16

- 3650 Amy Colvin v. Hubert Keen, et. al.

1 UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 3 August Term, 201 7 4 5 ( Argued : November 8 , 201 7 Decided: August 15, 2018 ) 6 7 Docket No

. 16

- 3650 8 9 10

_____________________________________ 11 12 Amy Colvin , 13 14 Plaintiff

- Appell ant , 15 16

v. 17 18 Hubert Keen, President, in his official and individual capacity, Lucia 19 Cepriano, Vice

- President, in her official and individual capacity, Marybeth 20 Incandela, Director, in her official and individual capacity, James Hall, in his 21 official and individual capacity , 22 23 Defendant s

- Appellee s

. 24

_____________________________________ 25 26 Before: 27 28 PIERRE N. LEVAL , DEBRA ANN LIVINGSTON , and D ENNY CHIN , 29 Circuit Judges

. 30 31 The p laintiff , a former employee of the State University of New York at 32 Farmingdale , appeals from the grant of summary judgment by the United 33 States District Court for the Eastern District of New York ( Sandra J. 34 Feuerstein , J. ) dismissing her claim that officers and employees of the 35 u niversity retaliated against her for her speech in violation of the First 36 Amendment

. We find that the district court’s reversal of its prior denial of 37 summary judgment did not offend the principle of law of the case. The 38 judgment is AFFIRMED by reason of the defendants’ qualified immunity. 3916

- 3650 Amy Colvin v. Hubert Keen, et. al.

2 1 JAMES M. MALONEY , Law Office of 2 James M. Maloney, Port Washington, 3 N

. Y

. , for Plaintiff

- Appellant

. 4 5 MARK H. SHAWHAN, ( Anisha S. 6 Dasgupta , on the brief ), for Barbara D. 7 Underwood, Attorney General State of 8 New York, New York, N

. Y

. , for 9 Defendant s

- Appellee s

. 10 11 LEVAL , Circuit Judge : 12

Plaintiff Amy Colvin appeals from the grant of summary judgment by 13

the United States District Court for the Eastern District of New York ( Sandra 14

J. Feuerstein , J .), in favor of the d efendants , Hubert Keen, Lucia Cepriano, 15
Marybeth Incandela, and James Hall ( “Defendant s”) , in their individual and 16
official capacities as officers and employees of the Farmingdale State College 17

of State University of New York (“SUNY Farmingdale” or the “College” )

. 18

Colvin , who was employed by the C ollege as an admissions counselor during 19

the relevant time , alleged that Defendants took adverse employment action 20
against her in violation of the First A mendment in retaliation for her giving 21

advice to a co

- worker who was being arrested by campus police

. The district 22
court initially denied Defendants’ motion for summary judgment and 23
instructed that the case proceed to trial

. O n receipt of a dditional briefing , the 2416

- 3650 Amy Colvin v. Hubert Keen, et. al.

3 district court ruled that the First Amendment did not protect Colvin from 1

retaliation because her speech did not address a matter of public concern , and 2

dismissed the case

. Colvin contends that , under the doctrine of law of the case 3
(“LOTC”) , we should require the district court to adher e to its original ruling 4

and conduct a trial

. We disagree. Without deciding whether the district 5

court’s ultimate conclusion as to the character of Plaintiff’s speech was 6
correct, we affirm the grant of summary judgment to Defendants on the 7
alternate ground of Defendants’ qualified immunity. 8

BACKGROUND 9

The evidence, if considered in the light most favorable to Plaintiff, 10
showed the following. On May 18, 2011, Plaintiff , who was employed by th e 11
College as an a dmissions c ounselor , participated in a lunchtime yoga class in 12

a campus classroom . During the session, campus p olice officers entered the 13

class in order to arrest Sherry Buch, a College employee who had been 14
suspended but was participating in the class . The police were responding to a 15
report that Buch was trespassing on the campus. Colvin identified herself as 16

an attorney and said to the police , “Officers, I would like to get her

. . . union 17
representation and an attorney.” App’x 215. Colvi n accompanied the officers 1816

- 3650 Amy Colvin v. Hubert Keen, et. al.

4 as they directed Buch to a vestibul e outside the yoga classroom

. S he told 1

Buch , “ [ W ] e’re going to work on getting y ou a lawyer and a union rep , ” id ., 2

and advised her “to wait to say anything until we got an attorney and a union 3

rep, ” Id. at 218. Colvin also t o ld the officers that she “ would like to 4

accompany [ Buch ] to the police station.” Id. at 216

. T he officers responded , 5
“Well, we’re going to arrest you now,” to which Colvin re plied , “I believe that 6

would be a false arrest.” I d. at 215

. The officers did not arrest Colvin. 7
On June 14, 2011, Defendant Marybeth Incandela, the SUNY 8
Farmingdale Director of Human Resources, questioned Colvin a bout the 9

incident and on June 27, 2011, gave Colvin a counseling memo randum . The 10
memorandum recapitulated that Colvin had “identified [her]self as an 11
attorney and offered advice and guidance to the employee being arrested

. ” 12
App’x 228. I t described Colvin’s actions as “escalating tension,” criticized her 13
for making “the assumption that the officers were acting improperly,” and 14

informed her that “interfering with police business is unprofessional .” Id

. It 15

advis ed Colvin that, “ G oing forward, it is expected that your personal 16
conduct will be professional, and you will not interfere with any police 17
business conducted on the Farmingdale State College campus.” Id

. 1816

- 3650 Amy Colvin v. Hubert Keen, et. al.

