Davi v. Hein

• Court: Court of Appeals for the Second Circuit
• Decided: March 24, 2023
• Docket: 21-719
• Status: Unpublished

Opinion

21-719-cv Davi v. Hein UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at 2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 3 on the 24th day of March, two thousand twenty-three. 4 5 PRESENT: 6 ROBERT D. SACK, 7 RAYMOND J. LOHIER, JR., 8 MYRNA PÉREZ, 9 Circuit Judges. 10 _____________________________________ 11 12 Salvatore Davi, 13 14 Plaintiff-Appellee, 15 16 v. No. 21-719-cv 17 18 Michael P. Hein, in his official capacity, Samuel 19 Spitzberg, in his individual and official capacity, 20 Krista Rock, in her individual and official capacity, 21 Jill Shadick, in her official capacity, 22 23 Defendants-Appellants, 24 25 Eric Schwenzfeier, in his individual capacity, 26 Sharon Devine, in her individual capacity, Samuel 27 Roberts, in his individual capacity, Donna Faresta, 28 in her individual capacity, Wilma Brown-Philips, in 29 her individual and official capacity. 30 31 Defendants. 32 _____________________________________ 1 FOR PLAINTIFF-APPELLEE: MICHAEL E. ROSMAN (Michelle A. Scott, on 2 the brief), Center for Individual Rights, 3 Washington, DC. 4 5 6 FOR DEFENDANTS-APPELLANTS: GRACE X. ZHOU, Assistant Solicitor General 7 (Barbara D. Underwood, Solicitor General, 8 Anisha S. Dasgupta, Deputy Solicitor 9 General, Linda S. Fang, Assistant Solicitor 10 General, on the brief), for Letitia James, 11 Attorney General, State of New York, New 12 York, NY. 13 14 15 FOR AMICI CURIAE INSTITUTE FOR EUGENE VOLOKH, First Amendment Amicus 16 FREE SPEECH AND CATO INSTITUTE: Brief Clinic, UCLA School of Law, Los 17 Angeles, CA, ILYA SHAPIRO, TREVOR 18 BURRUS, Cato Institute, Washington, DC, 19 ALAN GURA, Institute for Free Speech, 20 Washington, DC. 21 22 Appeal from an order and permanent injunction of the United States District Court for the

23 Eastern District of New York (Edward R. Korman, Judge).

24 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

25 DECREED that the March 3, 2021 order of the district court is VACATED, the March 24, 2021

26 permanent injunction of the district court is VACATED, and the action is REMANDED for

27 further proceedings consistent with this summary order.

28 The principal issue raised by this appeal is whether the district court misapplied the

29 balancing test articulated in Pickering v. Board of Education, 391 U.S. 563 (1968), when it

30 concluded that the interest of Plaintiff-Appellee Salvatore Davi (“Plaintiff”) in sharing his views

31 on the effectiveness of public assistance programs on Facebook outweighed the interest of his

32 employer, the New York State Office of Temporary and Disability Assistance (“OTDA”), in

33 maintaining its operations and reputation for impartiality. 1 The district court granted partial summary judgment to Plaintiff and imposed a permanent

2 injunction. Davi v. Roberts, 523 F. Supp. 3d 295, 309–10 (E.D.N.Y. 2021), clarified on

3 reconsideration, No. 16-cv-5060 (ERK), 2021 WL 2184873 (E.D.N.Y. May 28, 2021). The

4 district court also granted in part and denied in part OTDA’s motion for summary judgment

5 seeking dismissal of Plaintiff’s claims for money damages against certain OTDA employees sued

6 in their individual capacities. Id. at 311–14.

7 Various OTDA employees (collectively, “Defendants”) now appeal. Because we

8 conclude, irrespective of the ultimate correctness of the conclusions the district court reached with

9 regard to the appropriate legal consequences of OTDA’s treatment of Plaintiff, that the district

10 court misapplied the Pickering test, we vacate the district court’s orders and remand for it to apply

11 the test correctly. We assume the parties’ familiarity with the underlying facts, the procedural

12 history, and the issues on appeal, which we discuss only as necessary to explain our decision.

13 I. Background

14 OTDA is the New York State agency charged with overseeing public assistance programs

15 for low-income individuals and families, including food stamps, disability benefits, and other

16 forms of supplemental income. Individuals who receive an adverse determination regarding their

17 eligibility for public benefits are entitled to challenge the denial or reduction of benefits in a “fair

18 hearing” before a hearing officer employed by OTDA. See N.Y. Soc. Serv. Law § 22.

