Record and brief — Lane v. Franks, 134 S. Ct. 2369 (2014) (No. 13-483)
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Ny) SUPREME COURT
‘eee? OF THE UNITED STATES
No. 13-483
Title: Edward R. Lane, Petitioner
V
Steve Franks, in His Individual Capacity, and Susan Burrow, in Her
Official Capacity as Acting President of Central Alabama Community
College
Docketed: October 17, 2013
Lower Ct United States Court of Appeals for the Eleventh Circuit
Case Nos.: (12-16192)
Decision Date’ July 24, 2013
Questions
Presented
~~~Date~~~ ~~~~~~~ Proceedings and Orders~~~~~~~ ~ ~~~
Oct 15 2013 Petition for a writ of certiorari filed. (Response due November 18, 2013)
Nov 14 2013 Brief of respondent Steve Franks in opposition filed
Nov 26 2013 Reply of petitioner Edward R. Lane filed.
Dec 42013 DISTRIBUTED for Conference of January 10, 2014.
Jan 13 2014 DISTRIBUTED for Conference of January 17, 2014
Jan 17 2014 Petition GRANTED
Feb 42014 Consent to the filing of amicus curiae briefs, in support of either party or of
neither party, received from counsel for the petitioner
Feb 11 2014 SET FOR ARGUMENT ON Monday, April 28, 2014
Feb 19 2014 Consent to the filing of amicus curiae briefs, in support of either party or of
neither party, received from counsel for the respondent Steve Franks.
Feb 20 2014 Consent to the filing of amicus curiae briefs, in support of either party or of
neither party, received from counsel for the respondent Susan Burrows.
Feb 20 2014 Motion to dispense with printing the joint appendix filed by petitioner Edward R
Lane.
Mar 32014 Brief of petitioner Edward R. Lane filed
Mar 32014 Bnef of respondent Susan Burrow in support of reversal in part and affirmance
in part filed.
Mar 5 2014 Bnef amicus curiae of Alliance Defending Freedom filed
Mar 7 2014 Brief amicus curiae of National Whistleblower Center filed. (Distributed)
Mar 10 2014 Motion to dispense with printing the joint appendix filed by petitioner
GRANTED
Mar 10 2014 Record received from U.S.D.C. Norther District of Alabama is electronic. (Not
on PACER)
Mar 10 2014 CIRCULATED.
Mar 10 2014 Brief amici curiae of American Civil Liberties Union, et al. filed. (Distributed)
Mar 10 2014 Brief amici curiae of Law Professors filed. (Distributed)
Mar 10 2014 Bnef amicus curiae of Government Accountability Project filed. (Distributed)
Mar 10 2014 Brief amicus curiae of United States supporting affirmance in part and reversal
in part filed.
Mar 10 2014 Brief amicus curiae of The National Association of Police Organizations filed.
(Distributed)
Mar 10 2014 Brief amici curiae of National Education Association, et al. filed. (Distributed)
Mar 10 2014 Brief amicus curiae of First Amendment Coalition filed. (Distributed)
Mar 10 2014 Brief amicus curiae of American Federation of Labor and Congress of Industnal
Organizations filed. (Distributed)
Apr 22014 Bnef of respondent Steve Franks filed. (Distributed)
Apr 8 2014 Motion of the Solicitor General for leave to participate in oral argument as
amicus Curae, for divided argument, and for allocation of argument time filed
Apr 92014 Bnef amici curiae of The International Municipal Lawyers Association, et al
filed. (Distributed)
Apr 11 2014 Reply of petitioner Edward R. Lane filed. (Distributed)
Apr 17 2014 Reply of respondent Susan Burrow filed. (Distributed)
Apr 18 2014 Motion of the Solicitor General for leave to participate in oral argument as
amicus Curiae, for divided argument, and for allocation of argument time
GRANTED.
Apr 22 2014 Letter from counsel! for petitioner Edward R. Lane filed. (Distributed)
Apr 28 2014 Argued. For petitioner: Tejinder Singh, Washington, D. C.; and lan H.
Gershengorn, Deputy Solicitor General, Department of Justice, Washington, D
C. (for United States, as amicus curiae.) For respondent Burrow: Luther J.
Strange, Ill, Attorney General, Montgomery, Ala. For respondent Franks: Mark
T. Waggoner, Birmingham, Ala.
Jun 19 2014 Adjudged to be AFFIRMED IN PART, REVERSED IN PART, and case
REMANDED. Sotomayor, J., delivered the opinion for a unanimous Court.
Thomas, J., filed a concurring opinion, in which Scalia and Alito, JJ., joined.
Jul 212014 JUDGMENT ISSUED
PETITION
FOR
WRIT OF
CERTIORARI
Or
—— 13- 48 Q | oct 1s 208
Supreme Court of the United States
EDWARD LANE,
Petitioner,
STEVE FRANKS,
Respondent.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Eleventh Circuit
PETITION FOR A WRIT OF CERTIORARI
Thomas C. Goldstein
Counsel of Record
Tejinder Singh
GOLDSTEIN & RUSSELL, P.C.
5225 Wisconsin Ave. NW
Suite 404
Washington, DC 20015
(202) 362-0636
tg@goldsteinrussell.com
aa eS TIE i clit rm wn ra cr I
WILSON-EPES PRINTING Co., INC. — (202) 788-0096 — WASHINGTON, D.C. 20002
Library of Congress
Law Library
QUESTIONS PRESENTED
1. Is the government categorically free under the
First Amendment to retaliate against a public
employee for truthful sworn testimony that was
compelled by subpoena and was not a part of the
employee’s ordinary job responsibilities?
2. Does qualified immunity preclude a claim for
damages in such an action?
ii
PARTIES TO THE PROCEEDINGS BELOW
Pursuant to Rule 14.1(b), the parties to the
proceedings below include petitioner, respondent, and
Central Alabama Community College, a defendant-
appellee below.
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................:..---000- i
PARTIES TO THE PROCEEDINGS BELOW..... ii
TABLE OF AUTHORITIES ..................2-.-essc00+- iv
PETITION FOR A WRIT OF CERTIORARI ....... 1
Te 1
Ee 1
STATEMENT OF THE CASE............000....-.-.2-2:00+ 1
REASONS FOR GRANTING THE WRIT............ 6
I. The Eleventh Circuit’s Holding Conflicts
With The Precedents Of Other Courts Of
Ee 6
Il. The Eleventh Circuit’s Decision Conflicts
With This Court’s Precedents...................... 14
EEE 24
EE Ae la
Appendix A, Court of Appeals Decision ............. la
Appendix B, District Court Decision ................. 9a
iv
TABLE OF AUTHORITIES
Cases
Blair v. United States,
ET ee ree 18
Brammer-Hoelter v. Twin Peaks Charter Acad.,
492 F.3d 1192 (10th Cir. 2007).........20000000.0000.. 12
Branzburg v. Hayes,
ee passim
Briscoe v. LaHue,
EES SS ER ON oe 18
Calkins v. Sumner,
ST, i eliceieeneiel 18
Casey v. Cabool,
> ee b& ] To | een 12
Charles v. Grief,
§22 F.3d 506 (Sth Cir. 2006)....................0....ccccceeee 12
Chrzanowski v. Bianchi,
728 F.3d 734 (7th Cir. 2013).......................... 8,9, 12
Clairmont v. Sound Mental Health,
632 F.3d 1091 (9th Cir. 2011)........................ passim
Connick v. Myers,
I i 15, 21
Dahlia v. Rodriguez,
No. 10-55978, -- F.3d -—--, 2013 WL 4437594
ee Es Eile, SEIN ceticnsiininsscinsiscitinaiinsninamascamniviien 11
Davis v. Cook Cnty.,
534 F.3d 650 (7th Cir. 2008).................ceeeceeeeeeeeeeee 12
Fairley v. Fermaint,
7 Fe ft phy, Le Rene yg
Garcetti v. Ceballos,
ey I ii cicsicssesisiiniisiabineibiiiansania passim
Huppert v. City of Pittsburg,
574 F.3d 696 (Sth Cir.2009)...................ccccccocccceeeees 11
Karl v. City of Mountlake Terrace,
678 F.3d 1062 (9th Cir. 2012).............-............ 10, 13
Morales v. Jones,
494 F.3d 590 (7th Cir. 2007)...............-.......... 5,9,14
Morris v. Crow,
Fr gs FB, [et Le | Se 20
Pickering v. Bd. of Educ. of Twp. High Sch. Dist.
205,
I i 14, 16, 22
Piemonte v. United States,
Lt RAEI S ane a ME 19
Rehberg v. Paulk,
RIES Re ea en gem cee 19
Reilly v. City of Atlantic City,
532 F.3d 216 (3d Cir. 2008) ........................... passim
Snyder v. Phelps,
| ERAN Reo taees 21
United States v. Calandra,
ERE ee een eee oboe 18, 19
United States v. Havens,
ERSTE TS Sesh oer Ben 18
United States v. N.Y. Tel. Co.,
I as 19
United States v. Nixon,
ie 7,18
United States v. Schmitz,
634 F.3d 1247 (11th Cir. 2011).......00...0000000ee. 3, 22
vi
Wilburn v. Robinson,
480 F.3d 1140 (D.C. Cir. 2007).................:cc2sse00s
Statutes
I i a at
Ala. Code § 36-26-10(bX5) .................2.-ccceeceeeeeeeeeeees
I a
Other Authorities
Public Employees for Environmental
Responsibility, State Whistleblower Laws —
Overview,
http//www.peer.org/assets/docs/wbp2/overvie
Schmitz Fraud Trial Begins Today,
The Birmingham News, Aug. 18, 2008...............
Schmitz’s Case Grows into War of Words,
The Birmingham News, May 7, 2008 .................
Virginia Martin, CITY Coordinator Testifies
About Schmitz’s Work,
The Birmingham News, Feb. 17, 2009...............
PETITION FOR A WRIT OF CERTIORARI
Petitioner Edward Lane respectfully petitions for
a writ of certiorari to review the judgment of the
United States Court of Appeals for the Eleventh
Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1la-
8a) is unpublished. The district court’s opinion (Pet.
App. 9a-35a) is unpublished.
JURISDICTION
The court of appeals issued its judgment on July
24, 2013. Pet. App. la. This Court has jurisdiction
pursuant to 28 U.S.C. § 1254(1).
STATEMENT OF THE CASE
This is a First Amendment retaliation case arising
from a public employee’s truthful subpoenaed
testimony in a federal fraud prosecution. Petitioner
alleges that respondents terminated him in retaliation
for his compelled testimony at the criminal trial of a
corrupt legislator who abused her position to defraud
the government. Affirming the district court, the court
of appeals held that respondents were completely free
under the First Amendment to retaliate against
petitioner for that testimony by firing him. The court
of appeals expressly recognized that its decision
conflicts with the precedent of at least two other
circuits.
1. Petitioner is the former Director of the
Community Intensive Training for Youth Program
(“CITY”) of Central Alabama Community College.
CITY is a training program for at-risk youth that
2
operated in part with federal funding. This case arises
from petitioners testimony in a federal fraud
prosecution brought by the U.S. Attorney for the
Northern District of Alabama against Suzanne
Schmitz, an Alabama state legislator. The United
States prosecuted Schmitz for fraudulently arranging
and concealing a no-show job for herself with CITY.
The prosecution subpoenaed petitioner to testify
both before a federal grand jury and at two criminal
trials. Pet. App. 12a. Petitioner truthfully testified
that, in the course of an audit of CITY’s finances, he
learned that Representative Schmitz was receiving a
paycheck from CITY—and indeed was one of its
highest-paid employees—but was not doing any work
for CITY. Id. 3a, 12a-13a. Petitioner attempted to
require Schmitz to perform work commensurate with
her position, including by assigning her to work as a
counselor. Schmitz refused. After petitioner
terminated Schmitz for nonperformance, Schmitz
informed another CITY employee that she intended to
“get [petitioner] back,” and that, if petitioner ever
sought funds for CITY from the legislature, she would
inform him, “you’re fired.” Jd. 2a, 11a.
In the wake of petitioner’s testimony, the grand
jury returned an indictment charging Schmitz with
fraud in connection with federal funds and mail fraud.
Petitioner testified again at Schmitz’s two criminal
trials (the first of which ended in a mistrial), and a
jury convicted Schmitz of all counts but one. Jd. 3a. In
subsequently affirming Schmitz’s conviction for mail
fraud, the Eleventh Circuit explained that:
3
Schmitz engaged in a calculated and extensive
pattern of fraudulent conduct designed to allow
her to collect a state-government salary while
performing almost no work. She accomplished
this scheme through demonstrably false reports
and time sheets. And, when people started
asking questions, she used her status as state
legislator to keep the scheme going.
United States v. Schmitz, 634 F.3d 1247, 1265 (11th
Cir. 2011). All told, Schmitz fraudulently obtained
$177,251.82 in public funds. She was ultimately
sentenced to thirty months’ imprisonment, and forced
to pay restitution. |
Soon after petitioner testified at Schmitz’s first
trial, respondent Steve Franks—President of the
Central Alabama Community College—fired
petitioner. Pet. App. 3a. The stated rationale for the
termination was CITY’s poor financial status. Jd. 14a.
Indeed, CITY nominally terminated all of its twenty-
nine recent hires (including petitioner) who were
deemed “probationary employees.” But just two days
later, Franks rescinded all the terminations but those
of petitioner and one other employee. CITY then
replaced petitioner with a new interim director. Jd. 3a-
4a.
2. Petitioner filed this lawsuit, alleging that his
termination constituted retaliation for his testimony
against Schmitz in violation of the First Amendment
4
and state law.' Pet. App. 4a. Petitioner alleged that
Franks terminated him as retribution for the
testimony, in collaboration with Schmitz and her
political allies. Jd. 4a, 14a-15a. He sought damages
and equitable relief, including reinstatement to the
“position in which he would have worked absent the
Defendant’s retaliatory treatment.” /d. 23a-24a.
Franks filed a motion for summary judgment,
which the distmct court granted. The court recognized
that “genuine issues of material fact exist in this case
concerning Dr. Franks’ true motivation for
terminating Mr. Lane’s employment,” but it held that
petitioner’s claims were barred. Jd. 2la. The district
court held that petitioner’s compelled testimony was
not entitled to any First Amendment protection.
Applying Eleventh Circuit precedent, the court
explained that
Mr. Lane’s testimony did not occur in the
workplace, but he learned of the information
that he testified about while working as
Director at C.1.T.Y. Because he learned the
information while performing in his official
capacity as Director at C.1.T.Y., the speech can
still be considered as part of his official job
duties and not made as a citizen on a matter of
public concern.
Id. 29a.
' Petitioner also initially brought claims against Central
Alabama Community College and claims under state law. He has
not pursued those claims, and they are not at issue here.
5
On petitioner's appeal, the Eleventh Circuit
affirmed, agreeing with the district court that no
constitutional violation had occurred because
petitioners speech was not protected. Pet. App. 4a.
The court read its precedent to hold that subpoenaed
testimony regarding facts that relate to a_ public
employee’s official duties is not protected speech
because it is not made “as a public comment” on the
employer's practices. Id. 6a (quotation marks
omitted). The court explained that the fact “[t}hat
Lane testified about his official activities pursuant to a
subpoena and in the litigation context, in and of itself,
does not bring Lane’s speech within the protection of
the First Amendment.” Jd. 7a. It brushed aside the
fact that petitioner's “official duties did not distinctly
require him to testify at criminal! trials” by stating
that “formal job descriptions do not control.” ld.
Instead, it deemed dispositive that petitioner had been
subpoenaed to testify because he was “acting pursuant
to his official duties as CITY’s Director when he
investigated Schmitz’s work activities, spoke with
Schmitz and other CACC officials about Schmitz’s
employment, and ultimately terminated Schmitz’s
employment.” /d.
The Eleventh Circuit did not identify any court
that had adopted its view of the First Amendment and
acknowledged that “lo|ther circuits seem to have
decided this issue differently.” /d. 7a n.3. It cited as
examples the Third and Seventh Circuits’ adoption of
the opposite rule that subpoenaed testimony is always
protected by the First Amendment. /d. (citing Morales
v. Jones, 494 F.3d 590, 598 (7th Cir. 2007) and Reilly
v. City of Atlantic City, 532 F.3d 216 (3d Cir. 2008)).
6
But the Eleventh Circuit deemed those decisions
inconsistent with its own precedent, and gave them no
weight. Jd.
The court further held that because no First
Amendment violation had occurred at all, it
necessarily followed that Franks would be entitled to
qualified immunity vis-a-vis a claim for damages. /d.
4a n.2. Having resolved the issue solely as a matter of
First Amendment law and qualified immunity, the
court of appeals declined to “decide about Franks’s
defense of sovereign immunity.” Jd. 4a.
This petition followed.
REASONS FOR GRANTING THE WRIT
In denying any First Amendment protection to
petitioner's subpoenaed testimony, the Eleventh
Circuit applied a uniquely restrictive interpretation of
the First Amendment. That holding conflicts with the
precedents of at least three other federal circuits, as
well as with this Court’s holdings regarding public
employee speech and the public interest in sworn
testimony.
I. The Eleventh Circuit’s Holding Conflicts
With The Precedents Of Other Courts Of
Appeals.
The Eleventh Circuit’s decision denying First
Amendment protection to subpoenaed testimony
conflicts with settled precedent in the Third, Seventh,
and Ninth Circuits.
1. In Reilly v. City of Atlantic City, 532 F.3d 216,
231 (3d Cir. 2008), the plaintiff police officer conducted
7
an internal corruption investigation and then related
the results of that investigation in sworn testimony.
After he was disciplined in retaliation, he filed suit.
The Third Circuit held that the First Amendment’s
protections apply to that testimony. /d.
The Third Circuit reasoned that “[wlhen a
government employee testifies truthfully, s/he is not
‘simply performing his or her job duties’; rather, the
employee is acting as a citizen.” Jd. (quoting Garcett:
v. Ceballos, 547 U.S. 410, 423 (2006)). On its view,
“(t]he notion that all citizens owe an independent duty
to society to testify in court proceedings is... well-
grounded in Supreme Court precedent.” Jd. at 229. It
cited Branzburg v. Hayes, 408 U.S. 665, 686 (1972),
which held that the so-called newsman’s privilege was
“outweighed by the general obligation of a citizen to
appear before a grand jury or at trial, pursuant to a
subpoena, and give what information he possesses,” as
well as United States v. Nixon, 418 U.S. 683, 709
(1974), which explained:
The very integrity of the judicial system and
public confidence in the system depend on full
disclosure of all the facts, within the framework
of the rules of evidence. To ensure that justice
is done, it is imperative to the function of courts
that compulsory process be available for the
production of evidence needed either by the
prosecution or by the defense.
See Reilly, 532 F.3d at 229.
The Third Circuit specifically rejected the
defendants’ argument that under this Court’s decision
in Garcetti, the plaintiff officer’s testimony was
8
unprotected because it “stemmed from his official
duties in the investigation.” Jd. at 231.
The Third Circuit further found that the
defendants were not entitled to qualified immunity,
reasoning that “(t]he protected status of courtroom
testimony was clearly established” well before, and
was not called into question by, Garcetti. Id. at 232.
