Petition for Writ of Certiorari — Gerald Sensabaugh, Petitioner v. Kimberly Halliburton, et al.

NO. 19-____

In the

Supreme Court of the United States

GERALD SENSABAUGH,

Petitioner,

–v–

KIMBER HALLIBURTON,

INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS

DIRECTOR OF SCHOOLS; AND THE

WASHINGTON COUNTY BOARD OF EDUCATION,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

ALAN L. CATES

COUNSEL OF RECORD

HUSCH BLACKWELL LLP

736 GEORGIA AVENUE, STE. 300

CHATTANOOGA, TN 37402

(423) 797-5937

ALAN.CATES@HUSCHBLACKWELL.COM

M.E. BUCK DOUGHERTY III

DUNCAN, HATCHER,

HOLLAND & FLEENOR P.C.

1418 MCCALLIE AVENUE,

CHATTANOOGA, TN 37404

(423) 266-2207

BDOUGHERTY@DUCNANHATCHER.COM

COUNSEL FOR PETITIONER

NOVEMBER 25, 2019

SUPREME COURT PRESS

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTIONS PRESENTED

Petitioner is a retired NFL football player. After

his retirement as a player, he became the head

football coach at a public high school in Tennessee.

In his first season as coach, the team had one of the

most successful starts in school history. Around midseason, petitioner made two Facebook posts criticizing

certain school district policies. A short time after

petitioner’s social media posts, the district school

director imposed a series of disciplinary measures upon

him and eventually terminated petitioner as coach.

Although the courts below held that petitioner’s

Facebook posts were protected speech, a Sixth Circuit

panel affirmed the dismissal of petitioner’s First

Amendment retaliation claim on qualified immunity

grounds.

THE QUESTIONS PRESENTED ARE:

1. Whether the Court should reconsider its

qualified immunity jurisprudence to accord with the

official’s burden of establishing immunity entitlement

at common law in 1871.

2. Whether placing a guidance letter in a public

employee’s personnel file would chill further protected

speech.

ii

LIST OF PROCEEDINGS

United States Court of Appeals for the Sixth Circuit

No. 18-6329

Gerald Sensabaugh, Plaintiff-Appellant v.

Kimber Halliburton, Individually and in Her Official

Capacity as Director of Schools; Washington County

Board of Education, Defendants-Appellees.

Date: August 27, 2019

____________________

United States District Court,

Eastern District of Tennessee

No. 2:18-CV-11

Gerald Sensabaugh,Plaintiff v.

Kimber Halliburton, Individually and in Her Official

Capacity as Director of Schools; Washington County

Board of Education, Defendants.

Date: November 19, 2018

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

LIST OF PROCEEDINGS .......................................... ii

TABLE OF AUTHORITIES ..................................... vii

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .................................. 2

STATEMENT OF THE CASE .................................... 3

A. Legal background ............................................. 6

B. Factual Background and Proceedings below ... 9

REASONS FOR GRANTING THE PETITION ....... 14

I.

THE COURT SHOULD RECONSIDER ITS QUALIFIED IMMUNITY JURISPRUDENCE TO ACCORD

WITH THE COMMON LAW IN 1871 ..................... 15

A. Current Immunity Doctrine Is Incompatible with the Traditional Allocation

of Burdens ................................................. 15

B. Immunity Entitlement Historically Was

Limited to Select Officials Based Upon

the Specific Function Performed .............. 17

C. This Is a Suitable Vehicle to Reconsider

Qualified Immunity ................................... 18

iv

TABLE OF CONTENTS – Continued

Page

II. A GUIDANCE LETTER IN PERSONNEL FILE

CHILLS FURTHER PROTECTED SPEECH ............ 19

A. The Ordinary-Firmness Test.................... 19

B. This Is an Issue of First Impression ........ 20

CONCLUSION.......................................................... 21

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Opinion of the United States Court of Appeals for

