LeFande v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 16, 2016 Decided November 8, 2016

No. 15-7055

MATTHEW AUGUST LEFANDE,

APPELLANT

v.

DISTRICT OF COLUMBIA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cv-00217)

Matthew August LeFande, pro se, argued the cause and

filed the briefs for appellant.

Carl J. Schifferle, Assistant Attorney General, Office of

the Attorney General for the District of Columbia, argued the

cause for appellee. With him on the brief were Karl A.

Racine, Attorney General, Todd S. Kim, Solicitor General,

and Loren L. AliKhan, Deputy Solicitor General.

Before: TATEL and KAVANAUGH, Circuit Judges, and

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

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TATEL, Circuit Judge: Matthew LeFande served as a

police reserve officer with the Metropolitan Police

Department for fifteen years until the department fired him

for making harsh and accusatory statements to his superiors in

emails with his co-workers cc’d. Alleging that the emails

constitute protected speech, LeFande argues that his

termination violated the First Amendment. The district court

disagreed, as do we. Under Pickering v. Board of Education,

391 U.S. 563 (1968), LeFande’s emails enjoy no First

Amendment protection because his interest in sending them is

outweighed by the police department’s interest in promoting

office harmony and efficiency.

I.

The Metropolitan Police Department (MPD) is fortified

by a corps of volunteers, called police reserve officers

(PROs), who assist full-time officers with their law-

enforcement duties. See D.C. Code § 5-129.51. Appellant

Matthew LeFande served as a PRO for fifteen sometimes

tumultuous years from 1993 until 2008, when the MPD fired

him.

For our purposes, the relevant events begin in 2006, when

LeFande, who holds a law license, represented a class of

PROs in a suit against the District of Columbia. In that suit,

known as the Griffith suit, plaintiffs alleged that an MPD

regulation infringed on PRO collective-bargaining rights and

violated principles of procedural due process in disciplinary

actions. Griffith v. Lanier, No. 06-01223, 2007 WL 950087

(D.D.C. Mar. 28, 2007). The district court dismissed that case,

id. at *4, and we affirmed, Griffith v. Lanier, 521 F.3d 398,

404 (D.C. Cir. 2008).

In January 2008, just before LeFande appeared before

this court for oral argument in Griffith, the MPD fired him. In

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response, LeFande again sued the District, this time under 42

U.S.C. § 1983, alleging, as relevant here, that the MPD

terminated him for prosecuting the Griffith suit in violation of

his First Amendment rights. The district court granted the

District’s motion to dismiss, ruling that LeFande’s speech—

his prosecution of the Griffith suit—did not relate to a matter

of public concern and therefore merited no First Amendment

protection. LeFande v. District of Columbia, No. 09-00217,

2009 WL 8747515, at *4 (D.D.C. June 25, 2009). Reversing,

we concluded that the Griffith suit did implicate a matter of

public concern and remanded for the district court to conduct

the remaining First Amendment analysis. LeFande v. District

of Columbia, 613 F.3d 1155, 1161–62 (D.C. Cir. 2010).

On remand, the District moved for summary judgment,

arguing that the MPD would have fired LeFande even absent

his prosecution of the Griffith suit because of a series of

emails he sent to his superiors with his co-workers cc’d. The

relevant emails—their precise language is central to the issue

before us—can be grouped into three sets.

First, on March 26, 2007, LeFande sent three emails

pertaining to the PRO leadership’s response to a disturbance

in Georgetown. In the initial email, LeFande wrote that the

PRO force would “be better off knocking Officer Plante [a

sergeant] over on his side and rolling him towards the crowd

than asking him to lead us as a unit.” In the next email,

LeFande proclaimed that his superiors were “suffering from

full-blown delusions of adequacy.” And in his last email of

the day, LeFande wrote that his superiors were “planning on .

. . standing around there until the crowd thins out in

Georgetown” and suggested that they “write [themselves] a

nice after action report [and] [m]aybe even give [themselves]

some medals.” LeFande sent the first email directly to certain

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superiors and circulated it to a listserv of PROs. The record

does not indicate who received the other two emails.