The Seventh Circuit has adopted the identical rule
that “lwj]hen a public employee gives testimony
pursuant to a subpoena, fulfilling the ‘general
obligation of |every| citizen to appear before a grand
jury or at trial,’ he speaks ‘as a citizen’ for First
Amendment purposes.” ChArzanowski v. Bianchi, 725
F.3d 734, 741 (7th Cir. 2013) (quoting Branzbury, 408
U.S. at 686). In Chrzanowski, a state prosecutor
provided subpoenaed testimony against his supervisor,
and was subsequently fired. /d. at 736-37. The court
found his speech protected, and held that qualified
immunity did not apply. See id. at 743.
The Seventh Circuit reasoned that “|clareful
attention to the reasoning behind Garcetti” dictated its
result. Jd. at 741. The court explained that Garcetti’s
rule distinguishing between unprotected speech made
pursuant to official duties and protected private
speech rested on three bases: first, that the individual
employee does not have a personal stake in speech
made pursuant to official duties; second, that
restrictions on speech made pursuant to official duties
do not undermine the societal value of public speech,
because the public employee remains free _ to
participate in civic discourse; and finally, that a
contrary approach would interject the federal courts
9
into garden-variety disputes between public employees
and their superiors. /d.
The Seventh Circuit concluded that subpoenaed
testimony does not implicate any of these concerns.
First, “the individual person has a strong interest in
complying with the demands of a subpoena: apart from
whatever desire a public employee might have to
assist in the administration of justice, failure to
comply with a subpoena can result in lengthy
incarceration.” Jd. Second, “|t]he public also has a
substantial interest in hearing such speech.” Jd. at
742. Indeed, the root of the subpoena power is the
notion that the “public... has a right to every man’s
evidence.” Jd. (quoting Branzburg, 408 U.S. at 688).
And finally, there is no risk that protecting
subpoenaed testimony would — constitutionalize
employment grievances, because employers have no
legitimate interest in dissuading their employees from
testifying truthfully pursuant to a subpoena. Jd. The
Seventh Circuit’s ruling is consistent with a settled
line of that court’s precedent. See Morales v. Jones,
494 F.3d 590, 603-04 (7th Cir. 2007) (holding that a
police officer’s testimony at a civil deposition for a co-
worker's lawsuit was protected speech); Fairley vu.
Fermaint, 482 F.3d 897, 902 (7th Cir. 2007) (holding
that the First Amendment protected prison guards
who testified about prison conditions in support of
inmate lawsuits).
The Ninth Circuit applies a similar rule. In
Clairmont v. Sound Mental Health, 632 F.3d 1091 (9th
Cir. 2011), the court held that the First Amendment
prohibits retaliation against a mental health worker
10
who testified under subpoena in a criminal proceeding.
The defendant argued that the testimony was
pursuant to the employee’s duties because “the content
.. . described the nature of his duties as a contract
counselor.” Jd. at 1106. Relying on Garcetti, the Ninth
Circuit rejected that argument, explaining that public
employees are the most likely to be well-informed
about the subject matter of their employment, so that
it is “essential that they be able to speak out freely on
such questions without fear of retaliatory dismissal.”
Id. (quoting Garcetti, 547 U.S. at 421). Because there
was “no evidence that testifying in court. .. was a part
of [the plaintiffs] official duties,” the speech was
properly regarded as private speech. /d. The court
further rejected the defendant’s claim to qualified
immunity, as the relevant right had been long
established. /d. at 1110.
Similarly, in Karl v. City of Mountlake Terrace,
678 F.3d 1062 (9th Cir. 2012), a_ confidential
administrative assistant gave subpoenaed deposition
testimony in a civil rights lawsuit. The court held that
her testimony related to a matter of public concern,
and that, indeed, it was “not a close case.” /d. at 1069
(quotation marks omitted). The employee’s testimony
was properly characterized as that of a private citizen,
even though “her relevant knowledge was acquired by
virtue of her position” because “[|whhile {her!|
knowledge about certain work-related matters may
owe its existence to her job as a confidential assistant,
her testimony .. . does not.” Jd. at 1072. The court
noted that a confidential assistant had no “duty under
state law .. . to testify truthfully as part of her
professional responsibilities.” Id. at 1071 n.4. And it
ll
rejected the defendant’s claim of qualified immunity as
foreclosed by Garcetti, holding that “a reasonable
official would also have known that a_ public
employee’s speech on a matter of public concern is
protected if the speech is not made pursuant to her
official job duties, even if the testimony itself
addresses matters of employment.” /d. at 1074 (citing
Garcetti, 547 U.S. at 421). See also Dahlia v.
Rodriguez, No. 10-55978, — F.3d —--, 2013 WL
4437594, at *1 (9th Cir. Aug. 21, 2013) (en banc)
(overruling the holding of Huppert v. City of Pittsburg,
574 F.3d 696 (9th Cir. 2009), that a police officer's
testimony regarding departmental corruption was not
protected because, under California law, police officers
were required to testify to grand juries as part of their
jobs).
2. The Eleventh Circuit correctly acknowledged
that other courts of appeals would have resolved the
First Amendment issue in petitioner's favor. See Pet.
App. 7a n.3. Under the precedent of the Third,
Seventh, and Ninth Circuits, petitioner's subpoenaed
testimony would have been entitled to full First
Amendment protection as citizen speech on a matter of
public concern. The fact that those courts have
decided multiple cases specifically rejecting the
rationale adopted by the Eleventh Circuit
demonstrates that the conflict is intractable and
cannot be resolved without this Court’s intervention.*
* This case also implicates a secondary conflict over the
proper standard of review governing whether speech is made in
12
The Third and Seventh Circuits adopt the most
protective rule, holding categorically that whenever a
public employee testifies pursuant to a subpoena, the
First Amendment protects the speech. See Reilly, 532
F.3d at 231; Chrzanowski, 725 F.3d at 741. As the
Third Circuit explained, the First Amendment
therefore applies even if “an employee's official
responsibilities provided the initial impetus to appear
in court.” Reilly, 532 F.3d at 231. Here, petitioner
testified pursuant to a subpoena, and under the
precedent of these two circuits, his speech would be
protected on that basis alone.
the course of an employee's duty. The Eleventh Circuit held that
“lw/hether the subject speech was made by the public employee
speaking as a citizen or as part of the employee's job
responsibilities is a question of law for the court to decide.” Pet.
App. 6a. The Fifth, Tenth, and D.C. Circuits agree. See Charles
v. Grvef, 522 F.3d 508, 513 0.17 (5th Cir. 2008); Brammer-Hoelter
v. Twin Peaks Charter Acad., 492 F.3d 1192, 1202-03 (10th Cir
2007); Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C. Cir. 2007).
The Third, Seventh, Eighth, and Ninth Circuits, on the other
hand, have reached a contrary result, holding that “whether a
particular incident of speech is made within a particular
plaintiffs job duties is a mixed question of fact and law” to be
resolved by the trier of fact. Reilly, 532 F.3d at 227; see also
Davis v. Cook Cnty., 534 F.3d 650, 653 (7th Cir. 2008); Casey v.
Cabool, 12 F.3d 799, 803 (8th Cir. 1993) (“[A}]ny underlying
factual disputes concerning whether the speech at issue [is]
protected should [be} submitted to the jury.”); Clairmont, 632
F.3d at 1105. Because this case was decided on summary
judgment, it provides an appropriate vehicle for illuminating this
conflict as well.
13
The Ninth Circuit’s rule favors public employers
slightly more; it permits an inquiry into whether the
petitioner’s job duties include sworn testimony. But
that court would have ruled in petitioner's favor
because here, as in Clairmont, there was “no evidence
that testifying in court . . . was a part of [petitioner’s)
official duties.” 632 F.3d at 1106. Petitioner was a
civil servant directing a program for at-risk youth. He
was not a law enforcement official, nor was he the sort
of employee who would regularly appear in court for
any reason. All he did was cooperate with a subpoena,
issued by a federal court, to appear and testify
truthfully. That subpoena was issued to him in his
individual capacity, and the consequences for defying
the subpoena were his alone to bear. Under the Ninth
Circuit’s rule, petitioner's speech would have been
protected.
The Eleventh Circuit reached a contrary result in
this case by emphasizing that “the subject matter of
[petitioner’s} testimony touched only on acts he
performed as part of his official duties,” Pet. App. 7a.
But the Third, Seventh, and Ninth Circuits have all
held that same fact to be essentially irrelevant. See
Karl, 678 F.3d at 1074 (“|A) public employee's speech
on a matter of public concern is protected if the speech
is not made pursuant to her official job duties, even if
the testimony’ itself addresses matters’ of
employment.”); Reilly, 532 F.3d at 231 (“[Tlhe speech
at issue on this appeal, Reilly’s trial testimony,
appears to have stemmed from his official duties in the
investigation,” but “the act of offering truthful
testimony is the responsibility of every citizen, and the
First Amendment protection associated with fulfilling
14
that duty of citizenship is not vitiated by one’s status
as a public employee.”); Morales, 494 F.3d at 598
(“Morales testified about speech he made pursuant to
his official duties and we must determine whether that
fact renders his deposition unprotected. We hold that
it does not.”).
Moreover, the Third, Seventh, and Ninth Circuits
would each have held that Franks was not entitled to
qualified immunity. As the various courts of appeals
explained, this Court’s public employee speech cases
and its cases regarding the importance of sworn
testimony all indicate that sworn testimony by public
employees merits First Amendment protection. See
Clairmont, 632 F.3d at 1109; Morales, 494 F.3d at 605-
06 (Rovner, J., concurring); Reilly, 532 F.3d at 232;
This Court’s precedents have been on the books for
years, and certainly long before 2009, when petitioner
was terminated.
ll. The Eleventh Circuit’s Holding Conflicts
With This Court’s Precedents.
Certiorari also is warranted because the Eleventh
Circuit’s holding is contrary to this Court’s precedents
regarding both public employee speech and the role of
sworn testimony.
“[A] citizen who works for the government is
nonetheless a citizen.” Garcetti v. Ceballos, 547 U.S.
410, 419 (2006). Because “the threat of dismissal from
public employment is . . . a potent means of inhibiting
speech,” Pickering v. Bd. of Educ. of Twp. High Sch.
Dist. 205, 391 U.S. 563, 574 (1968), “[t]he First
Amendment limits the ability of a public employer to
15
leverage the employment relationship to restrict,
incidentally or intentionally, the liberties employees
enjoy in their capacities as private citizens,” Garcetti,
547 U.S. at 417. Those liberties necessarily include
the right to participate in public affairs, and to
comment on matters of public concern. See Connick v.
Myers, 461 U.S. 138, 145 (1983); Pickering, 391 US. at
573-74.
This Court has held that the employee's First
Amendment interests must give way to an employer's
prerogatives in two circumstances. First, some speech
is altogether unprotected. “When employee expression
cannot be fairly considered as relating to any matter of
political, social, or other concern to the community,
government officials should enjoy wide latitude in
managing their offices, without intrusive oversight by
the judiciary in the name of the First Amendment.”
Connick, 461 U.S. at 146. Thus, for example, “an
employee grievance concerning internal office policy”
does not receive First Amendment protection. /d. at
154. Similarly, “when public employees make
statements pursuant to their official duties, the
employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not
insulate their communications from employer
discipline.” Garcetti, 547 U.S. at 421.
Second, if the speech is protected, “{t}he question
becomes whether the relevant government entity had
an adequate justification for treating the employee
differently from any other member of the general
public.” Jd. at 418. In such cases, the court must find
“a balance between the interests of the [employee], as
16
a citizen, in commenting upon matters of public
concern and the interest of the State, as an employer,
in promoting the efficiency of the public services it
performs through its employees.” Pickering, 391 U.S.
at 568. Thus, any restriction on protected employee
speech “must be directed at speech that has some
potential to affect the entity’s operations.” Garcetti,
547 U.S. at 418.
In Garcetti v. Ceballos, this Court synthesized
these principles to hold that “[s]o long as employees
are speaking as citizens about matters of public
concern, they must face only those speech restrictions
that are necessary for their employers to operate
efficiently and effectively.” /d. at 419. Because the
parties in Garcetti agreed that the employee’s speech
was made in the course of his duties, the Court held it
unprotected, and declined to establish “a
comprehensive framework for defining the scope of an
employee’s duties in cases where there is room for
serious debate.” /d. at 424. However, the Court did
specify that “|t]he proper inquiry is a practical one,”
and that courts should take care to ensure that
employers do not “restrict employees’ rights by
creating excessively broad job descriptions” in an effort
to disable First Amendment protection for employee
speech. Id.
When a public employee speaks on a matter of
public concern, the First Amendment protects that
speech not only to vindicate the nghts of the employee
himself, but also to safeguard “the public’s interest in
receiving the well-informed views of government
employees engaging in civic discussion.” Jd. After all,
17
public employees are “the members of a community
most likely to have informed and definite opinions”
about topics that relate to their empl “ment, such that
repressing their views would impoverish public debate,
imposing “widespread costs” on society in general. Id.
(quotation marks and citation omitted).
Society has a strong interest in facilitating sworn
testimony in public corruption investigations, lest the
corruption continue unchecked. Public employees
have vital information relating to fraud, waste, and
abuse in the government. If the First Amendment
fails to protect them when they speak out, there is a
substantial msk that they will be deterred from coming
forward in the first instance, especially in cases like
this one involving powerful public figures who express
their willingness to retaliate against whistleblowers.
See Pet. App. 2a, lla’
es | ——_ - ———
* As this case illustrates, the existing patchwork of
whistleblower protections cannot vindicate society's interest in
combating corruption. Count I of petitioner's amended complaint
sought relief under the Alabama State Employees Protection Act,
which protects public employees from retaliation if the employee
“reports, under oath or in the form of an affidavit, a violation of a
law, a regulation, or a rule, promulgated pursuant to the laws of
this state, or a political subdivision of this state, to a public body”
Ala. Code § 36-26A-3. The distnct court denied that claim for two
reasons. First, the statute expressly exempts “[alll officers and
employees of the state’s institutions of higher learning” from the
scope of its coverage, so petitioner cannot state a claim under it.
Ala. Code § 36-26-10(b5). Second, federal courts enforcing
federal laws do not qualify as “public bodies” under the statute, so
petitioner's grand jury testimony ts categorically not protected by
18
The societal interest in public employee speech is
at its zenith in cases involving subpoenaed testimony.
A citizen’s “duty to testify has been regarded as ‘so
necessary to the administration of justice’ that the
witness’ personal interest in privacy must yield to the
public’s overriding interest in full disclosure.” United
States v. Calandra, 414 U.S. 338, 345 (1974) (quoting
Blair v. United States, 250 U.S. 273, 281 (1919)).
Thus, “public policy ... requires that the paths which
lead to the ascertainment of truth should be left as
free and unobstructed as possible.” Briscoe v. LaHue,
460 U.S. 325, 333 (1983) (quoting Calkins v. Sumner,
13 Wis. 193, 197 (1860)); see also United States v.
Havens, 446 U.S. 620, 626 (1980) (“There is no
gainsaying that arriving at the truth is a fundamental
goal of our legal system.”). The obligation to respond
to a subpoena overrides not only an individual’s
interest in privacy, but also a journalist’s interest in
protecting his sources, Branzburg v. Hayes, 408 U.S.
665, 690-91 (1972), and even a President’s executive
prerogative, see United States v. Nixon, 418 U.S. 683,
709 (1974). Just recently, this Court recognized the
importance of such testimony when it held that grand
the statute. The Alabama statute is not unique—indeed, it is not
even unusual. State whistleblower statutes often include
idiosyncratic limitations or exhaustion requirements that render
them inapplicable in crucial cases. See, e.g., Public Employees for
Environmental Responsibility, State Whistleblower Laws -
Overview, http://www.peer.org/assets/docs/wbp2/overview .pdf
(last visited Oct. 15, 2013) (comparing and contrasting features of
state whistleblower laws).
19
jury witnesses are absolutely immune from suits
arising from their testimony. See Rehberg v. Paulk,
132 S. Ct. 1497, 1506 (2012).
Importantly, the obligation to respond truthfully
to a subpoena is “shared by all citizens,” and not
incidental to public employment. See Cohen v. Cowles
Media Co., 501 U.S. 663, 669 (1991) (emphasis added)
(citing Branzburg, 408 U.S. at 669); see also Calandra,
414 U.S. at 345 (“The duty to testify has long been
recognized as a basic obligation that every citizen owes
his Government.”); Piemonte v. United States, 367 U.S.
556, 559 n.2 (1961) (“Every citizen of course owes to
his society the duty of giving testimony to aid in the
enforcement of the law.”); United States v. N.Y. Tel.
Co., 434 U.S. 159, 175 n.24 (1977). No citizen—
whether employed by a government or not—may
refuse to comply with a subpoena without risking
contempt. And public employment will not shield a
citizen from the obligation to testify truthfully. A
testifying public employee—like any other citizen—is
individually compelled to give his evidence. He is not
summoned in his official capacity, and the penalty if
he does not comply does not run to his office, but
instead affects him directly and personally. He alone
bears the risk of perjury and contempt, and therefore
it is his own interest and society’s interest in the truth,
and not the interests of his employer, that are at stake
when he testifies.
Consequently, when a public employee responds to
a subpoena, the most natural conclusion is that he is
speaking “as a citizen addressing matters of public
concern.” Garcetti, 547 U.S. at 417. Indeed, in
20
Garcetti, Justice Souter highlighted—without any
disagreement from the majority—the unique
importance of sworn testimony, arguing that on
remand, the plaintiffs “claim relating to truthful
testimony in court must surely be analyzed
independently to protect the integrity of the judicial
process.” Id. at 444 (Souter, J., dissenting).
Of course, it may be possible to imagine cases in
which a _ public employee’s duties include such
testimony—and in such cases, the most natural
conclusion may not be correct—but this is not such a
case. Petitioner’s job was to direct the CITY program:
to manage its budget and staff, and to ensure that it
provided a safe, productive environment for young
people who needed help getting back on _ track.
Nowhere—in his official job responsibilities, or
anywhere else—was there any obligation to testify in
the federal criminal trial of a corrupt legislator.
In reaching a contrary result, the Eleventh Circuit
erred twice. First, without acknowledging the import
of this Court’s decision in Garcetti, or any of this
Court’s settled precedents relating to the societal
interest in subpoenaed testimony, the court of appeals
applied its prior precedent to hold that truthful
testimony “given merely ‘in compliance with a
subpoena to testify truthfully—and not as a ‘public
comment on... . office policies and procedures, the
internal workings of the department, the quality of its
employees or upon any issue at all— ... was
unprotected under the First Amendment.” Pet. App.
6a-7a (quoting Morris v. Crow, 142 F.3d 1379, 1382-83
(11th Cir. 1998)).
21
This reasoning is wrong because it enacts a
crabbed interpretation of the concept of “speech on a
matter of public concern.” Under the Eleventh
Circuit’s interpretation, speech apparently only relates
to a matter of public concern if the speaker
subjectively intends to make a personal political
statement about his employer. But this Court’s
precedents are not so narrow. In Snyder v. Phelps, 131
S. Ct. 1207, 1216 (2011), for example, this Court
explained that “[s]peech deals with matters of public
concern when it can be fairly considered as relating to
any matter of political, social, or other concern to the
community, or when it is a subject of legitimate news
interest: that is, a subject of general interest and of
value and concern to the public” (internal quotation
marks and citations omitted). This Court’s precedents
also call for courts to evaluate the “content, form, and
context” of the speech, “as revealed by the whole
record.” Connick, 461 U.S. at 147-48.
