Uniformed Fire Officers Ass'n v. De Blasio

• Decision Date: 27 August 2020
• Docket Number: August Term 2020,Docket No. 20-2400
• Citation: 973 F.3d 41
• Parties: UNIFORMED FIRE OFFICERS ASSOCIATION, Uniformed Firefighters Association of Greater New York, Police Benevolent Association of the City of New York, Inc., Correction Officers’ Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, LieuTenants Benevolent Association, Captains Endowment Association, Detectives’ Endowment Association, Plaintiffs - Appellants, v. Bill DE BLASIO, in his official capacity as Mayor of the City of New York, City of New York, New York City Fire Department, Daniel A. Nigro, in his official capacity as the Commissioner of the Fire Department of the City of New York, New York City Department of Corrections, Cynthia Brann, in her official capacity as the Commissioner of the New York City Department of Corrections, Dermot F. Shea, in his official capacity as the Commissioner of the New York City Police Department, New York City Police Department, Frederick Davie, in his official capacity as the Chair of the Civilian Complaint Review Board, Civilian Complaint Review Board, Defendants - Appellees, New York Civil Liberties Union, Nonparty - Appellee, The New York Times Company, Intervenor.
• Court: U.S. Court of Appeals — Second Circuit

973 F.3d 41

UNIFORMED FIRE OFFICERS ASSOCIATION, Uniformed Firefighters Association of Greater New York, Police Benevolent Association of the City of New York, Inc., Correction Officers’ Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, LieuTenants Benevolent Association, Captains Endowment Association, Detectives’ Endowment Association, Plaintiffs - Appellants,

v.Bill DE BLASIO, in his official capacity as Mayor of the City of New York, City of New York, New York City Fire Department, Daniel A. Nigro, in his official capacity as the Commissioner of the Fire Department of the City of New York, New York City Department of Corrections, Cynthia Brann, in her official capacity as the Commissioner of the New York City Department of Corrections, Dermot F. Shea, in his official capacity as the Commissioner of the New York City Police Department, New York City Police Department, Frederick Davie, in his official capacity as the Chair of the Civilian Complaint Review Board, Civilian Complaint Review Board, Defendants - Appellees,New York Civil Liberties Union, Nonparty - Appellee,¹ The New York Times Company, Intervenor.²

Docket No. 20-2400

August Term 2020

United States Court of Appeals, Second Circuit.

Motion Argued: August 18, 2020

Motion Decided: August 27, 2020

Courtney G. Saleski, Philadelphia, PA (Anthony P. Coles, New York, NY), DLA Piper LLP, for Plaintiffs-Appellants Uniformed Fire Officers Association, Uniformed Firefighters Association of Greater New York, Police Benevolent Association of the City of New York, Inc., Correction Officers’ Benevolent Association of the City of New York, Inc., Sergeants Benevolent Association, Lieutenants Benevolent Association, Captains Endowment Association, Detectives’ Endowment Association.

Molly K. Biklen, New York, NY (Christopher Dunn, Jordan Laris Cohen, New York, NY), New York Civil Liberties Union Foundation, for Nonparty-Appellee New York Civil Liberties Union.

Elina Druker, Asst. Corp. Counsel, New York, NY (James E. Johnson, Corp. Counsel of the City of New York, Richard Dearing, Scott Shorr, Assts. Corp. Counsel, New York, NY), for Defendants-Appellees Bill de Blasio, City of New York, New York City Fire Department, Daniel A. Nigro, New York City Department of Corrections, Cynthia Brann, Dermot F. Shea, New York City Police Department, Frederick Davie, and Civilian Complaint Review Board.

Alexandra Perloff-Giles, New York, NY (David E. McCraw, Al-Amyn Sumar, New York, NY), The New York Times Company, for Intervenor The New York Times Company.

(Corey Stoughton, The Legal Aid Society, New York, NY, Roger A. Cooper, Joseph M. Kay, Ye Eun Charlotte Chun, Cleary Gottlieb Steen & Hamilton LLP, New York, NY, for amicus curiae The Legal Aid Society, in support of Nonparty-Appellee New York Civil Liberties Union.)

(Katie Townsend, Bruce D. Brown, The Reporters Committee for Freedom of the Press, Washington, DC, for amici curiae The Reporters Committee for Freedom of the Press and 32 News Media Organizations, in support of Defendants-Appellees and Nonparty-Appellee New York Civil Liberties Union.)

Before: NEWMAN, POOLER, HALL, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This opinion concerns a motion to stay, pending appeal, the July 29, 2020, order of the District Court for the Southern District of New York (Katherine Polk Failla, District Judge), exempting the New York Civil Liberties Union ("NYCLU") from the District Court's July 22, 2020, order prohibiting the Defendants-Appellees from publicly disclosing records of civilian complaints against approximately 81,000 New York City police officers. The NYCLU obtained access to the records in a response to a request it made to New York City's Civilian Complaint Review Board ("CCRB") under New York's Freedom of Information Law ("FOIL").³ On August 18, 2020, after oral argument on the stay motion, this Court entered an order denying the motion, noting that a written opinion would follow. This is that opinion.

