Opposition Brief — Costello v. McEnery

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Bupreme Court, tS

r | ae E Dp

MAY 20 1992

No. 91-1519

pepe OF HE_GLER

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

VINCENT F. COSTELLO,

Petitioner,

-against-

THOMAS A. McENERY, in his official and

individual capacities; LUCIUS J. RICCIO, in

his official capacity as Commissioner of the

Department of Transportation of the City of

New York; THE PARKING VIOLATIONS

BUREAU OF THE CITY OF NEW YORK; THE

DEPARTMENT OF TRANSPORTATION OF

THE CITY OF NEW YORK; and THE CITY

OF NEW YORK,

Respondents.

Petition for a Writ of Certiorari to the United

States Court of Appeals for the Second

Circuit

RESPONDENTS' BRIEF IN OPPOSITION

O. PETER SHERWOOD,

Corporation Counsel for the

City of New York,

100 Church Street,

New York, New York 10007.

(212) 788-1072 or 788-1056

LEONARD KOERNER,*

STEPHEN J. McGRATH,

REBECCA NORTHEY,

KRISTIN M. HELMERS,

of Counsel.

*Counsel of Record May 20, 1992.

COUNTER-STATEMENT OF

THE QUESTIONS PRESENTED

1. Where a_ public employee claims

that he has been improperly transferred from

a government position because he criticized

certain agency policies and procedures, but

where he also concedes that his First

Amendment right to articulate such criticisms

has in no way been "chilled" by the

transfer, does the allegation of interference

with the exercise of First Amendment rights

in the workplace establish irreparable injury

per se for injunctive purposes, thereby

requiring temporary reinstatement of the

employee to his former position pending trial

of the underlying issues?

2. At a hearing on a motion seeking

preliminary injunctive relief, is it proper for

a Court to conclude that irreparable injury

has not been demonstrated, where the

evidence presented is inadequate to establish

that the plaintiff's fellow employees have

been "chilled" in the exercise of their First

-j-

Amendment rights, much less that temporary

reinstatement would abate any such effect, if

it in fact existed?

LIST OF PARTIES

Respondents accept the list of parties

provided by petitioner.

-ji-

TABLE OF CONTENTS

COUNTER-STATEMENT OF

THE QUESTIONS PRESENTED ___.......

TABLE OF AUTHORITIES ~..........

STATEMENT OF THE CASE _..........

(1)

(2)

(3)

(4)

The Factual Background... .

Petitioner's Legal Challenge

Opinion of the District

+ , TTPO CTCTT TT rT

Opinion of the Court

Of Appeals wc ccc ccc cecesees

SUMMARY OF THE ARGUMENT .......

REASONS FOR DENYING

THE WRIT «= cece evesevesssaeveees

POINT I

WHERE A PUBLIC EMPLOYEE

CLAIMS THAT HE HAS_ BEEN

TRANSFERRED BECAUSE HE

CRITICIZED CERTAIN AGENCY

POLICIES AND PROCEDURES, BUT

WHERE HE ALSO CONCEDES THAT

HIS FIRST AMENDMENT RIGHT TO

ARTICULATE SUCH CRITICISMS

HAS IN NO WAY BEEN _ INTER-

FERED WITH BY THE TRANSFER,

IT IS NOT AN ABUSE OF

DISCRETION TO REFUSE TO

REINSTATE THE EMPLOYEE TO

HIS FORMER POSITION PENDING

TRIAL. UNDER SUCH

CIRCUMSTANCES, THERE IS NO

"IRREPARABLE INJURY"

CAPABLE OF BEING ABATED BY

REINSTATEMENT, AND THE

DECISION OF THE COURT OF

APPEALS TO THAT EFFECT IS

FULLY IN ACCORD WITH ALL

APPLICABLE AUTHORITIES. .... 26

POINT II

THE COURT OF APPEALS

PROPERLY HELD THAT THE

DISTRICT COURT DID NOT

ABUSE ITS DISCRETION IN NOT

CONSIDERING AFFIDAVITS, OF

QUESTIONABLE EVIDENTIARY

VALUE, ALLEGEDLY

ESTABLISHING THAT

PETITIONER'S TRANSFER HAD

CHILLED HIS FELLOW EMPLOYEES

IN THE EXERCISE OF THEIR

FIRST AMENDMENT RIGHTS. .... 39

CONCLUSION —CN™N____lneee cece eee eeeee 40

-iv-

TABLE OF AUTHORITIES

Cases: Page

American Postal Workers Union v.