The Eleventh Circuit spurned this _ inquiry,
affording no weight to the “context” of petitioner’s
statements: subpoenaed testimony in the federal
corruption trial of an elected official. As the cases
relating to subpoenas, supra, establish, the context of
subpoenaed testimony should be dispositive, because
messages delivered by a subpoenaed witness to a
federal court relate ipso facto to matters of public
concern, i.e., to society’s interest in knowing the truth
and upholding the law.
Here, however, that general interest in justice is
only the tip of the iceberg, because the content of
petitioner’s testimony was itself plainly a matter of
22
public concern. Schmitz’s federal criminal case, as
explained by panel that upheld her conviction,
involved “a calculated and extensive pattern of
fraudulent conduct designed to allow her to collect a
state-government salary while performing almost no
work.... And, when people started asking questions,
she used her status as state legislator to keep the
scheme going.” United States v. Schmitz, 634 F.3d
1247, 1265 (11th Cir. 2011). The outcome of the case
resulted in the removal of an elected official from
office. And regular developments in the case
repeatedly made headlines. See, e.g., Virginia Martin,
CITY Coordinator Testifies About Schmitz’s Work, The
Birmingham News, Feb. 17, 2009; Schmitz Fraud
Trial Begins Today, The Birmingham News, Aug. 18,
2008; Schmitz’s Case Grows into War of Words, The
Birmingham News, May 7, 2008. It is difficult to
imagine a better paragon of a “matter of public
concern.”
The Eleventh Circuit erred a second time when it
emphasized that “the subject matter of [petitioner’s]
testimony touched only acts that he performed as part
of his official duties” to support its conclusion that the
testimony itself was pursuant to those duties. Pet.
App. 7a. That holding flies in the face of this Court’s
admonition in Garcetti and in Pickering that public
employees—by virtue of their expertise and
experience—may possess knowledge that is uniquely
valuable. It makes no sense to hold, as the Eleventh
Circuit did, that speech offered in a public forum far
removed from petitioner’s place of employment, for a
purpose unrelated to that employment, is unprotected
23
merely because it related to facts that he learned while
on the job. This Court’s cases stand for exactly the
opposite proposition: that the public has a strong
interest in hearing from public employees on matters
of public concern that implicates those employees’
specialized knowledge. This case bears that out: the
people best situated to testify regarding Schmitz’s
corruption were employees of the CITY program, who
witnessed firsthand her failure to perform; and of
those employees, petitioner was the best situated of
all.
The Eleventh Circuit’s analysis is not merely
wrong in light of this Court’s precedents, but obviously
so. As the decisions of the Third, Seventh, and Ninth
Circuits establish, a close reading of this Court’s cases
forecloses the flippant treatment that the Eleventh
Circuit here afforded to petitioner’s testimony.
Although the Eleventh Circuit applied its precedent,
both that holding and the court’s conclusion regarding
qualified immunity should be reversed. Any other
result would sanction retaliation against a citizen who
did nothing more than his duty—as a citizen—to tell
the truth in support of a federal criminal investigation.
24
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
Thomas C. Goldstein
Counsel of Record
Tejinder Singh
GOLDSTEIN &
RUSSELL, P.C.
5225 Wisconsin Ave. NW
Suite 404
Washington, DC 20015
(202) 362-0636
tg@goldsteinrussell.com
October 15, 2013
APPENDIX
la
APPENDIX A
{DO NOT PUBLISH}
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 12-16192
Non-Argument Calendar
Docket No. 4:1 1-cv-00883-KOB
EDWARD R. LANE,
Plaintiff-Appellant,
versus
CENTRAL ALABAMA COMMUNITY
COLLEGE, STEVE FRANKS, Dr.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern Distnct of Alabama
(July 24, 2013)
Before MARTIN, FAY, and EDMONDSON, Circuit
Judges.
2a
PER CURIAM:
Edward Lane appeals the district court’s grant of
summary judgment in favor of Steve Franks, the
president of Central Alabama Community College
(“CACC”), in his 42 U.S.C. § 1983 lawsuit alleging
retaliation in violation of the First Amendment. No
reversible error has been shown; we affirm.
In September 2006, Lane accepted a probationary
position as Director of CACC’s Community Intensive
Training for Youth Program (“CITY”), a program for
at-risk youth. Soon after assuming his duties, Lane
audited CITY’s finances and discovered that then-state
representative Suzanne Schmitz was listed on CITY’s
payroll but was not reporting for work and had not
otherwise performed tangible work for the program.
When Lane raised his concerns about Schmitz
internally, he was warned by CACC’s then-president
and by CACC’s lawyer that terminating Schmitz’s
employment could have negative repercussions for
both Lane and CACC. Despite these warnings, Lane
terminated Schmitz’s employment with CITY after
Schmitz refused to report to work.
Schmitz filed a lawsuit seeking to get her job back.
Schmitz also commented to another CITY employee
that she planned to “get [Lane] back” for terminating
her and that, if Lane requested money from the state
legislature, she would tell him “you're fired.”
Soon after Schmitz’s job termination, the FBI
began investigating Schmitz and contacted Lane for
information. Lane testified before a federal grand jury
and -- pursuant to a subpoena -- testified at Schmitz’s
3a
August 2008 federal criminal trial for mail fraud and
fraud involving a program receiving federal funds.
Lane testified that Schmitz had not reported to
work and had not submitted time sheets. Lane
described a couple of telephone conversations he had
with Schmitz during which Lane asked about
Schmitz’s work responsibilities and explained that he
needed to account for her day-to-day activities for
CITY. Lane instructed Schmitz - verbally and in
writing -- to start reporting daily to CITY’s Huntsville
office. Over the phone, Schmitz responded by telling
Lane that she had gotten her job through her
connections with the Executive Secretary of the
Alabama Education Association. Schmitz later sent a
letter in which she refused to report to the Huntsville
office and requested that she be allowed to “continue to
serve the CITY Program in the same manner as |she
had} in the past.” Lane testified the he had expressed
his concerns about Schmitz’s position with CACC’s
interim president, who agreed that Lane needed to get
Schmitz to report to work. Lane testified to these facts
again at Schmitz’s second criminal trial in February
2009.
In late 2008 - due to substantial budget cuts —
Lane and Franks began discussing the possibility of
employee layoffs, including laying off all probationary
employees. In January 2009, Franks sent termination
letters to 29 CITY employees with less than 3 years of
service, which included Lane. A few days later,
however, Franks rescinded nearly all of those
terminations: Lane was one of only two employees
whose termination was not rescinded. According to
4a
Franks, he rescinded the other terminations after
discovering that many of the CITY employees were not
in fact probationary.
Lane filed a civil action against Franks -- in both
his official and individual capacity -- alleging that
Franks terminated Lane in retaliation for testifying
against Schmitz, in violation of the First Amendment.'
The district court granted Franks’s motion for
summary judgment. Although the district court
couched its decision in terms of qualified immunity, it
determined that Lane’s speech was made pursuant to
his official duties as CITY’s Director, not as a citizen
on a matter of public concern. We reach the same
conclusion. Because Lane has failed to establish a
prima facie case of retaliation, we do not decide about
Franks’s defense of sovereign immunity.”
' On appeal, Lane has abandoned expressly (1) his claims
against CACC; (2) his claims for violation of the Alabama State
Employee Protection Act, Ala. Code § 36-26A-3; (3) his claims for
violation of 42 U.S.C. § 1985; and (4) his claim for money damages
against Franks in his official] capacity.
? Having concluded that Lane failed to establish even a
prima facie case for a violation of a federal right, we necessarily
also conclude that Lane failed to demonstrate that Franks
violated a federal right of Lane’s that was already clearly
established before Franks acted. Thus, even if — if, which we
think is not correct -- a constitutional violation of Lane’s First
Amendment rights occurred in these circumstances, Franks
would be entitled to qualified immunity in his personal capacity.
See Vinyard v. Wilson, 311 F.3d 1340, 1346 (llth Cir. 2002)
(government officials acting within the scope of their
discretionary authority are immune from individual civil liability
5a
We review a district court’s grant of summary
judgment de novo, and we view the evidence and all
reasonable factual inferences in the light most
favorable to the nonmoving party. Skop v. City of
Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007).
“Summary judgment is appropriate if the evidence
establishes ‘no genuine issue as to any material fact
and that the moving party is entitled to judgment as a
matter of law.” McCormick v. City of Fort Lauderdale,
333 F.3d 1234, 1243 (11th Cir. 2003).
To establish a claim of retaliation for protected
speech under the First Amendment, a public employee
must show, among other things, that he “spoke as a
citizen on a matter of public concern.” See Garcetti v.
Ceballos, 126 S. Ct. 1951, 1958 (2006) (a decision
further restricting public employees’ protected speech).
A government employee whose speech is made
pursuant to his official duties is not speaking as a
citizen. See id. at 1960; Battle v. Bd. of Regents, 468
F.3d 755, 760 (11th Cir. 2006). Even if an employee
was not required to make the speech as part of his
official duties, he enjoys no First Amendment
protection if his speech “owes its existence to [the]
employee’s professional responsibilities” and is “a
product that ‘the employer itself has commissioned or
created”. See Abdur-Rahman v. Walker, 567 F.3d
1278, 1286 (11th Cir. 2009).
if the official's conduct violates no “clearly established statutory
or constitutional rights of which a reasonable person would have
known.”).
6a
Whether the subject speech was made by the
public employee speaking as a citizen or as part of the
employee’s job responsibilities is a question of law for
the court to decide. See Vila v. Padron, 484 F.3d 1334,
1339 (11th Cir. 2007). In determining whether a
government employee’s statement is protected by the
First Amendment, “we look to the content, form, and
context of a given statement, as revealed by the whole
record.” Abdur-Rahman, 567 F.3d at 1283.
In Morris v. Crow, we determined that a police
officer’s speech -- which consisted of the officer’s
accident report and his subpoenaed deposition
testimony made in_ conjunction with judicial
proceedings, “reiterat[ing]” the observations made in
his accident report -- was unentitled to First
Amendment protection. 142 F.3d 1379 (11th Cir.
1998). Because the officer prepared his accident report
in the normal course of his official duties, the report
did not constitute speech “made primarily in the
employee’s role as citizen.” Jd. at 1382. And because
the officer’s deposition testimony was given merely “in
compliance with a subpoena to testify truthfully” --
and not as a “public comment on sheriffs office policies
and procedures, the internal workings of the
department, the quality of its employees or upon any
issue at all” -- it was unprotected under the First
Amendment. Jd. at 1382-83 (“The mere fact that
Morris’s statements were made in the context of a civil
Ta
deposition cannot transform them into constitutionally
protected speech.”).°
No one disputes that Lane was acting pursuant to
his official duties as CITY’s Director when he
investigated Schmitz’s work activities, spoke with
Schmitz and other CACC officials about Schmitz’s
employment, and ultimately terminated Schmitz’s
employment. That Lane testified about his official
activities pursuant to a subpoena and in the litigation
context, in and of itself, does not bring Lane’s speech
within the protection of the First Amendment. See id.
Furthermore, because formal job descriptions do not
control, that Lane’s official duties did not distinctly
require him to testify at criminal trials falls short of
triggering First Amendment protection. See Abdur-
Rahman, 567 F.3d at 1283.
Although not dispositive, we consider it pertinent
that the subject matter of Lane’s testimony touched
only on acts he performed as part of his official duties.
° Other circuits seem to have decided this issue differently.
See Morales v. Jones, 494 F.3d 590, 598 (7th Cir. 2007)
(concluding that a public employee’s subpoenaed deposition
testimony about speech he made pursuant to his official duties
was protected by the First Amendment); Reilly v. City of Atlantic
City, 532 F.3d 216 (3d Cir. 2008) (explaining that a police officer's
trial testimony was protected by the First Amendment because,
although the testimony stemmed from the officer’s official duties,
the officer had an “independent obligation as a citizen to testify
truthfully.”). But Morris is the law in this Circuit on the question
of public employee speech per a subpoena in the context of
judicial proceedings.
8a
See Abdur-Rahman, 567 F.3d at 1282. As in Morris,
nothing evidences that Lane testified at Schmitz’s trial
“primarily in [his] role as a citizen” or that his
testimony was an attempt to comment publicly on
CITY’s internal operations.
In the light of our precedents, the record fails to
establish that Lane testified as a citizen on a matter of
public concern: as a matter of law, he cannot state a
claim for retaliation under the First Amendment.
Franks was entitled to summary judgment.
AFFIRMED.
9a
APPENDIX B
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
Edward R. Lane, )
)
Plaintiff, )
VS. ) CV-11-BE-0883-M
)
Central Alabama )
Community College, )
et al., )
)
Defendants. )
MEMORANDUM OPINION
This matter comes before the court on Defendants
Central Alabama Community College and Dr. Franks’
“Motion for Summary Judgment.” (Doc. 34). Plaintiff
Mr. Lane brought state and federal retaliation claims
against CACC, Dr. Franks in his official capacity, and
Dr. Franks in his individual capacity for allegedly
terminating him in retaliation for testimony he gave at
a criminal trial.
The court finds that the Eleventh Amendment and
the doctrine of qualified immunity bar Mr. Lane’s
10a
claims against CACC, an arm of the state of Alabama,
his claims against Dr. Franks, in his official capacity
as President of CACC, and his claims against Dr.
Franks in his individual capacity as discussed below.
Thus, the court will grant the Defendants’ Motion for
Summary Judgment as to all claims.
L_ STATEMENT OF FACTS
’ ] Kae
On September 26, 2006, Defendant Central
Alabama Community College (“CACC”) hired Plaintiff
Edward Lane as the probationary Director, the highest
ranking position, of the Community Intensive Training
for Youth (C.L.T.Y.) Program at CACC. C.LT.Y. is a
statewide program for underprivileged youth with
multiple offices throughout Alabama. [In his job as
Director, Mr. Lane ran the program, including day-to-
day operations, hiring and firing of employees, and
making financial decisions.
Mr. Lane’s original hire letter in 2006 was from
CACC’s then-President, Linda McGuirt, and Ms.
McGuirt informed Mr. Lane that she was his
supervisor. In the summer of 2007, however,
Chancellor Byrne determined that Mr. Lane was
actually an employee of the Board of Directors of
C.I.T.Y., not an employee of Central Alabama
Community College and sent C.I.T.Y.’s_ business
manager a letter to that effect. In August 2007, the
President of the C.I.T.Y. Board of Directors, Helen
McAlpine, sent Mr. Lane a letter offering him a
probationary appointment as Director of the C.I.T.Y.
lla
program beginning August 1, 2007; Mr. Lane accepted
the appointment from the Board of Directors.
’s Fi i e's
Employment
As soon as he took his position at C.I.T.Y., Mr.
Lane began an audit to evaluate the program’s
financial position because C.I.T.Y. was experiencing
significant financial problems. During this audit, Mr.
Lane discovered that then-state representative
Suzanne Schmitz was listed on C.I.T.Y.’s payroll but
did not appear to be coming to work or producing any
tangible work product. John Caylor, CACC’s attorney,
warned Mr. Lane that taking actions against Ms.
Schmitz could have bad repercussions for both Mr.
Lane and CACC. On October 19, 2006, Mr. Lane
terminated Ms. Schmitz from her employment at
C.LT.Y. After her termination, Ms. Schmitz
commenced a civil lawsuit to get her job back at
C.LT.Y., and she made comments to Charles Foley,
then-Madison County C.IL.T.Y. program coordinator,
that she planned to “get [Mr. Lane) back” for her
termination. (Doc. 38, at 10). Ms. Schmitz also said
that if Mr. Lane was to request money for C.I.T.Y.
from the state legislature, she would tell him, “You're
fired.” Id.
When Mr. Lane was hired in 2006 by the then-
President of CACC, Ms. McGuirt, C.I.T.Y’s Mobile and
Montgomery programs were slated to close because of
loss of grant money. Mr. Lane decided to keep these
programs and started a new program in Lauderdale
County. Mr. Lane did not instruct anyone at C.I.T.Y to
actively look for grant opportunities or write grant
12a
applications; he also was not looking or applying for
grants himself. The two-year college system had a
department that received federal grants, and C.1.T.Y.
requested some of these grants under Mr. Lane’s
direction.
Mr. Lane claims that he was able to keep all of the
programs running because he successfully controlled
expenditures at C.I.T.Y. CACC disputes the alleged
“controlled expenditures” and claims that Mr. Lane
was only able to keep all of the programs running
because of a one-time legislative appropriation and a
one-time private donation. CACC further claims that
Mr. Lane did not try to do anything to gain funding for
the program except submit a budget to the legislature
every year. The Alabama legislature only appropriated
sufficient funding to C.I.T.Y for one year under Mr.
Lane’s leadership, and then it cut C.I.T.Y’s funding
dramatically. In 2008, C.I.T.Y.’s budget was cut by
$1.75 million, approximately one-fourth of its budget.
Mr ’s_ Testimony i itz’s
Criminal C
After Mr. Lane terminated Ms. Schmitz, the FBI
began investigating Ms. Schmitz and C.LT.Y. On
November 13, 2006, Mr. Lane testified before a grand
jury that Ms. Schmitz was fired because she did not
“show up for her job.” Mr. Lane claims that he also
testified as to how Ms. Schmitz got her job at C.1.T-Y.,
but no evidence exists to support that contention.
On August 26, 2008, pursuant to a subpoena, Mr.
Lane testified at Ms. Schmitz’s federal criminal trial
for mail fraud and fraud involving a program receiving
federal funds. Mr. Lane testified that he fired Ms.
13a
Schmitz because of her failure to come to work or do
her job at C.1.T.Y. Mr. Lane also testified that Ms.
Schmitz got her job at C.LT.Y. through Dr. Paul
Hubbert, Executive Secretary of the Alabama
Education Association, and that people within the
C.IL.T.Y. program were afraid to question Ms. Schmitz’s
employment because they were afraid of losing funding
from the legislature. Also at the criminal trial, Larry
Palmer, C.1.T.Y.’s Regional Coordinator, testified that
C.LT.Y. hired Ms. Schmitz because of the influence of
Roy Johnson, the previous Chancellor of CACC, and
Dr. Hubbert. Mr. Lane also testified that when he
pressed Ms. Schmitz about her failure to perform her
job at C.LT.Y., she responded that she “needed to call
Mr. Hubbert.” Mr. Lane testified to the same facts
again in Ms. Schmitz’s second criminal trial on
February 18, 2009.
Mr. ’s Termination from C.I.TLY.
In January 2008, Defendant Dr. Steve Franks
assumed the position of President of CACC under
then-Chancellor of Alabama’s two-year college system,
Bradley Byrne. Even before Mr. Lane began reporting
to Dr. Franks, Mr. Lane was considering a Reduction
in Force (“RIF”) at C.I.T.Y. On November 20, 2008, Mr.
Lane began reporting to Dr. Franks, but had only very
little contact with Dr. Franks during his employment
with C.LT.Y.