The only issue necessary to be considered for disposition of the pending stay motion is whether the District Court had authority under Rule 65(d)(2)(C) of the Federal Rules of Civil Procedure to enter the disclosure prohibition against the NYCLU as an entity "in active concert or participation with" persons bound by a temporary restraining order ("TRO") or a preliminary injunction. The Defendants-Appellees in this Court are parties who are subject to a TRO, which arguably became a preliminary injunction, in litigation pending in the District Court.

We conclude that the District Court properly excluded the NYCLU from the disclosure prohibition because it was not "in active concert" with a party bound by a TRO or a preliminary injunction. The NYCLU could not be "in active concert" with such a party because it lawfully gained access to the information at issue before the July 22 disclosure prohibition was issued against it and obviously could not have known of a prohibition that did not then exist. Because the Appellants had no probability of success on the appeal from the July 29 order we denied the motion for a stay pending appeal, thereby terminating the emergency stay that a judge of this Court had entered pending consideration of the stay motion by a three-judge panel.

Background

The pending dispute arises out of the action of the New York legislature repealing section 50-a of the State's Civil Rights Law,⁴ which had shielded from public disclosure personnel records of various uniformed officers including police officers.⁵ On June 12, 2020 (all subsequent dates are in 2020), section 50-a was repealed. On July 8, the CCRB announced at its monthly open board meeting, conducted remotely, with counsel for the NYCLU present, that in the four weeks since the repeal of section 50-a, the CCRB had been preparing a public portal containing information from police misconduct complaints that it had received.

On July 9, the NYCLU submitted a FOIL request to the CCRB for the CCRB's database containing information about civilian complaints concerning police misconduct. On July 14, in response to that request, the CCRB provided the NYCLU a link enabling it to download an Excel spreadsheet (the "database") containing information about complaints against approximately 81,000 New York City police officers. Upon receipt of this link, the NYCLU downloaded the database and began to prepare the information for availability to the public.

On the same day, July 14, several unions representing police, firefighting, and correctional officers ("Unions") (Plaintiffs-Appellants in this Court) filed a "petition/complaint" in the New York Supreme Court, seeking an injunction to prohibit various New York City agencies ("City") (Defendants-Appellees in this Court) from publicly disclosing what were described as "Unsubstantiated and Non-Final Allegations" against New York City police officers, firefighters, and corrections officers. The petition alleged, among other things, that public disclosure would violate collective bargaining agreements between the Unions and the City. The next day, July 15, Justice Carol R. Edmead issued a TRO prohibiting the City from publicly disclosing records concerning "Unsubstantiated and Non-Final Allegations."⁶ Also on July 15, the City filed in the state court a Notice of Removal of the state court suit to the District Court.

On July 22, the District Court held a hearing on the Unions’ request to extend the state court's TRO. Judge Failla first stated that, with respect to the state court's TRO, "[T]he clock starts again." Transcript of Dist. Ct. July 22 oral argument at 4 ("July 22 Tr."). During the hearing, she made a finding that the NYCLU was "acting in concert" with the defendants.⁷ Id. at 88. Her finding was based primarily, if not entirely, on the fact that the CCRB had disclosed the information so soon after the NYCLU's FOIL request had been made. At the conclusion of the hearing, she orally ordered the NYCLU not to disclose the information received from the CCRB. A July 22 minute entry on the District Court's docket reflected Judge Failla's oral order.

The next day, July 23, the NYCLU requested the District Court to modify the July 22 order by removing the provision that barred the NYCLU from publicly disclosing information about police misconduct. On July 28, the District Court held a hearing on the NYCLU's July 23 request. At that hearing, Judge Failla ascertained that the state court order had not issued until July 15, and that the NYCLU had requested and gained access to the misconduct complaints against the police officers before the state court issued its order. She also noted that, on June 30, the CCRB had disclosed to ProPublica information concerning complaints against more than 4,000 police officers.

Candidly acknowledging that her July 22 "finding" that the NYCLU had acted in concert with the City had been "speculation," Transcript of Dist. Ct. July 28 oral argument at 29, Judge Failla concluded that the NYCLU was not acting in concert with the City either when it requested or received the information at issue. Relying on Rule 65, she stated that she was modifying the July 22 order to exclude the NYCLU from its coverage. She also stated that she was staying her ruling for twenty-four hours to permit the Unions to seek a stay of her order from this Court. On July 29, the District Court entered an order implementing the oral rulings.

The Unions promptly filed a notice of appeal of the District Court's July 29 modification ruling and a motion for a stay pending appeal. On July 30, an applications judge granted the stay motion pending determination by a three-judge panel. After receiving papers with respect to the motion, this panel heard oral argument on August 18. On August 20, this Court issued an order denying the stay motion, noting that an opinion would follow. That order terminated this Court's emergency stay entered July 30.

Discussion

Appellate Jurisdiction . Although none...