# Raja v. Burns

> District Court, E.D. New York · February 5, 2020

URL: https://www.frixlaw.com/law-library/cases/10658911

## Case

- **Court:** District Court, E.D. New York
- **Decided:** February 5, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10658911

## How later opinions describe it (automated extraction)

- finding that the respondent effectively waived his right to proceed in federal court by electing to resolve the dispute through an administrative hearing

## Opinion text

Us DISTHIGUT COURT EUAN,
x FEBS Ha x
UNITED STATES DISTRICT COURT .
EASTERN DISTRICT OF NEW YORK BROOKLYN OFFICE
Oooo EE □□
RIZWAN RAJA,
Plaintiff, MEMORANDUM & ORDER
19-CV-01328
-against-
JOHN W. BURNS and
THE CITY OF NEW YORK,
Defendants.
oo en nn one nn nnn ne 5 5 == == XX
ANN M. DONNELLY, United States District Judge:
On April 15, 2019, Rizwan Raja brought this action against the City of New York and
John W. Burns, the first deputy commissioner and supervising administrative law judge for the
New York City Office of Administrative Trials and Hearings (“OATH”). The plaintiff alleges
violations of his Fourth, Fifth, and Fourteenth Amendment rights under 42 U.S.C. § 1983, and
related claims arising under the New York City Charter and OATH rules. (ECF No. 14.) The
plaintiff moved for partial summary judgment on liability, and the defendants cross-moved to
dismiss the complaint. (ECF Nos. 22, 24.) I held oral argument on November 25, 2019. For the
reasons that follow, the plaintiff's motion for summary judgment is granted in part and denied in
part, and the defendants’ motion to dismiss is granted in part and denied in part.
BACKGROUND
I. Statutory Framework
Pursuant to Chapter 45-a of the New York City Charter, OATH is responsible for
conducting adjudicatory hearings for agencies of the City of New York. Charter § 1048(1).
OATH’s rules permit non-attorneys to represent parties appearing before OATH tribunals,

subject to certain requirements codified in Sections 6-23 and 6-25 of Title 48 of the Rules &
Regulations of the City of New York.
a. Section 6-23 Rules
Under Section 6-23, non-attorney representatives must register with OATH and renew
their registrations every year. N.Y. Comp. Codes R. & Regs. Tit. 48, § 6-23(b) (2019). A non-
attorney representative cannot misrepresent his qualifications or services “so as to mislead
people into believing [he] is an attorney at law or a governmental employee if [he] is not.”
Id. § 6-23(d). Non-attorney representatives may be disciplined for misrepresenting their
qualifications, failing to register or re-register, or failing to follow any other OATH rules,
including those prescribed in Section 6-25. Jd. § 6-23(f). Possible discipline includes “the
suspension or revocation of the representative’s right to appear before the Tribunal.” Jd.
b. Section 6-25 Rules
Subsection 6-25(a) defines prohibited conduct for parties, witnesses, and representatives
appearing before OATH. N.Y. Comp. Codes R. & Regs. Tit. 48, § 6-25 (2019). As relevant
here, a non-attorney representative may not submit false information to the tribunal (6-25(a)(9)),
or “[e]ngage in any disruptive verbal conduct, action or gesture that a reasonable person would
believe shows contempt or disrespect for the proceedings or that a reasonable person would
believe to be intimidating,” (6-25(a)(2)).
Subsections (c)(1) and (c)(2) of Section 6-25 authorize the Chief Administrative Law
Judge to suspend or bar representatives who “fail{] to abide by these rules,” but only “after the
attorney or representative is given notice and a reasonable opportunity to appear....to rebut the
claims against him[.]” fd. § 6-25(c). Subsections (d)(1) and (d)(2), however, authorize the Chief
ALJ to suspend or bar a representative summarily “upon a determination that the representative

lacks honesty and integrity and that the lack of honesty and integrity will adversely affect his or
her practice before the Tribunal.” Jd § 6-25(d). Factors to be considered in determining
whether a representative lacks honesty or integrity include “whether the representative has made
false, misleading or inappropriate statements to parties or Tribunal staff.” Id. § (d)(2).
After the summary suspension or bar under Subsection 6-25(d), “the representative will
be given an opportunity to be heard in a proceeding prescribed by the Chief Administrative Law
Judge or his or her designee.” Jd. An aggrieved representative may then seek review of the
Chief ALJ’s decision through Article 78 of the New York Civil Practice Law and Rules. Jd. § 6-
25(e).
IJ. Factual and Procedural History!
The plaintiff became a non-attorney representative registered to appear before the OATH
tribunal in 2005, after he passed an exam demonstrating sufficient knowledge of TLC rules and
regulations. (ECF No. 32, Defs.’ Response to Pl.’s Rule 56.1 Statement (“Defs.’ 56.1
Response”) □□□ 5-7.) As a registered representative, the plaintiff represents taxi drivers appearing
before the tribunal accused of rule violations and facing the possibility of suspensions or fines.
(id. {J 9-10.)
On March 1, 2019, OATH Assistant General Counsel Timothy R. Jones sent the plaintiff
an email informing him that he was “summarily suspended starting March 8, 2019” pursuant to
Section 6-25(d)(1). Ud. § 22) (quoting ECF No. 23-1) (emphasis in original). The email
attached a summary suspension letter detailing the allegations of the plaintiff's misconduct that
gave rise to the summary suspension, which included: (1) failing to register as a representative,
(ii) misrepresenting his qualifications to appear as an attorney, (iii) appropriating money under

