Petition — Adams v. D'Andrea

supreme Court, U.S.

FILED

DEC 17 1980

ICHAEL RODAK, JR., CLEI

In the Supreme Court of the United Stats i

October Term, 1980

RALPH W. ADAMS, President of Troy State University;

EDWARD F. BARNETT, Vice-President of Academic Af-

fairs, Troy State University; JOHN M. LONG, Dean of the

College of Arts and Sciences, Troy State University;

and

DUANE C. TWAY, Chairman of Department of History

and Social Studies, Troy State University,

Petitioners,

Vs.

NICHOLAS E. D’ANDREA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CHAMP LYONS, JR.

(Counsel of Record)

P. O. Box 2767

Mobile, Alabama 36652

(205) 432-5521

Tuomas S. LAWSON, JR.

P. O. Box 2069

Montgomery, Alabama 36103

Attorneys of Record for

Petitioners

Of Counsel:

Coats, HeLmsrnc, Lyons & Sims

P. O. Box 2767

Mobile, Alabama 36652

CaPELL, Howarp, KNABE & Cosss, P.A.

P. O. Box 2069

Montgomery, Alabama 36103

E. L. MENDENHALL, Ixc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

QUESTIONS PRESENTED

I.

IS SPEECH CONSTITUTIONALLY PROTECTED SO

LONG AS THE SPEAKER IS TRUTHFUL IN IDENTIFY-

ING THE SUBSTANCE OF HIS STATEMENT AS

GROUNDED ON HEARSAY, THUS PRECLUDING IN-

QUIRY INTO WHETHER THE UNDERLYING INFOR-

MATION CONVEYED BY THE STATEMENT WAS COM-

MUNICATED WITH RECKLESS DISREGARD FOR

TRUTH OR FALSITY?

Il.

DOES COMMUNICATION WHICH IS CORRECTLY

ACKNOWLEDGED AT THE TIME TO BE BASED ON

HEARSAY AND WHICH TAKES THE FORM OF REPE-

TITION OF AN UNVERIFIED, YET EASILY VERIFT-

ABLE, INHERENTLY IMPROBABLE AND UNTRUE

RUMOR FALL OUTSIDE THE CLASSIFICATION OF

STATEMENTS MADE WITH RECKLESS DISREGARD

FOR THEIR TRUTH OR FALSITY SO AS TO QUALIFY

SUCH COMMUNICATION FOR FIRST AMENDMENT

PROTECTION?

Ir

LIST OF ALL PARTIES

The parties to this proceeding are as follows:

Nicholas E. D’Andrea

Ralph W. Adams

Edward F. Barnett

John M. Long

Duane C. Tway

TABLE OF CONTENTS

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REASON FOR GRANTING THE WRIT ........................ 3

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APPENDIX TO PETITION:

A. Opinion of the United States District Court .... Al

B. Opinion of the United States Court of Appeals

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CasEs CITED

D’Andrea v. Adams, 626 F. 2d 469 (5th Cir. 1980) ........ 2

Gertz v. Robert Welch, Inc., 418 U.S. 323, 335, n. 6,

as ee Ue OOD cece nc eressareenteviocnecanhoobons 4

Goldwater v. Ginzburg, 414 F. 2d 324, 337 (2d Cir.

1969), cert. denied 396 U.S. 1049, rehearing denied

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Herbert v. Lando, 441 U.S. 153, 157, 60 L. Ed. 2d 115

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Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed.

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St. Amant v. Thompson, 390 U.S. 727, 731-732, 20 L. Ed.

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TREATISE

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STATUTES

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In the Supreme Court of the United States

October Term, 1980

RALPH W. ADAMS, President of Troy State University;

EDWARD F. BARNETT, Vice-President of Academic Af-

fairs, Troy State University; JOHN M. LONG, Dean of the

College of Arts and Sciences, Troy State University; and

DUANE C. TWAY, Chairman of Department of History

and Social Studies, Troy State University,

Petitioners,

Vs.

NICHOLAS E. D’ANDREA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Ralph W. Adams, Edward F. Barnett, John M. Long

and Duane C. Tway, defendants-appellees below, pray that

a writ of certiorari issue to the United States Court of

Appeals for the Fifth Circuit to review its decision entered

September 26, 1980, reversing an order granting the defen-

dants’ motion for judgment n.o.v. in an action by a uni-

versity professor charging violations of his civil rights by

state university officials.

OPINIONS BELOW

The opinion of the United States District Court is not

officially reported. (Apx. A). The opinion of the Court of

Appeals for the Fifth Circuit is reported as D’Andrea v.

Adams, at 626 F. 2d 469 (5th Cir. 1980). (Apx. B).

JURISDICTION

Jurisdiction is based on 28 U.S.C. §1254(1). The Court

of Appeals entered its decision on September 26, 1980 (Apx.

B), and denied rehearing on October 27, 1980. (Apx. C).

STATEMENT OF THE CASE

Plaintiff, a college professor, brought an action against

certain school officials under 42 U.S.C. §1983 and charged

that actions had been taken adverse to him as a result of the

exercise by him of First Amendment rights to free expres-

sion. Jurisdiction was grounded upon 28 U.S.C.. §§1331,

1343. The defendants unsuccessfully moved for summary

judgment and for a directed verdict. The jury returned a

verdict for the plaintiff and the District Court entered

judgment notwithstanding the verdict.

The Fifth Circuit reversed the District Court and re-

instated the verdict based upon its determination that

plaintiff’s speech was constitutionally protected as plaintiff,

in the Fifth Circuit’s view, had made a true statement

when he stated that he had heard a rumor and then truth-

fully recounted the rumor to a staff member of the Alabama

legislature which was then conducting budget hearings as

to the University. The Fifth Circuit thus concluded that

it need not apply the limitation on First Amendment pro-

tection with reference to false statements or statements

3

made in disregard for their truth or falsity. See, e.g.,

Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d

811 (1968).

The substance of the rumor, which plaintiff never

contended to be true, was that Troy State University had

caused some million dollars in currency to be flown to New

York for an investment in the Alaskan pipeline and then

caused the currency to be returned some few weeks there-

after with a $400,000.00 profit. (Tr. 196, 273). According to

the plaintiff, the basis of the rumor was secondhand hear-

say related to him by certain students and, at all material

times, plaintiff knew the identity of the individual who

was alleged to be the source of the underlying information.

(Tr. 246). However, plaintiff testified that he made ab-

solutely no effort to verify the rumor before he relayed it to

the legislative staff member. (Tr. 246).

REASON FOR GRANTING THE WRIT

The United States Court of Appeals for the Fifth Cir-

cuit has broadened the scope of First Amendment protection

so as to include faise statements made in reckless disregard

of the truth which have the sole redemption of having been

truthfully characterized as hearsay. This decision on a

substantial federal question conflicts with Pickering v.