5 O n July 8, 2011, Defendant James Hall, Colvin’s supervisor, 1

re commended her for reappointment. O n July 21, 2011, however, Defendant 2
Lucia Cepriano, a Vice

- President, advised that Colvin not be reappointed. 3
Four days later, o n July 25, 2011, Hall met with Colvin and counseled her 4

about union activities. On August 2, 2 011 , Defendant Hubert Keen, President 5
of the College , advised Colvin by letter that her contract would not be 6

renewed. Colvin continued to be employed at the College for approximately 7

t wo more years. At some point between February 27, 2013 and August 6, 8

2013, her employment was terminated. 9
Colvin asserts that her job performance was “stellar,” App’x 272, 10
pointing to achievement forms , letters from management employees, students 11
and parents , and informal evaluations in her personnel file, as well as 12
discretionary bonuses, raises, and positive feedback she received from her 13
supervisors. 14

15

Procedure 16
Colvin brought this action on June 25, 2013 asserting a claim of 17
retaliation for First Amendment protected speech under 42 U.S.C. § 1983, 1816

- 3650 Amy Colvin v. Hubert Keen, et. al.

6 among other claims. She alleges that her contract was terminated becau se she 1
“spoke up for someone’s [ constitutional] rights.” Colvin sought inter alia 2
compensatory and punitive damages, reinstatement of her job, and an 3
injunction against fut ure adverse employment actions

. 4
The district court dismissed most of Colvin’s claims with prejudice for 5
either lack of subject matt er jurisdict ion or failure to state a claim

. T he court 6

ruled that , considering th e passage of two years between the yoga class 7

incident and her ultimate termination, Colvin had not show n a causal 8

connection between the two

. T he court accordingly dismissed her First 9

Amendment retaliation claim to the extent it was based on her claim that her 10

2013 termination was in retaliation for her exercise of free speech at the 2011 11
yoga class. Colvin has not challenged t hat ruling in this appeal. 12

To the extent Colvin’s First Amendment claim was based on the 13
counseling and reproaches she received in 2011 , the claim was not dismissed

. 14
Defendants moved for summary judgment on June 5, 2015 , arguing that 15

Colvin’s claim must fai l under the doctrine of Pickering v. Board of Education , 16
391 U.S. 563 (1968) , because her speech was not on a matter of public concern 17
and thus was not protected from retaliation by the First Amendment

. The 1816

- 3650 Amy Colvin v. Hubert Keen, et. al.

7 district court referred the motion to United States Magistrate Judge Arlene R. 1
Lindsay for report and recommendation. The Magistrate Judge recommended 2

that the motion be denied with respect to the First Amendment retaliation 3

claim , reasoning that Co l vin’s speech at the Yoga Incident did address a 4
matter of public concern because she “was no t speaking of a personal 5
grievance; rather, she [was] attempting to vindicate Ms. Buch’s constitutional 6
right to counsel and her right to union representation in the face of perceived 7
police misconduct.” App’x 132 . The d istrict c ourt at first was persuaded by 8
the Magistrate Judge’s recommendation. By order dated January 19, 2016, i t 9
denied summary judgment and instructed that the case proceed to trial

. 10
Shortly before the trial was scheduled to begin , Defendants submitted a 11

trial brief (“Pretrial Memorandum of Law”) , in which Defendants argued 12
once again that Plaintiff’s speech was not on a matter of public concern, but 13

was motivated to help Buch achieve a favorable disposition of her arrest. The 14

court invited Plaintiff to respond, indi cating a readiness to reconsider 15

whether summ ary judgment should be granted. Plaintiff responded , along 16
with an argument on the merits, that it was “Law of the Case as per the 17
Court’s Opinion and Order dated November 30, 2015 . . . that Plaintiff’s 1816

- 3650 Amy Colvin v. Hubert Keen, et. al.

8 speech was a matter of public concern , ” and that the court was therefore 1
obligated to adhere to the earlier ruling. Pl. Opp., ECF 107 at *2 (Sept. 13, 2
2016) E.D.N.Y 2:13

- cv
- 3595 (SJF). The d istrict c ourt was persuaded by 3

Defendants’ new briefing , which it characterized as a motion under Rule 4
54(b) for reconsideration

. By order dated September 28, 2016, it granted 5
summary judgment on all remaining claims in favor of Defendants. Colvin 6
then brought this appeal. 7

8

DISCUSSION 9

I. Law of the Case 10

Colvin’s first contention is that , under the doctrine known as law of the 11

case (“LOTC”) , b ecause the d istrict c ourt initially entered an order denying 12

Defendants’ motion for summary judgment before changing its mind , we 13

should vacate the d istrict c ourt’s ultimate grant of summary judgment and 14
requir e it to adhere to its initial denial. 1 Colvin does not point to any 15

1 The phrase, law of the case , is used in several different circumstances. One circumstance is when a court considers changing a ruling it had previously made in the same case. A second arises when an appellate court is asked to overturn a lower court’s decision because the lower cour t departed from a ruling it had previously made in the case. A third arises when a lower court considers whether to adhere to a ruling previously made by a higher court in the same case. In each circumstance, LOTC functions differently and involves considerations that do not necessarily bear on the other s . In this case we consider the circumstance in which an appellate court is asked to reverse the judgment of the trial court because the trial court change d a ruling previously made in the
ca se. What we say in this context does not necessarily bear on the application of the doctrine in the othe r very different circumstances.16

- 3650 Amy Colvin v. Hubert Keen, et. al.

