563 F. App'x 851
2d Cir.2014Background
- SSL and Gym Door Repairs sued the City, NYCDOE, NYCSCA and officials under 42 U.S.C. § 1983 alleging due process and First Amendment retaliation.
- They argued the Safe Path System mandates created a property interest in using and being the sole installer/maintainer of the system.
- The district court dismissed procedural due process and substantive due process claims, but sua sponte rejected or limited the retaliation claim.
- The court applied de novo review to Rule 12(b)(6) dismissal standards and stated that facial plausibility is required.
- Plaintiffs alleged retaliation after they complained to NYCDOI/NYAG and filed an Article 78; defendants allegedly instructed contractors never to use the Safe Path System and removed it from specifications.
- The Second Circuit affirmed in part: procedural and substantive due process claims were dismissed; the First Amendment retaliation claim was vacated and remanded for further proceedings, including injunctive relief considerations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural due process property interest | Plaintiffs contended mandates created entitlement | Mandates did not create an individual protected entitlement | Property interest not cognizable; dismissal affirmed |
| Substantive due process protection | If a property right existed, conduct was egregious | No substantive due process right tied to contracts | Substantive due process claim properly rejected |
| First Amendment retaliation against an independent contractor | Speech on public concerns protected; retaliation for complaints | No adverse action proven; not public concern | District Court erred; retaliation claim vacated and remanded; injunctive relief possible |
Key Cases Cited
- Harrington v. County of Suffolk, 607 F.3d 31 (2d Cir. 2010) (creation of cognizable property interests for due process)
- Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) (benefits not protected entitlement if discretionary)
- Abramson v. Pataki, 278 F.3d 93 (2d Cir. 2002) (no ordinarily protected property interest in prospective government employment)
- Terminate Control Corp. v. Horowitz, 28 F.3d 1335 (2d Cir. 1994) (no vested property interest in public contracts under bidding)
- Umbehr v. City of Lawrence, 518 U.S. 668 (1996) (unconstitutional conditions applied to independent contractors)
- Perry v. Sindermann, 408 U.S. 593 (1972) (speech rights; interest in redress protected even without entitlement)
- Dougherty v. Town of North Hempstead Bd. of Zoning Appeals, 282 F.3d 83 (2d Cir. 2002) (right to petition protected; pleading sufficiency for retaliatory intent)
- Umbehr, 518 U.S. 668 (1996) (applying First Amendment retaliation to independent contractors)
- Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011) (speech topic public concern; ancillary private interest does not negate protection)
- Garcetti v. Ceballos, 547 U.S. 410 (2006) (public employee speech framework applied to contractors)
- City of San Diego v. Roe, 543 U.S. 77 (2004) (public concern standard for speech)
- Dougherty v. Town of North Hempstead, 282 F.3d 83 (2d Cir. 2002) (protected right to petition and speak)