Board of Education, 391 U.S. 563, 573 (1968) wherein this

court held that First Amendment protection was unavail-

able for “statements shown to have been made either with

knowledge of their falsity or with reckless disregard for

their truth or falsity”.

7%

ARGUMENT

The Fifth Circuit has lent First Amendment support to

expression that is nothing more than the passing on of an

outlandish and unverified rumor by a state college pro-

fessor to an investigative staff member of the Alabama

legislature. The rumor was so far-fetched that the Fifth

Circuit, of necessity, conceded that the professor “. . . may

well have believed that his information was too insub-

stantial to justify a public accusation”. Opinion, 626 F. 2d

469, 477.

The appellees had drawn comfort from this Court’s

disdain for “statements shown to have been made either

with knowledge of their falsity or with reckless disregard

for their truth or falsity.” Pickering v. Board of Educa-

tion, 391 U.S. 563, 573 (1968). (Emphasis added). Reck-

less disregard for the truth has been equated by this Court

to serious doubt as to the truth of the publication on the

part of the person making the statement or so inherently im-

probable that only a reckless man would have put the

words in circulation (St. Amant v. Thompson, 390 U.S. 727,

731-732, 20 L. Ed. 2d 262 (1968) ) or subjective awareness of

probable falsity (Gertz v. Robert Welch, Inc., 418 U.S. 323,

335, n. 6, 416 L. Ed. 2d 789 (1974)). See Herbert v. Lando,

441 U.S. 153, 157, 60 L. Ed. 2d 115 (1979). A casual read-

ing of the substance of the rumor yields the conclusion

that while it may be true that the professor heard such a

rumor, his “. . . allegations are so inherently improbable

that only a reckless man would have put them in circula-

tion.” St. Amant v. Thompson, supra at 732. (Emphasis

added).

Nonetheless, the Fifth Circuit has embraced false

rumor as constitutionally protected expression so long as

the speaker truthfully disclaims firsthand knowledge of the

matters in his statement. Such a result drains much of

4)

the force from the rule of Pickering withholding constitu-

tional protection from statements made “with reckless dis-

regard of their truth or falsity”. The Fifth Circuit at-

tempts to justify its faithfulness to constitutional doctrine

by limiting Pickering to false statements and adopting an

unusual standard of falsity in the context of hearsay state-

ments. See opinion below, footnote 2, 626 F. 2d 469, 473,

where the Fifth Circuit concluded that a statement that

“someone told me” simply is not false even if the in-

formation is inaccurate so long as the speaker has in fact

acquired the intormation from another. Thus, the Fifth

Circuit treats the speakers having truthfully admitted at

the time he made the false statement that it was based

on hearsay as an act of redemption which elevaies the en-

tire statement to the dignity of First Amendment protec-

tion. While, in this sense, the declarant has not made a

false statement since he had indeed heard the rumor, such

a statement under the circumstances in which it was

given, i.e., volunteered by the declarant, simply cannot be

described as having been made other than in reckless dis-

regard of the truth. Furthermore, disregard of the sub-

stance of the underlying statement in passing judgment

on the truth or falsity of the overall statement quite simply

offends common sense and serves no legitimate purpose.

If the Fifth Circuit view were correct, the defense of truth

would be available in a libel case where the person charged

had merely repeated defamatory hearsay and acknowl-

edged it as such at the time. Such is not an accurate re-

flection of law of defamation. The republication of de-

famatory information has been “firmly established” to be

actionable even though the speaker “. . . is only repeat-

ing what he has heard and names his authority . . .” since

‘“. . a person who repeats slander heard from others en-

dorses it.” 50 Am. Jur. 2d, Libel and Slander, §170, p.

673. See also Goldwater v. Ginzburg, 414 F. 2d 324, 337

(2d Cir. 1969), cert. denied 396 U.S. 1049, rehearing denied

6

397 U.S. 928, citing St. Amant v. Thompson, supra, and

holding that repetition of inherently improbable words does

not release one of responsibility.

CONCLUSION

Reliance on the fact of acknowledgement as hearsay

as the basis for First Amendment protection of false state-

ments to speech is erroneous. Under the Fifth Circuit’s

decision, which departs from the law as previously stated

in Pickering, supra, a speaker can now claim constitutional

protection if someone tells him of an enormously immoral

and inherently improbable act allegedly committed by an

individual and he, without any effort to verify, republishes

that statement with the prefatory statement, “someone told

me”. Such an illogical result should not be countenanced

by this Court and for this reason the defendants-appellees

respectfully pray that the Court issue a writ of certiorari

to the United States Court of Appeals.

Respectfully submitted,

CHAMP Lyons, JR.

(Counsel of Record )

P. O. Box 2767

Mobile, Alabama 36652

(205) 432-5521

THomas S. LAwson, JR.

P. O. Box 2069

Montgomery, Alabama 36103

Attorneys of Record for

Petitioners

Of Counsel:

CoA.LeE, HeLMsina, Lyons & Sums

P. O. Box 2767

Mobile, Alabama 36652

CaPELL, Howarp, KnaBe & Cosss, P.A.

P. O. Box 2069

Montgomery, Alabama 36103

Al

APPENDIX

APPENDIX A

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

CIVIL ACTION NO. 77-215-N

NICHOLAS E. D’ANDREA,

Plaintiff,

VS.

RALPH W. ADAMS, Etc.; ET AL,

Defendants.

MEMORANDUM OPINION

(Filed January 12, 1978)

This cause is submitted to the Court on Defendants’

motion filed herein October 26, 1977, for new trial or, in

the alternative, for judgment notwithstanding the verdicts.

The Plaintiff brought suit against the President and sev-

eral administrative officers of Troy State University’ for

allegedly having denied him re-employment because of

his having exercised his First Amendment rights to

freedom of speech by reporting to members and adminis-

trative personnel of the Alabama State Legislature certain

rumors concerning the administration of Troy State Uni-

versity. Defendants contended that Plaintiff’s job was ter-

minated because of disinterest in and termination of the

Geography Department in which the Plaintiff was em-

ployed. The jury made separate findings of liability and

————~

1, President Adams and Deans Barnett, Tway and Long.

A2

entered separate verdicts against Defendants Barnett, Long

and Tway in the amount of $1,000.00 each and against De-

fendant Adams in the amount of $2,000.00, and judgment

was duly entered in accordance with the verdicts. Other

Defendants, including the members of the Board of Trustees

of Troy State University, were dismissed by agreement

on motion for summary judgment filed in their behalf

prior to the trial of the case.

