24-3080 Long v. Byrne
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term, 2024
Argued: May 16, 2025 Decided: July 30, 2025
Docket No. 24-3080-cv
SAMANTHA LONG,
Plaintiff-Appellant,
— v. —
JESSICA BYRNE, TOWN OF NEW LEBANON,
Defendants-Appellees.
B e f o r e:
LYNCH, PARK, and ROBINSON, Circuit Judges.
__________________
Plaintiff-appellant Samantha Long, who previously served as the Clerk of the Town Justice Court for the Town of New Lebanon, sues defendants-appellees the Town of New Lebanon and Jessica Byrne, a former Town Justice, alleging that they unlawfully fired her because she cooperated with an investigation by the New York State Commission on Judicial Conduct (the “Commission”) into Byrne’s suspected judicial misconduct, in violation of Long’s First Amendment rights and her rights under New York State Civil Service Law § 75-b. More specifically, Long alleges that she was fired because she, upon request, provided specific case files to a representative of the Commission, and because, after Byrne learned about the Commission’s investigation, Long refused to discuss the investigation with Byrne. Long now appeals the Northern District of New York’s (Mae A. D’Agostino, J.) dismissal of her claims. We vacate the district court’s judgment and remand for further proceedings. Long’s complaint adequately alleged that when she cooperated with the Commission’s investigation she acted in her capacity as a private citizen, not pursuant to her work responsibilities as Court Clerk.
PHILLIP G. STECK, Cooper Erving & Savage LLP, Albany, NY, for Plaintiff-Appellant.
STEPHEN M. GROUDINE, Murphy Burns Groudine LLP, Loudonville, NY, for Jessica Byrne, Defendant-Appellee.
EARL T. REDDING, Roemer Wallens Gold & Mineaux LLP, Albany, NY, for The Town of New Lebanon, Defendant-Appellee.
GERARD E. LYNCH, Circuit Judge:
Plaintiff-appellant, Samantha Long, filed a lawsuit in the United States
District Court for the Northern District of New York against defendants-
appellees the Town of New Lebanon and Jessica Byrne, a former Town Justice,
(the “defendants”) alleging violations of Long’s First Amendment free speech
2 rights and her rights under New York State Civil Service Law § 75-b, which
protects whistleblowers from retaliation in certain circumstances. She asserts that
defendants unlawfully terminated her employment as the Clerk of the Town
Justice Court in retaliation for her cooperation with an investigation into Byrne’s
purported misconduct by the New York State Commission on Judicial Conduct
(the “Commission”).
The district court (Mae A. D’Agostino, J.) dismissed Long’s claims for
failure to state a claim, concluding that the First Amendment did not protect her
conduct because her actions “formed part of her official duties and did not
constitute protected citizen speech.” Long v. Byrne, No. 24-cv-466, 2024 WL
4710695, at *5 (N.D.N.Y. Nov. 6, 2024). The court then declined to exercise
supplemental jurisdiction over Long’s Section 75-b claim. We disagree with the
court’s dismissal of Long’s claims. Accordingly, we VACATE the judgment of the
district court and REMAND the case for further proceedings.
BACKGROUND
I. Factual Background
We take the following facts from the amended complaint, which we accept
3 as true, and we draw all reasonable inferences in Long’s favor. See, e.g., Collymore
v. Myers, 74 F.4th 22, 30 (2d Cir. 2023).
In May 2019, Long was appointed as the Clerk of the New Lebanon Town
Justice Court by the New Lebanon Town Board, with the advice and consent of
the Town Justices. Until she was terminated from that position in early 2024,
Long was consistently given “high praise” for her work as Court Clerk, including
by Byrne, Appellant’s App’x 23–24 at ¶¶ 10–12, who directed the “means and
manner” of her employment, id. 29 at ¶ 50. At one point, Byrne purportedly
stated that Long was “the best Court Clerk she ever had,” and, in one of her
performance evaluations, submitted a perfect score for Long. Id. 23–24 at ¶¶
11–12.
The events underlying the unraveling of Long’s tenure as Court Clerk
began during the summer of 2023. In July of that year, a Commission
representative arrived at Long’s office and requested “case files on [four]
individuals.” Id. 24 at ¶ 15. An anonymous judicial ethics complaint had been
filed against Byrne, and the Commission’s representative sought those case files
because they were connected to its investigation into Byrne’s purported
misconduct as Town Justice. The representative advised Long that “[Long] was
4 not permitted to discuss the investigation with anyone, including . . . Byrne.” Id.
at ¶ 16.
Long “turned over all the material” that the representative requested. Id. at
¶ 15. She asserts that although she was not an employee of the Commission and
her duties as the Court Clerk did not “require her to report to the Commission,”
id. 27 at ¶ 37, she cooperated with the representative’s request in an “effort to
comply with the laws, rules, and regulations of the [Commission],” id. 29–30 at ¶
55. In fact, Long asserts that she was “required by law” to comply with the
Commission’s requests. Id. 24 at ¶ 15. She further alleges that in providing the
requested documents, she was “acting in the same manner as any private citizen
to whom the Commission . . . inquired.” Id. 28 at ¶ 38.
