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
I. ANALYSIS OF FORMER PLANS
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
II. THE PROPOSED PLAN
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.
A. TERMS OF THE PROPOSED PLAN
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
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
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.
B. FUTURE AMELIORATION PLANS
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
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.
IV. SYSTEM OF TRACKING THE LEVEL OF COMPLIANCE WITH THE DECREE
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
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.
IT IS SO ORDERED.
© 1992-2005 VersusLaw Inc.