LeFande sent a second set of two emails on January 18

and 19, 2008, each of which concerned PRO Commander

Charles Brown’s request for a list of PRO members who were

also serving as Conservators of the Peace in Virginia (another

volunteer law-enforcement position). In his first of the two

emails, LeFande wrote:

Please explain why you want this information and

what you intend to do with it. Absent some special

authority that MPD will confer to these people by

virtue of the office they hold in Virginia, or this

information being used to advocate for same, I can’t

understand why it is any of your business. It doesn’t

appear you have done anything with this information

since the last time you asked. Why should we

continue to provide it to you?

Brown responded that the list would allow him to “better

handle problems that may arise” and has “helped [him] stop

or minimize disciplinary actions against Reserve Officers.”

LeFande shot back:

Your track record demonstrates to the contrary. You

are, more often than not, the most immediate cause

of arbitrary and unwarranted disciplinary actions

against Reserve Officers. You certainly are

responsible for the recent arbitrary promotions

process in which you promoted a cadre of persons to

your personal liking regardless of their lack of

qualifications. You failed to utilize the promotion

exams and merit selection process required under

law so that you could capriciously exclude those

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critical of your perpetual incompetence. Similarly,

you are personally responsible for the arming of

certain Reserve Officers, including yourself, who

are wholly unfit to carry firearms or who are in fact,

legally disqualified from doing so. It appears to me

that you are now on the hunt for more reasons to

discredit and prejudice those more capable than you.

You do not need a list of conservators. Instead, the

police department needs a written policy in place that

reflects these conservators’ status as duly appointed

law enforcement officers for Virginia and identifies

them as exempt from firearms regulations both under

District of Columbia and Federal law. If there is any

question as to a conservator’s status, their state

issued identification credentials will give cursory

confirmation of their status, which can be further

confirmed by queries to the appropriate agencies.

Absent any other cause for you having this

information, I believe it is inappropriate for you to

maintain any such list.

LeFande copied the full PRO listserv on these emails.

LeFande sent and cc’d his final email on January 25,

2008, in response to Brown’s request that the PROs submit

questions in advance of a meeting with an MPD Assistant

Chief, so that he could “be properly briefed.” LeFande wrote:

Briefed by who? You? Why even bother? You must

be pretty nervous about this meeting for you to do

something as contrived and clumsy as try to filter out

the questions ahead of time. The whole point of this

process is to spring on him all the dumb stuff you

have been doing to the Corps all these years and

make him squirm. Hopefully he will be embarrassed

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enough to finally force you to resign. Come to think

of it, let’s forward this little email to him. [email

address omitted] . . . Oh yeah, you suspended me

without cause for doing that nine months ago and

haven’t reinstated me since. Let’s add that to the

email too.

As evidence that it fired LeFande because of these

emails, the District pointed to the MPD’s memorandum

requesting his termination, which stated that the emails

“dismiss[] authority and undermine[] the credits of official[s’]

rank and deter[] the cohesive working relationships of

[Reserve Corps] members.” The memo also emphasized that,

“[a]s the tone, tenor, content, and distribution of Reserve

Officer LeFande’s e-mails make[] clear, he is a disruptive

force within the Reserve Corps, and his blatantly

insubordinate behavior cannot help but to diminish respect for

Reserve Corps officials and undermine morale within the

Corps.”

The district court denied the District’s summary-

judgment motion, concluding that the District had failed to

prove as a matter of law that the MPD would have fired

LeFande even absent his prosecution of the Griffith suit.

While a jury could “find that the MPD terminated LeFande

for his tendency to air complaints to the entire listserv[], or for

the tone of the emails,” the court explained, it could also

deem these justifications pretextual. LeFande v. District of

Columbia, No. 09-217, slip op. at 10 (D.D.C. Feb. 11, 2014)

(order denying defendant’s motion for summary judgment).

And because LeFande’s emails “likely constitute protected

speech,” the court thought summary judgment particularly

inappropriate. Id. at 11.

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In response to that ruling, LeFande moved for summary

judgment, asserting that his emails warranted First

Amendment protection as a matter of law. The district court,

despite its previous statement that LeFande’s emails “likely

constitute protected speech,” denied that motion. Relying on

Garcetti v. Ceballos, 547 U.S. 410 (2006), the court

concluded that LeFande’s emails were unprotected because he

sent them “pursuant to his official duties.” LeFande v. District

of Columbia, No. 09-217, slip op. at 1–2 (D.D.C. Nov. 14,

2014) (order denying plaintiff’s motion for summary

judgment).