' Unless otherwise noted, the factual background is based on my review of the entire record, including
the parties’ 56.1 statements.

false pretenses, (iv) submitting a false statement to the tribunal, and (v) engaging in disruptive
verbal conduct. (ECF No. 23-2 at 2.) The author of the letter, First Deputy Commissioner and
Supervising ALJ John W. Burns, concluded that the plaintiff should be summarily suspended
pursuant to Section 6-25(d)(1) because the “fair and credible evidence...indicates a lack of
honesty and integrity.” (/d. at 3.) Both the email and the letter invited the plaintiff to submit a
letter to Supervising ALJ Burns by March 22, 2019, if he wished to dispute the allegations of
misconduct. (Defs.’ 56.1 Response { 22.)
On March 7, 2019, the day before the summary suspension was to take effect, the
plaintiff filed this action and an order to show cause for a temporary restraining order. (ECF
Nos. 1, 3-4.) United States District Judge Pamela K. Chen denied the TRO after a hearing that
same day, and denied a motion for reconsideration on March 11, 2019. (ECF No. 9.) The
plaintiff submitted a detailed refutation of the charges on March 14, 2019, but OATH determined
that the plaintiff's suspension should not be lifted. (Defs.’ 56.1 Response 29, 36.)
On March 19, 2019, OATH filed a new set of charges—styled as a “petition” —seeking to
bar the plaintiff permanently from appearing before OATH. (/d. 4] 37-39.) The petition
contained many of the same charges from the summary suspension, but omitted the failure to
register and false statement charges, and added a new charge of misappropriating client funds.
(Id.) That same day, OATH informed the plaintiff that the charges in the petition would be tried
before an OATH ALJ on March 22, 2019. (id. ¥ 37.)
The hearing took place over three days, and ended on April 4, 2019. (/d. ¥ 46.) During
the hearing, two of the plaintiff's former clients testified against him, and the OATH prosecutor
submitted affirmations from two former clients who did not appear. (/d. § 47.) Near the end of

trial, the parties negotiated a settlement, which they finalized and signed on April 11, 2019.? (id.
The settlement agreement does not contain any admissions of wrongdoing on the part of
the plaintiff. (Jd. 7 50.)
On April 15, 2019, the plaintiff filed the operative amended complaint. (ECF No. 16.)
The plaintiff has been registered to appear as a representative before OATH since May 9, 2019.
STANDARD OF REVIEW
The plaintiff moves for summary judgment as to liability on the federal due process
claims in the amended complaint. Summary judgment is appropriate only if the parties’
submissions, including deposition transcripts, affidavits, or other documentation, show that there
is “no genuine dispute as to any material fact,” and the movant is “entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). The movant has the burden of showing the absence of any genuine dispute as to
a material fact. McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997) (citation omitted). A
fact is “material” when it “might affect the outcome of the suit under the governing law,” and an
issue of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Barlow v. Male Geneva Police Officer Who Arrested Me on Jan. 2005,
434 F. App’x 22, 25 (2d Cir. 2011) (internal citations omitted). Once the moving party has met
its burden, the party opposing summary judgment must identify specific facts and affirmative
evidence that contradict those offered by the moving party to demonstrate that there is a genuine
issue for trial. Ethelberth v. Choice Sec. Co., 91 F. Supp. 3d 339, 349 (E.D.N.Y. 2015) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).

2 Accordingly, the plaintiff's summary suspension lasted from March 8 to April 11, 2019, or 35 days.
(id. 451.)
3 The parties confirmed the end date of Mr. Raja’s suspension during oral argument.

Although Rule 56 permits a party to move for summary judgment “at any time,” pre-
discovery summary judgment “is the exception rather than the rule and will be granted only in
the clearest of cases.” Wells Fargo Bank Nw., N.A. v. Taca Int'l Airlines, S_A., 247 F. Supp. 2d
352, 359-60 (S.D.N.Y. 2002) (internal quotation marks and citations omitted). “The Court must
consider several factors in determining whether to grant summary judgment in the absence of
discovery: (1) whether the lack of discovery was in any way due to fault or delay on the part of
the nonmovant; (2) whether the nonmovant filed a sufficient Rule 56(f) affidavit explaining: (i)
what facts are sought and how they are to be obtained, (ii) how those facts are reasonably
expected to create a genuine issue of material fact, (iii) what effort the affiant has made to obtain
them, and (iv) why the affiant was unsuccessful in those efforts; and (3) whether the nonmovant
provided any basis for its belief that further discovery would alter the outcome of the summary
judgment motion.” /d. (citing Berger v. United States, 87 F. 3d 60, 65 (2d Cir. 1996) (citation
omitted)).
None of those factors apply here. The parties do not dispute the factual history of the
plaintiff's summary suspension and hearing before the ALJ, or the terms of the OATH rules
authorizing the summary suspension.’ Rather, they dispute whether these undisputed facts
amount to violations of the plaintiffs constitutional rights to due process. Accordingly, I
adjudicate the constitutional claims as a matter of law. °