United States Postal Service,

766 F.2d 715 (2nd Cir., 1985),

cert. denied, 475 U.S. 1046

POO Ter eee ere eee 17,

17, 21, 39

Bantam Books ¥ v. Sullivan,

BES Fo ere 31

Brown v. Chote, 411 U.S. 452

terre rrrererererrreerrre 27

Connick v. Myers, 461 U.S. 138

as ance neneeeeke 33,

Doran v. Salem Inn, Inc.,

- 9.e Re Bi. } reer vrrrrre? 26,

Elrod v. Burns, 427 U.S. 347

Co) eae rte Tre Teer ee eee 20,

23, 27, 28, 29, 30, 32, 33, 34, 35

Givhan v. Western Line

Consolidated School District,

2s Me: 8: | eerie 33

Johnson v. Bergland, 586 F.2d

ee ee ee | rr rrrre rr rs 36

Maceira v. Pagan, 649 F.2d 8

Coe Secs BED) 9) beweunedunes 36

McDonough v. Trustees of the

University System of New

Hampshire, 704 F.2d 780

(ist Cir., 1983) sere e teen cease 36

Mt. Healthy City School District

Board of Education v. Doyle,

429 U.S. 274 (1977) —s_. ww ee ees

Newsom v. Norris, 888 F.2d 371

(6th Cir., 1989) =. ce nneees

New York Times Co. v. United

States, 403 U.S. 713 (1971)

Perry v. Local Lodge 2569, 708

F.2d 1258 (7th Cir., 1983) ae

Pickering v. Board of Education,

391 U.S. 563 (1968) ..........

Rankin v. McPherson,

483 U.S. 378 (1987) .....-....

Romero Feliciano v. Torres

Gaztambide, 836 F.2d 1

(ist Cir., 1987) «§«-_—«_—caccecvveees

Rutan v. Republican Party,

497 U.S. 62 (1990) —s._... a ee eee

27, 28m, 32, 33,

Sampson v. Murray, 415 U.S. 61

(Ul) eee eee

Savage v. Gorski, 850 F.2d 64

(2nd Cir., 1988) «san ncncccccceess

Shondel vy. McDermott, 775 F.2d

859 (7th Cir., 1985) = ......ee-

ss00 Sep

34, 35

soe WD,

21, 39

Other Authorities

United States Constitution,

Amendment IT... cc ccc eee eees passim

New York City Administrative

|) ES ener 22

-vii-

No. 91-1519

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

VINCENT F. COSTELLO,

Petitioner,

-against-

THOMAS A. McENERY, in his official and

individual capacities; LUCIUS J. RICCIO, in

his official capacity as Commissioner of the

Department of Transportation of the City of

New York; THE PARKING’ VIOLATIONS

BUREAU OF THE CITY OF NEW YORK; THE

DEPARTMENT OF TRANSPORTATION OF

THE CITY OF NEW YORK; and THE CITY

OF NEW YORK,

Respondents.

Petition for a Writ of Certiorari to the United

States Court of Appeals for the Second

Circuit

RESPONDENTS' BRIEF IN OPPOSITION

STATEMENT OF THE CASE

(1)

The Factual Background

The plaintiff in the instant action

(hereafter referred to as "petitioner" )

served as Director of Operations with the

respondent City's Parking Violations Bureau

("PVB") from May or June of 1980 through

June 1, 1990, when he was transferred to

another division within the same agency (32,

34, 47, 100, 270).+

During his tenure as head of the

Operations Division, petitioner received

generally favorable evaluations by his

supervisors, except with respect to his

ability to work productively with fellow

executive staff (147-158). One supervisor

noted on the evaluation form that "at times

[petitioner's] lack of control of emotions at

meetings seriously detracted from _ [his]

otherwise professional manner" (440-441).

Petitioner did not agree with this assessment

A Unprefixed numbers in parentheses refer

to pages in the Joint Appendix filed in the

U.S. Court of Appeals for the Second

Circuit. Numbers preceded by the letter

"A" refer to pages in the Appendix to the

instant petition.

-93-

of his behavior (441). However, when

respondent McEnery became Director of the

PVB in February 1988, petitioner was

reporting to the agency's legal counsel

because he had previously had _ difficulty

working with other executive staff members

(263) .”

