Wernsing, Jenny v. Thompson, Odell

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-3956

JENNY WERNSING, CHARLES

BINGAMAN and TROY CANNON,

Plaintiffs-Appellees,

v.

ODELL THOMPSON, JR.,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 01-1476—Michael M. Mihm, Judge.

____________

ARGUED MAY 13, 2005—DECIDED SEPTEMBER 9, 2005

____________

Before CUDAHY, EASTERBROOK and KANNE, Circuit

Judges.

CUDAHY, Circuit Judge. Three Internal Security In-

vestigators in the Office of the Inspector General of the

Illinois Department of Human Services brought suit under

42 U.S.C. § 1983, alleging that the Inspector General of

Illinois had (1) imposed a prior restraint on their Constitu-

tionally protected speech and (2) retaliated against them for

exercising their First Amendment rights after they voiced

concern over the Inspector General’s rumored plans to make

a key appointment. Plaintiffs requested both money

damages and an injunction prohibiting further restrictions

on their speech. Both sides moved for summary judgment.

2 No. 03-3956

The district court ruled that (1) the plaintiffs’ request for

injunctive relief is moot, (2) the Inspector General’s direc-

tive barring plaintiffs from speaking to any “external agent”

without his permission constituted an impermissible prior

restraint on speech, (3) questions of fact remained for trial

as to whether plaintiffs had suffered retaliation for exercis-

ing their First Amendment rights and (4) the Inspector

General is not entitled to qualified immunity as to either

claim. The Inspector General now appeals, claiming that he

is entitled to qualified immunity. We reverse and remand.

I. FACTUAL BACKGROUND AND DISPOSITION

BELOW

While this case presents several nuanced legal questions,

the underlying facts are not disputed.1 The plaintiffs served

as Internal Security Investigators II (ISI 2s) in the Office of

the Inspector General (OIG) in the Illinois Department of

Human Services (DHS) at all times relevant to this suit.2

The OIG is responsible for investigating reports of abuse

and neglect of the mentally ill and developmentally disabled

persons who receive DHS services. According to the job

description, an ISI 2

performs highly responsible, sensitive, and confidential

investigative work; conducts the gathering and analysis

of relevant facts and data concerning abuse and neglect

investigations; completes investigations by preparing

1

The facts in ths section are taken primarily from the dis-

trict court’s opinion below. Wernsing v. Thompson, 286 F. Supp.

2d 983, 989-91 (C.D. Ill. 2003).

2

Jenny Wernsing was hired as an ISI II in 1998, Charles

Bingaman was hired in 1997, and Troy Cannon was hired in

1996. Charles Bingaman later became an OIG Team Leader in

2000, giving him additional responsibilities from time to time.

No. 03-3956 3

reports, summarizing investigative activities and

recommends conclusions to findings.

SPECIFICALLY:

1. Conducts confidential, sensitive, and complex

investigations concerning reports of abuse and neglect

at State-operated facilities and community agencies:

gathers data and evidence, conducts interviews, re-

ceives reports and analyzes relevant evidence concern-

ing cases of abuse and neglect; ensures that case

reports are comprehensive and accurate; takes initial

statements from staff.

2. Prepares written investigative reports upon the

completion of the investigative process consisting of

a summary of actions taken, findings, preservations of

evidence and recommendation for corrective action

and/or case closure.

3. Maintains confidential files pertaining to cases

under investigation; ensures the security of all perti-

nent information gathered during the investigatory

process.

4. Recommends revisions to investigatory procedures

and practices.

5. Serves as an expert witness and provides testimony

in criminal and administrative hearings related to the

conducting of or results of the investigation.

6. Performs other duties as required or assigned which

are reasonably within the scope of the duties enumer-

ated above.

(Doc. 38, Wernsing Dep. Exh. M8.) In the fall of 2000, the

OIG was subdivided into four geographical Bureaus: the

North (Chicago), the Metro (the area surrounding Chicago),

the Central and the South. All ISI 2s report to a designated

Team Leader, who reports to the appropriate Bureau Chief,

4 No. 03-3956

who in turn reports to the Deputy Inspector General or the

Inspector General.

Defendant Odell Thompson, Jr. became the Inspector

General of the DHS on July 1, 2000. On or about November

27, 2000, Thompson received an e-mail from five employees

in the OIG’s Southern Bureau, including plaintiffs

Wernsing, Bingaman and Cannon, which stated:

Several investigators in the Southern Bureau have

some concerns we wish to discuss with you as soon as

possible. These concerns are relative as to who we

understand you are going to appoint as the Southern

Bureau Chief. These concerns are very important and

need your attention before any appointment is made.

(Doc. 38, Wernsing Dep., Exh. 1.) Thompson received the e-

mail but did not respond to it. On November 30, 2000,

Thompson received another e-mail from the same five

employees, stating in relevant part:

We contacted you on 11/27/00 asking that you meet

with us and discuss our serious concerns over who we

understand to be the tentative selection for Bureau

Chief. We have not heard from you. We once again ask

that you meet with us. We would like if at all possible

to keep this matter in house out of respect for the chain

of command and in keeping with respect for your

position. However, if we are not afforded this oppor-

tunity we will feel compelled to air our concerns to

the Secretary or those at the legislative level.

Again, Thompson did not respond to the request for

a meeting and made no inquiries into the basis for the

e-mail.

The concerns referenced in the two e-mails apparently

stemmed from rumors that Thompson was going to ap-

point Ron Fuentes as Bureau Chief of the OIG Southern

Bureau. Each of the plaintiffs had worked with Fuentes

No. 03-3956 5

when he had previously served as Bureau Chief, and they

had concerns about his ability to manage the Bureau

effectively. Specifically, plaintiffs allege that Fuentes

had presided over a large backlog of investigations which

caused staffing shortages in the DHS and delays in OIG

investigations, had misplaced OIG files which were later

found in the trunk of his car, had worked short days and

was on-site at the Bureau office only two days out of the

week and was generally considered an incompetent and

frustrating supervisor. (See Wernsing Br. at 12-14.) The

backlog in investigations was particularly troubling

since any delay in investigating cases of neglect or abuse

could compromise the investigators’ ability to gather

information (since many of the victims have difficulty

remembering what happened to them) or could render

grievances against offending DHS employees time-barred

under Illinois law.

Unaware of the specific concerns that lay behind the

two e-mails, Thompson became concerned at the suggestion

that the signatories might contact the Secretary of the DHS

or individuals “at the legislative level.” Thompson was

apparently in the midst of reorganizing the OIG, and he

feared that OIG employees might be trying to “sabotage”

these efforts. On or about December 5, 2000, Thompson sent

a letter to the five e-mail signatories that stated, in relevant

part:

The Office of Inspector General staff are not authorized

to communicate about Office of Inspector Gen-

eral policies or operations directly to the Secretary

[head of the DHS], to the press, or to any external agent

except with my prior knowledge and approval.

This directive was repeated in a second communication sent

to all employees in the OIG in January, 2001. Thompson

later testified that there was nothing other than the two e-

mails from the plaintiffs that led him to issue the December

6 No. 03-3956

5 directive and that his concern was that he “didn’t want to

be sabotaged in some way” because he “just didn’t know

what their motives were.” He admitted that he didn’t make

any effort to ascertain plaintiffs’ motives in threatening to

contact the Secretary of DHS or legislators. It is undisputed

that the release of confidential information by OIG employ-

ees and contacts with the press were already governed by

both statute and internal DHS rules.