The plaintiff maintained at oral argument that there is still a dispute of fact about whether Mr. Raja
acted dishonestly or inappropriately in violation of OATH rules. The merits of the case against the
plaintiff are not the subject of this proceeding. In any event, the parties negotiated a settlement during
the trial on the subject of Mr. Raja’s conduct, a settlement that included no admission of wrongdoing.
Therefore, the merits of Mr. Raja’s suspension are moot. The plaintiff's challenge is to the process
provided to him, not an appeal of administrative fact-finding.
> The defendants have not filed a Rule 56(f) affidavit or claimed that they lack adequate information to
oppose the motion. Thus, they have waived any claim that adjudication of the plaintiff's motion for
partial summary judgment should await further discovery.

The defendants move to dismiss the entire complaint under Rule 12(b)(6). To survive a
motion to dismiss, a complaint must plead “enough facts to state a claim to relief that is plausible
on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). This means that it must
“plead[] factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). Although the complaint need not include “detailed factual
allegations,” it must be more than “a formulaic recitation of the elements of a cause of action”
and more than an “unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556
US. at 678 (citing Twombly, 550 U.S. at 555). In deciding a Rule 12(b)(6) motion to dismiss,
the Court “must accept as true all of the allegations contained in the complaint;” however, this
tenet does not apply to legal conclusions. Jd. at 678 (internal citations omitted).
DISCUSSION
The plaintiff claims that the City rule authorizing summary suspensions of OATH
registrations is unconstitutionally vague and violates the right to procedural due process. The
plaintiff also claims that the defendants violated his right to due process during the
administrative hearing by denying him the right to cross-examine all of his accusers.
The defendants respond that the City rule is not unconstitutionally vague, and that the
Constitution does not require it to provide a hearing before suspending a non-attorney
representative’s registration to appear before OATH. The defendants also argue that the claims
against John W. Burns must be dismissed because the amended complaint does not allege his
personal involvement.

I. Federal Claims
Section 1983 “is not itself □ source of substantive rights, but a method for vindicating
federal rights elsewhere conferred by those parts of the United States Constitution and federal
statutes that it describes.” Ostroski v. Town of Southhold, 443 F. Supp. 2d 325, 335 (E.D.N.Y.
2006) (citing Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).. The challenged conduct must
(a) be attributable at least in part to action under the color of state law, and (b) deprive the
plaintiff of a right guaranteed under the Constitution of the United States. Jd. (citing Snider v.
Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citation omitted)).
Since OATH claimed it suspended the plaintiffs registration pursuant to City rules, there
is no doubt that the defendants acted “under color of law.” The only question is whether the
defendants’ actions deprived the plaintiff of “any rights, privileges, or immunities secured by the
Constitution and laws.” 42 U.S.C. § 1983.
a. Summary Suspension — Procedural Due Process
The plaintiff argues that the defendants’ failure to provide him a hearing before they
suspended him violated his Fourteenth Amendment rights. The defendants counter that a pre-
deprivation hearing is not required under the Constitution; the defendants cite the availability of
post-deprivation measures and the City’s overarching interest in ensuring the validity and
integrity of the OATH tribunal.
The Fourteenth Amendment provides that the State may not “deprive any person of life,
liberty, or property without due process of law.” U.S. CONST. amend. XIV. To determine the
level of process due, courts look to the three-part test articulated by the Supreme Court in
Mathews v. Eldridge, 424 U.S. 319, 334 (1976). Under the Mathews test, courts weigh: (1) the
private interest affected by the state action; (2) the risk of erroneous deprivation through the

procedures used and the value of additional procedural safeguards; and (3) the government’s
interest in taking the challenged action. /d. at 335 (citing Goldberg v. Kelly, 397 U.S. 254, 263-
271 (1970)).
“The weight of the private interest depends on both the nature of the private interest and
the duration of the deprivation.” Padberg v. McGrath-McKechnie, 203 F. Supp. 2d 261, 277
(E.D.N.Y. 2002), aff'd, 60 F. App’x 861 (2d Cir. 2003) (citing Gilbert v. Homar, 520 U.S. 924,
932 (1997) (citations omitted)). The parties do not dispute that the nature of the plaintiff's
interest implicates his livelihood and is therefore substantial. (See, e.g., ECF No. 26, Defs.’ Br.,
at 11 (“The plaintiffs interest in the continued ability to appear as a non-attorney representative
before OATH pending the outcome of a hearing due him is a substantial one.”). That position is
supported by case law. See, e.g., Padberg, 203 F. Supp. 2d at 277 (“Plaintiffs’ interest in their
taxicab license is profound. Suspending their licenses does far more than inconvenience drivers;
it deprives them of their very livelihood.”); Bell v. Burson, 402 U.S. 535, 539 (1971) (a driver’s
license, once issued, could become “essential in the pursuit of a livelihood”).
Nevertheless, the defendants argue that the plaintiff's interest is less substantial because
of the short duration of the suspension. Indeed, the Supreme Court has held that a plaintiff's
substantial interest in his continued livelihood can be rendered insubstantial “‘so long as the
suspended employee receives a sufficiently prompt post-suspension hearing.” Gilbert, 520 U.S.
at 932. That the plaintiff here received a hearing two weeks after his notice of suspension, the
defendants argue, diminishes his interest in the registration.
This argument is not persuasive. Although the rule provides that summarily suspended
representatives “will be given an opportunity to be heard,” nothing in the rule guarantees that the

