13‐651‐cv
Dorsett v. County of Nassau
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2013
(Argued: September 19, 2013 Decided: October 18, 2013)
Docket No. 13‐651‐cv
SHARON DORSETT, AS THE ADMINISTRATRIX OF THE ESTATE OF
JO’ANNA BIRD, FREDERICK K. BREWINGTON,
Plaintiffs ‐ Appellants,
ROBIN PELLEGRINI, LAW OFFICES OF FREDERICK K. BREWINGTON,
Plaintiffs,
‐v.‐
COUNTY OF NASSAU,
Defendant ‐ Appellee,
EDWARD MANGANO, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES AS
COUNTY EXECUTIVE OF THE COUNTY OF NASSAU, NASSAU COUNTY
LEGISLATURE, PETER SCHMITT, IN HIS INDIVIDUAL AND OFFICIAL
CAPACITIES AND AS LEGISLATOR/PRESIDING OFFICER OF THE COUNTY
OF NASSAU COUNTY LEGISLATURE,
Defendants.*
*
The Clerk of the Court is directed to amend the caption of the case to conform
with the listing of the parties above.
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Before:
WINTER, WALKER, AND WESLEY, Circuit Judges.
Plaintiff‐Appellant Sharon Dorsett settled with the County of Nassau in
separate litigation arising out of the death of her daughter. Dorsett and her
attorney in that action, Frederick Brewington, bring this First Amendment
retaliation claim against the County of Nassau. Dorsett and Brewington allege
that the County delayed approving the settlement in retaliation for their First
Amendment activities. The district court dismissed the action for lack of standing
and failure to state a claim. We AFFIRM.
SCOTT A. KORENBAUM, New York, NY (Stephen Bergstein,
Bergstein & Ullrich, LLP, Chester, NY; Randolph McLaughlin,
Newman Ferrara LLP, New York, NY; Frederick K.
Brewington, Hempstead, NY, on the brief), for Appellants.
DAVID A. TAUSTER, Deputy County Attorney (Dennis J. Saffran, Appeals
Bureau Chief, on the brief), for John Ciampoli, County Attorney of
Nassau County, Mineola, NY, for Appellee.
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PER CURIAM:
This § 1983 action comes to us on an expedited appeal from the Eastern
District of New York following dismissal on a 12(b)(6) motion. In March 2010,
Sharon Dorsett, the mother of Jo’Anna Bird, acting as administratrix of Bird’s
estate, filed a complaint against the County of Nassau and various of its officers
seeking damages for Bird’s death. Dorsett’s attorney in that action, Frederick
Brewington, negotiated a settlement with the County that was signed in July 2011.
By its terms, however, the agreement was not final until approved by the county
legislature. After the legislature finalized the agreement, it was also subject to
court approval. N.Y. Est. Powers & Trusts Law § 5‐4.6. The legislature did not
approve the settlement until January 2012. Dorsett and Brewington,
plaintiff‐appellants in this separate action, allege that the County intentionally
delayed approving the settlement in retaliation for their protected First
Amendment activities. Because we find that Plaintiffs had no right to have the
settlement approved at all, much less by a certain date, we affirm the district
court’s order dismissing the complaint.
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Background
When reviewing a 12(b)(6) dismissal, the court accepts as true all factual
allegations in the complaint. See King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999).
In March 2009, Leonardo Valdez‐Cruz murdered Jo’Anna Bird. One year later,
Bird’s mother, Sharon Dorsett, retained Frederick Brewington, a Nassau County
civil rights attorney, to represent Bird’s estate in an action against the County.
Dorsett alleged that the murder was the result of inadequate police protection. In
July 2011, Brewington negotiated and Dorsett agreed to a settlement with the
County. By its terms, however, the settlement could not be finalized without a
vote by the county legislature. After signing, Dorsett waited.
Meanwhile, in April 2011, Peter Schmitt, the presiding officer of the Nassau
legislature, sought to re‐draw the districts from which county legislators were
elected in advance of that Fall’s elections. This controversial move sparked
protests and accusations of racial bias. Brewington spoke before the legislature to
voice his opposition to Schmitt’s plan. In June he commenced Boone et al. v.
Nassau County Legislature et al., No. 11‐cv‐02712 , a federal lawsuit challenging the
redistricting plan. During the election campaign, Brewington also wrote the
United States Attorney for the Eastern District of New York to request federal
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election observers to monitor alleged racial harassment by campaign workers.
Brewington’s political maneuvers during the 2011 election received significant
local media coverage.