Mr. Lane communicated C.ILT.Y.’s_ budget
problems to Dr. Franks in November 2008, including
his recommendation for a RIF. Mr. Lane and Dr.
Franks continued their talks about a RIF throughout
the end of 2008 and by the end of 2008, C.I.T.Y. was in
l4a
danger of not making its payroll on time every month,
if at all. Dr. Franks agreed with Mr. Lane’s RIF
recommendation, and Dr. Franks initially responded
that all probationary employees should be terminated.
On November 20, 2098, Chancellor Byrne
dissolved the C.I1.T.Y. Board of Directors and
communicated that in accordance with the
admf{nistrative law ruling in Robinson, Schmidt, &
Settle v. City Skills Training Consortium & Central
Ala. Comm. College, No. OAH-06-388, all C.LT-.Y.
employees were to be considered employees of CACC.
The Defendants claim that on January 9, 2009,
Dr. Franks made the financial decision to terminate
Mr. Lane and other probationary employees associated
with the C.I.T.Y. program. Dr. Franks did not give Mr.
Lane any reason for his termination, but Dr. Franks
testified that “Lane was terminated due to financial
difficulties facing the C.I.T.Y. program.” (Doc. 38, at
18). Dr. Franks consulted with Chancellor Byrne
before terminating Mr. Lane. Mr. Lane disputes that
Dr. Franks made this decision based on financial
reasons and believes that Dr. Franks was actually
retaliating against Mr. Lane for testifying in Ms.
Schmitz’s trial.
The Defendants allege that no one, including Ms.
Schmitz, instructed Dr. Franks to fire Mr. Lane or
suggested to Dr. Franks that he should fire Mr. Lane.
Mr. Lane disputes this fact, claiming that a jury could
“easily infer” that Dr. Hubbert instructed or suggested
Dr. Franks should terminate Mr. Lane. (Doc. 38, at 5).
Mr. Lane also claims that Dr. Franks often had
discussion with Dr. Hubbert about the C.IL.T.Y.
15a
program during the 2009 legislative session, but Dr.
Franks specifically testified that he did not consult Dr.
Hubbert about his decision to terminate Mr. Lane.
Mr. Lane offered no evidence that Dr. Franks had
an agreement with Ms. Schmitz or Betty Carol
Graham, another state representative, to fire Mr. Lane
as a result of his testimony against Ms. Schmitz. Dr.
Franks testified that he never discussed Mr. Lane with
either Mrs. Schmitz or Mrs. Graham prior to Mr.
Lane’s termination. Similarly, Ms. Schmitz testified
that she never talked to Dr. Franks or anyone else
within the two-year system who was in a position to do
anything about Mr. Lane’s employment after Mr. Lane
had testified against her. In fact, Dr. Franks iestified
that he only met Ms. Schmitz once briefly at a
legislative session, and Ms. Schmitz testified that she
did not remember ever meeting Dr. Franks or having
any dealings with him.
! ; La Pal as
I mn Di
At the time of Mr. Lane’s termination, Dr. Franks
named Larry Palmer, then-regional coordinator, as
interim director of C.I.T.Y. Mr. Palmer had been a
C.1.T.Y. employee since the 1990s and had served as
interim director once before. When he assumed the
role of interim director, Mr. Palmer continued his role
as regional coordinator as well and served in both
capacities. Upon his appointment, Mr. Palmer received
a raise because of his added responsibilities and was
making the same salary Mr. Lane had made before he
was terminated. CACC was able to save costs because
Mr. Palmer was performing two jobs for one salary.
16a
Mr. Palmer remained interim director until September
2009 when the C.I.T.Y. program ceased to exist, and
Mr. Palmer was terminated along with all C.LT-Y.
employees.
Dr : ision of some C.I.T.Y. Employees’
Termination
Sometime shortly after Dr. Franks terminated the
C.1.T.Y. employees (a dispute exists as to when), Dr.
Franks decided to rescind the termination of some of
the Lauderdale and Franklin County employees he
fired on January 9, 2009. The Defendants claim that
Dr. Franks made this decision on January 23, 2009,
and Mr. Lane claims that Dr. Franks sent out the
recision letters on January 29, 2009. Regardless, the
decision was made before Mr. Lane testified at Ms.
Schmitz’s second trial on February 19, 2009.
Dr. Franks testified that he rescinded some of the
terminations because he learned that these employees
were not probationary employees. At the time the
employees who had been terminated were hired, a six
month probationary period existed for C.I.T.Y.
employees. Thus, even though the employees were
later deemed CACC employees, at the time of their
employment for Fair Dismissal Act purposes, they
were employed under C.I.T.Y.’s _ six-month
prebationary period, as opposed to CACC’s three-year
profationary period and were not’ considered
probationary employees when Dr. Franks fired them.
Mr. Lane was one of two employees whose
termination was not rescinded. A dispute exists as to
why Dr. Franks did not rescind Mr. Lane’s
termination. Dr. Franks testified that he believed Mr.
17a
Lane was a probationary employee because he was
hired by CACC as evidenced by his initial hire letter,
and the CACC probationary period was three years.
The Defendants claim that Dr. Franks thought Mr.
Lane was in a fundamentally different category than
the other employees because he was the director of the
entire C.I.T.Y. program and not simply an employee.
When asked why he considered Mr. Lane different
than the other C.I.T.Y. employees whose termination
he rescinded, Dr. Franks responded: “because he was
the only employee that had an appointment letter from
the president of [CACC].” (Doc. 38, at 19).
Mr. Lane alleges that Dr. Franks did not rescind
his termination because Dr. Franks possessed a
“retaliatory motivation.” (Doc. 38, at 3). Mr. Lane
claims that the timing of his termination is very
suspicious; it was “right around the time that the
budget process was beginning in the legislature.” (Doc.
38, at 20). Dr. Franks knew that Mr. Lane had
testified at Ms. Schmitz’s first criminal trial, but Mr.
Lane never discussed the contents of his testimony
with Dr. Franks. Mr. Lane also testified that he
believed “the totality of the situation” and “Dr. Franks’
actions” led him to believe he was being retaliated
against for his testimony. (Doc. 38, at 21).
The Defendants claim that Mr. Lane had no
reason to believe that Dr. Franks was out to get him or
that Dr. Franks’ stated reasons for termination and
not rescinding that termination were untruthful or
pretextual. The Defendants also claim that Dr. Franks
did not even remember that Mr. Lane had previously
testified in Ms. Schmitz’s criminal case and that he did
18a
not know Mr. Lane was planning on testifying in her
second criminal trial.
The parties do not dispute that Dr. Franks was
not aware of any statements by Ms. Schmitz that she
would see to it that Mr. Lane would lose his job after
he testified against her. The parties do not dispute
that Mr. Lane did not discuss with anyone at the
College Department of Post Secondary Education,
including Dr. Franks, that he was going to testify at
Ms. Schmitz’s second criminal trial before he did in
fact testify. Dr. Franks had already terminated Mr.
Lane when Mr. Lane received notice that he would be
testifying at the second trial, and Dr. Franks did not
know about the second trial until after it occurred. Dr.
Franks never told Mr. Lane not to testify, and neither
Dr. Franks nor CACC ever attempted to prevent Mr.
Lane from testifying before the grand jury or at either
trial.
B. Procedural] History
This case was originally filed in the Middle
District of Alabama on January 3, 2011. Mr. Lane’s
Complaint alleged three counts: (I) violation of the
State Employee Protection Act under Ala. Code 36-
26A-3; (II) retaliation for the exercise of protected First
Amendment speech; and (iII) a violation of 42 U.S.C.
1985, conspiring to injure witnesses for testifying.
(Doc. 2-1). It was transferred to this court on March 4,
2011. On March 11, 2011, CACC filed a Motion to
Dismiss for failure to state a claim. (Doc. 4). This court
denied the Motion to Dismiss as to Counts I[ and II and
granted it as to Count III. (Doc. 9).
19a
On May 24, 2011, Mr. Lane filed an Amended
Complaint alleging the same counts as his original
complaint. (Doc. 11). On June 3, 2011, the Defendants
filed a Motion to Dismiss Count III, the conspiracy
charge, of the Amended Complaint. (Doc. 12). The
court construed Mr. Lane’s response to Defendants’
Motion to Dismiss as a voluntary dismissal of Count
III and thus dismissed Count III without prejudice.
(Doc. 15). As Mr. Lane’s Amended Complaint stands
now, Count I seeks relief from Dr. Franks for violation
of the State Employee Protection Act and Count II
seeks relief from Dr. Franks and CACC for
termination in retaliation for speech protected by the
First Amendment. On April 30, 2012, after discovery
by both parties, CACC filed this Motion for Summary
Judgment. (Doc. 34).
IL, STANDARD OF REVIEW
Summary judgment allows a trial court to decide
cases when no genuine issues of material fact are
present and the moving party is entitled to judgment
as a matter of law. See Fed. R. Civ. P. 56. When a
district court reviews a motion for summary judgment,
it must determine two things: (1) whether any genuine
issues of material fact exist; and if not, (2) whether the
moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c).
The moving party “always bears the initial
responsibility of informing the district court of the
basis for its motion, and identifying those portions of
‘the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if
any, which it believes demonstrate the absence of a
20a
genuine issue of material fact.” Celotex Corp. uv.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ.
P. 56). The moving party can meet this burden by
offering evidence showing no dispute of material fact
or by showing that the non-moving party’s evidence
fails to prove an essential element of its case on which
it bears the ultimate burden of proof. Celotex, 477 U.S.
at 322-23. Rule 56, however, does not require “that the
moving party support its motion with affidavits or
other similar materials negating the opponent’s
claim.” Id.
Once the moving party meets its burden of
showing the district court that no genuine issues of
material fact exist, the burden then shifts to the non-
moving party “to demonstrate that there is indeed a
material issue of fact that precludes summary
judgment.” Clark v. Coats & Clark, Inc , 9°29 F.2d 604,
608 (11th Cir. 1991).
In reviewing the evidence submitted, the court
must “view the evidence presented through the prism
of the substantive evidentiary burden,” to determine
whether the nonmoving party presented sufficient
evidence on which a jury could reasonably find for the
nonmoving party. Anderson, 477 U.S. at 254; Cottle v.
Storer Commce’n, Inc., 849 F.2d 570, 575 (11th Cir.
1988). The court must refrain frees weighing the
evidence and making credibility determinations,
because these decisions fall to the province of the jury.
See Anderson, 477 U.S. at 255; Stewart v. Booker T.
Washington Ins. Co., 232 F.3d 844, 848 (11th Cir.
2000); Graham v. State Farm Mut. Ins. Co., 193 F.3d
1274, 1282 (11th Cir. 1999).
2la
Furthermore, all evidence and _ reasonable
inferences drawn from the underlying facts must be
viewed in the light most favorable to the non-moving
party. Graham, 193 F.3d at 1282.
The nonmoving party “need not be given the
benefit of every inference but only of every reasonable
inference.” Id. Additionally, “conclusory assertions. . .,
in the absence of supporting evidence, are insufficient
to withstand summary judgment.” Holifield v. Reno,
115 F.3d 1555, 1564 n. 6 (11th Cir. 1997). After both
parties have addressed the motion for summary
judgment, the court must grant the motion if no
genuine issues of material fact exist and if the moving
party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56.
Il]. LEGAL Y
Although some genuine issues of material fact
exist in this case concerning Dr. Franks’ true
motivation for terminating Mr. Lane’s employment, no
genuine issues of material fact exist in the proffered
agreed upon statement of facts that bear on the issue
of immunity. Because the court finds the Defendants
are entitled to judgment as a matter of law and no
genuine issues of material fact exist with regard to
this dispositive issue, the court will grant summary
judgment for the Defendants on this ground.
A. Absolute Immunity
r. a C ity Coll
Defendant CACC argues that the Eleventh
Amendment to the United States Constitution bars
Mr. Lane’s claim against CACC for retaliation for
22a
protected speech. The Eleventh Circuit has held that
“state universities are ‘agencies or instrumentalities’
of the state, and thus are immune from suit in federal
court.” University of South Alabama v. American
Tobacco Co., 168 F.3d 405, 412 (llth Cir. 1999)
(quoting Harden v. Adams, 760 F.2d 1158, 1163-64
(llth Cir. 1985)). Both the Southern District of
Alabama and the Middle District of Alabama have
specifically ruled that community colleges are entitled
to Eleventh Amendment immunity. See Morris v.
Wallace Community College-Selma, 125 F. Supp. 2d
1315, 1335 (S.D. Ala. 2001) (“Alabama’s state law
sovereign immunity extends to community colleges. . .”
(citing Williams v. John C. Calhoun Community
College, 646 So. 2d 1, 2 (Ala.1994))); Wright v.
Chattahoochee Valley Community College, 2008 WL
4877948 (M.D. Ala. 2008) (“State educational
institutions, such as_ [Chattahoochee Valley
Community College] are agencies or instrumentalities
of the state and thus are immune from suit in federal
court.” (internal quotations omitted)).
Mr. Lane argues that CACC is not immune from
suit for prospective equitable relief, and because Mr.
Lane seeks “placement in the position in which he
would have worked absent the Defendant’s retaliatory
treatment,” “injunctive relief,” and “such other legal or
equitable relief,” the Eleventh Amendment does not
bar Mr. Lane’s suit. (Doc. 11). However, the Eleventh
Amendment bars monetary and equitable relief
against the state and its instrumentalities. Morris, 125
F. Supp. 2d, at 1335 (citing Pennhurst State School &
Hospital v. Halderman, 465 U.S. 89, 120 (1984)).
CACC, as a community college, is an arm or
23a
instrumentality of the state and is immune from legal
or equitable suit under the Eleventh Amendment.
Therefore, the court will GRANT Defendants’ Motion
for Summary Judgment as to CACC on Count II of the
Amended Complaint.
._ Dr. Fr in his Offici apacit
a. Money Damages
The Defendants argue that Dr. Franks acting in
his official capacity as president of CACC is not a
“person” subject to suit pursuant to 42 U.S.C. § 1983.
Mr. Lane argues that Dr. Franks is only immune to
the extent that the Eleventh Amendment bars relief
for money damages against the State. Because Mr.
Lane concedes that he cannot seek money damages
against Dr. Franks in his official capacity and because
“the Eleventh Amendment bars suits against state
officials in federal court seeking compensatory or
retroactive relief,” the court will dismiss all claims
against Dr. Franks that seek money damages. See
Summit Medical Associates, P.C. v. Pryor, 180 F.3d
1326, 1337 (11th Cir. 1999) (citing Green v. Mansour,
474 U.S. 64, 68 (1985)).
In Count I of his Amended Complaint, the only
equitable relief Mr. Lane seeks is “any and all other
relief, both at law and in equity” to which he may be
entitled. (Doc. 11). In Count II of his Amended
Complaint, Mr. Lane seeks “placement in the position
in which he would have worked absent the Defendant’s
retaliatory treatment,” “injunctive relief,” and “such
24a
other legal or equitable relief’ to which he may be
entitled. (Doc. 11).
Generally, “state officials sued for damages in
their official capacity are immune from suit in federal
court” unless the plaintiff is seeking “prospective
equitable relief to end continuing violations of federal
law” under Ex parte Young. Pears v. Mobile County,
645 F. Supp. 2d 1062, 1078, n. 22 (S.D. Ala. 2009); Ex
parte Young, 209 U.S. 123 (1908). To obtain relief for
an ongoing violation of federal law under Ex parte
Young, the plaintiff must allege that “a violation of
federal law by a state official is ongoing as opposed to .
.. violated at one time or over a period of time in the
past.” Summit Medical Associates, 180 F.3d at 1338
(citing Ex parte Young, 478 U.S. at 277-78).
In Pears, the court dismissed the plaintiff's § 1983
claims because,” the record [was] devoid of evidence of
a continuing violation of federal law by defendants;
rather, (plaintiffs]} requests for reinstatement and
other prospective relief [were] hinged exclusively on
discrete acts that occurred in 2006 and early 2007,
rather than any ongoing, continuing malfeasance
today.” Id. at n. 22. Like the plaintiff in Pears, Mr.
Lane requests reinstatement and other generalized
equitable relief that is “hinged exclusively” on a
“discrete act,”— his termination in 2009. Mr. Lane does
not claim that Dr. Franks is engaging in any ongoing
violation of federal law that necessitates the
prospective injunctive relief contemplated in Ex parte
Young.
In Edelman v. Jordan, the Supreme Court refused
to allow retroactive restitution when it would “to a
25a
virtual certainty be paid from state funds, and not
from the pockets of individual state officials who were
the defendants in the action.” 415 U.S. 651, 668 (1974).
The Eleventh Circuit has also stated that, “[I]f
prospective relief would invade a state’s sovereignty as
much as an award of money damages would, the action
will be barred by the Eleventh Amendment.” Summit
Medical Associates, 180 F.3d at 1337 (citing Idaho v.
Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 281
(1997)). The Defendants rightfully point out that Mr.
Lane’s reinstatement would interfere with CACC, an
arm of the State, making employment decisions and
would require the State to pay Mr. Lane’s salary once
he was reinstated. The Eleventh Amendment bars this
type of prospective relief that implicates a state’s
sovereignty interests and funds.
Because Mr. Lane’s alleged claims for prospective
relief do not fall under the Ex parte Young exception to
Eleventh Amendment immunity, and the prospective
relief Mr. Lane _ seeks significantly implicates
Alabama’s sovereignty interests and state treasury,
the court will DISMISS all claims against Dr. Franks
in his official capacity seeking equitable relief.
3. Dr. Franks in hi ividual aci
The Defendants argue that Dr. Franks is also
immune in his individual capacity because he was
acting in his official capacity as President of CACC
when he terminated Mr. Lane and state officials are
immune in their individual capacities when the state
is the real party in interest.
The Defendants rely on Harbert Intern., Inc. v.
James for the proposition that “[A] suit is against the
26a
sovereign if the judgment sought would expend itself
on the public treasury or domain, or interfere with the
public administration, or if the effect of the judgment
would be to restrain the Government from acting, or to
compel it to act.” 157 F.3d 1271, 1277 n. 3 (11th Cir.
1998) (citing Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 101, 101 n.11 (1984)); see also
Alexander v. Chattahoochee Valley Comm. Coll., 325 F.
Supp. 2d 1274, 1296 (M.D. Ala. 2004) (dismissing
claims against the community college president in her
individual capacity because they were barred by the
Eleventh Amendment).
Mr. Lane’s reinstatement would compel Alabama
to act through Dr. Franks and would cost the state an
amount of money equal to Mr. Lane’s salary. Dr.
Franks seems to fit into the framework of a
government official who is immune in his individual
capacity because the state is the real party in interest
in this case. Even if Dr. Franks is not immune under
the doctrine of sovereign immunity, however, he is still
immune in his individual capacity from suit under the
doctrine of qualified immunity.
li I
Defendants argue that even if Dr. Franks is not
absolutely immune from suit in his individual capacity
under the Eleventh Amendment, he is immune under
the doctrine of qualified immunity. Qualified
immunity protects government officials performing
discretionary functions from suit in their individual
capacities unless the official violates “clearly
established statutory or constitutional rights of which
a reasonable person would have known.” Hope uv.
27a
Pelzer, 536 U.S. 730, 739 (2002) (citing Harlow uv.