In March of 1988, petitioner wrote the

first of a long series of memos, directed to

2 The independent report released by New

York City's Department of Investigation

("DOI") in June 1991, in response to

petitioner's charge that his transfer was in

retaliation for his alleged whistle-blowing

activities, notes evidence of "a history of

conflict and disagreement between

[petitioner] and virtually all other PVB

managers" (216). It also details specific

instances of his "divisive manner" and

inability to work constructively with his

peers (230-233). Further instances of

petitioner's disruptive behavior were

provided by one of his former colleagues at

the hearing held by the District Court on

the motion at issue here. She described

discussions of issues at staff meetings

degenerating into personal attacks by

petitioner on staff disagreeing with his views

and was of the opinion that petitioner's

presence made it impossible to conduct any-

agency business (460-465).

-3-

his colleagues and superiors, whose critical

content petitioner claims resulted in his

removal as Director of Operations (11-14,

136). These memos covered topics as

diverse as the agency's use of a_ highly

complex, recently installed computer system

(35-37, 219-220); its policies on refunds (37,

60, 223); its procedures for’ enforcing

judgments (38-39); and the content of a

collection letter (40-41).

By the fall of 1989, petitioner, who is

not a lawyer, had turned his attention to a

legal matter, disagreeing with the agency's

interpretation of a state court decision (41,

85-86, 221). He could not be persuaded

that there was another, valid point of view,

even after respondent McEnery consulted

with the City's Corporation Counsel and the

Corporation Counsel's office issued a formal

opinion validating the agency's position (42,

43, 44, 88-90, 221-222, 264-265, 268). All

of petitioner's complaints were reiterated on

-4-

a regular basis at executive staff meetings

(39, 41, 221-222).

By mid-1989, respondent McEnery had

become concerned with what he characterized

as petitioner's "increasingly negative

attitude, confrontational style, difficulty in

getting along with peers and supervisors,

and preoccupation with a limited number of

issues" (266-267). Petitioner habitually

insulted and belittled other staff members at

executive meetings, meetings which

respondent McEnery had been required to

interrupt "more than once" to defuse angry

confrontations initiated by petitioner (266).

Petitioner had also become "preoccupied

with his criticisms, using every staff meeting

as a forum for airing his views," thus

making it "more and more difficult to address

other issues" when petitioner was present

(266). In addition, respondent McEnery

believed that petitioner had become "rigid

and isolated" as Director of the Operations

-5-

-_-_—_——- ww

Division, resisting efforts by the Director

and Deputy Director of the agency to obtain

information about the operation of

petitioner's division and making it difficult

for them to supervise and_ coordinate

effectively (267).°

Respondent McEnery presented the idea

of transferring petitioner to the

Commissioner of DOT at the end of 1989, and

he then discussed it with the new

Commissioner, respondent Riccio, when he

. The June 1991 DOI report’ contains

evidence of similar assessments from other

sources (231-233). In a March 1989

memorandum, petitioner's immediate

supervisor described his inability to take

direction and constructive criticism, noting

that petitioner's "perception that no other

PVB employees were interested in serving

the public was insulting and a disservice to

his colleagues" (231). Eight months later

the same supervisor, in a memorandum dated

November 15, 1989, reminded respondent

McEnery of earlier discussions concerning

petitioner's "divisive behavior" and "defiance

of all direction," urging respondent McEnery

to discuss petitioner's reassignment within

the Department of Transportation ("DOT")

with senior DOT managers (232-233).

-6-

assumed charge of the agency in early 1990

(268, 471). In the meantime, in response to

a series of audit reports issued in late 1989

and early 1990 by the State Comptroller's

Office calling for additional quality controls

at PVB, the agency had decided to create

the new position of Director of Quality

Control and Project Implementation (267).

Respondent McEnery did not initially have

petitioner in mind for this slot, but, after

the decision to transfer him had been made,

respondent McEnery believed that the

position's "watchdog and public information

functions" would provide a_ constructive

outlet for petitioner's energies (233, 268,

470). Accordingly, on April 4, 1990, after

obtaining the Commissioner's approval,

defendant McEnery began drafting a memo to

the staff announcing creation of the new

directorship, petitioner's appointment to the

position, and other proposed agency changes

(268, 310-311, 470).

