Dwyer v. Regan, No. 84-7956

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore TIMBERS, NEWMAN and KEARSE
Citation793 F.2d 457
PartiesFrancis J. DWYER, Plaintiff-Appellant, v. Edward V. REGAN, Individually and as Trustee and Administrative Head of the New York State Employees Retirement System, Defendant-Appellee.
Docket NumberNo. 84-7956
Decision Date11 June 1986

Page 457

793 F.2d 457
Francis J. DWYER, Plaintiff-Appellant,
v.
Edward V. REGAN, Individually and as Trustee and
Administrative Head of the New York State
Employees Retirement System, Defendant-Appellee.
No. 84-7956.
United States Court of Appeals,
Second Circuit.
June 11, 1986.

Eileen M. Kelley, Albany, N.Y. (William F. Sheehan, Hinman, Straub, Pigors & Manning, P.C., Albany, N.Y., on brief), for plaintiff-appellant.

William J. Kogan, Asst. Sol. Gen., Albany, N.Y. (Robert Abrams, Atty. Gen., State of N.Y., Robert Hermann, Sol. Gen., Peter H. Schiff, Deputy Sol. Gen., Albany, N.Y., on brief), for defendant-appellee.

Before TIMBERS, NEWMAN and KEARSE, Circuit Judges.

ORDER

Appellee having moved for rehearing of the above case and for modification of this Court's decision filed on November 21, 1985, 777 F.2d 825, and appellant having filed a brief in opposition, it is hereby

ORDERED that the opinion filed on that date, officially reported at 777 F.2d 825-37, be modified at page 833 in the following respects:

(1) The first full paragraph, beginning "Nonetheless," is deleted, and the following is substituted in its place:

We recognize, of course, that a state may well, from time to time, decide to make its operations more efficient by abolishing or consolidating positions or by implementing a considered substantial reduction in its work force. We are not persuaded that the state must routinely provide hearings for employees whose positions are targeted for elimination whenever the state adopts such efficiency measures. Where, however, as here, there is no indication that the state has undertaken substantial measures such as these but rather is alleged to have targeted a single employee for termination, we hold that if the state has a due process obligation to provide a hearing prior to removing that employee from his ongoing position, and if the employee protests the notice of elimination of his position and contends that it is but a sham and pretext for the deprivation of his property right, the state must be prepared to grant the employee some kind of hearing prior to the termination of his employment.

(2) In the second full paragraph, the first five lines are deleted, and the following is substituted in its place: "Further, we think that, in the latter circumstances, due process requires that the preter-".

(3) In the third full paragraph, the third line is amended to read "sham, in circumstances such as these, be provided if one is...

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    • United States
    • U.S. District Court — Northern District of New York
    • March 3, 2000
    ...as true the factual allegations in the Complaint. See Dwyer v. Regan, 777 F.2d 825, 828-29 (2d Cir.1985), modified on other grounds, 793 F.2d 457 (1986). Those allegations Evac is a medical air transport service, established in January 1996, operating in upstate New York in the region of Le......
  • Granite Partners, L.P. v. Bear, Stearns & Co., No. 96 Civ. 7874(RWS).
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    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 26, 1999
    ...1174 (2d Cir.1993); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989); Dwyer v. Regan, 777 F.2d 825, 828-29 (2d Cir.1985), modified by, 793 F.2d 457 (2d Cir.1986). Accordingly, the factual allegations considered here and set forth below are taken primarily from the LAB's Complaint and do not ......
  • Davis v. Stratton, No. 1:06-CV-1323 (LEK/DRH).
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    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • September 9, 2008
    ...of the Amendment provides, but also over suits against such states brought by their own citizens. 777 F.2d 825 (2d Cir.1985), modified, 793 F.2d 457 (2d Cir.1986). Thus, it is clear that, with few exceptions, federal courts are barred from entertaining suits brought by a private party again......
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    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 6, 1989
    ...dismiss, the factual allegations of the Complaint must be accepted as true, Dwyer v. Regan, 777 F.2d 825, 828-29 (2d Cir.1985), modified, 793 F.2d 457 (1986), and a complaint must be construed favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90......
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95 cases
  • McGregor v. Goord, No. 97-CV-0816.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • August 17, 1998
    ...and an award of back pay would necessarily have to be satisfied from State funds.") (citations omitted), modified on other grounds, 793 F.2d 457 (2d Lastly, New York State Public Officers Law § 17(3) requires the state to indemnify its employees for the amount of any judgment provided that ......
  • Skeets v. Johnson, No. 85-1761
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 18, 1986
    ...for backpay. See Burt v. Board of Trustees, 521 F.2d 1201 (4th Cir.1975); Dwyer v. Regan, 777 F.2d 825 (2d Cir.1985), modified, 793 F.2d 457 (2d Cir.1986). Just as in the case of reinstatement, defendants would have the authority to order backpay only in their official capacity. This, howev......
  • RR Village Ass'n, Inc. v. Denver Sewer Corp., No. 803
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 26, 1987
    ...having final authority over the decision-making process." Dwyer v. Regan, 777 F.2d 825, 832-33 (2d Cir.1985), modified on other grounds, 793 F.2d 457 (2d Cir.1986); accord Patterson v. Coughlin, 761 F.2d at 891-92; Burtnieks v. City of New York, 716 F.2d at 988-89. A fortiori, the action of......
  • Dube v. State University of New York, No. 885
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    • U.S. Court of Appeals — Second Circuit
    • April 12, 1990
    ...of another State, or by Citizens or Subjects of any Foreign State." As we noted in Dwyer v. Regan, 777 F.2d 825 (2d Cir.1985), modified, 793 F.2d 457 (2d The Supreme Court has consistently held that the federal courts lack jurisdiction not only over suits against a state brought by citizens......
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