Believing that these directives potentially barred her from

speaking to anyone outside of the OIG, Wernsing asked her

supervisor, Sandy Mott, if the directives applied to conver-

sations she might have with her union representative, an

attorney or her legislator. At Mott’s suggestion, Wernsing

telephoned Thompson on January 26, 2001, and Thompson

“yelled” at her, telling her she was “walking down the road

to getting fired” and accusing her of “playing games.” That

same day, Mott sent an e-mail to the Inspector General’s

Office relaying Wernsing’s question. Sydney Roberts, who

was then serving as the Deputy Inspector General at the

time, responded to Mott’s e-mail with two messages. The

first read simply: “Your people really want to try me don’t

they.” The second e-mail stated:

No one in the OIG is represented by a Union that is

in any sort of contractual agreement with DHS. Thus

we don’t have to honor anything that their union

representative requests unless it is consistent with

the rights all employees are entitled to by state or

federal law. In other words, they follow the direction of

their union representative at their own peril.

With respect to the statements made to union person-

nel, the courts have said that employers may regulate

the speech of certain employees in certain circum-

stances. Thus, they should know the law on this matter,

before discussing OIG matters with outside individuals.

(Italics in original.) On February 7, 2001, Mott then

No. 03-3956 7

e-mailed Wernsing the following response:

In answer to your question, Deputy I.G. Sydney Roberts

indicated to me that no one in the OIG is represented

by a Union that has a contractual agreement with DHS.

Thus, we don’t have to honor anything that their union

representative requests unless it is consistent with the

rights all employees are entitled to by state or federal

law. Further, with respect to statements made to union

personnel, the courts have said that employer may

regulate the speech of certain employees in certain

circumstances. Thus, you should know the law on this

matter before discussing OIG matters with outside

individuals.

In March 2001, Thompson attended a meeting of the

Southern Bureau staff where he finally met with the

plaintiffs and the other e-mail signatories face-to-face. He

asked them if they had any concerns they wanted to

discuss, and they told him of the rumors concerning

Fuentes’ imminent appointment, and of their grave con-

cerns about Fuentes’ ability to manage the Southern

Bureau effectively. They cited Fuentes’ work habits, the

enormous backlog of cases that had occurred under his

supervision and his general inability to manage the Bureau.

Plaintiffs allege that, on the heels of these e-mail ex-

changes, Thompson committed several acts of retaliation for

their inquiries and requests for a meeting. These included:

(1) Thompson’s denial of overtime pay and mileage to

Wernsing and Bingaman after requests for the same had

been approved by their immediate supervisor and the

Bureau Chief, (2) a warning to Wernsing by the Bureau

Chief to watch out because Thompson was watching

everything that she did, (3) the downgrading of Wernsing

and Bingaman’s annual performance evaluations, (4) the

introduction of false and misleading evidence at Bingaman’s

grievance hearing, (5) denial of Bingaman’s application for

8 No. 03-3956

the position of Southern Bureau Chief, (6) denial of appro-

priate and customary travel and lodging expenses for both

Wernsing and Bingaman on different occasions and (7)

Thompson’s denial of a pre-approved salary increase for the

time Bingaman served as acting Investigative Team Leader.

See Wernsing, 286 F. Supp. 2d at 997-98.

Plaintiffs also allege that, due to Thompson’s directives

prohibiting unapproved discussion of OIG business with

any “external agent,” they felt compelled to restrict their

communications with individuals outside the OIG. Specifi-

cally, Wernsing testified that she refused to answer ques-

tions about OIG policies from employees at state facilities

or community agencies, refrained from commenting publicly

on changes to an administrative rule that altered the

official definitions of abuse and neglect and refrained from

commenting on an OIG proposal to delegate preliminary

investigations concerning serious injuries to the local

facility where the injury in question occurred. Plaintiff

Cannon testified that he refrained from raising concerns

with his state legislators about Thompson’s qualifications

as Inspector General while the State Senate was consider-

ing his appointment. However, there is also evidence that

plaintiff Bingaman contacted both his local union steward

and a state legislator regarding his troubles with Thompson

in the months following Thompson’s directives.

On August 3, 2001, Wernsing brought the present

suit alleging that Thompson’s pre-clearance directive

constituted an unlawful prior restraint on speech that

infringes on her First and Fourteenth Amendment rights.

Bingaman and Cannon later filed a motion to intervene

alleging that Thompson had violated their free speech

rights by issuing the directive and had impermissibly

retaliated against them for exercising those rights. In

January 2003, Wernsing amended her complaint to add a

First Amendment retaliation claim as well. Plaintiffs

requested several types of relief, including an injunction

No. 03-3956 9

barring future enforcement of Thompson’s directive,

declaratory relief, and money damages for humiliation,

stress and emotional anguish resulting from the imposition

of the directive, as well as for losses stemming from Thomp-

son’s alleged reprisals against them.

The plaintiffs also named Thompson’s Deputy Inspector

General, Sydney Roberts, as a defendant in the suit. While

the suit was pending, Thompson’s tenure as Inspector

General ended, and he was succeeded by Roberts. Upon

assuming the post of Inspector General, Roberts submitted

an affidavit to the district court averring that she had

“taken no action as to any employee based on the [direc-

tives],” and that she does “not consider the . . . [directives]

to be the official policy of the Office of the Inspector Gen-

eral.”

After discovery, the plaintiffs filed a motion for partial

summary judgment, arguing that they are entitled to

judgment as a matter of law on their prior restraint claims.

Thompson responded with his own motion for summary

judgment, seeking judgment as a matter of law on both the

prior restraint claim and the retaliation claim. Thompson

argued that he did not violate any of plaintiffs’ constitu-

tional rights and that, in any event, he was entitled to

qualified immunity as to both claims. In pressing his claim,

Thompson asserted that the plaintiffs were confidential

“policymaking” employees—or that he reasonably believed

them to be “policymaking” employees—who could be fired

for disloyal speech, and that therefore he could also place

prior restraints on their expressive activity. Roberts, having

formally disavowed Thompson’s pre-clearance directive,

sought to be dismissed from the suit.

In October, 2003, the district court ruled on the parties’

motions for summary judgment. The court granted the

plaintiffs’ motion for summary judgment on the prior

restraint claim, holding that Thompson’s directives consti-

10 No. 03-3956

tuted a prior restraint on speech, plaintiffs’ speech was

constitutionally protected, Thompson’s interest in prevent-

ing the speech did not outweigh plaintiffs’ interest in

commenting on matters of public concern and plain-

tiffs were not policymaking or confidential employees.

Wernsing, 286 F. Supp. 2d at 992-97. The court next denied

Thompson’s motion for summary judgment on

the retaliation claim, holding that plaintiffs’ e-mails to

Thompson (and Wernsing’s inquiry regarding the scope of

his directive) were constitutionally protected speech and

material questions of fact remained as to whether this

speech was a motivating factor in Thompson’s alleged

retaliatory acts against them. Id. at 997-99. The district

court also rejected Thompson’s claim of qualified immunity,

holding that it was clearly established that Thompson’s

alleged actions restricting or retaliating against plaintiffs’

speech on matters of public concern violated plaintiffs’

constitutional rights. Id. at 999-1001. However, the district

court did grant Thompson’s motion for summary judgment

with respect to plaintiffs’ request for injunctive relief,

holding that there was no substantial likelihood that

Thompson’s successor as Inspector General (Sydney

Roberts) would enforce Thompson’s directives. Id. at 1001-

02. The court accordingly also dismissed Roberts as a

defendant in the case. Id.

