Petition for Writ of Certiorari — Mary Lou Vosburgh, et al., Petitioners v. Burnt Hills-Ballston Lake Central School District, et al.

No. ________

================================================================

In The

Supreme Court of the United States

---------------------------------♦---------------------------------

MARY LOU VOSBURGH, JAKE MCHERRON,

Petitioners,

v.

BURNT HILLS-BALLSTON LAKE CENTRAL

SCHOOL DISTRICT,

PATRICK MCGRATH, TIMOTHY BRUNSON, JOE

SCALISE,

---------------------------------♦---------------------------------

Respondents.

On Petition for Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦---------------------------------

PETITION FOR WRIT OF CERTIORARI

---------------------------------♦---------------------------------

PHILLIP G. STECK

COOPER ERVING & SAVAGE

LLP

39 North Pearl Street, 4th Floor

Albany, New York 12207

(518) 443-3900

psteck@coopererving.com

Attorney for Petitioners

Mary Lou Vosburgh and Jake

McHerron

=========================================================

i

QUESTION PRESENTED

When a government actor deprives an

individual of his liberty interest in his reputation, is

a state court proceeding in the nature of mandamus

to compel a name-clearing hearing adequate due

process. The United States Court of Appeals for the

Second Circuit held that it was.

ii

PARTIES TO THE PROCEEDING

Petitioners are Jake McHerron and Mary Lou

Vosburgh, Plaintiffs in the case below.

Respondents are Burnt Hills-Ballston Lake Central

School District, Patrick McGrath, Timothy Brunson,

and Joe Scalise, Defendants in the case below.

RELATED CASES

•

Jake McHerron and Mary Lou Vosburgh v.

Burnt Hills - Ballston Lake Central School District,

Joe Scalise, Patrick McGrath, and Timothy

Brunson, United States District Court for the

Northern District of New York, Dkt. No. 1:18-cv01003, Judgment entered January 24, 2019.

•

Jake McHerron and Mary Lou Vosburgh v.

Burnt Hills - Ballston Lake Central School District,

Joe Scalise, Patrick McGrath, and Timothy

Brunson, United States Court of Appeals for the

Second Circuit, Dkt. No. 19-259, Judgment entered

November 14, 2019.

iii

TABLE OF CONTENTS

QUESTION PRESENTED........................................ i

PARTIES TO THE PROCEEDING .......................... ii

RELATED CASES..................................................... ii

TABLE OF CONTENTS .......................................... iii

TABLE OF AUTHORITIES ..................................... iv

PETITION FOR WRIT OF CERTIORARI ............... 1

OPINIONS BELOW .................................................. 5

JURISDICTION ........................................................ 6

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ....................................... 6

STATEMENT OF THE CASE ................................. 6

REASONS FOR GRANTING THE PETITION .... 12

CONCLUSION ........................................................ 22

APPENDIX

Opinion, United States Court of Appeals for the

Second Circuit (November 7, 2019) ................. App. 1

iv

Memorandum-Decision and Order dated January 24,

2019 .................................................................. App. 13

Summary Order denying Petition for Rehearing App.

64

TABLE OF AUTHORITIES

CASES

Anenome v. Metropolitan Transportation Authority,

629 F.3d 97, 112 (2010) ............................................. 2

Anenome v. Metropolitan Transportation Authority,

629 F.3d 97, 121 (2d Cir. 2011) ............................... 17

Board of Regents v. Roth, 408 U.S. 564, 573 (1972)1,

4, 11

Cotton v. Jackson, 216 F.3d 1328, 1333 (11th Cir.

2000)......................................................................... 17

Knick v. Township of Scott, 139 S. Ct. 2162, 2172-

2173 (2019) ............................... 3, 4, 10, 13, 14, 15, 16

Meyer v. Nebraska, 262 U.S. 390, 399 (1923) .......... 1

Matter of McCurry v. N.Y. State Off. for People with

Dev. Disabilities, 2013 N.Y. Misc. LEXIS 1462 at

*21 (Albany County. 2013) ...................................... 12

Patterson v. City of Utica, 370 F.3d 322, 335 (2d Cir.

