Prologue — Wernsing v. Thompson (No. 05-938)

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| Suprems Court, US.

@ Fites

05° 938 yan 23 2005

In the

Supreme Court of the United States

JENNY WERNSING, CHARLES BINGAMAN

and Troy CANNON,

Petitioners,

v.

ODELL THOMPSON, JR.,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

ee

PETITION FOR WRIT-OF CERTIORARI

Of Counsel ~ Ms. Mary Lee LEAHY

RICHARD J. WHITNEY Counsel of Record

SPEIR & WHITNEY LEAHY LAw OFFICES

3200 FIisHBACK ROAD 308 E. CANEDY

CARBONDALE, IL 62901 SPRINGFIELD, IL 62703

(618) 549-5159 (217) 522-4411

BRIAN J. HELLER Reson

200 WALNUT

P.O. Box 213

WASHINGTON, IL 61571

(309) 444-9223

Becker Gallagher Legal Publishing, Inc. 800.890.5001

i

QUESTIONS PRESENTED

1. Whether the Seventh Circuit’s decision in this case

conflicts with the settled precedent of this Court and/or

conflicts with settled rules of law of other Circuit Courts of

Appeal.

2. Whether the Seventh Circuit erred in extinguishing

plaintiffs’ claim for declaratory relief on grounds of qualified

immunity.

3. Whether it was “clearly established” as of December 5,

2000, for purposes of determining qualified immunity, that

the First Amendment bers State officials from requiring

special permission before their employees are permitted to

communicate with any “external agent” or the head of the

agency for which the employees work, regarding their

agency’s policies and operations.

4. Whether the First Amendment bars State officials from

retaliating against employees for requesting to speak to their

superiors.

5. Where public employees have requested an opportunity

to speak with the official or manager who supervises their

employment, whether the official or manager has a duty to

make a reasonable inquiry as to the nature of their concerns

before retaliating against said employees.

6. Whether the rule that arguments not raised at the

district court level are deemed waived at the appellate level

applies where the argument is raised by an appellee in

response to an argument substantively raised for the first time

on appeal by the appellant.

ii

PARTIES TO THE PROCEEDINGS BELOW

The parties before this Court are: ;

Plaintiff-Petitioner Jenny Wernsing,

Intervening-Plaintiffs-Petitioners Charles Bingaman and

Troy Cannon, and

Defendant-Respondent Odell Thompson, Jr.

RULE 29.6 STATEMENT

Rule 29.6 is inapplicable, as none of the petitioners are

non-governmental corporations.

iii

TABLE OF CONTENTS

I ND oo ens ois ob wy oe dO OO i

Parties to the Proceedings Below and

oe 8 et rae ee ee ne ii

bce es eee eRe kr wee ili

< OT I GN oo he ee ee vee et Ks Vv

SN I ic bos acer be das wee Ԥ

Citations of official and unofficial reports

of opinions and orders entered. ............... I

Statement of basis for jurisdiction ............... 1

Constitutional provisions involved .............. 2

- Statement of the case. ... 1... ee cee eee neers 2

Reasons for Granting the Writ ................. 9

I. The Seventh Circuit’s decision in this case

conflicts with the settled precedent of this Court

and conflicts with settled rules of law of other

Circuit Courts of Appeal on the vital matter of the

free speech rights of public employees.. ...... 9

II. The Seventh Circuit committed a patent error in

dismissing plaintiffs’ claims seeking a declaratory

judgment; it is well settled that qualified immunity

does not bar claims for equitable relief.. ..... 10

iv

Ill. The Seventh Circuit’s holding with respect to

prior restraint rests on a false premise, and

cannot be reconciled with the holding of this

Court in NTEU, or settled precedent in other

GN wee ieee s eb ee REE 11

IV. In reversing the district court’s order on

plaintiff’s retaliation claim, the Seventh Circuit

constricted this Court’s holdings in Waters v.