Some six weeks later, on May 14, 1990,

petitioner and defendant McEnery attended a

dinner hosted by the Association of PVB

Administrative Law Judges at which

petitioner received the Association's

"Administrator of the Year Award" (44,

268-269). In a speech to the members, all

of whom were employed at PVB and with

many of whom petitioner had long-standing

and close’ relationships (269), petitioner

again voiced his views on the legal matter

addressed in the Corporation Counsel's

opinion (44). He also charged that PVB

interfered with the ability of the ALJ's to be

fair and impartial (44).

According to petitioner, this was his

"first public statement regarding PVB's

illegal and unethical policies and practices,"

and respondent McEnery allegedly "expressed

his dissatisfaction" with petitioner's remarks

(44). Respondent McEnery recalled that

petitioner had expressed "the same criticisms

-8-

he had voiced over and over again in the

past," but respondent McEnery did _ not

remember "expressing dissatisfaction" and

saw nothing particularly significant in the

fact that petitioner had chosen to air his

views to a group of PVB administrative law

judges (268-269).

On May 24, 1990, approximately seven

weeks after the transfer decision had been

made and ten days after the administrative

law judges' dinner, respondent McEnery

informed petitioner that he intended to move

him to the newly-created position of Director

of Quality Control and Project

Implementation, where petitioner would be at

a comparable managerial level and receive the

same salary (269). Petitioner rejected the

offer of the new directorship outright on the

ground that it was not comparable to his

former position, and because respondent

McEnery allegedly refused to describe or

document the position's scope and

responsibilities (44-46, 233-234, 269).

On the following day, May 25, 1990,

respondent McEnery asked petitioner, in a

written memo, to reconsider the transfer.

He also informed him that, if he still rejected

the offer, petitioner would nevertheless be

removed as Director of Operations, effective

June 1, 1990 (47, 98, 136, 270).

The removal was confirmed by

memorandum dated May 30, 1990 and

petitioner was reassigned, at the same

salary, to the DOT General Counsel's office

(47, 100, 270). According to petitioner, he

was given no_ responsibilities after his

transfer and spent ninety percent of his time

during the twelve months prior to

commencement of the instant action doing

absolutely nothing (48).

Upon receipt of respondent McEnery's

May 30, 1990 removal memorandum, petitioner

immediately contacted New York City Council

-10-

President Andrew Stein (47). In response,

Council President Stein contacted the

defendant DOT Commissioner (47, 102-103).

He also requested __ that the City's

independent Department of Investigation

("DOI") look into the _ circumstances

surrounding petitioner's transfer and _ his

allegation that he had been demoted for

"whistle-blowing" activities (48, 214).

The DOI began an investigation in July

of 1990, interviewing petitioner on July 20

and July 23 (48-49, 214). A DOI

investigator allegedly informed petitioner that

he could expect a report of the results by

the end of September 1990 (49). However,

DOI ultimately found it necessary to conduct

23 depositions and interviews with 21 PVB

and DOT managers, including petitioner, and

to review agency records over a five-year

period (215). Its final report was not

issued until nine months later, on June 11,

1991 (214-235).

-]]-

After a detailed discussion of

petitioner's various charges, the DOI report

concluded that he had not been retaliated

against for "whistle-blowing" activities, in

contravention of the applicable’ statutes

(230-234). Instead (234),

— the evidence demonstrates

that the disagreement between

[petitioner] and PVB managers led

to a lack of mutual _ respect,

civility and a shared common

agreement on the purpose and

functions of PVB. For’ this

reason, the PVB Director and

Deputy Director decided to remove

[ petitioner ] as Director of

Operations, where he had

substantial authority over PVB's

management, and place him in a

position where he had authority to

comment and advise but not to

direct PVB's operations.

Notwithstanding this assessment of

petitioner's claim, DOI noted that petitioner's

suggestions had often in fact been adopted

by management (218), and it judged that "it

would be _ unfortunate if [petitioner's]

services, experience, and talents were to be

lost" (234). However, the DOI also

recognized that "it would be unwise to force

-12-

PVB senior managers to work with a person

whom they perceive to have little respect for

them or their efforts" (234), and _ it

recommended that a managerial position be

found for petitioner outside of PVB (235) .4

(2)

Petitioner's Legal Challenge

On or about May 22, 1991, petitioner

filed a complaint in the United States District

Court for the Southern District of New York

alleging, inter alia, that 42 U.S.C. § 1983

had been violated (1) by respondents'

removal of petitioner from his managerial

‘ In July or August of 1990, respondents

had in fact informed petitioner of an opening

as fiscal officer at the New York City

Department of Records and _ Information

Services, but petitioner declined to interview

for the position (138-139). In June 1991,

petitioner again refused to be interviewed

for two positions within DOT because they

were classified at a slightly lower managerial

level than his former position and petitioner

believed the jobs were therefore "not

responsive to my legal claims" (139-140,

434-436, 450-451).