A few months later in late November, Byrne confronted Long about the
Commission’s investigation. Long alleges that Byrne “came into the office angry”
because Long “did not tell her who [had] filed the complaint against her.” Id. 24
at ¶ 17. Long responded that she did not know the complainant’s identity, and
that, in any event, she had been “advised by the representative of the
Commission not to speak of it to anyone[,] including . . . Byrne.” Id. Long also
asserts that she was not required to respond to Byrne because “her job duties [did
5 not] require her to advise a Town Justice as to the requirements of the
Commission”; knowledge of those requirements was instead Byrne’s
responsibility. Id. 27 at ¶ 37. Shortly thereafter, at Byrne’s impetus, the Town
Board terminated Long’s employment as Court Clerk.1
II. Procedural History
On April 3, 2024, Long sued defendants seeking reinstatement and/or
damages. She asserts that defendants violated her First Amendment rights and
her rights under New York State Civil Service Law § 75-b when they unlawfully
fired her in retaliation for her cooperation with the Commission’s investigation.
On defendants’ motion, the district court dismissed Long’s complaint. See Long,
2024 WL 4710695, at *1, *6–7.
On the First Amendment retaliation claim, the district court concluded that
1 Long’s complaint also includes other allegations related to Byrne’s conduct. For example, Long alleges that the New York State Police accused Byrne of check fraud. Typically, at the beginning of each month, Long would write “end of the month checks” for Justice Byrne and Justice Nevers, one of the other Town Justices. Appellant App’x 24 at ¶¶ 18–19. After reviewing the checks that Long wrote at the beginning of December, the Town Supervisor suspected that Judge Nevers’s signature was forged. The Town Supervisor noticed that Judge Nevers’s signature appeared abnormal and confirmed with Judge Nevers’s wife that, due to a recent stroke, he was unable to sign documents. After the New York State police accused Byrne of check fraud, Byrne directed Long to stop issuing the end of month checks. Those allegations are tangential to Long’s appeal, and we need not discuss them further.
6 Long did not engage in constitutionally protected speech. See id. at *4–6. To reach
that conclusion, the court applied the two-step Garcetti framework, which courts
use to determine whether a public employee’s speech is protected. That
framework requires courts to assess: (1) “whether the employee spoke as a citizen
on a matter of public concern,” and if so, (2) “whether the relevant government
entity had an adequate justification for treating the employee differently from
any other member of the general public.” Garcetti v. Ceballos, 547 U.S. 410, 418
(2006). The court reached only the first part of the first prong of the Garcetti
inquiry, concluding that Long’s conduct was not protected because she was
acting pursuant to “her official duties,” and therefore acted as an employee and
not as a citizen. Long, 2024 WL 4710695, at *6 n.3
More specifically, as to Long’s production of documents, the court
explained that the “sole reason that the Commission’s representative approached
[Long]—at [her] office—was because, as Town Court Clerk, she had access to the
case file documents at issue.” Id. at *5. The court emphasized that Long did “not
allege that she sought out the Commission to report misconduct as a private
citizen,” but that instead the Commission’s representative came to her at her
office. Id. Moreover, it pointed out that Long did not “allege that she provided
7 the documents out of a personal sense of obligation to further a matter of public
concern, but merely because it was required by law.” Id. (internal quotation
marks omitted).
As it relates to Long’s refusal to answer Byrne’s inquiries about the
Commission’s investigation, the district court reasoned similarly. The court
explained that Long’s refusal did not constitute protected citizen speech because
“[a]ll of [her] alleged speech occurred at work, during work hours, concerning
matters solely within the province of her responsibilities as Town Court Clerk.”
Id.
Finally, because there were no surviving federal-law claims, the district
court declined to exercise supplemental jurisdiction over Long’s Section 75-b
claim. Id. at *6. Long now appeals, arguing that the district court erred in
concluding that she acted pursuant to her official job duties when she produced
documents that the Commission requested and refused to answer Byrne’s
questions about the Commission’s investigation.
DISCUSSION
I. Standard of Review
“We review de novo the grant of a Rule 12(b)(6) motion to dismiss for
8 failure to state a claim, accepting all factual allegations as true and drawing all
reasonable inferences in favor of the plaintiff.” Montero v. City of Yonkers, 890 F.3d
386, 394 (2d Cir. 2018) (internal quotation marks omitted). “The complaint’s
allegations, however[,] must be plausible on their face, a standard that asks for
more than a sheer possibility that a defendant has acted unlawfully.” Id.
(alterations adopted) (internal quotation marks omitted). As long as “the plaintiff
pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged,” then the complaint will
survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
II. First Amendment Retaliation
A. Legal Standard
To state a First Amendment retaliation claim, a plaintiff must plausibly
allege that: “(1) [her] speech or conduct was protected by the First Amendment;
(2) the defendant took an adverse action against [her]; and (3) there was a causal
connection between [the] adverse action and the protected speech.” Cox v.
Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011). The district court
in this case addressed only whether Long’s speech was protected by the First
Amendment. We therefore do not reach the latter two elements of her First
9 Amendment retaliation claim.
When asserting a First Amendment retaliation claim, public employees,
like Long, face greater burdens than private citizens to demonstrate that their
speech is protected by the First Amendment, because “[t]he government as
employer . . . has far broader powers [to restrict speech] than does the
government as sovereign.” Garcetti, 547 U.S. at 418 (internal quotation marks
omitted). That’s because “[g]overnment employers, like private employers, need
a significant degree of control over their employees’ words and actions” to
ensure “the efficient provision of public services.” Id. “When someone who is
paid a salary so that she will contribute to an agency’s effective operation begins
to do or say things that detract from the agency’s effective operation, the
government employer must have some power to restrain her. . . . [because the
government employer] ha[s] a job to do,” and that job will be made significantly
more difficult, if not impossible, if the government employer is unable to
remediate an employee’s gross insubordination. Waters v. Churchill, 511 U.S. 661,
675 (1994). That said, “a citizen who works for the government is nonetheless a
citizen.” Garcetti, 547 U.S. at 419. The First Amendment, therefore, still “limits the
ability of a public employer to leverage the employment relationship to restrict,
10 incidentally or intentionally, the liberties employees enjoy in their capacities as
private citizens.” Id.
The test that the Supreme Court has developed to determine whether a
public employee’s speech is protected by the First Amendment is designed to
balance those competing interests. To demonstrate that her speech or conduct is
protected by the First Amendment, a public employee must first establish that
she was “speaking as [a] citizen[] about matters of public concern.” Id. That
inquiry “in turn encompasses two separate subquestions: (1) whether the subject
of the employee’s speech was a matter of public concern and (2) whether the
employee spoke as a citizen rather than solely as an employee.” Matthews v. City
of New York, 779 F.3d 167, 172 (2d Cir. 2015) (internal quotation marks omitted).
If the employee satisfies those requirements, then the First Amendment is
implicated, but more is required to establish that the Amendment protects the
public employee’s speech. The court must also assess whether the government
employer “had an adequate justification for treating the employee differently
from any other member of the public based on the government’s needs as an
employer.” Lane v. Franks, 573 U.S. 228, 242 (2014) (internal quotation marks
omitted). That assessment requires the court to “balance . . . the interests of the
11 [employee], as a citizen, in commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the efficiency of the public
services it performs through its employees.” Pickering v. Bd. of Educ., 391 U.S. 563,
568 (1968). If the balance tips in the employee’s favor, the First Amendment will
protect the public employee’s speech.
In this case, the district court addressed only whether Long spoke as a
citizen, concluding that her claim failed at the threshold. Accordingly, we focus
only on that question.
For a public employee to demonstrate that she spoke as a citizen, she must
establish that her speech fell “outside of [her] official responsibilities.” Shara v.
Maine-Endwell Cent. Sch. Dist., 46 F.4th 77, 83 (2d Cir. 2022). To determine
whether a public employee has met that burden, a court must “examine the
nature of the plaintiff’s job responsibilities, the nature of the speech, and the
relationship between the two, along with other contextual factors such as
whether the plaintiff’s speech was also conveyed to the public.” Id. (internal
quotation marks omitted). “[S]peech may be pursuant to an employee’s official
duties when it is part-and-parcel of the employee’s concerns about [her] ability to
properly execute [her] duties.” Id. (internal quotation marks omitted). Ultimately,
12 whether a public employee’s speech was “pursuant to” her job duties is a
“practical” inquiry, and a court should not “constru[e] a government employee’s
official duties too narrowly” by relying solely on a formal job description.
Weintraub v. Bd. of Educ., 593 F.3d 196, 202 (2d Cir. 2010) (internal quotation
A court may also consider whether a civilian analogue to the employee’s
speech exists. The relevant question is whether the employee’s speech took “a
form” or used a “channel of discourse available to non-employee citizens.” Id. at
203–04 (contrasting speech that “took the form of an employee grievance” with
“a schoolteacher’s letter to a local newspaper” and “discussions of politics with a
co-worker” because the former, unlike the latter two, has no civilian analogue)
(alterations adopted) (internal quotation marks omitted). The existence of such an
analogue may suggest that the government employee was speaking as a citizen,
not as an employee, but it is not a dispositive consideration. See id. “[T]he heart of
[the public employee speech] analysis is whether the speech at issue is itself
ordinarily within the scope of an employee’s duties.” Shara, 46 F.4th at 83
(internal quotation marks omitted).
The citizen speech test acts as a filter; it automatically removes from the
13 First Amendment’s ambit speech that is most likely to disrupt the efficient
operation of government and least likely to implicate the employee’s interest in
speaking as a citizen on a matter of public concern. Under the test, speech that
falls within the scope of a public employee’s work duties does not implicate the
First Amendment regardless of whether the government employer has an
adequate justification for treating the speech differently from citizen speech. The
government speech test is designed to help ensure the efficient operation of
government, and a rule that prohibits government employers from disciplining
employees for misconduct within the scope of their work duties would
effectively nullify that aim.