. hearing will take place “promptly” after the suspension, or that the hearing “prescribed by the

Chief Administrative Law Judge” will provide a meaningful opportunity to challenge the
suspension on its merits. See N.Y. Comp. Codes R. & Regs. Tit. 48, § 6-25(d)(2). In other
words, the rule on its face offers scant protections to ensure that representatives suspended under
(d)(1) can avoid the prospect of extended suspensions during which they will be unable to earn a
living. See Padberg, 203 F. Supp. 2d at 278 (“[A]lthough the TLC Rules seem crafted to avoid
delay and ensure prompt review of suspension, in practice their protections are illusory. Drivers
are still faced with the prospects of extended periods without the means to earn a living.”).
Accordingly, I find that the plaintiff's interest in the registration is substantial.®
The second factor under the Matthews test is “the risk of erroneous deprivation of such
interest through the procedures used, and the probable value, if any, of additional or substitute
procedural safeguards.” Matthews, 424 U.S. at 335. The plaintiff argues that the risk of error
was substantial because the suspension rested on a subjective assessment of his character—that
he lacked “honesty and integrity”—and without any independent assurance that it was justified.
The defendants counter that the risk of error was minimal because it rested on six different
allegations of misconduct, three of which were in the form of declarations signed under penalty
of perjury. The defendants also argue that any risk of error is mitigated by the availability of
significant post-suspension process, including an administrative hearing (Section 6-25(d)(2)) and
an Article 78 proceeding (Section 6-25(e)).

6 Although the plaintiff received a hearing within two weeks of the suspension, it was thirty-five days
before his registration was restored. A deprivation of that length, even with a “prompt hearing,” is still
substantial. See Ei Boutary v. City of New York, No. 18-CV-3996, 2018 WL 6814370, at *6 (E.D.N.Y.
Dec. 26, 2018) (“But of course it was thirty-four days—more than a month—before the plaintiff's
_ license was restored to him, even with the ‘prompt’ hearing that he was afforded. The plaintiff's
deprivation may have been less than in Padberg, but the undisputed facts show that it was substantial
nonetheless.”) (internal citation omitted). .
10

The purpose of a pre-suspension hearing is to “assure that there are reasonable grounds to
support the suspension[.]” Gilbert, 520 U.S. at 933. Where there is readily verifiable,
independent evidence that the suspension is not unjustified—such as an arrest (Gilbert, 520 U.S.
at 933-34), indictment (FDIC v. Mallen, 486 U.S. 230, 240-41 (1988)), or affidavit of law
enforcement (Mackey v. Monirym, 443 U.S. 1, 14 (1979))—the state can dispense with a pre-
deprivation hearing because there is substantial assurance that the deprivation is not baseless,
unwarranted, or arbitrary. If the suspension is based on a subjective assessment, there is an
enhanced risk that the summary suspension is baseless no matter the source of the evidence. Ina
suit involving the summary suspension of taxicab drivers who refused service on impermissible
grounds, the Honorable Raymond J. Dearie observed:
It is the subjective nature of the evidence in service refusal suspension, inter alia,
that distinguishes this case from other cases where pre-deprivation hearings were
not required... [In Mackey], the risk of erroneous deprivation was far less because
the suspension was based on objective facts. It is relatively easy to determine
whether there is a legitimate reason to suspend someone of driving while
intoxicated. The arresting officer will have the opportunity to observe the driver’s
condition and take note of the tell-tale signs of intoxication. Such readily
verifiable evidence is not present in service refusal cases...In the case at bar, the
focus is not on fact, but on impressions readily susceptible to mistake and
misperception.
Padberg, 203 F. Supp. 2d at 278-79.
In her thoughtful and comprehensive opinion denying the plaintiff's motion to reconsider
her denial of a temporary restraining order, see Raja v. Burns, No. 19-CV-01328, 2019 WL
1118044, at *3 (E.D.N.Y. Mar. 11, 2019), Judge Chen found that the defendants provided
substantial support for their summary suspension, including three declarations signed under
penalty of perjury. Thus, the Chief ALJ’s assessment that the plaintiff lacked “honesty and
integrity” was based on more than just subjective beliefs.

