Rhoads v. McFerran

• Citation: 517 F.2d 66
• Decision Date: 30 May 1975
• Docket Number: D,802,Nos. 801,s. 801
• Parties: Richard RHOADS et al., Plaintiffs-Appellees, v. J. Benjamin McFERRAN, Individually and as Director of Personnel for the New York State Department of Social Services, and Sidney Houben, Individually and as head of the Bureau of Disability Determinations, New York State Department of Social Services, Defendants-Appellants. ockets 74-2605, 75-7088.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 66

517 F.2d 66

Richard RHOADS et al., Plaintiffs-Appellees, v. J. Benjamin McFERRAN, Individually and as Director of

Personnel for the New York State Department of Social

Services, and Sidney Houben, Individually and as head of the

Bureau of Disability Determinations, New York State

Department of Social Services, Defendants-Appellants.

Nos. 801, 802, Dockets 74-2605, 75-7088.

United States Court of Appeals, Second Circuit.

Argued April 2, 1975.

Decided May 30, 1975.

A. Seth Greenwald, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for defendants-appellants.

Eve Cary, New York City (New York Civil Liberties Union, New York City, of counsel), for plaintiffs-appellees.

Before ANDERSON, MANSFIELD and OAKES, Circuit Judges.

PER CURIAM:

J. Benjamin McFerran, Director of Personnel for the New York State Department of Social Services, and Sidney Houben, Director of the Bureau of Disability Determinations of the New York State Department of Social Services, appeal from an order granting summary judgment and a permanent injunction restraining them, both individually and in their official capacities, from interfering with the distribution by Bureau of Disability Determinations ("Bureau") employees of job-related literature inside their state offices at Two World Trade Center before and after working hours. The order was entered by Constance B. Motley, Judge, Southern District of New York, on the ground that the plaintiffs, three Bureau employees, have a First Amendment right to make such distributions in a non-disruptive manner, which cannot be circumscribed by defendants. Prior to this lawsuit Bureau regulations had, in effect, prohibited such "inside-the-office" leafletting. Employees had been subjected to disciplinary action when they placed their literature on the desks of their co-workers before or after working hours.

Both parties moved for summary judgment below under Rule 56, F.R.Civ.P., at approximately the same time and filed statements of alleged undisputed material facts pursuant to Rule 9(g) of the Local Rules of the Southern District of New York. Defendants did not challenge plaintiffs' 9(g) statement, although plaintiffs challenged two paragraphs of that filed by defendants. Summary judgment was granted solely on the basis of these statements and the pleadings.

It is well settled in this Circuit that, even though both sides have cross-moved for summary judgment, neither motion may be granted unless one party is entitled to it as a matter of law upon genuinely undisputed facts. American Manufacturers Mutual Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 279 (2d Cir. 1967), cert. denied, 404 U.S. 1063, 92 S.Ct. 737, 30 L.Ed.2d 752 (1972); Walling v. Richmond Screw Anchor Co., 154 F.2d 780, 784 (2d Cir.), cert. denied, 328 U.S. 870, 66 S.Ct. 1383, 90 L.Ed. 1640 (1946); Steinberg v. Adams, 90 F.Supp. 604, 608 (S.D.N.Y.1950). Furthermore, all reasonable inferences of fact must be drawn in favor of the party opposing summary judgment. United States v. Diebold, 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam); Empire Electronics Co. v. United States, 311 F.2d 175, 179-81 (2d Cir. 1962).

These fundamental principles were violated by the grant of summary judgment in this case. In order to grant summary judgment the district court, without an evidentiary hearing, prematurely resolved three factual issues that had either been disputed in the opposing 9(g) statements or had not been mentioned at all: (1) whether the office in which the leaflets were to be distributed was public in nature; (2) whether plaintiffs' planned methods of distribution were possibly disruptive; and (3) whether there were viable alternative methods with less disruptive impact than plaintiffs' proposed method.

The first of these issues is clearly disputed in the parties' 9(g) statements. Defendants allege that the site of the distribution is non-public. Plaintiffs claim in reply that the offices in which leafletting would occur are "public," at least with regard to the employees who would be engaged in the distribution. The public or private nature of the areas in question, the normal activities carried on within them and the relationship of the planned leafletting activities to those two facts are unquestionably material issues in the...