2004)........................................................................... 2

Paul v. Davis, 424 U.S. 693, 708-709 (1976) 1, 10, 11

v

Segal v. City of New York, 459 F.3d 207, 214 (2nd

Cir. 2006) ................................................................. 16

Siegert v. Gilley, 500 U.S. 226, 234 (1991) ............... 1

STATUTES

42 U.S.C. § 1983 .......................................2, 13, 14, 15

N.Y. C.P.L.R § Sections 7801-7806 ........................... 5

N.Y. C.P.L.R § 7803(1) ............................................ 16

N.Y. C.P.L.R § 7803(3) ............................................ 17

N.Y. C.P.L.R § 7804(a) ............................................ 16

TREATISES

Segal on New York Practice, p. 1066 (6th ed. 2018)17

1

PETITION FOR WRIT OF CERTIORARI

The 14th Amendment to the United States

Constitution declares that “no state shall . . . deprive

any person of life, liberty, or property, without due

process of law.” This Court has recognized that a

person’s liberty includes the “privileges long

recognized at common law as essential to the orderly

pursuit of happiness by free men.” Meyer v.

Nebraska, 262 U.S. 390, 399 (1923). In particular,

one’s liberty includes an interest in being free from

governmental action that tarnishes the individual’s

reputation. Paul v. Davis, 424 U.S. 693, 708-709

(1976).

False accusations by government may have

sufficient force to damn persons for the rest of their

lives, thus causing future employers, or others, to

shun them, thus interfering with their liberty. For

governmental conduct to reach this level of

interference with a person’s reputation, the

government must defame that person in the course of

altering that person’s legal status. Id. These claims

are commonly known as “stigma plus” claims: a

stigmatizing statement plus a change in legal status.

See Siegert v. Gilley, 500 U.S. 226, 234 (1991). When

a person suffers a constitutional harm to that

person’s reputational interest, due process requires

that the person be afforded a name clearing hearing.

Bd. of Regents v. Roth, 408 U.S. 564, 573 (1972).

2

A name-clearing hearing is unlike the hearing

that must be held when a person has a property

interest in his or her employment.

In the

employment context, a name-clearing hearing entails

no power to reinstate an employee, and leaves the

public employer’s ability to hire and fire completely

intact. The name-clearing hearing simply gives the

affected persons the opportunity to prove the falsity

of the allegations that are adversely affecting their

reputation so that the stigma may be lifted from

them and their liberty in seeking future employment

restored. See Patterson v. City of Utica, 370 F.3d

322, 335 (2d Cir. 2004) (“[a name-clearing] hearing

gives the plaintiff an opportunity to hear and answer

first-hand any stigmatizing charges, clearing his

name of any false statements made about him, and

curing the injury to his reputation.”). See also

Anenome v. Metropolitan Transportation Authority,

629 F.3d 97, 112 (2010) (The “Hearing Officer” . . . .

concluded that Casale ‘failed to prove by a

preponderance of the evidence that the statement

that he was dishonest in connection with the Plasser

American matter is false.’”)

Petitioners Mary Lou Vosburgh and Jake

McHerron were terminated from their coaching and

teaching positions at Burnt Hills-Ballston Lake

Central School District. Their terminations were

premised on alleged misconduct in the course of their

duties as girls’ high school lacrosse coaches. In the

3

course of their termination, Respondents stated to

the school community that Ms. Vosburgh and Mr.

McHerron’s conduct toward their players caused the

girls to suffer from “battered girlfriend syndrome,”

among other slanderous accusations cited as reasons

for Vosburgh and McHerron’s termination.

Notwithstanding decisions such as Patterson,

where an action under 42 U.S.C. § 1983 culminated

in an order for a name-clearing hearing, the Second

Circuit has since ruled that citizens within its

jurisdiction no longer have such a remedy in federal

court. On appeal from a motion to dismiss, the

Second Circuit held that Vosburgh and McHerron

should have pursued relief in a New York State Civil

Practice Laws and Rules Article 78 proceeding,

which the court concluded was in and of itself a

name-clearing hearing based on its prior case law.

Therefore, according to the Court of Appeals,

Vosburgh and McHerron failed to state a claim,

because they were already afforded due process,

which they failed to utilize.

An Article 78 proceeding is a statutory

substitute in New York State for the common law

writs of mandamus, prohibition, and certiorari to

review the findings of an administrative agency. It is

a mechanism to compel government action or

otherwise to review governmental conduct to

determine if it has a rational basis or whether the

findings in an administrative hearing are supported

4

by substantial evidence. It is not an administrative

hearing in the first instance where findings of fact

are made, and it is not suited to determine the truth

of otherwise slanderous comments made in the

course of a public employee’s termination. At best, an

Article 78 proceeding could be used to compel

(mandamus) a government official to conduct an

administrative name clearing hearing.

