Safepath Systems LLC v. New York City Department of EducationSafepath Systems LLC v. New York City Department of Education
Second, Kimble argues that the indictment must be dismissed because it is predicated on his New York State sex offender risk classification, the adjudication of which violated due process. This argument misapprehends SORNA‘s operation. Whether the State court hearings that determined Kimble‘s risk classification under New York law complied with due process has no bearing on the validity of the federal indictment charging Kimble with a violation of SORNA. It is Kimble‘s conviction for a qualifying sex offense in New York, not his subsequent risk classification under New York‘s Sex Offender Registration Act, that triggers SORNA‘s registration requirements. See
As Kimble acknowledges, his additional constitutional challenges to SORNA itself, under the Commerce Clause, Ex Post Facto Clause, and the Tenth Amendment, are foreclosed by this Court‘s case law. See United States v. Guzman, 591 F.3d 83 (2d Cir.2010); see also Lott, 750 F.3d at 219-20, 2014 WL 1622796, at *5.
We have considered Kimble‘s remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.
Michael J. Pastor (Kristin M. Helmers, on the brief), for Zachary Carter, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellees.
PRESENT: GUIDO CALABRESI, JOSE A. CABRANES, and DEBRA ANN LIVINGSTON, Circuit Judges.
Plaintiffs Safepath Systems LLC (“SSL“) and Gym Door Repairs, Inc. (“GDR“) appeal from the judgment of the
We otherwise assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review, to which we refer only as necessary to explain our decision.
We review de novo a district court‘s grant of a motion to dismiss under Rule 12(b)(6), “accepting as true all allegations in the complaint and drawing all reasonable inferences in favor of the non-moving party.” Gonzalez v. Hasty, 651 F.3d 318, 321 (2d Cir.2011). To survive a Rule 12(b)(6) motion to dismiss, the complaint must include “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim will have “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Although all allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Id.
A. Procedural Due Process Claim
The District Court was correct to dismiss plaintiffs’ procedural due process claim, because the plaintiffs were not deprived of any constitutionally cognizable property interest. “To state a claim for deprivation of property without due process of law, a plaintiff must identify a property interest protected by the Due Process Clause.” Harrington v. Cnty. of Suffolk, 607 F.3d 31, 34 (2d Cir.2010).
Here, plaintiffs’ claims arise from the “Safe Path System,” their patented system of electric folding partitions primarily used in school gyms. They contend that the combination of a New York State statute (
Property interests are “created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). Such
Although defendants were obliged to abide by the mandates while they were in force, the specification and regulation could be changed in defendants’ discretion (as in fact the specification was). And the mandates did not create an individual entitlement for plaintiffs that guaranteed an ongoing employment, contractual, or vendor relationship with the City. “Ordinarily, there is no constitutionally protected property interest in prospective government employment.” Abramson v. Pataki, 278 F.3d 93, 100 (2d Cir.2002). That is particularly true under New York‘s competitive bidding system, in which “bidders lack property rights in future contracts to be awarded under competitive bidding procedures.” Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1352 (2d Cir.1994); see also Conduit & Found. Corp. v. Metro. Transp. Auth., 66 N.Y.2d 144, 148-49, 495 N.Y.S.2d 340, 485 N.E.2d 1005 (1985) (“Neither the low bidder nor any other bidder has a vested property interest in a public works contract.“).
Because plaintiffs did not possess a cognizable property interest in the Safe Path System being installed in all City schools or in maintaining those that were installed, their procedural due process claim was properly dismissed.
B. Substantive Due Process Claim
Plaintiffs’ substantive due process claim was also properly dismissed, because they did not identify a constitutionally-protected property right. See Local 342, Long Island Pub. Serv. Emps., UMD, ILA, AFL-CIO v. Town Bd. of Town of Huntington, 31 F.3d 1191, 1196 (2d Cir.1994) (“In view of our conclusion that [plaintiffs] possessed no protectible property interest ..., it would appear obvious that [defendants‘] termination of those payments in no way violated the substantive due process rights of [plaintiffs].“); cf. Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 229 (1985) (Powell, J., concurring) (“Even if one assumes the existence of a property right, ... not every such right is entitled to the protection of substantive due process. While property interests are protected by procedural due process even though the interest is derived from state law rather than the Constitution, substantive due process rights are created only by the Constitution.“).
Alternatively, plaintiffs contend that defendants engaged in arbitrary and conscience-shocking behavior. These allegations are entirely conclusory and, in any event, appear to be based solely on the deprivation of rights we have determined were not protected property interests.
Accordingly, the District Court quite properly rejected the plaintiffs’ substantive due process claim.
C. First Amendment Retaliation Claim
The District Court erred, however, in dismissing plaintiffs’ First Amendment retaliation claim.