Fitzgerald, 457 U.S. 800, 818 (1982)). “The purpose of
this immunity is to allow government officials to carry
out their discretionary duties without the fear of
personal liability or harassing litigation, protecting
from suit all but the plainly incompetent or one who is
knowingly violating the federal law.” Lee v. Ferraro,
284 F.3d 1188, 1194 (llth Cir. 2002) (internal
quotation marks and citations omitted).
To receive qualified immunity, a government
official “must first prove that he was acting within the
scope of his discretionary authority when the allegedly
wrongful acts occurred.” Vinyard v. Wilson, 311 F.3d
1340, 1346 (11th Cir. 2002). Government officials act
within the scope of their discretionary authority if “the
actions were (1) ‘undertaken pursuant to the
performance of [their] duties’ and (2) ‘within the scope
of [their] authority.” Lenz v. Winburn, 51 F.3d 1540,
1545 (11th Cir. 1995) (quoting Rich v. Dollar, 841 F.2d
1558, 1564 (11th Cir. 1998)). “Exercising judgment . . .
in the administration of a department or agency of
government” is a recognized discretionary function. Ex
parte Cranman, 792 So. 2d 392, 405 (Ala. 2000).
Mr. Lane concedes that Dr. Franks was acting
within the scope of his discretionary authority as
President of CACC when he terminated Mr. Lane’s
employment and subsequently did not rescind the
termination. Because the Defendants have established
that Dr. Franks was acting within his discretionary
authority, the burden now shifts to Mr. Lane to show
that qualified immunity is inapplicable in this case.
See Lee uv. Ferraro, 284 F.3d 1188, 1194 (llth Cir.
28a
2002) (“Once the defendant establishes that he was
acting within his discretionary authority, the burden
shifts to the plaintiff to show that qualified immunity
is not appropriate.”).
The Supreme Court has articulated a two-part test
to determine whether qualified immunity is
appropriate. See Saucier v. Katz, 533 U.S. 194, 201
(2001). First, the court must ask this threshold
question: “Taken in the light most favorable to the
party asserting the injury, do the facts alleged show
the officer’s conduct violated a constitutional right[?]”
Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003)
(citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).
Second, “[ilf a violation could be made out on a
favorable view of the parties’ submissions, the next,
sequential step is to ask whether the right was clearly
established.” Id. (citing Saucier, 533 U.S. at 201).
“A constitutional right is clearly established if
controlling precedent has recognized the right in a
‘concrete and factually defined context.” Chesser v.
Sparks, 248 F.3d 1117, 1122 (11th Cir. 2001). “If case
law, in factual terms, has not staked out a bright line,
qualified immunity almost always protects the
defendant.” Post v. City of Fort Lauderdale, 7 F.3d
1552, 1557 (11th Cir. 1993).
The court recognizes that it is commonly known
and well-established that a state cannot “discharge a
public employee in retaliation for protected speech.”
Tindal v. Montgomery County Comm'n, 32 F.3d 1535,
1539 (11th Cir. 1994). A public employee’s right to
speech, however, is not absolute, and the Eleventh
Circuit utilizes the Pickering balancing test to
29a
determine whether a state actor has retaliated against
an employee for protected speech. Bryson v. City of
Waycross, 888 F.2d 1562, 1565 (11 Cir. 1989);
Pickering v. Board of Education, 391 U.S. 563 (1968).
First the court must determine whether Mr. Lane
“spoke as a citizen on a matter of public concern.”
Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). In
Garcetti, the Supreme Court identified two factors to
be used in determining whether the public employee
spoke as a citizen: (1) whether the speech occurred in
the workplace, and (2) whether the speech was made
as part of the public employee’s job duties. Garcetti,
547 U.S. at 420-421. The Supreme Court made clear
that, “when public employees make statements
pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes,”
and that the statements of public employees retain
their official status when “there is no relevant
analogue to speech by citizens who are not government
employees.” Id. at 421, 423-24. In determining
whether a statement is protected under the First
Amendment, the court must “look to the content, form,
and context of a given statement, as revealed by the
whole record.” Vila v. Padron, 484 F.3d 1334, 1340
(11th Cir. 2007). Here, Mr. Lane’s testimony did not
occur in the workplace, but he learned of the
information that he testified about while working as
Director at C.I.T.Y. Because he learned the
information while performing in his official capacity as
Director at C.I.T.Y., the speech can still be considered
as part of his official job duties and not made as a
citizen on a matter of public concern, as the Eleventh
Circuit has ruled in similar cases.
30a
In Abdur-Rahman v. Walker, the Eleventh Circuit
ruled that sewer inspectors’ reports were not made as
citizens on matters of public concern because they
were made pursuant to the inspectors’ official job
duties:
[T]he reports of inspectors to their supervisors
about sewer overflows they were required to
investigate are not protected under the First
Amendment. The inspector's reports about
sewer overflows concerned information they
requested and investigations they performed for
the purpose of fulfilling their assigned job
duties. The inspectors’ reports ‘owe their
existence’ to their official responsibilities and
cannot reasonably be divorced from these
responsibilities.
567 F.3d 1278, 1283 (11th Cir. 2009) (quoting Garcetti,
547 U.S. at 421). Additionally, in Vila v. Padron, the
Eleventh Circuit ruled that a Community College Vice
President’s complaints about possible unethical and
illegal conduct within the Community College fell
“squarely within her official job duties and [were] not
protected by the First Amendment.” 484 F.3d 1334,
1339 (11th Cir. 2007).
In this case, Mr. Lane investigated Ms. Schmitz’s
job duties and ultimately terminated her employment
with CACC because it was one of his job duties to hire
and fire employees within the C.I.T.Y. Program. He
fired Ms. Schmitz in his capacity as Director of
C.1L.T.Y., and he was subpoenaed to testify as to his
investigation and subsequent termination of Ms.
Schmitz in his capacity as Director of C.L.T.Y. Mr.
3la
Lane argues that he could not have been called to
testify in his official position as C.IL.T.Y. Director
because he testified in Ms. Schmitz’s second trial after
he was terminated from C.I.T.Y. The court does not
find this argument persuasive because Mr. Lane was
employed by C.I1.T.Y. when he learned the information
about which he testified, which is the relevant point in
time. The court is persuaded that qualified immunity
applies to Dr. Franks’ action because Mr. Lane was not
speaking as a citizen on a matter of public concern but
rather speaking pursuant to his official job duties as
Director of C.1.T.Y. The court, however, will also
consider the parties’ arguments about whether the fact
that Mr. Lane testified pursuant to a subpoena
establishes that Dr. Franks was acting in
contravention to clearly established law when he
testified in Ms. Schmitz’s criminal case.
The only controlling cases concerning testimony
given pursuant to a subpoena are Martinez v. City of
Opa-Locka, 971 F.2d 708 (11th Cir. 1992) and Morris
v. Crow, 142 F.3d 1379 (11th Cir. 1998). The
Defendants argue that under Martinez and Crow, Dr.
Franks was not on fair notice that Lane’s testimony in
his official capacity as Ms. Schmitz’s former supervisor
and pursuant to a subpoena was protected speech,
such that basing Mr. Lane’s termination on that
testimony would violate the First Amendment. Mr.
Lane argues that at the time of his termination
Martinez conclusively established that a _ public
employee could not be punished in retaliation for
testifying pursuant to a subpoena.
32a
In Martinez, the City hired the plaintiff as
Director of the Purchasing Department. The City
Commission, which had general legislative and policy-
making authority, subpoenaed the piaintiff to testify
concerning the purchasing practices of the City. At
these appearances, the plaintiff testified that the City
Manager violated the City’s prescribed bid procedures.
After making these statements and a_ similar
statement to an investigator from the State Attorney's
Office, the City Manager terminated the plaintiffs
employment. The plaintiff filed a three count suit in
federal court under 42 U.S.C. § 1983 against the City
and the City Manager in his individual capacity
claiming that she was fired in retaliation for her
exercise of free speech. The Court ruled that the
plaintiffs speech “clearly affected a matter of public
concern” because she provided information concerning
the expenditure of public funds and testified before the
City’s legislative body. Martinez, 971 F.2d at 712. The
plaintiffs speech was protected when made pursuant
to a subpoena and in front of a municipal body that
had general legislative and policymaking authority. /d.
In Morris v. Crow, however, a deputy sheriff
alleged the shenff fired him in retaliation for
deposition testimony he gave under subpoena in a civil
suit implicating a fellow deputy in a fatal traffic
accident. The Court found that the deputy did not
testify under subpoena to “make public comment on
sheriffs office policies and procedures [or] the internal
workings of the department,” but rather in compliance
with the subpoena to testify truthfully. Crow, 142 F.3d
at 1382. The Court affirmed the Sheriffs qualified
immunity in the case, stating that, “[t]he mere fact
33a
that [the deputy]’s statements were made in the
context of a civil deposition cannot transform them
into constitutionally protected speech.” Jd. at 1383.
The court notes that the Eleventh Circuit decided
Martinez in 1992 and Crow in 1998; both decisions
were rendered before the Supreme Court’s decision in
Garcetti in 2006 and the Eleventh Circuit’s decisions
in Walker in 2009 and Vila in 2007. Thus, the
decisions relating to testimony given pursuant to
subpoenas do not address whether the _ public
employee’s speech was made as part of his official
duties and thus not as a citizen on a matter of public
concern. Although the plaintiffs testimony pursuant to
a subpoena was protected speech in Martinez, the
mere presence of a subpoena did not defeat the officer’s
qualified immunity in Crow. Despite the plaintiffs
contentions, Martinez and Crow do not create a clear
and binding precedent so well-established that Dr.
Franks should have known that he was violating Mr.
Lane’s Constitutional rights by terminating him, if he
terminated him because of his testimony in Ms.
Schmitz’s criminal trial.
The fact intensive nature of First Amendment
retaliation cases creates a maze of case law so discrete
in its application and wavering in its precedential
force that very rarely will the plaintiff be able to prove
that “case law, in factual terms, has .. . staked out a
bright line.” Chesser v. Sparks, 248 F.3d 1117, 1123
(2001) (quoting Post, 7 F.3d at 1557). The question to
ask in qualified immunity cases is not whether “the
very action in question has previously been held
unlawful;” it is whether “the unlawfulness of the
34a
action [was] apparent in the light of pre-existing law.”
Williams v. Consol. City of Jacksonville, 341 F.3d
1261, 2169-70 (llth Cir. 2003) (internal citations
omitted). The court finds that a _ reasonable
government official in Dr. Frank’s position would not
have had reason to believe that the Constitution
protected Mr. Lane’s testimony made pursuant to a
subpoena at Ms. Schmitz’s trial because the
unlawfulness of his action was not “recognized . .. in a
‘concrete and factually defined context.” Chesser, 248
F.3d at 1122 (quoting Lassiter v. Ala. A & M Univ. Bd.
of Trustees, 28 F.3d 1146, 1149 (11th Cir. 1994)). Thus,
summary judgment is appropriate in this case.
IV, CONCLUSION
The Eleventh Amendment bars Mr. Lane’s claims
against CACC and Dr. Franks in his official capacity
as President of CACC. Even if the Eleventh
Amendment does not bar Mr. Lane’s claim against Dr.
Franks in his individual capacity, which the court
finds it does, the court also finds that Mr. Lane’s right
to free speech under the First Amendment as a
testifying witness under subpoena in a criminal trial
was not clearly established, as is required under
Saucier, to defeat Dr. Franks’ qualified immunity.
Thus, all of Mr. Lane’s claims are barred by the
Eleventh Amendment or the doctrine of qualified
immunity. For these reasons, the court will GRANT
Defendants’ Motion for Summary Judgment and
DISMISS WITH PREJUDICE alli of Mr. Lane’s claims
against CACC and Dr. Franks. The court will
simultaneously enter a separate order to that effect.
35a
DONE and ORDERED this 18th day of October,
2012.
_Ss/
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE
OPPOSITION
BRIEF
No. 13-483
3n The
Supreme Court of the United States
¢
EDWARD LANE,
Petitioner,
STEVE FRANKS,
Respondent.
*
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Eleventh Circuit
°
BRIEF OF RESPONDENT STEVE FRANKS IN
OPPOSITION TO PETITIONER EDWARD LANE’S
PETITION FOR A WRIT OF CERTIORARI
*
MARK T. WAGGONER
Counsel of Record
HAND ARENDALL LLC
1200 Park Place Tower
2001 Par’ Place North
Birmingham, AL 35203
(205) 324-4400
mwaggoner@handarendall.com
JENNIFER S. MORGAN
11 North Water Street
RSA Tower, Suite 30200
Mobile, AL 36602
(251) 432-5511
jmorgan@handarendall.com
COCKLE LEGAL BRIEFS (800) 225 6964
WWW .COCKLELEGALBRIEFS.COM
i
QUESTIONS PRESENTED FOR REVIEW
1. Under this Court’s precedent, did the Elev-
enth Circuit correctly hold that petitioner Edward
Lane’s speech was not protected by the First Amend-
ment where it found that that speech was made
pursuant to his official job duties as the Director of
the CITY Program at Central Alabama Community
College?
2. Under both sovereign and qualified immuni-
ty doctrines, does respondent Steve Franks have
immunity from petitioner Edward Lane’s First
Amendment retaliation claim brought pursuant to 42
U.S.C. § 1983?
ii
PARTIES TO THE PROCEEDING BELOW
Pursuant to Rule 14.1(b), the parties to the
proceeding below were petitioner and respondent.
Central Alabama Community College was a defen-
dant below, but was not part of the appeal to the
Eleventh Circuit and is not part of this appeal. Cen-
tral Alabama Community College is an instrumental-
ity of the State of Alabama. It has no parent
corporations and does not issue stock.
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW........ i
PARTIES TO THE PROCEEDING BELOW. ....... il
TABLE OF AUTHORITIES ...................c0sce--eeeeees iv
STATEMENT OF THE CASE.......................2.....- 1
SUMMARY OF THE ARGUMENT..............000..... 3
REASONS FOR DENYING THE WRIT.............. 4
I. There is no conflict with this Court’s
precedent and the Court should refrain
from deciding an issue that has been
considered by less than half the circuit
BEI oinsincnenescscnscesconinensescnsccecssocciancmummniouts 4
II. The Court should refrain from deciding a
constitutional question unnecessarily
since respondent Steve Franks would
still have immunity even if the Court
adopts the interpretation of the First
Amendment advanced by petitioner ......... 5
A. Sovereign Immunity.......................200+ 7
B. Qualified Immunity............................. 8
a eiccicciccduascdnnndnasntinnisensiesendiindenemesens 13
iV
TABLE OF AUTHORITIES
Page
CASES:
Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011)........ 6, 9,12
Ashwander v. TVA, 297 U.S. 288 (1936) ...........0.0..0000.. 6
Bonner v. City of Prichard, 661 F.2d 1206 (11th
GIR, FI cecccsscicncsessseninnaticeessiniieaniiaanaaaene 10
Branzburg v. Hayes, 408 U.S. 665 (1972).................. 11
Cohen v. Cowles Media Co., 501 U.S. 663
CIE) .<concvconesessisintssaiiiinhnninintansiiginiaiiiiidmaaain 12
Garcetti v. Ceballos, 547 U.S. 410 (2006).....4, 5, 11, 12
Hope v. Pelzer, 536 U.S. 730 (2002) ...................eeeeeees 10
In re Korean Air Lines Disaster of Sept. 1, 1983,
se Be Ee SS , ennonne 10
Morse v. Frederick, 551 U.S. 393 (2007) ...................... 6
Pearson v. Callahan, 555 U.S. 223 (2009)........... 6, 7,9
Pennhurst State Sch. & Hosp. v. Halderman,
GD Oe a Ce ccctecentennctesssinisinencissetianinmmniummmmmalan 7,8
Purcell v. BankAtlantic Fin. Corp., 85 F.3d
es ee 11
Rehberg v. Paulk, 132 S. Ct. 1497 (2012) .................. 12
Reichle v. Howards, 132 S. Ct. 2088 (2012)....... passim
Snyder v. Phelps, 131 S. Ct. 1207 (2011).........0.0.00.... 12
United States v. Ameline, 409 F.3d 1073 (9th
CIR TRIBE anccconsnssdesentcnenssiensnnsiniuinieansaiinsnaliiaaiaainataala 11
Vv
TABLE OF AUTHORITIES — Continued
Page
STATUTES:
Tee scnenetesetsuene oe
RULES:
EEE 5
OTHER AUTHORITIES:
a ndircanicatcibnndcatnnnsouscovasenunes 11
1
STATEMENT OF THE CASE
Many of the alleged facts in petitioner Edward
Lane’s Statement of the Case are immaterial to the
questions presented, misstated, and/or unsupported.
As such, respondent Steve Franks states:
Respondent became President of Central Ala-
bama Community College (“CACC”), an Alabama
community college and an instrumentality of the
State of Alabama, in January 2008. Pet. App. 10a,
13a-l4a, 2la-22a. From September 2006 to January
2009, petitioner held a probationary position as
Director of the Community Intensive Training for
Youth Program (“CITY”) at CACC. Pet. App. 2a-3a,
10a, 14a. In his job as Director, petitioner ran the
CITY Program, including day-to-day operations,
hiring and firing of employees, and making financial
decisions. Pet. App. 10a.
Soon after becoming Director, and before respon-
dent came to CACC, petitioner audited CITY’s fi-
nances and discovered that then-state representative
Suzanne Schmitz (“Schmitz”) was listed on CITY’s
payroll but was not reporting for work and had not
otherwise performed work for CITY. Pet. App. 2a, Lla.
Petitioner thereafter terminated Schmitz’s employ-
ment on October 19, 2006 after she refused to report
to work. Jd. “No one disputes that [petitioner] was
acting pursuant to his official duties as CITY’s Direc-
tor when he investigated Schmitz’s work activities,
spoke with Schmitz and other CACC officials about
Schmitz’s employment, and ultimately terminated
2
Schmitz’s employment.” Pet. App. 7a; see also Pet.
App. 10a.
The FBI investigated Schmitz and criminal
charges were brought. Pet. App. 2a-3a, 12a. Petitioner
was subpoenaed to testify and did testify in Schmitz’s
August 2008 criminal trial.’ Pet. App. 2a-3a, 12a-13a.
Respondent never instructed petitioner not to testify
or otherwise attempt to prevent him from testifying.
Pet. App. 18a. There has never been a dispute that
respondent “was not aware of any statements by Ms.
Schmitz that she would see to it that [petitioner]
would lose his job after he testified against her.” Jd.;
see also Pet. App. 15a.
At the 2008 criminal trial, petitioner testified
about conversations he had with Schmitz about her
work responsibilities and about Schmitz’s failure to
report to work even after he instructed her to do so.
Pet. App. 3a. He also testified that he fired Schmitz
because of her failure to come to work or do her job at
CITY. Pet. App. 12a-13a. On these facts, both the
court of appeals and the district court found that
petitioner’s speech was made pursuant to his official
duties as the Director of CITY, and, thus, was not
protected under the First Amendment. See Pet. App.
4a, 7a, 29a.
' Petitioner’s testimony at Schmitz’s February 2009 trial is
not at issue since respondent had already terminated petitioner
when petitioner received notice that he would be testifying at
that trial and respondent did not know about that trial until
after it occurred. Pet. App. 18a.
