NY Lawyer's Defamation Claims
 Against Federal Judges Dismissed

By Mark Fass
New York Law Journal
New York Lawyer
June 17, 2008

A federal judge has thrown out a Brooklyn attorney's pro se libel action against Judge Robert A. Katzmann of the U.S. Court of Appeals for the Second Circuit.

Eastern District Judge Dora L. Irizarry held that the supposedly defamatory statements Judge 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 Judge 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, Judge Irizarry threw out Ms. McHenry's case against Eastern District Judge David G. Trager, the trial judge who rejected Ms. McHenry's discrimination claim.

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

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

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

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

Judge 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, Judge 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."

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

Judge 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,'" Judge Irizarry wrote.

Ms. 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 Judges Trager and Katzmann "weren't good on the law, the precedent or the facts," Ms. 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's Office appeared on behalf of Judge Trager and Judge Katzmann, respectively. An office spokesman declined to comment.

Index to Articles]