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Giacalone v. Abrams

decided: June 21, 1988.

ARTHUR J. GIACALONE, PLAINTIFF-APPELLEE,
v.
ROBERT ABRAMS, ATTORNEY GENERAL OF THE STATE OF NEW YORK, HUGH B. SCOTT, FORMER ASSISTANT ATTORNEY GENERAL IN CHARGE OF BUFFALO OFFICE OF STATE OF NEW YORK'S DEPARTMENT OF LAW, DENNIS H. ALLEE, PETER L. YELLIN AND RICHARD RIFKIN, DEFENDANTS-APPELLANTS



Interlocutory appeal from a decision of the United States District Court for the Western District of New York, Elfvin, J., denying defendants' motions for summary judgment on claims of qualified immunity from liability for damages in plaintiff's action under 42 U.S.C. § 1982. Denial of claim of qualified immunity is immediately appealable even when plaintiff seeks equitable relief in addition to damages. Defendants here are entitled to qualified immunity because law governing plaintiff's First Amendment claim was not "clearly established," Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982), at time of events giving rise to suit. Reversed and remanded.

Meskill and Altimari,*fn* Circuit Judges, and Mishler, District Judge.*fn**

Author: Meskill

MESKILL, Circuit Judge:

Plaintiff-appellee Arthur J. Giacalone brought this action under 42 U.S.C. § 1983 (1982) seeking damages and reinstatement to his former position as an Assistant Attorney General in the New York State Department of Law (the Department). He alleged that the named defendants, who include his former immediate superior Hugh B. Scott and other Department officials, decided to terminate him in December 1982 because he had engaged in speech protected by the First Amendment. Both sides moved for summary judgment.

The United States District Court for the Western District of New York, Elfvin, J., ordered dismissal of the claims against three defendants, including Attorney General Robert Abrams, as to whom Giacalone had not alleged any personal involvement in unlawful conduct. The court denied the motion for dismissal as to defendants Scott and First Assistant Attorney General Peter L. Yellin, holding that Giacalone had "at least facially" stated a claim against them. The court also concluded that the speech in question touched on a matter of public concern and granted partial summary judgment for Giacalone to that extent. Finally, the court denied Scott's and Yellin's motion to dismiss on grounds of qualified immunity, holding that the First Amendment implications of their conduct were clearly established.

The defendants bring this interlocutory appeal from the district court's denial of their claims of qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511, 530, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985); Musso v. Hourigan, 836 F.2d 736, 740 (2d Cir. 1988). For reasons that follow, we conclude that the law with respect to Giacalone's First Amendment claims was not clearly established and that the district court therefore erred in denying the motions to dismiss on the basis of qualified immunity. We accordingly reverse and remand with directions to dismiss the action as to Scott and Yellin.

BACKGROUND

We set forth the facts of this case in some detail because they are crucial to our analysis of the qualified immunity issue. We summarize undisputed or uncontradicted facts and, because this case comes to us on appeal from denial of a summary judgment motion, note the areas of material dispute.

From August 1981 to December 1982, Giacalone was an Assistant Attorney General in the Buffalo Regional Office of the Department of Law. He had earned "superior" performance evaluation ratings in this position. Defendant Scott, his immediate superior, was the Assistant Attorney General in charge of the Buffalo office. Scott's immediate superior was Deputy First Assistant Attorney General Yellin. The other named defendants were Yellin's immediate superior, First Assistant Attorney General Dennis H. Allee, Deputy First Assistant Attorney General Richard Rifkin, and Attorney General Abrams.

One of the matters assigned to Giacalone involved the failure of two corporate employers, Norton Laboratories, Inc. and Auburn Plastics, Inc., to pay their employees in conformity with state law. At issue were wages and benefits due for a three week period in 1981 immediately before the corporations ceased doing business. Giacalone negotiated and drafted a settlement agreement under which individuals connected with the corporate employers paid back wages and benefits to the Department for disbursement to the workers. The first installment of $230,751.85 was paid in November 1981, and the first checks were distributed to the workers the following month. The Department issued a press release, prominently captioned "News from Attorney General Robert Abrams, " to announce the receipt and distribution of the settlement proceeds. The Attorney General himself appeared at the public presentation of checks to employees. The Department of Law received the second and final installment of $15,868.57 on May 25, 1982. The Attorney General issued a press release stating that the funds would be distributed to the workers "in approximately 30 days."

