12-4333-cv
Lederman v. N.Y.C. Dep't of Parks & Recreation




                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 August Term 2013

              (Submitted: August 23, 2013                Decided: September 25, 2013)

                                           Docket No. 12-4333-cv

                                          _____________________

                                   ROBERT LEDERMAN, JACK NESBITT,

                                                                    Plaintiffs-Appellants,

                                                        v.

NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, as a Municipal agency,
 ADRIAN BENEPE, Commissioner, in his individual and official capacity as Parks
  Commissioner, CITY OF NEW YORK, as a municipality, MICHAEL BLOOMBERG,
          Honorable Mayor, in his individual and official capacity,

                                                                Defendants-Appellees.

                                          _____________________

                        ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                            FOR THE SOUTHERN DISTRICT OF NEW YORK

Before:
                             CABRANES, HALL, and CHIN, Circuit Judges.

                                          _____________________
             Appeal from a judgment of the United States District Court for the

Southern District of New York (Richard J. Sullivan, J.) granting defendants-

appellees' motion for summary judgment, and dismissing the complaint in this

First Amendment challenge to regulations governing the sale of expressive

matter in New York City parks. Plaintiffs-appellants also challenge the District

Court's protective order barring them from deposing the Mayor and a former

deputy mayor of the City of New York.

             AFFIRMED.

                             _____________________

                         JULIE MILNER, Milner Law Office, Elmhurst, New York,
                               for Plaintiffs-Appellants.

                         JULIE STEINER (Edward F.X. Hart and Sheryl Neufeld, on
                                the brief), New York City Law Department, New
                                York, New York, for Michael A. Cardozo,
                                Corporation Counsel of the City of New York, for
                                Defendants-Appellees.
                             _____________________

CHIN, Circuit Judge:

             Plaintiffs-appellants Robert Lederman and Jack Nesbitt appeal from

a judgment of the United States District Court for the Southern District of New

York (Richard J. Sullivan, J.), granting summary judgment to defendants-



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appellees New York City Department of Parks and Recreation, former Parks

Commissioner Adrian Benepe, the City of New York, and Mayor Michael

Bloomberg (collectively, the "City"), dismissing the complaint. Plaintiffs also

appeal from the District Court's June 1, 2011 order granting the City's motion for

a protective order under Fed. R. Civ. P. 26(c). We affirm.

                                   BACKGROUND

             Plaintiffs are "visual artists" who sell their works on sidewalks and

in public parks in New York City. Over the years, the City has attempted to

regulate the sales of "expressive matter" -- including books, art, sculpture, and

photos -- in certain parts of New York City, and plaintiffs have challenged the

City's efforts on First Amendment grounds. See, e.g., Bery v. City of New York, 97

F.3d 689 (2d Cir. 1996); Lederman v. Giuliani, No. 98 Civ. 2024 (LMM), 1998 WL

186753 (S.D.N.Y. Apr. 17, 1998).

             Between 2001 and 2010, the number of expressive-matter vendors

increased significantly in certain City parks. In 2010, the City revised the

vending regulations in response to this increase. See 56 Rules of the City of New

York ("R.C.N.Y.") §§ 1-02, 1-05. Under the revised regulations, expressive-matter

vendors may generally vend, without a permit, anywhere in the City's parks,



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provided they comply with certain minimum requirements relating to their

activities, such as restrictions on the size and placement of their vending tables.

See id. § 1-05(b)(4)-(8). To sell their wares in Union Square Park, Battery Park,

High Line Park, and portions of Central Park, however, expressive-matter

vendors may only vend in a limited number of designated spots, allocated on a

non-discretionary first-come, first-served basis. See id. § 1-06(b)(2)-(3). Plaintiffs

commenced this action to challenge the 2010 revisions.

             During discovery, plaintiffs sought to take the depositions of Mayor

Bloomberg and former Deputy Mayor Edward Skyler. On June 1, 2011, the

District Court issued a protective order barring those depositions.