the Sixth Circuit (August 27, 2019) ................... 1a

Judgment of the United States Court of Appeals

for the Sixth Circuit (August 27, 2019) ........... 16a

Memorandum Opinion of the United States District

Court for the District of Tennessee

(November 19, 2018) ........................................ 18a

Judgment of the United States District Court

for the District of Tennessee

(November 19, 2018) ........................................ 38a

v

TABLE OF CONTENTS – Continued

Page

COMMUNICATIONS BETWEEN

SCHOOL SYSTEM AND COACH SENSABAUGH

Text Messages Between Coach Sensabaugh and

Director Halliburton (September 22, 2017)..... 40a

Text Messages Between Coach Sensabaugh and

Principal Wright (September 22, 2017) ........... 41a

Text Messages Between Coach Sensabaugh and

Mayor Eldridge (September 22, 2017) ............. 43a

Text Messages Between Coach Sensabaugh and

Director Halliburton (September 24, 2017)..... 45a

Text Messages from Becky Campbell of Local

Media to Coach Sensabaugh

(September 25, 2017)........................................ 46a

Letter of Guidance from Peggy Wright to

Coach Sensabaugh (October 5, 2017) .............. 47a

SCHOOL SYSTEM DOCUMENTS

Seperation Practices for

Non Certified Employees ................................. 52a

Engagement Letter of Ensley Baker Shade

(October 9, 2017) .............................................. 54a

Comptroller’s Investigative Report

(May 21, 2018) .................................................. 57a

vi

TABLE OF CONTENTS – Continued

Page

SOCIAL MEDIA POSTS

Social Media Posts:

Josh Kite and Kimber Halliburton

(January 2017-April 2017) ............................... 63a

Social Media Posts: Kimber Halliburton,

Principal Combs, Peggy Wright, and

Jonesboro Elementary (September 22, 2017) .. 68a

Sensabaugh Facebook Post

(September 22, 2017)........................................ 86a

Sensabaugh Facebook Post

(September 24, 2017)........................................ 90a

vii

TABLE OF AUTHORITIES

TABLE OF AUTHORITIES

CASES

Page

Anderson v. Creighton,

483 U.S. 635 (1987) ............................................. 8

Bart v. Telford,

677 F.2d 622 (7th Cir. 1982)................................ 19

Crawford v. Washington,

541 U.S. 36 (2004) ............................................. 15

Ctr. for Bio–Ethical Reform, Inc. v. City of

Springboro, 477 F.3d 807 (6th Cir. 2007) .......... 20

Fritz v. Charter Twp.,

592 F.3d 718 (6th Cir. 2010)................................ 20

Garcia v. City of Trenton,

348 F.3d 726 (8th Cir. 2003) ............................. 19

Gomez v. Toledo,

446 U.S. 635 (1980) ............................... 15, 16, 17

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ......................................... 7, 8

Imbler v. Pachtman,

424 U.S. 409 (1976) ............................................. 6

Malley v. Briggs,

475 U.S. 335 (1986) ......................................... 6, 9

Mitchell v. Forsyth,

472 U.S. 511 (1985) ............................................. 8

Monell v. Department of Social Services,

436 U.S. 658 (1978) ........................................... 13

Payne v. Tennessee,

501 U.S. 808 (1991) ............................................ 15

viii

TABLE OF AUTHORITIES—Continued

Page

Pearson v. Callahan,

129 S.Ct. 808 (2009) ........................................... 15

Pierson v. Ray,

386 U.S. 547 (1967) ....................................... 7, 19

Saucier v. Katz,

533 U.S. 194 (2001) ............................................. 8

Scheuer v. Rhodes,

416 U.S. 232 (1974) ............................................. 7

Thaddeus-X v. Blatter,

175 F.3d 378 (6th Cir. 1999) ....................... 19, 20

Wyatt v. Cole,

504 U.S. 158 (1992) ............................................. 8

Ziglar v. Abbasi,

137 S.Ct. 1843 (2017) ............................. 15, 17, 18

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I .......................................... passim

U.S. Const. amend. XIV, § 1 ....................................... 2

STATUTES

28 U.S.C. § 1254(1) ..................................................... 1

42 U.S.C. § 1983 ................................................. passim

Ku Klux Klan Act of 1871........................................... 6

Tenn. Code Ann. §49-2-301(b)(1)(FF)........................ 13

ix

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

Hon. Amy St. Eve & Michael A. Zuckerman,

The Forgotten Pleading,

7 FED. COURTS. L. REV. 153 (2013) .................... 16

William Baude,

Is Qualified Immunity Unlawful ?,

106 CAL. L. REV. (2018) ................................... 6, 7

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Gerald Sensabaugh respectfully petitions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Sixth

Circuit in this case.

