20-2400-cv
Uniformed Fire Officers Association v. DeBlasio




                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                         August Term 2020

        Motion Argued: August 18, 2020                    Motion Decided: August 27, 2020

                                         Docket No. 20-2400

------------------------------------------
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,




                                                    1
NEW YORK CIVIL LIBERTIES UNION,

               Nonparty - Appellee, 1

THE NEW YORK TIMES COMPANY,

         Intervenor. 2
------------------------------------------

Before: NEWMAN, POOLER, HALL, Circuit Judges.

       Motion by unions representing uniformed New York City officers to stay,

pending appeal, the District Court’s July 29, 2020, order modifying the Court’s July

22 order “such that [the order] no longer applies to non-party New York Civil

Liberties Union” (“NYCLU”). The effect of the July 29 modification is to permit the

NYCLU publicly to disclose information concerning disciplinary records of




       1  New York Civil Liberties Union (“NYCLU”) filed an amicus curiae brief in the District Court
and submitted papers in this Court in opposition to the Plaintiffs-Appellants’ motion for a stay
pending appeal. The NYCLU was not a party in the District Court and has not intervened in this
Court. Nevertheless, as the entity that became subject to the District Court’s restraint and the entity
opposing the Plaintiffs-Appellants’ stay motion, which seeks to render it subject to that restraint
after being excluded from its coverage, the NYCLU is properly identified in this Court as
“Nonparty-Appellee.” See, e.g., NML Capital, Ltd. v. Republic of Argentina, 497 F. App’x 96 (2d Cir.
2012) (caption).
        2 The Clerk is requested to change the official caption as indicated above. Communities

United for Police Reform (“CUPR”) was inadvertently listed as an intervenor in the District Court’s
caption. CUPR filed a motion to intervene in the District Court; on August 11, District Judge Failla
entered an order stating that CUPR would be permitted “provisionally to file papers,” but that she
would “hold” the intervention motion until the Plaintiffs’ preliminary injunction motion was
resolved. Dist. Ct. Dkt. No. 97. The motion to intervene was never granted.
                                                  2
approximately 81,000 New York City police officers, records alleged to contain

unsubstantiated and nonfinal allegations.

      Motion DENIED.

                              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.

                                        3
                               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.)



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

                                         4
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




      3   N.Y. Pub. Off. Law § 84 (McKinney 2019).
                                                5
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


         4   2020 N.Y. Laws 96 § 1.
         5   N.Y. Civ. Rights Law § 50-a (McKinney) (repealed 2020).
                                                   6
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




                                          7
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




       6  The order stated, “[P]ending the issue of an Interim Stay before the United States District
Court for the Southern District of New York, the Defendants/Respondents, and those acting in
concert with them, are Stayed from publicly disclosing any records concerning Unsubstantiated
and Non-Final Allegations or settlement agreements as defined in the instant Petition [the Unions’
state court “Petition/Complaint”], entered into prior to June 12, 2020, relating to the appeal of N.Y.
Civ. Rights Law § 50-a(1).” City’s Notice of Removal (bold face italics in original).
        7 In response to the NYCLU’s contention that it was not subject to the District Court’s

injunctive power under Rule 65, Judge Failla acknowledged at the July 22 hearing that her finding
had been based only on the oral arguments, and she requested a written submission on the Rule 65
issue the next day.
                                                  8
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



                                          9
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 of the parties has questioned our

jurisdiction, we are obliged to assure ourselves that appellate jurisdiction exists. See

Swede v. Rochester Carpenters Pension Fund, 467 F.3d 216, 219 (2d Cir. 2006). The

possible doubt arises because the pending motion 8 seeks to stay, pending appeal, a

ruling, as applied to the NYCLU, that appears to be the denial of a TRO, and such a

denial is ordinarily not appealable, see Commodity Futures Trading Commission v.

Walsh, 618 F.3d 218, 225 n.3 (2d Cir. 2010); Romer v. Green Point Savings Bank, 27 F.3d

12, 15 (2d Cir. 1994); Grant v. United States, 282 F.2d 165, 167 (2d Cir. 1960).