This Court, subsequent to the entrance of judgment

and on motion of Plaintiff’s counsel, entered an order set-

ting the attorney’s fee for the Plaintiff’s counsel pursuant

to pertinent statutes. The right to that fee will depend

upon the outcome of the instant proceeding.

The principal grounds set out in the motion of the

Defendants may be divided into the following contentions.

I.

The Defendants insist that, in order that the Plain-

tiff might recover, it was necessary that the Court find

that there was no substantial evidence to support the

finding of the faculty committee relative to discontinuance

of the geography program at Troy State University in

which department the Plaintiff was employed. To sup-

port their contention, the Defendants cite Ferguson v.

Thomas, 430 F.2d 852 (1970); Green v. Board of Regents

of Texas Tech University, 474 F.2d 594 (5th Cir. 1973).

The Plaintiff, in response, relies primarily upon the case

of Mt. Healthy School District Board of Education v. Doyle,

a os US. ......... 50 L.Ed.2d 471 (1977). While this Court

is familiar with the substantial-evidence rule as applied in

other types of cases, such as social security review cases,

this Court is of the opinion that such a rule has no ap-

plication in civil rights law of the nature of this suit in

question.

A3

II.

The Defendants then insist that, if there were evi-

dence of a constitutionally-offensive cause of termination,

the Court erred in not submitting to the jury the question

of whether the failure to rehire would have occurred “but

for” the allegedly offensive conduct. The Defendants here

insist that the “but for” rule should be applied under Mt.

Healthy, supra. It should also be remembered that there

is a presumption of official propriety. Defendants insist,

alternatively, that there was no evidence to rebut the

presumption that the officials of the University acted prop-

erly and that, therefore, the matter should never have

been submitted to the jury under any circumstances.

III.

The Defendants then insist that the Court erred in fail-

ing to give their requested charge No. 20 to the effect

that, if the Defendants acted in good faith with reasonable

ground to believe that they had the right to so act, they

were immune from suit for acts done within the scope of

their authority. The Defendants, in making such asser-

tion, rely upon Rizzo, Mayor of Philadelphia v. Goode, 423

U.S. 362 (1976), and Scheuer v. Rhodes, 416 U.S. 232

(1974). The Plaintiff responds that the jury was properly

charged on the defense of good-faith-with-reasonable

grounds and that the requested charge No. 20 of the De-

fendants was covered in the oral charge of the Court.

IV.

The Defendants further point out that, in regard to

the cases made against the individual Defendants, there

was no evidence that the Defendants Long or Tway, at

the time that they voted to support the decision not to

continue the geography program and thereby implicitly

A4

voted that the Plaintiff’s job be discontinued, had no

knowledge whatsoever that the Plaintiff had made any

statements in regard to the administration of Troy State

University or had otherwise done anything which would

cause them to believe that he should not be re-employed.

The Court submitted to the jury the question of whether

the Defendants declined to rehire Plaintiff because of a

need to discontinue the geography program or because

he had made a special trip to the Legislature in Mont-

gomery to report unsubstantiated rumors about the ad-

ministration of Troy State University. The jury found

that Defendants declined to rehire Plaintiff because of his

reports. While there was strong evidence from which the

jury might have found for the University, there was

sufficient evidence to support the jury’s verdict as to Dr.

Adams and Dean Barnett (there was some evidence that

they knew of the reports). This Court is of the opinion

that there was, in fact, no evidence of the knowledge by

Defendants Long and Tway of the conduct of the Plaintiff

and that, therefore, there was no substantial evidence to

support the verdicts against them. Accordingly, judgment

n.o.v. should be granted for the Defendants Long and

Tway.

V.

More importantly and controllingly, in the view of this

Court, the Defendants assert that the Constitution does

not protect the freedom of speech of a public employee to

the extent of allowing such public employee to spread un-

substantiated information detrimental to the promotion of

efficiency of the public services the public servant is em-

ployed to promote. In other words, the Defendants insist

that free speech of a public employee is limited by definition

of his necessary loyalty as it pertains to his duty of support

to the public project he was employed to support and that

A5

the Plaintiff’s conduct in reporting to the Legislature un-

substantiated rumors in regard to Troy State University

constituted a total disregard for the welfare of Troy State

University and of the educational programs the Plaintiff

was employed to support. The Plaintiff points out, and it

is without question, that the Fifth and Fourteenth Amend-

ments protect public employees against impermissible

grounds of discharge and that the exercise of the right of

freedom of speech is protected by the First Amendment

to the Constitution. See, Pickering v. Board of Education,

391 U.S. 563 (1968); Pred v. Board of Public Instruction,

415 F.2d 851 (5th Cir. 1969); Hobbs v. Thompson, 448 F.2d

456 (5th Cir. 1971). It is clear that:

“TI]n order to justify the slightest interference with

First Amendment rights, there must be a showing that

the exercise of such rights ‘materially and substan-

tially’ interfered with the duties required to be per-

formed by an employee.” See, dissenting opinion,

Abbott v. Thetford, 529 F.2d 695, at 707, which was

expressly adopted as the opinion of the Court En

Banc in Abbott v. Thetford, 534 F.2d 1101 (5th Cir.

1976).

The Abbott case recognizes the profound national commit-

ment to the concept that debate and expression of opinions

on public issues should be uninhibited, robust and wide open

and that such activity may well include vehement, caustic

and unpleasant attacks upon government and public of-

ficials; however, it also recognizes that, in considering First

Amendment rights, the Court is always required to look at

the place, time, and circumstances involved in striking

the necessary delicate balance between the interest of the

government (Tenth Amendment) and the constitutional

rights of the individual.

A6

It is well recognized that, in cases testing the pro-

priety of discharge from public employment because of the

exercise of a constitutional right, the importance of that

right must be weighed against the right of a government

to regulate the individual where compelling government in-

terest is shown to outweigh the individual interest.

Abbott v. Thetford, 354 F.Supp. 1280 (M.D. Ala. 1973);

United States v. Pipe Fitters Union, 434 F.2d 1116 (1970),

adhered to 434 F.2d 1127, reversed on other grounds 407

U.S. 385 (1972); American Federation of Teachers v. School

District, 314 F.Supp. 1069 (D. Colo. 1970); Morales v.

Turman, 326 F.Supp. 677 (D.Tex. 1971); Wallace v. Brewer,

315 F.Supp. 431 (D.Ala. 1970). The Defendants insist that

they have shown a compelling State interest that employees

of Troy State University (an organization dependent

largely upon the State Legislature for financial support)

not undercut programs seeking allocation of funds from

the State Legislature.