19 Plaintiff served as an OTDA hearing officer from 2010 to 2016. In October 2015, Plaintiff

20 engaged in a contentious exchange with a former law school classmate in the comment section of

21 a “private” Facebook post in which he was critical of the effectiveness of some public assistance

22 programs. See Special App’x 4–5. The former classmate then sent a letter to the Commissioner

23 of OTDA that appended a copy of the Facebook exchange. That letter suggested that she had also

3 1 sent a copy of the Facebook exchange to Project FAIR, a Legal Aid group that represents

2 individuals in “fair hearings” and operates a help desk at the “fair hearing” site where Plaintiff

3 worked. The former law school classmate later confirmed to OTDA that she had in fact sent a

4 copy of the Facebook exchange to Project FAIR.

5 In response, OTDA began an investigation and removed Plaintiff from the hearing calendar

6 pending the investigation’s outcome. Ultimately, OTDA issued Plaintiff a Notice of Discipline

7 seeking his termination. Pursuant to the collective bargaining agreement between OTDA and

8 Plaintiff’s union, the parties arbitrated the Notice of Discipline. The arbitrator sustained Plaintiff’s

9 pre-arbitration suspension and imposed a six-month suspension without pay. The arbitrator also

10 directed OTDA to offer Plaintiff a different position at the same pay grade that did not include

11 “public-facing” duties. The arbitrator explained that, while he did not find that Plaintiff harbored

12 actual bias, permitting Plaintiff to continue presiding over “fair hearings” would undermine public

13 trust and confidence in OTDA and interfere with its operations because “[a] reasonable person,

14 upon reading the posting would conclude that [Plaintiff] has a negative bias on issues before him.”

15 Joint App’x at 363. OTDA reassigned Plaintiff to a senior attorney position.

16 Plaintiff filed this action seeking monetary and injunctive relief, claiming that his

17 suspension, his transfer to the senior attorney position, and OTDA’s failure to promote him

18 violated his First Amendment rights. Plaintiff and Defendants filed cross-motions for summary

19 judgment. The district court awarded partial summary judgment in favor of Plaintiff and entered

20 a permanent injunction directing OTDA to reinstate him as a hearing officer. The district court

21 also granted in part and denied in part OTDA’s motion for summary judgment seeking dismissal

22 of Plaintiff’s claims for money damages against certain Defendants sued in their individual

23 capacities. Defendants now appeal.

4 1 II. Standard of Review

2 We review a district court’s award of partial summary judgment de novo and affirm only

3 if the record, viewed in the light most favorable to the nonmovant, “shows that there is no genuine

4 dispute as to any material fact and [the movant] is entitled to judgment as a matter of law.” Jackson

5 v. Fed. Express, 766 F.3d 189, 193–94 (2d Cir. 2014).

6 We review a district court’s grant of a permanent injunction for abuse of discretion. Davis

7 v. Shah, 821 F.3d 231, 243 (2d Cir. 2016). A district court abuses its discretion when its decision

8 rests on a clearly erroneous factual finding or an error of law, or the decision cannot be located

9 within the range of permissible decisions. Id.

10 III. Discussion

11 A. The Pickering Test

12 Where, as here, a government employee is suing for violation of his First Amendment

13 rights and the parties agree that his speech is “‘upon a matter of public concern,’ . . . the court’s

14 task is ‘to arrive at a balance between the interests of the citizen, in commenting on matters of

15 public concern and the interest of the State, as an employer, in promoting the efficiency of the

16 public services it performs through its employees.’” Pappas v. Giuliani, 290 F.3d 143, 145–46

17 (2d Cir. 2002) (alteration omitted) (quoting Pickering, 391 U.S. at 568).

18 Under the Pickering test, “the government can prevail if it can show that it reasonably

19 believed that the speech would potentially interfere with or disrupt the government’s activities,

20 and can persuade the court that the potential disruptiveness was sufficient to outweigh the First

21 Amendment value of that speech.” Heil v. Santoro, 147 F.3d 103, 109 (2d Cir. 1998) (citation

22 omitted). We have expressly rejected the notion that the government must show actual disruption

23 to meet its burden. See Anemone v. Metro. Transp. Auth., 629 F.3d 97, 115 (2d Cir. 2011) (a

24 showing of potential future disruption may satisfy the Pickering test if the “employer’s prediction 5 1 of the disruption that such speech will cause is reasonable”); Piscottano v. Murphy, 511 F.3d 247,

2 271 (2d Cir. 2007) (“Evidence that such harms or disruptions have in fact occurred is not

3 necessary.”). Thus, the government “need only make a reasonable determination that the

4 employee’s speech creates the potential for such harms.” Piscottano, 511 F.3d at 271; see also

5 Melzer v. Bd. of Educ., 336 F.3d 185, 197 (2d Cir. 2003) (“Any actual disruption that has already

6 occurred is of course a persuasive argument for the government that it has met its burden, but even

7 a showing of probable future disruption may satisfy the balancing test, so long as such a prediction

8 is reasonable.”). To make this showing, the government may point to the potential impact of the

9 speech on “maintaining efficiency, discipline, and integrity, preventing disruption of operations,

10 and avoiding having the judgment and professionalism of the agency brought into serious

11 disrepute.” Piscottano, 511 F.3d at 271.