It is well-established that “the First Amendment protects a public employee‘s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). Although plaintiffs are independent contractors rather than public employees, their First Amendment rights are still protected: The Supreme Court has held that “proper application of the Pickering balancing test,” “adjusted to weigh the government‘s interests as contractor rather than as employer,” is appropriate for both public employees and independent contractors. Bd. of Cnty. Comm‘rs, Wabaunsee Cnty., Kan. v. Umbehr, 518 U.S. 668, 673, 678 (1996); see also Fahs Const. Grp., Inc. v. Gray, 725 F.3d 289, 291 (2d Cir.2013).
To make out a First Amendment retaliation claim, a plaintiff must demonstrate that “(1) his speech addressed a matter of public concern, (2) he suffered an adverse employment action, and (3) a causal connection existed between the speech and the adverse employment action, so that it can be said that his speech was a motivating factor in the determination.” Cobb v. Pozzi, 363 F.3d 89, 102 (2d Cir.2004) (quoting Mandell v. Cnty. of Suffolk, 316 F.3d 368, 382 (2d Cir.2003)).
Here, plaintiffs claim they were retaliated against for complaining of, and making public, defendants’ failure to comply with the various mandates. Specifically, plaintiffs allege that they notified defendants of their failure to comply, and, upon seeing no result, also notified the New York City Department of Investigations (“NYCDOI“) and the New York State Attorney General‘s Office (“NYAG“). Plaintiffs also filed a lawsuit in New York state court pursuant to NYCPLR Article 78 to compel defendants to enforce the law, regulation, and manual. Plaintiffs allege that defendants thereafter “instructed contractors ... to ‘never use’ GDRI or SPS on any NYCDOE or NYCSCA projects.” They also “removed (or caused the removal of) the Safe Path System from the specifications of NYCSCA.”
The District Court concluded that plaintiffs failed to allege any adverse action in retaliation for their speech, on the basis that they had no property interest in servicing and installing their Safe Path Systems in City schools. In doing so, it erred by addressing only whether plaintiffs were deprived of a property interest.
It is true that “retaliation cannot be established where no adverse action has been alleged.” Kuck v. Danaher, 600 F.3d 159, 168 (2d Cir.2010). The Supreme Court has held, however, that a First Amendment retaliation claim does not require any property interest protected by the Due Process Clause: “[E]ven though a person has no ‘right’ to a valuable governmental benefit and even though the gov-
Plaintiffs allege that they suffered “lost business opportunities and revenue, and deprivation and infringement of Plaintiffs’ rights as the owners and registrants of the intellectual properties related to the Safe Path System.” Joint App‘x 30. At the motion to dismiss stage, we must credit those allegations, which are certainly plausible given that contractors were ostensibly instructed never to contract with plaintiffs on City projects.
Accordingly, the District Court‘s conclusion that plaintiffs did not allege an adverse action was in error.
On appeal, defendants also press the argument that plaintiffs were not speaking on a matter of public interest, because they have a business interest in the result.
“[A] topic is a matter of public concern for First Amendment purposes if it is ‘of general interest,’ or ‘of legitimate news interest,’ or ‘of value and concern to the public at the time of the speech.‘” Jackler v. Byrne, 658 F.3d 225, 236 (2d Cir.2011) (quoting City of San Diego, Cal. v. Roe, 543 U.S. 77, 83-84 (2004)). Plaintiffs’ complaints and their subsequent lawsuit were of public interest, because they were publicly asserting that defendants were failing to comply with the law, thereby allegedly endangering New York City schoolchildren. That there is an ancillary private interest (here, plaintiffs’ profit motive) does not preclude First Amendment protection for speech that accuses defendants of failing to follow the law.
Equally important here, however, is plaintiffs’ right to petition the government for a redress of grievances. “The rights to complain to public officials and to seek administrative and judicial relief from their actions are protected by the First Amendment.” Dougherty v. Town of Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 91 (2d Cir.2002); see also White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2d Cir.1993) (right to petition claims governed by same constitutional analysis as free speech claims). Thus, even if the topic had not been of public interest, by complaining to defendants, the NYCDOI, and the NYAG, and by filing the Article 78 petition, plaintiffs were engaging in protected speech.
Plaintiffs have also met the third element required to allege First Amendment retaliation. At the pleading stage, “[i]t is sufficient to allege facts from which a retaliatory intent on the part of the defendants reasonably may be inferred.” Dougherty, 282 F.3d at 91 (emphasis supplied). Given the chronology of events as alleged, we conclude that there are questions of fact as to retaliatory intent that cannot properly be determined on a motion to dismiss.
Accordingly, we vacate the District Court‘s dismissal of plaintiffs’ First Amendment retaliation claim and remand for further proceedings consistent with this Order.
We also remand for consideration by the District Court of the claim for injunctive relief. In so doing, we do not intimate any
CONCLUSION
We have reviewed the record and considered plaintiffs’ remaining arguments on appeal, and find them to be without merit. For the reasons set out above, we AFFIRM IN PART the October 7, 2013, judgment of the District Court insofar as it dismissed plaintiffs’ due process claims, VACATE IN PART insofar as it dismissed plaintiffs’ First Amendment retaliation claims, and REMAND for further proceedings consistent with this Order.