Churchill and Givhan v. Western Line

Consolidated School District. .......... 18

s The Seventh Circuit erred in applying the

waiver rule to an appellee who is responding

to an argument substantively raised for the first

time in an interlocutory appeal by the

SS fess Peele RAW Ve ee ees 21

I EN hake Wa wR eo a een eee ae

Appendix

Appendix A

Order on Petition for Rehearing - October 25, 2005 . la

Appendix B

Seventh Circuit Opinion - September 9, 2005 ..... 2a

Appendix C

District Court Order - October 9, 2003 ........ 40a

v

TABLE OF AUTHORITIES |

Cases

Bew v. City of Chicago, 252 F.3d 891 (7th Cir. 2001) . 23

Brown v. Bathke, 566 F.2d 588, 593 (8th Cir. 1977) .. 11

Brown v. Glines, 444 U.S. 348, 62 L. Ed. 2d 540,

F Bo Ff: en ‘+ Ife 17

Burgess v. Lowery, 201 F.3d 942, 944 (7th Cir. 2000) . 11

Crue v. Aiken, 370 F.3d 668 (7th Cir. 2004) ........ 12

Czurbanis v. Albanee, 721 F.2d 98,

Sa I ae ee tae 20

Denius v. Dunlap, 209 F.3d 944, 959 (7th Cir. 2000) . . 11

Eberhardt v. O'Malley, 17 F.3d 1023 (7th Cir. 1994) .. il

Givhan yv. Western Line Consolidated School District,

439 U.S. 410, 99 S. Ct. 693 (1979) ........ 18, 20

Harman v. New York, 140 F.3d 111 (2nd Cir. 1998) .. 17

Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396,

ae ee os ek ee eee 10, 11

Kessler v. Providence, 167 F. Supp.2d 482

Cay, Peet DONE DD Lk. ik ow is Sees ew es aeoey

Knox v. McGinnis, 998 F.2d 1405 (7th Cir. 1993) .... Ll

2 vi

Latino Officers Ass'n v. City of New York,

i pe fF fy fe | reer 16

Muller by Muller v. Jefferson Lighthouse Sch.,

98 F.3d 1530 (7th Cir. 1996) ............ 15, 16

Pickering v. Board of Ed. of Township High School Dist.

205, Will Cty., 391 U.S. 563,

ee as es Ee ob hb Oho eee ves hae 14, 15

Premcor USA, Inc. v. Am. Home Assurance Co., _

G50 Fae Fas Cs BOD he wr eiccebeds 22

Schering Corp. v. Illinois Antibiotics Co..,

fe ergs. fe ae | Re rate 22-23

Snepp v. United States, 444 U.S. 507, 62 L. Ed. 2d 704,

See as Pee CD kk cha our ews 15, 16, 17

Swartzwelder v. McNeilly,

ST. Fe ae Ce Gs SOD a ENS Ss 16

Transamerica Insurance Co. v. South,

Sao ee ee es CE. oo ew Ce a wee 3

Tukcer v. Department of Education,

eye Br 8, La Re. | | Ee eee 17

United States v. Nat’l Treasury Employees Union,

55s te. SCL a wo wales 63 cee 8, 10, 12

Waters v. Churchill, 977 F.2d 1114 (1992) .... .... 18

Waters v. Churchill, 511 U.S. 661 (1994) .. 8, 10, 18, 19

vii

Wernsing v. Thompson,

423 F.3d 732 (7th Circuit 2005) ......... passim

Wernsing v. Thompson,

286 F.Supp. 2d 983 (C.D. Ill. 2003) ... 6, 8, 12, 21

Williams v. REP Corp., 302 F.3d 660 (7th Cir. 2002) . 22

Wood v. Strickland, 420 U.S. 308, 43 L. Ed. 2d 214,

ee a ee 10, 11

Yee v. City of Escondido, 503 U.S. 519,

118 L. Ed. 2d 153, 112 S. Ct. 1522 (1992) ...... 23

Zook v. Brown, 748 F.2d 1161 (7th Cir. 1984) ...... 15

Zook v. Brown, 865 F.2d 887 (7th Cir. 1989)....... 15

Statutes

Re RR 1

Bete Reais 1

USC. 661331 hk 1903)... gs. ok see 2

Constitutional Provisions

United States Constitution, Amend. I. ......... passim

United States Constitution, Amend. XIV ........... 5

United States Constitution, Amend. V ............ 23

Supreme Court Rules

Oe O 10

1

INTRODUCTORY STATEMENT

Petitioners Jenny Wernsing, Charles Bingaman and Troy

Cannon hereby petition this court for a writ of certiorari to

review a judgment of the United States Court of Appeals for

the Seventh Circuit. :

OPINIONS BELOW

The Opinion of the United States Court of Appeals for the ~

Seventh Circuit is reported at 423 F. 3d 732 (7th Circuit

2005). The Order denying the Petitions for Rehearing and

Rehearing En Banc is reported at 2005 U.S. App. LEXIS

23342 (7th Cir. Ill., Oct. 25, 2005). The Order of the United

States District Court for the Central District of Illinois that

granted Plaintiff's and Intervening Plaintiffs’ Motion for

Partial Summary Judgment, and that granted in part and

denied in part Defendant’s Motion for Summary Judgment, is

reported at 286 F. Supp. 2d 983 (C.D. Ill. 2003).