3
Even so, respondent did not terminate petition-
er’s employment “soon” after he testified at Schmitz’s
criminal trial, but over four months later, along with
28 other CITY employees, due to financial reasons.
Cf. Pet. 3 with Pet. App. 3a-4a, 12a-14a. Respondent
testified that he did not rescind petitioner’s termina-
tion when he rescinded the terminations of most of
the other employees because, unlike the other em-
ployees, petitioner was still probationary. Pet. App.
3a-4a, 10a. Respondent’s subsequent decision to name
Larry Palmer as Interim Director of CITY actually
saved CACC money. Pet. App. 15a.
Finally, petitioner does not state whether he is
appealing the court of appeal’s affirmance of the
judgment in favor of respondent in his official or
individual capacity or both. It is clear, however, that
he is only appealing that affirmance insofar as the
court of appeals determined that petitioner is not
entitled to recover money damages. See Pet. i. Re-
gardless, money damages are the only relief possible
since the CITY Program of which petitioner was
Director and to which he requested reinstatement
“ceased to exist,” and al] CITY employees were termi-
nated, over four years ago. Pet. App. 16a.
¢
SUMMARY OF THE ARGUMENT
The Court should deny the writ because (i) the
Eleventh Circuit’s holding that petitioner’s speech
was not protected by the First Amendment is not in
4
conflict with this Court’s precedent, and (ii) the
alleged split among less than half the circuits does
not warrant certiorari review. The Court should also
deny the writ because, even accepting petitioner’s
argument that the Eleventh Circuit erred in holding
that petitioner’s speech was not protected, respondent
Franks would still be entitled to immunity.
°
REASONS FOR DENYING THE WRIT
I. There is no conflict with this Court’s prec-
edent and the Court should refrain from
deciding an issue that has been considered
by less than half the circuit courts.
Petitioner misstates that the question on this
appeal is whether subpoena testimony that “was not
a part of the employee’s ordinary job responsibilities”
is protected by the First Amendment. See Pet. i. Both
the court of appeals and the district court found that
petitioner’s speech was made pursuant to his official
duties as the Director of CITY, and, thus, was not
protected, which is consistent with this Court’s deci-
sions, including Garcetti v. Ceballos, 547 U.S. 410
(2006). See Pet. App. 4a, 7a, 29a.
As in Garcetti, the lower courts in this action
found that “(t]he controlling factor” was that petition-
er’s speech was “made pursuant to his duties” as the
Director of CITY. See 547 U.S. at 421. Petitioner’s
implication that the court of appeals erred in stating
that petitioner’s job description did not control, see
5
Pet. 5, is due to be rejected, since that is exactly what
the Court held in Garcetti: “The proper inquiry is a
practical one. ... [T]he listing of a given task in an
employee’s written job description is neither neces-
sary nor sufficient to demonstrate that conducting the
task is within the scope of the employee’s professional
duties for First Amendment purposes.” See 547 U.S.
at 424-25. To the extent petitioner is claiming that
the court of appeals somehow misapplied Garcetti,
that is not a reason for granting his petition. See Sup.
Ct. R. 10 (“A petition for a writ of certiorari is rarely
granted when the asserted error consists of erroneous
factual findings or the misapplication of a properly
stated rule of law.”).
Finally, the small number of circuits (only four)
to have considered the issue of whether subpoena
testimony is or should always be protected by the
First Amendment weighs against granting certiorari
at this time and favors allowing this issue to become
more developed in the lower courts. This is especially
compelling where the perceived “conflict” among
circuits is, at most, just six years old.
II. The Court should refrain from deciding
a constitutional question unnecessarily
since respondent Steve Franks would still
have immunity even if the Court adopts
the interpretation of the First Amend-
ment advanced by petitioner.
Respondent has always denied that petitioner’s
subpoenaed testimony had anything to do with the
6
termination of petitioner’s employment. but, even
accepting as true that it did, respondent would still
have immunity. The Court should thus deny certiora-
ri because even if it were to hold that petitioner’s
speech was protected by the First Amendment be-
cause he was speaking as a citizen and not in his
capacity as the Director of CITY, as petitioner argues,
the outcome would still be the same. See Ashcroft v.
al-Kidd, 131 S. Ct. 2074, 2080 (2011) (“Courts should
think carefully before expending scarce judicial
resources to resolve difficult and novel questions of
constitutional ... interpretation that will have no
effect on the outcome of the case.”) (citation and
quotation marks omitted); Ashwander v. TVA, 297
U.S. 288, 347 (1936) (Brandeis, J., concurring) (“The
Court will not pass upon a constitutional question
although properly presented by the record, if there is
also present some other ground upon which the case
may be disposed of.”).
Petitioner asks the Court to decide a constitu-
tional question unnecessarily. See Reichle v. Howards,
132 S.Ct. 2088, 2093 (2012) (recognizing that the
decision whether to “grant qualified immunity on the
ground that a purported right was not ‘clearly estab-
lished’ by prior case law, without resolving the often
more difficult question whether the purported right
exists at all{,] comports with our usual reluctance to
decide constitutional questions unnecessarily”) (citing
Pearson v. Callahan, 555 U.S. 223, 227, 236, 241
(2009)); Morse v. Frederick, 551 U.S. 393, 428-29
(2007) (Breyer, J., concurring in part and dissenting
7
in part) (“More importantly, we should also adhere to
a basic constitutional obligation by avoiding unneces-
sary decision of constitutional questions.”). The Court
should adhere to “the general rule of constitutional
avoidance” and “the older, wiser judicial counsel not
to pass on questions of constitutionality unless such
adjudication is unavoidable” and deny the writ. See
Pearson, 555 U.S. at 241 (citation, quotation marks,
and ellipses omitted).
A. Sovereign Immunity
Respondent has sovereign immunity from peti-
tioner’s First Amendment retaliation claim in his
official capacity because he is not a “person” subject
to suit under 42 U.S.C. § 1983, by which petitioner’s
First Amendment retaliation claim is brought. Pet.
App. 23a; Will v. Mich. Dep't of State Police, 491 U.S.
58, 71 (1989).
Similarly, regardless of whether petitioner’s speech
was protected, respondent has sovereign immunity
from any claim for damages in both his official and
individual capacities since CACC, and, consequently,
the State of Alabama, not respondent, is the real
party in interest. See Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100-02 (1984). The court
of appeals did not find it necessary to reach this
issue. Pet. App. 4a. However, as the district court
found, respondent “seems to fit into the framework
of a government official who is immune in his
individual capacity because the state is the real party
8
in interest.” Pet. App. 25a-26a, 34a. Thus, respondent
would still be immune from petitioner’s action even if
the Court were to find that the court of appeals erred
in holding that petitioner’s speech was not protected.
See Pennhurst, 465 U.S. at 100-02.
B. Qualified Immunity
Even if the Court adopts the interpretation of the
First Amendment advanced by petitioner, qualified
immunity would still preclude a claim for damages
against respondent in his individual capacity (any
official capacity claim being barred). This is because,
at the very least, respondent was not on fair notice,
and petitioner has never shown, that it was clearly
established at the time of petitioner’s August 2008
testimony that (1) petitioner’s testimony was not
made pursuant to his official duties as the Director of
CITY, but, rather, was citizen speech protected by the
First Amendment, and (2) that testimony pursuant to
a subpoena is always protected.
“Qualified immunity shields government officials
from civil damages liability unless the official violated
a... constitutional right that was clearly established
at the time of the challenged conduct.” Reichle v.
Howards, 132 S. Ct. 2088, 2093 (2012). “To be clearly
established, a right must be sufficiently clear that
every reasonable official would have understood that
what he is doing violates that right.” /d. (citation and
quotation marks omitted). While the Court does “not
require a case directly on point, .. existing precedent
must have placed the ... constitutional question
beyond debate.” Ashcroft v. al-Kidd, 131 S. Ct. 2074,
2083 (2011). “The constitutional question in this case
falls far short of that threshold.” Jd.
“Here, the mght in question is not the general
right to be free from retaliation for one’s speech,”
Reichle, 132 S. Ct. at 2094, but the more specific right
to be free from retaliation on account of subpoenaed
testimony, even where the testimony was made
pursuant to an employee’s official duties. However,
“[t]his Court has never held that there is such a
right.” See id. If it were to do so now, respondent
would still have qualified immunity because neither
this Court’s precedent nor Eleventh Circuit prece-
dent, at the time of the challenged conduct, was
clearly established. See id. at 2093-94. As correctly
recognized by the court of appeals, Eleventh Circuit
precedent established just the opposite. Pet. App. 5a-
8a; see also Pet. 23 (acknowledging that “the Eleventh
Circuit applied its precedent” in disposing of this
action below).
Petitioner’s argument that this is not a settled
issue among four circuits supports respondent’s
qualified immunity from this action.* See Pearson,
* Most of the cases cited by petitioner to support his argu-
ment that there is a conflict among the circuits were decided in
the last three years, after petitioner’s termination. Such cases
are irrelevant to the issue of whether the law was clearly
established at the time of that termination. See Ashcroft,v. al-
Kidd, 131 S. Ct. at 2083 (“existing precedent must have placed
(Continued on following page)
10
555 U.S. at 244-45 (“‘If judges thus disagree on a
constitutional question, it is unfair to subject [a
defendant] to money damages for picking the losing
side of the controversy.’”) (citation omitted). That
another circuit may have held that respondent is not
immune is irrelevant. See Pet. 14. The law of other
circuits could not clearly establish law in the Elev-
enth Circuit. See, e.g., Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir. 1981) (“Under the estab-
lished federal legal system the decisions of one circuit
are not binding on other circuits.”); In re Korean Air
Lines Disaster of Sept. 1, 1983, 829 F.2d 1171, 1176
(D.C. Cir. 1987) (“The federal courts . . . should strive
to avoid conflicts, but each has an obligation to en-
gage independently in reasoned analysis. Binding
precedent for all is set only by the Supreme Court
aie
“(T]he salient question .. . is whether the state of
the law [when respondent terminated petitioner] gave
[respondent] fair warning that [his} alleged treatment
of [petitioner] was unconstitutional.” See Hope uv.
Pelzer, 536 U.S. 730, 741 (2002). The state of this
Court’s law, and certainly of the Eleventh Circuit’s
law, failed to do so. Petitioner’s general statement
that “the Eleventh Circuit’s holding is contrary to this
Court’s precedents regarding both public employee
speech and the role of sworn testimony|,]” Pet. 14,
is not enough to overcome respondent’s qualified
the ... constitutional question beyond debate”) (citation and
quotation marks omitted).
ll
immunity. “(T]he right allegedly violated must be
established, not as a broad general proposition, but in
a particularized sense so that the contours of the
right are clear to a reasonable official ... .” Reichle,
132 S.Ct. at 2094 (citations and quotation marks
omitted). That is not the case here. See id. at 2093-94.
Petitioner’s reliance on the general law in
Garcetti v. Ceballos, 547 U.S. 410 (2006), for deter-
mining whether an employee’s speech is speech as a
citizen is inapposite. As discussed in Section I., the
holdings of the lower courts in this action are con-
sistent with Garcetti. Even so, as recognized by
petitioner, the Court expressly declined to establish
“‘a comprehensive framework for defining the scope
of an employee’s duties where there is room for seri-
ous debate.’” Pet. 16 (citing Garcetti, 547 U.S. at 424).
Nor could Justice Souter’s dissent in Garcetti, cited
by petitioner on page 20 of his petition, create clearly
established law. See 21 C.J.S. Courts § 198 (“Dissent-
ing opinions are not binding.”); see also, e.g., Purcell v.
BankAtlantic Fin. Corp., 85 F.3d 1508, 1513 (11th Cir.
1996) (“[A] dissenting Supreme Court opinion i$ not
binding precedent.”); accord United States v. Ameline,
409 F.3d 1073, 1083 n.5 (9th Cir. 2005).
Likewise, petitioner’s citations to multiple cases
for the broad general proposition that subpoenaed
testimony is important, a point which respondent
does not dispute, should be given little weight. See
Reichle, 132 S. Ct. at 2094. None of those cases estab-
lish that subpoenaed testimony is always protected
speech. Only Branzburg v. Hayes, 408 U.S. 665
12
(1972), and Cohen v. Cowles Media Co., 501 U.S. 663
(1991), discuss First Amendment jurisprudence at all,
but in the unrelated context of a journalist’s obliga-
tion to respond to a grand jury subpoena when confi-
dential information or a confidential informant is
involved. See Reichle, 132 S. Ct. at 2094.
Finally, Rehberg v. Paulk, 132 S. Ct. 1497 (2012)
and Snyder v. Phelps, 131 S. Ct. 1207 (2011), cited by
petitioner on pages 19 and 21 of his petition, could
not have clearly established that subpoena testimony
was always protected speech when respondent termi-
nated petitioner in 2009. See Ashcroft v. al-Kidd, 131
S. Ct. at 2083. Even so, Snyder dealt with the sepa-
rate issue of whether a person’s speech was on a
matter of public concern, which does not change the
result in this action. Even if petitioner’s speech was
on a matter of public concern, as petitioner argues,
see Pet. 21-22, it was not clearly established at the
time of that speech that petitioner was speaking as a
citizen, as opposed to pursuant to his responsibilities
as Di-ector of the CITY Program, which is a separate
ara’ .s from whether his speech involved a matter of
f-1..c concern. See generally Garcetti, 547 U.S. 410.
In short, the Court should not reach the constitu-
tional question because qualified immunity clearly
bars petitioner’s action. See, e.g., Reichle, 132 S. Ct.
at 2093.
¢
13
CONCLUSION
The petition for a writ of certiorari should be
denied.
Respectfully submitted,
MARK T. WAGGONER
Counsel of Record
HAND ARENDALL LLC
1200 Park Place Tower
2001 Park Place North
Birmingham, AL 35203
(205) 324-4400
mwaggoner@handarendall.com
JENNIFER S. MORGAN
11 North Water Street
RSA Tower, Suite 30200
Mobile, AL 36602
(251) 432-5511
jmorgan@handarendall.com
BRIEF
| ran ux—
FILED
RECORD NOV 2 6 2013
R.... LOFFICE OF TH: CE ERE
IN THE
Supreme Court of the United States
EDWARD LANE,
Petitioner,
Vv.
STEVE FRANKS,
Respondent.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Eleventh Circuit
REPLY BRIEF FOR THE PETITIONER
Thomas C. Goldsteim
Counsel of Record
Tejinder Singh
GOLDSTEIN & RUSSELL, P.C.
5225 Wisconsin Ave. NW
Suite 404
Washington, DC 20015
(202) 362-0636
tg@goldsteinrussell.com
WILSON-EPES PRINTING CO., Inc. — (202) 789-0086 - ee ae
Law Library
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...............0.00000000000000.. ii
REPLY BRIEF FOR THE PETITIONER. ............ 1
I. The Acknowledged Circuit Conflict
Warrants This Court’s Review. ..................... 1
II. Respondent’s Qualified Immunity
Argument Does Not Undermine The Case
IT <cnnitsccnmsiinsenenennnnincintionmenmmacets 7
Ii. Respondent’s Sovereign Immunity
Argument Does Not Undermine The Case
UTI IIIT cnisiisininictaennsicnneipaieaneiedainenalinieineunies 10
IEEE iirpecntnnnensansnenssenmmasecnnsnmessnmnsontmianne 12
‘i
TABLE OF AUTHORITIES
Cases
Alden v. Maine,
AEE Tae eee ae eee 12
Bowie v. Maddox,
653 F.3d 46 (D.C. Cir. 2011)................cccccsccccsccssceees 5
Bowyer v. D.C.,
910 F. Supp. 2d 173 (D.D.C. 2012)... 5
Carr v. City of Camden,
No. 09-4717 (NLHXKMW), 2012 WL 4051884
Ss Cs tes SEE iitiieccrisesninncnasinnisntnestincocnssesents 5
Caruso v. NLY.C.,
--- F. Supp.2d ----, No. 06-cv-59997(RA), 2013
WL 5382206 (S.D.N.Y. Sept. 26, 2013) ................... 5
Chrzanowski v. Bianchi,
725 F.3d 734 (7th Cir. 2013)...........ccccccccccscsscccseverees 4
Clairmont v. Sound Mental Health,
632 F.3d 1091 (Sth Cir. ZOLL)...............cccccccccccsecceees 4
Connick v. Myers,
ee Bc cnnnnicndienitueecintemioinnnaninienniasans 8,9
Cross v. Ala. Dep’t of Mental Health & Mental
Retardation,
49 F.3d 1490 (11th Cir. 1995)....................0..0000002.. 11
Dahlia v. Rodriguez,
--- F.3d —--, No. 10-55978, 2013 WL 4437594
(9th Cir. Aug. 21, 2013) (en banc) ...............0.......... 4
Davis v. City of E. Orange,
No. 05-3720 (JLL), 2008 WL 4328218 (D.N.J.
SE Se IN tiscsicastieahtnissiadnesliatinmibienambeetnannennenionmunennis 6
Ex parte Young,
a I tiseccacieneetaeiriigetiiinidieniinndentionmidametiniel 10
Fairley v. Fermaint,
482 F.3d 897 (7th Cir. 2007).............:cccccceeeeeeeeeees
Foster v. Thompson,
No. 05-cv-305-TCK-FHM, 2008 WL 4682264
(N.D. Okla. Oct. 21, 2008) .............cccccccseeeeseeeereeees
Frisenda v. Inc. Vill. of Malverne,
775 F. Supp. 2d 486 (E.D.N-Y. 2011) ..................
Garcetti v. Ceballos,
See I I rcdeccscnnccesiccsesossncnsnscucdasadioen 2, 8,9
Green v. Barrett,
226 F. App’x 883 (11th Cir. 2007) .................000...
Hayburn v. City of Phila.,
No. 11-6673, 2012 WL 3238344 (E.D. Pa. Aug.
ip EE iehecanencneienineisnininnennsinnmcanenrsenienaiaenannennsnnee
Hook v. Regents of Univ. of Cal.,
576 F. Supp. 2d 1223 (D.N.M. 2008), affd, 394
F. App’x 522 (10th Cir. 2010) .......c.c.ccccesesssseeeseees
Johnson v. Lapeer Cnty.,
No. 04-74659, 2006 WL 2925292 (E.D. Mich.
a Tits SINE cneinrcsscictnncnersnenenninesmenennesorssoumienneansees
Karl v. City of Mountlake Terrace,
678 F.3d 1062 (9th Cir. 2012)..............0.cccceceeeeeees
Kerstetter v. Pa. Dep’t of Corrs. SCICoal Twp.,
No. 08-cv-1984, 2010 WL 936457 (M.D. Pa.
ED. Tilly SUED ecerensnnmniccrcnsconsenscsnsneuseenseansncessecensoress
Klein v. Cnty. of Bucks,
No. 12-4809, 2013 WL 1310877 (E.D. Pa. Apr.
i iariecanasincidncincndntnnentniniiiacninbtenneinmennenenenetio
Lassiter v. Ala. A&M Univ. Bd. of Trs.,
3 F.3d 1482 (11th Cir. 1993), vacated on other
grounds, 28 F.3d 1146 (1994) .............. cece
eee
iv
Matthews v. Lynch,
No. 07-cv-739 (WWE), 2011 WL 1363783 (D.
