UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

(West Palm Beach Division)

Case No. 9:22-cv-81857-DMM

DIANA FEDDERMAN,

Plaintiff,

vs.

PALM BEACH COUNTY SCHOOL

DISTRICT, a Florida political

subdivision, and MICHAEL J.

BURKE, individually,

Defendants.

 /

Plaintiff’s Reply in Support of her

Motion for Preliminary and Permanent Injunctive Relief

Plaintiff, Diana Fedderman replies as follows to Defendant’s (sic)

Response in Opposition to Plaintiff’s Motion for Preliminary and Permanent

Injunctive Relief, With Incorporated Memorandum of Law (ECF 11):

Introduction and Summary

Defendants, Palm Beach County School District and Michael Burke, its

superintendent, argue that this Court should not restore Ms. Fedderman to

her position as an Assistant Superintendent of Teaching and Learning, from

which she was demoted as soon as the 2021-2022 academic year ended

because she in January posted on her Twitter account, off-duty, that

aa

pa The Amlong Firm ! 500 Northeast Fourth Street ! Fort Lauderdale, FL 33301 ! 954.462.1983

Case 9:22-cv-81857-DMM Document 14 Entered on FLSD Docket 12/22/2022 Page 1 of 11
Republicans are waging a war to decimate public ed. Where is the

response? They are banning books, advocating for a two-sides

approach to teaching slavery, & generally making teaching untenable.

Without opposition, they win. This is the time for a grassroots

approach- vote local.

ECF 11-1 (sic).

As to the standard for a preliminary injunction, the defendants’

response — and its attachments — make clear that:

• Ms. Fedderman is likely to prevail on the merits since the

attachments and defendants’ argument make it clear that Ms. Fedderman’s

demotion was based on the content of her January tweet — and possibly her

subsequent tweets;

• Irreparable injury not only will be suffered, but is being suffered

daily as she is consigned to a do-nothing job outside her area of expertise;

• There is no likelihood of damage to the School District or the

superintendent since none of the tweets that defendants have appended as

ECF 11-5 identify her as an assistant superintendent — and she remains a

school-district employee, and

• An injunction restoring Ms. Fedderman to her job would be in the

public interest, not adverse to it, since the school district is now paying Ms.

Fedderman the same salary ($167,800 — plus a 4 per cent raise that the

School Board just approved) but is getting essentially nothing for it.

Defendants argue that first-amendment lawsuit and its request for a

preliminary injunction restoring her to her assistant-superintendent, One, is

moot; Two, is not likely to be successful; Three, does not involve any

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irreparable injury, and, Four, does not reasonably anticipate any threatened

injury.

Ms. Fedderman addresses those claims in the order that Defendants

made them.

Point 1: Ms. Fedderman’s complaint, and her claim for preliminary

injunctive relief, is not moot.

As held in Reich v. Occupational Safety and Health Review

Commission, 102 F.3d 1200 (11th Cir. 1997), one of the authorities cited by

defendants, for the proposition that “injunctive relief. . . addresses only

ongoing or future violations. . .,” id. at 1202, “[a] case becomes moot ‘when

the issues presented are no longer “live” or the parties lack a legally

cognizable interest in the outcome.’” Id. at 120, quoting Powell v.

McCormack, 395 U.S. 486, 496 (1969).

Adverse employment actions based on temporarily or preliminarily

enjoyed constitutionally protected behavior may be preliminarily enjoined. 

See, e.g., Branti v. Finkel, 445 U.S. 507, 508 (1980) (newly elected

Democratic public defender’s plan to discharge two assistants because they

were Republicans); Elrod v. Burns, 427 U.S. 347 (1976) (affirming court of

appeals reversal of district court’s denial of a preliminarily injunction against

Chicago Democrats from discharging non-Democrat public employees);

Johnson v. Bergland, 586 F.2d 993, 994 (4th Cir. 1978), cited by Cate v.

Oldham, 707 F.2d 1176 (11th Cir. 1983), (reversing denial of preliminary

injunction reinstating Republic State Director of federal Farmers Home

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Administration in North Carolina, whom incoming Democratic administration

had move to a same-salary lesser job). 

The harm from which Ms. Fedderman seeks immediate relief is not

done and over: It continues every day she goes to work and does virtually

nothing for which she was educated and trained. This motion, therefore, is

not to enjoin the School District from inflicting additional harm for her

(although that obviously is another purpose of this litigation); it is rather to

make them stop the harm they currently are inflicting on her every day.

Her case is anything but moot.

Point 2: Ms. Fedderman is likely to succeed on the merits.

 The School District and its superintendent are offering no legitimate,

non-retaliatory reason for moving Ms. Fedderman into the non-job of

Director of Supplemental Educational Services. 

