October 9, 2017

Seeking relief from judgment from a tribunal other than the one that handed down the judgment


Seeking relief from judgment from a tribunal other than the one that handed down the judgment
Cherry v. New York City Department of Correction, USCA, 2nd Circuit, Docket No. 16-3725

Bernard Cherry was terminated from his position with the NYC Department of Corrections [DOC] after an administrative law judge [ALJ] at the Office of Administrative Trials and Hearings [OATH] found him guilty of excessive absenteeism and failure to comply with orders. Cherry appealed the ALJ's findings and recommendation and the Appellate Division on the New York State Supreme Court affirmed the administrative action resulting in Cherry's dismissal from his position.

Cherry subsequently sued New York City, DOC, and several officials, asserting claims for employment discrimination in federal district court. The federal district court dismissed that case on timeliness grounds, and Second Circuit Court of Appeals affirmed the lower court's ruling. Cherry, proceeding pro se,* next filed this action under Federal Rules of Civil Procedure 60(d)(1) and (3), alleging that DOC committed fraud on the court by submitting forged documents during the OATH hearing.

Although the district court interpreted Cherry’s complaint as a request to vacate the judgment in Cherry’s earlier employment discrimination suit in the instant appeal Cherry subsequently clarified that "he was actually asking the district court to vacate the OATH decision."

The Second Circuit, noting that it must "construe pro se complaints “liberally and interpret them ‘to raise the strongest arguments that they suggest," said that "Cherry explicitly states that he was requesting the district court to vacate the judgment of the state administrative law judge."

Accordingly, the Second Circuit said that it lacked subject matter jurisdiction. and dismissed Cherry's action seeking to vacate the ALJ's determination.

The court explained that the plaintiff bears the burden of establishing subject matter jurisdiction over his own claims. Here, said the Circuit Court of Appeals, there is no diversity jurisdiction under 28 U.S.C. §1332 nor is there federal question jurisdiction under 28 U.S.C. §1331.

Cherry cited  Federal Rules of Civil Procedure 60(d)(1) and (3) in his brief in support of his petition but the Second Circuit, citing Cresswell v. Sullivan & Cromwell, 922 F.2d 60, pointed out that "it is well-settled that the Federal Rules of Civil Procedure 'do not provide an independent ground for subject matter jurisdiction over an action for which there is no other basis for jurisdiction.'”**

Noting that district court had correctly refused to exercise ancillary jurisdiction over Cherry’s claims as Cherry sought relief from judgment from a tribunal different than the one that handed down the judgment, the Circuit Court said that there is no independent ground for jurisdiction in contrast to “an independent action brought in the same court as the original lawsuit” which does not “require an independent basis for jurisdiction.

* A Latin phrase meaning "for oneself" or "on one's own behalf".

** In addition, the Circuit Court said that were it to construe Cherry's claim under 42 U.S.C. §1983 [the Civil Rights statute], such an action would be untimely as the otherwise relevant three-year statute of limitations had elapsed.

The decision is posted on the Internet at:


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