OPINIONS BELOW

The Sixth Circuit panel opinion (App.1a) is

reported at 937 F. 3d 621 (6th Cir. 2019). The Eastern

District of Tennessee memorandum opinion (App.18a)

is unreported but available at 2018 WL 6050587.

JURISDICTION

The judgment of the Sixth Circuit court of appeals

was entered on August 27, 2019. This Court’s jurisdiction rests on 28 U.S.C. § 1254(1).

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. amend. I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of

the press; or the right of the people peaceably to

assemble, and to petition the Government for a

redress of grievances.

U.S. Const. amend. XIV, § 1

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the state

wherein they reside. No state shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty,

or property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects,

or causes to be subjected, any citizen of the United

States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges,

or immunities secured by the Constitution and

laws, shall be liable to the party injured in an

3

action at law, suit in equity, or other proper proceeding for redress, except that in any action

brought against a judicial officer for an act or

omission taken in such officer‘s judicial capacity,

injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory relief

was unavailable. For the purposes of this section,

any Act of Congress applicable exclusively to the

District of Columbia shall be considered to be a

statute of the District of Columbia.

STATEMENT OF THE CASE

This case is an attractive vehicle for the Court to

reconsider its qualified immunity jurisprudence. On

a fundamental level, the Court’s current qualified

immunity doctrine does not comport with historical

immunity principles at common law in 1871, when

the current version of 42 U.S.C. § 1983 was enacted.

This civil rights statute is commonly referred to as

“Section 1983” and was enacted by Congress to provide a legal vehicle for citizens to vindicate their constitutional rights against public officials.

At its core, present-day qualified immunity fails

to hold a public official to the same evidentiary burden

as the common law in 1871, when an official claims

immunity as an affirmative defense to Section 1983

lawsuits. Indeed, controlling qualified immunity law

requires the plaintiff to carry both the burden of

proving the elements of a “constitutional tort violation”

as is traditionally required of a plaintiff and that the

defendant official violated “clearly established law.”

4

This hybrid legal framework of modern qualified immunity is contrary to the traditional burden allocation

assigned solely upon a defendant asserting an affirmative defense.

Additionally, the Court’s qualified immunity precedents accord broad immunity entitlement indiscriminately to virtually any “official” regardless of

the discretionary function performed. This departure

from the underpinning of common law immunity

analysis has created a “freewheeling” approach where

virtually any “public official” or “state actor” is shielded

from suit by the armor of qualified immunity, without

conducting a proper analysis into the historical discretionary function performed by the defendant official.

As a result, immunity entitlement continues to

grow unbridled and acts as a steel barrier protecting

virtually every public official sued in their individual

capacity. This modern immunity shield stands in stark

contrast to the very purpose for which Congress enacted

Section 1983 and the appropriate application of common

law principles. This de jure immunity shield that

protects individual officials further extends to the

official’s employer by creating a de facto shield for

government employers. That is because quite often the

public employee fails to “establish” a constitutional

tort violation because of an inability to scale the current

qualified immunity mountaintop. Consequently, a court

never reaches the merits of a public employee’s

municipal liability claim because the official is cloaked

with qualified immunity.

This creates perverse incentives for example by

incentivizing government employers to develop policies

that place sole authority upon official employees on

5

important discretionary matters such as disciplining

and terminating public employees because the official

is insulated with qualified immunity. This leads to

less oversight by the government employer which of

course leads to a likely increase in constitutional

deprivations of public employees when there are no

further due process protections required by state law.

An official’s qualified immunity defense impacts every

Section 1983 lawsuit, and that issue was decided below

with the lower courts applying the Court’s current

qualified immunity analysis and according qualified

immunity to the official sued individually.

This case involves a Section 1983 lawsuit for monetary damages by an at-will public employee against

the district school director and board of education for

First Amendment retaliation. The lower courts both

agreed that petitioner engaged in protected speech

under the First Amendment by making two social

media posts criticizing certain school district policies.

However, the courts determined that two of three

successive disciplinary measures imposed upon the

petitioner shortly after he engaged in protected speech

((1) guidance letter in personnel file and (2) suspension

pending independent attorney investigation), were not

adverse actions sufficient to chill a person of ordinary

firmness from engaging in further protected speech.

The third disciplinary measure eventually imposed

upon petitioner was termination from employment.

