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United States District Court, S.D. New York

October 11, 2005.

NIDIA BARCIA, et al., Plaintiffs,
LOUIS SITKIN, et al., Defendants. MUNICIPAL LABOR COMMITTEE, et al., Plaintiffs, v. LOUIS SITKIN, et al., Defendants.

The opinion of the court was delivered by: ROBERT CARTER, Senior District Judge



Plaintiffs brought this suit in 1979 alleging that the New York State Unemployment Insurance Appeal Board (the "Board") had improperly denied them unemployment benefits and hearings, in violation of the Social Security Act, 42 U.S.C. § 403 (a); the equal protection and due process clauses of the Fourteenth Amendment; Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000 (d); and the Federal Unemployment Tax Act, 26 U.S.C. § 3304 (a) (6) (A) (i). With the court's approval, the parties entered into a consent judgment on July 29, 1983. The consent judgment, as modified and supplemented (the "Consent Decree" or "Decree") has been in effect ever since and has been the subject of numerous motions and orders over the past 22 Years. Although the defendants have made substantial efforts toward compliance with the consent decree in recent years, the court has had to intervene on a number of occasions to enforce the decree.*fn1 The history of the case has been discussed at length in other opinions*fn2 with which familiarity is assumed.

  In 2003, the plaintiffs again appeared before the court seeking to compel enforcement of the consent decree. Defendants cross-moved for a modification of the consent decree that would terminate the monitoring of current cases by plaintiffs' counsel. The court granted plaintiffs' motion for enforcement and denied defendants' cross-motion. Barcia v. Sitkin, Nos. 79 Civ. 5831 (RLC) & 79 Civ. 5899 (RLC), 2003 WL 21345555 (S.D.N.Y. June 10, 2003) (Carter, J.) [hereinafter Barcia I]. Defendants appealed the court's June 10, 2003 decision and in Barcia v. Sitkin, 367 F.3d 87 (2d Cir. 2004) [hereinafter Barcia II], the Second Circuit affirmed that part of the court's decision which ordered the Board to produce a new report and plan.*fn3 This report and plan "at the very least should include (1) an analysis of compliance with all provisions of its own former plans; (2) a new plan; (3) a comprehensive system for tracking compliance with the provisions of the new plan; and (4) a system of tracking the level of compliance with the decree." Barcia I, 2003 WL 21345555 at *7. The Board submitted the U.I. Appeal Board 2004 Amelioration Plan (the "Proposed Plan"), pursuant to the court's order. Plaintiffs argue that defendants have failed to satisfy the court's requirements as set forth above. Each requirement will be discussed in turn.


  In reviewing the proposed plan, the court is cognizant of the long history of the case and the parties' desire to be free of the monitoring structure. The court shares their desire. However, as noted by the Court of Appeals, "a federal court must exercise its equitable powers to ensure that when the objects of [a consent] decree have been attained, responsibility for discharging the State's obligations is returned promptly to the State and its officials." Barcia II, 367 F.3d at 102 (internal quotations omitted) citing Frew v. Hawkins 540 U.S. 431, 441 (2004). As soon as the objectives of the consent decree have been met, the court will release the parties from monitoring. Until that point, however, it is the court's duty to enforce the decree.*fn4 Unlike the facts adjudicated in Schwartz v. Dolan, 86 F.3d 315, 319 (2d Cir 1996) (holding that the New York State Department of Social Services had to be given an opportunity to submit a plan to send required notice to plaintiffs before the court could set forth detailed instructions for design of the notice) citing Dean v. Coughlin, 804 F.2d 207 (2d Cir 1986), the defendants in the instant case have submitted a proposal for compliance with the consent decree. Therefore, the court may take this opportunity to review the proposed plan and provide specific criticism.


  The board is required to submit "an analysis of compliance with all provisions of its own former plans." Barcia I, 2003 WL 21345555 at *7 (emphasis added). When the court ordered this analysis, it had before it all of the Board's previous violation reduction and amelioration plans. Because each of these plans called for specific types of reports and actions to be taken in order to evaluate and correct the high violation rates, the process of analyzing compliance with all former plans requires the Board to review each of their earlier plans against their level of compliance to date. The Board has failed to provide such an analysis along with the proposed plan.

  Plaintiffs have also requested the supporting documentation that underlies the defendants' contentions. To wit: throughout the proposed plan, the Board refers to examinations, evaluations and analyses, which they have done in their compliance efforts. However, the defendants' assertions stand alone, and no statistical information, reports or other raw data has been included along with the proposed plan. In light of the Board's highly questionable record of compliance we do not find plaintiffs' request for supporting documentation unreasonable. The board is hereby ordered to provide such material to the plaintiff when submitting the revised plan, as detailed below.


  Perhaps the only way that the Board has complied with the formal terms of court's 2003 order is in the submission of the proposed plan. As noted before, the Board has made progress, although insufficient, toward compliance. Id. at *7. Unfortunately, the proposed plan presents a step backwards. It is little more than a reprisal of the Board's previous unsatisfactory plans, albeit with less new substance.