Take, for example, Anemone v. Metropolitan Transportation Authority, 629
F.3d 97 (2d Cir. 2011). There, the plaintiff, who was the Director of Security at the
Metropolitan Transportation Authority (“MTA”), alleged that he was unlawfully
terminated for, among other alleged speech acts, reporting suspected corruption
by MTA officials to the Queens District Attorney’s (“DA’s”) office. Id. at 99,
101–02. In the course of his everyday work, the plaintiff in that case was
“expected to and did cooperate with various investigatory agencies, including
the Manhattan and Queens District Attorneys’ offices.” Id. at 99. Indeed, in
14 addition to being involved in at least one previous corruption investigation at the
MTA, the plaintiff “testified that as Director of Security at the MTA, he regularly
interacted with District Attorneys’ offices and viewed cooperating with these
offices as among his duties.” Id. at 100, 116.
Based on those facts, we concluded that there was “no question” that the
plaintiff’s contacts with the Queens DA’s office were “clearly pursuant to [his]
official duties so as to fall squarely within Garcetti.” Id. at 116. Those
communications, therefore, did not implicate the First Amendment. Id. at 116–17.
We also rejected the plaintiff’s arguments that, after the investigation was
assigned to another department, his subsequent discussions with the Queens DA
were protected because they were technically “outside the chain of command,”
given that his supervisor had removed him from the investigation. Id. at 116
(internal quotation marks omitted). We reasoned that “[w]hen a government
employee concededly engages in speech pursuant to his official duties, the fact
that he persists in such speech after a supervisor has told him to stop does not,
without more, transform his speech into protected speech made as a private
citizen.” Id.
If the plaintiff’s supervisor in Anemone, who “was entrusted with ensuring
15 that [plaintiff’s] official communications with investigating agencies . . . were
accurate, demonstrated sound judgment, and promoted the employer’s mission,”
did not have the authority to take corrective action with regard to the plaintiff’s
speech, she would not have been able to adequately perform her job. Id.
(alterations adopted) (internal quotation marks omitted). In such a scenario, the
plaintiff in Anemone could have, without penalty, initiated his own, fruitless
investigations, wasting valuable agency resources; reported inaccurate
information to investigating agencies, potentially sending them down the wrong
path; or even misled investigators to protect his own corrupt actions. Such a
breakdown in supervisory authority would have made it nearly impossible for
the MTA to manage investigations into internal corruption, which could, in turn,
have jeopardized the efficient operation of the entire agency. It is, therefore, with
good reason that the government speech doctrine permits a government
employer to regulate its employees’ speech when that speech is pursuant to its
employees’ work duties.
It may seem that precluding from the First Amendment’s balancing
inquiry a public employee’s speech made pursuant to her job duties risks leaving
diligent employees vulnerable to corrupt employers. Since speech within a public
16 employee’s work duties does not implicate the First Amendment, a public
employee could be fired for simply doing her job, and the First Amendment
would offer no protection. For example, in Ross v. Breslin, 693 F.3d 300 (2d Cir.
2012) (a case that we return to in greater detail later), the plaintiff, a former
payroll clerk typist for the Katonah-Lewisboro Union Free School District, was
fired after she reported potential financial malfeasance in her office to her
superiors. See id. at 302–04. We determined, based on evidence uncovered during
discovery, that Ross’s speech reporting that financial malfeasance did not
implicate the First Amendment because she had confirmed, in deposition
testimony, that “reporting pay irregularities to a supervisor,” which included
“reporting mistakes,” was “one of her job duties.” Id. at 306. She therefore could
not recover under the First Amendment for her employer’s alleged retaliation. Id.
at 308.
Given that the “[e]xposure of official misconduct,” like the reporting of an
official’s financial malfeasance, “is generally of great consequence to the public,”
Jackler v. Byrne, 658 F.3d 225, 236 (2d Cir. 2011) (internal quotation marks
omitted), it may seem that the First Amendment should protect employees like
Ross who report suspected misconduct. There are, however, several good
17 reasons for precluding such speech from First Amendment protection.
First, “[r]estricting speech that owes its existence to a public employee’s
professional responsibilities does not infringe any liberties the employee might
have enjoyed as a private citizen.” Garcetti, 547 U.S. at 421–22. Such speech occurs
only because of the plaintiff’s employment, and the plaintiff would have had no
occasion to engage in that speech absent her employment. Her interest in making
that speech as a private citizen is, therefore, greatly diminished. Further, the
government’s restriction of such speech “simply reflects the exercise of employer
control over what the employer itself has commissioned or created.” Id. at 422.