-1]3-

position at PVB on or about May 24, 1990, a

year earlier; (2) by their transfer of

petitioner to another division, at the same

salary but without managerial

responsibilities; and (3) by their failure to

offer him an equivalent managerial position

(1-18). According to petitioner these

actions were undertaken in retaliation for the

exercise of his First Amendment right to

comment on_ certain PVB_ policies and

practices which he considered illegal and

unethical (7, 11, 15-17).°

The complaint itself sought both

preliminary and permanent injunctive relief,

in addition to declaratory relief and damages

(15-18). The complaint's request for interim

relief was duplicated in the simultaneously

filed motion at issue here (28-29, 487).

. The complaint also alleged due process

and equal protection violations and set forth

several pendent state claims not at issue on

this appeal (11-15).

-14-

A hearing on petitioner's motion seeking

reinstatement to his former position, pending

trial of the underlying issues, was held on

July 11, 1991 (374-482). Petitioner's request

for interim relief was denied by an Order

and Opinion of the United States District

Court for the Southern District of New York

(Leisure, D.C.J.), dated July 16, 1991

(A8-A36).

By order entered October 22, 1991, the

United States Court of Appeals for the

Second Circuit unanimously affirmed the

District Court's order (A1-A6). On

December 19, 1991, the same Court denied

petitioner's request for a rehearing

(A37-A38).

(3)

Opinion of the District Court

In an opinion reported at 767 F.Supp.

72, the District Court briefly reviewed the

factual background and contentions of the

parties before discussing the applicable legal

-15-

principles (A9-A20). Citing to relevant

authority, the Court noted that, in the

Second Circuit, the threshold inquiry is

whether the applicant for a_ preliminary

injunction has demonstrated that he or she is

likely to suffer irreparable harm if equitable

relief is denied (A20-A23). Only where a

sufficient showing on this issue has been

made is it necessary to consider whether the

moving party has also established either (1)

a likelihood of success on the merits, or (2)

sufficiently serious questions going to the

merits to make them a fair ground for

litigation and a balance of hardships tipping

decidedly in its favor (A20-A22).

With respect to irreparable injury in

cases alleging retaliatory action for the

exercise of First Amendment rights in an

employment’ situation, the District Court

found two of the Second Circuit's recent

decisions controlling, American __ Postal

Workers Union v. United States Postal

-16-

Service, 766 F.2d 715 (2nd Cir., 1985),

cert. denied, 475 U.S. 1046 (1986), and

Savage v. Gorski, 850 F.2d 64 (2nd Cir.,

1988) (A23-A30). American Postal Workers

held that, although a chilling of First

Amendment rights might, in certain

circumstances, constitute irreparable injury,

the plaintiff therein had not established the

existence of a chilling effect on union

activity by virtue of failure to reinstate the

union's president pending an arbitrator's

decision concerning the legality of his

termination. The Court reasoned that the

source of any alleged chill had to be the

threat of permanent discharge and that such

a threat could not be eliminated by an

interim injunction (A23-A30). This holding -

was reiterated three years later in Savage v.

Gorski, where the Second Circuit also noted

that, because reinstatement and money

damages could make whole any government

employee allegedly dismissed for the First

-17-

Amendment exercise of political beliefs, the

injury was "plainly reparable" (A28).

