Eastern District Judge Sterling Johnson
Eastern District Judge Sterling Johnson (NYLJ/Rick Kopstein)

A judge’s decision to make his staffers inspect a building in an Americans with Disabilities Act suit, and then deny attorneys fees as a result of what was found, has prompted the U.S. Court of Appeals for the Second Circuit to remove him from the case.

The Second Circuit held that Eastern District Judge Sterling Johnson (See Profile) was not entitled to take judicial notice of conditions at a building by conducting his own investigation—without the input and presence of the attorneys— before denying fees to the attorneys as a prevailing party under the act.

It concluded that a new judge should take a fresh look at the fee issue.

“While we do not question the well-respected judge’s impartiality—or even his conclusions— we remand the case to a different district judge,” the circuit said, noting that any judge would find it difficult to put “out of his or her mind” findings they have already made.

Johnson sent his staff out because he was skeptical that plaintiff’s attorneys had accurately represented conditions in buildings or won changes in accessibility sought by their client, Mike Costello, a paraplegic who filed suit challenging access at a Subway restaurant on Flatbush Avenue.

Subway settled the case separately and Costello was ultimately awarded a $14.31 default judgment against Subway’s landlord.

Following the default judgment, Costello’s lawyers B. Bradley Weitz of Aventura, Fla., and Adam Shore of Manhattan, submitted a fee request for $15,172.50.

After hearing back from his staff, Johnson denied the application and criticized the attorneys for filing boilerplate ADA complaints.

In an opinion issued March 28, 2013, Johnson said he questioned whether Costello even existed and said a site visit to a Subway, where it was alleged the restaurant did not have a wheelchair-accessible bathroom, revealed that the Subway had no bathroom at all.

Reached by phone on Friday, Shore said that there was indeed a bathroom on site, but that the Subway store had converted it to an employees-only bathroom.

Johnson questioned Shore at a January 2013 hearing as to why Costello had filed seven other similar actions on the same day as he sued the Subway and the landlord of the building.

Johnson said in Costello v. Flatman, 11 cv 00287, that, from site visits to all eight of the buildings in the eight different lawsuits, “the Court was shocked to see that most if not all of the alleged structural deficiencies preventing access to persons with disabilities still exist.”

The judge also wondered how the attorneys’ fee request could be based on 35.7 hours of work, at $425 an hour, when “all of the pleadings in each of the eight actions filed in this Courthouse were boilerplate and identical.”

But in an unsigned summary order Tuesday, the circuit in Costello v. Flatman, LC, 13-1446 said Johnson was not allowed to take judicial notice of the structural accessibility of the building at issue because judicial notice can be made only of things that are “not subject to reasonable dispute.”

Judges Robert Katzmann (See Profile), Robert Sack (See Profile) and Southern District Judge Jed Rakoff (See Profile) said the problem was the attorneys were deprived the opportunity to contest findings.

“The district court did not provide notice of its investigation or its findings prior to the issuance of its opinion, which deprived Costello of an opportunity to contest the factual findings contained in the order denying attorneys’ fees,” the panel said.

Under Federal Rule of Evidence 201(e), a party is entitled, upon timely notice, “to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed.”

“Thus,” the circuit panel said, “Costello’s claim on appeal that he would have provided some explanation for the status of those facilities undermines the district court’s decision to take judicial notice in this context.”

Judges are permitted to make site visits if they essentially carry their courtroom with them by bringing counsel along. Such visits are a fairly rare occurrence in civil suits. Johnson’s colleague, Judge Jack Weinstein (See Profile), has ventured outside the courthouse, with the parties in tow, more than once.

In 1990, for example, Weinstein visited a New YorkDaily News plant in Brooklyn during a labor dispute to gather information for a restraining order on the scope of a picket line. In 2011, Weinstein and the parties in a property line dispute went to the site “to get a feel for a case and see what it’s really about.”

Johnson said his purpose was to evaluate the facts underlying a fee request he found to be poorly documented and incomplete by attorneys who had filed many ADA actions.

“The only skill or expertise Shore and Weitz have exhibited is the ability to file near-identical pleadings without intermission throughout this country,” he said in an opinion.

Johnson said the ADA “is one of the most significant federal statutes that was born out of this nation’s Civil Rights movement and was enacted to ensure that disabled individuals have equal and safe access to the same benefits and accommodations as every other American.”

“However, a troubling reality is that cases like the one presently before the Court have the effect of being less about ensuring access for those with disabilities and more about lining counsel’s pockets,” he wrote.

On Friday, Shore said he thought Johnson’s opinion was “the most outrageous decision I’ve ever seen. The Second Circuit properly vacated and remanded the case to be assigned to a new judge.”

His client, he said, has moved to Ireland, so, for the judge “to question the existence of my client was inappropriate, unwarranted and absolutely incorrect.”

Shore defended the actions as meritorious and said the fee request would have been properly considered had the judge conducted any inspections with the attorneys present.