Having denied the parties’ summary-judgment motions,

the district court held a pretrial conference. There, LeFande

explained that he had no evidence to present at trial and

maintained that the only remaining issue was a legal one, i.e.,

whether his emails merit First Amendment protection.

Because the District agreed, the district court instructed it to

move to dismiss, which it did. Although LeFande never

opposed the motion, he expressly reserved his right to appeal.

The district court accordingly dismissed the case with

prejudice, and LeFande filed this appeal.

II.

Before addressing the merits, we must consider the

District’s argument that we lack appellate jurisdiction. See

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83,

94–95 (1998) (“The requirement that jurisdiction be

established as a threshold matter ‘spring[s] from the nature

and limits of the judicial power of the United States’ and is

‘inflexible and without exception.’” (quoting Mansfield, C. &

L. M. Railway Co. v. Swan, 111 U.S. 379, 382 (1884))).

Under 28 U.S.C. § 1291, appellate courts have jurisdiction to

review the final decisions of district courts. And when

reviewing a final decision, they have authority to review the

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interlocutory orders that preceded it based on the principle

that such orders merge into the final decision. See Ciralsky v.

CIA, 355 F.3d 661, 668 (D.C. Cir. 2004) (“Our jurisdiction

over [the] final decision extends as well to the interlocutory

rulings that preceded it . . . .”).

The District insists that we lack jurisdiction to review the

denial of LeFande’s summary-judgment motion because the

district court dismissed LeFande’s case for failure to

prosecute. See FED. R. CIV. P. 41(b) (allowing dismissal “[i]f

the plaintiff fails to prosecute or to comply with these rules or

a court order”). Despite the general rule that interlocutory

orders merge into the final decision, our sister circuits

disagree about whether they can review interlocutory orders

after a dismissal for failure to prosecute. Compare, e.g.,

John’s Insulation, Inc. v. L. Addison & Associates, 156 F.3d

101, 105–07 (1st Cir. 1998) (declining review), with Gary

Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner &

Smith, Inc., 903 F.2d 176, 179 (2d Cir. 1990) (permitting

review). This circuit has yet to weigh in on the question, and

we need not do so now since we reject the District’s premise

that the dismissal here was triggered by a failure to prosecute.

Although the district court failed to ground its order in a

Federal Rule of Civil Procedure, the circumstances

surrounding the dismissal—specifically, the pretrial

conference—convince us that it rested not on Rule 41(b), but

rather Rule 41(a)(2), which allows a court to dismiss an action

“at the plaintiff’s request . . . on terms that the court considers

proper.” FED. R. CIV. P. 41(a)(2). At the pretrial conference,

LeFande took the position that only legal issues remained at

stake and accordingly asked the district court to dismiss the

case so he could seek immediate review of the summary-

judgment denial. See Pretrial Conference Tr. 3 (Apr. 28,

2015) (“We’re only left with the matter of law of whether

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[LeFande’s] speech was protected speech.”); id. at 6 (“We

agree to [the case] being dismissed. We just want to reserve

our rights for appeal.”). The district court agreed to facilitate

this request, saying it would try to “tee [the case] up properly

for plaintiff to take [his] appeal.” Id. at 6. Though the District

ultimately moved for dismissal, it was LeFande who initially

“request[ed]” the dismissal, which the district court granted

on “terms [it] consider[ed] proper.” See FED. R. CIV. P.

41(a)(2). The dismissal therefore qualifies as a Rule 41(a)(2)

voluntary dismissal.

The District nonetheless contends that LeFande bears

sole responsibility for the case not going to trial, assuring us

that it had “intended to proceed with the trial and present its

own evidence.” Appellee’s Br. 17. This is an odd assertion

given what actually transpired at the pretrial conference. Not

only did the District agree that no factual issues remained

contested, see Pretrial Conference Tr. 5 (responding “[n]o”

when asked by the district court whether any facts were in

dispute), but, as noted above, it also moved to dismiss the

case, id. at 6 (“We move to dismiss.”). The District’s

argument, moreover, completely ignores that the dismissal

here bears no resemblance to dismissals for failure to

prosecute, which are prompted by plaintiffs’ egregious and

dilatory conduct, such as flouting court orders. See Bristol

Petroleum Corp. v. Harris, 901 F.2d 165, 167–68 (D.C. Cir.