The only reason they offer for not moving her back into her position as

Assistant Superintendent for Learning and Teaching, for which no one has

suggested she was not qualified, is that “[t]he School Board ultimately

eliminated all Assistant Superintendent positions as of October 12, 2022

[and t]herefore, the School Board is unable to reinstate Plaintiff to a position

that no longer exists.”

That statement in the defendants’ response is literally (but not really)

true: Previously, there were three assistant superintendents, i.e., Ms.

Fedderman, who was transferred out of that position in June; Carlene Millen,

the Assistant Superintendent for Professional Development, who voluntarily

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left and has not been replaced, and Adam Miller, the Assistant

Superintendent for Performance Accountability — whose title was changed to

Chief of Performance Accountability, but whose job description and duties

remain the same.

As for the authorities upon which defendants rely for their argument

against restoring Ms. Fedderman to Assistant Superintendent (or Chief) of

Teaching and Learning, all are inapposite:

• FHR TB, LLC v. TB Isle Resort, LP, 865 F.Supp.2d (S.D. Fla.

2011) was a business dispute in which a hotel-management company and its

parent wanted the court to sidestep an arbitration agreement and —

“perhaps most importantly,” even though no irreparable harm had been

demonstrated — enjoin a hotel owner to reinstate the management company

to continue running a 322-room luxury hotel for the remainder of what was

essentially a 50-year hotel management agreement. Id. at 1176-1177. 

Although the magistrate judge distinguished between a mandatory and

prohibitory injunction, he did not hold that a mandatory injunction could not

be ordered. He did, however, say that the management company would not

be “likely to prevail” because both Florida and New York law forbid the use of

specific performance of injunctions to enforce personal services contracts. 

Id. at 1178.

Point 3: Ms. Fedderman is likely to succeed on the merits.

Ms. Fedderman’s January Twitter post — about how Republicans are

decimating public education, banning books and blocking the teaching of

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critical race theory, and how persons who oppose that need to organize at

the grass-roots level and vote — is, without doubt, concerning matters of

public concern. The School District even agrees. See ECF 11,at 6 (“The

School Board agrees that the Plaintiff’s speech was on a matter of public

concern. . . .”)

So are the additional twitter posts defendants appended to their

response. See ECF 11-5.

And while her Twitter account may in the past have identified her as

an assistant superintendent, that ceased following the January conversation

in which Mr. Burke warned that persons who read her tweets were conflating

her personal and public roles. See ECF 11-5 (Twitter posts with no

identification of Ms. Fedderman as a School District employee.)

So Mr. Burke’s no-explanation transfer of Ms. Fedderman, and the

School Board’s current explanation that the Assistant Superintendent’s jobs

have been eliminated is evidence that her post was a “substantial motivating

factor” in her transfer. A lack of candor can also be inferred from defendants

now claiming that the three assistant superintendent’s position had been

eliminated — rather than simply vacated in Ms. Millen’s case and renamed in

the case of now-Chief Miller.

Although defendants refer twice during this section of their response to

“intervening events,” See ECF 11, at 7 and 8, they do not say what they

were. Are they talking about the additional Twitter posts appended as ECF

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11-5? If so, that would be additional violations of the First Amendment since

all of those also are discussions of matters of public concern.

Meanwhile, the case law on which defendants rely is also inapposite:

• In quoting Brochu v. City of Riviera Beach, 304 F.3d 1144, 1161

(11th Cir. 2002), for example, defendants omit the sentence following the

one it quoted, showing that Lt. Brochu was not fired for expressing political

ideas, but rather for essentially planning a police-department coup détat: 

“Brochu overstepped the boundary of constitutional protection when he

secretly created a written plan aimed at overthrowing [Chief] Poreba's

administration and installing himself and his friends. No reasonable jury

could find otherwise on this record.”

• Shahar v. Bowers, 114 F.3d 1097, 1103 (11th Cir. 1997) was a

case holding that an attorney general could discharge an assistant for being

in a same-sex marriage because her intimate association with him lessened

her protection, noting that

government employees who have access to their employer's

confidences or who act as spokespersons for their employers, as well

as those employees with some policy-making role, are in a special

class of employees and might seldom prevail under the First

Amendment in keeping their jobs when they conflict with their

employers.

Id. at 1103. There is no evidence, however, that Ms. Fedderman, as an

assistant superintendent, enjoyed that type of role with Mr. Burke.

