created under state law. See Katsiavelos, 1995 WL 103308, at *2–4; Mueller, 797 F.Supp. at 662–63. Other courts have read the provision as a wide-ranging grant of discretionary authority that shields the Fed from any liability that arises from termination decisions—except as impliedly amended by later-enacted federal anti-discrimination statutes.See, e.g., Fasano, 457 F.3d at 288. These courts, in turn, have split over whether state anti-discrimination laws are preempted in their entirety or only to the extent that they sweep more broadly than their federal counterparts. Compare Arrow, 358 F.3d at 393 (entirely preempted), with Kroske, 432 F.3d at 988–89 (partly preempted), and James II, 471 F.Supp.2d at 236 (same); see also Fasano, 457 F.3d at 288 (reserving judgment on this issue while noting that “[w]e need not take a position on whether state remedies exactly consonant with the ADA and 12 U.S.C. § 1831j would similarly offend ‘the full purposes and objectives of Congress' ”). In a dissenting opinion, three Justices of the California Supreme Court have gone even further than the federal courts by strongly suggesting that later-enacted federal anti-discrimination laws did not impliedly amend the FRA—in which case the Fed would be immune even from ADA liability. See Peatros v. Bank of Am. NT & SA, 22 Cal.4th 147, 185 (2000) (Brown, J., dissenting). In sum, district and appellate courts that have addressed this issue are deeply divided.

Recognizing this split in judicial authority, and considering both the arguments advanced by the parties and the arguments offered by other courts, this Court concludes that the FRA doesnot preempt state and local anti-discrimination laws. In reaching that conclusion, the Court has considered all three forms of preemption: express, field, and conflict. None applies here.

Third Circuit Declines to Weigh in on Split Re Whether Adjustment under Guideline § 3E1.1(b) Is Mandatory under Certain Circumstances

Per U.S. v. Castro, --- F.3d ----, 2013 WL 69214 (3d Cir. 2013):


Castro also contends that his 60–month sentence under Count Nine is procedurally unreasonable because the District Court erred in refusing to reduce his offense level under § 3E1.1(b). In his view, the additional adjustment is mandatory if the government moves for it and the other requirements of the provision are met. Whether that is so is a question we have not addressed but which has divided other circuits. Compare United States v. Williamson, 598 F.3d 227 (5th Cir.2010) (district court has authority to determine whether conditions for one level reduction for acceptance of responsibility under § 3E1.1 have been satisfied), with United States v. Mount, 675 F.3d 1052, 1055–57 (7th Cir.2012) (application of additional one level decrease in defendant's offense level under § 3E1.1 is mandatory). We decline to address that question, however, because it is precluded by Castro's appellate waiver and no miscarriage of justice would result from enforcing the waiver on this point.

Sixth Circuit on Split Re Need for Automatic Reversal after Deprivation of Counsel at Competency Hearing

Per U.S. v. Ross, --- F.3d ----, 2012 WL 6734087 (C.A.6 2012):

The issue of a remedy for deprivation of counsel at a competency hearing is a question of first impression in this Circuit. However, “[i]t is settled that a complete absence of counsel at a critical stage of a criminal proceeding is a per se Sixth Amendment violation warranting reversal of a conviction, a sentence, or both, as applicable, without analysis for prejudice or harmless error.” Van v. Jones, 475 F.3d 292, 311–12 (6th Cir.2007); see also French v. Jones, 332 F.3d 430, 438 (6th Cir.2003). Neither the Supreme Court nor the Sixth Circuit have considered whether a competency hearing is a “critical stage.” “However, every federal court of appeals to take up the question has answered it affirmatively.” Ronald A. Parsons, Jr., Being There: Constructive Denial of Counsel at a Competency Hearing as Structural Error Under the Sixth Amendment, 56 S.D. L.REV. 238, 242 & n. 31 (2011) (listing cases from the Third, Fourth, Eighth, Ninth, Tenth, and D.C. Circuits). We join those circuits in holding that a competency hearing is a critical stage.

Other circuits are divided, however, as to whether automatic reversal is required when there has been a deprivation of counsel at a competency hearing. Compare Appel, 250 F.3d at 217–18 (holding retrospective analysis of a defendant's competency is not an appropriate remedy for a deprivation of counsel violation), with Klat, 156 F.3d at 1264 (remanding “for an evidentiary hearing to determine whether the competency hearing could have come out differently if [the defendant] had been represented by counsel”), and United States v. Bergman, 599 F.3d 1142, 1148–49 (10th Cir.2010) (remanding to determine if the trial court could make a retroactive competency determination and, if so, to make such a determination).

We see no reason to create an exception to our established rule that complete deprivation of counsel during a critical stage warrants automatic reversal without consideration of prejudice. See Van, 475 F.3d at 311–12. It is unclear on this record whether or not standby counsel satisfied Cronic's requirement that his representation of Ross provided “meaningful adversarial testing” of Ross's competency. Accordingly, we must remand the case to the district court for an evidentiary hearing to determine whether Ross was unconstitutionally deprived of representation.FN2 Satisfaction of this standard requires evidence, at a minimum, that standby counsel (1) conducted an adequate investigation into Ross's competency, including reading and analyzing Dr. Nixon's report, and preparing for the hearing and (2) chose not to contest Ross's competency based on his own strategic decision rather than a belief that he simply had no obligation to do so over Ross's instructions.