       The appeal is from the July 29 order ending the July 22 application of the

disclosure prohibition to the NYCLU. The first question concerning appellate




       8 In this case, the Plaintiffs-Appellants’ failure to move in the District Court for a stay
pending appeal, as is normally required, see Fed. R. App. P. 8(a)(2)(A), does not preclude their
seeking such relief in this Court. The District Court took the initiative in granting a brief stay of the
July 29 order, inviting the Plaintiffs-Appellants to seek extension of that stay in this Court. There
would have been no point in asking the District Court to extend the stay.
                                                   10
jurisdiction is the proper classification of the restraint that was applied to the

NYCLU. Embedded in that question are several issues. Is the restraint an extension

of the state court’s July 15 order? Is it a new order of the District Court? Whichever

it is, what is its duration? Is its duration measured by its starting and expected

ending dates or only the starting and ending dates of its application to the NYCLU?

Are there circumstances that warrant considering the restraint to be an appealable

preliminary injunction?

      At the July 22 hearing, the District Court said, “[T]he clock starts again,”

stating a new starting date and implying a new order. July 22 Tr. at 4. We disagree

with both the statement and its implication. “An ex parte temporary restraining

order issued by a state court prior to removal remains in force after removal no

longer than it would have remained in effect under state law, but in no event does

the order remain in force longer than the time limitations imposed by Rule 65(b),




                                          11
measured from the date of removal.” Granny Goose Foods, Inc. v. Brotherhood of

Teamsters and Auto Truck Drivers Local No. 70, 415 U.S. 423, 439-40 (1974). 9

       In this case, the state court order remained in force after removal of the case

to the District Court. Its starting date was July 15, the date of its issuance, and, unless

extended by the District Court, would have ended on July 29, fourteen days after

the July 15 notice of removal, as explained in Granny Goose Foods. We note that Rule

65(b)(2) was amended in 2009 to change the expiration of a TRO (unless extended)

from ten to fourteen days. Fed. R. Civ. P. 65, 2009 advisory committee’s note. The

District Court extended the TRO to August 18, the date of a scheduled hearing on

the Unions’ motion for a preliminary injunction. On July 22, the District Court

applied the TRO to the NYCLU as a nonparty in active concert with a party and

excluded the NYCLU from the coverage of the TRO on July 29, an interval of only

seven days.




       9   To explain its ruling, the Supreme Court added this footnote: “The following two
illustrations should suffice to clarify this holding. Where the state court issues a temporary
restraining order of 15 days' duration on Day 1 and the case is removed to federal court on Day 13,
the order will expire on Day 15 in federal court just as it would have expired on Day 15 in state
court. Where, however, a state court issues a temporary restraining order of 15 days' duration on
Day 1 and the case is removed to the federal court on Day 2, the restraining order will expire on
Day 12, applying the 10-day time limitation of Rule 65(b) measured from the date of removal. Of
course, in either case, the district court could extend the restraining order for up to an additional
10 days, for good cause shown, under Rule 65(b).” 415 U.S. at 440 n.15.
                                                 12
      We have recognized that the label applied to a restraint is not determinative,

see Grant, 282 F.2d at 167, and that a restraint called a TRO may sometimes be

regarded for purposes of appellate jurisdiction as a preliminary injunction, see

Huminski v. Rutland City Police Dep’t, 221 F.3d 357, 361 (2d Cir. 2000); Romer, 27 F.3d

at 15. Among the factors relevant to the proper classification are ”the duration of the

order, whether it was issued after notice and hearing, and the type of showing made

in obtaining the order,” Grant, 282 F.2d at 167 (internal quotation marks omitted).

Another relevant factor is where “a grant or denial of a TRO might have a serious,

perhaps irreparable, consequence” Romer, 27 F.3d at 15 (internal quotation marks

omitted).

      In this case, we need consider only that last circumstance. The July 29

exclusion of the NYCLU from the July 22 application of the restraint to it enabled

the NYCLU to make publicly available disciplinary report information adverse to

thousands of police officers. If made, the disclosure could not be undone, thus

rendering the consequences irreparable. Whether or not those consequences would

inflict injury sufficient, when considered with other factors, to warrant a stay

pending appeal, the disclosure would be a “serious, perhaps irreparable,




                                          13
consequence,” id., that suffices to permit us to consider the July 29 order to be the

denial of a preliminary injunction, which is appealable, see 28 U.S.C. § 1292(a)(1).