While the courts below held termination an adverse

action sufficient to chill a person of ordinary firmness

from further protected speech, they ruled that petitioner

failed to establish causation as a result of the termination, although petitioner provided evidentiary support

6

that the disciplinary measures were pretextual in

retaliation for his protected speech. Consequently, the

lower courts held that petitioner failed to establish

an underlying constitutional violation by the director

of schools shielded from suit by qualified immunity,

and thus petitioner’s municipal claim against the

board also failed.

The Court should grant review to reconsider its

qualified immunity jurisprudence and conclude that

its current framework does not accord with traditional

immunity doctrine at common law in 1871. Moreover,

the Court should grant review on an issue of first

impression and conclude that placing a guidance letter

in a public employee’s personnel file, the first disciplinary measure imposed upon petitioner, would chill

further protected speech. The Court should then vacate

the lower court judgments and remand to the district

court for petitioner’s case to proceed to trial.

A.

Legal background

1. The Reconstruction Congress first enacted

Section 1983 as part of the 1871 Ku Klux Klan Act, a

suite of “Enforcement Acts” designed to help combat

lawlessness and civil rights violations in the southern

states. William Baude, Is Qualified Immunity Unlawful ?, 106 CAL. L. REV., pg. 45, 49 (2018). As the Court

has recognized, neither the original text enacted in

1871 nor the current version of Section 1983 mentions

the word “immunity.” Imbler v. Pachtman, 424 U.S.

409, 417 (1976); Malley v. Briggs, 475 U.S. 335, 342

(1986). Nor is there any reference in either version of

the statute that accords immunity entitlement to a

governmental official as an affirmative defense to

Section 1983 lawsuits. Baude, supra at pg. 50.

7

Although this Court has acknowledged that official

immunity is not expressly stated in the text of Section

1983, it took the leap into its current qualified immunity

doctrine nearly a century after Section 1983 was first

enacted with its decision in Pierson v. Ray, 386

U.S. 547 (1967). The Pierson Court held that Section

1983 should be read against the backdrop of common

law defenses when government officials are sued, and

therefore “good faith” was an available defense accorded

a defendant public official. Id at 556-557; Baude,

supra at pg. 53. The Pierson decision laid the foundation and “pioneered the key intellectual move” forward

to the Court’s current qualified immunity framework.

Baude, id at pg. 52.

2. Less than a decade later, the Court quickly

expanded Pierson’s “good faith” defense to broadly

cover executive official action. Scheuer v. Rhodes, 416

U.S. 232, 247 (1974) (“[S]ince the options which a chief

executive and his principal subordinates must consider

are far broader and far more subtle than those made

by officials with less responsibility, the range of discretion must be comparably broad.”)

3. The march forward to qualified immunity

soldiered on, and the Court set forth the standard of

“objective reasonableness of an official’s conduct, as

measured by reference to clearly established law.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In

Harlow, the Court altered the standard of qualified

immunity adopted in prior Section 1983 cases. Harlow

expressly shielded government officials performing discretionary functions from “liability for civil damages

insofar as their conduct [did] not violate clearly

established statutory or constitutional rights of which

8

a reasonable person would have known.” Id. The Court

reasoned that this wholly objective standard would

“avoid excessive disruption of government and permit

the resolution of many insubstantial claims on summary judgment.” Id.

4. The Court has further recognized and acknowledged that its decision in Harlow “completely reformulated qualified immunity along principles not at all

embodied in the common law” Anderson v. Creighton,

483 U.S. 635, 645 (1987), which was reinforced by

the Court’s decision in Mitchell v. Forsyth, 472 U.S.

511 (1985). Mitchell held that Harlow established an

“immunity from suit rather than a mere defense to

liability,” which, like an absolute immunity, “is effectively lost if a case is erroneously permitted to go to

trial.” Id. at 526 (emphasis supplied). Thus, the Court

held in Mitchell that the denial of qualified immunity

should be immediately appealable by a governmental

official. Id. at 530.

5. This “immunity from suit” standard stated in

Mitchell was clarified and further expanded with an

emphasis on making an early assessment and determination in the litigation stage because qualified

immunity shields an officer from standing trial and

from facing the burdens associated with litigation.

Saucier v. Katz, 533 U.S. 194, 200 (2001) (quoting

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

6. Although the Court’s qualified immunity doctrine has evolved from the time Congress enacted

Section 1983, the Court has remained steadfast that

“[o]ur immunity doctrine is rooted in historical analogy,

based on the existence of common-law rules in 1871,

rather than in “freewheeling policy choice[s].” Wyatt v.