             On September 30, 2012, the District Court granted summary

judgment to defendants, dismissing the complaint and holding, inter alia, that the

2010 revisions did not violate the First Amendment. See Lederman v. N.Y.C. Dep't

of Parks & Recreation, 901 F. Supp. 2d 464, 479 (S.D.N.Y. 2012).

             This appeal followed.

                                    DISCUSSION

             On appeal, plaintiffs contest: (1) the District Court's holding that the

vending regulations are valid content-neutral time, place, and manner



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restrictions; and (2) the District Court's order barring the depositions of Mayor

Bloomberg and former Deputy Mayor Skyler. We review an order granting

summary judgment de novo and "resolv[e] all ambiguities and draw[ ] all

permissible factual inferences in favor of the party against whom summary

judgment is sought." Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (quoting

Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)). We review an order granting a

protective order for abuse of discretion, which we will find only if the district

court's decision rests on an error of law or a clearly erroneous finding of fact, or if

the decision cannot be located within the range of permissible outcomes. See

S.E.C. v. TheStreet.Com, 273 F.3d 222, 228 & n.6 (2d Cir. 2001).

A.    Summary Judgment

            Expressive matter sold in public places is entitled to full First

Amendment protection. Bery v. City of New York, 97 F.3d 689, 696 (2d Cir. 1996).

Even in public forums, however, the government may impose reasonable

content-neutral restrictions on the time, place, or manner of protected speech.

Hous. Works, Inc. v. Kerik, 283 F.3d 471, 478 (2d Cir. 2002) (citing Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989)).




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             The Supreme Court has held that "the principal inquiry in

determining content neutrality . . . is whether the government has adopted a

regulation of speech because of [agreement or] disagreement with the message it

conveys." See Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994) (alteration

in original) (citation and internal quotation marks omitted). "[L]aws that confer

benefits or impose burdens on speech without reference to the ideas or views

expressed are in most instances content neutral." Id. at 643.

             Content-neutral time, place, and manner restrictions are subject to

intermediate scrutiny. Mastrovincenzo v. City of New York, 435 F.3d 78, 98 (2d Cir.

2006). Such restrictions pass constitutional muster if they are narrowly tailored

to serve a significant government interest, while leaving open ample alternative

channels for communication of the information. Id.; see Watchtower Bible & Tract

Soc'y of New York, Inc. v. Village of Stratton, 536 U.S. 150, 175 (2002).

             Plaintiffs argue, as they did before the District Court, that the

vending regulations are content-based restrictions, which lack proper

justification and are unduly restrictive. We agree with the District Court that the

regulations are content-neutral restrictions that operate within constitutional

limits.



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             The vending regulations apply to all expressive-matter vendors,

regardless of the message the vendors' wares convey. They were passed not in

an attempt to suppress vendors' ability to market their wares, but to fill a gap in

the larger regulatory scheme governing vending on Parks Department property.

             The City's interests here -- alleviating congestion and improving

circulation, promoting the aesthetics of the parks, and ensuring that the parks are

available to the public for a wide range of activities -- are indisputably

significant. The regulations are narrowly tailored because the City imposed spot

designations only in the most heavily used areas, while leaving all remaining

park areas open for vending. See R.C.N.Y. § 1-05(b)(2)-(3). Moreover, the

regulations allocate spot designations on a first-come, first-served basis without

reference to the ideas or views expressed in the materials in question.

             Accordingly, we affirm the judgment of the District Court

substantially for the reasons articulated in the District Court's thorough and well-

reasoned opinion.




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B.     Protective Order

             Plaintiffs also contend that the District Court erred by issuing a

protective order in response to their request to depose Mayor Bloomberg and

former Deputy Mayor Skyler.

             Under Rule 26(c), a "party . . . may move for a protective order . . . to

protect a party or person from annoyance, embarrassment, oppression, or undue

burden or expense . . . forbidding the disclosure or discovery." Fed. R. Civ. P.