As stated in Abbott, supra, “It is only claimed that in

‘the very narrow fact pattern of this case’ the discharge is

invalid.” 529 F.2d at 702. This Court must, therefore, walk

a narrow line in deciding whether this case falls within

that line of cases allowing discharge because the State of

Alabama has a controlling interest in regulating the speech

of its employees that interfere substantially with the edu-

cational program the employees are hired to support.

In Abbott v. Thetford, supra, the Court en banc con-

sidered Mr. Abbott’s right to bring a suit in favor of

orphans or neglected children—a matter Mr. Abbott felt

a moral obligation to pursue. However, the bringing of that

suit by Abbott, who was Judge Thetford’s Chief Probation

Officer, affected the efficiency of the Court because the

defendants in the suit included certain children’s homes and

certain officials who had the discretion to refuse placement

of neglected children in their institutions by Judge Thet-

Al

ford. The reports made by Mr. Abbott, as well as those

made by Dr. D’Andrea, concerned matters of serious public

importance which should have been investigated. The

problem in each case is whether presentation of the reports

was inconsistent with the public service the reporters

(Abbott and D’Andrea) were employed to support. The

Abbott Court recognized that the harmony and goodwill of

the officials of all of these agencies involved were in the

best interest of the Court and of the children of which the

Court had jurisdiction, that the importance of a cooperative

and confidential relationship between staff members is

essential and that absence of such cooperation and con-

fidentiality is disruptive and inevitably impairs the opera-

tions of the Court and that the function of courts and per-

sonnel who work closely with judges is not to engage

actively in litigation but is to achieve effectively the ob-

jects and purposes for which the court was created.

Applying comparable tests to the facts in the case at

bar, this Court is of the opinion and finds that the harmony

and goodwill of the legislators were in the best interest

of the University; that the importance of a cooperative

relationship with the Legislature of Alabama is essential

to the operation of the University; and that the function of

the University facility is not to engage actively in legisla-

tion but is to achieve effectively the objects of education

of students.

In Smith v. United States, 502 F.2d 512 (5th Cir. 1974),

the Court found that Smith, a clinical psychologist em-

ployed at a Veterans Administration Hospital who insisted

upon his First Amendment right to wear a peace pin on the

lapel of his coat while working among veterans, was in-

sisting upon a First Amendment right which directly inter-

fered with the proper performance of his duties and that the

A8

duties of the Veterans Administration outweighed the

right of the employee to so express his desire for peace.

In Goldwasser v. Brown, 417 F.2d 1169 (D.C. Cir. 1969),

the right of free speech of a Lackland Air Force Base

instructor was found to yield to a superior government

interest where he was dismissed because of making certain

statements concerning the Viet Nam War and anti-Semi-

tism to a class of foreign military officers. The Court

held that Goldwasser’s First Amendment right to free

speech did not give him the right to express his opinions

in the context of his “highly specialized teaching assign-

ment.” 417 F.2d at 1177.

In these cases, the courts applied the test and held

that the exercise of First Amendment rights materially

and substantially interfered with the public duties required

to be performed by a public employee and that, therefore,

the employee might be properly restrained or disciplined

for attempting to exercise such rights. A different view

was expressed in Pickering v. Board of Education, supra,

and Pred v. Board of Public Instruction, supra, where the

expression by the teachers did not materially and sub-

stantially interfere with the duties of their employment.

While Dr. D’Andrea was primarily employed as a

school teacher and, to a lesser extent, as an administrator,

he was employed to effect the program of Troy State Uni-

versity and the primary purpose of his employment was

to present an effective educational program at the Univer-

sity. The effectiveness of the program would be directly

dependent upon the ability of the University officials to

obtain proper financing through the Alabama Legislature.

Any attempt to discredit the program of the University in

the eyes of the State Legislature must necessarily interfere

with the program itself and would, in the opinion of this

Court, “materially and substantially interfere with the

A9

duties required to be performed by” Dr. D’Andrea. The

fact that much of the information distributed by Dr.

D’Andrea was obtained from less than reliable sources and

was not substantiated aggravates the Plaintiff’s violation

of his obligations to the program of the University.

It is, therefore, the opinion of this Court that the ver-

dicts and judgment of this Court in this cause are contrary

to the law and that judgment for the Defendants should

be entered notwithstanding the verdicts.

DONE this 12th day of January, 1978.

/s/ R. E. Varner

United States District Judge

Al10

APPENDIX B

Nicholas E. D’ANDREA,

Plaintiff-Appellant,

Vv.

Ralph W. ADAMS, President of Troy

State University, et al.,

Defendants-Appellees.

No. 78-1499.

United States Court of Appeals,

Fifth Circuit.

Sept. 26, 1980.

Tenured assistant professor of geography filed suit

against four university administrators, alleging that the

decision to terminate the geography program at the univer-

sity was in fact a retaliation against plaintiff for his state-

ments to state officials concerning university finances, and

as such violated his First Amendment rights. The United

States District Court for the Middle District of Alabama,

at Montgomery, Robert E. Varner, J., granted a defense

motion for judgment n. o. v., and plaintiff appealed. The

Court of Appeals, Randall, Circuit Judge, held, inter alia,

that circumstances in which statements concerning univer-

sity finances were made by plaintiff to a legislative budget

subcommittee engaged in reviewing funding of state agen-

cies, including the university, did not remove the state-

ments from the protection of the First Amendment; the

allegations did not concern matters to which plaintiff might

be presumed to have greater access to the real facts than

would his intended audience, and he was careful to iden-

tify his information as hearsay when it was, in fact, sec-

All

ond-hand information; furthermore, the fact that he iden-

tified the sources of information clearly suggested that he

expected the legislature to investigate and verify the al-

legations before acting upon them.

Reversed and remanded, with directions.

1. Constitutional Law (Key) 46(1)

Suit brought by tenured assistant professor of geo-

graphy, who alleged that the university’s decision to termi-

nate the geography program was in fact a retaliation

against him for his statements to state officials concerning

university finances, and as such violated his First Amend-

ment rights, was not moved by reason of his reemployment

by the University, since he had been dismissed for a time

and since he sought injunctive relief against future viola-

tions of his constitutional rights. U.S.C.A.Const. Amend. 1.

2. Civil Rights (Key) 13.13(3)

In suit brought by a tenured assistant professor of

geography who alleged that the decision of defendant uni-

versity administrators to terminate the geography program

was in fact a retaliation against him for his statements to

state officials concerning university finances, and as such

violated his First Amendment rights, there was sufficient

evidence for a reasonable jury to conclude that all the ad-

ministrators, including the dean of the college of arts and

sciences and the chairman of the department of history and

social science, knew about the statements made by plaintiff

to state officials, and there was thus sufficient evidence in

support of the jury’s conclusion that all the administrators

participated in the discharge of plaintiff in retaliation for

his statements.