9

Cole, 504 U.S. 158, 170 (1992) (Kennedy, J. concurring)

(quoting Malley v. Briggs, 475 U.S. 335, 342 (1986).

B.

Factual Background and Proceedings below

1. Petitioner became the head football coach at a

public high school in January of 2017. As a former

NFL football player, the school district welcomed him

with an usual display of public support. Upon petitioner’s hiring as coach, this public support included

the school district prominently erecting a billboard in

the county with petitioner’s photograph in his NFL

uniform (App.63a). From January of 2017 through April

of 2017 after petitioner’s initial hiring, the district

school director and athletic director also regularly

posted on their social media accounts photographs of

petitioner interacting with students within the district.

(App.64a-67a).

2. In August of 2017 near the beginning of petitioner’s first season as coach, the athletic director

advised petitioner that funds were missing from the

school’s football financial account that petitioner and

the team helped raise in a fundraiser that was to

benefit the school’s football program. (R.41-1 Page ID

#1190).

3. Petitioner was very upset that funds were

missing because he and his team had worked so hard

raising money for the football program. Petitioner

had also contributed his own money in an effort to help

the school with its football program. (R.41-1 Page ID

#1190).

4. Around the time of the missing football program

funds, the district school director invited petitioner

to have lunch with her at a local country club on or

10

around September 5, 2017. The district school director

advised petitioner that there were two female members

on the board that did not like her and wanted her to

be fired as the director of schools. The district school

director asked petitioner to help her to have these

female members removed from the board. (R.41-1 Page

ID #1192).

5. Petitioner did not agree to assist the district

school director in removing these board members and

lost trust in the director as a result of her request.

(R.41-1 Page ID #1192).

6. Petitioner later learned that a few months prior

to this luncheon in May of 2017, the two female board

members had given the director poor evaluations in

the director’s first performance evaluation. (R.41-1

Page ID ##1192-1193)

7. A few days after his luncheon with the director,

petitioner visited an elementary school within the

school district. He was shocked at the poor condition

of the school, particularly the open-floor architectural

design concept of the classrooms that were devoid of

permanent walls. In petitioner’s opinion, this created

a poor learning environment for the students. At the

elementary school, petitioner was given permission

to take photographs of the classrooms and his visit

with the students. (R.41-1 Page ID #1194).

8. After leaving the elementary school from his

visit, petitioner posted on his Facebook page on September 22, 2017, that there were problems within the school

district and described the poor school conditions.

(App.86a-89a).

11

9. The director of schools, principal of the elementary school petitioner visited, petitioner’s high school

principal, and official elementary school page all posted

photographs on the same day on September 22, 2017,

on their various social media accounts containing photographs of students within the school district. (App.68a85a)

10. That day on September 22, 2017 after making

his first Facebook post, the district director and school

principal engaged in a text communication exchange

with petitioner acknowledging they knew petitioner

was trying “to help” but he did not know all of the

“facts.” (App.40a-42a).

11. Two days later on September 24, 2017, petitioner posted his second Facebook post about how he

thought the district’s policy of allowing prisoners to

work on campus during school hours was not a good

idea. (App.90a-92a).

12. Immediately after this second Facebook post

on September 24, 2017, the director of schools initiated

a text message exchange with petitioner and admonished him from posting before “knowing all the facts.”

(App.43a). The same day, the director of schools and

school principal called petitioner on the telephone and

told him they “could make it where [petitioner] would

never coach football again anywhere.” The county

mayor also engaged in a text exchange with petitioner.

(App.44a-46a).

13. Eleven days later on October 5, 2017, the

school principal issued a guidance letter to petitioner

to be placed permanently in his personnel file. (App.47a51a).

12

14. Four days after that on October 9, 2017, the

school principal issued a suspension letter to petitioner

and notified him of an independent attorney investigation. Petitioner’s last game as coach was on October

6, 2017, the day after the guidance letter was placed

in his personnel file. (R.41-1 Page ID #1200).

15. In November of 2017, petitioner gave his story

to the attorney investigator in an interview and denied

all of the allegations against him which was memorialized in a transcript. (R.41-1 Page ID ##1297-1440).

