OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge:

I. INTRODUCTION

Beginning in 1998, New York mandated that certain violent felonies be punished by a determinate prison sentence followed by a mandatory parole term known as post-release supervision ("PRS").1 The governing statute did not require that the term of PRS be announced by the judge at sentencing. In thousands of cases where the judge did not impose a PRS term at sentencing, the New York State Department of Correctional Services ("DOCS") imposed PRS upon felons committed to its custody — either during their incarceration or as they were released from prison. The New York State Division of Parole ("DOP") then enforced those PRS terms.

On June 9, 2006, the Second Circuit held in Earley v. Murray that the administrative imposition of PRS by DOCS violates the federal constitutional right to due process.2 In May 2011, plaintiffs brought claims pursuant to section 1983 of Title 42 of the United States Code against current and former officials at DOCS and DOP, on behalf of all persons who were sentenced to prison in New York State for determinate terms that did not include a term of PRS, but who nevertheless were subjected to PRS after the maximum terms of their determinate sentences and after the Earley decision was announced on June 9, 2006.

Over four years later, no trial has yet been held. During these intervening years, defendants have argued (unsuccessfully) for qualified immunity three times — twice before this Court and once before the Second Circuit.3 The third and most recent of these arguments was raised in defendants' May 8, 2015 summary judgment motion. In my August 6, 2015 summary judgment ruling, I once again rejected defendants' claim of qualified immunity and held that defendants Anthony Annucci, Brian Fischer, and Terrence Tracy could be held personally liable as a matter of law.4 On September 2, 2015, I set December 7, 2015 as a firm trial date on the issue of damages. Six days later, on September 8, 2015, defendants filed their second interlocutory appeal — this time from the summary judgment decision — seeking a further delay in this case while the Second Circuit re-reviews defendants' assertions of qualified immunity.5

On September 25, 2015, plaintiffs filed a letter with this Court requesting leave to seek an Order "`certif[ying Defendants' qualified] immunity appeal as `frivolous,' thus, enabling this Court `to retain jurisdiction pending summary disposition of the appeal, and thereby minimiz[ing] disruption of the ongoing proceedings' in the district court."6 At a conference before this Court on October 8, 2015, plaintiffs made their motion and the parties presented their arguments on this issue. For the following reasons, plaintiffs' motion for an Order certifying defendants' interlocutory appeal as frivolous and retaining this Court's jurisdiction pending appeal is GRANTED.

II. BACKGROUND7

A. Administrative Imposition of PRS

In 1998, the New York Legislature enacted Penal Law Section 70.45, which mandated PRS terms for individuals convicted of violent felonies.8 However, judges did not always pronounce PRS terms when sentencing defendants covered by the statute or include PRS terms on their sentence and commitment orders.9 In these circumstances, DOCS calculated terms of PRS and included those terms on inmates' records.10 These records were provided to the DOP.11 DOP enforced the PRS terms as calculated by DOCS.12

On June 9, 2006, the Second Circuit held in Earley that the administrative imposition of PRS by DOCS violates a prisoner's federal constitutional right to due process and that a sentence is "never anything other than" the sentence imposed by the judge at the sentencing hearing and recorded in the order of commitment.13 "The additional provision for post-release supervision added by DOCS is a nullity.... The penalty administratively added by the Department of Corrections was, quite simply, never a part of the sentence."14 Defendants in Earley had argued that Section 70.45 mandated a period of PRS and therefore was necessarily a part of the sentence — that is, any sentence without a term of PRS was illegal.15 The Second Circuit disagreed that the term of PRS was automatic, and stated that, rather than administratively imposing PRS, New York law provided a remedy to correct any "illegal sentence[:] the state may move to have the offending sentence vacated and the defendant resentenced by a judge," consistent with New York Criminal Procedure Law Section 440.40.16

B. Initial Response to Earley

Defendant Anthony Annucci served as DOCS's counsel until October 1, 2007, when he became Executive Deputy Commissioner and counsel.17 In December 2008, he retired as counsel but remained Executive Deputy Commissioner of DOCS until April 2011, when he became Executive Deputy Commissioner of the Department of Corrections and Community Supervision ("DOCCS"), a new entity formed by the merger of DOCS and DOP.18

