Scott v. Meyers
| Decision Date | 01 August 1998 |
| Citation | 191 F.3d 82 |
| Parties | (2nd Cir. 1999) CORINE SCOTT, CECILE CLUE, ROBERT CANTRELL, JOHN KRUT, TIM SCHERMERHORN, Plaintiffs-Appellees, v. RONALD MEYERS, NATHANIEL FORD, CARMEN SUARDY, NEW YORK CITY TRANSIT AUTHORITY (NYCTA), Defendants-Appellants, RAYMOND D. GOODMAN, ROLAND SHELTON, DEWEY GALLESE, TIMOTHY ROHANAN, RICHARD JENKINS, RONALD PAIN, JOHN DOES, 1 - 3, Defendants. Docket No.: 98-7731 |
| Court | U.S. Court of Appeals — Second Circuit |
ARTHUR Z. SCHWARTZ, New York, N.Y. (Lauren Esposito, Kennedy, Schwartz & Cure, P.C., New York, N.Y., Of Counsel), for Plaintiffs-Appellees.
FLORENCE DEAN, Brooklyn, N.Y. (Evelyn Jonas, Office of Martin B. Schnabel, Vice President and General Counsel, New York City Transit Authority, Brooklyn, N.Y., Of Counsel) for Defendants-Appellants.
Before: LEVAL and POOLER, Circuit Judges and CURTIN, District Judge.*
The New York City Transit Authority ("the TA") and its officers appeal from a judgment of the United States District Court for the Eastern District of New York (Frederic Block, Judge), enjoining enforcement of a TA rule that prohibits employees from wearing buttons, badges or other insignia on their uniforms without permission. See Scott v. Goodman, 961 F. Supp. 424 (E.D.N.Y. 1997). The district court found that the rule was an overbroad restriction on the public employees' speech in violation of the First Amendment. Id. at 427-28. Because the challenged rule applies to uniformed employees at times when they are not in contact with customers, as well as to employees whose duties do not involve any customer contact, we conclude that the rule is overbroad. We therefore affirm the judgment of the district court.
Defendant New York City Transit Authority is the public authority responsible for the operation of New York City's mass transit services. The individual defendants are TA officials. Plaintiffs are TA employees who at all relevant times were members of New Directions, a dissident caucus of Local 100 of the Transport Workers Union of America ("the Union" or "Local 100"). Local 100 represents most of the TA's more than 40,000 bus and subway employees.
Plaintiffs brought this action seeking in part to enjoin enforcement of the TA's Rule 10(f). That rule (herein referred to as the "no-button rule") states, in relevant part:
Uniformed employees are not permitted to wear buttons, badges, or other insignia other than those specified as part of the regulation uniform, except by permission of the [Transit] Authority.
According to the TA, the rule has been in effect since approximately 1979.
In January 1992, the leadership of Local 100 reached agreement with the TA, subject to ratification by the full union membership, on a three-year collective bargaining agreement (the "CBA" or "the contract"). The New Directions caucus of Local 100 opposed the contract and actively campaigned against its ratification. Beginning in early February, the caucus began distributing buttons to fellow union members proclaiming opposition to the contract. Among these buttons was a one-inch, black-and-white button reading "VOTE NO" in the center and "Transit Workers for a Just Contract" around the edge ("the Vote No buttons"). Plaintiffs estimate that New Directions distributed approximately 10,000 "Vote No" buttons to union members prior to the scheduled vote on the contract.
In early February 1992, defendant Ronald Meyers, a TA Superintendent in the subways division, observed TA employees in subway terminals wearing "Vote No" buttons on their uniforms. Meyers began instructing employees to remove these buttons. Plaintiff Tim Schermerhorn, a shop steward assigned to Meyers's division, informed New Directions's counsel of Meyers's instructions. Counsel wrote to Carmen Suardy, the TA's Vice-President for Labor Relations, and requested that Meyers cease instructing employees to remove the "Vote No" buttons on the ground that his orders violated the employees' First Amendment rights. Suardy responded that Meyers derived his authority from Rule 10(f). Suardy further asserted that the rule promoted the TA's interests in safety and efficiency and that these concerns outweighed the employees' First Amendment right to "wear[] buttons indicating their partisanship with respect to factional issues" when dealing with the public.
