ROSENDALE v. MAHONEY, 369 Fed.Appx. 313 (2nd Cir. 2010)

No. 08-2988-cv.United States Court of Appeals, Second Circuit.
March 18, 2010.

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Appeal from an interlocutory order of the United States District Court for the Southern District of New York (Brieant, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED ANDDECREED that the order of the district court beREVERSED and REMANDED.

Mark C. Rushfield, Shaw, Perelson, May Lambert, LLP, Poughkeepsie, NY, for Appellants.

Donald P. Rosendale, Amenia, NY, pro se.

PRESENT: DENNIS JACOBS, Chief Judge, GERARD E. LYNCH, Circuit Judge and JANE A. RESTANI,[*] Judge.

SUMMARY ORDER
Defendant-appellant W. Michael Mahoney appeals from an interlocutory order of the United States District Court for the Southern District of New York (Brieant, J.) denying his motion for summary judgment on the ground of qualified immunity. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

We have jurisdiction pursuant to the collateral order doctrine because Mahoney “contends that on stipulated facts, or on the facts that the plaintiff alleges are true, or on the facts favorable to the plaintiff that the trial judge concluded the jury might find, the immunity defense is established as a matter of law because those facts show . . . that it was objectively reasonable for him to believe that his action did not violate clearly established law.” Salim v. Proulx, 93 F.3d 86, 90-91 (2d Cir. 1996). We lack jurisdiction to “entertain an interlocutory appeal” contending that the district court “committed an error of law in ruling that [Rosendale’s] evidence was sufficient to create a jury issue on the facts relevant to [Mahoney’s] immunity defense.” Id. at 91. We therefore do not decide whether there are genuine issues of material fact as to whether the letters and alleged oral assurances give rise to a contractual relationship between Rosendale and defendant-appellant Millbrook Central School District (the “School District”), which, in turn, might give rise to a protected property interest requiring notice and a

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hearing prior to Rosendale’s removal from the call list for substitute teachers.[**]

However, assuming arguendo that such evidence gives rise to a genuine issue of material fact regarding a protected property interest, we nevertheless conclude that Mahoney’s actions in removing Rosendale’s name from the call list of substitute teachers was objectively reasonable. Reasonable superintendents could disagree as to whether such removal required notice and a pre-removal hearing based on the then-current state of the law. See Salim, 93 F.3d at 91
(“The objective reasonableness test is met if officers of reasonable competence could disagree on the legality of the defendant’s actions.” (internal quotation marks omitted)). Accordingly, we reverse the district court’s denial of summary judgment to Mahoney (in his personal capacity) on the ground of qualified immunity. See Almonte v. City of Long Beach, 478 F.3d 100, 109 (2d Cir. 2007) (“[A]n official is entitled to qualified immunity . . . if the official’s actions were not objectively unreasonable in light of clearly established law.”).

We decline to exercise pendent jurisdiction over Rosendale’s procedural due process claim against Mahoney in his official capacity and against the School District. “Where we have jurisdiction over an interlocutory appeal of one ruling, we have the discretion to exercise pendent appellate jurisdiction over other district court rulings that are inextricably intertwined or necessary to ensure meaningful review of the first. We recognize, however, that pendent appellate jurisdiction should be exercised sparingly, if ever.” See Bolmer v. Oliveira, 594 F.3d 134, 141 (2d Cir. 2010) (internal quotation marks and citations omitted). Our objective reasonableness ruling does not require us to decide (i) whether Rosendale’s letters and alleged oral assurances give rise to a contractual relationship which, in turn, gives rise to a protected property interest requiring notice and a hearing prior to Rosendale’s removal from the call list for substitute teachers; (ii) whether any such right to procedural due process was clearly established; or (iii) whether Mahoney acted independently, with the authority of the School District or the State, or with the apparent authority of the School District

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or the State. Accordingly, the objective reasonableness analysis does not warrant the exercise of appellate pendent jurisdiction over the remaining claim in this action.

Finding no merit in Mahoney’s remaining arguments, weREVERSE the judgment of the district court andREMAND for further proceedings consistent with this order.

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