16. Petitioner filed his First Amendment retaliation lawsuit in January of 2018. There was no discovery

in accordance with the pending dispositive motions

and qualified immunity’s strictures on exposing officials

to the rigors of litigation. (R.39 Page ID #1158).

17. Petitioner’s counsel later in a separate Tennessee open records lawsuit seeking documents into

the independent attorney’s investigation of petitioner,

discovered the attorney was engaged and retained to

represent the district school director and the board

on October 9, 2017, regarding allegations of the petitioner outlined in the guidance letter.1 (App.54a-56a).

18. On February 9, 2018, the attorney issued his

investigative report recommending termination of the

petitioner. (App.7a-8a).

1 The case was captioned M. E. Buck Dougherty III v. Washington

County Board of Education, Case No. 37519, Washington County,

Tennessee Circuit Court. Additional documents involving the

investigation of petitioner were discovered during this open records

lawsuit that are not part of the record on appeal.

13

19. On March 15, 2018, the district school director

terminated petitioner from his employment as coach.

(App.8a).

20. Under board policy 5.2031, an at-will employee serves at the will of the district school director,

and the director has sole authority and discretion to

direct and control the at-will employee. This also

includes the director’s sole authority to terminate atwill employees. This policy developed by the board

giving the district school director autonomous power

and control over the petitioner, is derived from Tenn.

Code Ann. §49-2-301(b)(1)(FF), which provides that a

local board of education shall develop a policy for

dismissing at-will employees. (App.52a-53a).

21. In May of 2018 after petitioner’s termination,

the Tennessee Comptroller of the Treasury issued an

investigative report to the district school director

and board, with copies to the Governor, State Attorney

General, local District Attorney General, and certain

state legislators, with findings of the football fundraiser

cash shortage petitioner had initially complained about

and various deficiencies within the school’s baseball

concession operations. (App.57a).

22. A few days after the Comptroller’s investigative report was issued, the district school director

resigned from her position as director of schools for

the county school system. (R.41-1 Page ID #1201)

23. The Sixth Circuit affirmed summary judgment

on qualified immunity grounds for the district school

director and affirmed the board’s motion to dismiss

on petitioner’s Monell claim.

14

24. After his suspension and termination, petitioner applied for the open head football coaching

position at his high school alma mater where he was

a successful student-athlete. Although petitioner had

previously served as an assistant coach at his alma

mater, he did not receive any response from the school

regarding his application for head football coach.

(R.41-1 Page ID #1201).

REASONS FOR GRANTING THE PETITION

Members of the Court have recently expressed the

need to reconsider its qualified immunity jurisprudence

in order to further align with immunity principles at

common law in 1871. The Court continues to maintain

that the common law in 1871 should always be read as

the backdrop to the express text of Section 1983, in

accordance with the Court’s Pierson decision in 1967.

Given the Court’s express desire to reconsider its

qualified immunity doctrine and the importance and

frequency of Section 1983 lawsuits and the qualified

immunity defense, review is warranted.

First Amendment free speech is one of the most

important rights citizens maintain under the Constitution. The issue of whether placing a guidance letter

in a public employee’s personnel file would chill protected speech under the ordinary firmness test is an

issue of first impression that the Court has not previously addressed. Given the high priority of First

Amendment issues, this issue is of such national

importance that review on its own is warranted.

15

I.

THE COURT SHOULD RECONSIDER ITS QUALIFIED

IMMUNITY JURISPRUDENCE TO ACCORD WITH THE

COMMON LAW IN 1871.

As Justice Thomas recently observed in providing

a history of the Court’s qualified immunity jurisprudence and its continued drift from the moorings of

common law principles in 1871, “[u]ntil we shift the

focus of our inquiry to whether immunity existed at

common law, we will continue to substitute our own

policy preferences for the mandates of Congress. In an

appropriate case, we should reconsider our qualified

immunity jurisprudence.” Ziglar v. Abbasi, 137 S.Ct.

1843, 1872 (2017) (Thomas, J., concurring in part

and concurring in the judgment).

In making the sober determination as to whether

to reconsider its prior jurisprudence and body of law,

the Court has traditionally held when a decision has

“been questioned by Members of the Court in later

decisions and [has] defied consistent application by the

lower courts,” these factors weigh in favor of reconsideration. Pearson v. Callahan, 129 S.Ct. 808, 818 (2009)

(quoting Payne v. Tennessee, 501 U.S. 808, 829-830

(1991)); see also Crawford v. Washington, 541 U.S. 36,

60, (2004).