The District Court failed to find any

basis on which American Postal Workers and

Savage _v. Gorski could be distinguished

from the case at bar--particularly in light of

petitioner's concession that his own First

Amendment rights had not in fact been

chilled either before or since his transfer,

and given what the Court described as the

"unpersuasive" and only marginally relevant

evidence of the transfer's chilling effect on

other PVB employees (A29-A30).° It

. This evidence consisted of (1) a

"declaration" by an attorney associated with

petitioner's counsel summarizing the content

of eight sworn affidavits purportedly

establishing that the affiants were reluctant

to report illegal agency activity because of

petitioner's removal (245-248); and (2)

testimony by an administrative law judge

- employed by PVB stating, inter alia, that he

was concerned about possible "negative"

consequences flowing from his appearance at

the hearing on petitioner's motion (A30, n.7;

403). There was no indication in either

(Footnote Continued)

-18-

ieee

rejected petitioner's "direct violation"

theory, recognizing but declining’ the

invitation to rule that the effects of a past

First Amendment violation must be presumed

to continue and therefore any _ alleged

infringement of First Amendment rights

constitutes irreparable injury per se

(A31-A32). The District Court pointed out

that all of the Second Circuit cases relied on

by petitioner in support of this theory

involved, not dismissals from employment,

but the application or enforcement of

statutes and vues regulating conduct (A31,

A32).

Finally, the Court noted that what it

termed a "related consideration," i.e.,

petitioner's year-long delay in seeking

(Footnote Continued)

source that petitioner's reinstatement on a

temporary basis would relieve the alleged

chill, and, as the Court specifically noted,

the ALJ did not state that his concern "was

in any manner connected to [petitioner's]

transfer" (A30, n.7).

- 19-

hiatal

injunctive relief, argued against the need for

drastic action to remedy an_ irreparable

injury (A32-A35). Since petitioner had

failed to make the’ requisite’ threshold

showing of harm necessary to _ justify

issuance of injunctive relief, the Court

denied the motion without assessing

petitioner's likelihood of success on _ his

underlying claims (A35-A36).

(4)

Opinion of the Court of Appeals

In its unpublished summary order,

reported at 948 F.2d 1278, the United States

Court | of Appeals for the Second Circuit

noted, first, that its review of the district

court's refusal to grant interim injunctive

relief was limited to a determination of

whether there had been an abuse of

discretion in the lower court's application of

the governing principles (A2-A3). It could

find no such abuse here.

-20-

With respect to the question of

irreparable injury, the Court observed that

loss of employment does not fall into that

category, citing Sampson _v. Murray, 415

U.S. 61, 91-92 (1974) (A4). While

recognizing that "interference with First

Amendment rights may constitute irreparable

harm" (A4), the Court found that principle

inapplicable here because (1) petitioner had

not altered his speech to retain his position;

and (2) he had conceded that respondents

had not infringed his First Amendment rights

since the transfer (A4). Under’ such

circumstances, the Court concluded that

Elrod v. Burns, 427 U.S. 347 (1976), was

not controlling, and held, as it had in

Savage v. Gorski and American Postal

Workers Union v. U.S. Postal Service,

supra, that reinstatement with back pay,

without injunctive relief, could adequately

compensate petitioner (A4).

-21-

Nor could the Court find any abuse of

discretion in the district court's refusal to

consider petitioner's evidence of a chilling

effect on the speech of his fellow employees

(A4). It pointed out, as it had in both

Savage v. Gorski, supra, 850 F.2d at 67-68,

and American Postal Workers, supra, 766

F.2d at 722, that, because permanent

transfer was the real source of any

purported chill, temporarily returning

petitioner to his job pending resolution of

the case would not abate that’ effect

(A4-A5). The Court then further held that

Sampson, supra, disposed of the argument

that damage to petitioner's self-esteem

flowing from the allegedly menial nature of

his current assignments __ constituted

continuing punishment for the prier exercise

of his First Amendment rights (A5).

Finally, the Court upheld the district

court's consideration of petitioner's long

delay in seeking interim relief as a factor

-22-

bearing on the existence vel non _ 0of

irreparable injury (A6). It pointed out that

petitioner's exhaustion argument did _ not

require a different conclusion, since the

relevant exhaustion statute -- New York

City's so-called "Whistleblower Law," Admin.

Code § 12-113 (A40-A43) -- does not in any

way limit an employee's right to seek judicial

review of a personnel decision and, in fact,

the instant action was commenced before the

investigatory procedures provided for in the

Code had been completed (A6).

SUMMARY OF THE ARGUMENT

The Court of Appeals for the Second

Circuit properly rejected petitioner's

argument that a personnel action allegedly

taken in response to a public employee's

criticism of his employer's’ policies’ or

practices constitutes irreparable injury per

se, thereby automatically requiring

reinstatement to his prior position pending

trial of the underlying issues. This

-23-

conclusion is not in conflict with this Court's

decision in Elrod v. Burns, 427 U.S. 347

(1976), which not only pertained solely to

political speech, but limited its discussion of

“irreparable injury" to situations in which a

First Amendment violation was either

threatened or ongoing, in the sense that it

had in fact caused an employee to change his

political aliegiance in order to retain his job.