11

Moreover, any risk of an erroneous deprivation is mitigated by the availability of an
Article 78 proceeding. As Judge Chen noted, the availability of several layers of post-suspension
process distinguishes this case from Padberg, where the post-suspension procedures did not
provide the drivers an opportunity to be heard on the merits, and thus “provided little, if any,
protection of the taxicab driver’s due process rights.” Jd. at *4 (quoting Padberg, 203 F. Supp.
2d at 279-800). Here, by contrast, the City rules allow the plaintiff to challenge his suspension
through an Article 78 proceeding, which the Second Circuit has “on numerous occasions” held to
be a “perfectly adequate post-deprivation remedy.” See Pierre v. N.Y.C Taxi and Limousine
Comm'n, No. 17-CV-973, 2017 WL 1417257, at *6 (E.D.N.Y. Apr. 19, 2017) (citations
omitted); see also Grillo v. N.Y.C Transit Auth., 291 F.3d 231, 234 (2d Cir. 2002) (“This court
has held on numerous occasions that where, as here, a party sues the state and its officials and
employees for the arbitrary and random deprivation of a property or liberty interest, an Article 78
proceeding is a perfectly adequate post-deprivation remedy.”) (internal quotation marks and
citation omitted). Because the plaintiff can challenge OATH’s decision on the merits in an
Article 78 proceeding, I find that the second Matthews factor weighs in favor of the defendants.
The third Matthews factor is the “[g]overnment’s interest, including the function involved
and the fiscal and administrative burdens that the additional or substitute procedural requirement
would entail.” Matthews, 424 U.S. at 335 (citation omitted). The defendants argue that
summary suspensions serve the legitimate interest of ensuring the “validity and integrity of the
Tribunal.” (ECF No. 26 at 13.) The plaintiff agrees that assuring the integrity of the tribunal is a
legitimate government interest, but disputes that the interest can be served only by a summary
suspension, and not a suspension after a hearing.

12

In assessing the strength of the government’s interest in obtaining a pre-hearing
suspension, courts look to whether “exigent” or “extraordinary” circumstances are present.
United States v. All Assets of Statewide Auto Parts, 971 F.2d 896, 903 (2d Cir. 1992) (citing
Fuentes v. Shevin, 407 U.S. 67, 91 (1972)). “These circumstances exist not just when there is an
important government interest at stake, but also when very prompt action is necessary,” Padberg,
203 F. Supp. 2d at 280 (citation omitted), such as “in cases involving pressing and immediate
threats to the public health and safety.” Jd. (citing Mackey, 443 U.S. at 17 (“We have
traditionally accorded the states great leeway in adopting summary procedures to protect public
health and safety.”)). In Mackey, the Supreme Court upheld a summary suspension statute partly
because of the government’s interest in protecting the public from drunk drivers. 443 U.S. at 17
The defendants place this case in the “pressing and immediate threat[] to the public health
and safety” category. Padberg, 203 F. Supp. 2d at 280-81. They argue that summary
suspensions protect a “vulnerable population”—taxicab drivers whose own livelihoods are at
stake—from duplicitous representatives. (ECF No. 26 at 14.) While certainly legitimate, the
government’s interest in upholding the integrity of the OATH tribunal neither implicates public
health and safety, nor requires prompt regulatory intervention. Indeed, OATH’s investigation
into the plaintiff took nearly two years during which OATH collected evidence against him.
(ECF No. 31, Decl. of Timothy Jones, {J 14-26.) The most serious allegation—that the plaintiff
misrepresented himself as an attorney—came to OATH on March 14, 2018, (ECF No. 23-5),
nearly a year before OATH suspended him. While the defendants are entitled to prosecute the
plaintiff as they see fit, the fact that they allowed him to represent “vulnerable” clients for a year

13

despite allegations of misconduct undermines the argument that a summary suspension was
necessary. Accordingly, I find that the third Matthews factor weighs in favor of the plaintiff.’
The plaintiff has a substantial interest in his registration, the defendants have a minimal
interest in obtaining a pre-hearing suspension, and any risk of an erroneous deprivation in the
summary suspension process is offset by the availability of an Article 78 hearing. Given the
strength of the plaintiffs interest in his license and the important, but not immediate, need for
OATH to maintain the integrity of its tribunals, I find as a matter of law that depriving the
plaintiff of a pre-suspension hearing violated his due process rights.
b. Summary Suspension — Constitutional Vagueness
“[T]he due process doctrine of vagueness is designed to ensure that, before risking a
deprivation of liberty or property, a person have fair notice of the type of conduct that is
prohibited...” Piscottano v. Murphy, 511 F.3d 247, 280 (2d Cir. 2007). Due process requires
that “a reasonably prudent person, familiar with the conditions the regulations are meant to
address and the objectives the regulations are meant to achieve, has fair warning of what the
regulations require.” Rock of Ages Corp. v. Sec’y of Labor, 170 F.3d 148, 156 (2d Cir. 1999)
(citations omitted). The Supreme Court has “expressed greater tolerance” for vagueness in the
civil context “because the consequences of imprecision are qualitatively less severe.” Vill. of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982); Grayned v.
City of Rockford, 408 U.S. 104, 110 (1972) (regulations need not achieve “meticulous
specificity” and may instead embody “flexibility and reasonable breadth”) (citations omitted).