• Sims v. Metropolitan Dade County, 972 F.2d 1230, 1232 (11th

Cir. 1992) involved a Black pastor who was fired from his position in the

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Dade County Department of Community Affairs after complaining publicly

about the Metro-Dade police department’s racial policies, calling the mayor

of Miami “an idiot” (both at a meeting and later on a radio show) for linking

Nelson Mandela to Fidel Castro and, finally urging his parishioners during a

post-Mandela boycott:

We are now entering the second phase of the boycott known as

"Rediscovering Black Miami." You should not spend your money with

any business that does not hire Blacks or who have [sic] not shown

any sensitivity toward us in the past and you should support Black

businesses or those who have a history of hiring Blacks. Sometimes we

are made to feel like foreigners in our own homeland because of the

way Spanish is spoken in many of our public facilities and businesses,

such as restaurants, that we frequent.

• Kinsey v. Salado Independent School Dist., 950 F.2d 988, 990

(5th Cir. 1992) (en banc)(affirming summary judgment on a due-process

claim and a judgment notwithstanding the verdict on a first-amendment

claim by “a public school superintendent, Dr. Nolan L. Kinsey, who opposed

through speech and affiliation the winning slate in a school board election

and was relieved of his duties (but with full compensation) by the new

Board.”

Point 4: Ms. Fedderman is suffering irreparable harm.

As cogently set out in Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir.

1983)

"It is well settled that the loss of First Amendment freedoms for even

minimal periods of time constitutes irreparable injury justifying the

grant of a preliminary injunction." Deerfield Medical Center v. City of

Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B 1981), citing Elrod

v. Burns, 427 U.S. at 373. So too, direct penalization, as opposed to

incidental inhibition, of First Amendment rights constitutes irreparable

injury. Johnson v. Bergland, 586 F.2d 993, 995 (4th Cir. 1978)

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(transfer of employee allegedly for exercise of First Amendment rights;

"[v]iolations of first amendment rights constitute per se irreparable

injury"); Citizens for a Better Environment v. City of Park Ridge, 567

F.2d 689 (7th Cir. 1975).

The two Eleventh Circuit cases that defendants cite for Ms. Fedderman

to have sought a preliminary injunction sooner than she did were not firstamendment cases. One, All Care Nursing Serv. v. Bethesda Memorial, 887

F.2d 1535, 1536 (11th Cir. 1989), arose under §§ 1 and 2 of the Sherman

Act, 15 U.S.C. § 1-2, and § 542.18 and 542.19 FLA. STAT. (1989). The other, 

Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244 (11th Cir. 2016), involved a

reverse-confusion trademark dispute concerning the mark “FyreTV.”

Point 5: Granting the injunction would be in the interest of the

School District.

The School District is now paying Ms. Fedderman the salary of a

district executive, i.e., an “Assistant Superintendent” or “Chief” of Teaching

and Learning while she is performing tasks more akin to those of an office

assistant. The School District, and the taxpayers of both Palm Beach County

and Florida, would be better served if she were allowed to do the work that

she was trained to do and did well enough for 22 years to achieve the rank

she held prior to her demotion.

Conclusion

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Based on the facts alleged, the authorities cited and the arguments

presented, both in this response and in her original motion, plaintiff, Diana

Fedderman, respectfully requests that this Court to:

One, set an evidentiary hearing on her request for a preliminary

injunction;

Two, enter a preliminary injunction, restoring Ms. Fedderman to her

job as “Assistant Superintendent for Teaching and Learning,” or as it likely

would now be known, as “Chief of Teaching and Learning,” and

Three, enjoin defendants, and their agents, to cease any restrictions

on her exercise of her first-amendment rights or retaliatory behavior towards

Four, not only “if issued, the injunction would not be adverse to the

public interest,” but it would be strongly in the public interest to restore to

her assistant superintendent’s position a woman as educated and as

experienced as Ms. Fedderman.

Ms. Fedderman — based on the facts marshaled, the authorities cited

and the arguments presented — respectfully requests this Court to grant a

preliminary injunction restoring Ms. Fedderman to her position as an

Assistant Superintendent in the Division of Teaching and Learning.

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Respectfully Submitted,

THE AMLONG FIRM

500 Northeast Fourth Street

Suite 101

Fort Lauderdale, Florida 33301-1154

(954) 462-1983

/s/ William R. Amlong 

WILLIAM R. AMLONG

Florida Bar No. 470288

WRAmlong@TheAmlongFirm.com

KAREN COOLMAN AMLONG

Florida Bar No. 275565

KAmlong@TheAmlongFirm.com 

Dated: December 21, 2022

Attorneys for the Plaintiff, 

Diana Fedderman

Certificate of Service

I HEREBY CERTIFY that the above and foregoing has been filed by

using the ECF program of the United States District Court for the Southern

District of Florida and thereby served upon all counsel of record.

/s/ William R. Amlong 

WILLIAM R. AMLONG

\\amlong3\cpshare\CPWin\HISTORY\211019_0001\17F7.164

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