Thompson now appeals the ruling of the district court,

claiming that he is entitled to qualified immunity as to

all of plaintiffs’ claims.

II. JURISDICTION

Subject to the standing requirements of Article III—to be

addressed in our discussion of plaintiffs’ prior restraint

claim—the district court had jurisdiction over this 42 U.S.C.

§ 1983 action pursuant to 28 U.S.C. §§ 1331, 1343(a). This

Court’s jurisdiction now rests on 28 U.S.C. § 1291, which

No. 03-3956 11

provides for appellate jurisdiction over all final orders

issued by the district court. Under the collateral order

doctrine, the district court’s denial of Thompson’s motion for

summary judgment based on qualified immunity is an

immediately appealable “final decision” within the meaning

of 28 U.S.C. § 1291 to the extent that it turns on legal

rather than factual questions. See Behrens v. Pelletier, 516

U.S. 299, 311 (1996); Mitchell v. Forsyth, 472 U.S. 511, 528-

30 (1985); Tangwall v. Stuckey, 135 F.3d 510, 515-16 (7th

Cir. 1998). However, a defendant invoking an immunity

defense “may not appeal a district court’s summary judg-

ment order insofar as that order determines whether or not

the pretrial record sets forth a ‘genuine’ issue of fact for

trial.” Johnson v. Jones, 515 U.S. 304, 319-20 (1995).

III. STANDARD OF REVIEW

This Court reviews de novo the district court’s denial of a

motion for summary judgment based on qualified immunity.

Upton v. Thompson, 930 F.2d 1209, 1211 (7th Cir. 1991).

Summary judgment is warranted when the evidence,

viewed in a light most favorable to the non-moving party,

presents “no genuine issue as to any material fact” such

that “the moving party is entitled to a judgment as a matter

of law.” FED. R. CIV. P. 56(c); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986).

12 No. 03-3956

IV. DISCUSSION

Thompson appeals the ruling of the district court below,

claiming that he is entitled to qualified immunity on both

the First Amendment retaliation claim and the prior

restraint claim. In Harlow v. Fitzgerald, the Supreme Court

held that “governmental officials performing discretionary

functions generally are shielded from liability for civil

damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” 457 U.S. 800, 818

(1982). Under Harlow and its progeny, a court evaluating a

claim of qualified immunity must conduct a now-familiar

two-step inquiry: First the court must determine whether

the disputed conduct, as alleged, violates a constitutional

right; second, the court must determine whether that right

was “clearly established” at the time of the alleged conduct.

Saucier v. Katz, 533 U.S. 194, 201 (2001). The Supreme

Court has explained the “clearly established” analysis as

follows:

This inquiry, it is vital to note, must be undertaken in

light of the specific context of the case, not as a broad

general proposition . . . . [T]he right the official is

alleged to have violated must have been “clearly estab-

lished” in a more particularized, and hence more

relevant, sense: The contours of the right must be

sufficiently clear that a reasonable official would

understand that what he is doing violates that right.

The relevant, dispositive inquiry in determining whether

a right is clearly established is whether it would be clear

to a reasonable officer that his conduct was unlawful in

the situation he confronted.

Id. at 201-02 (internal citations and quotations omitted)

(emphasis added). The plaintiff carries the burden of

establishing that a given right is “clearly established,” Rice

v. Burks, 999 F.2d 1172, 1174 (7th Cir. 1993), and to do so

No. 03-3956 13

the plaintiff must demonstrate either that a court has

upheld the purported right in a case factually similar to the

one under review, or that the alleged misconduct consti-

tuted an obvious violation of a constitutional right. Chan v.

Wodnicki, 123 F.3d 1005, 1008 (7th Cir. 1997). However,

“liability is not predicated upon the existence of a prior case

that is directly on point.” Nabozny v. Podlesny, 92 F.3d 446,

456 (7th Cir. 1996).

Mindful of these precedents, we can now address the

specific claims before us. For each claim we must determine

(1) whether plaintiffs have alleged violation of a valid

constitutional right and (2) whether that right was “clearly

established” at the time of the alleged misconduct. In

this case the relevant time frames begin on or about

December 5, 2000, for the prior restraint claim (the date

that Thompson sent his directive to the plaintiffs) and

January of 2001 for the retaliation claim (the date that

Thompson began a series of alleged reprisals against the

plaintiffs).

A. Prior Restraint Claim

1. Justiciability

Before addressing the merits of plaintiffs’ prior re-

straint claim,3 we must first consider threshold issues of

3

We note at the outset that the plaintiffs, in challenging an

internal e-mail as a “prior restraint” on speech, advance a

somewhat unconventional claim. Prior restraints frequently

arise in the form of judicial injunctions against certain types

of speech (to which the collateral-bar rule applies), or, perhaps

less commonly, in the form of formal statutes or regulations

barring or constraining certain expressive activity. But see Crue

v. Aiken, 370 F.3d 668, 679-80 (7th Cir. 2004) (characterizing

(continued...)

14 No. 03-3956

justiciability, which bear on our jurisdiction. “Jurisdiction

is the ‘power to declare law,’ and without it the federal

courts cannot proceed.” Hay v. Ind. State Bd. of Tax

Comm’rs, 312 F.3d 876, 879 (7th Cir. 2002) (quoting

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999)).

“Accordingly, not only may the federal courts police subject

matter jurisdiction sua sponte, they must.” Id. (emphasis in

original); see also Wingerter v. Chester Quarry Co., 185 F.3d

657, 660 (7th Cir. 1998) (“A court of appeals has an obliga-

tion to examine its jurisdiction sua sponte, even if the

parties fail to raise a jurisdictional issue.”).

First and foremost is the question of standing. “Article III

of the Constitution confines the federal courts to adjudicat-

ing actual ‘cases’ and ‘controversies.’ ” Allen v. Wright, 468

U.S. 737, 750 (1984). “[T]he core component of standing is

an essential and unchanging part of the case-or-controversy

requirement of Article III.” Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992). The “irreducible constitu-

tional minimum” of standing requires three elements:

First, the plaintiff must have suffered an injury in

fact—an invasion of a legally protected interest which

is (a) concrete and particularized, and (b) actual or

imminent, not conjectural or hypothetical. Second, there

must be a causal connection between the injury and the

conduct complained of—the injury has to be fairly . . .

trace[able] to the challenged action of the defendant,

and not . . . th[e] result [of] the independent action of

3

(...continued)

a university president’s internal pre-clearance directive, dis-

seminated via e-mail, as a prior restraint on speech). Here, since

both sides have used the phrase “prior restraint” in marshaling

their arguments, we will also use that term. However, we offer

no view as to whether, as a general proposition, an e-mail

directive should always be analyzed in the same way as an

injunction, statute or a formal regulation.

No. 03-3956 15

some third party not before the court. Third, it must be

likely, as opposed to merely speculative, that the injury

will be redressed by a favorable decision.

Id. at 560-561 (internal citations and quotation marks

omitted).