Conn. Apr. 11, 2011), affd, 2012 WL 1873657
ee Se Be, SID ctisctcsicesccnncieicinnneiiciciiiesiennniiiae 5
Minten v. Weber,
832 F. Supp. 2d 1007 (N.D. Iowa 2011) .................. 5
Moore v. Money,
No. 11-cv-122, 2011 WL 5966957 (S.D. Ohio
a a 5
Morales v. Jones,
494 F.3d 590 (7th Cir. 2007)......0. 00. ccc c cece cece ee eee eee 4
Morris v. Crow,
142 F.3d 1379 (11th Cir. 1998)......0000.00 0. 3,4
Mullins v. N_Y.C.,
634 F. Supp. 2d 373 (S.D.N.Y. 2009), affd,
626 F.3d 47 (2d Cir. 2010) ..............ccccccccsccccsscccssseses 5
Novak v. Bd. of Educ. of Fayetteville-Manlius
Cent. Sch. Dist.,
No. 505-cv-199 (FJS/GJD), 2007 WL 804679
(N.D.N.Y. Mar. 14, 2007) ......ccccccesccsesscsssseseceececencens 6
Pickering v. Bd. of Educ. of Twp. High School.
Dist. 205,
391 U.S. 563 (1968).......ccccccscessecessecsessesessessesecsnesecens 9
Proper v. Sch. Bd. of Calhoun Cnty. Fia.,
No. 10-cv-287-RS-EMT, 2011 WL 3608678
(N.D. Fla. Aug. 12, 2011) .....cccccccccccsssssesecsceceesereeseees 5
Ramirez v. Cnty. of Marin,
No. 10-02889 WHA, 2011 WL 5080145 (N.D.
I a dillaerinnepaniiins 5
Reichle v. Howards,
I i il 8
Reid v. City of Atlanta,
No. 08-cv-01846-JOF, 2010 WL 1138456 (N.v.
is Re: ies MUNIN encensincemndncecinennnninnentdiidicmmndinninamenia
San Diego v. Roe,
543 U.S. 77 (2004) (per curiam) ..................0000008
Seifert v. Unified Gov’t of Wyandotte Cnty / Kan.
City,
No. 11-2327-JTM, 2013 WL 2631632 (D. Kan.
Ne acti dadialacilbiiddhinsaedmnendananties
State Emps. Bargaining Agent Coal. v.
Rowland,
494 F.3d 71 (2d Cir. 2007) ....... 0c eeeeeeeeeeeees
United States v. Calandra,
Ss Ce i atcrtcctenttctiesedcsennssetcscosesnstiet
Walker v. Town of Hennessey,
--- F. Supp. 2d ----, No. 11-cv-1364-HE, 2013
WL 3058085 (W.D. Okla. June 17, 2013)............
Whitfield v. Chartiers Valley Sch. Dist.,
707 F. Supp. 2d 561 (W.D. Pa. 2010) ...........0...-.
I a
Other Authorities
Note, Be a Liar or You’re Fired! First
Amendment Protection for Public Employees
Who Object to Their Employer’s Criminal
Demands,
66 Vand. L. Rev. 1541 (2013).........0000.0000
REPLY BRIEF FOR THE PETITIONER
Respondent’s brief in opposition makes three
critical concessions. First, respondent does not dispute
that the courts of appeals squarely disagree whether
the First Amendment protects subpoenaed testimony
by public employees, and whether that rule is clearly
established. Indeed, respondent makes no attempt to
distinguish the precedents of the Third, Seventh, and
Ninth Circuits, all of which would have held that
petitioner’s speech was protected, and that qualified
immunity did not bar his claim for damages. Second,
respondent does not dispute that the questions
presented are important. This case not only implicates
freedom of speech and the integrity of the judicial
process, it also has tremendous practical significance:
sworn testimony by public employees is a powerful tool
in the fight against corruption, and the threat of
retaliation undermines that tool by deterring
employees from speaking. Third, respondent does not
dispute that under this Court's precedents,
subpoenaed testimony is inherently an obligation of
citizenship, and not one _ incident to _ public
employment. When, as here, such speech relates to a
matter of public concern, it earns the First
Amendment’s robust protections for citizen speech.
In light of these concessions, this Court should
grant certiorari. The contentions in the brief in
opposition do not suggest a different result.
I. The Acknowledged Circuit Conflict Warrants
This Court’s Review.
Respondent does not dispute that the decision
below conflicts with decisions in at least three circuits.
In fact, the Eleventh Circuit itself acknowledged the
2
disagreement. See Pet. App. 7a n.3. Nevertheless,
respondent argues that the Court should not resolve
the conflict for two reasons. First, he argues that the
decision below was correct because the lower courts
held that petitioner’s speech was part of his official
duties, so it is not protected under Garcetti v. Ceballos,
547 U.S. 410 (2006). See BIO 4-5. Second, he
downplays the significance of the conflict, arguing that
“only four” circuits have decided this issue, and the
conflict is “just six years old.” Jd. 5. Neither argument
justifies denying certiorari.
1. Respondent’s first argument—that the decision
below is consistent with Garcetti—assumes the answer
to the first question presented. The lower courts
concluded that when an employee’s sworn testimony
describes events that occurred during the course of his
duties, the testimony itself becomes part of the
employee’s official duties—even if the employee was
compelled to testify by a federal subpoena, and even if
his job does not ordinarily require him to testify. See
Pet. App. 7a, 29a.
In arguing (BIO 4) that the decision below is
consistent with Garcetti, respondent seems to assume
that the lower courts’ conclusions must be accepted as
true. In fact, they must not. Whether petitioner's
subpoenaed testimony can be characterized as part of
his official duties is not an assumed premise of the
first question presented, but the heart of the question
itself. Moreover, in the Eleventh Circuit, “[w]hether
the subject speech was made by the public employee
speaking as a citizen or as part of the employee’s job
responsibilities is a question of law for the court to
3
decide,” and therefore subject to de novo review. Pet.
App. 6a. And this case was decided at summary
judgment, review of which is always de novo, with
inferences drawn in petitioner's favor... So no
deference to the lower courts’ holdings is warranted.
Respondent also erroneously suggests (BIO 5) that
the court of appeals merely misapplied Garcetti.
Actually, the court held as a matter of law that
whether an employee testifies pursuant to a subpoena
is irrelevant to the First Amendment inquiry. See Pet.
App. 6a-7a; see also Morris v. Crow, 142 F.3d 1379,
1382 (11th Cir. 1998). In so doing, it acknowledged
that other circuits apply a different legal rule, and
would have reached a different result. Pet. App. 7a
n.3. Thus, the Eleventh Circuit’s error was not an
isolated misapplication of the correct standard, but
instead the conscious application of an entirely
different standard to facts that are indistinguishable
(or a fortiori) from contrary cases in other circuits.
2. Respondent’s attempts to minimize the circuit
split also fail. First, this Court’s intervention is
necessary because positions on both sides of the split
are entrenched. On one side, the Seventh Circuit
announced its rule in Fairley v. Fermaint, 482 F.3d
‘ Respondent also does not dispute that the propriety of
deciding the case at summary judgment is itself the subject of a
circuit conflict. As the petition explained, four circuits treat this
matter as a question of law, while four circuits regard it as a
mixed question of fact and law, such that if the parties dispute it,
summary judgment is inappropriate. Pet. 11-12 n.2.
4
897, 902-03 (7th Cir. 2007), and has consistently
applied it, see Chrzanowski v. Bianchi, 725 F.3d 734,
741-42 (7th Cir. 2013); Morales v. Jones, 494 F.3d 590,
598 (7th Cir. 2007). The Ninth Circuit has similarly
held employee testimony protected, including in a
recent en banc decision. See Dahlia v. Rodriguez, --
F.3d -—--, No. 10-55978, 2013 WL 4437594 (9th Cir.
Aug. 21, 2013) (en banc); Karl v. City of Mountlake
Terrace, 678 F.3d 1062, 1069-72 (9th Cir. 2012);
Clairmont v. Sound Mental Health, 632 F.3d 1091,
1105-06 (9th Cir. 2011).
On the other side of the split, the Eleventh
Circuit’s position is also fixed. Its rule dates to Morris
v. Crow, 142 F.3d 1379 (11th Cir. 1998), which the
court has never questioned—despite this Court’s
intervening decision in Garcetti, and despite the
acknowledged circuit split. Thus, in Green v. Barrett,
226 F. App’x 883, 887 (11th Cir. 2007), the court
applied Morris to reject the employee’s argument that
the First Amendment protects testimonial speech.
The court then denied the employee’s petition for
rehearing en banc. Here, the Eleventh Circuit again
applied Morris, deeming it “the law in this Circuit on
the question of public employee speech per a subpoena
in the context of judicial proceedings,”
notwithstanding its recognition that “other circuits
seem to have decided this issue differently.” Pet. App.
7a n.3. There is accordingly no reasonable prospect
the Eleventh Circuit will reverse itself, and respondent
does not contend otherwise.
Second, this issue arises with remarkable
frequency. In addition to the circuits identified in the
5
petition, the D.C. Circuit has suggested that
subpoenaed testimony is protected, although voluntary
testimony may not be. See Bowie v. Maddox, 653 F.3d
45, 47 n.1 (D.C. Cir. 2011). A survey of federal cases
yields more than twenty illustrative examples of First
Amendment retaliation claims involving testimony.’
2 See, e.g., Caruso v. N_Y.C., -- F. Supp.2d ----, No. 06-cv-
59997(RA), 2013 WL 5382206, at *15-18 (S.D.N.Y. Sept. 26,
2013); Walker v. Town of Hennessey, — F. Supp. 2d —--, No. 11-cv-
1364-HE, 2013 WL 3058085, at *8 (W.D. Okla. June 17, 2013);
Seifert v. Unified Gov't of Wyandotte Cnty/Kan. City, No. 11-
2327-JTM, 2013 WL 2631682, at *8-9 (D. Kan. June 12, 2013);
Klein v. Cnty. of Bucks, N@. 12-4809, 2013 WL 1310877, at *6
(E.D. Pa. Apr. 1, 2013); Bowyer v. D.C., 910 F. Supp. 2d 173, 202-
03 (D.D.C. 2012); Carr v. City of Camden, No. 09-4717
(NLHXKMW), 2012 WL 4051884, at *6 (D.N.J. Sept. 13, 2012);
Hayburn v. City of Phila., No. 11-6673, 2012 WL 3238344, at *4
(E.D. Pa. Aug. 7, 2012); Frisenda v. Inc. Vill. of Malverne, 775 F.
Supp. 2d 486, 510 (E.D.N.Y. 2011); Minten v. Weber, 832 F. Supp.
2d 1007, 1022-24 (N.D. lowa 2011); Moore v. Money, No. 11-cv-
122, 2011 WL 5966957, at *4 (S.D. Ohio Nov. 29, 2011); Ramirez
v. Cnty. of Marin, No. 10-02889 WHA, 2011 WL 5080145, at *9
(N.D. Cal. Oct. 25, 2011); Proper v. Sch. Bd. of Calhoun Cnty.
Fla., No. 10-cv-287-RS-EMT, 2011 WL 3608678, at *3 (N.D. Fla.
Aug. 12, 2011); Matthews v. Lynch, No. 07-cv-739 (WWE), 2011
WL 1363783, at *1 (D. Conn. Apr. 11, 2011), affd, 2012 WL
1873657 (2d Cir. May 24, 2012); Whitfield v. Chartiers Valley Sch.
Dist., 707 F. Supp. 2d 561, 571-77 (W.D. Pa. 2010); Reid v. City of
Atlanta, No. 08-cv-01846-JOF, 2010 WL 1138456, at *8 (N.D. Ga.
Mar. 22, 2010); Kerstetter v. Pa. Dep't of Corrs. SCICoal Twp., No.
08-cv-1984, 2010 WL 936457, at *7-8 (M.D. Pa. Mar. 12, 2010);
Mullins v. N.Y.C., 634 F. Supp. 2d 373, 390-91 (S.D.N.Y. 2009),
aff'd, 626 F.3d 47 (2d Cir. 2010); Foster v. Thompson, No. 05-cv-
305-TCK-FHM, 2008 WL 4682264, at *11-12 (N.D. Okla. Oct. 21,
2008); Davis v. City of E. Orange, No. 05-3720 (JLL), 2008 WL
6
And commentators have also noted the “split over
whether testimony given by public employees
pursuant to the subpoena power constitutes protected
speech.” E.g., Note, Be a Liar or You’re Fired! First
Amendment Protection for Public Employees Who
Object to Their Employer’s Criminal Demands, 66
Vand. L. Rev. 1541, 1555 (2013).
Finally, on a question of such importance, four
circuits and six years of division are plenty. As long as
the conflict persists, the First Amendment will mean
something different in the Eleventh Circuit than it
does in at least three others. Such inconsistency is
anathema to the very notion of a single federal
Constitution. Because uniformity in this area of the
law is particularly important, the Court should grant
certiorari now instead of allowing the conflict to fester.
Moreover, this case is an ideal vehicle to decide the
questions presented, which were the only issues on
which the Eleventh Circuit opined.
In sum, the questions presented give rise to an
acknowledged circuit split over important questions of
federal law. This Court should grant certiorari to
resolve the conflict.
4328218, at *6 (D.N.J. Sept. 17, 2008); Hook v. Regents of Univ. of
Cal., 576 F. Supp. 2d 1223, 1232 (D.N.M. 2008), affd, 394 F.
App’x 622 (10th Cir. 2010); Williams v. Johnson, 537 F. Supp. 2d
141, 161-52 (D.D.C. 2008).
7
Il. Respondent’s Qualified Immunity Argument
Does Not Undermine The Case For
Certiorari.
The petition presents two questions: whether a
First Amendment violation occurred; and whether
respondent is entitled to qualified immunity. Pet. i.
Like the first question, the qualified immunity
question is itself an important issue of federal law on
which the courts of appeals disagree. Respondent does
not dispute this, but instead argues that the Eleventh
Circuit’s qualified immunity holding was correct, and
therefore obviates the need to reach the first question.
For several reasons, respondent’s contention is
irrelevant to this Court’s certiorari determination.
First, if qualified immunity applies at all, it applies
only to petitioner’s claim for damages, not his claim for
prospective relief. Thus, qualified immunity cannot
resolve the entire case. Second, in the face of the
conceded circuit split, respondent’s argument only
illustrates why this Court should grant certiorari: if
the Eleventh Circuit’s qualified immunity decision was
correct, then the Court should grant certiorari to
correct the contrary holdings of three circuits;
3 Respondent mistakenly argues that petitioner “is only
appealing” the Eleventh Circuit’s holding as it relates to
damages. BIO 3. Not so. The petition seeks review of the
Eleventh Circuit’s entire judgment, waiving only petitioner's
claims against the college, and under state law. See Pet. 4 n.1.
The first question presented plainly encompasses petitioner's
official-capacity and individual-capacity First Amendment claims
against respondent, and both remain at issue. Jd. i.
8
conversely, if the Eleventh Circuit was incorrect, then
the Court should grant certiorari and reverse. Either
way, the Court should grant certiorari. Finally, even
assuming that the Court could avoid the First
Amendment question by ruling on qualified immunity
grounds, it should only do so after considering the
merits. Cf. Reichle v. Howards, 132 S. Ct. 2088, 2093
(2012) (“We granted certiorari on two questions . . . We
elect to address only the [qualified immunity]
question.”).
Respondent is also wrong because qualified
immunity does not protect his decision to fire
petitioner in retaliation for subpoenaed testimony.
Qualified immunity does not apply if an “official
violated a statutory or constitutional right that was
clearly established at the time of the challenged
conduct.” Jd. When respondent terminated petitioner,
all of the principles underlying petitioner’s claim were
clearly established by this Court’s precedents. To wit:
e “The First Amendment's guarantee of freedom
of speech protects government employees from
termination because of their speech on matters of
public concern.” Bd. of Cnty. Comm’rs v. Umbehr, 518
U.S. 668, 675 (1996) (emphasis removed). See also
Garcetti v. Ceballos, 547 U.S. 410, 419 (2006); Connick
v. Myers, 461 U.S. 138, 147 (1983); see Pet. 14-17.
e Subpoenaed testimony is citizen speech—not
employee speech—because a subpoena independently
obligates a citizen to testify. See, e.g., United States v.
Calandra, 414 U.S. 338, 345 (1974) (“The duty to
testify has long been recognized as a basic obligation
9
that every citizen owes his Government.”); see Pet. 18-
20.
e Testimony describing an _ elected official’s
misconduct constitutes speech on a matter of public
concern. See, e.g., Connick, 461 US. at 148
(explaining that speech that would allow the public to
“evaluat(e] the performance of. . . an elected official”
would constitute speech on a matter of public concern,
as would speech that “bring{s] to light actual or
potential wrongdoing or breach of public trust”); see
Pet. 21-22.
e The fact that petitioner's testimony described
corruption in his workplace does not mean that he
spoke in the course of his official duties. Indeed,
society has a heightened interest in receiving firsthand
accounts of events that occur in government offices.
See, e.g., Garcetti, 547 U.S. at 420 (“Were [public
employees] not able to speak on [the operation of their
employers], the community would be deprived of
informed opinions on important public issues.”)
(quoting San Diego v. Roe, 543 U.S. 77, 82 (2004) (per
curiam)); Pickering v. Bd. of Educ. of Twp. High
School. Dist. 205, 391 U.S. 563, 571-72 (1968)
(explaining that because teachers are well-informed
about school issues, “it is essential that they be able to
speak out freely on such questions without fear of
retaliatory dismissal”); see Pet. 22-23.
Together, these authorities clearly establish that a
public employer may not retaliate against an employee
for sworn testimony in a corruption trial, even when
the testimony describes events that occurred in the
workplace. The Eleventh Circuit’s contrary conclusion
is erroneous, and should be reversed.
10
il. Respondent’s Sovereign Immunity Argument
Does Not Undermine The Case For
Certiorari.
Respondent also argues that he is entitled to
sovereign immunity. BIO 7-8. That issue is not before
the Court. As respondent acknowledges, the Eleventh
Circuit expressly declined to reach it. Jd. 7; Pet. App.
4a. Moreover, it is not “fairly included” in either
question presented because it raises Eleventh
Amendment issues that fall outside the boundaries of
the First Amendment questions raised by the petition.
S. Ct. R. 14.1(a). There is accordingly no realistic
prospect that this Court would reach out to address
sovereign immunity in the first instance as an
alternative ground for affirmance. Instead, this is an
issue that the Eleventh Circuit can address on
remand.
Furthermore, respondent offers no analysis
beyond a single sentence quoted from the district court
opinion. See BIO 7-8. But there is a reason that the
Eleventh Circuit did not affirm on this basis. When
the court addresses this issue on remand, it will likely
conclude that respondent is not, in fact, entitled to
immunity.