On July 20, 2006, Annucci sent an email to John Amodeo, counsel to the New York State Office of Court Administration ("OCA").19 In that email, Annucci summarized the holding of Earley and anticipated that "numerous inmates [would] file court actions seeking to eradicate their terms of PRS."20 He recommended that an instructional reminder be sent to all sitting criminal term judges, stating that "[r]ecent case law provides that [PRS] can only be imposed on the record by the sentencing judge at the time sentence is pronounced, and cannot subsequently be added by a clerical staff person employed either with the court system or the correctional system."21 In August 2006, Annucci directed all DOCS Inmate Records Coordinators to inform inmates who questioned their PRS terms that DOCS officials would not follow Earley's holding.22

Defendant Brian Fischer was the Commissioner of DOCS, and then Commissioner of DOCCS, from January 1, 2007 until April 2013.23 Fischer was aware of Earley, and, as Commissioner of DOCS, had the authority to decide whether to change DOCS's policy relating to the imposition of PRS.24 Fischer decided to maintain DOCS's policy of administratively imposing PRS and await further guidance from the legislature and the courts.25

Defendant Terrence Tracy was the chief counsel for DOP from December 1996 through March 2011.26 Tracy was aware of Earley in 2006 and understood that it could have an impact on the population under DOP's jurisdiction.27 Tracy also was aware of DOCS's practice of adding PRS to inmates' sentence calculations where the sentence and commitment orders were silent, and knew that there were individuals under DOP supervision who had not been judicially sentenced to PRS.28 Tracy did not review any files after Earley to determine which parolees were under supervision but had not been judicially sentenced to PRS.29

C. Resentencing Efforts

In early 2007, DOCS — at Annucci's order as authorized by Fischer — began to review inmate files to identify those whose sentence and commitment orders did not indicate PRS, but who nevertheless had PRS added to their sentences.30 Over four to six weeks, DOCS created a database to indicate whether PRS was included in the commitment order, and kept this database updated as new inmates entered DOCS's custody.31 DOCS identified approximately 8,100 individuals whose sentence and commitment orders were silent regarding PRS but whose terms of PRS had been calculated and added by DOCS.32

In April 2008, the New York Court of Appeals decided Garner v. New York State Department of Correctional Services,33 and People v. Sparber,34 which held that New York's procedural law required judicial pronouncement of PRS. DOCS, along with other agencies, including DOP, immediately launched the "Post-Release Supervision Resentencing Initiatives," which sought to resentence individuals in DOCS custody who had not been judicially sentenced to PRS.35 From June 16 through June 20, 2008, DOP reviewed its records to determine which individuals in its custody were being supervised without PRS terms in their sentence and commitment orders.36 On June 30, 2008, the New York State Legislature codified the procedures proposed by DOCS and DOP to remedy PRS problems.37

III. PROCEDURAL HISTORY

A. Defendants' Motion to Dismiss and First Interlocutory Appeal

Plaintiffs brought this case in May 2011. On November 15, 2011, defendants moved to dismiss the Complaint on the grounds that because plaintiffs' constitutional rights were not "clearly established" at the time that those rights were allegedly violated, state officials were entitled to qualified immunity for their actions. On February 10, 2012, this Court held that defendants were not entitled to qualified immunity.38 Defendants filed an interlocutory appeal of that ruling on February 16, 2012, and discovery in this case was stayed pending the Second Circuit's qualified immunity decision.

On June 4, 2013, the Second Circuit affirmed this Court's denial of qualified immunity for "substantially the same reasons stated in [its] reversal of the grant of... immunity in Vincent [v. Yelich]," a case presenting "parallel" claims.39 Defendants then filed a petition for rehearing and rehearing en banc with the Second Circuit. On June 27, 2014, the Second Circuit denied defendants' petition for rehearing, and the mandate affirming this Court's February 10, 2012 decision issued on July 8, 2014. On January 12, 2015, the Supreme Court denied defendants' petition for certiorari in Vincent and this case.40

B. Defendants' Motion for Summary Judgment and Second Interlocutory Appeal

On October 31, 2014, plaintiffs moved for class certification, which this Court granted on January 28, 2015. On May 8, 2015, defendants moved for summary judgment, asserting (for the third time) that they are entitled to qualified immunity, among other arguments. On August 6, 2015, this Court again rejected defendants' qualified immunity claims, holding that: "[b]ased on th[e] evidence, defendants have failed to show that they made reasonable efforts to comply with Earley," and that the record demonstrated that defendants had "actively opposed compliance" with Earley.41 The August 6, 2015 Opinion also held that Annucci, Fischer, and Tracy could be held personally liable as a matter of law and dismissed plaintiffs' claims against all other defendants. As a result, the only triable issue remaining in this case is that of damages against defendants Annucci, Fischer, and Tracy. On September 8, 2015, challenging the August 6, 2015 decision, defendants filed their second interlocutory appeal to the Second Circuit on qualified immunity grounds.