9 prejudice she suffered by reason of the change of ruling. She acknowledges , 1

furthermore, that LOTC is not a rule that bars courts from reconsidering prior 2
rulings , b ut is rather “a discretionary rule of practice [that] generally does not 3
limit a court’s power to reconsider an issue.” Appellant Br. 17 (quoting In re 4

PCH Assocs. , 949 F.2d 585, 592 (2d Cir. 1991 ) )

. As characterized by J udges L. 5
Hand and Friendly , the doctrine “ ‘ does not rigidly bind a court to its former 6

decision s , but is only addressed to its good sense. ’ ” Zdanok v

. Glidden C o. , 327 7

F.2d 944, 952

- 53 (2 d Cir. 1964) (Friendly, J. ) ( quoting Higgins v. California 8
Prune & Apricot Grower , Inc. , 3 F.2d 896, 898 (2 d Cir. 1924) (L. Hand, J .) )

. See 9

also , Arizona v. California , 4 60 U.S. 605 , 644 ( 1983) (Brennan , J. , concurring in 10
part and dissenting in part ) (“A court’s decision to reconsider a prior ruling 11
before the case becomes final . . . is ultimately a matter of good sense

. ”) 12
(internal quotation marks omitted) ; Messenger v. Anderson , 225 U.S. 436 , 444 13
(1912) (Holmes, J .) (“ In the absence of statu te the phrase, ‘law of the case ’

. . . 14
merely expresses the practice of courts generally to refuse to reopen what has 15
been decided, not a limit to their power. ”)

. In short, Colvin asks us to vacate 16
the grant of summary judgment and order trial , notwithstandi ng that she 17
suffered no harm or prejudice from the change of ruling and regardless of 1816

- 3650 Amy Colvin v. Hubert Keen, et. al.

10 whether the final ruling was right or wrong , solely because the district court 1
initially denied the motion before becoming convinced that the motion should 2
be granted. We reject th at argument. 3

a. Appellate Review of a District Court’s Changed Rulings 4
In asking that we vacate the grant of judgment under LOTC solely 5

because the d istrict c ourt had earlier denied summary judgment, without 6
pointing to any prejudice she suffered or any other special circumstances that 7
might render the change of ruling problematic, Colvin misunderstands the 8
nature of the doctrine. LOTC does not assert, as a general proposition, that it 9
is bad for courts to correct their mistakes, much less that doing so will result 10

in reversal . If that were the meaning of LOTC , it would be a foolish rule. In all 11
forms of human endeavor, people make mistakes, and in most circumstances 12
the best course of action is to correct them. Judging is no different. 13

Nonetheless, i n some circumstances, problems that might result from 14
changing a ruling outweigh the benefits of correcting an error, or at least of 15
doing so without taking steps to mitigate the resulting problems. LOTC does 16
not say to judges, “Once a ruling has been made , you should not change it.” It 17
says rather, “ When deciding whether to change a ruling, you should consider 1816

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11 whether making the change will cause problems that would make it 1
preferable to adhere to the earlier ruling (even though you now consider it 2
erroneous) or would at least make it advisable to take precautio u s measures 3
to mitigate the bad effects of those problems .” 4

The issue can arise in innumerable contexts. We consider a few 5
hypotheticals that illustrate the c onsiderations that a ffect application of 6

LOTC. S uppose that at the start of a trial, the plaintiff’s counsel put a question 7
to the plaintiff, opening a line of inquiry, and the trial judge i nitially sustained 8
the defendant’s objection to the question on th e grounds of the irre levance of 9
that line of inquiry. M oments later , the court reconsidered and proposed to 10

allow the question to be answered. The defendant objected based on LOTC, 11
but the court allowed the plaintiff to answer. Following a verdict for the 12
plaintiff, the defendant argued on appeal that the judgment should be set 13
aside solely because , under LOTC , the court should not have chang ed its 14
initial ruling. Absent a showing that the ultimate ruling was error, or that the 15
change caused prejudice to the defendant or result ed in some other harm, we 16
see no reason why the trial judge should have adhered to the erroneous 17
previous ruling merely because of the undesirability of changing rulings . We 1816

- 3650 Amy Colvin v. Hubert Keen, et. al.

12 se e even less reason why the appellate court would require a new trial, 1
especially because , at the new trial, the judge would once again allow the 2
inquiry into the subject m atter

. 3
On the other hand, suppose that at the start of trial, just as in the 4
previou s example, the court sustained the defendant ’ s objection to the 5
plaintiff ’ s counsel’s question on the grounds of the irrelevance of the inquiry. 6

However, j ust before the close of trial, t he court reconsidered , decided that 7
the line of inquiry was relevant, and proposed to now allow the pla intiff to 8
answer the question . T he defendant object ed based on LOTC and argued that 9

he was prejudiced because, in reliance on the court ’ s initial ruling that the l ine 10
of inquiry was irrelevant, t he defendant had released its subpoenaed 11
witnesses, whom he would have called to rebut the plaintiff’s answer to the 12
question . In that circumstance, the trial judge would have strong reasons 13
either to adhere to the prior ruling, or to explore whether grant of a 14

continuance could cu re the prejudice suffered by the defendant. If the trial 15
court simply changed its ruling in spite of the prejudice to the defendant, and 16
without taking curative measures, an appellate court might have good reason 17
to vacate a judgment in the plaintiff’s fav or. 1816