1990). LeFande did nothing of the sort, as he merely voiced

his preference to appeal immediately rather than proceed to

trial.

For these reasons, we shall construe the district court’s

order as a Rule 41(a)(2) voluntary dismissal with prejudice—

an appealable final decision under 28 U.S.C. § 1291 because

it completely ends the litigation on the merits. See Blue v.

District of Columbia Public Schools, 764 F.3d 11, 17 (D.C.

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Cir. 2014). And since the denial of LeFande’s summary-

judgment motion merges into that final decision, it too is

reviewable. See Public Citizen v. United States District Court

for the District of Columbia, 486 F.3d 1342, 1345 (D.C. Cir.

2007) (holding that a summary-judgment denial may be

reviewed “where it is accompanied by a final order disposing

of all issues before the district court” (quoting Jones-

Hamilton Co. v. Beazer Materials & Services, Inc., 973 F.2d

688, 694 n.2 (9th Cir. 1992))).

With our statutory jurisdiction established, the only

remaining question is whether we have Article III jurisdiction.

Although the parties never address this issue, courts must

always assure themselves that they have constitutional

jurisdiction. See Steel Co., 523 U.S. at 101–02. Article III

appellate jurisdiction over voluntary dismissals with prejudice

is a largely uncharted doctrinal area, though the Supreme

Court will soon hear a case concerning the issue. See

Microsoft Corp. v. Baker, 136 S. Ct. 890, 890–91 (2016)

(mem.) (granting certiorari). In that case, the parties disagree

about whether appellate courts can review a denial of class

certification after the named plaintiffs voluntarily dismiss

their claims with prejudice given Article III’s requirement that

the plaintiff remain adverse to the defendant “at all stages of

review, not merely at the time the complaint is filed.”

Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016)

(quoting Arizonans for Official English v. Arizona, 520 U.S.

43, 67 (1997)). Without speaking to the unique context of

class actions—which is unnecessary in this case—we think

that Article III jurisdiction exists to review the voluntary

dismissal with prejudice here.

The Supreme Court last addressed the reviewability of

voluntary dismissals in United States v. Procter & Gamble

Co., 356 U.S. 677 (1958). There, the Court held that the

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plaintiff, the government in that case, could obtain review of

an interlocutory ruling by voluntarily dismissing the case with

prejudice because “[w]hen the Government proposed

dismissal . . ., it had lost on the merits [due to the

interlocutory ruling] and was only seeking an expeditious

review.” Id. at 680–81. In other words, the government had

never “consent[ed] to a judgment against [it], but only that, if

there was to be such a judgment, it should be final in form

instead of interlocutory.” Id. at 681 (quoting Thomsen v.

Cayser, 243 U.S. 66, 83 (1917)). The same is true here. When

the district court denied LeFande’s summary-judgment

motion and concluded that his emails deserve no First

Amendment protection, LeFande effectively lost on the

merits: after all, he claimed only that firing him based on

those emails violated the First Amendment. LeFande’s

voluntary dismissal with prejudice, then, served solely as a

means to facilitate immediate review of a case-dispositive

interlocutory ruling.

Procter & Gamble therefore governs and, although the

Court there did not speak in terms of Article III adverseness,

it necessarily found Article III’s strictures satisfied because it

reviewed the plaintiff’s appeal. Accordingly, because

LeFande’s voluntary dismissal with prejudice followed a

case-dispositive interlocutory ruling, we have Article III

jurisdiction. Accord OFS Fitel, LLC v. Epstein, Becker and

Green, P.C., 549 F.3d 1344, 1356–58 (11th Cir. 2008)

(holding that voluntary dismissals with prejudice following

case-dispositive rulings are reviewable); Laczay v. Ross

Adhesives, 855 F.2d 351, 354–55 (6th Cir. 1988) (same). And

as a result, the broader question whether Article III appellate

jurisdiction exists over all voluntary dismissals with

prejudice, even those that do not follow case-dispositive

interlocutory rulings, is not implicated.

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We can easily dispose of the District’s final two

jurisdictional objections. First, our holding poses no threat to

“the longstanding policy against piecemeal litigation.”