IV. LEGAL STANDARD

"[A]n order rejecting the defense of qualified immunity at either the dismissal stage or the summary judgment stage is... subject to [interlocutory] appeal."42 However, "[a] district court's denial of qualified immunity on a summary judgment motion is an appealable final decision only to the extent the denial turns on an issue of law."43 "Appealable matters involve `disputes about the substance and clarity of pre-existing law,' not about `what occurred or why an action was taken or omitted.'"44 Interlocutory appellate "review is thus limited to the defendants' arguments that the [undisputed] facts [or facts alleged by the plaintiff] show either that he `didn't do it' or that it was objectively reasonable for him to believe that his action did not violate clearly established law."45

As a general rule, "the filing of a notice of appeal ... `divests the district court of its control over those aspects of the case involved in the appeal.'"46 Noting that although "successive pretrial assertions of immunity seem to be a rare occurrence," the Supreme Court has recognized that "[u]ndeniably, the availability of a second appeal affords an opportunity for abuse."47 Accordingly, the Supreme Court contemplated that "`[i]t is well within the supervisory powers of the courts of appeals to establish summary procedures and calendars to weed out frivolous claims'" — such as the practice of a "[d]istrict [c]ourt appropriately certif[ying] petitioner's immunity appeal as `frivolous' ... [which] enables the district court to retain jurisdiction pending summary disposition of the appeal and thereby minimizes disruption of the ongoing proceedings."48

This practice, sometimes referred to as "dual jurisdiction," has been endorsed by all circuits that have considered it.49 For example, in Apostol v. Gallion, Seventh Circuit Judge Frank Easterbrook observed that during frivolous qualified immunity appeals, "memories fade, attorneys' meters tick, judges' schedules become chaotic (to the detriment of litigants in other cases) [, and p]laintiffs' entitlements may be lost or undermined."50 Nevertheless, "[d]efendants may seek to stall because they gain from delay at plaintiffs' expense, an incentive yielding unjustified appeals."51 Thus, analogizing to the double jeopardy context, he found that "[i]f the [interlocutory] claim of immunity is a sham, ... the notice of appeal does not transfer jurisdiction to the court of appeals, and so does not stop the district court in its tracks."52

Although the Second Circuit has not specifically addressed dual jurisdiction over frivolous qualified immunity claims, district courts across this Circuit also have endorsed this approach.53 In so doing in City of New York v. Beretta U.S.A. Corporation, District Judge Jack Weinstein wrote that: "[a] defendant raising a meritless claim of a right not to stand trial cannot be permitted to significantly delay and disrupt the course of the litigation, imperiling both the rights of the plaintiff and the interest in judicial economy...."54

V. APPLICABLE LAW

"Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct."55 The Second Circuit has held that "[a] right is clearly established if (1) the law is defined with reasonable clarity, (2) the Supreme Court or Second Circuit has recognized the right, and (3) a reasonable defendant [would] have understood from the existing law that [his or her] conduct was unlawful."56 "[A] conclusion that the defendant official's conduct was objectively reasonable as a matter of law may be appropriate where there is no dispute as to the material historical facts...."57

VI. DISCUSSION

Defendants' most recent interlocutory appeal is their fourth attempt at asserting qualified immunity in as many years. During that time, this case has been unable to proceed to trial and claims affecting thousands of class members remain pending before this Court. In fact, defendants' first interlocutory appeal on qualified immunity suspended the district court proceedings for nearly two and a half years. Now, defendants seek to further delay this case on the same grounds. For the following reasons, dual jurisdiction is warranted between the district court and Court of Appeals — thereby allowing the litigation to proceed efficiently in the district court while the Court of Appeals re-reviews defendants' previously-rejected qualified immunity assertions.