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13 Given that under LOTC the question whether to change a ruling is 1

addressed to the court’s discretion, the trial court’s discretion to make the 2
change is reviewed on an abuse of discretion standard. The most common 3
problem that would justify the appella te court in finding that the trial court 4
abused its direction in making a change of ruling would be that doing so 5
caused prejudice to the appellant

. 6

I n Prisco v. A & D Carting Corp. , the district court initially ruled , on 7

cross

- motions for summary judgment, that the plaintiff had satisfied the 8

elements of a prima facie claim because the defendants were “potential ly 9
responsible parties” within the meaning of the statute sued under. 168 F.3d 10
593, 604 (2d Cir. 1999) . Following a bench trial, and withou t notice to the 11
plaintiff, the court reversed its prior ruling and dismissed the claim on the 12
basis that the plaintiff “had failed to prove that any of the defendants were 13
potentially responsible parties within the meaning of [the statute].” Id . W hile 14

w e f ound on appeal that the district court’s final judgment was not “clear 15

error , ” id . at 606, and that the court had changed its ruling for the “obviously 16

valid reason ” of correcting an error of law, id. at 607 , we nonetheless asserted 17
that revisiting the ruling without notice to the plaintiff had “raise[d] the 1816

- 3650 Amy Colvin v. Hubert Keen, et. al.

14 specter of severe prejudice to [the plaintiff] if it deprived her of the 1
opportunity to prepare and present evidence on that issue at trial.” Id

. We 2
explained that LOTC is “infor med principally by the concern that disregard 3
of an earlier ruling not be allowed to prejudice the part y seeking the benefit of 4

the doctrine .” Id. Hence, w e contemplated that, if the change of ruling had 5
prejudiced the plaintiff , LOTC would have counseled the district court to 6

maintain its initial , incorrect , ruling despite the likelihood of reversal

. 2 7

As the Wright & Miller treatise observes, “ i f a sound reason for 8

reconsideration could be found, law

- of

- the

- case concerns should require only 9

that reliance on the first ruling be protected, not that reconsideration be 10
prohibited.” Wright & Miller, 18B Fed. Prac. & Proc. Juris. § 4478.1, n.10 (2d 11
ed. 2018) (commenting on Marfia v. T.C. Ziraat Bankasi , 100 F.3d 243 (2d Cir. 12
1996)). See also , United States v. Bi rney , 686 F.2d 102, 107 (2d Cir. 1982) (“The 13
only limitation placed upon a trial judge’s decision to disregard a previous 14
ruling . . . is that prejudice not ensue to the party seeking the benefit of the 15
doctrine. In this context prejudice . . . refers to a lack of sufficiency of notice 16

2 We concluded that, despite a lack of notice to the plaintiff, the change of ruling had not in fact caused prejudice an d, accordingly, we affirmed. Prisco , 168 F.3d at 607.16

- 3650 Amy Colvin v. Hubert Keen, et. al.

15 and an opportunity to prepare armed with the knowledge ” that the prior 1
ruling does not control.) (internal citations omitted)

. 2

Consider another illustrative hypothetical example: a court initially 3

denie d a motion to dismiss t he complaint by reason of its failure to state a 4

claim u pon which relief may be granted. S oon thereafter, the court recognize d 5
that, contrary to its earlier assessment, the complaint wa s insufficient ; the 6
court reconsidered the prior denial and dismisse d the case . No good reason 7
appears why the appeals court should not judge the appeal exactly as if the 8
ultimate ruling had been entered in the first ins tance, without change, u nless 9

the plaintiff suffered prejudice caused by the change. Assuming the appellat e 10

court considering the ultimate ruling deemed it to have been correct, i t would 11

make no sense to vacate the dismissal and compel the parties to continue 12
litigating a complaint that fails to state an actionable claim. Our court so ruled 13

in Quinn v. Aetna L ife & Cas ualty Co mpany , 616 F.2d 38 (2d Cir. 1980). 3 In 14
Quinn , the defendant’s motion to dismiss on the pleadings was initially 15
denied and then subsequently granted. Id. at 40. We affirmed the dismissal, 16

3 The fact pattern in Quinn differed slightly from the illustrative hypothetical because the initial ruling upholding the complaint was in state court. Following the ruling, the case was removed to fe deral court, which granted the motion to dismiss. That difference is without significance to our discussion of LOTC. The change caused no prejudice to the plaintiff, and our court reasoned that LOTC erected no bar to either the district court’s changed rul ing or our affirmance of it. Quinn , 616 F.2d at 40

- 41.16

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16 explaining that “[r]elitigation of Aetna’s motion for dismissal on the 1
pleadings was not barred by the law of the case doctrine, which is 2
discretionary . . . and in any event cannot bind an appellate court.” Id . at 40

- 3
41. By the same token, if the district court initially wrote an opini on granting 4

the motion to dismiss, but soon thereafter decided that was an erroneous 5
ruling and directed that the case proceed, after ample discovery, to trial, 6
resulting in the plaintiff’s verdict, it appears that the question on appeal 7

would be whether t he ultimate ruling was correct, regardless of whether it 8
was a changed ruling. 9
We recognize that, in a significantly different circumstance, our court 10
has expressed views on the application of the LOTC doctrine which seem, on 11
superficial examination, to be in substantial tension with the views expressed 12

above. In Official Comm ittee of the Unsecured Creditors of Color Tile, Inc. v. 13
Coopers & Lybrand, LLP , we observed in dictum that “those decisions 14
[decisions under Rule 54(b)] may not usually be changed unl ess there is ‘ an 15
intervening change of controlling law, the availability of new evidence, or the 16

need to correct a clear error or prevent a manifest injustice. ’ ” 322 F.3d 147 , 167 1716

- 3650 Amy Colvin v. Hubert Keen, et. al.