12 In assessing the government’s interests in disciplining an employee for his or her speech,

13 courts must afford “substantial weight” to the government’s “reasonable predictions of

14 disruption.” Waters v. Churchill, 511 U.S. 661, 673 (1994); see also Piscottano, 511 F.3d at 271

15 (“[D]eference to the government’s assessment of potential harms to its operations is appropriate

16 when the employer has conducted an objectively reasonable inquiry into the facts . . . and has

17 arrived at a good faith conclusion as to those facts. If the employer meets this test, it may, as a

18 matter of law, impose the discipline it deems reasonable, based on the facts it has found, without

19 incurring liability.” (citation omitted)).

20 In conducting the Pickering test, the “weighing of the competing interests is a matter of

21 law for the court.” Jackler v. Byrne, 658 F.3d 225, 237 (2d Cir. 2011). However, factual disputes

22 as to whether the government had reasonable grounds to fear disruption resulting from the

6 1 employee’s speech may preclude summary judgment. Johnson v. Ganim, 342 F.3d 105, 115 (2d

2 Cir. 2003).

3 While the district court correctly articulated the government’s burden under the Pickering

4 test, we conclude that it incorrectly applied the test because it improperly discounted the potential

5 impact of Plaintiff’s comments—that is, it did not adequately consider whether Defendants had

6 made a showing of likely disruption or reasonably believed, in good faith, that Plaintiff’s speech

7 would cause probable future disruption. The district court did not appear to consider the possibility

8 that Plaintiff’s Facebook comments, if discovered by Project FAIR or members of the general

9 public, would undermine OTDA’s reputation by suggesting that its hearing officers were biased

10 or unprofessional. See City of San Diego v. Roe, 543 U.S. 77, 81 (2004) (government may

11 discipline an employee for speech that “brought the mission of the employer and the

12 professionalism of its officers into serious disrepute”); U.S. Civ. Serv. Comm’n v. Nat’l Ass’n of

13 Letter Carriers, 413 U.S. 548, 564–65 (1973) (government’s significant interest in appearance of

14 impartiality outweighed federal employees’ interest in directly participating in political

15 campaigns); Melzer, 336 F.3d at 198–200 (school teacher’s interest in speech supporting sexual

16 relationships with children outweighed by potential disruption to school’s mission and operations);

17 Castine v. Zurlo, 756 F.3d 171, 175–78 (2d. Cir. 2014) (government’s interest in appearance of

18 fair elections outweighed employee’s interest in running for public office while employed as

19 Election Commissioner). 2

20 The district court also disregarded the risk that Plaintiff’s comments could have increased

21 the number of requests for Plaintiff’s recusal if OTDA had not promptly removed Plaintiff as a

22 hearing officer. Instead, the district court focused principally on the fact that the Facebook

2 Indeed, Plaintiff conceded as much. See Appellee’s Br. at 32 (“A diminution in the reputation of an agency for impartiality would likely lead to a disruption of its operations.”). 7 1 comments appeared not to cause any actual disruption in the short-term. It concluded that because

2 Project FAIR appeared unaware of Plaintiff’s Facebook comments and no one had called for

3 Plaintiff to recuse himself (even though OTDA immediately removed him from the hearing

4 calendar), no actual disruption had occurred, and that consequently, OTDA’s fear of future

5 disruption was unreasonable. Davi, 523 F. Supp. 3d at 309–10. But as discussed above, our case-

6 law teaches that the absence of evidence of actual disruption is not dispositive of whether an

7 employee’s speech created a risk of likely disruption or whether the government’s prediction of

8 future disruption was reasonable. The fact that actual disruption in the form of recusal requests or

9 otherwise did not manifest in the short time that Plaintiff still appeared on the hearing calendar

10 does not necessarily mean that there was no risk of future disruption. Indeed, the arbitrator

11 concluded that there was “no doubt” that applicants for public assistance who were “armed with

12 the information about the [Facebook exchange] would initiate actions which would lead to recusal

13 demands.” Joint App’x at 362; see also Pappas, 290 F.3d at 147 (explaining that a third-party’s

14 finding of a violation of reasonable agency regulation “is important to our upholding of the

15 lawfulness of the Department’s actions”).

