Despite this conflict of interest, attorneys predict victory for NYC workers fighting in court to get their jobs back
Teachers for Choice
Judge Valerie E. Caproni has been formally asked to disqualify herself from the cases Kane v. de Blasio and Keil v. NYC because her most recent financial disclosures reveal that she owned between $50,000 and $100,000 of Pfizer stock at the end of 2020. On June 9, 2022, three weeks after Judge Caproni’s financial disclosures were submitted, Attorneys Sujata Gibson and Jonathan Nelson filed a motion to disqualify Judge Caproni, calling upon the judge to remove herself over this apparent conflict of interest.
A pdf of the document filed in court today is at the end of this report.
“Federal law prohibits a judge from presiding over a case that could impact her financial holdings” said Attorney Gibson. “As Chief Justice Roberts clarified in his end of year report last year, even small financial conflicts cannot be tolerated. Judge Caproni’s recent financial disclosures reveal that she has substantial financial interests at stake.”
The aforementioned cases before Caproni in New York’s Southern District Federal Court are challenging NYC’s vaccine mandates for educators on constitutional grounds. It has been widely recognized that Covid vaccine mandates directly increase the stock value of the companies that manufacture the vaccine, such as Pfizer. Conversely, Pfizer’s stock has plummeted in response to court rulings enjoining mandates. Caproni’s ownership of Pfizer stock is a glaring conflict of interest and casts reasonable doubt over her past rulings against plaintiffs which were later overturned by the higher court.
Not Caproni’s First Controversy
Caproni’s ascent to the bench was controversial. Before her nomination, she served as General Counsel to the FBI, giving controversial recommendations facilitating unlawful torture of detainees in Guantanamo Bay, and related to the Patriot Act, and surveillance of innocent Americans by the National Security Agency (NSA). She has long clashed with lawmakers who were tasked to have oversight of her and the FBI.
On April 14, 2010, House Judiciary Committee Chair John Conyers, Jr. (D-Mich.) issued the following statement after the Judiciary Subcommittee Hearing on the Report by the Office of Inspector General (IG) of the Department of Justice on the FBI’s Use of Exigent Letters and Other Informal Requests for Telephone Records.
“Today’s hearing showed that the FBI broke the law on telephone records privacy and the General Counsel’s Office, headed by Valerie Caproni, sanctioned it and must face consequences,” said Conyers. “I call upon FBI Director Mueller to take immediate action to punish those who violated the rules, including firing them from the agency. This must include the FBI Office of General Counsel, headed by Valerie Caproni, which the IG testified today had ‘approved [the] continued use’ of exigent letters and ‘provided legal advice that was inconsistent with’ federal law.
This was not a one time or rare occurrence. To quote The Guardian, “Lawmakers’ dissatisfaction with Caproni over surveillance has a long pedigree.” The three following examples were all reported by The Guardian as well:
In 2007, the Justice Department’s inspector general found “widespread and serious misuse of the FBI’s national security letter authorities” to obtain business records, including “unauthorized collection of telephone or internet email transactional records,” as the inspector general, Glenn Fine, summarized in March 2007 House testimony. That finding did not even hint that the collection of phone records in secret was even more widespread.” This happened under Caproni’s watch, which she herself described as a “colossal failure” of the FBI.
In 2008 a Justice Department inspector general’s report into surveillance under the Patriot Act found that Caproni clashed with the Fisa court, a secret court that oversees surveillance for the purposes of foreign intelligence, over the scope of the court’s authority.
In 2013, when Caproni was going through her confirmation process to the federal bench she now sits on, Karen Greenberg, Director of Fordham University’s Center on National Security stated, “For all of her virtues, you have to think twice about putting someone on the court with this level of concern about her role in surveillance abuses. The symbolism of this is significant.”