Thompson argues that plaintiffs lack standing to chal-

lenge his pre-clearance directive since they have not

demonstrated any “actual injury or any imminent threat of

injury due to the directive.” (Thompson May 27, 2005 Supp.

Mem. at 4.) Specifically, he claims that, in order to make

out a concrete “injury in fact” for standing purposes,

plaintiffs must have sought permission to speak, been

denied, spoken out anyway and been subject to disci-

pline. (Id. at 9.) This argument is both conceptually and

legally flawed. First, the hypothetical chain of events

outlined by Thompson describes a First Amendment

retaliation case involving post-hoc punishment for dis-

favored speech, not a prior restraint which seeks to limit

expressive activity before it occurs. Thompson’s proposed

paradigm would preclude litigation of prior restraints

altogether.

Second and more fundamentally, the Supreme Court

and this Court have held that government policies placing

prior restraints on employee speech may be challenged

facially. That is, government employees whose speech is

limited by an internal policy or a pre-clearance directive

such as Thompson’s need not seek permission to speak or

violate the directive in order to challenge the directive in

court. See United States v. Nat’l Treasury Employees Union

(NTEU), 513 U.S. 454, 461-62 (1995) (allowing facial

challenge to a ban on honoraria for public speaking by

government employees); Crue v. Aiken, 370 F.3d 668, 679-80

(7th Cir. 2004) (allowing challenge to pre-clearance direc-

tive by both plaintiff who had sought permission to speak

and plaintiffs who had not); Harman v. City of New York,

16 No. 03-3956

140 F.3d 111, 118 (2d Cir. 1998) (allowing facial challenge

to city agency’s pre-clearance directive banning unapproved

speech to the media); Providence Firefighters Local 799 v.

City of Providence, 26 F. Supp. 2d 350, 354 (D.R.I. 1998)

(citing NTEU for this proposition).4

Yet establishing that plaintiffs may, as a general proposi-

tion, facially challenge a pre-clearance directive like Thomp-

son’s gets us only half way home. The undisputed evidence

reveals that Thompson’s directive is no longer in force, and

4

Thompson cites the Ninth Circuit’s decision in Portland

Police Association v. City of Portland, 658 F.2d 1272 (9th Cir.

1981), in support of his argument that plaintiffs lack standing.

However, Thompson’s reliance on Portland Police is misplaced. In

that case, the Ninth Circuit held that the Police Association could

not challenge a new order from the police chief requiring police

officers to prepare reports after “major incidents” and precluding

them from consulting with an attorney unless their superiors

determined that they might be exposed to employment sanctions

or criminal liability. The court determined that since injurious

application of the order to any single officer hinged on a number

of contingencies, none of which had come to pass, the plaintiffs’

claims of injury were too speculative and abstract to confer

standing in federal court. Id. at 1273-74.

Here, by contrast, the injurious effects of Thompson’s directive

do not depend on any external contingency. The very existence

of such a pre-clearance requirement raises the specter of self-

censorship, even among those who ultimately receive permission

to speak. See City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S.

750, 757 (1988) (“[T]he mere existence of the licensor’s unfettered

discretion, coupled with the power of prior restraint, intimidates

parties into censoring their own speech, even if the discretion and

power are never actually abused.”); Thornhill v. Alabama, 310

U.S. 88, 97 (1940) (“It is not merely the sporadic abuse of power

by the censor but the pervasive threat inherent in its very

existence that constitutes the danger to freedom of discussion.”);

Harman, 140 F.3d at 120 (same) (citing City of Lakewood). This is

precisely why facial challenges to such directives are permitted.

No. 03-3956 17

this raises the specter of mootness. Implicit in the “case-or-

controversy” requirement of Article III is the principle that

“federal courts may not give opinions upon moot questions

or abstract propositions.” Worldwide St. Preachers’ Fellow-

ship v. Peterson, 388 F.3d 555, 558 (7th Cir. 2004) (internal

quotations omitted). Here the district court did indeed find

the issue of plaintiffs’ requested injunctive relief to be moot.

286 F. Supp. 2d at 1001-02. The court reasoned that “[a]s

Defendants have sufficiently demonstrated that the policy

from which Plaintiffs sought relief no longer exists and that

the illegal prior restraint of speech at issue in this case

cannot reasonably be expected to reoccur, the claim for

injunctive relief is effectively moot, as there is no need to

enjoin prospective action that would violate federal law.” Id.

This determination appears to be correct. While the

mootness doctrine does not necessarily apply to voluntary

cessation of illegal activity, United States v. W. T. Grant

Co., 345 U.S. 629, 632 (1953); Milwaukee Police Ass’n v.

Jones, 192 F.3d 742, 747 (7th Cir. 1999), or to actions

“capable of repetition yet evading review,” Krislov v.

Rednour, 226 F.3d 851, 858 (7th Cir. 2000), “the moving

party must still satisfy the court that injunctive relief is

required,” Milwaukee Police Ass’n, 192 F.3d at 748. “ ‘The

necessary determination is that there exists some cogniza-

ble danger of recurrent violation, something more than

the mere possibility which serves to keep the case alive.’ ”

Id. (quoting W.T. Grant, 345 U.S. at 633). The mere

“theoretical possibility” of a repeat violation is not enough.

Walsh v. United States Dep’t of Veterans Affairs, 400 F.3d

535, 537 (7th Cir. 2005); accord In re Associated Press, 162

F.3d 503, 511 (7th Cir. 1998) (requiring a “reasonable

expectation that the same complaining party would be

subjected to the same action again”) (internal quotations

omitted).

Here Sydney Roberts, Thompson’s successor, theoretically

could reimpose his pre-clearance directive, but nothing in

18 No. 03-3956

the record suggests that she is likely to do so. Her

uncontroverted affidavit states that she has “taken no

action as to any employee based on the [directive],” and that

she does “not consider the . . . [directive] to be the official

policy of the Office of the Inspector General.” The directive

at issue was personal to Thompson, and the possibility of a

recurrence remains purely speculative. Thus even assuming

that Thompson’s directive constitutes an impermissible

restraint on speech, there remains no misconduct for this

court to enjoin. We have quite recently held that where an

internal pre-clearance directive such as this one is perma-

nently withdrawn or disclaimed by

the government/employer, any claims for injunctive re-

lief are moot. See Crue v. Aiken, 370 F.3d 668, 677-78 (7th

Cir. 2004).

Plaintiffs’ argument that Thompson’s appeal does not

implicate the district court’s mootness determination—and

thus that the mootness issue is not properly before us—is

also unavailing. Mootness, like standing, “is always a

threshold jurisdictional question that we must address even

when it is not raised by the parties.” Peterson, 388 F.3d at

558; see also North Carolina v. Rice, 404 U.S. 244, 246

(1971). Plaintiffs’ claim for injunctive relief is moot and will

not figure in our analysis here.

However, plaintiffs also seek monetary damages for

humiliation, stress and emotional anguish resulting from

the imposition of the directive. Such claims are not moot,

even if the underlying misconduct which caused the injury

has ended. See Powell v. McCormack, 395 U.S. 486, 496

(1969) (holding that although injunctive relief was moot, a

case or controversy still existed since the plaintiff requested

declaratory relief and damages); Crue, 370 F.3d at 677-678

(holding that although the plaintiff’s request for injunctive

relief was moot, the court had to consider the merits of the

case since requests for declaratory relief and damages

No. 03-3956 19

remained).5 Generally, any “person whose injury can be

redressed by a favorable judgment has standing to litigate,”

Fed. Deposit Ins. Corp. v. Ernst & Young LLP, 374 F.3d 579,

581 (7th Cir. 2004), and injuries compensable in monetary

damages can always be redressed by a court judgment.