      Merits of the stay motion. The factors relevant to granting a stay pending appeal

are the applicant’s “strong showing that he is likely to succeed on the merits,”

irreparable injury to the applicant in the absence of a stay, substantial injury to the

nonmoving party if a stay is issued, and the public interest. See Nken v. Holder, 556

U.S. 418, 434 (2009). The first two factors are the most critical, but a stay “is not a

matter of right, even if irreparable injury might otherwise result,” it is “an exercise

of judicial discretion,” and “[t]he party requesting a stay bears the burden of

showing that the circumstances justify an exercise of that discretion.” Id. at 433-34

(internal quotation marks omitted).

      The Unions’ attempt to subject the NYCLU to the restraint issued by the New

York court and extended by the District Court depends on whether the NYCLU,

which has never been a party to the Unions’ lawsuit, acted “in active concert or

participation” with a party to that suit. Fed. R. Civ. P. 65(d)(2). A nonparty that acts

“in active concert or participation” with a party subject to an injunction is prohibited

from “assisting in a violation of the injunction.” NML Capital, Ltd. v. Republic of

Argentina, 727 F.3d 230, 243 (2d Cir. 2013).



                                          14
       However, Rule 65 explicitly provides that the nonparties that can be bound

by a TRO or an injunction are only those “who receive actual notice of it.” Fed. R.

Civ. P. 65(d)(2). In this case, it is undisputed that when the NYCLU gained access to

information from the CCRB, the NYCLU did not know about the injunction for the

obvious reason that the injunction did not then exist. “Nor does an injunction reach

backwards in time to action taken prior to the time it was issued.” Paramount Pictures

Corp. v. Carol Publishing Group, Inc., 25 F. Supp. 2d 372, 375 (S.D.N.Y. 1998).

       Like many others, the NYCLU responded to the repeal of New York’s

previous protection of the confidentiality of disciplinary records of public officers,

including police officers, by making FOIL requests to the CCRB as soon as the CCRB

announced that these records would become publicly available. When the NYCLU’s

FOIL request was made and when the CCRB promptly responded to it, 10 there was

no TRO or injunction prohibiting the NYCLU, or anyone else, from seeking,

receiving, or disseminating these records. On these undisputed facts, the NYCLU

could not have been in “active concert” with a party to a TRO or an injunction.



       10 The Unions apprehend something nefarious from the fact that the CCRB responded just
five days after receiving the NYCLU’s FOIL request. There is no basis for any adverse inference.
Repeal of section 50-a made it inevitable that FOIL requests would be made for the CCRB’s records,
the CCRB understandably prepared to respond to those requests, many requests were made, the
availability of the information in readily transmittable form facilitated prompt responses, and
prompt responses were made.
                                               15
      The Plaintiffs-Appellants have therefore shown no likelihood of success on

the merits of their claims against the NYCLU, much less the “strong showing”

required by Nken, 556 U.S. at 434. With likelihood of success totally lacking, the

aggregate assessment of the factors bearing on issuance of a stay pending appeal

cannot possibly support a stay. United States v. Simcho, 326 F. App’x 791, 794 (5th

Cir. 2009) (stay pending appeal denied where appellant had shown no likelihood of

success on the merits); see Naser Jewelers, Inc. v. City of Concord, 513 F.3d 27, 37 (1st

Cir. 2008) (preliminary injunction denied without considering other relevant factors

where plaintiff had shown no probability of success); Person v. National Board of

Elections, 467 F.3d 141 (2d Cir. 2006) (same); Gonzales v. National Board of Medical

Examiners, 225 F.3d 620 (6th Cir. 2000) (same); Mil-Mar Shoe Co. v. Shonac Corp., 75

F.3d 1153, 1162 (7th Cir. 1996) (same).

      Resolving this motion on the basis of Rule 65 makes it unnecessary to consider

the substantial arguments of the NYCLU, the intervenor New York Times, and the

several amici curiae that maintaining a prohibition against disclosure of lawfully

acquired information of public significance would be an unconstitutional prior

restraint.




                                           16
      The motion for a stay of the District Court’s July 29 order pending appeal is

denied, thereby terminating the emergency stay entered July 30.




                                        17