Because the Second Circuit’s holding requires

a litigant to vindicate his constitutional rights in a

state proceeding, it contradicts this Court’s recent

holding in Knick v. Township of Scott, which held

that an individual’s 5th Amendment right to just

compensation did not need to be litigated in state

court when the same claim was available in a federal

court. 139 S. Ct. 2162, 2172-2173 (2019). The logic of

Knick applies to plaintiffs’ liberty interest claim as

well.

An Article 78 proceeding in this context is no

different than a federal stigma plus claim. Both

decide the same question: whether the claimant is

entitled to a name clearing hearing. By holding that

an Article 78 is sufficient process following a stigma

plus injury, the Second Circuit has effectively

decided that a litigant is barred from having his

federal constitutional rights, in this case his liberty

interest, adjudicated by a federal court. There is no

concomitant right under State law. The right to a

name-clearing hearing is based on federal due

5

process principles involving a person’s liberty

interest.

The Second Circuit’s adoption of a rule that an

Article 78 proceeding is sufficient due process for a

stigma plus injury directly contradicts this Court’s

decision in Board of Regents v. Roth that a person

who has been subjected to a constitutional harm to

his liberty interest is entitled to a name clearing

hearing. Article 78 is not a hearing. As the State

courts recognize, see infra, it may determine whether

a person has a colorable stigma plus claim, but it

does not adjudicate the truth or falsity of the

accusations against a person, which is the whole

point of a name-clearing hearing. Thus, the Second

Circuit abdicated its responsibility, contrary to

Knick, to decide whether a person is entitled to a

name-clearing hearing under federal constitutional

principles and transferred that function entirely to

the state court. For those reasons, and for the

reasons that follow, this Court should grant this

petition.

OPINIONS BELOW

(McHerron v Burnt Hills - Ballston Lake Cent. Sch.

Dist., 778 F App'x 54 [2d Cir 2019])

6

(McHerron v Burnt Hills - Ballston Lake Cent. Sch.

Dist., 2019 US Dist LEXIS 11656 [NDNY Jan. 24,

2019, No. 1:18-CV-1003 (MAD/CFH)])

JURISDICTION

The Second Circuit issued its opinion on

October 2, 2019. Petitioners filed a timely petition for

rehearing on October 9, 2019. The petition for

rehearing was denied on November 7, 2019. This

Court has jurisdiction pursuant to 28 U.S. Code

§ 1254 (1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The due process clause of the 14th Amendment

to the United States Constitution states in relevant

part that “no state shall . . . deprive any person of

life, liberty, or property, without due process of law.”

U.S. Const. amend. XIV. The relevant New York

State statutory provisions regarding proceedings

against a body or officer are found at N.Y. C.P.L.R.

Article 78, Sections 7801 through 7806.

STATEMENT OF THE CASE

Petitioners, Mary Lou Vosburgh and Jake

McHerron, are two girls’ lacrosse coaches, both with

long records of success in the sport. Jake McHerron

7

coached at Burnt-Hills Ballston Lake [BH-BL]

Central School District for 10 years. Mary Lou

Vosburgh was added to his staff as an assistant

coach in 2017. In addition, at the time of the

termination of his employment, Coach McHerron had

worked for 10 years as a substitute teacher at BHBL. He was terminated both as a coach and as a

substitute teacher, though the allegations against

him had nothing to do with his substitute teaching.

[A-66-71]

During the 2018 season, some parents took

exception to minor incidents in which McHerron and

Vosburgh attempted to get the players to fit within

the team concept, disputed some criticism of their

children, were unhappy with allocations of playing

time, etc., things that are hardly unusual in the

coaching world. These complaints concerned alleged

actions that occurred under the watchful eye of

school administrators, including Principal Brunson

and Athletic Director Scalise. Neither of the two

Defendants ever suggested to McHerron and

Vosburgh either in 2018, in previous years, or in

evaluations that they correct any of their coaching

techniques. Moreover, the issues raised with

McHerron and Vosburgh’s coaching that Defendants

labelled as wrongdoing paled in comparison to what

other coaches in the district did who were not

similarly targeted for discipline. Finally, some of the

parental complaints, such as, for example, that

8

Coach McHerron had a physical altercation with a

student, concerned matters that the parents of the

very children involved said did not occur. A lot of the

allegations were based on rumor and innuendo. [A66-69]