A. Defendants' Renewed Qualified Immunity Claims Are Frivolous

In Vincent, the Second Circuit held that because Earley clearly established that administrative imposition of PRS violated federal due process guarantees, the district court in that case had erred in ruling that Annucci was entitled to qualified immunity.58 The court also observed that "the very conduct" that was challenged in Vincent was "the conduct that was held unconstitutional in Earley [ ]."59 In so holding, the court noted that further discovery could reveal facts material to the qualified immunity inquiry. Specifically, the court stated that evidence might exist "that could establish that Annucci made reasonable efforts either to seek resentencing [of individuals with administratively-imposed PRS] or to end their unconstitutional imprisonment and excise PRS from their prison records."60 Therefore, the court remanded the case to the district court to develop the record "as to the objective reasonableness of Annucci's efforts to relieve [the individuals] of the burdens of those unlawfully imposed terms after he knew it had been ruled that the imposition violated federal law."61 In doing so, the court observed:

Seizing upon Vincent's observation that a more developed record on remand could alter the availability of qualified immunity,63 defendants in this case argue that their instant interlocutory appeal is not frivolous because "it is at least debatable" whether their post-Earley "efforts between 2006 and 2008 that w[ere] not considered by the Second Circuit in the prior appeal" were "sufficiently reasonable to entitle defendants to qualified immunity."64 The undisputed record in this case, however, leaves no room for debate. Defendants' appeal is frivolous because in no way could their post-Earley conduct be described as the "objective[ly] reasonable[]... efforts to relieve [class members] of the burdens of those unlawfully imposed terms" contemplated by Vincent.65 Rather, as discussed below, despite defendants' admitted awareness of Earley, they made institutional decisions to ignore, and in fact obstruct, this law — including by informing inmates that DOCS would not follow Earley's holding, opposing Earley's holding when individuals sought relief from administratively-imposed PRS, continuing to administratively impose PRS, and failing to seek resentencing or expungement of illegal PRS sentences of which they were aware.

1. Defendants' Refusal to Comply with Earley Was Not Objectively Reasonable

After Vincent, this Court undertook a rigorous analysis on summary judgment of whether defendants had, in fact, made objectively reasonable efforts to comply with Earley.66 The undisputed record demonstrated, however, that defendants had not only failed to make reasonable compliance efforts, but also actively opposed compliance with that ruling. Specifically, the Opinion observed that between 2006 and 2008,

A number of these findings were confirmed during the oral argument on this motion. In particular, defendants conceded that their "first line" position was that "Earley was wrongly decided"68 so that in New York

Defendants also conceded that, after Earley, "DOCS did continue the policy" of administratively imposing PRS.70

Defendants' instant appeal is perhaps unlike most qualified immunity appeals in that Vincent offers specific guidance as to what would render defendants' post-Earley conduct objectively reasonable, and the undisputed record in this case shows that defendants failed to meet these post-Earley obligations. In light of defendants' explicit refusal to comply with Earley, their renewed interlocutory appeal is patently frivolous and should not delay this litigation any further.71

2. Defendants' Qualified Immunity Appeal Presents No Legal Questions

Relatedly, defendants' appeal is frivolous given that their renewed qualified immunity claims do not present any legal questions for appellate review. The operative complaints in Vincent and this case allege no efforts by defendants to comply with Earley. Accepting these allegations as true on appeal from a motion to dismiss, the Second Circuit held in Vincent that Earley clearly established that administratively-imposed PRS violated due process and denied qualified immunity because "the present record [in Vincent] d[id] not indicate that [defendants] took prompt action in light of Earley."72 In other words, Vincent held that qualified immunity is unavailable absent evidence of "prompt action" to comply with Earley.73

Thus, after Vincent, the only remaining qualified immunity question in this case was whether defendants could produce evidence that they had taken objectively reasonable steps — i.e., "prompt action" — to comply with Earley. Accordingly, the undisputed summary judgment record demonstrates not only that defendants failed to take any such "prompt action" but also that they ignored and actively opposed Earley. This record forecloses defendants' qualified immunity defense. Because Vincent found it unreasonable for defendants not to undertake any post-Earley compliance efforts, defendants' recalcitrant response to Earley could not have been an objectively reasonable effort at complying with that ruling.

3. Defendants' Remaining Arguments Are Unavailing

To justify their response to Earley, defendants argue that they were blocked — practically and authoritatively — from referring individuals to courts for resentencing or excising unconstitutionally-imposed PRS sentences themselves. Defendants' reasoning, however, misconstrues their obligations after Earley and does not render their chosen strategy — that of ignoring and opposing Earley — objectively reasonable.