A dispute arose, however, over the withholding of federal income taxes from the settlement proceeds. Although the Department withheld amounts to satisfy FICA obligations, it did not withhold income taxes. The Department and the individual parties to the settlement disclaimed responsibility for income tax withholding. The Department informed recipients by letter that their distributions might constitute taxable income for the year 1981. The controversy was compounded on June 23, 1982, when the Department received a letter from Internal Revenue Service (IRS) Acting District Counsel Edward D. Fickess. The letter apprised the Department of the IRS' position that the Department "had a duty to withhold all wage [as well as] FICA taxes." Fickess warned that "the state of New York and the individuals who actively worked [on] this case" could be liable for the unpaid taxes.

In response, Giacalone drafted a memorandum summarizing the case and analyzing applicable provisions of the Internal Revenue Code. He concluded that the IRS' position was "unsupportable." J. App. at 738. Nevertheless, he recommended delaying distribution of the second installment until the controversy over withholding liability could be resolved. Id. at 749. Because of the Department's lack of tax expertise, however, Scott obtained the assistance of Rochester attorney Sydney Rubin, a tax specialist. Rubin assumed primary responsibility for handling the matter and worked with Scott and Giacalone in late August 1982 to prepare for a meeting with Fickess on September 2.

The September 2 meeting and events leading up to it precipitated the incidents on which this suit is based. Giacalone alleges that in the days preceding the meeting, Scott expressed a desire to devise a strategy to keep the IRS dispute quiet or stalled until after the November 2, 1982 election in which Abrams was up for reelection. Scott disputes this characterization and maintains that he only said he hoped the matter would not "blow up" before the election.

Giacalone went into the September 2 meeting believing that he, Scott and Rubin had agreed to take the position that the Department was not liable for tax withholding and would distribute the funds. At the meeting, however, Rubin agreed to delay distribution of the second installment until the witholding issue could be straightened out, in case the Department should turn out to be liable. Scott added that no final decision could be made until the New York State Department of Labor was consulted. On September 21, Scott wrote a memorandum to Rifkin explaining this decision. The memorandum stated that although the Department of Law still took the position that the state was not responsible for withholding, "there is, according to Sidney [sic] Rubin, some room for interpretation of the term 'employer' under the Code. . . ." Therefore, wrote Scott, "Mr. Rubin recommends, and I concur, that . . . the $16,000 now being held . . . should continue to be held until we can resolve the issue. . . .," J. App. at 1235. In early October, the Department of Labor's Division of Labor Standards accepted the Department of Law's direction to hold the final installment until advised further by the Attorney General's office. See J. App. at 1242.

Giacalone was dismayed that Rubin had agreed to delay disbursements from the second installment. He perceived the decision as a failure to act in the best interests of the workers, in violation of the Department of Law's ethical obligations. Immediately after the September 2 meeting, he expressed to Scott the belief that withholding the money from the workers might be unethical and without authority in law. He also reiterated his belief that the state had no legal obligation to withhold the taxes. He offered to do further research and to draft a memorandum detailing his conclusions as to these concerns. Giacalone contends that he also suggested notifying the workers of the reason for the delay, and that Scott "flatly prohibited" such notification and indicated that the IRS investigation must not be made public. Giacalone also alleges that Scott consulted with Yellin and then prohibited Giacalone from putting the results of his research on these matters into a memorandum or any other written form. Scott explains that he considered the preparation of a memorandum on this subject unnecessary because Rubin had presumably taken into consideration the concerns Giacalone sought to address.

The matter lay dormant until early November, when Giacalone received calls from workers who wanted to know why proceeds from the second installment still had not been distributed. Giacalone consulted with Scott, who allegedly replied that Giacalone should "tell them we lost the money." Scott concedes that he "might have [made that remark] in a humorous moment." Giacalone then drafted a memorandum expressing concern that no distributions had been made despite the passage of almost six months since receipt of the final installment. The memorandum stated that Giacalone believed it to be "imperative that our office, in conjunction with the Department of Labor, take immediate steps to release the funds." On November 9, he dispatched this memorandum (the November memorandum) to Scott, Yellin and Allee.

Upper echelons in the Department of Law reacted unfavorably to Giacalone's memorandum. Rifkin, to whom Allee referred the matter, was particularly irked by Giacalone's presumptuousness in circulating the memo over the head of his immediate superior, Scott. See J. App. at 1049-50. Scott communicated this reaction, as well as his own displeasure, to Giacalone. See J. App. at 278-79. As a result of this reaction, Giacalone began to contemplate what he would do in the event he was fired. He talked the matter over with several colleagues in the Buffalo Regional Office. Scott heard "from two and three different directions" that Giacalone was considering "going public." J App. at 262. Giacalone admits stating to colleagues that his options included legal action and resort to the media.

On December 3, Giacalone again raised his concerns with Scott and asked permission to contact Rubin directly. According to Giacalone, Scott responded in an angry and defensive manner and accused Giacalone of attempting to harm his reputation. See J. App. at 521-22. Giacalone memorialized this meeting in the ...


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