Second, a rule that offers constitutional protection to public employees
when they speak pursuant to their job duties would risk creating “a
constitutional cause of action [for] every statement . . . public employee[s] make[]
in the course of doing [their] job.” Id. at 426. Such a rule would sacrifice the
government’s important interest in the efficient and effective operation of its
affairs, which the employee speech doctrine was crafted to preserve. It would
give plaintiffs, like the one in Anemone, potential constitutional recourse, even
where their supervisors act within the scope of their duties in taking remedial
action against their employees’ misconduct. Taken seriously, if the rule captured
18 official speech, it would be hard to imagine how government employers could
supervise their employees at all without risking First Amendment litigation. See
Weintraub, 593 F.3d at 201 (“The Supreme Court’s employee-speech
jurisprudence reflects the common sense realization[] that government offices
could not function if every employment decision became a constitutional
matter.”) (internal quotation marks omitted). Such a rule would not only hamper
the efficient operation of government but would also require the expenditure of
significant resources on potentially endless First Amendment litigation. When an
employee’s speech is part of her job, the employee’s supervisors have a
responsibility to evaluate whether she is doing that job well.
Third, public employees who report official misconduct because it within
the scope of their duties are not left without recourse if their employer retaliates
against them. Those employees may not have a claim under the First
Amendment, but they can “avail themselves of the powerful network of
legislative enactments—such as whistle-blower protection laws and labor
codes—available to those who seek to expose wrongdoing.” Ruotolo v. City of New
York, 514 F.3d 184, 189 n.1 (2d Cir. 2008) (internal quotation marks omitted). The
various whistle-blower and labor laws “as well as obligations arising from any
19 other applicable constitutional provisions and mandates of the criminal and civil
laws, protect employees and provide checks on supervisors who would order
unlawful or otherwise inappropriate actions.” Garcetti, 547 U.S. at 425–26. Long
herself has taken advantage of one such protection, asserting a cause of action
under New York’s whistle-blower protection statute, New York State Civil
Service Law § 75-b.
Finally, the government speech rule is not as broad as it may seem. It is not
the case that all speech that is related to an employee’s duties is exempt from
First Amendment protection. Although speech pursuant to a public employee’s
work duties does not implicate the First Amendment, “the mere fact that a
citizen’s speech concerns information acquired by virtue of his public
employment does not transform that speech into employee—rather than
citizen—speech.” Lane, 573 U.S. at 240. Rather, the “critical question . . . is
whether the speech at issue is itself ordinarily within the scope of an employee’s
duties, not whether it merely concerns those duties.” Id.
The Supreme Court in Lane v. Franks employed that reasoning when it
determined that the plaintiff in that case had engaged in “speech as a citizen”
when he testified in a trial on suspected misconduct by an elected official. Id. at
20 238–41.2 Lane served as a director of a state youth program, which required him
to oversee the program’s day-to-day operations, fire and hire employees, and
make decisions related to the program’s finances. Id. at 231–32. He sued
defendants after he was terminated for reporting that an elected official on the
program’s payroll had not been showing up to work and for testifying about his
findings at that official’s criminal trial after she was fired. Id at 232–34. The Court
reasoned that although the plaintiff learned about the official’s misconduct
through his employment, his testimony about that misconduct was still citizen
speech. Id. at 240–41. Lane’s “ordinary job responsibilities,” the Court explained,
“did not include testifying in court proceedings.” Id. at 238 n.4.
The Supreme Court also emphasized that it was of critical importance to
protect the public employee’s right to speak out on matters related to his
employment. Such speech, the Court explained, especially when it involves
issues related to public corruption, “holds special value precisely because those
employees gain knowledge of matters of public concern through their
2 Although the Court determined that the plaintiff’s speech was entitled to First Amendment protection, it affirmed the lower court’s grant of summary judgment in favor of one of the defendants on the First Amendment claim because that defendant was entitled to qualified immunity. See Lane, 573 U.S. at 246.
21 employment.” Id. at 240. Indeed, the Court reasoned that “[i]t would be
antithetical to our jurisprudence to conclude that the very kind of speech
necessary to prosecute corruption by public officials—speech by public
employees regarding information learned through their employment—may
never form the basis for a First Amendment retaliation claim.” Id. at 240–41. The
government speech test therefore preserves the right of a public employee to
speak on matters related to her job, as long as that speech meets the other
elements of the test.
With those principles in mind, we turn to the facts of the instant case.
B. Application
The parties dispute whether, when Long cooperated with the
Commission’s investigation, she acted pursuant to her official job duties or as a
private citizen. Long argues that her cooperation with the Commission “was not
a part of her ordinary job duties,” but was instead “highly unusual, indeed
unique.” Appellant’s Br. 21. She points out that she was not employed by the
Commission and had no responsibility to report to it. Long also argues that the
Commission is an “independent body” and that any citizen, not just those who
work for the town’s judiciary, has the ability to report to or communicate with
22 the Commission. Id. at 22–23.
Defendants, on the other hand, argue that Long’s complaint fails to
adequately allege that she acted as a citizen when she cooperated with the
Commission. They emphasize that all of Long’s communications with and about
the Commission occurred at work, during working hours, and that “but-for her
position as a Town Justice Clerk,” the Commission would never have sought
information from Long. Appellee New Lebanon’s Br. 9; see also Appellee Byrne’s
Br. 9–11.
We focus first on Long’s refusal to answer Byrne’s inquiries about the
Commission’s investigation. To determine whether it was within the scope of
Long’s work duties to discuss the Commission’s investigation with Byrne, and
therefore, whether she spoke as a citizen in refusing to do so, we pay close
attention to Long’s pleadings, which we must accept as true. See Montero, 890
F.3d at 394.
