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Federal court strikes down New York law

Rochester Business Journal
August 10, 2012

A federal appeals court struck down a New York law last month that had denied licenses to some foreign pharmacists despite their status as legal U.S. residents.
 
A panel of the 2nd U.S. Circuit Court of Appeals declared the state law unconstitutional.
 
The licensing measure, which has been on the state's books for several decades, violated two constitutional provisions, the three-judge panel ruled: the Equal Protection Clause, which ensures equal protection under the law to U.S. residents, including non-citizens; and the Supremacy Clause, which says state statutes can-not trump valid federal law.
 
Rochester attorneys Margaret Catillaz and Jeffrey Wadsworth, both of Harter Secrest & Emery LLP, represent one of the 32 non-citizen pharmacists who sued to get the law overturned.
 
Catillaz, an immigration lawyer, and Wadsworth, a litigator, had earlier won a District Court ruling in a similar case that set the stage for Paidi v. Mills, the case in which the panel ruled.
 
The 2nd Circuit ruling comes at a time when protectionist sentiments have spurred states, including Arizona and Georgia, to pass laws-heavily criticized as discriminatory and unduly harsh by immigrant groups-meant in part to keep illegal immigrants from competing for jobs.
 
In the New York pharmacist dispute, Catillaz and Wadsworth represent Alanna Farrell, a Trinidad and Tobago citizen employed as a pharmacist by St. Luke's Roosevelt Hospital in the Bronx.
 
A graduate of the Howard University College of Pharmacy in Washington, D.C., Farrell began working under a student visa in a pharmacy residency in a New York City hospital in 2005. She was hired by St. Luke's in 2006. Unable to obtain a state license, she stood to lose her job two years later.
 
Farrell met the state's professional requirements for licensure. She also had a visa that under federal law would let her stay in the country and work for the next six years or longer as a professional in a specialty occupation. She fell short only in failing to meet the provision requiring non-citizen licensees to be permanent residents or U.S. citizens.
 
An add-on to the law had for a time let the state Board of Regents offer three-year extensions to affected pharmacists. The state Legislature let that provision lapse in 2008.
 
Initially retained by several pharmacists who, like Farrell, feared imminent loss of their jobs when the extension provision lapsed, Manhattan attorney Krishnan Chittur of Chittur and Associates P.C. started working on a constitutional challenge to the state law. He now represents the first named plaintiff, Rao Paidi, and 30 other pharmacists.
 
Paidi v. Mills targets the agency responsible for licensing in New York, the state Education Department. It also personally names former Education Commissioner Richard Mills and the Board of Regents.
 
While the case was in progress, Chittur said, he was contacted by state lawyers who advised him to put the dispute on hold pending the outcome of Kirk v. Mills, a similar case that was then on appeal.
 
A Canadian citizen and veterinarian, Simon Kirk was represented by Catillaz and Wadsworth. Kirk had worked for a Pittsford animal clinic since landing an internship there in 2002. Like the pharmacists, he stood to lose his job over the licensing issue.
 
Kirk's case had been in progress for five months in May 2008 when Paidi v. Mills was filed. In a June 2008 ruling, District Judge Charles Siragusa found the veterinarian law to be unconstitutional, a decision that piqued the interest of immigration lawyers nationally.
 
"I got calls from all over," said Catillaz, a past president of the American Immigration Lawyers Association.
 
A month after the ruling came down, the state appealed to the 2nd Circuit.
 
While the Kirk case was under appeal and the Paidi case was on hold, Chittur said, non-citizen pharmacists who could be affected by the licensure flap got a temporary reprieve under court order-still in effect-barring the state from taking any licensing action against them pending a final disposition of the Paidi case.
 
After conferring with Catillaz and Wadsworth, Chittur filed a friend-of-the-court brief in the Kirk case appeal. In 2009, with the appeal still undecided, Kirk became a permanent U.S. resident. The 2nd Circuit dropped the case, declaring the matter moot.
 
"When Kirk was mooted, I felt strongly that we would have prevailed," Wadsworth said.
 
He and Catillaz got a second crack when Farrell, impressed by their victory in the Kirk case, hired the Rochester lawyers. The case they filed in May 2009 on her behalf was folded into Paidi v. Mills in 2010.
 
In a September 2010 order, then-District Judge Richard Holwell directed the state to stop imposing licensing restrictions on non-citizen pharmacists. The state's appeal of that order led to the 2nd Circuit ruling last month.
 
Lawyers for the state have said they are weighing whether they will ask the Supreme Court to further review the matter, but as of this week they had not said whether they would pursue such action, Wadsworth said.
 
The state would not comment on the case, said Michelle Duffy, a spokeswoman for Attorney General Eric Schneiderman.
 
Among those cheering the July 10 ruling is the Pharmacists Society of the State of New York, an Albany-based group billing itself as the state's largest pharmacist trade association.
 
When the issue arose some four years ago, New York had been chronically short of pharmacists for years, said Selig Corman, the group's director of professional affairs. Facing possible licensing woes, many foreign pharmacy students who studied in New York and might have helped fill gaps here after graduation chose to go elsewhere, exacerbating the shortfall.
 
In the past year or so, those pressures have eased dramatically, Corman said. Hospitals are no longer offering sign-on bonuses to pharmacy graduates, and competition for open slots is heavy. Still, he added, the society believes protectionism ill serves the profession and consumers.
 
"The more qualified people there are in the job pool, the better off everyone will be," Corman said.
 
A point noted but not elaborated on by the appellate panel in Paidi v. Mills is that laws potentially affecting other foreign professionals, including physicians, midwives, engineers, dental technicians, massage therapists, land surveyors, chiropractors, veterinarians, veterinary technicians and massage therapists, remain on New York's books.

8/10/12 (c) 2012 Rochester Business Journal. To obtain permission to reprint this article, call 585-546-8303 or email service@rbj.net.


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