Similarly, “[w]hen a claim for injunctive relief is barred but

a claim for damages remains, a declaratory judgment as a

predicate to a damages award can survive.” Crue, 370 F.3d

at 677.

Thus while plaintiffs’ claim for injunctive relief is moot,

plaintiffs’ claims for monetary damages and declaratory

relief still present a live case or controversy, and therefore

we must proceed to consider the substantive merits of

plaintiffs’ prior restraint claim.

2. The Merits

In granting summary judgment to the plaintiffs on their

prior restraint claims, the district court ruled that Thomp-

son’s directives chilled or actually prevented plaintiffs’

speech on a matter of public concern, were fatally overbroad

and were based on merely conjectural concerns regarding

both the content of plaintiffs’ speech and its potential

impact. 286 F. Supp. 2d at 992-97. Thompson’s main

argument on appeal—which the district court rejected, id.

at 996-97—is that plaintiffs were “policymaking” or “confi-

dential” employees under Elrod v. Burns, 427 U.S. 347

(1976), and Branti v. Finkel, 445 U.S. 507 (1980), and thus

that he could restrict their speech on matters relating to

OIG operations. The logic of Thompson’s argument is that

5

This approach squares with the general proposition that

“[w]here several forms of relief are requested and one of these

requests subsequently becomes moot, the Court has still consid-

ered the remaining requests.” Powell, 395 U.S. at 496 n.8.

20 No. 03-3956

since such “policymaking” employees may actually be fired

for disloyal expressive activity under Elrod and its progeny,

he should be able to take the less extreme measure of

restricting their speech in the first instance.

This line of argument is dubious on several levels. First,

it appears fairly clear that ISI 2s are not “policymaking”

officials under Elrod and it progeny. Notwithstanding the

fact that ISI 2s often handle sensitive or confidential

information, there is no indication that the position “autho-

rizes, either directly or indirectly, meaningful input into

government decisionmaking on issues where there is room

for principled disagreement on goals or

their implementation,” Nekolny v. Painter, 653 F.2d 1164,

1170 (7th Cir. 1981), or that “party affiliation is an appro-

priate requirement for performing the job.” Carlson v.

Gorecki, 374 F.3d 461, 464 (7th Cir. 2004); accord Branti,

445 U.S. at 518 (same test). At least one district court has

specifically held it to be clearly established that ISI 2s are

not policymaking employees. Thornburg v. Peters, 155 F.

Supp. 2d 984, 990-91 (C.D. Ill. 2001); see also 20 Ill. Comp.

Stat. 415/4a(2) (2005) (suggesting that ISI 2 positions are

not political appointments but are to be held based on

“merit and fitness”).

Yet even if this point could be disputed,6 the plaintiffs’

6

As the parties point out in their briefs, the case law pulls in

somewhat different directions on this point. Compare Americanos

v. Carter, 74 F.3d 138, 142-43 (7th Cir. 1996) (holding that an

Indiana Deputy Attorney General qualified as a policymaker since

he researched complex legal issues concerning cases in the AG’s

office and had “the direct ability to implement the policies and

goals of the AG for the State of Indiana”) and Hudson v. Burke,

913 F.2d 427, 431-32 (7th Cir. 1990) (holding that the district

court did not commit clear error by ruling that “investigators” or

“legislative aides” for the City of Chicago Finance Committee were

(continued...)

No. 03-3956 21

status as policymaking employees is not necessarily rele-

vant to the legality of Thompson’s directive. Even assuming

that Thompson could fire the plaintiffs for certain speech

activity, it does not follow that he should be able to restrain

their expressive activity ex ante. Certainly, from an individ-

ual employee’s perspective, outright termination might

appear the more extreme disciplinary measure. However,

purely as a matter of First Amendment freedoms, the public

ramifications of a prior restraint on speech may actually be

far more severe. Unlike ex post reprisals for speech activity,

a prospective restriction “chills potential speech before it

happens,” depriving the public of information that might

otherwise be disseminated. NTEU, 513 U.S. at 468. It is

therefore well settled that the government’s prospective

restriction of future speech is approached with a greater

presumption of unconstitutionality than post-hoc disciplin-

ary actions against specific employees for speech already

uttered. NTEU, 513 U.S. at 467-68; Crue v. Aiken, 370 F.3d

at 678; Milwaukee Police Ass’n, 192 F.3d at 749-50.7

6

(...continued)

policymaking employees since they “have ‘inherent’ in their

position the power to investigate, report facts and have input into

those areas of politically sensitive governmental decisionmaking”)

with Matlock v. Barnes, 932 F.2d 658 (7th Cir. 1991) (affirming a

jury verdict in favor of a Legal Investigator in the Gary, Indiana

City Legal Department, ruling there was ample evidence that he

was not a policymaking employee).

7

In order to justify such a prospective restriction, the govern-

ment “must show that the interests of both potential audiences

and a vast group of present and future employees in a broad range

of present and future expression are outweighed by that expres-

sion’s ‘necessary impact on the actual operation’ of the Govern-

ment.” NTEU, 513 U.S. at 468 (quoting Pickering, 391 U.S., at

571); see also Milwaukee Police Ass’n, 192 F.3d at 750 (same)

(quoting NTEU, 513 U.S. at 468). This is a more onerous burden

than that required to justify post-hoc reprisals for expressive

(continued...)

22 No. 03-3956

Accordingly, the Elrod policymaker rule is traditionally

applied only in cases of patronage hiring and firing,

see, e.g., Kiddy-Brown v. Blagojevich, 408 F.3d 346, 354-57

(7th Cir. 2005); Thompson v. Ill. Dep’t of Prof’l Regulation,

300 F.3d 750, 751-52 (7th Cir. 2002), or in cases of First

Amendment retaliation, see, e.g., Vargas-Harrison v. Racine

Unified Sch. Dist., 272 F.3d 964, 970, 971-72 (7th Cir.

2001); Bonds v. Milwaukee County, 207 F.3d 969, 977 (7th

Cir.), cert. denied, 531 U.S. 944 (2000). Accepting Thomp-

son’s novel rule would imply a bold and perhaps unwar-

ranted departure from both Supreme Court precedent and

traditional understandings of Elrod and its progeny.

Nothing in the case law anticipates an absolute

“policymaker” exception for prior restraint claims, and

this would fly in the face of the Supreme Court’s distinction

between prospective regulations and ad hoc retaliation for

specific instances of speech. The approach actually sug-

gested by the case law is probably one whereby the politi-

cally sensitive or secretive nature of the employment

context can factor into the court’s evaluation of the govern-

ment’s justification for prohibiting the speech, including the

“expression’s ‘necessary impact on the actual operation’ of

the Government.” NTEU, 513 U.S. at 468 (quoting

Pickering, 391 US. at 571).

Perhaps anticipating these difficulties, Thompson also

argues, in the alternative, that even if plaintiffs are not

considered policymaking employees, or even if the “policy-

maker” exception outlined in Elrod does not apply to prior

restraint claims, those propositions were not clearly

established at the time of his alleged misconduct. For these

reasons, Thompson claims he is entitled to qualified

immunity.