? The defendants’ argument that pre-suspension hearings would impose an excessive burden is also
unpersuasive. Since OATH guarantees a post-deprivation hearing at some point after a summary
suspension (see N.Y. Comp. Codes R. & Regs. Tit. 48, § 6-25(d}(2)), there is no additional burden
. . associated with holding one before the deprivation. See Boutary, 2018 WL 6814370, at *7 (“The
defendants do not dispute that it would be no added administrative burden for the TLC to provide a
hearing before it suspends instead of after.”) (citations, quotation marks, and alterations omitted).
14

In light of these permissive standards, the defendants argue that Sections 6-23 and 6-25
give sufficient warning that OATH practitioners may be summarily suspended for prohibited
conduct. The plaintiff argues that the standard for prohibited conduct—conduct that lacks
“honesty and integrity”—is nebulous, and that the misconduct defined in other subsections of the
OATH rules cannot be used as a reference. According to the plaintiff, only the specific
subsections that authorized the summary suspension (6-25(c) and (d)) can be evaluated for
vagueness.
The plaintiff does not cite and the Court cannot find any authority suggesting that the
Court must make a vagueness determination in a vacuum. In fact, case law demonstrates the
opposite. See, e.g., United States v. Lanier, 520 U.S. 259, 267 (1997) (“[T]he touchstone is
whether the statute, either standing alone or as construed, made it reasonably clear at the relevant
time that the defendant’s conduct was [prohibited].”). In any event, Sections 6-25(c) and (d) are
not vague. Section 6-25(d) specifies “factors to be considered in determining whether the
representative lacks honesty and integrity,” for example, “whether the representative has made
false, misleading or inappropriate statements to parties or Tribunal staff.” N.Y. Comp. Codes R.
& Regs. Tit. 48, § 6-25(d)(2). This content gives a reasonably prudent OATH practitioner fair
warning about the kind of conduct that merits a summary suspension. Accordingly, this claim is
dismissed as a matter of law as against all defendants.
c. OATH Hearing — Right to Cross-examination
The plaintiff argues that he was denied due process at his administrative trial before
OATH because two of the four clients who accused him of wrongdoing submitted statements in
lieu of testifying; the plaintiff says that he should have been permitted to cross-examine them.
The defendants respond that the due process clause is not violated when hearsay evidence is

15

submitted during an administrative hearing or trial. At oral argument, I asked what effect the
parties’ settlement agreement—which they negotiated before the trial was complete—had on this
claim. The parties addressed this question in supplemental briefing. (See ECF Nos. 46 and 48.)
As a preliminary matter, there is no absolute due process right to cross-examine witnesses
during an administrative hearing or trial. See Yancey v. Apfel, 145 F.3d 106, 112-13 (2d Cir.
1998). Rather, an ALJ has the discretion to permit witness testimony “where reasonably
necessary to a full development of the evidence in the case.” /d. at 113 (quoting Flatford v.
Chater, 93 F.3d 1296, 1307 (6th Cir. 1996)). In Yancey, for example, the Second Circuit
concluded that it was not an abuse of discretion for the ALJ to deny a claimant the right to cross-
examine a doctor whose medical report contributed to an adverse finding of disability. Jd.
(“After weighing the evidence, the ALJ found that although Yancey suffered from multiple pains
and fatigue, she did not have an impairment or combination of impairments listed in the pertinent
regulations. Under these circumstances, we believe that there was no deprivation of due process
as the ALJ acted well within his discretion by refusing to subpoena Dr. Wong.”).
In any event, the plaintiff waived his right to challenge the way the hearing was handled
when he entered into a settlement agreement before a decision in the OATH proceeding. A
plaintiffs right to assert a court challenge “is subject to waiver, just as other personal
constitutional rights that dictate the procedures by which civil and criminal matters must be
tried.” Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 848-49 (1986) (citations
omitted). A plaintiff's waiver may be explicit or implied. See id. (finding that the respondent
effectively waived his right to proceed in federal court by electing to resolve the dispute through
an administrative hearing). Here, the plaintiff could have elected to see the administrative trial
through to the end, with a ruling by the ALJ. Had the ALJ ruled against him, he couldhave

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appealed (see N.Y. Comp. Codes R. & Regs. Tit. 48, § 6-19), and raised the claim he seeks to
press in this Court. But the plaintiff did not pursue that route. Instead, he voluntarily entered
into a settlement agreement, which resolved the matters covered by the hearing “with prejudice,”
consistent with the parties’ “wish to resolve this matter without further proceedings.” (ECF No.
20.) By settling the case, the plaintiff waived his right to contest the way the hearing was
conducted, including the ALJ’s evidentiary rulings.
Alternatively, I find that under the circumstances of this case the cross-examination
question is moot. The Constitution limits the subject matter jurisdiction of the federal courts to
disputes involving “live cases and controversies.” Cnty. of Suffolk v. Sebelius, 605 F.3d 135, 140
(2d Cir. 2010) (citation omitted). When “the issues presented are no longer live or the parties
lack a legally cognizable interest in the outcome,” Murphy v. Hunt, 455 U.S. 478, 481 (1982)
(citations omitted), the case becomes moot and must be dismissed, Russman v. Bd. of Educ. of
Enlarged City Sch. Dist. of City of Watervliet, 260 F.3d 114, 119-20 (2d Cir. 2001). Likewise,
“Tt]he settlement of an individual claim typically moots any issues associated with it.” United
Airlines, Inc. v. McDonald, 432 U.S. 385 (1977) (Powell, J., dissenting) (citing 13B. Wright, A.
Miller, & E. Cooper, Fed. Prac. & Proc. Juris. § 3533 (3d ed.)). Accordingly, this-issue is also
moot.
Il. The Settlement
The next question is whether the settlement forecloses all of the plaintiff's claims. I find
that it does not. The defendants say that by signing a settlement agreement with a suspension .
penalty, the plaintiff conceded the legitimacy of the initial summary suspension. The plaintiff
responds that signing a settlement agreement—-particularly one with no admission of fault—
cannot be used against him to prove that the prior suspension was substantially justified. The