17 (2d Cir. 2003) (emphasis added) ( quoting Virgin Atl. Airways, Ltd. v. Nat’l 1

Mediation Bd. , 956 F.2d 1245, 1255 (2d Cir. 1992) )

. 2

The d istrict court in that case had entered a partial judgment 3
dismissing Color Tile Committee’s cl aims against Coopers & Lybrand

. Id. at 4

152. Two years later , Color Tile Committee moved under Rule 54(b) for 5
reconsideration of the prior dismissal of those claims. Id . at 166

- 67. The 6

d istrict c ourt denied the motion , without reference to LOTC, on the ground 7
that the motion was “really an untimely mot ion to amend t he pleading . . . .” 8

Id. at 156. After the entry of final judgment, Color Tile Committee appealed 9

from the d istrict c ourt’s denial of its motion under Rule 54(b). We rejected the 10
claim, noting that a d istrict c ourt’s denial of such a motion is reviewed for 11
abuse of discretion, and adding the language quoted above about the limited 12

circumstances i n which “those decisions ” usually may be revised. Id. at 167. 13

In fact, the observation quoted from Official Committee is not in tension 14

with our discussion because it dealt with a substantially different circumstance. 15
Apart from the fact that these remarks in Official Committee were dictum and 16
were qualified by the word “usually,” unlike our case, they related to the 17
revision of a partial judgment

. The court ’ s observation was not about all 1816

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18 decisions, but about “those decisions,” which were identified just above as 1
decisions under Rule 54(b). Id. at 1 67

. 2
A decision under Rule 54(b) is one that adjudicates claims and 3
determines the rights and liabilities of par ties. Such a decision is of a different 4
character from other kinds of rulings a court may make. It would serve as an 5

immedi ately appealable final judgment if no other claims remained to be 6
adjudicated. Even when other claims remain, such a partial adjudica tion may 7
be entered as an immediately appealable final judgment if the d istrict c ourt 8
“determines that there is no just reason for delay.” Fed. R. Civ. P. 54(b). 9
In the interests of finality in litigation, the governing rules severely 10

restrict circumstanc es in which courts may revise final judgments. See Fed. R. 11
Civ. P. 60(b). To be sure, the revision of partial judgments is not so restricted 12
by the Federal Rules, as Rule 54(b) expressly prov ides that they “may be 13

revised at any time before the entry of a judgment adjudicating all the claims 14
and all the parties’ rights and liabilities

. ” Fed. R. Civ. P. 54(b). Nonetheless, 15
the interests of finality can apply in a different way to decisions that 16
adjudicate claims than to other sorts of decisions a court may make. It is 17

inconceivable that the court’s statement in Official Committee about “ those 1816

- 3650 Amy Colvin v. Hubert Keen, et. al.

19 decision s ” was intended to mean that a trial court’s “decision” to allow two 1
months to conclude discovery , or to sustain an objection to a question, “may 2

not usually be changed unless there is an intervening change of controlling 3
law, the availability of new evidence, or the need to correct a clear error or 4
prevent a manifest injustice.” Official Comm. , 322 F .3d. at 167. The court was 5
referring to a decision that adjudicated a claim. 6
The initial decision in our case, which the d istrict c ourt later reversed, 7
did not adjudicate a claim or determine the rights and liabilities of the parties. 8
To the contrary, it expressly declined to do so. It was not a decision of the sort 9
covered by Rule 54(b) and thus was not the sort of decision covered by the 10

statement in Official Committee

. 11
In any event, even if it were contraindicated under LOTC for a trial 12

court to replace an incorrect ruling with a correct one, the mere fact of the 13
change of ruling would still not justify an appellate court in vacating the 14
judgment. If LOTC were pushed so far as to call upon the reviewing court to 15
vacate a changed, but correct, j udgment, solely by reason of the change, 16
LOTC would then mean that the initial incorrect ruling would bind not only 17
the court that made it, but also the court of appellate review, whose function 1816

- 3650 Amy Colvin v. Hubert Keen, et. al.

20 is to correct errors, rather than perpetuate them. Christians on v. Colt Indus. 1
Operating Corp. , 486 U.S. 800, 817 (1988) (“ Just as a district court's adherence to 2
law of the case cannot insulate an issue from appellate review, a court of 3
appeals' adherence to the law of the case cannot insulate an issue from this 4

Co urt's review.”). We have previously rejected such a proposition. See Quinn , 5

616 F.2d at 4 0

- 4 1. 6
Accordingly, when an appeal is based on the argument that the d istrict 7

c ourt contravened LOTC by changing the prior ruling, and the appeals court 8

finds no substantive error in the d istrict c ourt’s ultimate, changed ruling, it is 9
difficult to see what could justify overturning the judgment, unless either the 10
change caused preju dice to a party that relied detrimentally on the earlier 11
ruling, or perhaps that the change was made in a manner so unseemly as to 12
cast doubt on the propriety of the proceeding. See Zdanok , 327 F.2d at 953 13
(raising issue of “ unseemliness” of changing rulin gs )

. 14

b. Application 15

As noted above, Defendants moved for summary judgment a fter the 16
close of discovery, on June 5, 2015. After receiving the Magistrate Judge’s 17
recommendation to deny the motion, the court enter ed an order on January 1816

- 3650 Amy Colvin v. Hubert Keen, et. al.