Al2

3. Civil Rights (Key) 13.13(1)

Dismissed university professor had the burden of prov-

ing that he was dismissed for exercising his constitutional

rights.

4. Constitutional Law (Key) 90.1 (5)

A knowing or reckless falsehood is not protected by

the Constitution. U.S.C.A. Const. Amend. 1.

5. Libel and Slander (Key) 30

A statement that “someone told me” or “I have heard”

certain information simply is not false, even if the infor-

mation is inaccurate, unless the speaker has not in fact

acquired the information from another. U.S.C.A.Const.

Amend. 1.

6. Civil Rights (Key) 13.13(1)

After plaintiff established to the jury’s satisfaction that

he was dismissed as a tenured assistant professor because

of his exercise of constitutional rights, the state at that

point assumed the burden of justifying its action by show-

ing that plaintiff's activities, involving statements made to

state officials concerning university finances, materially

and substantially interfered with the requirements of ap-

propriate discipline in the operation of the university.

U.S.C.A. Const. Amend. 1.

7. Colleges and Universities (Key) 8.1(3)

Even when a school is seeking revenue that the ad-

ministration considers necessary to school operations, a

school employee is free to speak openly on the question,

though he disagrees with the administration.

Al3

8. Colleges and Universities (Key) 8.1(3)

Constitutional Law (Key) 90.1(1)

Circumstances in which statements concerning univer-

sity finances were made by plaintiff, a tenured assistant

professor, to a legislative budget subcommittee engaged

in reviewing funding of state agencies, including the uni-

versity, did not remove the statements from the protection

of the First Amendment; the allegations did not concern

matters to which plaintiff might be presumed to have

greater access to the real facts than would his intended

audience, and he was careful to identify his information

as hearsay when it was, in fact, second-hand information;

furthermore, the fact that he identified the sources of in-

formation clearly suggested that he expected the legis-

lature to investigate and verify the allegations before act-

ing upon them. U.S.C.A.Const. Amend. 1.

Jerry D. Anker, Robert M. Cohan, Washington, D. C.,

Myron H. Thompson, Dothan, Ala., James M. Altman, Nat'l.

Ed. Ass’n, Washington, D. C., for plaintiff-appellant.

Coale, Helmsing, Lyons & Sims, Champ Lyons, Jr.,

Mobile, Ala., Capell, Howard Knabe & Cobbs, Thomas S.

Lewson, Jr., Montgomery, Ala., for defendants-appellees.

Appeal from the United States District Court for the

Middle District of Alabama.

Before MORGAN, ANDERSON and RANDALL, Cir-

cuit Judges.

RANDALL, Circuit Judge:

This appeal concerns a controversy between Dr. Nich-

olas D’Andrea, a tenured assistant professor of geography

at Troy State University (TSU) in Alabama, and four ad-

ministrators (collectively referred to as the Administra-

Al4

tors) of that school: Dr. Adams, President of TSU; Dr.

Barnett, Chief Academic Dean; Dr. Long, Dean of the Col-

lege of Arts and Sciences; and Dr. Tway, Cha:rman of the

Department of History and Social Science. The issue on

this appeal is whether the Administrators were within

their rights in discharging Dr. D’Andrea for communicating

information he possessed that suggested impropriety in the

use of TSU funds to a legislative budget subcommittee that

was engaged in reviewing funding of state agencies, in-

cluding TSU. Dr. D’Andrea contends that his statements

were protected by the first amendment. The Administra-

tors contend that Dr. D’Andrea’s statements were not con-

stitutionally protected because they materially and sub-

stantially interfered with the performance of his duties and

with the functioning of school programs, and because the

statements were made with reckless disregard for their

truth. Additionally, the Administrators contend that there

was insufficient proof for the jury to conclude that de-

fendants Tway and Long knew of Dr. D’Andrea’s state-

ments to the state legislature, and hence to conclude that

they participated in his discharge in retaliation for those

statements. Under proper instructions, the jury returned

a verdict in Dr. D’Andrea’s favor against all the Admin-

istrators. The trial court granted the Administrators’ mo-

tion for judgment, n. o. v., on the ground that Dr. D’Andrea’s

statements were not constitutionally protected and also on

the ground that there was insufficient evidence to support

a verdict against defendants Tway and Long. We reverse.

In November 1976, Dr. D’Andrea went to the Alabama

Capital in Montgomery and spoke to a Mr. Kirkland, then

an administrative assistant to the Lieutenant Governor,

and to an examiner from the Alabama Department of

Examiners of Public Accounts, who was engaged in an

examination of TSU finances in preparation for budget

subcommittee hearings in the state legislature regarding

Al5

the funding of the school. At that time, Dr. D’Andrea

conveyed to Mr. Kirkland and the examiner information

he had received from other people, whom he identified,

concerning assertedly improper uses of TSU funds. Whether

the information was true, partially true, or wholly false

cannot be determined from the record because the trial

court pretermitted inquiry into that question. For pur-

poses of this appeal, we assume the information was in-

accurate. Apparently, TSU received a “clean bill of

health” after the legislative examination of the school’s

finances and it received the appropriation it had sought.

Dr. Adams in particular was commended for his manage-

ment of the school.

In January 1977, Dr. D’Andrea was told that the

geography program at the school was going to be discon-

tinued, and that his services as a professor of geography

would no longer be needed. The decision to eliminate the

geography program was made at a meeting on January 13,

1977, attended only by the Administrators, Dr. D’Andrea

exercised his right as a tenured faculty member under

TSU’s procedures to seek other employment at the school

for which he was qualified. The Ad Hoc Committee on

Credentials did not recommend placement in another posi-

tion, and Dr. D’Andrea sought review of this decision by

the Faculty Personnel Advisory Committee. Dr. D’Andrea

received notice of the hearing, which indicated that, because

of the Ad Hoc Committee’s recommendation, termination of

the geography program “would carry with it a termination

of your tenured status at the University.” The notice in-

formed Dr. D’Andrea that the hearing would cover the de-

cision to terminate the geography program and the recom-

mendation that Dr. D’Andrea not be offered an alternative

teaching position. After a hearing, at which Dr. D’Andrea

was present and represented by an attorney, the Faculty

Committee upheld the recommendation of the Ad Hoc Com-

Pal

Al6

mittee and the decision to terminate the geography pro-

gram. Dr. D’Andrea was therefore out of a job.