On March 26, Nathaniel Ford, the Chief Transportation Officer of the TA's Rapid Transit Office, issued a notice to employees reasserting the no-button rule. The notice further warned employees that they would be subject to discipline if they wore non-regulation insignia or clothing without permission.
Plaintiffs then filed the instant suit. The complaint sought damages and injunctive relief under 42 U.S.C. § 1983, and contended that defendants had engaged in a series of violations of plaintiffs' First Amendment rights in an effort to suppress the advocacy of the New Directions caucus. With respect to the no-button rule, the complaint alleged both that the rule was, on its face, unconstitutionally broad, and that TA officials had violated the Constitution by selectively enforcing the rule to suppress New Directions' opposition to ratification of the 1992 contract.
Judge Block referred the parties' cross-motions for summary judgment to Magistrate Judge Roanne L. Mann for report and recommendation. On December 24, 1996, the magistrate judge recommended that the district court grant plaintiffs' motion for summary judgment on their facial challenge - the claim that the no-button rule was unconstitutionally overbroad - but recommended that both parties' motions be denied as to the claim of selective enforcement, finding that questions of material fact existed as to whether the rule had been discriminatorily enforced against members of New Directions.
On March 28, 1997, the district court adopted the magistrate judge's recommendation that plaintiffs' motion for summary judgment be granted on the overbreadth claim. Judge Block concluded that the employees' First Amendment rights outweighed the TA's interests in maintaining such a rule for purposes of efficiency, safety, and customer service. In light of this finding, the Court found it unnecessary to consider plaintiffs' claim of selective enforcement.
The court entered judgment on May 6, 1998, permanently enjoining the TA from enforcing its rule prohibiting the wearing of buttons. This appeal followed.
Defendants raise three claims on appeal. First, they claim that the court's injunction should be dissolved as moot because the labor conflict giving rise to plaintiffs' suit has been resolved; second, that plaintiffs' claim fails because the message on the "Vote No" buttons was not addressed to a matter of public concern; third, that notwithstanding suppression of speech, Rule 10(f) is justified as a measure serving efficiency and safety. We conclude (for reasons somewhat different from those given by the district court) that the rule as written is overbroad.
Defendants contend, first, that the injunction against enforcement of the no-button rule should be dissolved as moot. The campaign to ratify the proposed union contract, during which the named plaintiffs were ordered to remove their "Vote No" buttons, ended when the membership of Local 100 voted to reject the contract in 1992. Plaintiffs are no longer seeking to wear "Vote No" buttons. Therefore defendants maintain that plaintiffs' claim for an injunction has become moot. As plaintiffs remain members of the union, and contracts must be renegotiated and ratified on a regular basis, defendants contend that this is not one of the "exceptional situations" in which a past dispute is deemed "capable of repetition, yet evading review" so as to be exempt from the mootness doctrine. See Muhammad v. City of New York Dep't of Corrections, 126 F.3d 119, 123 (2d Cir. 1997) (internal quotation marks omitted). Defendants argue that future disputes concerning the right to wear buttons in connection with labor activities can be adjudicated if and when they arise.
We disagree with the defendants' claim of mootness. At the time plaintiffs brought the suit and throughout its maintenance, they were subject to the no-button rule and were prohibited from wearing any button they might choose to wear. The restrictive force of the rule did not cease to operate on plaintiffs when the contract ratification controversy was resolved. Because they are complaining that their expression is continually restricted by the TA's unconstitutionally overbroad prohibition on speech, plaintiffs' suit to enjoin enforcement of the no-button rule is not mooted by resolution of the particular labor controversy that provoked them to bring the suit. See Erwin Chemerinsky, § 2.3, at 87 n.177 (2d Ed.); Laurence Tribe, American Constitutional Law, § 3-19, at 135-36 n.7 (2d ed. 1988).1
We therefore reject the defendants' claim that the appeal must be dismissed as moot.
Defendants next contend that the injunction was improperly granted because plaintiffs failed to satisfy the test of Connick v. Myers, 461 U.S. 138 (1983),...
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