Based on parental complaints, Defendants

suspended McHerron and Vosburgh from coaching

right before the end of the season. Defendants

publicized the suspension and that there had been

parental complaints. Defendants reached out to the

press and notified the press in violation of the Code

of Conduct of the New York State School Boards

Association which states that school officials shall

“keep confidential matters pertaining to the schools,

which are either legally required to be kept

confidential and/or, if disclosed, would needlessly

injure individuals or the schools.” There was no

reason whatsoever to inform the press of plaintiffs’

suspension. The School District had no legitimate

interest in doing so. There would have been no harm

to McHerron and Vosburgh or the school if McHerron

and Vosburgh had simply been replaced as coaches

for the remainder of the season. Publicizing this

situation was needless and harmful to McHerron and

Vosburgh’s reputation in the community. [A-67]

Defendants did other things that suggested

McHerron and Vosburgh were a danger to the health

and safety of students. Defendants told members of

the community that McHerron and Vosburgh had

9

created a “negative and hostile environment” and

that the girls on the team were victims of “battered

girlfriend syndrome” because of McHerron and

Vosburgh’s conduct. [A-68, 70]

Defendants ostracized the coaches by barring

them from school grounds, which is only typically

done in the case of someone who poses a threat to the

health or safety of students, or who has engaged in

criminal or quasi-criminal activity, even going so far

as preventing Coach McHerron from picking up his

own children from school, with the further

stipulation that he could only observe his children’s

own sporting events from a hill far away from other

spectators where he would be observed by members

of the school community to have been relegated to

that demeaned and confined status. [A-68]

Defendants told the Capital Region Board of

Cooperative Educational Services (BOCES), a public

agency, that McHerron was a poor role model for

students, that he was insubordinate in allegedly

refusing to take direction from administrators, and

that he did not respect students or adults. This

information was available to all 24 school districts

that make up the Saratoga, New York regional

BOCES and who rely on the BOCES for information

about teachers whom they might to choose to hire.

This information was given to the BOCES when

placing McHerron on a “do not call” list for substitute

teaching. When BOCES inquired as to whether

10

McHerron could be reinstated to substitute teaching

for the 2018-2019 school year, Defendants replied in

the negative. [A-68] Defendants’ actions rendered

plaintiff functionally unemployable.

Saying a

teacher is a “poor role model” is a death knell for

being employed as a teacher. [A-70-71]

The effect of Defendants’ actions was broadsweeping. Members of the community used things

which Defendants said about McHerron to deny him

Coach of the Year honors, which he was slated to

receive from the U.S. Lacrosse organization. They

used things which Defendants said to interfere with

Coach McHerron’s relationship with the Albany Elite

lacrosse program, an out-of-school lacrosse program.

[A-60, 70]

All of the things which Coach McHerron was

alleged to have done were applied to Coach Vosburgh

by Respondents. Respondents told members of the

community that Vosburgh had “enabled” his

behavior. [A-70] It is thus clear that, if Coach

McHerron was not going to be allowed to return to

work at the school district in any capacity, then Ms.

Vosburgh would not be allowed to continue in her

position as an assistant coach. [A-70-71] The

complaint explicitly alleges that they were

discharged from employment. [A-73]

For these

reasons, McHerron and Vosburgh requested a nameclearing hearing from Respondents twice. Both

requests were denied. [A-72]

11

After McHerron and Vosburgh filed the

lawsuit below, Respondents moved to dismiss in the

District Court on the grounds that McHerron and

Vosburgh had not been terminated, merely

suspended, and therefore could not state a stigma

plus claim. The District Court granted the motion,

holding that plaintiffs were not suspended, only

terminated. [A-21-23] The District Court disregarded

the stigma plus case law, which only requires a

change in legal status, not necessarily a termination,

and further disregarded the facts pleaded in the

complaint demonstrating that the suspension was

already over by the time the lawsuit was filed, that

plaintiffs were not reinstated and had no hope of

being reinstated, and that they were in fact

discharged from employment. [A-70-71, 73]

McHerron and Vosburgh appealed to the

United States Court of Appeals for the Second

Circuit. Without having raised the issue in the

motion to dismiss in the District Court, Respondents

argued for the first time on appeal in the Circuit that

McHerron and Vosburgh were barred from bringing

a stigma plus claim because they had not availed

themselves of an Article 78 proceeding—a New York

State statutory proceeding in the nature of

mandamus—to obtain the name-clearing hearing.