Long alleges that she was terminated because she refused to divulge the
name of the complainant or otherwise discuss the Commission’s investigation
with Byrne. More specifically, she alleges that, months after she provided the
files to the Commission, “Byrne came into the office angry, saying that she was
23 being investigated by the Commission.” Appellant’s App’x 24 at ¶ 17. Long
asserts that Byrne “related that she was angry [that Long] did not tell her who
filed the complaint against her.” Id. Long then responded that she “had no idea
who made the complaint,” and that, regardless, she had been “advised by the
representative of the Commission not to speak of it to anyone including . . .
Byrne.” Id. Long also contends that it was not her responsibility “to advise a
Town Justice as to the requirements of the Commission on Judicial Conduct. The
requirements of the Commission on Judicial Conduct are within the purview of
. . . Byrne[‘s] service in her capacity as Town Justice.” Appellant’s App’x 27 at ¶
37.
The district court found those allegations insufficient to state a claim for
First Amendment retaliation. It emphasized that the attempted conversation
occurred during working hours and was between Long and her “supervising
judge.” Long, 2024 WL 4710695, at *5. Contrary to the district court’s conclusion,
those allegations are sufficient to survive defendants’ motion to dismiss.
First, that Long’s conduct involved, in significant part, a decision not to
speak does not strip her of First Amendment protection. The First Amendment’s
guarantee of freedom of speech “necessarily compris[es] the decision of both
24 what to say and what not to say.” Riley v. Nat’l Fed’n of the Blind of North Carolina,
Inc., 487 U.S. 781, 796–97 (1988) (emphasis in original). “The right to speak and
the right to refrain from speaking are complementary components of the broader
concept of individual freedom of mind.” Wooley v. Maynard, 430 U.S. 705, 714
(1977) (internal quotation marks omitted); see also Jackler, 658 F.3d at 241
(concluding that “it is clear that the First Amendment protects the rights of a
citizen to refuse to retract a report to the police that he believes is true, to refuse
to make a statement that he believes is false, and to refuse to engage in unlawful
conduct”). Long’s refusal is, therefore, the sort of conduct that the First
Amendment protects.
Second, the district court gave too much weight to the location of Long’s
speech and the person to whom she spoke. “Speech to a supervisor even in the
workplace can be protected as that of a private citizen if it is not made pursuant
to the employee’s official duties as an employee.” Ross, 693 F.3d at 307. The
critical inquiry is whether Long, in refusing to converse with Byrne about the
Commission’s investigation, was acting pursuant to her job duties; the location of
the speech and the person to whom it was directed, while relevant, are not
dispositive considerations.
25 The complaint adequately alleges that the speech in question was not a
part of Long’s duties. As alleged, Byrne initiated the confrontation with Long
because she was angry that the Commission was investigating her suspected
misconduct. The complaint does not allege that Byrne was angry because the
Commission was investigating conduct that implicated Long’s duties as Court
Clerk, such as court employees’ potential mishandling of court documents.
Long also alleges that Byrne was angry because Long would not tell her
who filed the complaint with the Commission. But Long did not know the
identity of the complainant. More importantly, Long alleges that it was not
within the scope of her job duties “to advise a Town Justice as to the
requirements of the Commission.” Appellant’s App’x 27 at ¶ 37. That allegation
makes perfect sense in the context of the rest of Long’s complaint. She asserts
facts that support that the Commission is an independent entity; she is not
employed by the Commission, and she is not required to report to the
Commission. Accepting those allegations as true, as we must, there is no clear
reason why it would be within Long’s job duties to provide Byrne with
information related to an independent third-party’s investigation into Byrne’s
suspected misconduct. Even if it was within Long’s job duties to tell Byrne who
26 had requested court files, it would not follow that it was also within Long’s
duties to give Byrne the information that she sought: the identity of the person
who had filed complaints with the Commission. In any event, Long does not
allege that Byrne inquired about the identity of the person who requested files or
that Long refused to provide that information.
Long’s assertion that she engaged in protected citizen speech by refusing
to answer Byrne’s inquiries about the Commission’s investigation also coheres
with the rationales that motivate the government speech doctrine. It is not clear
in any way that Long’s refusal to engage with Byrne on the Commission’s
investigation risked sacrificing the efficient operations of the Clerk’s office. As we
have explained, Long has adequately alleged that the Commission’s investigation
had nothing to do with her responsibilities. This case is, therefore, unlike
Anemone. There, the plaintiff’s speech reporting suspected misconduct to the
Queens DA was clearly within the scope of his official duties. Anemone, 629 F.3d
at 116–17. Moreover, had the defendant been unable to discipline the plaintiff for
his continued communications with an outside investigatory agency, the MTA
would not have been able to effectively and efficiently manage internal
investigations. Id. But here, Long’s adherence to the Commission’s request that
27 she refuse to discuss its investigation with others did not risk hampering Byrne’s
effective supervision of Long’s day-to-day responsibilities because that refusal
was, as alleged, entirely independent of her job duties. Had Long discussed the
investigation with Byrne, it may have furthered Byrne’s private interest in
identifying the identity of the complainant. But regardless of whether Byrne’s
private interest was legitimate (perhaps she wanted to prepare a defense by
investigating the motives and knowledge of a false accuser) or illegitimate
(perhaps she wanted to intimidate and corrupt a truthful accuser), nothing in the
complaint suggests that it was part of Long’s job duties to assist Byrne in
furthering that interest.