21 19, 2016 accepting the recommendation, denying summary judgment , and 1
instructing that the case proceed to trial

. On August 29, 2016, shortly before 2
trial was to begin, Defendants submitted a trial brief in which they argued 3
again that the court should rule in their favor essentially for the reasons they 4

had argued in their prior, unsuccessful , motion for summary judgment. The 5
court indicated openness to reconsidering and invited Colvin to respond. 6

Colvin submitted briefing in opposition, arguing in part on the merit s while 7

also asserting that, under LOTC, the court should not depart from its prior 8
ruling. Colvin made no claim that she would suffer prejudice resulting from a 9
changed ruling and it appears that any such claim would have lacked merit 10

because there is no indication that Colvin relied detrimentally on the court’s 11
denial of summary judgment. 12

Based on the new briefing , the district court decided that summary 13
judgment should be granted on the merits , based on the conclusion that 14

Colvin’s efforts o n behalf of Buch were not speech on a matter of public 15

concern. The court t hen faced the question whether Colvin’s LOTC argument, 16
unsupported by any claim or showing of prejudice, would justify the court’s 17
subjecting itself and the parti es to the expense a nd burden of requiring a trial, 1816

- 3650 Amy Colvin v. Hubert Keen, et. al.

22 notwithstanding that the trial could serve no useful purpose in view of the 1

fact that the court had concluded that Defendants were entitled to judgme nt 2
as a matter of law. The court treated the argument made in Defendants’ t rial 3
brief as a motion to reverse a prior decision made under Rule 54(b) and 4
considered the proposition set forth in Official Committee of the Un secured 5
Creditors of Color Tile , Inc. v. Coopers & Lybrand , LLP that, under LOTC, a 6

decision usually may not be revised “ unless there is an intervening change of 7
controlling law, the availability of new evidence, or the need to correct a clear 8

error o r prevent a manifest injustice. ” 322 F.3d. at 167 (internal citation 9
omitted)

. The court concluded that it was recon sider ing its prior ruling “in 10
order to correct [a] clear error, ” and granted summary judgment in favor of 11

D efendants

. Colvin v. Keen , 13

- CV

- 3595 (SJF)(ARL), 2016 WL 5408117, at *2 12
(E.D.N.Y. Sept. 28, 2016). 13
Colvin argues on appeal that, under the doctrine of LOTC, we should 14
vacate the district court’s grant of summary judgment and remand the case 15

for trial. Colvin has not cited a single instance, and we know of none, in 16
which our court has vacated a judgment under LOTC for the sole reason that 17
the lower court had changed a ruling, regardless of absence of prejudice 1816

- 3650 Amy Colvin v. Hubert Keen, et. al.

23 caused by the change. She relies on a proposition , cited in Zdanok , that “where 1
litigants have once battled for the court’s decision, they should n either be 2
required, nor without good reason permitted, to battle for it again.” 327 F.2d 3

944, 953 (emphasis added) . The circumstances in Zdanok , however, were very 4
different from these. To begin, Zdanok did not involve an application to a 5
higher court to overturn a judgment of the lower court on the ground that the 6
lower court had changed a ruling in violation of LOTC. In Zdanok, the court 7

of appeals contemplated whether it should reverse its own prior judgment 8
entered by another panel of the same court. Id

. at 9 49

- 50

. Where , as here, a 9
higher court is asked to overturn a judgment entered by a lower court, based 10
on the lower court’s change of judgment, LOTC applies in a very different 11
way. As it is widely recognized that a court’s decision to change its own prior 12
ruling is di scretionary, see, e.g. , In re PCH Assocs. , 949 F.2d at 592 (2d Cir. 13
1991) ; Quinn , 616 F.2d at 40 , we cannot properly overturn the district court’s 14
judgment unless we find that its decision to change its ruling was an abuse of 15

discretion. In contrast, when a court, as in Zdanok , faces the question whether 16
to depart from its own prior ruling, the court h as wide discretion to make 17
whichever decision it thinks preferable. 1816

- 3650 Amy Colvin v. Hubert Keen, et. al.

24 Furthermore, there were circumstances in Zdanok that are not present 1
here and that argued strongly against changing the ruling in question. 2
Specifically, Zdanok addressed a long, protract ed dispute over the 3
transferability of employees’ seniority rights upon the employer’s transfer of 4
operations at a manufacturing plant. 327 F.2d at 947. In a prior appeal, this 5
Court had ruled on the meaning of the collective bargaining agreement that 6

gove rned the seniority rights of employees transferring from the old to the 7
new plant. Zdanok v. Glidden Co ., 288 F.2d 99 (2d Cir. 1961). The case had 8
subsequently gone to the Supreme Court, which ruled on other matters, and 9

then returned to the district court

. Zdanok v. Glidden Co. , 216 F. Supp. 476, 477

- 10

78 (S.D.N.Y. 1963). The district court had conducted a trial on the issue of 11
liability, based on the contract interpretation mandated by this Court’s earlier 12
opinion, granting judgment as to liability against the employer. Id . at 483. The 13
judgment as to liability was then appealed to this Court, where the employer 14
asked us to reevaluate the interpretation of the contract established in the 15
prior panel’s precedential ruling. The employer argued that a different 16
interpretation was warranted by reason of an intervening Supreme Court 17
opinion to the effect that collective bargaining agreements are interpreted 1816

- 3650 Amy Colvin v. Hubert Keen, et. al.