[1] Before the beginning of the fall semester, how-

ever, TSU determined that the decision to terminate the

geography program had been precipitate, because geo-

graphy instruction is a necessary component of the degree

in elementary education offered by the school and because

enrollment data for the fall semester apparently indicated

a burgeoning interest in geography. The school therefore

reinstated geography as a minor area of study and offered

D’Andrea reemployment, which he accepted. In the mean-

time, however, Dr. D’Andrea had filed this action, alleging

that the decision to terminate the geography program was

in fact a retaliation against him for his statements to state

officials concerning TSU finances, and as such violated

his first amendment rights. The case was not mooted by

reason of his reemployment, because he had been dis-

missed for a time and because he sought injunctive relief

against future violations of his constitutional rights.

The jury was properly instructed that they could find

for Dr. D’Andrea only (1) if he convinced them, by a

preponderance of the evidence, that his contact with state

officials was constitutionally protected and was a sub-

stantial or motivating factor in the decision to terminate

the geography program, and (2) if the Administrators

failed to convince them, using the same standard, that

they would have terminated the geography program even

absent Dr. D’Andrea’s contact with state officials. See Mt.

Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97

S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). The jury returned

a verdict in favor of Dr. D’Andrea, and the judgment

n. o. v. did not attack the jury’s determination that the

termination of the geography program was motivated by

Al7

Dr. D’Andrea’s contact with state officials and that the

termination would not have occurred absent that conduct.’

Accordingly, there is no Mt. Healthy issue in this appeal.

The only questions we face are (1) whether there was

sufficient evidence for a reasonable jury to conclude that

on January 13 Tway and Long knew about Dr. D’Andrea’s

contact with state officials, and (2) whether, as a matter

of law, Dr. D’Andrea’s statements to those officials were

protected by the first amendment.

In passing on the first question, we are guided by the

standard of review for judgments n. o. v. enunciated in

Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.

1969) (en banc). Considering all the evidence “in the

light and with all reasonable inferences most favorable to”

Dr. D’Andrea, our task is to decide whether Dr. D’Andrea

presented “evidence of such quality and weight that rea-

sonable and fairminded [jurors] in the exercise of im-

partial judgment might reach different conclusions” with

regard to the question whether Tway and Long knew about

Dr. D’Andrea’s statements when they attended the Janu-

ary 13 meeting at which all the Administrators agreed to

terminate the geography program. “[I]t is the function of

the jury as the traditional finder of the facts, and not

the Court, to weigh conflicting evidence and inferences,

and determine the credibility of witnesses.” Id.

1. With regard to Tway and Long, the trial court held that

there was not sufficient evidence for a reasonable jury to con-

clude that those defendants knew of Dr. D’Andrea’s contact with

state officials. Since they could not be motivated by what they

did not know, if the trial court was correct Dr. D’Andrea did

not establish the prima facie case required by Mt. Healthy. Be-

cause we hold that there was sufficient evidence for a reasonable

jury to conclude that Tway and Long knew of Dr. D’Andrea’s

statements to state officials, and because the verdicts against

those defendants indicate that the jury, properly instructed, did

so conclude, all the Administrators stand in the same position

with regard to the satisfaction of Mt. Healthy’s prima facie case

requirements.

Al8

Under the Boeing standard, there was sufficient evi-

dence for a reasonable jury to conclude that all the Ad-

ministrators discussed Dr, D’Andrea’s statements to state

officials when they met on January 13. Only the Admin-

istrators were present at the meeting. The jury’s neces-

sary finding that Dr. Adams and Dr. Barnett knew of the

statements at that time is not challenged on this appeal.

Dr. Tway was the last to arrive at that meeting. He

testified as follows regarding his arrival at the meeting

and the ensuing discussion:

DR. TWAY: When I first went into the office Dr.

Barnett and Dr. Long were sitting off to my right.

I pulled my chair up to the front right-hand corner

of the president’s desk and he was rather off

center behind his desk... I pulled my chair up

to his desk and he said to me, “What are we going

to do—what about D’Andrea?” ... And I said,

“Well, what about Dr. D’Andrea?” And he said

—I don’t attempt to quote verbatim, it is a long

time back, but something in the sense, “Well, he

is just not as loyal as a fellow ought to be.” And

I made no response to that. I had no reason to

be in defense or complimentary of his loyalty.

The conversation immediately turned to discussion

which led me to respond to the president it’s my

impression that if a man has tenure he could only

be dismissed from his position as such for moral

turpitude, incompetency to perform the job, or

being guilty of some criminal offense. I said I

don’t know of either moral turpitude or criminal

offense of Dr. D’Andrea. I went on to say we

would have difficulty convincing anyone that the

man was incompetent since he had been runner-up

once and perhaps more than once for the out-

standing teacher award known as Ingles Award:

Al19g

No sooner had I made that comment than the

four of us went into a discussion of the viability

of the geography program, for which 1! presume

I was called in there.

The jury thus had before it direct evidence that Dr.

D’Andrea’s loyalty to TSU was questioned in the presence

of all the Administrators at the January 13 meeting. No

witness offered any explanation of what Dr. Adams may

have meant. Dr. Adams denied that he characterized Dr.

Andrea as disloyal.

In addition to Dr. Tway’s testimony, the jury had

before it evidence tending to show that although the prob-

lem of low enrollment in the geography program—the

reason asserted by defendants for the termination of the

program—had been informally discussed by members of

the school administration for several months before the

January 13 meeting, that meeting was not planned in

advance. Rather, everyone involved concedes that the

meeting, lasting only about an hour, was convened on the

spur of the moment. Although the problem of low en-

rollment was assertedly the sole reason for terminating

the geography program, no enrollment statistics were

available at the meeting. No faculty committees were

consulted concerning that decision, although the evidence

showed that there were several such committees whose

responsibilities included advising on curricular changes.

[2] Taking all the evidence into consideration, a rea-

sonable jury could conclude that, despite the Administra-

tors’ denials, Dr. D’Andrea’s statements to state officials

were discussed by all the Administrators at the January

13 meeting. No issue was taken with the jury’s conclusion

that Drs. Adams and Barnett knew of the statements. The

jury could reasonably have believed Dr. Tway’s testimony

that Dr. Adams raised the question of Dr. D’Andrea’s

A20

loyalty, and disbelieved his testimony that—although he

knew of nothing reflecting poorly on Dr. D’Andrea’s

character—he simply did not challenge or inquire about

the president’s assertion that Dr. D’Andrea, a professor

in Dr. Tway’s department, was disloyal. Finally, a jury

could reasonably conclude that a major curricular re-

vision would not normally have been instituted in such a

hasty and indeliberate fashion, and that the decision to

terminate the geography program was, under those cir-

cumstances, deliberately done with the acquiescence of

all the Administrators for the purpose of penalizing Dr.

D’Andrea for his statements to state officials. We there-

fore hold that the district court erred in concluding that

there was insufficient evidence that at the January 13

meeting defendants Tway and Long knew about the state-

ments made by Dr. D’Andrea to state officials.