As presiding officer of the legislature, Schmitt had complete control over
the legislature’s agenda and could have put Dorsett’s settlement up for a vote at
any time. Yet, in November, the Dorsett settlement was still pending. In a post‐
election television interview, Schmitt was asked why the settlement had not yet
received a vote. He replied “I did not feel comfortable voting on a settlement that
would put a couple million dollars into [Brewington’s] . . . pocket while we were
being sued [in the Boone case], so I requested an opinion of the County Board of
Ethics to see that there was no conflict there.” In fact, Schmitt had received the
ethics opinion in September – two months before this interview – and the
settlement was still not approved until January. Plaintiffs allege that Schmitt
actually requested the ethics opinion to hold up the settlement in retaliation for
their political activities. During the delay, Plaintiffs allege, interest rates changed
and the value of the settlement diminished by $8 million.1
1
The parties have not disclosed the exact terms of their settlement. Typically,
parties agree to one of two structures. The defendant may agree to pay a fixed amount
for an annuity, the regular payout of which depend on the prevailing interest rates at
5
After the 2011 election, Plaintiff‐Appellants, along with Plaintiff Robin
Pellegrini, another Brewington client with a settlement pending before the
legislature, filed this suit to compel a vote on their settlements. In early 2012, the
legislature approved Dorsett’s settlement and rejected Pellegrini’s. Plaintiffs then
amended their complaint to allege damages from the delay in approving Dorsett’s
settlement. In January 2013, the district court dismissed the amended complaint
under Federal Rule of Civil Procedure 12(b)(6). Dorsett and Brewington timely
appeal. Pellegrini does not.
Discussion
We review dismissals under 12(b)(6) de novo. Ruston v. Town Bd. for Town of
Skaneateles, 610 F.3d 55, 58 (2d Cir. 2010). To plead a First Amendment retaliation
claim a plaintiff must show: (1) he has a right protected by the First Amendment;
the time of purchase. In this case, the plaintiff bears the risk of a rise in interest rates, but
a lawyer taking his contingency fee off the lump sum would bear none. Alternatively,
the parties may agree that the defendant will purchase an annuity providing a
determined level of income at whatever price. In this case, the plaintiff bears no risk of
interest rate fluctuations. The lawyer may or may not, depending on whether his fee is
taken in lump sum off of the annuity’s initial purchase price, or as a share of the
annuity’s income stream. Either way, we suspect it is unlikely that both Dorsett and
Brewington have suffered an injury from a change in interest rates. As we make clear
below, there are other reasons we are confident that neither has standing to bring this
suit.
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(2) the defendant’s actions were motivated or substantially caused by his exercise
of that right; and (3) the defendant’s actions caused him some injury. See Curley v.
Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001). Here, the district court found that
Plaintiffs failed to show an injury. We come to the same conclusion, but for
different reasons than the court below.
As we have recognized, there is some tension in our First Amendment
standing cases. Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004). We have
sometimes given the impression that silencing of the plaintiff’s speech is the only
injury sufficient to give a First Amendment plaintiff standing. For example, in
Curley v. Village of Suffern, a case relied upon by the district court, we wrote that
“To prevail on this free speech claim, plaintiff must prove . . . [that] defendants’
actions effectively chilled the exercise of his First Amendment right.” 268 F.3d at
73; see also Colombo v. OʹConnell, 310 F.3d 115, 117 (2d Cir. 2002); Spear v. Town of
W. Hartford, 954 F.2d 63, 67 (2d Cir. 1992). This was an imprecise statement of law.
Chilled speech is not the sine qua non of a First Amendment claim. A
plaintiff has standing if he can show either that his speech has been adversely
affected by the government retaliation or that he has suffered some other concrete
harm. Various non‐speech related harms are sufficient to give a plaintiff standing.
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Zherka v. Amicone, 634 F.3d 642, 646 (2d Cir. 2011) (lost government contract);
Tabbaa v. Chertoff, 509 F.3d 89, 102 (2d Cir. 2007) (additional scrutiny at border
crossing); Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 90
(2d Cir. 2002) (revoking a building permit); Gagliardi v. Vill. of Pawling, 18 F.3d 188,
195 (2d Cir. 1994) (refusal to enforce zoning laws).
Turning to the instant case, it is clear that the County’s alleged retaliation
did not curtail the Plaintiffs’ speech. Brewington remained politically active while
the settlement was pending and Dorsett maintained her association with
Brewington. The question therefore is whether the delay in approving the
settlement constituted a concrete injury giving Plaintiffs standing. It did not.
Plaintiffs contend that as a result of the delay, the settlement lost $8 million
in value. Eight million dollars is certainly concrete, but this does not tell the
whole tale. Plaintiffs had no right to have the settlement approved by a date
certain. The settlement did not include a time‐is‐of‐the‐essence clause, nor have
Plaintiffs pointed to anything that required the legislature to act. The legislatureʹs
agenda is subject to its absolute discretion. It was not required to vote on the
settlement – ever. Much less was it required to approve it. This discretion is
illustrated by the legislature’s failure to approve the settlement of Dorsett’s co‐
plaintiff, Robin Pellegrini, who thus is not a party to this appeal.
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Conclusion
For the foregoing reasons, the order of the district court is AFFIRMED.
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