900 F.3d 63
2d Cir.2018Background
- In May 2011, while attending a campus yoga class, Amy Colvin (an admissions counselor) identified herself as an attorney and told campus police she would get a union representative and lawyer for coworker Sherry Buch, advised Buch not to speak until counsel arrived, and offered to accompany Buch to the station. Officers threatened to arrest Colvin but did not do so.
- College HR issued a counseling memorandum criticizing Colvin for offering legal advice and "interfering with police business."
- Over the following months supervisors recommended against reappointment and, after about two more years of employment, Colvin’s employment was ultimately terminated (Colvin does not challenge the dismissal of the claim insofar as it rests on the 2013 termination).
- Colvin sued under § 1983 for First Amendment retaliation. After discovery the district court initially denied defendants’ summary judgment motion (accepting a magistrate judge’s report that the speech addressed matters of public concern) but later, after supplemental briefing, reversed course and granted summary judgment to defendants.
- Colvin appealed, arguing (1) the district court violated the law-of-the-case (LOTC) doctrine by changing its earlier denial, and (2) her speech was protected public‑concern speech; the Second Circuit affirmed on the alternative ground of qualified immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court’s reversal of its earlier denial of summary judgment violated the law‑of‑the‑case doctrine | Colvin: LOTC required the court to adhere to its prior denial and proceed to trial | Defendants: Court may reconsider pretrial rulings; no prejudice to Colvin from change | Court: No LOTC violation; trial court may revise non‑final rulings absent prejudice or abuse of discretion; affirmed. |
| Whether Colvin’s statements during the arrest incident constituted speech on a matter of public concern | Colvin: Advising an arrestee of constitutional rights/union representation addresses public concern (vindicating rights, police conduct) | Defendants: Statements were aimed at helping Buch personally, not addressing public policy or systematic misconduct | Court: Did not decide on the merits; found no clearly established law that Colvin’s brief, situational advice was protected public‑concern speech. |
| Whether defendants are entitled to qualified immunity for alleged retaliation | Colvin: Officers and administrators should have known the speech was protected | Defendants: No clearly established law held such bystanders’ advice is public‑concern speech | Court: Granted qualified immunity — reasonable officials could not have known the speech was clearly protected. |
| Whether Colvin established causation between 2011 incident and 2013 termination | Colvin: Termination was retaliatory for the 2011 incident | Defendants: Two‑year gap defeats causal link | Court: District court earlier dismissed retaliation claim tied to 2013 termination for lack of causation; Colvin did not challenge that dismissal on appeal. |
Key Cases Cited
- Pickering v. Bd. of Educ., 391 U.S. 563 (1968) (balancing employee speech versus government employer interest)
- Connick v. Myers, 461 U.S. 138 (1983) (speech is protected only if it addresses a matter of public concern)
- Garcetti v. Ceballos, 547 U.S. 410 (2006) (speech by public employees pursuant to official duties receives different treatment)
- Harlow v. Fitzgerald, 457 U.S. 800 (1982) (standard for qualified immunity)
- Pearson v. Callahan, 555 U.S. 223 (2009) (qualified immunity doctrine and order of inquiry)
- Golodner v. Berliner, 770 F.3d 196 (2d Cir. 2014) (speech about police misconduct can be public‑concern speech)
- Konits v. Valley Stream Cent. High Sch. Dist., 394 F.3d 121 (2d Cir. 2005) (aiding others to redress discrimination may be public‑concern speech)