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defendants’ alternative argument, presented in a footnote, is that the settlement agreement bars
the entire action.
First, the settlement agreement does not bar the entire action because the plaintiff did not
waive his right to challenge the summary suspension in federal court. On the contrary, the
settlement agreement is limited to resolving the administrative hearing pending in the OATH
tribunal before ALJ Casey. It makes no reference to this lawsuit, and contains no releases of
claims for OATH or the City. Interpreting this settlement agreement according to general
principles of contract law, see Powell v. Omnicom, 497 F.3d 124, 128 (2d Cir. 2007), I find that
the plaintiff did not waive, either expressly or implicitly, his right to continue prosecuting the
summary suspension in federal court.
Second, the settlement agreement does not preclude a claim for compensatory damages.
Under Carey v. Piphus, 435 U.S. 247 (1978), a plaintiff cannot recover compensatory damages
for a violation of procedural due process if the ultimate deprivation was justified. The
defendants argue that a settlement agreement with a temporary suspension component proves
that the plaintiff's summary suspension was justified. In other words, the defendants claim that
the plaintiff is estopped from arguing that the summary suspension was unconstitutional in the
federal forum, because of issues “decided” in the settlement agreement in the administrative
tribunal. As a general principle, however, “issue preclusion attaches only ‘when an issue of fact
or law is actually litigated and determined by a valid and final judgment, and the determination is
essential to the judgment.’” Arizona v. California, 530 U.S. 392, 414 (2000), supplemented, 531
U.S. 1, (quoting Restatement (Second) of Judgments § 27, p. 250 (1982)). In light of this
principle, “settlements ordinarily occasion no issue preclusion...unless it is clear...that the
parties intend their agreement to have such an effect.” Jd.

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The plaintiff entered into a settlement agreement that included a temporary suspension
but no admission of wrongdoing. By entering into the settlement agreement, the plaintiff did not
concede that the original summary suspension was legitimate. After all, parties settle for myriad
reasons. See United States v. Int'l Bldg. Co., 345 U.S. 502, 505 (1953) (the parties’ agreement
had no issue-preclusive effect because “[a]s the case reaches us, we are unable to tell whether the
agreement of the parties was based on the merits or on some collateral consideration.”). The
plaintiff claims that he agreed to serve a brief suspension with no admission of wrongdoing
because he was facing the prospect of a permanent loss of his livelihood, not because he
“ultimately agreed to the 35-day suspension.” (See ECF No. 29, Defs.’ Opp’n Br., at 10.)
Accordingly, the plaintiff is entitled to prove compensatory damages in a trial.
TI. State Law Claims
The Court exercises supplemental jurisdiction over the plaintiff's state law claims
pursuant to 28 U.S.C. § 1367(a). The plaintiff's fifth and sixth claims for relief are a
repackaging of his due process claims as violations of OATH rules or the New York City
Charter. Accordingly, the motion to dismiss those claims is granted in part and denied in part as
discussed above.
IV. Defendant Burns
The defendants argue that the complaint must be dismissed against John W. Burns
because it does not allege his personal involvement in the alleged constitutional violations. The
plaintiff responds that the allegations against Supervising ALJ Burns—that he signed the
summary suspension letter and wrote two designation letters to the ALJ—are sufficient to
establish his direct involvement in the alleged constitutional violations.

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A supervisory official will not be found liable under Section 1983 simply by virtue of his
“high position of authority.” Villafane v. Sposato, No. 16-CV-3674, 2017 WL 4179855, at *12,
(S.D.N.Y. Aug. 22, 2017) (quoting Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d
Cir. 1989) (citations omitted)), report and recommendation adopied, 2017 WL 4157220
(E.D.N.Y. Sept. 15, 2017). Rather, a plaintiff in a Section 1983 action must show that the
supervisor was personally involved in a constitutional violation by: (1) directly participating in
the violation; (2) failing to remedy the wrong after it comes to his attention; (3) creating a policy
or custom under which unconstitutional practices occur, or allowing the continuation of such
custom and policy; (4) being grossly negligent in supervising subordinates who committed the
wrongful acts; or (5) failing to act on information indicating that unconstitutional acts are
occurring. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
It is undisputed that Supervising ALJ Burns authored the letter summarily suspending the
plaintiff from appearing as a non-attorney representative. (Defs.’ Response 56.1 § 22.) In fact, it
was Supervising ALJ Burns who decided that the plaintiff's actions merited a suspension without
a hearing:
In accordance with OATH rule 6-25(d)(1), I have reviewed the fair and credible
evidence which indicates a lack of honesty and integrity that adversely affects
your practice before OATH. I therefore summarily suspend you from appearing
and representing individuals at OATH beginning March 8, 2018 subject to my
final determination in this proceeding.
(ECF No. 23-2 at 3) (emphasis in the original.)
Since the summary suspension violated the plaintiff's right to due process—and since
Supervising ALJ Burns authorized the summary suspension—he is personally liable for the
violation as a matter of law.

