Woodruff v. Mason

POSNER, Circuit Judge,

concurring.

In a series of cases in the 1960s, the Supreme Court held that the First Amendment, particularly the clauses creating a right to petition for redress of grievances and an (implied) right to associate for the advancement of First Amendment interests, forbids the government to impose unnecessary restrictions on an association’s assisting its members to litigate claims. NAACP v. Button, 371 U.S. 415 , 83 S.Ct. 328 , 9 L.Ed.2d 405 (1963); Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 , 84 S.Ct. 1113 , 12 L.Ed.2d 89 (1964); United Mine Workers, District 12 v. Illinois State Bar Association, 389 U.S. 217 , 88 S.Ct. 353 , 19 L.Ed.2d 426 (1967). From those cases, coupled with the rule that government retaliation for the exercise of First Amendment rights is itself a violation of the First Amendment, e.g., Wilkie v. Robbins, — U.S.-, 127 S.Ct. 2588, 2600-01 , 168 L.Ed.2d 389 (2007); Abrams v. Walker, 307 F.3d 650, 654 (7th Cir.2002), overruled on other grounds by Spiegla v. Hull, 371 F.3d 928 , 941-42 (7th Cir.2004); Suarez Corp. Industries v. McGraw, 202 F.3d 676, 685 (4th Cir.2000), it might appear to follow that if government officials retaliate against someone for bringing a lawsuit, as charged in this case, they have violated the First Amendment. And so the parties and the district judge have assumed. I have my doubts, although I do not criticize the majority opinion (which I join) for deciding the case on the basis of the assumption.

The Button case was “cause” litigation— the NAACP was using constitutional litigation as an alternative to legislative reform of discriminatory practices; it thus was petitioning for redress of grievances, rather than suing to enforce a private right. The other cases that I have cited involved challenges to state bar regulations that restricted access to the courts, as by preventing a union from providing a lawyer for a member of the union who might not be able to afford to hire one; and so they merge with cases like Bounds v. Smith, 430 U.S. 817 , 97 S.Ct. 1491 , 52 L.Ed.2d 72 (1977), that create a broad right, based on various constitutional provisions, of access to the courts.

This case is different. The defendants did nothing to obstruct Legacy Healthcare’s access to the Indiana courts to litigate its Medicaid reimbursement claims against the state. Of course, if a defendant puts up a fierce resistance to a lawsuit, it makes plaintiffs’ recourse to the courts less attractive. But a plaintiff has no more right to demand that the defendant roll over and play dead than the defendant has a right to demand this of the plaintiff. And I don’t think that anyone has ever thought that merely because a defendant goes overboard — by committing perjury, tampering with witnesses, even bribing judges or jurors — it has (if it is a government agency or official rather than a private person) violated the plaintiffs right of access to the courts, or his right to petition for redress of grievances. Why should it matter whether the defen *560 dant’s over-the-top opposition comes before or after the plaintiffs suit ends?

There are plenty of remedies for overreacting to litigation or the threat of litigation, remedies that make it unnecessary to drag in the heavy artillery of constitutional tort litigation under 42 U.S.C. § 1983 . There are for example the numerous federal statutes that forbid retaliation against a person who files a statutory claim. For example, Title VII of the Civil Rights Act of 1964 forbids “an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice” that violates the statute or “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under” the statute. 42 U.S.C. § 2000e-3(a). If the parties to this case are correct, it would seem to imply that such statutory provisions, and the case law they have accreted, are superfluous when the alleged retaliation is by a government official because such retaliation could be litigated directly under section 1983 as a violation of the Constitution.