7

(...continued)

activity. See Sullivan v. Ramirez, 360 F.3d 692, 698 (7th Cir.

2004).

No. 03-3956 23

We are satisfied that Thompson is entitled to qualified

immunity, though not for the precise reasons he advances.

Simply put, Thompson must prevail in the present suit

since it was not clearly established, at the time the pre-

clearance directive was first issued (December 5, 2000), that

such a directive constituted an unlawful prior restraint on

speech.

Of course the case law on prior restraints is replete with

decisions invalidating zoning ordinances, licensing schemes,

permit regulations and other official acts that limit expres-

sive activity. Additionally, our recent decision in Crue v

Aiken, where we held a similar pre-clearance directive to

constitute an unlawful prior restraint on speech, casts

serious doubt upon the legality of Thompson’s directive. See

Crue, 370 F.3d at 680 (holding unconstitutional a university

chancellor’s pre-clearance directive banning all speech

directed toward prospective student athletes without prior

permission). However, while the constitutional limits of

restraints applicable to the general public are well-settled,

and while the Supreme Court has struck down formal

statutory bans of certain speech activity by government

employees, see NTEU, 513 U.S. 454, the prerogatives of a

government supervisor in managing the communications of

his own staff are far less clear. We emphasize that our

analysis of qualified immunity here is focused specifically

and exclusively on this kind of relatively informal supervi-

sory directive aimed at close subordinates.8 In December

2000 case law touching on this kind of internal pre-clear-

ance directive was decidedly scant and, to the extent that it

8

In this respect the present case differs significantly from Crue.

The e-mail directive at issue in Crue, issued by the president

of the University of Illinois, applied not just to the president’s own

staff or other University employees, but to all University students

and all “others associated with the University.” 370 F.3d at 674-

75.

24 No. 03-3956

existed at all, actually suggested that such directives are

permissible.

Indeed we have approved similar pre-clearance screen-

ing directives before. In Zook v. Brown, a case that came

before this Court twice, we upheld a sheriff’s department

regulation prohibiting officers from engaging in testimoni-

als or advertisements without prior approval of the sheriff.

865 F.2d 887, 891-92 (7th Cir. 1989) (Zook II). We reasoned

that the sheriff had a legitimate interest in maintaining the

appearance of integrity and impartiality of the police force,

and the restrictions were sufficiently tailored to a narrow

category of problematic speech—ads and testimonials. Id.

Moreover, in our first treatment of Zook we actually held

that any legal infirmity in the sheriff’s order was not clearly

established at the time of the order. Zook v. Brown, 748

F.2d 1161, 1165 (7th Cir. 1984) (Zook I). In a subsequent

case, we also upheld elementary school rules requiring

students to obtain prior approval of the school principal

before distributing private handbills. Muller by Muller v.

Jefferson Lighthouse Sch., 98 F.3d 1530, 1541 (7th Cir.

1996). But see Fujishima v. Bd. of Educ., 460 F.2d 1355 (7th

Cir. 1972) (holding unconstitutional a board of education

rule prohibiting any person from distributing any publica-

tions on school premises without prior approval of the

general superintendent of schools).

Two earlier Supreme Court cases dealing with pre-

publication screening regulations in government agencies

also point in the same direction. In Brown v. Glines, 444

U.S. 348 (1980), the Court upheld Air Force regulations

requiring service members to obtain approval from their

commanders before circulating petitions on Air Force bases.

In Snepp v. United States, 444 U.S. 507 (1980), the Court

upheld the enforcement of an agreement signed by an agent

of the CIA whereby he promised not to publish any informa-

tion “relating to the Agency,” during or after his term of

employment, “without specific prior approval by the

No. 03-3956 25

Agency”. Id. at 507; cf. Weaver v United States Info. Agency,

87 F.3d 1429, 1443 (D.C. Cir. 1996) (upholding regulation

requiring employees of U.S. Information Agency and certain

other federal agencies to submit materials regarding

matters of official concern to pre-publication screening).

To be sure, these cases are in some respects distinguish-

able from the present case. The regulation at issue in Zook

(which was limited to ads and testimonials) was far more

narrowly tailored than the one issued by Thompson here,

which simply prohibited all communication regarding OIG

operations with any “external agent.” Additionally, even

as it affirmed the sheriff’s screening of police officer ad-

vertisements and testimonials, the panel in Zook reiterated

its belief that the regulation would not prohibit speech on

matters of public concern and warned against broader

restrictions that might give “unfettered enforcement discre-

tion.” 865 F.2d at 892. Most of the other cited cases also

involve unique institutional settings such as an elementary

school (Muller), the armed forces (Brown) and the CIA

(Snepp), contexts where the government presumably has a

heightened interest in preempting certain types of speech.

Additionally, all of these cases predated the Supreme

Court’s more exacting pronouncements on prior restraints

in NTEU and Davis.

Yet all this is just to say that Thompson’s directive

was not clearly authorized by existing case law as of

November 2000. The relevant question, however, is not

whether his actions were expressly authorized by existing

law, but whether they were clearly forbidden—i.e., whether

a reasonable official would have known the actions in

question were illegal. Saucier, 533 U.S. 202 (“The relevant,

dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he

confronted.”). In the absence of a case factually similar to

the one at bar, an official is entitled to qualified immunity

26 No. 03-3956

unless the alleged misconduct constitutes an obvious

violation of a constitutional right. Chan, 123 F.3d at 1008.

Yet to the extent that these cases— distinguishable as they

are—point in any direction, they suggest that pre-clearance

directives such as this one are permissible.

The institutional context of Thompson’s directive is also

relevant here. While it is not the CIA, the OIG is an agency

that depends on confidentiality and secrecy in carrying out

its public mission. In the course of its investigations the

OIG routinely handles extremely sensitive information, and

its employees must adhere to strict confidentiality require-

ments. Under the circumstances— and given the state of

the law at the time—it may not have been unreasonable for

Thompson to think that he could instruct his own employ-

ees not to discuss agency business with outside parties.

The district court, of course, arrived at a contrary ruling,

stating that “long before Thompson issued his directive, the

Supreme Court had held that ‘any prior restraint

on expression comes to this Court with a “heavy presump-

tion” against its constitutional validity,’ ” and asserting that

“it was equally well-established that prior restraints, often

referred to as a ‘most extraordinary remed[y]’, have been

upheld ‘only where the evil that would result from there

portage is both great and certain and cannot be militated by

less intrusive measures.’ ” 286 F. Supp. 2d at 999 (quoting

Davis, 510 U.S. at 1317). The district court concluded by

stating that “it was clearly established prior to December

2000 that if Plaintiffs wanted to speak on a matter of public

concern, and their interests in doing so outweighed any of

Thompson’s legitimate interests, precluding their speech

without substantial justification and retaliating against

them for that speech would be illegal.” Id. at 1000.

Yet this formulation is exactly what the Supreme Court

has instructed courts not to do—it frames the clearly

established inquiry in terms of a general proposition rather

than the specific factual situation that confronted the

defendant official. The Court has been quite clear that

No. 03-3956 27

“[t]his inquiry . . . must be undertaken in light of the specific

context of the case, not as a broad general proposition . . . .