Thus, Respondents concluded, McHerron and

Vosburgh were afforded the requisite process for a

stigma plus injury, but they chose not to take it.

12

McHerron and Vosburgh argued, and the case

law is clear, that the process due for a stigma plus

deprivation is a name-clearing hearing. An Article 78

is not a name-clearing hearing. It is a statutory

summary proceeding in the nature of mandamus. If

McHerron and Vosburgh had brought an Article 78,

and they were successful, they could have been

awarded a name clearing-hearing, but in that respect

the Article 78 is nothing more than the equivalent of

a Section 1983 lawsuit. Therefore, Vosburgh and

McHerron were forced to use a state law writ of

mandamus to remedy a stigma plus injury and to

vindicate their federal constitutional right in a state

forum. This is anathema to the scheme of Section

1983 and the 14th Amendment, as explained in the

Knick decision of this Court.

Nonetheless, the Second Circuit, citing

outdated Second Circuit case law, and without

addressing Knick, concluded that McHerron and

Vosburgh failed to take advantage of an “Article 78

name-clearing hearing,” a non-existent proceeding,

and therefore were afforded due process. Therefore,

the Second Circuit concluded that McHerron and

Vosburgh did not have a claim.

REASONS FOR GRANTING THE PETITION

In Paul v. Davis, this Court considered what

sort of reputational harm caused by government is

13

sufficient to deprive an individual of a 14th

Amendment liberty interest. This Court concluded

that where a governmental actor defames an

individual in association with a change in that

individual’s legal status, such individual has been

deprived of his liberty interest in his reputation. 424

U.S. 693, 708-709 (1976). Where an individual has

been deprived of his liberty interest in his

reputation, it has generally been held that postdeprivation procedural protections are sufficient to

satisfy the due process clause. Id. In Board of

Regents v. Roth, this Court made clear that the postdeprivation process due to the individual deprived of

his liberty interest in his reputation is a hearing to

clear his or her name. 408 U.S. 564, 573 (1972).

In the opinion below, the Second Circuit held

that McHerron and Vosburgh were afforded due

process in the form of an Article 78 proceeding and

therefore had no claim for a due process violation.

“Article 78” refers to Article 78 of the New York Civil

Practice Laws and Rules. Article 78 of the CPLR is

titled “Proceedings Against Body or Officer.” Section

7801, titled “Nature of proceeding,” instructs that an

Article 78 proceeding is the statutory equivalent of

the writs of certiorari, mandamus, and prohibition.

Section 7803 provides that:

The only questions that may be raised

in a proceeding under this article are:

14

1. whether the body or officer failed to

perform a duty enjoined upon it by law;

or

2. whether the body or officer

proceeded, is proceeding or is about to

proceed without or in excess of

jurisdiction; or

3. whether a determination was made

in violation of lawful procedure, was

affected by an error of law or was

arbitrary and capricious or an abuse of

discretion, including abuse of discretion

as to the measure or mode of penalty or

discipline imposed; or

4. whether a determination made as a

result of a hearing held, and at which

evidence was taken, pursuant to

direction by law is, on the entire record,

supported by substantial evidence.

Section 7803 makes clear that an Article 78 is

not a fact-finding proceeding. It is a proceeding to

review or to compel official conduct, or to review the

proceedings at an administrative hearing that has

already been held, such as after a name-clearing

hearing is held to determine whether the findings

are supported by substantial evidence. Thus, when

an Article 78 proceeding is brought in the wake of an

alleged stigma plus harm, the state court that

15

conducts the proceeding does not make a

determination as to whether the defamatory

statement of the official was true or false. Instead,

the Article 78 court simply determines whether the

petitioner is entitled to a name-clearing hearing

based on a demonstration of prima facie entitlement.