[3-6] We turn now to the fundamental issue on this

appeal, which is whether Dr. D’Andrea’s statements to

state officials were protected by the first amendment. Dr.

D’Andrea had the burden of proving that he was dis-

missed for exercising constitutional rights.? Fluker v. Ala-

2. The Administrators also contend that Dr. D’Andrea’s

statements were not protected by the first amendment because

they were false and made with reckless disregard for the truth.

The “knowing of reckless falsehood” is not protected by the Con-

stitution, Garrison v. Louisiana, 379 U.S. 64, 73, 85 S.Ct. 269, 215,

13 L.Ed.2d 125 (i964). As we have noted the trial court pre-

termitted inquiry into the accuracy of the information conveyed

in Dr. D’Andrea’s statements, and for purposes of the appeal we

assume that the underlying information conveyed by the state-

ments was inaccurate. The jury, however, was instructed that

“a false statement made with reckless disregard of the truth,

however, does not enjoy Constitutional protection and cannot be

made the basis of a verdict for the plaintiff in this action if

standing alone,” and returned a verdict for Dr. D’Andrea, from

which we infer that they found that the statements were not

made with reckless disregard for the truth. The judgment n. o. v.

did not attack this necessary jury determination. In any event,

even if the underlying information conveyed in Dr. D’Andrea’s

(Continued on following page)

A21

bama State Bd. of Educ., 441 F.2d 201, 206 (5th Cir. 1971).

This he did to the jury’s satisfaction. “At that point, the

State assumed[d] the burden of justifying its action by

showing that the complainant’s activities ‘materially and

substantially interfere[d] with the requirements of ap-

propriate discipline in the operation of the school.’” Jd.

(internal quotation from Burnside v. Byars, 363 F.2d 744,

749 (5th Cir. 1966), quoted in Tinker v. Des Moines Ind.

Comm. Sch. Dist., 393 U.S. 503, 509, 89 S.Ct. 733, 737, 21

L.Ed.2d 731 (1969)).

The trial court’s basis for entering judgment n. o. v., in

favor of all the Administrators, was that Dr. D’Andrea’s

statements necessarily interfered with his duties at TSU.

The court said:

While Dr. D’Andrea was primarily employed as a

school teacher and, to a lesser extent, as an adminstra-

tor, he was employed to effect the program of Troy

State University and the primary purpose of his em-

ployment was to present an effective educational pro-

gram at the University. The effectiveness of the pro-

gram would be directly dependent upon the ability of

the University officials to obtain proper financing

through the Alabama Legislature. Any attempt to dis-

credit the program of the University in the eyes of the

State Legislature must necessarily interfere with the

program itself and would, in the opinion of this Court,

“materially and substantially interfere with the duties

required to be performed by” Dr. D’Andrea. The fact

Footnote continued—

statements was inaccurate, his statements cannot, on this record,

be characterized as false. The evidence clearly shows that Dr.

D’Andrea identified his information as hearsay or second-hand.

A statement that “someone told me” or “I have heard’ certain

information simply is not false—even if the information is in-

accurate—unless the speaker has not in fact acquired the informa-

tion from another.

A22

that much of the information distributed by Dr.

D’Andrea was obtained from less than reliable sources

and was not substantiated aggravates the Plaintiff's

violation of his obligations to the program of the Uni-

versity.

In Pickering v. Board of Education, 391 U.S. 563,

568-73, 88 S.Ct. 1731, 1734-37, 20 L.Ed.2d 811 (1968),

the Supreme Court attempted to adumbrate “some of the

general lines along which an analysis of the controlling

interests” implicated in a dismissal-from-public-employ-

ment-for-speech case should run. One consideration the

Court thought relevant was whether the employee’s state-

ments were critical of a person “with whom appellant

would normally be in contact in the course of his daily

work as a teacher,” such that the criticism might impede

“either discipline by immediate superiors or harmony

among coworkers.” Id. at 569-70, 88 S.Ct. at 1735. The

evidence shows that Dr. D’Andrea’s statements implicated

only “higher administrative officials” at TSU, and there is

no evidence that Dr. D’Andrea named any specific school

official. Therefore, the evidence does not support the prop-

osition that the statements for which Dr. D’Andrea was

dismissed were, directly or implicitly, critical of peonle

“with whom appellant would normally be in contact in the

course of his daily work.”

Nor does the evidence show that Dr. D’Andrea’s duties

at TSU placed him in a position “in public employment in

which the relationship between superior and subordinate

is of such a personal and intimate nature that [his state-

ments] would seriously undermine the effectiveness of the

working relationship between them... .” Id. at 570 n.

3, 88 S.Ct. at 1735 n. 3.

The Pickering Court next considered the impact of false

statements by a teacher on school operations. The Court

A23

differentiated between the impact of critical statements on

the working relationship of the speaker and his superiors or

coworkers and the impact of critical, and inaccurate, state-

ments on school operations. As we have just said, the

former impact is not relevant here because there is no evi-

dence to show that the relationship between Dr. D’Andrea

and “higher administrative officials” was a “close working

relationship for which it can persuasively be claimed that

personal loyalty and confidence are necessary to their

proper function.” Id. at 570, 88 S.Ct. at 1735.

With regard to the impact on school operations, the

Court first noted that the school board had not shown that

Pickering’s statements, in the form of a letter to the editor

of a local paper, had any actual detrimental impact upon

school operations. The same is true of this case. The

Pickering Court noted, however, that since Pickering’s

statements, which criticized the school board for expending

too much money on athletics, were made after the proposal

for a tax increase for school finances was defeated at the

polls, those statements could “have had no effect on the

ability of the school district to raise necessary revenue.”

Id. at 571, 88 S.Ct. at 1736. Since D’Andrea’s statements

were made at a time when TSU was seeking an appropria-

tion from the state legislature, his statements could have

had an effect on TSU’s ability to raise necessary revenue,

although the evidence suggests that they did not. The

Court went on to emphasize, however, that the question

whether a school needs additional funds is a matter of

legitimate public concern “on which the judgment of the

school administration ... cannot ... be taken as conclu-

sive.” Id. To accept the Administrators’ position that the

interference that justifies dismissal of a public employee

exists whenever a professor makes statements that present

“a substantial risk of weakening and undermining the state

legislature’s support for the University” would be to im-

pose on teachers in public employment a general duty of

A24

loyalty to the specific goals of the administration, a position

specifically rejected by the Pickering Court. Id. at 568-69,

88 S.Ct. at 1734-35.

[7] Pickering makes it clear that even when a school

is seeking revenue the administration considers necessary

to school operations, a school employee is free to speak

openly on the question even when he disagrees with the

administration. This case, however, includes some cir-

cumstances not present in Pickering. The most important

of these is that Pickering’s statements were made in a public

forum, while Dr. D’Andrea’s statements were made pri-

vately. Both teachers’ statements were addressed to the

forum that held their respective schools’ purse strings:

Pickering’s to the general public, since they voted on pro-

posed tax increases for school finances; Dr. D’Andrea’s to a

state official connected with the state legislative budget

subcommittee, which makes recommendations concerning

appropriations for state agencies.