JURISDICTION

The judgment of the United States Court of Appeals for

the Seventh Circuit was entered on September 9, 2005. The

Order of the United States Court of Appea!; for the Seventh

Circuit denying Plaintiff's and Intervening Plaintiffs’ Petition

for Rehearing and Rehearing En Banc was entered on October

~ 25, 2005. The jurisdiction of this Court is invoked under the

provisions of 28 U.S.C. § 1254(1).

2

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const., Amend. I. a

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.

STATEMENT OF THE CASE

Basis for jurisdiction in the district court: The claims at

issue in this cause were brought pursuant to 42 U.S.C. §§

1983 and 1988 and the First Amendment to the United States

Constitution. The basis for jurisdiction was 28 U.S.C. §§

1331 and 1343 (a)(3) and the aforesaid statutory provisions.

The plaintiffs, Petitioners herein, served as Internal

Security Investigators II (ISI 2s) in the Office of the Inspector

General (OIG) in the Illinois Department of Human Services

(DHS). The OIG is responsible for investigating reports of

abuse and neglect of the mentally ill and developmentally

disabled persons who receive DHS services. It is undisputed

in this case that the work of ISI 2s is vitally important to the

welfare of some of the most vulnerable members of-society

and naturally touches on matters of the gravest public concern.

All ISI 2s report to a designated Team Leader, who reports to

the appropriate Bureau Chief, who in turn reports to the

- Deputy Inspector General or the Inspector General. The

Inspector General, in turn, reports to the Secretary who heads

DHS.

3

Defendant Oc:ll Thompson, Jr. became the Inspector

General of the DHS on July i, 2000. On or about November

27, 2000, Thompson received an e-mail from five employees

in the OIG's Southern Bureau, including plaintiffs Wernsing,

Bingaman and Cannon, which stated:

Several investigators in the Southern Bureau have

some concerms we wish to discuss with you as soon as

possible. These concerns are relative as to who we

understand you are going to appoint as the Southern

Bureau Chief. These concerns are very important and

need your attention before any appointment is made.

Defendant received the e-mail but did not respond to it.

On November 30, 2000, Thompson received another e-mail

from the same five employees, stating in relevant part:

We contacted you on 11/27/00 asking that you meet

with us and discuss our serious concerns over who we

understand to be the tentative selection for Bureau

Chief. We have not heard from you. We once again

ask that you meet with us. We would like if at all

possible to keep this matter in house out of respect for

the chain of command and in keeping with respect for

your position. However, if we are not afforded this

opportunity we will feel compelled to air our concerns

to the Secretary [i.e., the he»4 of DHS] or those at the

legislative level.

Again, defendant did not respond to the request for a

meeting and made no inquiries into the basis for the e-mail.

The “concerns” referenced in the two e-mails stemmed from

information indicating that defendant was going to appoint

Ron Fuentes as Bureau Chief of the OIG Southern Bureau.

Each of the plaintiffs had worked with Fuentes when he had

4

previously served as Bureau Chief, and they had concerns

about his ability to manage the Bureau arising from that

experience. They alleged that Fuentes’ lack of competence as

a manager had caused a large backlog of investigations,

staffing shortages and delays in OIG investigations, including

an extreme delay in a case involving the death of a patient.

The backlog in investigations was particularly troubling, since

any deiay in investigating cases of neglect or abuse could

compromise the investigators’ ability to gather information or

could render grievances against offending DHS employees

time-barred under Illinois law.

On or about December 5, 2000, Defendant sent a letter to

the five e-mail signatories that stated, in relevant part:

The Office of Inspector General staff are not

authorized to communicate about Office of Inspector

General policies or operations directly to the Secretary

{head of the DHS], to the press, or to any external

agent except with my prior knowledge and approval.

This directive was repeated in a second communication

sent to all employees in the OIG in January, 2001. Defendant

later testified that there was nothing other than the two e-mails

from the plaintiffs that led him to issue the December 5

directive and that his concern was that he "didn't want to be

sabotaged in some way” because he “just didn't know what

their motives were.” He admitted that he didn't make any

effort to ascertain what those motives were. It is undisputed

that the release of confidential information by OIG employees

and contacts with the press were already governed by both

statute and internal DHS rules.

In March 2001, Thompson attended a meeting of the

Southern Bureau staff where he finally met with the plaintiffs