  The proposed plan suggests that the Board focus on the five checklist items that "account for approximately 70% of checklist violations." proposed plan at 4. The proposed plan continues, "[I]f a violation becomes more frequent it would be addressed and added to the plan." Id. It seems the Board does not understand that the Court of Appeals held that "[t]he purpose of the Consent Judgment is to prevent procedural violations in all cases and to provide full and fair hearings to all claimants . . ." Barcia II, 367 F.3d at 103 (emphasis added). Consequently, the Board's approach should not simply focus on reducing the number of complaints but should also be aimed at ensuring that all claimants receive fair and impartial hearings.*fn5

  We also take issue with the Board's proposal to use the performance of the middle third of ALJs as a benchmark for performance. While the plaintiffs concede that their proposed benchmark, the top quarter of ALJs, may have been too high, the Board's middle third standard would dramatically lower the bar for compliance so far that even hearing ALJs who are currently well below the median would then fall within the acceptable range. This is an unjustifiable method of addressing the Board's shortcomings.

  If the Board had already achieved compliance, it would be reasonable to use the middle third of hearing ALJs as a standard to measure performance. However, the system as it currently exists is in need of repair; the Board clearly needs to improve the performance of the middle third of hearing ALJs, not merely to redefine the standard so that their performance is deemed acceptable. Setting a standard so low that it allows sub-standard hearing ALJs to operate without reprieve will not improve their performance. Quite to the contrary, it will send the message that the Board condones their substandard performance.


  The court finds no merit in the defendants' characterization of the plaintiffs' amelioration plan as "not supported by empirical data or any other evidence of reasonableness or attainability." proposed plan at 4. The court has instructed the defendants to heed the suggestions found in the plaintiffs' amelioration plan. Barcia I, 2003 WL 21345555 at *7. Defendants have further acknowledged having received this suggestion in the proposed plan. proposed plan at 4. However, despite acknowledging the courts warnings, the defendants dismiss the plaintiffs' amelioration plan as unfounded. While the court intends to give the state every opportunity to create an amelioration plan suitable to both parties, if at the later date, defendants cannot or will not produce a suitable amelioration plan, the court will order the implementation of the plaintiffs' amelioration plan.*fn6

  III. COMPREHENSIVE SYSTEM FOR TRACKING COMPLIANCE WITH THE PROVISIONS OF THE PROPOSED PLAN The proposed plan calls for the defendants to draft two reports. The first is a quarterly report "listing each ALJ and showing both the number and percentage of total violations for all checklist items and highlighting items 4, 10a, 10b 11, 24." proposed plan at 5. As indicated above, we do not find the Board's focus on these particular items to be prudent but as long as all the checklist items are listed, the court will ultimately be satisfied. The second report is to be "[a] quarterly report of the review and actions taken." proposed plan at 6. This second report will be "forwarded to the chairman and other Board Members by the executive Secretary." Id.

  The Board has by now acknowledged the particular usefulness of keeping statistics on each of the individual hearing ALJs. N.Y.S. Unemployment Insurance Appeal Board M.L.C. Checklist Violation Amelioration Plan (1999). This is precisely the kind of data the court and the parties need in order to lower the violation rate and to set attainable goals. Accordingly, the Board is ordered to produce both of the reports described above, for inspection by the court and the plaintiffs. Codes may be used in place of the names of the individual ALJs since their public identification at present will serve no useful purpose.

  Plaintiffs have also pointed out several errors in the Boards data collection system. According to the plaintiffs, the defendants have artificially depressed the remedy and violation rates by: (i) failing to prepare checklists for remand orders; (ii) failing to record violations in remand decisions; (iii) creating new checklists for cases that are appealed, without linking those checklists to the cases' original checklists; (iv) failing to properly identify cases at the board level; and (v) adopting a narrow and restrictive reading of the checklist guidelines. The Board is directed to correct these errors, or to demonstrate why correction is not needed.


  The court previously ordered defendants to "do more" to convince the court that they were in substantial compliance with regard to cases that had not been appealed. Barcia I, 2003 WL 21345555 at *7. Defendants' proposed plan provides no new information and makes no mention of these cases. Accordingly, defendants are again ordered to provide the information in question, and to devise a system for monitoring cases that have not appealed.

  The proposed plan also fails to provide a system to evaluate and monitor the accuracy of the work done by the appeal ALJs, who are called on to properly identify and to remedy checklist violations. It is no less important to the court that appeal ALJs should be in full compliance with the decree than should the hearing ALJs. Defendants are therefore ordered to create a system for tracking the compliance of the appeal ALJs with the decree. In doing so, the Board should pay careful attention to the system suggested by plaintiffs in their proposed amelioration plan.


  The Board is hereby ordered to submit a revised amelioration plan consistent with this ruling within 90 days from the date of the issuance of this Opinion.



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