A. Current Immunity Doctrine Is Incompatible

with the Traditional Allocation of Burdens.

1. Since the Court first laid the foundation that

qualified immunity is an affirmative defense in Gomez

v. Toledo, 446 U.S. 635 (1980), it is imperative that

the Court further scrutinize the inherent elements that

comprise the various categories of available defenses.

There are three primary categories of defenses in

16

federal civil proceedings: (1) Rule 12 (b) defenses; (2)

affirmative defenses; and (3) negative defenses. Hon.

Amy St. Eve & Michael A. Zuckerman, The Forgotten

Pleading, 7 Fed. Courts. L. Rev. 153, 158 (2013)

A negative defense is an attack on the plaintiff’s

prima facie case. The burden of proof remains on the

plaintiff to establish the elements of his case. St. Eve

and Zuckerman, id. at 160.

Unlike a negative defense, an affirmative defense

does not attack plaintiff’s prima facie case in chief

but rather seeks to avoid liability with new allegations

outside of plaintiff’s case that negate liability from

suit. An affirmative defense operates much like a

claim for relief and the defendant bears the burden

of proving an affirmative defense when asserted. The

modern concept of the affirmative defense is derived

from the common law plea of confession and avoidance. St. Eve and Zuckerman, id. at 161.

2. Gomez addressed and focused on the burden at

the pleading stage where a defendant is required to

plead qualified immunity as an affirmative defense.

However, in an obscure one sentence comment by

then Associate Justice William Rehnquist prior to his

ascension as Chief Justice, he joined the Court’s Gomez

opinion, “reading it as he does to leave open the issue

of the burden of persuasion, as opposed to the burden

of pleading,” Gomez, 446 U.S. at 642.

Although Gomez addressed the burden of pleading, the Court’s subsequent immunity jurisprudence has

branded qualified immunity as an affirmative defense,

although it does not contain the common law elements

inherent in affirmative defenses regarding the burden

of persuasion. It operates nothing like the common

17

law plea of confession and avoidance from which we

derive the modern-day affirmative defense. Current

qualified immunity, although labeled an affirmative

defense, does not allocate the burden of persuasion on

the defendant official as affirmative defenses traditionally require. In other words, qualified immunity is an

affirmative defense in name only.

The current misallocation of burdens in analyzing qualified immunity is the precise reason the

Court should reconsider its immunity jurisprudence to

properly realign the burden on the defendant official

when immunity is raised as an affirmative defense.

Gomez left open the burden of persuasion issue as

applied to qualified immunity. The mechanics of a

plaintiff’s Section 1983 case in chief combined with a

defendant official’s immunity defense as currently

practiced, are not in accordance with the historical

burden allocation of the common law. Accordingly, the

Court’s Gomez decision regarding the burden of persuasion was left open. However, as currently applied, it is

incompatible with the common law burden allocation

traditionally placed upon a defendant when asserting

an affirmative defense.

B. Immunity Entitlement Historically Was

Limited to Select Officials Based Upon the

Specific Function Performed.

1. As Justice Thomas noted in his concurring

opinion in Ziglar v. Abbasi, [i]nstead of asking whether

the common law in 1871 would have accorded immunity

to an officer for a tort analogous to the plaintiff’s

claim under [Section] 1983, [the Court] instead grant[s]

immunity to any officer whose conduct does not violate

clearly established statutory or constitutional rights

18

of which a reasonable person would have known.

Ziglar, 137 S.Ct. at 1871 (2017) (Thomas, J., concurring

in part and concurring in the judgment) (internal

quotations and citations omitted). Justice Thomas

further added that immunity is applied across the board

without further analysis into “the precise nature of

the various officials’ duties or the precise character of

the particular rights alleged to have been violated.”

Ziglar, 137 S.Ct. at 1871 (2017) (Thomas, J., concurring

in part and concurring in the judgment) (internal citations omitted).

2. In reconsidering its qualified immunity jurisprudence in order to assess the burden allocation on

the defendant official, the Court should further undertake to restore the burden on the defendant official to

demonstrate the official claiming immunity enjoyed

such entitlement at common law in 1871 in an analogous circumstance. Which would include the defendant

official proving the specific function performed in an

analogous circumstance at common law. See Ziglar, 137

S.Ct. at 1871 (2017) (Thomas, J., concurring in part and

concurring in the judgment) (internal quotations and

citations omitted).

