Cyneth K. Dahm v. William F. Flynn, Jr., in Both His Individual and Official Capacities

EASTERBROOK, Circuit Judge,

dissenting in part.

Dahm said that employees were disgruntled because of delay in reclassifying jobs. Flynn, her superior, told Dahm to spend more time on reclassifications, which she found tedious compared with other tasks such as completing a personnel manual. Without deciding whether Dahm’s speech was protected by the first amendment under the standard of Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968), the district court held that the new allotment of tasks had not violated the Constitution. Reshuffling responsibilities within a bureaucracy is common. The district court concluded that it would not have discouraged a reasonable person from speaking — and it is undisputed that it did not discourage Dahm from speaking.

Like the district court, I find it hard to perceive a constitutional problem in assigning tasks to one employee rather than another, unless the first amendment appoints the federal judiciary as a civil service commission for the entire nation. Ombudsmen would be a better description, for most civil service laws do not regulate the allocation of work when the supervisor’s directives do not affect salary, position, station, or even perquisites. The Merit System Protection Board does not review matters of the kind Dahm seeks to litigate. 5 C.F.R. § 1201.3 (a). Can it be that the Constitution compels full-dress adjudication of claims too trivial for the attention of a specialized administrative adjudicator?

My colleagues agree with the district court in large measure and do not disagree with its ultimate conclusion. In particular, they do not hold that Dahm’s speech was protected by the first amendment or that Flynn’s reallocation of responsibilities was designed to (or did) punish that speech. They believe that more evidence, more hearings, more consideration are appropriate to get this exactly right. Maybe so, if fine tuning of the constitutional issue were essential. Some of our cases do say that even trivial annoyances may violate the first amendment. These decisions may bear reexamination, see Walsh v. Ward, 991 F.2d 1344 (7th Cir.1993); Wilbur v. Mahan, 3 F.3d 214 (7th Cir.1993) (concurring opinion), but they represent the law of the circuit. But to get this far — to say that the merits of the constitutional claim remain murky even after one decision by the district court and consideration on appeal — is to show that Flynn is entitled to immunity. The district judge believed that Flynn wins on the merits. A majority of this panel thinks that the matter is obscure. None of the four judges who has inquired into these events is willing to say that there is a constitutional problem. Why, then, should there be more litigation on damages?

Equivocation by the judges who have examined this situation is the best proof of legal uncertainty, and legal uncertainty confers immunity. Until the right in question has been “clearly established,” courts do not demand that public officials dig into their pockets. Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1982). Officials performing discretionary functions are immune from damages liability “as long as their actions could reasonably have been thought consistent with the rights *260 they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638 , 107 S.Ct. 3034, 3038 , 97 L.Ed.2d 523 (1987), citing Malley v. Briggs, 475 U.S. 335, 341 , 106 S.Ct. 1092, 1096 , 89 L.Ed.2d 271 (1986). See also Hunter v, Bryant, 502 U.S. 224 , 112 S.Ct. 534 , 116 L.Ed.2d 589 (1991); Rakovich v. Wade, 850 F.2d 1180, 1208-09 (7th Cir.1988) (en banc). The history of this litigation establishes that Flynn “could reasonably have ... thought [his acts] consistent with the rights they are alleged to have violated.”

One might say in response that Pickering itself “clearly established” the rights in question. But Pickering set up a balancing approach, and a call for “balancing” does not establish anything “clearly,” or at all. Judges applying Pickering inquire how far the speech touches on issues of public concern, and how disruptive the speech may have been in the workplace. There is no metric for either of these inquiries, let alone a scale for weighing the two incommensurable answers. Pickering thus establishes a east of mind, not a legal rule. An abstraction does not establish the unconstitutionality of a concrete act.

The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent.

Anderson, 483 U.S. at 640 , 107 S.Ct. at 3039 (citations omitted). How could anyone say that the unlawfulness of his deeds must have been apparent to Flynn, a non-lawyer, when with the benefit of hindsight and full reflection a federal district judge found that Flynn’s acts were not unlawful?