There is also a clear civilian analogue to Long’s conduct, which further
supports that it was not related to her job responsibilities. See Specht v. City of New
York, 15 F.4th 594, 603 (2d Cir. 2021). “Two examples of citizen analogues
provided by the Court in Garcetti were a schoolteacher’s letter to a local
newspaper, which bore similarities to letters submitted by numerous citizens
every day, and discussions of politics with a co-worker.” Id. (internal quotation
marks omitted). As we explained, Long’s refusal to discuss the Commission’s
investigation with Byrne was unrelated to her job responsibilities. That
28 discussion, or lack thereof, was, therefore, similar to colleagues “discussing[, or
refusing to discuss,] politics” in the office, which “is the kind of activity engaged
in by citizens who do not work for the government.” Garcetti, 547 U.S. at 423. In
other words, Long and Byrne were just two people discussing matters beyond
the scope of Long’s employment.
Finally, Long alleges that she decided not to speak with Byrne about the
Commission’s investigation because the Commission “advised” her that it
“would be unlawful to do so.” Appellant’s App’x 24 at ¶¶ 16–17; id. 27 at ¶ 34.3
That allegation further supports that Long acted as a private citizen when she
refused to discuss the Commission’s investigation with Byrne.4 Nothing in the
3 Long does not cite any law for that proposition, and we have not found any supporting authority. Assuming, without deciding, that it would have been unlawful for Long to divulge her discussion with the Commission to Byrne, then another civilian analogue to Long’s refusal may exist: “the right to reject governmental efforts to require [her] to make statements [that would violate the law].” Jackler, 658 F.3d at 241. But even if Long was not obligated to keep quiet about her knowledge of the Commission’s investigation, her right to divulge or not to divulge that information to the subject of the investigation would be analogous to that of any other potential witness. 4 We acknowledge that courts typically consider the speaker’s motivation when assessing whether the speech was on a matter of public concern. See Shara, 46 F.4th at 84. The district court did not reach the public concern prong, and we accordingly do not address what Long’s motivations may mean with respect to whether she spoke on a matter of public concern. Nevertheless, her alleged motivations are also relevant to whether she spoke pursuant to her job responsibilities.
29 complaint indicates that Long was motivated to comply with the Commission’s
request because she believed that her job required her to do so.
Instead, the complaint supports an inference that Long cooperated out of
her sense of civic duty. Long alleges that when she cooperated with the
Commission, she “was acting in the same manner as any private citizen to whom
the Commission . . . inquired.” Appellant’s App’x 28 at ¶ 38. She further asserts
that she had been “advised” by the Commission not speak with anyone about the
investigation. Id. 24 at ¶ 17. Finally, she alleges that when she acted, she tried to
“comply with the laws, rules, and regulations of the [Commission].” Id. 29–30 at
¶ 55. Regardless of whether the law actually required Long to cooperate with the
Commission’s investigation or to heed its request for confidentiality, those
allegations support an inference that Long complied with the Commission’s
request because she believed that she would violate the law if she did not. Her
desire to be a law-abiding citizen is not an employment-related motivation.
We therefore conclude that Long spoke as a citizen when she refused to
discuss the Commission’s investigation with Byrne. Our conclusion with respect
to Long and Byrne’s interaction would perhaps be different had Long refused to
discuss a work-related topic with Byrne; discussing work-related topics in the
30 office with one’s supervisor is within the ambit of one’s job responsibilities. And
indeed, after further development of the record, it may be the case that the
conversation implicated Long’s job responsibilities, including any job
responsibilities that may relate to the Commission’s investigation. But the record,
which at this stage of the proceedings is limited to Long’s complaint, does not
indicate that to be the case.
After reviewing the same evidence, the district court reached the opposite
conclusion, relying principally on Ross v. Breslin. See Long, 2024 WL 4710695, at *5.
But Ross is distinguishable. As we explained, the plaintiff in that case was a
former payroll clerk typist, who sued her government employer after she was
fired for reporting suspected financial malfeasance in her office. See Ross, 693 F.3d
at 302–04. We first determined, based on evidence uncovered during discovery,
that Ross’s job duties involved reporting financial malfeasance. In deposition
testimony, Ross confirmed that “reporting pay irregularities to a supervisor was
one of her job duties.” Id. at 306. Each of her alleged speech acts involved
reporting such irregularities, and so we concluded that they “were part and
parcel of her official responsibilities.” Id. As we have explained, however, Long’s
complaint supports the opposite conclusion. Unlike the plaintiff in Ross who
31 admitted that the speech in question was within the scope of her duties, Long
expressly disclaims that her interaction with Bryne was pursuant to her duties as
Court Clerk. Accordingly, Ross does not provide persuasive support for
defendants’ arguments.