Appellee’s Br. 18 (quoting Franklin v. District of Columbia,

163 F.3d 625, 629 (D.C. Cir. 1998)). Of course, reviewing

cases that plaintiffs have voluntarily dismissed without

prejudice could jeopardize that policy given that plaintiffs

would suffer no adverse consequences from dismissing after

an interlocutory ruling and pursuing an appeal. See Robinson-

Reeder v. American Council on Education, 571 F.3d 1333,

1340 (D.C. Cir. 2009) (discussing how permitting dismissals

without prejudice to “generate an appealable judgment”

would “weaken the policy against ‘piecemeal appeals’”). But

where, as here, the plaintiff voluntarily dismisses the case

with prejudice, he wagers his entire case on prevailing on

appeal—thereby creating a disincentive against this practice.

See, e.g., Walton v. Bayer Corp., 643 F.3d 994, 998 (7th Cir.

2011) (“[When a] plaintiff wager[s] her entire claim on being

proved right about [an interlocutory ruling], considerations of

judicial economy justif[y] immediate appellate review.”).

Second, the District claims that because “we are

powerless to review a challenge to the legal sufficiency of

evidence that was rejected at summary judgment and not

brought again in a [post-trial] Rule 50 motion,” see Feld v.

Feld, 688 F.3d 779, 781 (D.C. Cir. 2012), we also lack

authority to review the summary-judgment denial here. We

disagree. Where a case proceeds to trial, the trial record

supersedes the earlier summary-judgment record and renders

the summary-judgment denial moot. Id. at 782. But where, as

here, no trial takes place—and hence no further facts are

developed—nothing has superseded the summary-judgment

record and therefore nothing prevents our review.

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Having confirmed our constitutional and statutory

jurisdiction to review the district court’s voluntary dismissal

with prejudice, as well as the summary-judgment denial that

preceded it, we turn to the merits.

III.

The district court denied LeFande’s summary-judgment

motion, concluding that his emails enjoy no First Amendment

protection. We review this summary-judgment denial de

novo, drawing all inferences in favor of the District as the

nonmovant. See Public Citizen, 486 F.3d at 1345. Summary

judgment is proper only when there is “no genuine issue of

any material fact,” or when “the movant is clearly entitled to

prevail as a matter of law.” Id. (quoting Pomerantz v. County

of Los Angeles, 674 F.2d 1288, 1290 (9th Cir. 1982)).

We use a four-element test to determine whether a public

employee has established a claim of retaliation in violation of

his First Amendment rights. For the employee to prevail: (1)

he must have spoken as a citizen on a matter of public

concern; (2) his interest in speaking on matters of public

concern must outweigh the government’s interest in

promoting efficiency; (3) his protected speech must have been

a substantial or motivating factor in prompting the retaliation;

and (4) the government must be unable to show that it would

have reached the same decision absent the protected speech.

Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C. Cir. 2007).

The first two elements involve questions of law; the second

two implicate questions of fact. Id.

The parties spill much ink debating whether LeFande

spoke “pursuant to his official duties.” See Garcetti, 547 U.S.

at 421 (“[W]hen public employees make statements pursuant

to their official duties, the employees are not speaking as

citizens for First Amendment purposes . . . .”). We need not

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decide this question, however, because even if LeFande spoke

as a citizen on a matter of public concern, his claim falters on

the second element. See, e.g., Rock v. Levinski, 791 F.3d

1215, 1219 (10th Cir. 2015) (skipping the first element of the

employee-speech analysis and resolving the claim based on

the Pickering balancing test); see also Bowyer v. District of

Columbia, 793 F.3d 49, 53 (D.C. Cir. 2015) (“On de novo

review, we may affirm the district court’s judgment on a

different theory than used by the district court.”).

That element, according to Pickering v. Board of

Education, 391 U.S. 563 (1968), requires weighing LeFande’s

interest “as a citizen, in commenting upon matters of public

concern” against the MPD’s interest “as an employer, in

promoting the efficiency of the public services it performs

through its employees.” Id. at 568. The Supreme Court has set

forth several factors to consider in conducting this test, such

as “whether the statement impairs discipline by superiors or

harmony among co-workers, has a detrimental impact on

close working relationships for which personal loyalty and

confidence are necessary, or impedes the performance of the

speaker’s duties or interferes with the regular operation of the

enterprise.” Rankin v. McPherson, 483 U.S. 378, 388 (1987).

