Case 1:90-cv-05722-RMB-RLE Document 1591 Filed 11/17/14 Page 1 of 3

1185 AVENUE OF THE AMERICAS 31ST FLOOR

NEW YORK, NY 10036-2603
212.704.9600 212.704.4256 fax w ww .zuc k erman.c om

B ARB ARA S. JONES

P artner
(212) 897-3437
bjones@zuc k erman.c om

November 17, 2014

VIA HAND DELIVERY AND ECF
Hon. Richard M. Berman
United States District Court for the Southern District of New York
Daniel Patrick Moynihan United States Courthouse
500 Pearl Street
New York, NY 10007
Re:

United States v. District Council, No. 90-cv-5722

Dear Judge Berman:

The District Council, the Benefit Funds, and the government write in response to Your
Honors Administrative Order of November 14, 2014. Under the proposed modifications to
paragraph 5.b.iii, there are four potential outcomes: (1) the Independent Monitor (IM) makes a
determination, which the Executive Committee affirms, and then the aggrieved person does not
seek review and the determination of the IM stands; (2) the IM makes a determination, which the
Executive Committee reverses, and then the IM, convinced by the reasoning of the Executive
Committee, does not seek review and the determination of the Executive Committee stands; (3)
the IM makes a determination, which the Executive Committee affirms, and then the aggrieved
person petitions the District Court for review; and (4) the IM makes a determination, which the
Executive Committee reverses, and then the IM petitions the District Court for review. Below,
we present a hypothetical that results in either of these last two outcomes.1
Based upon the submission of the Review Officer of October 6, 2014, the bulk of the
vetoes under paragraph 5.b.iii of the June 3, 2010 Stipulation and Order were of individuals from
office or employment, so we use such an example to underpin the hypothetical here.
In our hypothetical, the IM receives a tip that an employee of the District Council was
affiliating with a barred person under the terms of the Consent Decree. The IM then conducts an
investigation and gathers evidence that suggests that the Council employee was in contact with a
barred person and concludes that the employee should be dismissed. Upon making this
determination, the IM provides both the District Council and the employee with notice and an
1

The first two potential outcomes are not appealed to Your Honor and the standard applied by the Executive
Committee is the same as that applied in the other two, so to avoid repetition, we do not illustrate those two
outcomes in this submission.
WASHINGTON, DC

NEW YORK

TAMPA

B ALTIMORE

Case 1:90-cv-05722-RMB-RLE Document 1591 Filed 11/17/14 Page 2 of 3

Hon. Richard M. Berman

November 17, 2014
Page 2
opportunity to be heard. Within the allotted five days, the District Council and the employee
provide replies to the IM, who then determines that a reasonable basis for continued employment
was not established. The IM next presents his evidence of the employees contact with the
barred person to the Executive Committee and recommends that the individual be dismissed
from employment at the District Council.
In this and every case, the Executive Committee reviews the determination of the IM for
substantial evidence. In doing so, the Executive Committee does not make a de novo
determination based upon the underlying facts, but instead considers whether there is substantial
evidence, that is, such relevant evidence as a reasonable mind might accept as adequate to
support [the IMs] conclusion. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
Since there is no petition for review made in the first two potential outcomes presented in
the first paragraph, we now discuss how the procedure works in outcomes (3) and (4). In the
third outcome considered in the first paragraph, the Executive Committee determines that there
was substantial evidence to support the IMs determination that the employee was in contact with
a barred person and that he should be dismissed. Following this affirmance by the Executive
Committee, the dismissed employee then petitions Your Honor for review. In conducting this
review, Your Honor reviews the determination of the IM under the standards of 5 U.S.C.
706(2), including, among other things, whether it is arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law or unsupported by substantial evidence.
In this way, Your Honors review is analogous to the procedure followed by the Court of
Appeals in reviewing district court decisions reviewing final agency action. In such cases, the
Court of Appeals give[s] no deference to the lower court but review[s] de novo whether the
agency action satisfies the standards of the APA. In other words, like the district court, [the
Court of Appeals] review[s] the record to determine whether the agency considered the relevant
factors and acted within its discretion. United States v. Intl Bhd. of Teamsters, 170 F.3d 136,
142 (2d Cir. 1999) (internal quotation marks and alterations omitted). So too here, Your Honor
does not defer to the Executive Committee determination, but would review the record to
determine whether the [IM] considered the relevant factors and acted within [his] discretion. Id.
If Your Honor concludes that the determination of the IM was not arbitrary or capricious or
otherwise met the standards of the APA, you would affirm that determination.
In the fourth outcome, the Executive Committee instead determines that there was not
substantial evidence to support the conclusion of the IM that the employee was in contact with a
barred person and, thus, that individual would not be fired. Following this reversal, the IM then
petitions Your Honor for review. In conducting this review, Your Honor applies the same
standard of review as you would apply in the scenario where the Executive Committee affirmed
the IM and the employee sought review. Here, you would give no deference to the Executive

Case 1:90-cv-05722-RMB-RLE Document 1591 Filed 11/17/14 Page 3 of 3

Hon. Richard M. Berman

November 17, 2014
Page 3
Committee determination and instead consider anew whether the determination of the IM met
the standards of 5 U.S.C. 706(2). Intl Bhd. of Teamsters, 170 F.3d at 142.
Respectfully submitted,
/s/
Barbara S. Jones

CC:
Raymond McGuire
Benjamin H. Torrance
Tara M. LaMorte
James M. Murphy
Dennis M. Walsh
Bridget M. Rohde