25 under federal rather than state law. Zdanok , 327 F.2d at 950. We found those 1
arguments unpersuasive in view o f the similarity between the state and 2
federal laws in question. Id . at 950

- 51. We nonetheless recognized a possibility 3
that our earlier ruling might have been mistaken. Id. at 952. In spite of that 4
possibility, we declined the employer’s invitation to re

- examine the 5
correctness of the prior ruling in view of the long history of the litigation, 6
which had been conducted in reliance on the rule dictated by the prior ruling. 7

Id. at 952

- 53. We had never concluded that the prior ruling was wrong , only 8
that this was a possibility. Furthermore, overturning that prior ruling after so 9
much litigation had been conducted in reliance on the rule it established 10
would have caused substantial prejudice to the party adversely a ffected. 11

T he proposition quote d from Zdanok , on which Colvin relies, was not 12
expressed as a categorical rul e, but only as a “consideration ” to be evaluated 13
in the court’s exercise of discretion committed to the court’s “good sense.” Id

. 14

at 953 . In any event, the quoted proposition from Zdanok, even if treated as a 15

rule, would not make it reversible error for the district court to have changed 16
its ruling in the se circumstances. At most, the Zdanok proposition could be 17

read to say that a court should not allow litigants to advocate for a change of 1816

- 3650 Amy Colvin v. Hubert Keen, et. al.

26 ruling “without good reason.” Id . In this case, the court had good reason. It 1
was persuaded that D efendant s w ere entitled to summary judgment ; it would 2

have been inexcusably wasteful and burdensome to all persons involved to 3
require a trial of a foregone conclusion. 4
The only quibble we have with the district court’s decision to change its 5
ruling was with its belief that the change depended on Rule 54(b) , implicat ing 6

the dicta from Official Committee

. Rule 54(b), as noted above, relates to 7
revising a partial judgment , which is a “decision, however designated, that 8
adjudicates fewer than all the claims or the rights and liabilities of fewer than 9
all the parties . . . .” Fed. R. Civ. P. 54(b). The decision o n which Defendants 10
sought a reversal was a d enial of summary judgment. It did not adjudicate any 11
claim or any rights or liabilities of any parties , but rather declined to 12
adjudicate Colvin’s claim. Rule 54(b) and the restrictive language of Official 13

Committee , which related to the question whether t o reverse a previous grant 14
of judgment , have no application here. 15
We see no reason why there was any impropriety in the district court’s 16
exercise of its discretion to revisit its earlier denial of summary judgment, 17
much less any reason to vacate its judgment for the sole reason that it had 1816

- 3650 Amy Colvin v. Hubert Keen, et. al.

27 reversed its earlier ruling. If the ultimate , changed ruling was correct, and 1
Plaintiff suffered no prejudice from the change, it was altogether appropriate 2
for the court to change its ruling, rather than compel the parties to engage in 3
an unnecessary trial whose result was foreordained. At least in the absence of 4
any prejudice to the parties, it was sufficient for the court to conclude, 5
notwithstanding the prior ruling, that Defendants were entitled to summary 6
judgment. The district court acted well within its discretion to reconsider and 7
reverse its prior ruling , by which it avoid ed burdening itself and the parties 8

with an unnecessary trial. 9

10

II. Speech on a Matter of Public Concern and Qualified Immunity 11
Colvin also contends that, on the merits, her speech was protected by 12

the First Amendment. The First Amendment protects a public employee from 13
retaliation by her government employer for speech made “as a citizen on a 14
matter of public concern , ” Ga r cetti v. Ceballos , 547 U.S. 410, 418 (2006) , so long 15

as “the interests of the [speaker], as a citizen, in commenting upon matters o f 16
public concern ” are not outweighed by “ the interest of the State, as an 1716

- 3650 Amy Colvin v. Hubert Keen, et. al.

28 employer, in promoting the efficiency of the public services it performs 1
through its employees , ” Pickering v. Bd. Of Educ. , 391 U.S. 563, 56 8 (1968). 2

We need not decide whether Colvin’s speech qualified as addressing a 3
matter of public concern because Defendants were protected from both 4
liability and the obligation to defend the case because of qualified immunity. 4 5
Under the doctrine of qualified immunity, “government officials performing 6
discretionary functions generally are shielded from liability for civil damages 7
insofar as their conduct does not violate clearly established statutory or 8
constitutional rights of which a reasonable person would have known .” 9
Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). A right is “clearly established” if 10

“it would be clear to a reasonable [person in the position of the defendant] 11

that his conduct was unlawful in the situation he confronted.” Saucier v. Katz , 12

533 U.S. 194 , 202 (2001). “This inquiry turns on the objective legal 13
reasonableness of the action, assessed in light of the legal rules that were 14
clearly established at the time it was taken.” Pearson v. Callahan , 555 U.S. 223, 15

244 (2009) (internal quotation marks omi tted). The Defendants were entitled 16

4 Defendants, in addition to moving for summary judgment on the merits, had also moved for judgment on the basis of their entitl e ment to qualified immunity.16

- 3650 Amy Colvin v. Hubert Keen, et. al.