26(c)(1).

             In United States v. Morgan, 313 U.S. 409, 422 (1941), the Supreme

Court long ago expressed concern that the District Court had required a high-

ranking government official -- the Secretary of Agriculture -- to submit to a

deposition. Since then, courts have relied on Morgan to hold that a high-ranking

government official should not -- absent exceptional circumstances -- be deposed

or called to testify regarding the reasons for taking official action, "including the

manner and extent of his study of the record and his consultation with

subordinates." Id.; see Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir. 2007); In

re United States (Holder), 197 F.3d 310, 313-14 (8th Cir. 1999); In re FDIC, 58 F.3d

1055, 1060 (5th Cir. 1995); In re United States (Kessler), 985 F.2d 510, 512 (11th Cir.



                                          -8-
1993); Franklin Sav. Ass'n v. Ryan, 922 F.2d 209, 211 (4th Cir. 1991); Simplex Time

Recorder Co. v. Secretary of Labor, 766 F.2d 575, 586 (D.C. Cir. 1985); Kyle Eng'g Co.

v. Kleppe, 600 F.2d 226, 231-32 (9th Cir. 1979); Warren Bank v. Camp, 396 F.2d 52,

56-57 (6th Cir. 1968). We have not previously addressed this issue in a

precedential decision. We now hold that, to depose a high-ranking government

official, a party must demonstrate exceptional circumstances justifying the

deposition -- for example, that the official has unique first-hand knowledge

related to the litigated claims or that the necessary information cannot be

obtained through other, less burdensome or intrusive means. Bogan v. City of

Boston, 489 F.3d 417, 423 (1st Cir. 2007); In re United States (Holder), 197 F.3d 310,

316 (8th Cir. 1999). High-ranking government officials are generally shielded

from depositions because they have "greater duties and time constraints than

other witnesses." In re United States (Kessler), 985 F.2d 510, 512 (11th Cir. 1993). If

courts did not limit these depositions, such officials would spend "an inordinate

amount of time tending to pending litigation." Bogan, 489 F.3d at 423.

             Here, plaintiffs did not demonstrate exceptional circumstances.

They did not identify with particularity the information they needed, nor did

they contend that Bloomberg and Skyler had first-hand knowledge about the



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litigated claims or that the relevant information could not be obtained elsewhere.

See id. at 423.

                 Plaintiffs argue that they "had no other means of obtaining the

information . . . they needed from then-Commissioner Adrian Benepe" because,

"[w]hen deposed, Benepe claimed not to know any of the answers to the

questions regarding the information plaintiffs needed from the Mayor and his

former Deputy." Plaintiffs did not show, however, that Bloomberg and Skyler

had the information they were seeking from Benepe.1

                 We conclude that the District Court did not abuse its discretion in

issuing the protective order barring the depositions of Mayor Bloomberg and

former Deputy Mayor Skyler.




1        Plaintiffs have not, in any event, preserved for appellate review their principal arguments
concerning the protective order. To preserve arguments for appellate review, appellants must include in
their briefs their "contentions and the reasons for them, with citations to the authorities and parts of the
record on which the appellant relies." Fed. R. App. P. 28(a)(9)(A). Issues not sufficiently argued will be
deemed waived and ineligible for appellate review. Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998).
Appellants do not preserve questions for appellate review by "[m]erely incorporating an argument made
to the district court" by reference in their brief. Frank v. United States, 78 F.3d 815, 833 (2d Cir. 1996),
vacated on other grounds, 521 U.S. 1114 (1997) (mem.). In their brief, plaintiffs refer to "twelve points" they
argued in a "joint letter" submitted to the District Court. Plaintiffs do not, however, elaborate further as
to what those "twelve points" are.

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                                CONCLUSION

            We have considered all of the parties' remaining arguments on

appeal and find them to be without merit. For the reasons stated above, we

AFFIRM the judgment of the District Court.




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