Caproni has been accused of misinforming Congress and the American People as general counsel for the FBI where she indicated the Patriot Act would not allow for wide scale indiscriminate surveillance of the American population by the National Security Agency (NSA), according to The Guardian. However the Obama Administration eventually admitted it was the Patriot Act which gave them the legal foundation for the NSA to spy on virtually all Americans and retain information even of completely innocent individuals unrelated to any investigation. The only reason this information became known to the public was due to high profile leaks from former NSA computer intelligence consultant Edward Snowden.
In 2004, The ACLU reported that Valerie Caproni, as general counsel for the FBI, withheld documents regarding human rights abuses that occurred at the controversial “Gitmo” Naval Base in Guantanamo Bay despite a court order to release them. Prior to becoming a federal judge Caproni was an executive for the military industrial complex behemoth Northrop Gruman. After working for the SEC Caproni went on to work for Simpson Thacher & Bartlett, specializing in white collar criminal defense according to her wikipedia entry.
Attorney Gibson gave “no comment” on the previous controversies involving Judge Caproni, but did add “whether or not Judge Caproni is in fact biased in this case, the fact that she stands to make or lose substantial money due to her investment in Pfizer creates the appearance of a conflict of interest. To safeguard this case and the public’s confidence in the judiciary, disqualification is required.”
Attorneys are confident they will win in court
Despite this alleged conflict of interest, on the June 7 episode of Good Morning CHD which airs live every weekday morning at 10am ET, Attorney Barry Black predicted that NYC workers fired for declining Covid vaccination will win their federal court battle which Children’s Health Defense (CHD) is sponsoring. Attorney Sujata Gibson agrees with Black. Both are the lead attorneys in two CHD sponsored lawsuits representing NYC workers fired over Cshot mandates. Also on June 7, New York State ended their mandatory Covid testing policy for state employees. This comes just two weeks after the New York State legislative session ended without any new vaccine bills becoming law in 2022.
Attorneys rarely say publicly their opponent is “going to lose” or that “it’s hard to envision a way that we don’t win,” but that is what Attorney Barry Black had to say when he was interviewed on CHD.TV regarding these cases CHD is sponsoring.
CHD has two federal court cases in NYC fighting for workers fired for declining Covid vaccination; Kane v. de Blasio and New Yorkers for Religious Liberty (NYFRL) v. NYC. Back on November 13, 2021, NYC Teachers in the Kane case were granted the right to reapply for their religious exemptions because the process they went through originally was deemed unconstitutional by the Second Circuit (overturning Judge Caproni’s original denial of relief on these grounds). On remand, NYC instituted a new process called the “Citywide Panel” to accept or deny religious exemption appeals. Only one of the 10 defendants in the case had their denial reversed and was placed back to work.
One of the major problems at that time was no one knew what the process was for this new Citywide Panel to make their decisions. The process was effectively a black box, and remained so for more than 6 months.
However on Tuesday, May 31 CHD Attorneys Sujata Gibson and Jonathan Nelson deposed Eric Eichenholtz, Chief Assistant Corporation Counsel working with NYC’s Citywide Panel. In the 7 hours of questioning Eichenholtz revealed the city had no objective criteria to determine if a religious exemption should be accepted or denied.
According to Attorneys Sujata Gibson and Barry Black representing NYC workers, “Eichenholtz makes it abundantly clear that there are no objective criteria upon which to either grant or deny an application. Government here is concededly engaged in nothing but unfettered discretion… Eichenholtz testifies that the “determinations are based on the balancing of a variety of factors, and [required] understanding the particular factors that may have been at play in any particular case because these determinations truly are individualized.” [emphasis added]
When interviewed on CHD.TV Attorney Barry Black stated:
“The government will lose, and that’s why New York City is going to lose here in the end. We feel very very strongly there’s no way around it unless we completely throw out a long line of Supreme Court cases that says otherwise. There’s no way the city has around it.”
While attorneys in the case are extremely confident in the ultimate success of the case, precisely when it will succeed is unknown and unknowable. A first step is ensuring that decision-makers do not have a financial stake in the outcome of the case.