See e.g, Matter of McCurry v. N.Y. State Off. for

People with Dev. Disabilities, 2013 N.Y. Misc. LEXIS

1462 at *21 (Albany County. 2013) (“The Court finds

that the petitioner demonstrated, prima facie,

entitlement to a name clearing hearing. The Court

concludes that the instant matter must be remanded

to the respondent for the conduct of a name clearing

hearing . . .”). Thus, the determination of truth or

falsity, and the ultimate entitlement of the affected

person to a declaration clearing his or her name, is in

no way determined in an Article 78 proceeding. An

Article 78 is distinctly not a proceeding at which an

individual can clear his name of government-inflicted

stigma. Only the name-clearing hearing can do that.

For a stigma plus plaintiff, the only remedy an

Article 78 affords is a direction to the official or body

who made the potentially defamatory statement to

convene an administrative name-clearing hearing. In

this respect, the Article 78 Proceeding is identical to

a Section 1983 lawsuit. As pointed out by the

decisions of the New York State courts, the Article 78

is not itself a name-clearing hearing.

16

Therefore, the state is not affording an

individual with a stigma-plus injury the required due

process by making an Article 78 available. It is

simply allowing the individual to litigate his

entitlement to due process, the same as he would in

a Section 1983 action. The effect of the opinion on

appeal, therefore, is to force an individual with a

claim for a violation of his constitutional rights to

litigate that claim in a state court to the exclusion of

federal court jurisdiction.

An analogous situation arose recently before

this Court in Knick v. Township of Scott. In Knick,

the court considered whether an individual with a

Takings Clause claim was required to seek

compensation in a state court proceeding prior to

bringing a Section 1983 action in federal court. This

Court held that no such exhaustion of state remedies

was required. “The fact that the State has provided a

property owner with a procedure that may

subsequently result in just compensation cannot

deprive the owner of his Fifth Amendment right to

compensation under the Constitution, leaving only

the state law right. And that is key because it is the

existence of the Fifth Amendment right that allows

the owner to proceed directly to federal court under

§1983.” 139 S. Ct. 2162, 2171 (2019).

In this case, the name-clearing hearing is like

the matter of just compensation considered in Knick.

This Court has made clear that the remedy for a

17

stigma-plus claim is a name-clearing hearing. The

remedy is not a state proceeding to determine

whether a name-clearing hearing is due.

This Court in Knick said firmly: “the settled

rule is that ‘exhaustion of state remedies’ is not a

prerequisite to an action under [42 U. S. C.] §1983.”

Id. at 2167. “The ‘general rule’ is that plaintiffs may

bring constitutional claims under §1983 ‘without

first bringing any sort of state lawsuit, even when

state court actions addressing the underlying

This Court

behavior are available.’” Id., 2172.

referred to imposing any exhaustion requirement as

“unjustified,” id., 2179, and said that, if Congress

wanted to impose an exhaustion requirement, it

could have done so. Id. at 2173-2174. This Court

recognized that its ruling applied with equal force to

any requirement that plaintiff proceed by way of

mandamus. Id., 2168, fn. 1. “[I]t would defeat the

purpose of § 1983 ‘if we held that assertion of a

federal claim in a federal court must await an

attempt to vindicate the same claim in state court.’”

Id., 2173.

One might argue that there is a fundamental

difference between just compensation, which is a

substantive remedy, and a name-clearing hearing,

which is a procedural remedy. This distinction is

mentioned in Knick, where the government argued

that the available state court proceeding to obtain

compensation was akin to post-deprivation due

18

process—which is sometimes deemed appropriate for

property deprivations. Id. at 1274. But this argument

conflates the remedy, whether procedural or

substantive, with a process through which one might

obtain the remedy. Knick held that there is no

requirement that the remedy be sought via State

process.

In the case of a property deprivation, the postdeprivation proceeding is designed to determine

whether the deprivation was justified and

adequately compensated. In the stigma-plus case,

however, the question the due process clause

requires to be determined is whether the defamatory

statements are true by a preponderance of the

evidence. Only a name-clearing hearing achieves

this. An Article 78 does not. The Article 78 is merely

a proceeding by which a stigma-plus plaintiff might

obtain a name-clearing hearing. Thus the Article 78

in this case is akin to the state court proceedings to

determine just compensation discussed in Knick.