We emphasize the limited nature of our ruling. We address only whether
the district court correctly ruled that Long failed to plausibly state a claim based
on its analysis of one portion of the test for whether the First Amendment
protected her speech. Moreover, we express no view as to whether her complaint
satisfies other aspects of the test that the district court did not reach. Further
exploration of the facts regarding the precise nature of Long’s duties and the
details of her interaction with Byrne may lead to different conclusions about
whether Long can sustain that claim. At this stage of the proceedings, limited to
the allegations in the complaint, we hold only that the district court’s conclusion
that Long has not stated a plausible claim was legally erroneous, not that the
complaint is necessarily meritorious.
We turn next to whether Long acted as a citizen when she provided, in
response to the Commission’s request, “case files on [four] individuals in
connection with the complaint about defendant Byrne.” Appellant’s App’x 24
32 at ¶ 15. Here, again, we must pay close attention to Long’s pleadings. There is,
however, a dearth of information in Long’s complaint about the nature of her job
duties, making it difficult to discern whether her decision to provide the
Commission with the files it requested falls within the scope of those duties.
Indeed, on that score, Long’s complaint presents more questions than
answers. What was the nature of the files that the Commission requested? Were
the files that the Commission requested official court filings or the judge’s
confidential internal files? If the former, were the files open to the public or were
they sealed? Was it Long’s responsibility to provide public court files to
individuals that requested them? If so, did she have the authority to exercise
discretion to deny such requests, and what was the extent of that discretion? If it
was Long’s responsibility to provide the files, did the individual requesting them
have to review the files in Long’s office? Did Long permit the Commission’s
investigator to remove original files from the office? Or, did she allow the
investigator only to review and copy the original filed documents? If the former,
was that a violation of her job duties?
The complaint answers none of those questions, and they are all relevant to
understanding the scope of Long’s job duties. For example, if it was not within
33 the scope of Long’s duties to provide case files to people who request them, then
she might have been acting as a citizen when she provided the case files to the
Commission. If, on the other hand, Long is required to provide files to those who
request them, then her provision of the files to the Commission may not have
constituted citizen speech. Moreover, the proper handling of the files would in
any case be potentially a matter of legitimate concern for her supervisor.5 Even if
the files were public record and available to the public for inspection, allowing
any member of the public, including a law enforcement officer, to remove the
files from the office could constitute a serious breach of a clerk’s responsibilities
and result in significant negative consequences. Imagine, for example, that a
court clerk allows a corrupt police officer to leave the office with files, which the
officer later destroys or alters to cover up misconduct that the files evidence. That
decision could result in the destruction of evidence that is critical to rooting out
public corruption. Yet here, Long’s complaint sheds no light on whether she let
the Commission’s representative leave her office with the documents, much less
5 That could be a question properly assessed in connection with the second branch of the Garcetti test: even if providing files to inquirers was not part of Long’s job responsibilities, the government as an employer has significant interests in regulating the conduct of employees in connection with documents to which they have access.
34 whether it would violate the rules of her office to do so.
Given both that the inquiry into an employee’s job responsibilities is a
“practical” one that requires analyzing various “contextual factors,” Shara, 46
F.4th at 83, and that this case is at the motion to dismiss phase, further
development of the factual record is necessary to fully understand the extent to
which Long’s provision of the case files intersected with her responsibilities as
Court Clerk. See Matthews v. City of New York, 488 F. App’x 532, 533 (2d Cir. Nov.
28, 2012) (vacating and remanding the lower court’s dismissal of the public
employee’s First Amendment retaliation claim because “whether a public
employee is speaking pursuant to his official duties is not susceptible to a
brightline rule” and “[h]ere, some discovery as to these matters is necessary
before it can be decided whether [plaintiff] can or cannot pursue a First
Amendment retaliation claim”) (alterations adopted) (internal quotation marks
omitted). Since the complaint adequately alleges that the First Amendment
protects Long’s refusal to answer Byrne’s inquiries about the identity of the
Commission’s complainant, the district court erred in dismissing the complaint,
and the case must be remanded for further proceedings. We therefore need not
reach a conclusion about whether Long’s allegations concerning her provision of
35 the files to the investigator could constitute protected First Amendment activity.
III. State-Law Claims
Long also alleges that defendants’ conduct violated her rights under the
New York State Civil Service Law § 75-b. After dismissing Long’s First
Amendment claim, the district court, in its discretion, declined to exercise
supplemental jurisdiction over Long’s claims under Section 75-b and dismissed
that claim without prejudice. Because we vacate and remand the district court’s
judgment with respect to Long’s First Amendment claim, the legal premise for
the dismissal—the absence of a valid federal claim to support federal
jurisdiction—is defeated. Accordingly, we also vacate the district court’s
judgment on Long’s state-law claim.
CONCLUSION
We have considered the parties’ remaining arguments and find them to be
without merit. For the foregoing reasons, we VACATE the judgment of the
district court, and REMAND the case for further proceedings.