The relevant, dispositive inquiry in determining whether a

right is clearly established is whether it would be clear to

a reasonable officer that his conduct was unlawful in the

situation he confronted.” Saucier, 533 U.S. at 201-02

(emphases added). If the clearly established question could

be resolved merely by observing that unjustified prior

restraints on speech are prohibited, then no defendant could

ever prevail on the clearly established prong of the qualified

immunity analysis—the inquiry would always produce an

outcome identical to that issuing from the first prong of the

immunity analysis (violation of a valid legal right).9

In short, a reasonable official in Thompson’s position

could not have known definitively, in December 2000,

whether issuing such a pre-clearance directive violated

plaintiffs’ First Amendment rights. See Saucier, 533 U.S. at

202. Accordingly, Thompson’s motion for summary judg-

ment based on qualified immunity must be granted.10

B. First Amendment Retaliation Claim

Unlike plaintiffs’ prior restraint claim, there is no doubt

that the retaliation claim presents a live case or contro-

versy. The sole question here concerns the merits of Thomp-

son’s motion for summary judgment on grounds of qualified

9

It appears that the panel in Crue may have similarly misframed

the clearly established analysis, see 370 F.3d at 680, however we

have no occasion to offer any ruling on this point.

10

Contrary to the district court’s suggestion, the Supreme

Court’s decision in NTEU does not itself resolve the “clearly

established” inquiry. That case involved a formal statutory ban

prohibiting unconditionally the receipt of honoraria by all

government employees. Such a sweeping legal enactment is

clearly distinct from the kind of informal, internal directive

at issue here.

28 No. 03-3956

immunity.

It is by now well established that the government may not

arbitrarily silence the constitutionally-protected speech of

its employees. Government workers do not forfeit their First

Amendment rights simply by accepting pubic-sector employ-

ment. Claims of retaliation for exercise of First Amendment

rights in the public employment context are evaluated

through a now-familiar three-step analysis. “First, the court

must determine whether the employee’s speech was consti-

tutionally protected under the Connick- Pickering test.

Second, the plaintiff must establish that the speech was a

substantial or motivating factor in the retaliatory action.

Third, the defendant has an opportunity to establish that

the same action would have been taken in the absence of

the employee’s protected speech.” Sullivan v. Ramirez, 360

F.3d 692, 697 (7th Cir. 2004).

In order to determine whether speech is constitutionally

protected, we must engage in a two-part inquiry known as

the “Connick-Pickering test.” Id. (citing Coady v. Steil, 187

F.3d 727, 731 (7th Cir. 1999); Connick v. Myers, 461 U.S.

138 (1983); Pickering v. Bd. of Educ., 391 U.S. 563 (1968)).

“Under Connick, we must determine whether the speech

addressed a matter of public concern. If the speech did

involve such a concern, under the Pickering balancing test,

we then must determine whether the government’s interest

as an employer in providing effective and efficient services

outweighs the employee’s interest as a citizen in comment-

ing upon the matter of public concern.” Id. at 698. “The

determination of whether the speech is constitutionally

protected is a question of law for the court.” Id. (citing

Kokkinis v. Ivkovich, 185 F.3d 840, 843 (7th Cir. 1999)).

Here we need proceed no further than the Connick public

concern inquiry. Plaintiffs have failed to demonstrate that

they engaged in speech on a matter of public concern, and

therefore Thompson is entitled to qualified immunity as

No. 03-3956 29

a matter of law.

There are three incidents of potentially protected speech

at issue in this case: (1) Plaintiffs’ November 2000 e-mails

to Thompson requesting a meeting to discuss unspecified

concerns about a rumored appointment, (2) Wernsing’s

January 2001 inquiry requesting clarification of the scope

of Thompson’s directives and (3) plaintiffs’ meeting with

Thompson in March 2001 where they articulated their

specific concerns regarding Fuentes’ possible appointment

as Southern Bureau chief. Since the plaintiffs did not

advance their speech at the March 2001 meeting as a basis

for their retaliation claim before the district court, they

have waived any argument based on this speech. See

Premcor USA, Inc. v. Am. Home Assurance Co., 400 F.3d

523, 530 (7th Cir. 2005) (“We need not tarry over this

argument; it was not presented to the district court and

was, therefore, waived.”); Williams v. REP Corp., 302 F.3d

660, 666 (7th Cir. 2002) (“A party waives any argument that

it does not raise before the district court . . . .”) (internal

quotations omitted).

That leaves plaintiffs’ e-mails to Thompson and

Wernsing’s inquiry regarding the scope of Thompson’s

directive. Whether a government employee’s speech ad-

dresses a matter of public concern depends upon “the

content, form, and context of [the speech], as revealed by

the whole record.” Connick, 461 U.S. at 147-48; see also

Gustafson v. Jones, 290 F.3d 895, 906-07 (7th Cir. 2002)

(quoting Connick); Ramirez, 360 F.3d at 699 (same). Among

these factors the content of the speech is the

most important. See Ramirez, 360 F.3d at 699. To satisfy

the public concern requirement, the speech in question

“must relate to a community concern” and may not be

“merely a personal grievance of interest only to the em-

ployee.” Id. (internal quotations omitted).

30 No. 03-3956

1. Plaintiffs’ e-mails

With respect to plaintiffs’ e-mails, the district court ruled

that, while the e-mails did not articulate any specific

grievance or concern, they nonetheless constituted speech

on a matter of public concern since “the speech involved

an effort by employees to bring to light claims of actual

mismanagement and gross negligence in the conduct of OIG

business by Fuentes. . . .” 286 F. Supp. 2d at 994. The court

explained that “[a]lthough the e-mails were vague and

lacking in specific details, the text of the e-mails can

reasonably be read to support Plaintiffs’ asserted public

purpose in speaking, as well as the contention that their

complaints were motivated by considerations of public

safety and the welfare of the mentally ill and developmen-

tally disabled persons receiving DHS services who did

not receive adequate protection during Fuentes’ alleged

mismanagement of the Southern Bureau.” Id. Having

determined that plaintiffs’ e-mails fit the bill, the district

court apparently did not reach the question whether

Wernsing’s inquiry qualified as speech on a matter of public

concern as well.

This ruling was erroneous. Plaintiffs’ e-mails cannot

be considered speech on a matter of public concern for

the simple reason that they articulate no particular view-

point, grievance or complaint; they merely request a

meeting with Thompson. In pressing their case, plaintiffs

argue as if their concerns about Fuentes had actually been

aired in the two e-mails. They had not. Regardless of

whether the appointment of an incompetent director to the

OIG Southern Bureau constitutes a matter of public

concern,11 we need not mire ourselves in hypotheticals

11

Because we need not reach this issue, we decline to offer a

definitive ruling on the substantive nature of plaintiffs’ underly-

(continued...)

No. 03-3956 31

because plaintiffs’ e-mails never broached this topic. They

said only that they wanted to meet with Thompson to

discuss unspecified “concerns” about a potential appoint-

ment in the OIG.