Bureaucrats and district judges are not the only persons who have found the Pickering balance elusive. Waters v. Churchill, — U.S. -, 114 S.Ct. 1878 , 128 L.Ed.2d 686 (1994), the Supreme Court’s latest encounter with Pickering , generated four opinions, none commanding a majority. Justice O’Connor, who wrote the lead opinion, conceded that Pickering had not yet gelled into a legal rule. “We must therefore reconcile ourselves to answering the question on a case-by-case basis, at least until some workable general rule emerges.” — U.S. at -, 114 S.Ct. at 1886 . All the Court has been able to do is to suggest criteria. Some of these criteria are pertinent to Flynn’s actions and strongly support them (id. -, 114 S.Ct. at 1887-88 ):

Agencies hire employees to help do those tasks as effectively and efficiently as possible. When someone who is paid a salary so that she will contribute to an agency’s effective operation begins to do or say things that detract from the agency’s effective operation, the government employer must have some power to restrain her. The reason [a] governor [may fire a deputy who speaks out in public] is not that this dismissal would somehow be narrowly tailored to a compelling government interest. It is that the governor and the governor’s staff have a job to do, and the governor justifiably feels that a quieter subordinate would allow them to do this job more effectively.

The key to First Amendment analysis of government employment decisions, then, is this: The government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer. The government cannot restrict the speech of the public at large just in the name of efficiency. But where the government is employing someone for the very purpose of effectively achieving its goals, such restrictions may well be appropriate.

Flynn’s bureau had a job to do. He believed that its tasks could best be done if Dahm spent less time talking and more time on reclassification requests. Perhaps he was wrong, but no one could say that he violated a “clearly established” rule.

We have long recognized that damages are inappropriate in Pickering cases. Our court made the essential point in Benson v. All *261 phin, 786 F.2d 268 , 276 & n. 17 (7th Cir.1986) (citations and footnotes omitted):

[T]here is one type of constitutional rule, namely that involving the balancing of competing interests, for which the standard may be clearly established, but its application is so fact dependent that the “law” can rarely be considered “clearly established.” In determining due-process requirements for discharging a government employee, for example, the courts must carefully balance the competing interests of the employee and the employer in each case. Thus, the Supreme Court has consistently stated that one can only proceed on a case-by-ease basis and that no all-encompassing procedure may be set forth to cover all situations.... It would appear that, whenever a balancing of interests is required, the facts of the existing easelaw must closely correspond to the contested action before the defendant official is subject to liability under Harlow . With Harlow’s elimination of the inquiry into the actual motivations of the official, see 457 U.S. at 815-19 [ 102 S.Ct. at 2736-39 ], qualified immunity typically casts a wide net to protect government officials from damage liability whenever balancing is required.

n.17 Government officials must be granted the ability to pass unmolested through bogs of murky legal precedent. They must not become prey to every hypothesis of what the law might have come to forbid had it eventually developed along certain lines. When the law is clear, and an official’s duties delineated, then he will not be able to rely on the immunity defense. But we must not and do not demand that every government official become skilled in guessing the future path of the law.

A chain of cases since then has emphasized that Pickering claims, because of the balancing involved, are singularly inappropriate for awards of damages. E.g., Rakovich, 850 F.2d at 1213 ; Feldman v. Bohn, 12 F.3d 730, 733 (7th Cir.1993); Walsh, 991 F.2d at 1346 ; Elliott v. Thomas, 937 F.2d 338, 343 (7th Cir.1991); Greenberg v. Kmetko, 922 F.2d 382, 384-85 (7th Cir.1991). See also Zook v. Brown, 748 F.2d 1161 (7th Cir.1984). The principle behind these decisions is equally applicable today.

It can’t create a constitutional problem, let alone violate a “clearly established” right, for a supervisor to reshuffle tasks after an employee has talked about organization and management; every employee in a bureaucracy does this incessantly. Supervisors find it safe to do nothing, to let the subordinates have their way rather than invest the time (and take the risk) necessary to improve matters. That is why “bureaucracy” has become a term of opprobrium. Threatening personal liability for action in the shadow of legal uncertainty — for guessing wrong about a subject that perplexes federal judges — can only make things worse.

Official immunity includes entitlement to avoid the travail of litigation. Mitchell v. Forsyth, 472 U.S. 511 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985). Flynn defends his judgment on the basis of immunity, as he is entitled to do. Massachusetts Mutual Life Insurance Co. v. Ludwig, 426 U.S. 479 , 96 S.Ct. 2158 , 48 L.Ed.2d 784 (1976); Jordan v. Duff & Phelps, Inc., 815 F.2d 429, 439 (7th Cir.1987). The question has been fully briefed. The Supreme Court “repeatedly [has] stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter, 502 U.S. at 227 , 112 S.Ct. at 536 . My colleagues do not heed this instruction, remanding for supererogatory proceedings when a decision can be made now. Discovery is over, and we are long past the time when a decision on immunity should be taken. Why put litigants, counsel, and judge through an exercise that can have only one outcome?