Nor is it in conflict with Rutan v.

Republican Party, 497 U.S. 62, 110 S.Ct.

2729 (1990), which was similarly limited to a

discussion of the First Amendment right to

freedom of political association. In addition,

since Rutan involved a motion to dismiss and

does not address the question of irreparable

injury, its discussion of the presumed

chilling effect of personnel decisions based

on patronage is irrelevant where, as here,

patronage is not at issue and the complaining

party concedes that his transfer from one

government position to another did not cause

-24-

ee —————————k———

him to cease criticizing agency policies and

procedures.

For the same reasons, there is no

conflict between the Second Circuit's

determination that interim’ relief was

appropriately denied by the district court

and various determinations by other Circuit

Courts of Appeal concerning the propriety of

such relief where political speech is at issue,

or where the context concerns reappointment

of a prisoner as an advisor to other inmates.

Finally, what petitioner defines as a

standing problem reduces to the question of

whether the district court properly declined

to consider affidavits concerning the alleged

chilling effect on petitioner's fellow

employees resulting from his transfer. This

determination was based not only on the

questionable evidentiary value of the

affidavits, but on the conclusion that, even

if such chill in fact existed, its source was

the threat of permanent transfer; this threat

-25-

could not be abated by temporary rein-

statement; and there was no indication that

the proferred affidavits could establish the

contrary.

REASONS FOR DENYING THE WRIT

POINT I

WHERE A PUBLIC EMPLOYEE

CLAIMS THAT HE HAS’ BEEN

TRANSFERRED BECAUSE HE

CRITICIZED CERTAIN AGENCY

POLICIES AND PROCEDURES, BUT

WHERE HE ALSO CONCEDES THAT

HIS FIRST AMENDMENT RIGHT TO

ARTICULATE SUCH CRITICISMS

HAS IN NO WAY BEEN INTER-

FERED WITH BY THE TRANSFER,

IT IS NOT AN ABUSE OF

DISCRETION TO REFUSE TO

REINSTATE THE EMPLOYEE TO

HIS FORMER POSITION PENDING

TRIAL. UNDER SUCH

CIRCUMSTANCES, THERE IS NO

"TIRREPARABLE INJURY",

CAPABLE OF BEING ABATED BY

REINSTATEMENT, AND THE

DECISION OF THE COURT OF

APPEALS TO THAT EFFECT IS

FULLY IN ACCORD WITH ALL

APPLICABLE AUTHORITIES.

(1)

There is no Conflict With Prior

Decisions of this Court.

As this Court has_ noted, "[t]he

traditional standard for granting a

-96-

preliminary injunction requires the plaintiff

to show that in the absence of its issuance

he will suffer irreparable injury and also

that he is likely to prevail on the merits."

Doran v. Salem Inn, Inc., 422 U.S. 922, 931

(1975) (emphasis added). Accord, Brown vy.

Chote, 411 U.S. 452, 456 (1973).

Petitioner proposes that this Court

review the instant case because the Second

Circuit did not see fit to apply a standard

from which either the "irreparable injury"

requirement of Doran v. Salem Inn had been

completely eliminated, or to which a proviso

had been added stating that the standard

applies "except where there is an allegation

that a government employee's First

Amendment right to comment on the policies

and practices of his employer has_ been

violated in the past, in which case the past

violation will be considered irreparable injury

even though injunctive relief cannot, by

definition, prevent it."

-27-

In support of this proposition,

petitioner posits a conflict between the result

reached by the Court of Appeals here and

this Court's decisions in Elrod v. Burns, 427

U.S. 347 (1976), and in Rutan v. Republican

Party of Illinois, 497 U.S. 62, 110 S. Ct.

2729 (1990).’ No such conflict exists.

We note, first, that petitioner is forced

to adopt this position because he has

conceded that the act of transferring him to

another position within the agency did not

prevent him from articulating his criticisms

of PVB, and that he has not been prevented

from doing so since. It is this fact which is

at the heart of his attempt to read into Elrod

and Rutan the theory that irreparable injury

Rutan, on which petitioner focuses in the

instant petition, is not cited at all in his

original brief to the Second Circuit,

suddenly assuming importance only in

petitioner's request for reargument or a

rehearing en banc.