First, although defendants admit that they did not attempt to refer individuals to the courts for resentencing, they assert that "[i]t was objectively reasonable for DOCS and [DOP], in the face of judges and district attorneys who [weren't] ... entertain[ing] resentencing, to have not made ... referrals to the sentencing courts to get ... people resentenced."74 Even assuming that some district attorneys and some state courts were unwilling to follow Earley,75 defendants had the ability — and indeed, as Vincent observed, the obligation — to bring unconstitutionally-imposed sentences to the judiciary's attention.76 Nothing prohibited defendants from taking this initial step. In fact, defendants had the necessary information to do this — as evidenced by the database DOCS created in 2007 to identify those 8,100 individuals within DOCS custody whose PRS sentences had been nullified by Earley.77 Despite the existence of this database, defendants did not produce this information until after the state courts decided Garner and Sparber in late 2008 — instead requiring affected individuals to file for PRS relief themselves (and even in those cases, continuing to oppose Earley before the courts by arguing "that PRS was automatic").78

Second, defendants argue that they were unable to release individuals from unconstitutionally-imposed PRS until Garner and Sparber clarified their authority to do so in 2008.79 Again, this argument misstates defendants' post-Earley obligations. As part of the executive branch, defendants have a non-discretionary obligation to obey the law. Accordingly, after the Second Circuit's decision Earley, administratively-imposed PRS sentences became "nullit[ies]" and defendants had no authority to hold individuals in violation of their clearly-established constitutional right to sentencing by a judge.80 As such, defendants were not required to wait until the Garner and Sparber decisions before releasing individuals from administrative PRS — Earley itself stripped defendants of any authority to continue holding those individuals. This is further supported by Vincent, which observed that an individual "who was then in prison for violating the administratively imposed PRS terms, was entitled, unless he was resentenced, to be released from DOCS's custody."81 In fact, Vincent explicitly rejected a magistrate's finding that "`DOCS had no authority ... to seek'" to have an [individual] resentenced, or to "`unilaterally revoke the PRS'" it had administratively imposed, until the law was changed in ... 2008."82

Third, defendants claim that "even if they felt they could excise [PRS],"83 it was impossible for them to review the majority of sentences to ascertain whether "the judicially imposed sentence" included PRS.84 This argument is entirely unconvincing, given that the administrative imposition of PRS required defendants to do just this (and that defendants apparently had sufficient information to compile the 2007 DOCS database identifying at least 8,100 individuals whose sentences were implicated by Earley).85 In fact, defendants concede that "DOCS is bound by the four corners of the sentencing commitment" issued by the judge.86 Thus, for each individual, the sentencing commitment either did or did not include "judicially imposed" PRS. If the sentencing commitment did not include this information, then defendants would have known that there was no judicially-imposed PRS and that the individual could not be held lawfully once the sentence of incarceration was complete.

B. The Interests of Justice and Judicial Economy Favor Dual Jurisdiction

Furthermore, as the court recognized in Apostol, divesting the district court of jurisdiction pending a frivolous qualified immunity appeal "protects the interests of the defendants claiming qualified immunity, ... [but] may injure the legitimate interests of other litigants and the judicial system."87 Given the particular constitutional importance, widespread impact, and protracted history of this case, dual jurisdiction strikes the appropriate balance between the interests of plaintiffs, defendants, and the judiciary.

The delays in this case have caused substantial hardship to plaintiffs (and, needless to say, have been caused by defendants' relentless efforts to prevail on qualified immunity). For over four years, thousands of class members have waited for their due process claims to be adjudicated — additional postponements will only exacerbate these harms.

A critical factor weighing in favor of dual jurisdiction, however, is the uniquely minimal burden that would be placed on defendants from allowing this case to proceed to trial while the Second Circuit considers the qualified immunity appeal. Because of the advanced procedural posture of this case, the only triable issue is that of damages against Annucci, Fischer, and Tracy. As a result, the trial will be relatively succinct and defendants will, if necessary, be entitled to an immediate appeal from that final judgment. In the event that the Second Circuit finds for defendants on their interlocutory appeal, not only would that decision resolve the qualified immunity issue but it also would overturn any final judgment that had been entered against defendants. Absent dual jurisdiction, defendants' frivolous interlocutory appeal would derail this case yet again. In contrast, allowing this Court to retain jurisdiction pending the appeal will enable efficient resolution at the trial court and appellate levels — an approach that promotes judicial economy as well as the interests of justice in a case where both have been in short supply.

VII. CONCLUSION

For the foregoing reasons, plaintiffs' motion for an Order certifying defendants' interlocutory appeal as frivolous and retaining this Court's jurisdiction pending the appeal is GRANTED.

SO ORDERED.