In Connick v. Myers, 461 U.S. 138 (1983), moreover, the

Court made clear that a government employer can intervene

before an employee’s speech actually disrupts the functioning

of an office. “[W]e do not see the necessity,” the Court

explained, “for an employer to allow events to unfold to the

extent that the disruption of the office and the destruction of

working relationships is manifest before taking action.” Id. at

152.

The facts of Connick are instructive in balancing the

interests in this case. There, the government fired an Assistant

District Attorney who had distributed a “questionnaire

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soliciting the views of her fellow staff members concerning

office transfer policy, office morale, the need for a grievance

committee, the level of confidence in supervisors, and

whether employees felt pressured to work in political

campaigns.” Id. at 141. In sustaining the employee’s

termination, the Court explained that it owed “a wide degree

of deference to the employer’s judgment” that the employee

had committed “an act of insubordination which interfered

with working relationships.” Id. at 151–52. That said, the

Court acknowledged that a “stronger showing” of interference

with the employer’s operation “may be necessary if the

employee’s speech more substantially involved matters of

public concern.” Id. at 152.

Here, as explained above, the MPD set forth its rationale

for terminating LeFande in its “Request for Removal”

memorandum. That document states that LeFande’s emails

“dismiss[] authority and undermine[] the credits of official[s’]

rank and deter[] the cohesive working relationships of

[Reserve Corps] members.” It concludes that, “[a]s the tone,

tenor, content, and distribution of . . . LeFande’s e-mails

makes clear, he is a disruptive force within the Reserve Corps,

and his blatantly insubordinate behavior cannot help but to

diminish respect for Reserve Corps officials and undermine

morale within the Corps.” Under Connick, we must afford

such determinations “a wide degree of deference.” 461 U.S. at

152. Moreover, as we have emphasized, “there may be a

stronger governmental interest in regulating the speech of

police officers than in regulating the speech of other

governmental employees,” in light of the “special degree of

trust and discipline required in a police force.” O’Donnell v.

Barry, 148 F.3d 1126, 1135 (D.C. Cir. 1998). With this

deferential framework in mind, and viewing the facts in the

light most favorable to the District as the nonmovant, we now

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subject each of LeFande’s emails to the Pickering balancing

test.

In LeFande’s March 26, 2007 emails, he ridiculed his

superiors’ handling of a disturbance in Georgetown, writing

that the department would be better off “knocking [a sergeant]

over on his side and rolling him towards the crowd than

asking him to lead [the PRO] unit,” and that his superiors

“suffer[ed] from full-blown delusions of adequacy” and

should “give [themselves] some medals.” In our view, these

statements about the inadequacy of office leadership, like the

survey question in Connick relating to employees’ confidence

in their supervisors, have the “likely result [of] . . .

precipitat[ing] a vote of no confidence” in LeFande’s

superiors. As such, LeFande’s statements “carr[y] the clear

potential for undermining office relations.” Connick, 461 U.S.

at 152. In addition, because those statements expressly

disrespect LeFande’s superiors, they go further to “impair[]

discipline,” Rankin, 483 U.S. at 388, than did the implicitly

derisive survey questions in Connick. To be sure, LeFande’s

March 26 emails may implicate matters of public concern to a

greater extent than the questionnaire in Connick since they

relate to public safety as opposed to matters of internal office

policy. But given the “special degree of trust and discipline

required in a police force,” O’Donnell, 148 F.3d at 1135,

LeFande’s speech-related interests in sending these emails

cannot outweigh the fact that their “disruptive force” (the

MPD’s description) threatens workplace efficiency.

LeFande’s January 18 and 19, 2008 emails must be read

together since they amount to a single response to

Commander Brown’s request for a list of PROs also serving

as Virginia Conservators of the Peace. In his January 18

email, LeFande wrote that he failed to “understand why [the

requested information] is any of your business,” demanding to

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know “[w]hy should we continue to provide it to you . . .

[given that] [i]t doesn’t appear you have done anything with

[it] since the last time you asked[?]” After Brown explained

why he needed the information, LeFande still refused to

comply. Instead, in his January 19 email, he launched a slew

of attacks against Brown, charging, among other things:

“[y]ou certainly are responsible for the recent arbitrary

promotions process in which you promoted a cadre of persons

to your personal liking regardless of their lack of

qualifications”; “you . . . capriciously exclude those critical of

your perpetual incompetence”; “you are personally

responsible for the arming of certain Reserve Officers,

including yourself, who are wholly unfit to carry firearms”;

and “you are now on the hunt for more reasons to discredit

and prejudice those more capable than you.” LeFande cc’d the

PRO listserv.