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The defendants argue that even if there was a constitutional violation, Supervising ALJ
Burns is entitled to qualified immunity because his conduct did not violate clearly established
law. “Qualified immunity protects officials from liability for civil damages as long as ‘their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Gilles v. Repicky, 511 F.3d 239, 243 (2d Cir. 2007)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “When a defendant invokes qualified
immunity...courts engage in a two-part inquiry: whether the facts shown ‘make out a violation
of a constitutional right,’ and ‘whether the right at issue was clearly established at the time of
defendant’s alleged misconduct.”” Taravella v. Town of Wolcott, 599 F.3d 129, 133 (2d Cir.
2010) (quoting Pearson v. Callahan, 555 U.S. 223 (2009)). Because the facts make out a
violation of the plaintiff's rights to procedural due process, I focus on the latter inquiry: whether
the right to due process was clearly established at the time of the defendants’ summary
suspension.
In determining whether a right is clearly established, the Court considers whether “(1) the
right was defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has
confirmed the existence of the right, and (3) a reasonable defendant would have understood from
the existing law that his conduct was unlawful.” Bailey v. Pataki, 708 F.3d 391, 404-05 (2d Cir.
2013) (citing Luna v. Pico, 356 F.3d 481, 490 (2d Cir. 2004)). “For a right to be clearly
established, it is not necessary that courts have agreed upon the precise formulation of the
standard.” Jd. at 405 (quotation marks and citation omitted).
It is well settled that “where the State feasibly can provide a pre-deprivation hearing it
generally must do so regardless of the adequacy of a postdeprivation remedy.” Bailey, 708 F.3d
at 405 (quoting Zinermon v. Burch, 494 U.S. 113, 132 (1990)); see also Velez, 401 F.3d at 101

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(“Nevertheless, it has long been settled that due process generally requires a state to afford its
citizens “some kind of hearing’ prior to depriving them of liberty.”) (citation omitted). It is
equally well settled that the state ordinarily can dispense with a pre-deprivation hearing only
when there is an immediate danger to society. Jd. at 407 (“[T]he basic proposition that due
process requires a predeprivation hearing unless there is an immediate danger to society was well
established prior to 2005.”) (quotation marks and citation omitted). Accordingly, I find that
Supervising ALJ Burns’ actions violated clearly established law.
Nevertheless, even where the law is clearly established, an official is entitled to qualified
immunity if it was “objectively reasonable” for him to believe that his actions were lawful at the
time of the challenged acts. Soares v. State of Conn., 8 F.3d 917, 920 (2d Cir. 1993); see also
Davis v. Scherer, 486 U.S. 183, 190 (1984) (“Even defendants who violate [clearly established]
constitutional rights enjoy a qualified immunity that protects them from liability for damages
unless it is further demonstrated that their conduct was unreasonable under the applicable
standard.”). “Ultimately, the question is not what a lawyer would learn or intuit from
researching case law, but what a reasonable person in the defendant’s position should know
about the constitutionality of the conduct.” Velez, 401 F.3d at 100 (quotation marks and citation
omitted).
The Second Circuit has held that it is objectively reasonable for an official to believe that
his actions were lawful when those actions were taken pursuant to a presumptively valid state or
locallaw:
absent contrary direction, state officials...are entitled to rely on a presumptively
valid state statute...until and unless [the statute is] declared
unconstitutional... The enactment of a law forecloses speculation by enforcement
officers concerning [the law’s] constitutionality—with the possible exception of a
law so grossly and flagrantly unconstitutional that any person of reasonable
prudence would be bound to see its flaws.

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Vives v. City of New York, 405 F.3d 115, 117 (2d Cir. 2005) (quoting Connecticut ex rel.
Blumenthal v. Crotty, 346 F.3d 84, 102-03 (2d Cir. 2003) (citations, quotation marks, and
alterations omitted)). In other words, an official can still claim qualified immunity for the
violation of a clearly established constitutional right if the challenged conduct involved the
enforcement of a state or local statute that is not “grossly and flagrantly unconstitutional.”
Supervising ALJ Burns authorized the plaintiff's summary suspension pursuant to
Section 6-25 of the City’s Rules and Regulations, a duly enacted regulation. Although the law
favoring pre-deprivation hearings is well settled, it is not so absolute as to render any law
authorizing summary suspensions “grossly and flagrantly unconstitutional.” Therefore, because
he relied on a regulation that was not flagrantly unconstitutional, Supervising ALJ Burns is
entitled to qualified immunity.
CONCLUSION
The Court grants summary judgment for the plaintiff on the federal and state procedural
due process claims insofar as they relate to the summary suspension of the plaintiff. The Court
dismisses all claims that the OATH rules are unconstitutionally vague and that the defendants
violated the plaintiff's right to due process by denying him the right to cross-examine all of his
accusers. The Court grants the defendants’ motion to dismiss Supervising ALJ Burns on
grounds of qualified immunity.
The Court respectfully refers this case to United States Magistrate Judge Ramon E.
Reyes, Jr. for a determination of potential damages stemming from the defendants’ due process
violation.

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SO ORDERED.

s/Ann M. Donnelly
Ann M. Donnelly
United States District Judge
Dated: Brooklyn, New York
February 5, 2020

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10658911. Public record. Not legal advice.