Apparently recognizing this fundamental difficulty,

plaintiffs argue in their brief that the content “desired to be

communicated” is a key consideration, and they ask us to

focus our inquiry on the “underlying speech—the speech

that the Plaintiffs sought to bring to defendant’s attention

by means of the e-mails.” (Bingaman & Cannon Br. at 15

(emphasis in original).) They cite Smith v. Fruin, 28 F.3d

646, 651 (7th Cir. 1994), for the proposition that “the point

of the speech in question” is relevant to the public concern

inquiry. Id. (emphasis in original). This line of argument is

nonsensical. In their references to “underlying speech” that

is “sought” to be expressed, plaintiffs are actually referring

to speech which has not yet occurred, which, for First

Amendment retaliation purposes, is no speech at all. This

Court’s precedents instruct that the content of the speech is

the most important factor in determining the public concern

element, see Ramirez, 360 F.3d at 699, not the inchoate

intentions or views that the speaker privately holds.

We have previously held that otherwise unprotected

speech does not suddenly attain protected status simply

because it is animated by a viewpoint which, if actually

expressed, might itself merit First Amendment protection.

For example, in Colburn v. Trustees of Indiana University,

973 F.2d 581 (7th Cir. 1992), we ruled that university

11

(...continued)

ing concerns. Aside from the fact that Article Three prohibits

us from issuing advisory rulings, see Lujan, 504 U.S. at 560,

the Supreme Court appears poised to consider a similar ques-

tion in Garcetti v. Ceballos, which will be argued later this Fall,

125 S. Ct. 1395 (2005) (granting certiorari).

32 No. 03-3956

faculty members’ request for external review of a faculty

committee that made recommendations on professional

advancement did not touch upon a matter of public concern,

even though plaintiffs had claimed that the committee was

biased against faculty members who had not joined the

faculty union. Id. at 586. We noted that while speech

relating to unionizing and collective activity may be a

matter of public concern, the speech at issue—the request

for an external review—failed to specify that this was the

nature of the committee’s bias.12 Id. Similarly, in Yoggerst

v. Hedges, 739 F.2d 293 (7th Cir. 1984), we ruled that an

employee’s expression of happiness upon hearing a rumor

that the director of her office had been fired13 was not

speech that touched on a matter of public concern. Id. at

296. We explained that although the question whether the

director was adequately qualified would constitute a matter

of public concern, the plaintiff’s bare statement of approval

conveyed no information about the director’s actual qualifi-

cations and would provide no basis for determining them.

Id.14

12

This lack of specificity was not the only basis for our ruling

on the public concern issue in Colburn. We also noted that

the plaintiffs were not attempting to inform the public about

the matter—their primary motivation concerned their own

standing within the university. See 973 F.2d at 586.

13

Plaintiff merely asked a co-worker: “Did you hear the good

news?”

14

Our disposition here also finds support in Connick itself—the

very font of the modern public concern analysis. The Court in

Connick ruled that several internal survey questions circulated by

the plaintiff did not touch on matters of public concern since “if

released to the public, [the questions] would convey no informa-

tion at all other than the fact that a single employee is upset with

the status quo.” 461 U.S. 138, 148 (1983). Similarly, plaintiffs’ e-

mails here contained no information that would have been useful

(continued...)

No. 03-3956 33

In the retaliation context, speakers simply may not

invoke the protections of the First Amendment based on

unexpressed viewpoints or unuttered thoughts. Government

officials are not mind readers. The fact that members of the

OIG wanted to meet with the Inspector General about the

rumored appointment of an unspecified person does not, by

itself, constitute a matter of concern to the public.

Perhaps recognizing that Thompson’s psychic powers

are limited, the plaintiffs next argue that Thompson should

have attempted to ascertain the unspecified “concerns” that

lay behind plaintiffs’ cryptic e-mails; they assert that any

uncertainty as to their viewpoints or motives was caused by

Thompson’s failure to follow up or investigate. The plain-

tiffs argue that Waters v. Churchill, 511 U.S. 661, 677-78

(1994), establishes a general “duty, before retaliating, to

reasonably inquire as to the nature of the concerns which

Plaintiffs asked to express.” (Wernsing Br. at 29.) Waters

stands for no such proposition. Waters holds that govern-

ment supervisors must make a reasonable investigation

into the content of the speech at issue and the identity of

the relevant speakers before disciplining their employees

for expressive activity. It articulates a factor that courts

should consider in evaluating an employer’s response to

speech under the Pickering balancing test, and it helps to

clarify “what should happen if the defendants hold an

erroneous and unreasonable belief about what plaintiff

said.” Id. at 678.

Here, of course, there was no erroneous or unreasonable

belief about what plaintiffs said—Thompson received the

14

(...continued)

or noteworthy to the public at large, and if disseminated would

reveal only that several OIG staff members sought a meeting with

the Inspector General to air unspecified concerns about an

unspecified appointment.

34 No. 03-3956

full text of both e-mails and correctly identified all the

authors. More fundamentally, Waters and its progeny do not

address the antecedent question whether the speech at

issue, considered in its own right, addresses a matter of

public concern, and it certainly does not enshrine any duty

to investigate the possible meaning of a facially innocuous

communication or random missive from an employee.15

It would be unduly onerous to place a legal duty on govern-

ment employers to ascertain whether employees who make

vague requests for meetings might have something of public

concern in mind.

2. Wernsing’s Inquiry

This brings us to Wernsing’s request for clarification of

Thompson’s directive—specifically, her inquiry as to wheth-

er the directive permitted her to discuss office business with

her union representative, an attorney or a legislator. This

act of “speech” meets the same fate as plaintiffs’ e-mails.

While it might be of mild interest to the public that Thomp-

son had issued such a pre-clearance directive—and plain-

tiffs’ briefs make a weak gesture in this

direction—Wernsing clearly was not seeking to protest the

directive, disseminate information or express any particular

viewpoint about it. She was merely seeking clarification as

to how the directive applied to her individually. The posture

of Wernsing’s inquiry is analogous to the internal question-

naire circulated by the plaintiff in Connick, who

did not seek to inform the public that the District

Attorney’s office was not discharging its governmental

15

The other cases cited by plaintiffs, e.g., Jefferson v. Ambroz,

90 F.3d 1291, 1299 (7th Cir. 1996) (Rovner, J., concurring), sim-

ilarly bear on the reasonableness of a supervisor’s response to

speech, not the public concern aspect of the speech itself.

No. 03-3956 35

responsibilities in the investigation and prosecution

of criminal cases. Nor did [the plaintiff] seek to bring to

light actual or potential wrongdoing or breach of public

trust on the part of Connick and others. Indeed, the

questionnaire, if released to the public, would convey no

information at all other than the fact that a single

employee is upset with the status quo.

461 U.S. at 148; cf. Colburn, 973 F.2d at 586-87 (request by

faculty members for an independent review of a faculty

evaluation committee did not raise a matter of public

concern since, while “the public would be displeased to

learn that faculty members at a public university were

evaluating their colleagues based on personal biases,” the

request was “principally of importance to the few faculty

members who had to tolerate the bickering”).

Internal communications regarding office personnel

policies, which allege no malfeasance or wrongdoing, simply

are not the stuff of protected speech. Accordingly,

Wernsing’s inquiry does not constitute speech on a mater of

public concern.

* * *

Since the expressive activity underlying plaintiffs’

retaliation claim does not constitute speech on a matter of

public concern, we reverse the district court’s ruling with

respect to this claim. Thompson’s motion for summary

judgment on grounds of qualified immunity should have

been granted.

V. CONCLUSION

For the foregoing reasons, we REVERSE the ruling of the

district court and REMAND this case with instructions to

grant Thompson summary judgment with respect to all

claims on grounds of qualified immunity.

36 No. 03-3956

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—9-9-05