         08-2988-cv
         Rosendale v. Mahoney and The Millbrook Central School District



                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 18 th day of March, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                GERARD E. LYNCH,
 9                         Circuit Judge,
10                JANE A. RESTANI, *
11                         Judge.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       DONALD P. ROSENDALE,
15
16                    Plaintiff-Appellee,
17
18                    -v.-                                         08-2988-cv
19
20       W. MICHAEL MAHONEY, individually and
21       as superintendent of the Millbrook,
22       N.Y. School District, and THE
23       MILLBROOK CENTRAL SCHOOL DISTRICT,
24
25                Defendants-Appellants.
26       - - - - - - - - - - - - - - - - - - - -X

                *
               The Honorable Jane A. Restani, Chief Judge of the
         United States Court of International Trade, sitting by
         designation.
 1   APPEARING FOR APPELLANTS:   Mark C. Rushfield, Shaw,
 2                               Perelson, May & Lambert, LLP,
 3                               Poughkeepsie, NY.
 4
 5   APPEARING FOR APPELLEE:     Donald P. Rosendale, pro se,
 6                               Amenia, NY.
 7
 8
 9        Appeal from an interlocutory order of the United States
10   District Court for the Southern District of New York
11   (Brieant, J.).
12
13        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
14   AND DECREED that the order of the district court be REVERSED
15   and REMANDED.
16
17        Defendant-appellant W. Michael Mahoney appeals from an
18   interlocutory order of the United States District Court for
19   the Southern District of New York (Brieant, J.) denying his
20   motion for summary judgment on the ground of qualified
21   immunity. We assume the parties’ familiarity with the
22   underlying facts, the procedural history, and the issues
23   presented for review.
24
25        We have jurisdiction pursuant to the collateral order
26   doctrine because Mahoney “contends that on stipulated facts,
27   or on the facts that the plaintiff alleges are true, or on
28   the facts favorable to the plaintiff that the trial judge
29   concluded the jury might find, the immunity defense is
30   established as a matter of law because those facts show . .
31   . that it was objectively reasonable for him to believe that
32   his action did not violate clearly established law.” Salim
33   v. Proulx, 93 F.3d 86, 90-91 (2d Cir. 1996). We lack
34   jurisdiction to “entertain an interlocutory appeal”
35   contending that the district court “committed an error of
36   law in ruling that [Rosendale’s] evidence was sufficent to
37   create a jury issue on the facts relevant to [Mahoney’s]
38   immunity defense.” Id. at 91. We therefore do not decide
39   whether there are genuine issues of material fact as to
40   whether the letters and alleged oral assurances give rise to
41   a contractual relationship between Rosendale and defendant-
42   appellant Millbrook Central School District (the “School
43   District”), which, in turn, might give rise to a protected
44   property interest requiring notice and a hearing prior to
45   Rosendale’s removal from the call list for substitute

                                  2
 1   teachers. **
 2
 3        However, assuming arguendo that such evidence gives
 4   rise to a genuine issue of material fact regarding a
 5   protected property interest, we nevertheless conclude that
 6   Mahoney’s actions in removing Rosendale’s name from the call
 7   list of substitute teachers was objectively reasonable.
 8   Reasonable superintendents could disagree as to whether such
 9   removal required notice and a pre-removal hearing based on
10   the then-current state of the law. See Salim, 93 F.3d at 91
11   (“The objective reasonableness test is met if officers of
12   reasonable competence could disagree on the legality of the

          **
            The Supreme Court has recognized that property
     interests “are created and their dimensions are defined by
     existing rules or understandings that stem from an
     independent source such as state law-rules or understandings
     that secure certain benefits and that support claims of
     entitlement to those benefits.” Bd. of Regents of State
     Colls. v. Roth, 408 U.S. 564, 577 (1972). Magistrate Judge
     Smith recognized this principle and the district court
     adopted her Report and Recommendation as its decision.
     However, neither the Report and Recommendation nor the
     district court order addresses decisions of the New York
     State Commissioner of Education holding that form letters
     such as those received by Rosendale do “not constitute a
     binding employment contract.” In the Matter of Bonnie L.
     Barkley, Decision No. 14,912, 2003 NY Educ. Dept. LEXIS 177,
     at *6 (N.Y. Educ. Dep’t July 28, 2003); see also In the
     Matter of Barbara Martin, Decision No. 11,484, 25 Educ.
     Dep’t Rep. 21, 22 (N.Y. Educ. Dep’t July 12, 1985) (“The
     letter of Superintendent Thomas to petitioner dated August
     29, 1984 notifying petitioner of her appointment as a
     regular substitute teacher and setting forth her salary for
     the 1984-85 school year did not create a definite term of
     employment . . . .”).
          On remand, the district court should evaluate whether,
     as a matter of law, such decisions indicate that Rosendale’s
     letters cannot give rise to a protected property interest.
     On remand, the district court should further evaluate
     whether a genuine issue of material fact truly exists with
     respect to the alleged oral assurances in light of
     Rosendale’s deposition testimony about the substance and
     timing of those assurances and the affidavits and deposition
     testimony of other individuals.

                                  3
 1   defendant’s actions.” (internal quotation marks omitted)).
 2   Accordingly, we reverse the district court’s denial of
 3   summary judgment to Mahoney (in his personal capacity) on
 4   the ground of qualified immunity. See Almonte v. City of
 5   Long Beach, 478 F.3d 100, 109 (2d Cir. 2007) (“[A]n official
 6   is entitled to qualified immunity . . . if the official’s
 7   actions were not objectively unreasonable in light of
 8   clearly established law.”).
 9
10        We decline to exercise pendent jurisdiction over
11   Rosendale’s procedural due process claim against Mahoney in
12   his official capacity and against the School District.
13   “Where we have jurisdiction over an interlocutory appeal of
14   one ruling, we have the discretion to exercise pendent
15   appellate jurisdiction over other district court rulings
16   that are inextricably intertwined or necessary to ensure
17   meaningful review of the first. We recognize, however, that
18   pendent appellate jurisdiction should be exercised
19   sparingly, if ever.” See Bolmer v. Oliveira, 594 F.3d 134,
20   141 (2d Cir. 2010) (internal quotation marks and citations
21   omitted). Our objective reasonableness ruling does not
22   require us to decide (i) whether Rosendale’s letters and
23   alleged oral assurances give rise to a contractual
24   relationship which, in turn, gives rise to a protected
25   property interest requiring notice and a hearing prior to
26   Rosendale’s removal from the call list for substitute
27   teachers; (ii) whether any such right to procedural due
28   process was clearly established; or (iii) whether Mahoney
29   acted independently, with the authority of the School
30   District or the State, or with the apparent authority of the
31   School District or the State. Accordingly, the objective
32   reasonableness analysis does not warrant the exercise of
33   appellate pendent jurisdiction over the remaining claim in
34   this action.
35
36        Finding no merit in Mahoney’s remaining arguments, we
37   REVERSE the judgment of the district court and REMAND for
38   further proceedings consistent with this order.
39
40
41                              FOR THE COURT:
42                              CATHERINE O’HAGAN WOLFE, CLERK
43
44
45




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