First, the Eleventh Amendment does not bar
petitioner's official-capacity claim for reinstatement to
the “position in which he would have worked absent
the Defendant’s retaliatory treatment.” Pet. App. 23a-
24a. Under Ex parte Young, 209 U.S. 123 (1908),
sovereign immunity does not shield a state official’s
violations of federal law from a claim for prospective
injunctive relief. While respondent has argued that Ex
11
parte Young is inapplicable because petitioner’s
termination does not constitute an ongoing violation of
federal law, every circuit to have addressed the
question, including the Eleventh Circuit, has held to
the contrary that a claim for reinstatement is precisely
the sort of prospective injunctive relief authorized by
Ex parte Young. See, e.g., Cross v. Ala. Dep’t of Mental
Health & Mental Retardation, 49 F.3d 1490, 1503
(11th Cir. 1995) (“Appellees’ request for reinstatement
is not barred by the Eleventh Amendment.”); Lassiter
v. Ala. A&M Univ. Bd. of Trs., 3 F.3d 1482, 1485 (11th
Cir. 1993), vacated on other grounds, 28 F.3d 1146
(1994) (same). See also State Emps. Bargaining Agent
Coal. v. Rowland, 494 F.3d 71, 96 (2d Cir. 2007)
(collecting cases and explaining that “[elvery Circuit to
have considered the issue, including our own, has held
that claims for reinstatement to previous employment
satisfy the Ex parte Young exception to the Eleventh
Amendment’s sovereign immunity bar”).*
* Respondent argues that reinstatement is unavailable
because the CITY program was terminated along with its
employees. BIO 3. However, as petitioner pointed out below, the
program was renamed and moved to a new department, and at
least some CITY employees were transferred along with it. See
Pet. CA. Reply Br. 6 n.4. Petitioner has asked for reinstatement
to the position he would be in but for the retaliation. The lower
courts can determine what position that might be. To the extent
respondent argues that the restructuring of the CITY program
somehow renders Ex parte Young inapplicable, the Second
Circuit, at least, has rejected that argument, and the Eleventh
Circuit can address it on remand. See Rowland, 494 F.3d at 96-
97.
12
Second, sovereign immunity does not bar
petitioner's individual-capacity claim for damages
because “a suit for money damages may be prosecuted
against a state officer in his individual capacity for
unconstitutional oor wrongful conduct fairly
attributable to the officer himself, so long as the relief
is sought not from the state treasury but from the
officer personally.” Alden v. Maine, 527 U.S. 706, 757
(1999). Respondent asserts that Alabama is the real
party in interest, but does not explain why. To the
extent that he has some other as-yet-unidentified
argument to make—and to the extent it has been
preserved—the proper forum to present it is the
Eleventh Circuit on remand.
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
Thomas C. Goldstein
Counsel of Record
Tejinder Singh
GOLDSTEIN &
RUSSELL, P.C.
5225 Wisconsin Ave. NW
Suite 404
Washington, DC 20015
(202) 362-0636
tg@goldsteinrussell.com
November 26, 2013
PETITIONER'S
BRIEF
FULRD
RECORD otek
AND No. 13-483 MAR 3 - 201
| Supreme Coat Ue. }
BRIEFS COREE a car
Supreme Court of the United States
EDWARD LANE,
Petitioner,
STEVE FRANKS, IN HIS INDIVIDUAL CAPACITY, AND
SUSAN BURROW, IN HER OFFICIAL CAPACITY AS ACTING
PRESIDENT OF CENTRAL ALABAMA COMMUNITY
COLLEGE,
Respondents.
On a Writ of Certiorari
to the United States Court of Appeals
for the Eleventh Circuit
BRIEF FOR THE PETITIONER
Tejinder Singh
Counsel of Record
Thomas C. Goldstein
Kevin K. Russell
GOLDSTEIN & RUSSELL, P.C.
5225 Wisconsin Ave. NW
Suite 404
Washington, DC 20Qjibrary of Congress
(202) 362-0636 Law Library
tsingh@goldsteinrussell.com
Werke
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — W. 'D » 2014
CLEKK
OFFICE OF THE CLERK
|
QUESTIONS PRESENTED
1. Is the government categorically free under the
First Amendment to retaliate against a public
employee for truthful sworn testimony that was
compelled by subpoena and was not a part of the
employee’s ordinary job responsibilities?
2. Does qualified immunity preclude a claim for
damages arising from such retaliation?
li
PARTIES TO THE PROCEEDINGS BELOW
Pursuant to Rule 14.1(b), the parties to the
proceedings below include petitioner, respondent
Steve Franks, and Central Alabama Community
College, a defendant-appellee below that is no longer
a party to the case. Respondent Susan Burrow was
added to the case after certiorari was granted
because she has assumed the office of president of
Central Alabama Community College, which Franks
formerly held.
TABLE OF CONTENTS
QUESTIONS PRESENTED ................ccccceceeeseeeeeeee i
PARTIES TO THE PROCEEDINGS BELOW..... ii
TABLE OF AUTHORITIES ..................cccceceseeeees iv
BRIEF FOR THE PETITIONER...................0...... 1
EE IMENT iitesdidinierisicnienduiseldoisiicsadmianncseanacs l
IT ciiicnisininiiuninarciatunendsnpiantiusvensiontienidin 1
RELEVANT CONSTITUTIONAL PROVISION.. 1
STATEMENT OF THE CASE .................:ccccceeeeeees ]
SUMMARY OF ARGUMENT........................ ee 8
IEE Gciiiccsn ditedaubiiiausiniantiieecnddedimicamiiinipicdis 12
I. This’ Court’s Precedents Clearly
Establish That The First Amendment
Protects Petitioner’s Testimony................... 13
Il. Eleventh Circuit Precedent And
Persuasive Authorities Also Clearly
Established Petitioner’s Right To Testify. .. 34
IIIT scicasiceccoshcscsidesaussiys tadddaminshematiniemeancaaed 46
iv
TABLE OF AUTHORITIES
Cases
Abdur-Rahman v. Walker,
567 F.3d 1278 (11th Cir. 2009)..........0..0...... 6, 27, 40
Ashcroft v. al-Kidd,
ae 26, 35
Bd. of Cnty. Comm’rs v. Umbehr,
RIS NE Se A i eS a ee AR ELT T 14
Blackmer v. United States,
I A a et 42
Blair v. United States,
I 42
Branzburg v. Hayes,
ee Ce i rccsccccvectcenkeckciedesctecsesiscs 20, 22, 42
Briscoe v. LaHue,
TEER Seen mts Mya i Deteite ee 20
Catletti ex rel. Estate of Catletti v. Rampe,
S94 F.3d BBS (Ba Cir. BOOB) ........ccccccccccccsccccccecceces. 42
Chrzanowski v. Bianchi,
725 F.3d 734 (7th Cir. 2013), petition for cert.
filed 82 U.S.L.W. 3282 (Oct. 18, 2013) (No. 13-
REA ROEE eso wre LO TE RTD Ep Oem P EEN a pen 21
City of San Diego v. Roe,
ee Se i edenicscamintscacestsesscestneccecnsdsnes passim
Cohen v. Cowles Media Co..,
ee en ada vocuinasanuodnioubeinoodia 22
Douglas Oil Co. v. Petrol Stops NW,
ee es siaabdiinamiciemmaiomaaniaiel 20
Fairley v. Fermaint,
482 F.3d 897 (7th Cir. 2007)...................... 41, 44, 45
Vv
FEC v. Wis. Right to Life, Inc.,
EE ER EE a aN 30, 33
Garcetti v. Ceballos,
Re ee I acdiisinnncdicniensioesasiucciinisinieitde passim
Givhan v. W. Line Consol. Sch. Dist.,
ae a I ictiattiiciialicaintliishensriinsiniinenicciicts passim
Grand Jury Proceedings (Williams) v. United
States,
Be ce ee CON GAs Be oiciccsccwecedcescstocsseccace 41
Green v. Barrett,
226 F. App’x 883 (11th Cir. 2007) ......................... 40
Green v. Phila. Hous. Auth.,
ee I, BID eciciconicsacssesasuvunsersececdcs 42
Harlow v. Fitzgerald,
a casdmnaeliel 25
Herts v. Smith,
345 F.3d 661 (6th Cir. BO03)............2.00.0000..000..0000.. 42
Hope v. Pelzer,
536 U.S. 730 (2002)................ eae 26
Hustler Magazine, Inc. v. Falwell,
RE eT a eC OP 30
Keyishian v. Bd. of Regents,
Ee On a Ie eR a 13
Lane v. Cent. Ala. Cmty. Coll.,
No. 11-cv-0883-KOB, 2012 WL 5873351 (N.D.
TRS SEARS SARS lh Stare ey Acc 24
Maggio v. Sipple,
211 F.3d 1346 (Lith Cir. 2000)...............cccccccccccscees 41
Martinez v. City of Opa-Locka,
971 F.2d 708 (11th Cir. 1992)........................ passim
vi
Morales v. Jones,
494 F.3d 590 (7th Cir. 2007)..............00000000.... passim
Morris v. Crow,
142 F.3d 1379 (11th Cir. 1998)............ 38, 39, 40, 45
Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle,
I a eo 14
New York v. O'Neill,
TR RS a SAR le te en 42
Pearson v. Callahan,
en ee cauunbadeneunuseunbensgpacess 25
Perry v. Sindermann,
EE SES RR eel SO a 14
Pickering v. Bd. of Educ.,
Be Es Se cictsisincecensespecsnsnrsecccsssnendions passim
Piemonte v. United States,
a a cnienedupacbavedscenventecs 22,41
Pro v. Donatucci,
Bl PF. RBS CSS Cir. 19GB) .........cccccccsccccccscccscsees 42
Rankin v. McPherson,
a 15
Reeves v. Claiborne Cnty. Bd. of Educ.,
SD Fe BGS CEG Cie. BBBT).ncccccescccccccccccscscscccsces 42
Rehberg v. Paulk,
es seuumeuesadicvcecdweuenies 20
Reilly v. City of Atlantic City,
532 F.3d (3d Cir. 2008)............ scuetenicbiatndanaiela passim
Robinson v. Balog,
ee ee ee ED... coco ctcconccnsesounececesons 42
Saucier v. Katz,
a cimatuniepeenaniacnauaduiael 25
Shelton v. Tucker,
ee Or ts Gr i cktvcecccnievseciicectibciaae 13
Snyder v. Phelps,
§ Be ft | RENEE RT 17
Stanton v. Sims,
BI Ge. Ci. BP Ge scvccenessctnsinnssshideotnianmsentaeaaiae 26
Tindal v. Montgomery Cnty. Comm'n,
32 F.3d 1535 (11th Cir. 1994).....000000000...... 37, 38, 40
United States v. Calandra,
ST Rs Sl). | ene | 22, 27,42
United States v. Gallo,
195 F.3d 1278 (11th Cir. 1999).........000000..... ee. 35
United States v. Havens,
OO GE Ge Ci itcicntecsccetiusiissitiadainnaee 19
United States v. Mandujano,
GS Te, Be Citic ccsitincecnecvecinxshiciucssumianaee 42
United States v. N.Y. Tel. Co.,
GG TE BR Ce Oi ectecinititnvsicisioninnatiaee 22
United States v. Nat'l Treasury Emps. Union,
ee UR GG Ce acceriscessdebcsisinctichiltenaieadidiadia 15, 16
United States v. Nixon,
Ge Ses Ge Ce iris ncccsnescetcecseeseemetaena 20, 23, 42
United States v. Schmitz,
634 F.3d 1247 (1ith Cir. 2O12).................00200.... 3,4
Waters v. Churchill,
Se Rts BS fs | Capen 23
Wieman v. Updegraff,
OG TE, Te Ci iccncinecncicisccnstinstansasendama 13
Wilson v. Layne,
Be Ge Ge GR cnincccnccssencsennntesassenumneieanemee 26, 35
vill
Worrell v. Henry,
219 F.3d 1197 (10th Cir. 2000)............000.0000000000.... 42
Wright v. Ill. Dep't of Children & Family Servs.,
EE EE, MDs cccecccsavecssecncccsesovesescees 42
Constitutional Provisions
re encnnecesddcaoucsaccese l
Statutes
a ccweebbeasscesoces 21
EE ED 21, 24, 44
Tn cnccnebndsensenscecoess 1
CEE 36
SEE Re 4
a oscbawncecesenenecs 4
Rules
I 13, 21
Other Authorities
Alabama Supreme Court: Double-Dipping Must
Go!, Politics Alabama, May 30, 2009,
http-//politicsalabama. blogspot.com/2009/05/a!
abama-supreme-court-double-dipping. htm] ......... 19
Brett J. Blackledge, Legislator Tells Grand Jury
About College Job, The Birmingham News,
Mar. 14, 2008,
http://blog.al.com/twoyear/2008/03/march_ 14_
I, SR I .....ncanacenccccocecssconcsenscees 19
Mike Cason, Sen. Quinton Ross Might Challenge
Alabama’s “Double Dipping” Law, AL.com,
Oct. 23, 2013, http-//blog.al.com/wire/2013/10/
sen_quinton_ross_running for_r.html.................. 19
ix
Double Dipping Measure Approved, Cullman
Times, Aug. 23, 2007,
http://www.cullmantimes.com/local/
x1116129279/Double-dipping-measure-
i einicicaic terest ccenietincieieanscieinibtieandcisenenmeminiiebediitaniniainnen
Patrick Fitzgerald, The Costs of Public
Corruption—And the Need for the Public to
Fight Back, U.S. Dep’t of Justice,
http://www .justice.gov/usao/briefing_room/fin/
corruption. html......... nad tbecbunamnbaaiiaiaaimaeaneceaons
Virginia Martin, CITY Coordinator Testifies
About Schmitz’s Work, The Birmingham
News, Feb. 17, 2009, http://blog.al.com/
spotnews/2009/02/city_coordinator_
tO ae
State Representative Schmitz Indicted For
Fraudulent Scheme Which Netted Her
$177,251.82, States News Service, Jan. 31,
Sue Schmitz to Spend 30 Months in Prison, Fox,
July 22, 2009, http//www.myfoxal.com/
story/10772838/sue-schmitz-to-spend-30-
I inisasisnsmentrisisiniscadeaspetacainmamnlsiciiaiaiit
Sue Schmitz Was Convicted of Federal Fraud
Charges and Removed as Alabama
Representative, The Birmingham News, Feb.
25, 2009, http://blog.al.com/twoyear/2009/02/
sue schmitz_ was convicted of f.html..................
BRIEF FOR THE PETITIONER
Petitioner Edward Lane respectfully requests that
this Court reverse the judgment of the United States
Court of Appeals for the Eleventh Circuit in this case.
OPINIONS BELOW
The court of appeals’ opinion (Pet. App. la-8a) is
unpublished. The district court’s opinion (Pet. App.
9a-35a) is unpublished.
JURISDICTION
The court of appeals issued its judgment on July
24, 2013. Pet. App. la. The petition for a writ of
certiorari was filed on October 15, 2013. This Court
has jurisdiction pursuant to 28 U.S.C. § 1254(1).
RELEVANT CONSTITUTIONAL PROVISION
The First Amendment to the Constitution of the
United States provides that “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. I.
STATEMENT OF THE CASE
This First Amendment retaliation case arises from
a public employee’s truthful subpoenaed testimony in
a federal fraud prosecution. Petitioner claims that
respondent Steve Franks terminated his employment
in retaliation for petitioner's subpoenaed testimony
during the prosecution of a corrupt legislator who
abused her office to defraud a state program for at-risk
youth. Affirming the distrct court, the Eleventh
2
Circuit held as a matter of law that respondent was
permitted to fire petitioner for his testimony.
1. In 2006, Central Alabama Community College
(CACC) hired petitioner as acting director of the
Community Intensive Training for Youth Program
(CITY). Pet. App. 2a. CITY was a program for at-risk
youth who otherwise might face incarceration. /d.
The program provided skills and guidance that the
children could use to complete school and achieve their
potential. CITY operated multiple locations, using
both state and federal funds. Jd. 10a, 12a. “In his job
as Director, {petitioner] ran the program, including
day-to-day operations, hiring and firing of employees,
and making financial decisions.” Id. 10a. It is
undisputed that petitioner’s official duties did not
include testifying in court. See id. 7a.
This case arises from petitioner’s testimony in a
federal fraud prosecution brought by the United States
Attorney for the Northern District of Alabama against
Suzanne Schmitz, an Alabama state legislator. The
United States prosecuted Schmitz for fraudulently
arranging and concealing a no-show job for herself at
CITY.
The prosecution subpoenaed petitioner to testify
before a federal grand jury and at two criminal trials.
Id. 12a. Petitioner truthfully testified that, in the
course of an audit of CITY’s finances, he learned that
Schmitz was receiving paychecks from C!TY—and in
fact was one of its highest-paid employees—without
ever reporting for work. Jd. 2a-3a, 12a-13a. Petitioner
attempted to require Schmitz to perform tasks
commensurate with her position, including counseling
3
children. Schmitz refused. Jd. 3a. Petitioner was
then warned by CITY and CACC employees that he
should tread carefully, lest he provoke retaliation from
Schmitz or the legislature. Jd. 2a, lla. And indeed,
after petitioner terminated Schmitz for
nonperformance, Schmitz vowed to retaliate against
him, informing another CITY employee that she
planned to “get [petitioner}! back,” and that, if
petitioner ever sought funds for CITY from the
legislature, she would inform him, “you're fired.” /d.
2a, lla.
In the wake of petitioner’s testimony, the grand
jury returned an eight-count indictment charging
Schmitz with mail fraud and fraud in connection with
a program receiving federal funds. In 2008 and 2009,
petitioner testified—again under subpoena—at
Schmitz’s two criminal trials (the first of which ended
in a mistrial). Jd. 3a, 12a-l3a. A jury convicted
Schmitz of all counts but one. See United States v.
Schmitz, 634 F.3d 1247, 1258 (11th Cir. 2011).
Affirming Schmitz’s conviction for mail fraud, the
Eleventh Circuit explained that:
Schmitz engaged in a calculated and extensive
pattern of fraudulent conduct designed to allow
her to collect a state-government salary while
performing almost no work. She accomplished
this scheme through demonstrably false reports
and time sheets. And, when people started
asking questions, she used her status as state
legislator to keep the scheme going.
Id. at 1265. In total, Schmitz fraudulently obtained
$177,251.82 in public funds. Jd. at 1258. She was
4
sentenced to thirty months’ imprisonment and forced
to pay restitution. Id.
In January 2009, after petitioner testified at
Schmitz’s first trial, and just before CITY was due to
request additional funds from the state legislature,
respondent Franks—then President of CACC—fired
petitioner, Pet. App. 3a, ostensibly for financial
reasons, id. l4a. Indeed, CITY terminated twenty-
nine employees (including petitioner) who were
deemed “probationary employees” because they had
not been at CITY long enough to earn tenure. Z/d. 3a.
But just two days later, Franks rescinded all the
terminations except those of petitioner and one other
employee, who had been at CITY for less than six
months. Id. 3a-4a, 16a-17a.'
2. Petitioner filed this lawsuit, alleging that his
termination violated the First Amendment. Pet. App.
4a.? His complaint alleges that Franks—either
collaborating with or under pressure from Schmitz’s
political allies, or to appease them—terminated
petitioner in retaliation for his truthful subpoenaed
' Franks claimed that he reinstated the other employees
because he came to doubt whether they were still in their
probationary pernods. But like the others, petitioner had been
employed by CACC for more than six months, which was the
probationary period under the contract
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