stating that qualified immunity inquiry in public employee, free speech case is whether the rights "were so clear at the time in question that reasonable minds could not differ on the constitutionality of [the employee's] discharge"
How later courts described this case
- stating that qualified immunity inquiry in public employee, free speech case is whether the rights "were so clear at the time in question that reasonable minds could not differ on the constitutionality of [the employee's] discharge"
- involving a secretary’s suit of a bankruptcy judge for wrongful termination and noting that “the authority of the district court to order [the secretary] reinstated ... is subject to question” because the bankruptcy judge retired from the court and the “secretarial position no longer exist[ed]”
- explaining that absolute immunity is inapplicable, for example, to actions arising out of personnel decisions
- The qualified-immunity inquiry requires the district court “to determine whether the law was so clearly established at the time of the incident that a reasonably competent public official should have known that a course of action would be inconsistent with a public employee’s rights as defined in Pickering.”
Written by the judges who cited it.
The opinion
WELLFORD, Circuit Judge,
concurring in part and dissenting in part:
I am most reluctant to dissent from the thoughtful opinion in this very difficult *1191 case. Had a motion for summary judgment been filed in this case by defendants rather than a motion to dismiss, I am persuaded that application of the balancing test under Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1967), would have presented a less complex problem to solve.
Persons standing in the position of defendants, asserting qualified or good faith immunity, could reasonably view plaintiffs actions as bringing about disharmony, recrimination, and continued turmoil in that court, which was in virtual receivership, with Judge Feikens named as an effectual receiver. 28 U.S.C. § 332 (d)(2), dealing with the formation and operation of circuit judicial councils, directs that “[a]ll judicial officers and employees of the circuit shall promptly carry into effect all orders of the circuit council.” Judge Feikens was placed with ultimate “supervisory responsibility and oversight” and directed to restore that court’s harmonious, efficient and effective operations. See Guercio I.
Pickering stands for the essential proposition that a public employee (in that case a public school teacher) could not be compelled by threat of discharge to relinquish first amendment rights of public criticism of the public employer (the school board). At the same time, the Supreme Court recognized that “the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Id. at 568 , 88 S.Ct. at 1734 . The Court proceeded to state the problem in such a case: “to arrive at a balance between the interests of the teacher ... and the interest of the State, as an employer, in promoting the efficiency of the public services it performs_” Id. at 568 , 88 S.Ct. at 1734-35 . Because Pickering’s general public criticism of policies was “in no way directed towards any person with whom appellant [Pickering] would normally be in contact in the course of his daily work as a teacher,” there was therefore “no question of maintaining either discipline by immediate superiors or harmony among coworkers....” Id. at 569-70, 88 S.Ct. at 1735 (emphasis added). While Pickering would cause defendants to be aware that plaintiff retained her first amendment right to criticize publicly the general policies of her employer, they were obviously aware that the conduct in question was directed toward Woods, who was to be a vital cog in the bankruptcy court operation, and her conduct in circulating old newspaper articles critical of Woods threatened the harmonious and effective relations necessary to bring about the expeditious administration of business and justice in the bankruptcy court.
The problem here which I cannot escape, and the reason for my dissent in part, is that the motion to dismiss requires us to take as true conclusory allegations in the amended complaint that may be inconsistent with other factual predicates in the complaint and with the historical record of what actually happened in the bankruptcy court based on Guercio’s whistleblowing and responses of others who brought about the resignations of a bankruptcy judge, the clerk, and a deputy clerk. Guercio says in her complaint that she instituted charges about corruption over a twenty-month period, and no action whatever was taken to threaten her position as confidential secretary during all this time. It would seem that only after her later distribution of old newspaper accounts about Woods and the latter’s reaction was there any motivation or purpose to bring about her termination. She concedes that Judge Feikens gave approval for a thorough investigation a year before her discharge, knowing of her role as a whistleblower. Yet plaintiff asserts (paragraph 24) that “solely because of her participation in exposing corruption in the Bankruptcy Court and her distribution of the 1969 articles,” she was discharged (emphasis added).
If we were considering the issue based on a. motion for summary judgment, a balancing of the important public interests of preserving harmony and avoiding discord in a shattered court against an employee’s first amendment right to distribute stale information directed towards an important figure on that court might well result in a *1192 finding for defendants based on qualified immunity and on the Pickering balancing test. We cannot, however, properly take that step, despite my colleague’s persuasive analysis in the majority opinion, because we are dealing with a Rule 12(b)(6) motion. I recognize, of course, that a summary judgment motion would engender proof beyond the complaint and I make no prejudgment with respect to the ultimate ruling on a summary judgment motion based on qualified immunity.
Regretfully, I cannot agree with two propositions in the majority’s analysis:
(1) “a competent judge in the position of Judge Feikens could have reasonably questioned if the circulation of the dated news accounts constituted an expression of speech protected by the first amendment,” and
(2) defendants could reasonably have concluded that “Guercio was no longer speaking out on matters of public interest, but rather ... on matters primarily of personal concern.”
Connick v. Myers, 461 U.S. 138 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1982), gives us guidance in this latter regard, but the content and nature of Guercio’s expressions differ materially from those of Myers, who was found to be looking out to preserve her own personal interests rather than to engage in discussion of matters of public interest. Connick puts the matter in proper perspective:
The repeated emphasis in Pickering on the right of a public employee “as a citizen, in commenting upon matters of public concern,” was not accidental. This language, reiterated in all of Pickering’s progeny, reflects both the historical evolvement of the rights of public employees, and the common-sense realization that government officers could not function if every employment decision became a constitutional matter.
Connick v. Myers, 461 U.S. at 143 , 103 S.Ct. at 1688 (footnotes omitted).
I am in agreement with the majority analysis concerning the procedural posture and background of this controversy. I also concur in the conclusion concerning the remand to the district court with respect to the equitable claims made by Guercio.
I dissent on the reversal of the district court order on the damages aspect of plaintiff’s complaint.