Although the Administrators concede that Pickering

permits free and open public criticism of school policy by

school employees, and that Givhan v. Western Line Cons.

Sch. Dist., 489 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619

(1979), protects criticism of a superior addressed privately

to the superior by a public employee, the Administrators

suggest that the opportunity to respond to and rebut such

criticism is absent here, and that such an opportunity is a

fundamental factor to be considered in determining whether

the Pickering balance of competing state and individual

interests tips in favor of first amendment protection for

critical statements made by public employees. The basic

inquiry in Pickering was whether “the interest of the school

administration in limiting teachers’ opportunities to con-

tribute to public debate is . . . significantly greater than its

interest in limiting a similar contribution by any member of

the general public.” Id. at 573, 88 S.Ct. at 1737. Although

the Court suggested that the opportunity to rebut or

A25

clarify inaccurate factual statements by a teacher was a

factor to be considered in the Pickering balance, it did not

say that such a consideration was determinative. More-

over, the Court seemed more concerned with the pos-

sibility that in some circumstances a teacher’s statements

might, because of their subject matter, be given undue

credit, than with the question whether the teacher ad-

dressed himself to the general public rather than to some

smaller audience. The Court noted that the matters

Pickering discussed were not “so closely related to the

day-to-day operations of the schools that any harmful

impact on the public would be difficult to counter be-

cause of the teacher’s presumed greater access to the real

facts.” Id. at 572, 88 S.Ct. at 1736.

[8] The circumstances in which Dr. D’Andrea’s state-

ments were made do not remove the statements from the

protection of the first amendment. The allegations did

not concern matters as to which Dr. D’Andrea might be

presumed to have greater access to the real facts than

would his intended audience. To be certain, as a member

of the TSU community he might well have greater access

to the real facts than would be the general public; but he

was careful to identify his information as hearsay when

it was, in fact, second-hand information; and it must be

remembered that he was delivering the information to a

legislative subcommittee, not to the general public. That

he identified the sources of his information clearly sug-

gests that he expected the legislature to investigate and

verify the allegations before acting upon them; and, of

course, a state legislature has investigative powers not pos-

sessed by members of the general public. Moreover, the

Administrators’ allegation that the circumstances in which

Dr. D’Andrea’s statements were made left them no op-

portunity to rebut the charges must be considered in the

light of what actually happened. The record in this case

A26

suggests that, like Pickering’s letter, Dr. D’Andrea’s state-

ments were met “with massive apathy and total disbelief.”

It is only reasonable to assume that had the officials to

whom Dr. D’Andrea spoke credited the information he con-

veyed, they would have asked TSU officials to comment on,

explain, or deny the rumors.

What was said in Swaaley v. United States, 376 F.2d

857 (Ct.Cl.1967), is apposite here. In that case Swaaley

was dismissed from his job at the New York Naval Ship-

yard after he sent a letter to the Secretary of the Navy,

and no one else, charging that graft and corruption in-

fected promotional decisions. The court observed:

An employee writing a letter such as we have here

might be presumed to desire that the Department

would cause his charges to be investigated. He would

almost never be able to prove anything himself; that

is hard enough for trained investigators using so-

phisticated techniques, and yet solely by rumor and

hearsay he may have a pretty good idea where the

bodies are buried. Hence, to say an employee report-

ing what he believes is going on is guilty of miscon-

duct if he cannot prove it, is tantamount to saying

he is not to transmit anything at all. Any regula-

tion which would compel the critic of official conduct

to guarantee the truth of all his factual assertions—

and to do so on pain of dismissal from his job—leads to

“self-censorship,” a result which cannot be tolerated

in this area.

376 F.2d at 861-62. [citations omitted].

Dr. D’Andrea may well have believed that his in-

formation was too insubstantial to justify a public accusa-

tion, yet substantial enough to warrant investigation by

the budget subcommittee. Moreover, he may have been

A27

apprehensive that disclosure of the information and of his

visit to Montgomery to administrative officials at TSU

would result in his dismissal or other objectionable con-

sequences. He was entitled to assume that his statements

would be dealt with prudently; that the rumors he had

heard would be investigated; and that if they appeared to

have a factual foundation, the TSU officials involved would

have an opportunity to respond to them.

As Judge Goldberg observed in Porter v. Califano, 592

F.2d 770, 779 (5th Cir. 1979), “Pickering states that the

First Amendment requires the government not just to

show that certain employee speech injures the government,

but to show that the benefits of preventing the injury ac-

tually outweigh the profound benefits of free speech in this

society.” The Administrators have utterly failed to make

such a showing. Accordingly, we hold that the entry of

judgment n. o. v. by the district court was error.

After the favorable verdict and before entry of the

judgment n. o. v., the trial court awarded Dr. D’Andrea

attorney fees and expenses totalling $7,832.70 for the trial

of the case, pursuant to 42 U.S.C. § 1988. That award is

to be reinstated along with Dr. D’Andrea’s favorable jury

verdict. In addition, Dr. D’Andrea is entitled to an award

of costs, including as an item of costs an attorney fee, for

the prosecution of this appeal. While we have authority

to determine the attorney fee to which he is entitled,

Knighton v. Watkins, 616 F.2d 795 (5th Cir. 1980), we con-

sider it better, under the circumstances, to remand the case

to the district court for a determination of the proper

costs to be awarded, in accordance with the standards in

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714

(5th Cir. 1974).

REVERSED and REMANDED with directions.

A28

APPENDIX C

UNITED STATES COURT OF APPEALS

Fifth Circuit

Office of the Clerk

Gilbert F. Ganucheau Tel 504—589-6514

Clerk 600 Camp Street

New Orleans, LA. 70130

OCTOBER 27, 1980

TO ALL PARTIES LISTED BELOW:

NO. 78-1499 - Nicholas E. D’Andrea -vs- Ralph W.

Adams, etc., et al.

Dear Counsel:

This is to advise that an order has this day been en-

tered denying the petition( ) for rehearing, and no mem-

ber of the panel nor Judge in regular active service on the

Court having requested that the Court be polled on re-

hearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 16) the petition( ) for

rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

Gilbert F. Ganucheau, Clerk

By /s/ Claudia R. Nides

Deputy Clerk

ec: Mr. Jerry D. Anker

Mr. Thomas S. Lawson, Jr