C. This Is a Suitable Vehicle to Reconsider Qualified Immunity.

The Court has an opportunity to reconsider its

qualified immunity jurisprudence to properly align

with the common law in 1871. In so doing, it would

be keeping within the Court’s tradition of looking to

the common law in 1871 when analyzing Section 1983

lawsuits and qualified immunity defenses. This is

precisely the analysis the Court first conducted in

19

Pierson when setting the foundation for its current

qualified immunity jurisprudence.

II.

A GUIDANCE LETTER IN PERSONNEL FILE CHILLS

FURTHER PROTECTED SPEECH.

On an issue of first impression, the Court has

never addressed whether placing a guidance letter in

a public employee’s personnel file is sufficient to chill

further protected speech.

A. The Ordinary-Firmness Test.

1. The Eighth Circuit has noted that the ordinaryfirmness test is well established in case law, and is

designed to weed out trivial matters from those

deserving the time of the courts as real and substantial violations of the First Amendment. Garcia v.

City of Trenton, 348 F.3d 726, 728 (8th Cir. 2003).

The ordinary-firmness test is an “objective one, not

subjective.” Garcia, 348 F.3d at 729.

2. The Sixth Circuit has also adopted the ordinaryfirmness test under a First Amendment retaliation

claim. The Sixth Circuit adopted this standard suggested by Judge Posner in Bart v. Telford, 677 F.2d 622,

625 (7th Cir. 1982). An adverse action is one that would

“deter a person of ordinary firmness from the exercise

of the right at stake.” Thaddeus-X v. Blatter, 175 F.3d

378, 393 (6th Cir. 1999) (en banc)).

3. As Judge Posner indicated, “‘since there is no

justification for harassing people for exercising their

constitutional rights [the effect on freedom of speech]

need not be great in order to be actionable.’” Id. at 397

(quoting Bart, 677 F.2d at 625). The plaintiff “need not

show he was actually deterred from exercising his right

20

to free speech.” Ctr. for Bio–Ethical Reform, Inc. v.

City of Springboro, 477 F.3d 807, 822 (6th Cir. 2007).

“[A] credible threat to the nature and existence of

one’s ongoing employment is of a similar character to

the other recognized forms of adverse action—termination, refusal to hire, etc.” Fritz v. Charter Twp., 592

F.3d 718, 724, 728 (6th Cir. 2010). “A chilling effect

sufficient under this prong is not born of de minimis

threats or inconsequential actions, but neither does the

requisite showing permit solely egregious retaliatory

acts to proceed past summary judgment.” Ctr. for BioEthical Reform, 477 F.3d at 822. In the First Amendment context, the 6th Circuit has held “any action

that would deter a person of ordinary firmness from

exercising protected conduct will [constitute a sufficient adverse action], which may include harassment

or publicizing facts damaging to a person’s reputation.”

Fritz v. Charter Twp., 592 F.3d at 724.

Here, the Sixth Circuit applied Thaddeus-X and

held that placing the guidance letter in petitioner’s

personnel file would not create a chilling effect upon

petitioner’s further protected speech. (App.11a)

B. This Is an Issue of First Impression.

As indicated herein, the Court has never addressed

this specific issue. Because the ordinary-firmness test

is an objective test, applying it in this context of placing

a guidance letter in a public employee’s personnel

file, provides the Court with an attractive vehicle to

further develop its First Amendment retaliation body of

law in the important area of analyzing public employees’

constitutional rights under the First Amendment.

21

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

ALAN L. CATES

COUNSEL OF RECORD

HUSCH BLACKWELL LLP

736 GEORGIA AVE., STE. 300

CHATTANOOGA, TN 37402

(423) 797-5937

ALAN.CATES@HUSCHBLACKWELL.COM

M.E. BUCK DOUGHERTY III2

DUNCAN, HATCHER,

HOLLAND & FLEENOR P.C.

1418 MCCALLIE AVE.,

CHATTANOOGA, TN 37404

(423) 266-2207

BDOUGHERTY@DUCNANHATCHER.COM

COUNSEL FOR PETITIONER

NOVEMBER 25, 2019

2 Application pending admission to U.S. Supreme Court Bar.