16 Moreover, the district court did not consider Plaintiff’s “public-facing” role as a hearing

17 officer and the impact, if any, that the nature of Plaintiff’s former position had on OTDA’s interests

18 in disciplining Plaintiff. See, e.g., McEvoy v. Spencer, 124 F.3d 92, 103 (2d Cir. 1997) (“The more

19 the employee’s job requires confidentiality, policymaking, or public contact, the greater the state’s

20 interest in firing her for expression that offends her employer.” (citation omitted)); Melzer, 336

21 F.3d at 197.

22 In sum, the district court misapplied the Pickering test by failing to properly consider (1)

23 the risk of disruption and OTDA’s assessment of the risk of potential disruption resulting from

8 1 Plaintiff’s Facebook comments; and (2) Plaintiff’s “public-facing” role as a hearing officer. See

2 Pappas, 290 F.3d at 151 (“The employer’s interest in [disciplining] the employee is demonstrated

3 if the employee’s statements create a significant risk of harm, regardless [of] whether that harm

4 actually materializes.”); Piscottano, 511 F.3d at 271 (“Evidence that such harms or disruptions

5 have in fact occurred is not necessary. The employer need only make a reasonable determination

6 that the employee’s speech creates the potential for such harms.”); Jeffries v. Harleston, 52 F.3d

7 9, 12–13 (2d Cir. 1995) (holding that the government’s burden under Pickering is “potential

8 disruptiveness” rather than “actual disruption”). Because the district court’s decision to grant the

9 permanent injunction rested, at least in part, on what we conclude was a misapplication of the

10 Pickering test, we also vacate the permanent injunction. See Springfield Hosp., Inc. v. Guzman,

11 28 F.4th 403, 427 (2d Cir. 2022).

12 B. Qualified Immunity

13 In its motion for summary judgment, OTDA also sought dismissal of Plaintiff’s claims for

14 money damages against several individual Defendants who worked in various capacities at OTDA.

15 The district court granted OTDA’s motion as to all but three of the individual Defendants, Samuel

16 Spitzberg, Eric Schwenzfeier, and Sharon Devine. The district court reasoned that because

17 Plaintiff’s speech did not cause actual disruption and was unlikely to cause disruption, there were

18 questions of fact as to whether these individual Defendants took adverse employment actions

19 against Plaintiff in retaliation for his speech, rather than because they reasonably believed that

20 Plaintiff’s speech would disrupt OTDA’s operations. Accordingly, the district court held that these

21 individual Defendants were not entitled to qualified immunity from claims for money damages at

22 the summary judgment stage. OTDA contends that the district court’s denial of its motion for

23 summary judgment as to these three individual Defendants was erroneous. OTDA further argues

24 that we have jurisdiction over this aspect of the district court’s order. 9 1 On appeal from a district court’s resolution of a request for an injunction, our review

2 “extends to all matters inextricably bound up” with the injunction. Lamar Advert. of Penn, LLC

3 v. Town of Orchard Park, 356 F.3d 365, 371 (2d Cir. 2004) (citation omitted). If a district court

4 resolves a request for an injunction for the “same reasons” that it denies a party’s motion for

5 summary judgment, then we have jurisdiction to review the related summary judgment denial. Id.

6 at 372.

7 Here, the district court issued the permanent injunction and denied OTDA’s motion for

8 summary judgment as to the three individual Defendants for the same reasons—namely, that there

9 was no evidence that Plaintiff’s speech actually disrupted OTDA’s operations and therefore,

10 OTDA’s purported belief that Plaintiff’s speech could disrupt OTDA’s operations was

11 unreasonable and incredible. But for the reasons explained above, we conclude that the district

12 court reached this conclusion by misapplying the Pickering test. Accordingly, we also vacate the

13 part of the district court’s March 3, 2021 order in which the district court denied OTDA’s motion

14 for summary judgment seeking dismissal of the claims for monetary damages against Spitzberg,

15 Schwenzfeier, and Devine.

16 * * *

17 Because this case presents sensitive issues involving both Plaintiff’s exercise of

18 quintessential First Amendment rights and the ability of Defendants to effectively operate an

19 agency whose actions affect the welfare of many New York citizens, we emphasize that we do not

20 intend to suggest or imply in this Order a view as to the conclusion the district court should reach

21 as to the issues raised in this litigation based upon a correct application of the Pickering test, as

22 described above, and other applicable law.

10 1 For the foregoing reasons, we VACATE the order of the district court, and REMAND to

2 the district court for further proceedings consistent with this summary order. We also VACATE

3 the permanent injunction of the district court.

5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk of Court