Lederman v. N.Y.C. Dep't of Parks & Recreation

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
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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.
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ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Before:
CABRANES, HALL, and CHIN, Circuit Judges.
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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.
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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.
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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.
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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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