In fact this route is closed off by Mid-dlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1 , 101 S.Ct. 2615 , 69 L.Ed.2d 435 (1981), which holds that “when the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.” Id. at 20, 101 S.Ct. 2615 . As we explained the background of the Sea Clammers doctrine in Delgado v. Stegall, 367 F.3d 668, 673 (7th Cir.2004) (citations omitted), “The plaintiffs in that case sought relief from pollution against state officials under federal statutes that provided comprehensive and fully adequate remedies. The Supreme Court had recently held, however, that section 1983, though typically used to enforce federal constitutional rights, reaches infringements of federal statutory rights as well. This ruling opened up the possibility that anyone who had a federal statutory remedy for a harm inflicted under color of state law could tack on a claim for relief under section 1983 as well.... [T]he Court held that section 1983 was not an available alternative because ‘it is hard to believe that Congress intended to preserve the § 1983 right of action when it created so many specific statutory remedies.’ The completeness of those remedies showed that Congress ‘intended to supplant any remedy that otherwise would be available under § 1983.’ ” See also Wright v. City of Roanoke Redevelopment & Housing Authority, 479 U.S. 418, 423-29 , 107 S.Ct. 766 , 93 L.Ed.2d 781 (1987); Blessing v. Freestone, 520 U.S. 329, 346-48 , 117 S.Ct. 1353 , 137 L.Ed.2d 569 (1997); Williams v. Wendler, 530 F.3d 584, 586 (7th Cir.2008); Williams ex rel. Hart v. Paint Valley Local School District, 400 F.3d 360, 363, n. 1 (6th Cir.2005).

The Sea Clammers doctrine is not applicable to this case because Legacy Healthcare’s suit — the suit that provoked the alleged retaliation — was not a federal suit. But the thinking behind the doctrine is. Legacy Healthcare accuses the defendant officials of conspiring to put it out of business by making false charges (for example of improper diversion of Medicaid funds), denying it licenses without cause, and discriminating in favor of its competitors. There are remedies under state law against such official misconduct. No reason is given for thinking that Legacy Healthcare needs to get into federal court under federal law — let alone the First Amendment — in order to protect itself. It is not as if the suit that called down the wrath of the defendants had been a federal suit, in which event there might be a concern that a state court would not be sym *561 pathetic to protecting the plaintiff against retaliation by state officials.

I am mindful of cases that hold that retaliation against a prisoner’s filing a grievance can violate the prisoner’s First Amendment rights, e.g., Hasan v. United, States Department of Labor, 400 F.3d 1001, 1005 (7th Cir.2005), and cases cited there; Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir.2004), but I think those cases read “petition the Government for redress of grievances” (the language of the First Amendment) too literally. Every grievance, charge, or complaint filed against a government agency seeks redress, but does this mean that the government cannot limit the right to sue itself without shouldering the heavy burden of justification that the First Amendment has been interpreted to place on anyone who seeks to deny an assertion of a First Amendment right? The answer cannot be yes. Such limitations are legion and rarely challenged. The Supreme Court said in Hudson v. Palmer, 468 U.S. 517, 523 , 104 S.Ct. 3194 , 82 L.Ed.2d 393 (1984), that “like others, prisoners have the constitutional right to petition the Government for redress of their grievances, which includes a reasonable right of access to the courts” (emphasis added). Legacy Healthcare had reasonable access to the courts to litigate its claim against the state for Medicaid reimbursement, and, as far as I can tell, it has reasonable access to the courts to litigate its opposition to the alleged harassment by the defendants. I conclude that there has been no infringement of its constitutional right of access to the courts to petition for redress of grievances and hence no basis for a suit premised on such an infringement.

And I add that the practical objections to the interpretation of constitutional tort law offered in this case are compelling. For on that interpretation every successfully litigated claim (and many failed claims as well) against a state or federal agency would set the stage for a federal constitutional suit, should the subsequent relations between the plaintiff and the agency sour, as they are quite likely to do in the wake of a successful suit against the agency. Defendants are not kindly disposed to plaintiffs, especially plaintiffs who beat them. But if they retaliate, at least in the manner charged in this case, they hand plaintiffs additional legal weapons, with various limitations that deeming the retaliation unconstitutional might destroy. There is no need to take that further step beyond Button, Trainmen, United Mine Workers, and Bounds .