“The ‘general rule’ is that plaintiffs may bring

constitutional claims under §1983 ‘without first

bringing any sort of state lawsuit, even when state

court actions addressing the underlying behavior are

available.’” Id. at 2172-73 (citation omitted). The

Article 78 proceeding itself does not provide a

stigma-plus plaintiff with due process. To require an

Article 78 in a stigma-plus case is to require

exhaustion of state court remedies. Knick expressly

19

holds that exhaustion of state court remedies is not a

prerequisite to bring a federal lawsuit to vindicate a

constitutional right under 42 U.S.C. § 1983.

The Second Circuit decision here presents a

scenario even more dramatic than in Knick. In

Knick, the State provided various remedies,

administrative and judicial, which were historically

considered complete and effective. The Supreme

Court held that, notwithstanding the adequacy of

those remedies, and prior precedent requiring use of

those remedies before proceeding in federal court,

there was no sound legal principle requiring

plaintiffs to invoke State process.

Here, in contrast, the State of New York

provides no relevant administrative or statutory

remedies to plaintiffs whatsoever. New York State

has never enacted any statute or regulations

providing a process for obtaining a name-clearing

hearing. In contrast, for example, if a teacher has

tenure, i.e. a property interest in employment, there

is a state provided procedure (Education Law § 3020a) to provide that teacher with a hearing. All a

tenured teacher need do is request it. Cf. Segal v.

City of New York, 459 F.3d 207, 214 (2nd Cir. 2006)

(unlike the rest of the State, the education system in

New York City does have post-termination process,

called a C-31 hearing, for non-tenured employees; a

C-31 hearing was not available to Plaintiffs, and

20

Defendants here twice denied their request for a

hearing).

At-will employees, such as plaintiffs, who

work outside of New York City have no posttermination hearing rights under New York State

law. If they want to utilize State process to vindicate

a federal right to a name-clearing hearing, at-will

employees must litigate in State Supreme Court.

CPLR 7804(a). The Article 78 proceeding referred to

by the panel is simply litigation in the nature of

mandamus. CPLR 7803(1).

In an Article 78 proceeding for substantive

review of the actions of a government officer, as

distinguished from an Article 78 proceeding in the

nature of mandamus, the standard is whether a

termination of employment is arbitrary, capricious,

or an abuse of discretion. CPLR 7803(3). However,

Plaintiffs here are not seeking to review their

termination to determine if it was supported by a

rational basis. Nor are they seeking reinstatement

to their positions. They are seeking a name-clearing

hearing in which the standard of review will be the

same as that applied in the case law cited above:

whether plaintiff could prove that the allegations

against them were false by a preponderance of the

evidence.

The most respected treatise on New York Civil

Procedure notes that Article 78 was enacted in 1937

(long before the concept of a name-clearing hearing

21

arose in federal jurisprudence) and describes an

Article 78 proceeding as follows:

The Article 78 proceeding supersedes

the common law writs of mandamus,

prohibition, and certiorari to review

supplying a uniform device for

challenging the activities of an

administrative agency in court. The

administrative agency is the major

apparatus today for the conduct of

government, the unit through which

regulation reaches down to the people

on an individual basis. The difficulty of

sharply delineating the writs is what

produced the Article 78 proceeding.

Segal on New York Practice, p. 1066 (6th ed. 2018).

Thus, there is no such thing as an Article 78 nameclearing hearing, and nothing of the sort is

mentioned anywhere in the statute.

With the opinion below, the Second Circuit

has now reaffirmed the outdated, erroneous position

that an Article 78 proceeding is sufficient due

process for a stigma-plus claim, which it previously

announced

in

Anemone

v.

Metropolitan

Transportation Authority, 629 F.3d 97, 121 (2d Cir.

2011) (referring to an “Article 78 name clearing

hearing,” which is non-existent). Other circuits also

have ruled that the availability of mandamus

satisfies the due process owed to a stigma-plus

22

plaintiff. See e.g., Cotton v. Jackson, 216 F.3d 1328,

1333 (11th Cir. 2000). Because this position is clearly

contrary to existing Supreme Court precedent

concerning an important constitutional right, this

Court should grant this petition and overrule the

opinion of the Second Circuit.

CONCLUSION

For the foregoing reasons, the petition for writ

of certiorari to the United States Court of Appeals for

the Second Circuit should be granted.

Dated:

Albany, New York

February 4, 2020

Phillip G. Steck, Esq.

Cooper Erving & Savage LLP

Attorneys for Petitioner

39 North Pearl Street

Albany, New York 12207

518-449-3900