-28-

may be established by the mere allegation of

a past First Amendment violation.

In support of this proposition,

petitioner observes that three of the

plaintiffs in Elrod had been discharged for

refusal to change their political affiliations.

He then quotes a passage which not only

makes no reference to this category of

plaintiffs, but is directly preceded by two

sentences in which mention of their status is

conspicuously missing. See, Petition at

p. 21. The omitted introductory part of the

quotation in question reads as _ follows

(Elrod, supra, 427 U.S. at 373):

At the time a preliminary

injunction was sought in the

District Court, one of the

respondents was only threatened

with discharge. In addition, many

of the members of the class

respondents were seeking to have

certified prior to the dismissal of

their complaint were threatened

with discharge or had agreed to

provide support for the Democratic

party in order to avoid discharge.

-29-

This is directly followed by the

language on which petitioner relies (id. )

(emphasis added):

It is clear therefore that First

Amendment interests were either

threatened or in _ fact being

impaired at the time relief was

sought. The loss of First

Amendment freedoms, for even

minimal periods of time,

unquestionably constitutes

irreparable injury.

To support petitioner's theory, the

omitted introductory sentences must be

disregarded; the "therefore" must be

eliminated from the first sentence of the

passage on which petitioner relies; and the

sentence immediately following must _ be

rewritten to refer not just to rights which

"were either threatened or in fact being

impaired," but to rights which had been so

impaired in the past. That this degree of

semantic manipulation was _ not intended,

however, is emphasized by the citation to

U.S. 713 (1971), which immediately follows

-30-

(and which is also omitted by petitioner).

That case concerned not a past violation,

but an ongoing situation of prior restraint. ®

In other words, in holding that Elrod

was not relevant because the instant

petitioner had not altered his speech to

retain his position, the Second Circuit was

referring directly to the mention of the

respondents in Elrod who had changed their

party allegiances in order not to lose their

jobs. It is petitioner's statement that

"[nJothing in Elrod suggests that the

plaintiffs suffered any additional injuries

. The Elrod Court then concludes that the

Court of Appeals could properly have found

that the district court abused its discretion

in refusing interim relief, "[s]Jince such

injury was both threatened and occurring" at

the time the motion was made, id. at 374,

not "since such injury was threatened, had

occurred, and was occurring." Again, the

citation which follows this passage, Bantam

Books v. Sullivan, 372 U.S. 58, 67 (1963),

refers to a case in which preliminary

injunctive relief was issued in response to a

threat of future action, not past violation.

-3l-

cognizable under the First Amendment by,

for example, changing their political

parties," Petition at p. 23, which is flatly

contradicted by the text, since the dismissed

plaintiffs to whom petitioner refers are not

mentioned in the category of plaintiffs to

which the Court's reasoning applies. See,

Shondel v. McDermott, 775 F.2d 859, 867

(7th Cir., 1985) (noting that Elrod does not

discuss reinstatement).

Secondly, petitioner's insistence that

there is a conflict with Rutan v. Republican

Party is, if possible, a position even less

tenable than his assertion that the Second

Circuit's holding conflicts with Elrod.

Petitioner correctly notes that Rutan does

not comment on the "irreparable injury"

standard. Petition at p. 22, n.*. Despite

this recognition, he then incorrectly reasons

that Rutan's discussion of the presumed

chilling effects of patronage dismissals

applies (1) in a situation where any such

-32-

presumption has been overcome by

petitioner's concession that his own First

Amendment rights were never chilled; and

(2) where the rights involved have nothing

to do with an individual's personal choice of

political affiliation.

Indeed, both Elrod and Rutan stand for

the principle that, except in the case of

high-level public employees whose political

affiliation may well be a matter of legitimate

concern, government personnel decisions can

not be made on the basis of an employee's

political affiliation. The same _ proposition

has not, however, been extended to a public

employee's right to comment on the policies

and practices of his or her employer.

To the contrary, a series of decisions

by this Court has established that an

employee's First Amendment right to speak

out on such matters is not absolute.

Connick v. Myers, 461 U.S. 138 (1982);

Givhan_v. Western Line Consolidated School

-33-

District, 439 U.S. 410 (1979); Mt. Healthy

City School District Board of Education vy.

Doyle, 429 U.S. 274 (1977); Pickering v.

Board of Education, 391 U.S. 563 (1968).