29 to summary judgment unless there was clearly established law to the effect 1

that Colvin’s speech was on a matter of public concern

. 2
There is no clearly established law to that effect

. The speech of a public 3
employee is addressed to a matter of public concern where it can b e “ fairly 4
considered as relating to any matter of political, social, or other concern to the 5
community

. ” Connick v. Myers , 461 U.S. 138, 146 (1983). To qualify, the speech 6
must have “a broader public pu rpose” and not be merely “ calculated to 7
redress personal grievances .” Ruotolo v. City of New York , 514 F.3d 184, 189 (2d 8
Cir. 2008) (internal quotations omitted). In determining whether speech 9
addresses a matter of public concern, we examine the “content, form, and 10
context of a given statement.” Reuland v. Hynes , 460 F.3d 409, 416 (2d Cir. 11
2006) (quoting Connick , 461 U.S. at 147

- 48 )

. 12
The precedents do not show a “clearly established” law favoring Colvin 13
on this question. This c ourt has found , on the one hand , that speech debating 14
issues of discrimination, speech seeking relief from “pervasive or systemic 15

misconduct ” by public officials, and speech that is “part of an overall effort to 16
correct alleged ly unlawful practices or bring them to public attention” all go 17

to matters of public concern. Golodner v. Berliner , 770 F.3d 196, 203 (2d Cir. 1816

- 3650 Amy Colvin v. Hubert Keen, et. al.

30 2014)

. By contrast, we have found speech that “concerns essentially personal 1
grievances” does not qualify as speech on a matter of public concern, Ruotolo , 2

514 F.3d at 190

. We have also reasoned that speech is not on a matter of public 3

concern where it has “no practical significance to the general public , ” Nagle v. 4

Marron , 663 F.3d 100, 107 (2d Cir. 2011). Examples include speech alleging 5

that a public school employee fo rged a signature on a teaching observation, 6

id. , survey questions about coworkers’ office morale, see Connick , 461 U.S. at 7
148, speech concerning the speaker’s own work assignments or salary, see 8
Ezekwo v. New York City Health & Hosps. Corp. , 940 F.2d 775, 781 (2d Cir. 1991) , 9
and speech accusing a supervisor of favoritism, see Singer v. Ferro , 711 F.3d

. 10
334, 340 (2d Cir. 2013)

. 11

It is true that, under certain circumstances, we have found speech to be 12
on a matter of public concern where it sought to “ vindica te

. 

### . . constitutional 13
rights

. . . in the face of alleged police misconduct

. ” Golodner , 770 F.3d at 204. 14

In Golodner, we reasoned that “it is axiomatic that misconduct within a police 15
department implicates a matter of public concern.” Id. In that case , however, 16
the speech at issue related to alleged policies and pattern s of police 17
misconduct that “raise[d] serious constitutional concerns

. ” See id. at 205

. 1816

- 3650 Amy Colvin v. Hubert Keen, et. al.

31 Colvin’s speech, by contrast, was not addressed to misconduct at all

. Colvin 1
merely identified herself as an attorney, told her co

- worker and the police 2
officers that she wanted to get her co

- worker a n attorney and union 3
representative, and advised her friend not to say anything until such 4
representatives arrived

. Colvin said noth ing to indicate that Ms. Buch’s arrest 5
was constitutionally improper

. 5 Since her speech was not addressed to police 6
misconduct at all, much less to the sort of pattern of misconduct alleged in 7

Golodner, Golodner does not clearly establish that Colvin’s spe ech was on a 8
matter of public concern. 9

Nor does Konits v. Valley Stream Cent

. High Sch

. Dist

. clearly establish 10
that Colvin’s speech was on a matter of public concern. In that case, we held 11

that a teacher’s efforts to assist a custodial worker in redressing claims of 12
gender discrimination constituted speech on a matter of public concern where 13
the teacher (1) helped her file internal complaints; (2) referred her to an 14
attorney who represented her i n subsequent proceedings; and (3) agreed to be 15
listed as a potential witness in those proceedings. 394 F.3d 121, 123

- 26 (2d Cir. 16
2005). W e emphasized that the teacher was speaking out “against 17

5 We recognize that Colvin stated, in res ponse to the police threatening to arrest her as well, “I believe that would be a false arrest.” App’x 215. However, Colvin has never alleged that she faced retaliation for that speech. In fact, she does not address that speech at all on her appeal to this Court.16

- 3650 Amy Colvin v. Hubert Keen, et. al.

32 discrimination suffered by others

. ” Id. at 125

. Colvin, by cont rast, was 1
advising a co

- worker of her constitutional rights, not speaking out against 2
any perceived discrimination or official misconduct

. Konits , l ike Golodner, 3
does not clearly establish that Colvin’s speech was on a matter of public 4

concern. 5

Colvin urges u s to find that communicating “advice that is consistent 6

with Miranda [ v. Arizona , 384 U.S. 436 (1966)] by a bystander to a person being 7

arrested , made in the presence of the arresting police, per se addresses a 8
matter of public concern.” Plaintiff

- Appellant Br. a t 28. O ur precedents do not 9
clearly establish such a rule. Although we have found that speech addressed 10
to police misconduct and discrimination against others may, under some 11
circumstances, constitute speech on a matter of public concern, th ere is no 12
clearly established law that merely advising another of a constitutional right 13
necessarily constitutes speech on a matter of public concern. Because it was 14

not “clearly established” that Colvin’s speech addressed a matter of public 15

concern, see Pearson , 555 U.S. at 231 , Defendants are entitled to qualified 16
immunity. 1716

- 3650 Amy Colvin v. Hubert Keen, et. al.

33 1

CONCLUSION 2
We find that Defendants are entitled to qualified immunity, and 3
accordingly AFFIRM the district court’s grant of summary judgment on that 4

basis

. 5