It goes without saying that resisting a superior’s routine

request for information both “impairs discipline” and

“interferes with the regular operation of the enterprise.”

Rankin, 483 U.S. at 388. Viewing the record in the District’s

favor, as we must, we do not think that the requested

information was particularly sensitive or that the request was

unwarranted or burdensome. If police department leadership

faced opposition from employees after every routine request,

the machinery of law enforcement would grind to a halt.

More fundamentally, when we consider the “manner”

and “context” of these emails, id., they read more as personal

attacks on Brown than as proposals for improving

departmental policy. LeFande’s repeated use of the word

“you” in reference to Brown himself, as well as his harsh and

accusatory tone—“perpetual incompetence,” “capriciously

exclude,” “wholly unfit”—scapegoat Brown instead of

targeting general policies in a way that might foster

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meaningful reform. Not only are such personal attacks on

supervisors likely to jeopardize employee confidence in office

leadership and impair overall discipline, but they are also just

the type of “act of insubordination” (the MPD called it

“blatantly insubordinate behavior”) that employers have wide

latitude to address before actual office disruption occurs. See

Connick, 461 U.S. at 151–52; Graziosi v. City of Greenville,

775 F.3d 731, 740–41 (5th Cir. 2015) (holding that a police

officer’s posts on the local Mayor’s public Facebook page

criticizing departmental leadership failed the balancing test

because they “smack[ed] of insubordination” (quoting Nixon

v. City of Houston, 511 F.3d 494, 499 (5th Cir. 2007))).

It is true that, on a more general level, the subject of these

emails—police personnel policy and public safety—is one of

public concern. See LeFande, 613 F.3d at 1161 (“[W]e reject

the proposition that a personnel matter per se cannot be a

matter of public concern, even if it may seriously affect the

public welfare.”). But “[w]hen a government employee

personally confronts his immediate superior,” the Court has

emphasized, “the [employer’s] institutional efficiency may be

threatened not only by the content of the employee’s message

but also by the manner, time, and place in which it is

delivered.” Givhan v. Western Line Consolidated School

District, 439 U.S. 410, 415 n.4 (1979). Here, LeFande’s

personal and inflammatory confrontation of Brown, combined

with the visibility of the emails, could well frustrate the police

department’s ability to ensure a functional force.

A similar analysis applies to LeFande’s January 25, 2008

email. There, LeFande responded to Brown’s request for

questions in advance of a briefing with the Assistant Chief as

follows: “Briefed by who? You? Why even bother? You must

be pretty nervous about this meeting for you to do something

as contrived and clumsy as try to filter out the questions ahead

19

of time. The whole point of this process is to spring on [the

Assistant Chief] all the dumb stuff you have been doing to the

Corps all these years and make him squirm. Hopefully he will

be embarrassed enough to finally force you to resign.”

LeFande’s caustic words—“clumsy,” “dumb,” “contrived”—

undercut Brown’s authority by flouting his request and

ridiculing him in an open forum. For the reasons just

mentioned, such personal attacks hurled at a superior can

subvert office discipline and efficiency. LeFande assures us

that he was seeking to blow the whistle on an official

obfuscating his wrongdoings. See Oral Arg. Rec. 5:50–:59.

Perhaps so. But, and again viewing the facts most favorably to

the District, we see nothing in Brown’s request for

questions—which he justified as necessary to allow for more

thorough and timely answers—that even hints at an illicit

motive. As a result, this email falls far short of cutting to the

heart of “public concern,” Pickering, 391 U.S. at 568, and the

MPD’s interest in containing overt hostility toward its

leadership outweighs any speech-related interest LeFande had

in sending the email.

In conclusion, none of LeFande’s emails survives the

Pickering balancing test. The First Amendment protects

public-employee speech only so much. In this case, it does not

require the MPD to tolerate LeFande’s hostile and accusatory

words.

IV.

For the foregoing reasons, we affirm the district court’s

dismissal of the case and denial of LeFande’s summary-

judgment motion.

So ordered.