Attorney Who Lost Employment Bias Case Sees Libel Case Against 2nd Circuit Judge Thrown Out

A federal judge has thrown out a New York attorney's pro se libel action against 2nd Circuit Judge Robert A. Katzmann, finding that the statements Katzmann made in rejecting plaintiff Loretta McHenry's appeal were protected by judicial immunity. In January, Eastern District of New York Judge Dora L. Irizarry threw out another libel case brought by McHenry against Eastern District Judge David G. Trager, the trial judge who rejected McHenry's bias claim against her former employer, One Beacon Insurance.

Mark Fass

New York Law Journal

2008-06-17 12:00:00 AM
A federal judge has thrown out a Brooklyn, N.Y., attorney's pro se libel action against Judge Robert A. Katzmann of the 2nd U.S. Circuit Court of Appeals.

Eastern District of New York Judge Dora L. Irizarry held that the supposedly defamatory statements Katzmann made in rejecting the plaintiff's appeal in an employment discrimination case, which the plaintiff had likened to the judicial "equivalent of an assault," were protected by the absolute immunity afforded to judicial acts.

The decision marks the second time this year that Irizarry has dismissed a libel action filed by the plaintiff, Loretta McHenry, against a federal judge. Both suits stemmed from the plaintiff's unsuccessful discrimination suit against her former employer, One Beacon Insurance.

In January, Irizarry threw out McHenry's case against Eastern District of New York Judge David G. Trager, the trial judge who rejected McHenry's discrimination claim.

Yesterday, Irizarry dismissed McHenry's libel action against Katzmann, finding her claim in McHenry v. Katzmann, 08-cv-2249, to be "frivolous."

The details of the underlying case are sketchy, as neither Trager's decision rejecting the lawyer's employment discrimination claim nor Katzmann's affirmance are available on Westlaw. According to Westlaw, the 2nd Circuit opinion was "deleted at the request of the Court." Much can be gleaned about both decisions, however, from McHenry's complaints, which are in parts identical.

Both complaints rely heavily on broad, conclusory allegations and legally tangential details.

In both complaints, for example, McHenry describes herself as "a 42 year old heterosexual white Irish Catholic female, single, never been married, with no children, 5'4 with short blonde colored hair, light skin and blue eyes."

Trager, she states, is a "tall heavy set white male in his late 60s early 70s with male pattern baldness"; Katzmann is a "white male born 1953, short medium skin, brown eyes and very dark short brown hair."

McHenry worked as a personal injury defense attorney from 1990 until 2003, when she was terminated by One Beacon Insurance for "negative and disruptive" behavior, according to her complaints. She then filed suit against One Beacon, alleging among other misdeeds sexual harassment and retaliation.

In August 2005, Trager granted the defense summary judgment. In February 2007, Katzmann affirmed. In both cases, McHenry argued in her two suits, the judges defamed her.

Trager, for example, "slanted the facts to find in the former employer's favor contrary to the evidence and law. In the process he caused substantial harm to my reputation."

For his part, Katzmann "acted with malice aforethought to put the Federal Court 'seal of approval' on the false statements One Beacon submitted knowing that in Publishing his 'conclusions' Katzmann encouraged the repetition of false libel per se statements, giving free reign to all the Libel Per Se Statements made by One Beacon employees."

McHenry's complaint extended to 22 pages, with more than a dozen other claims against Katzmann, all arising from his opinion.

Irizarry dismissed the case sua sponte, citing judicial immunity.

"Nothing in plaintiff's complaint suggests that Judge Katzmann took nonjudicial actions against plaintiff or that his judicial actions were taken in the 'complete absence of jurisdiction,'" Irizarry wrote.

McHenry, a 1990 graduate of Brooklyn Law School, said she is considering moving to vacate or appeal to the U.S. Supreme Court.

The decisions of Trager and Katzmann "weren't good on the law, the precedent or the facts," McHenry said. "If they were being just plain-old, good regular judges, I would have gotten a trial."

Varuni Nelson and Kenneth A. Stahl of the U.S. Attorney for the Eastern District of New York's Office appeared on behalf of Trager and Katzmann, respectively. An office spokesman declined to comment.