Petition for Writ of Certiorari — Wernsing v. Thompson (No. 05-938)
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and the other e-mail signatories face-to-face, at which time,
the latter informed him of their concerns regarding Fuentes.
Plaintiffs allege that, on the heels of these e-mail
exchanges, Defendant committed several acts of retaliation for
their inquiries and requests for a meeting. These included
denial of overtime pay and mileage to Wernsing and Bingaman
after requests for the same had been approved by their
immediate supervisor and the Bureau Chief, the downgrading
of Wernsing and Bingaman's annual performance evaluations
(which affected their salary increases), the denial of
Bingaman's application for the position of Southern Bureau
Chief, denial of appropriate and customary travel and lodging
expenses for both Wernsing and Bingaman on different
occasions and denial of a pre-approved salary increase for the
time Bingaman served as acting Investigative Team Leader.
Plaintiffs also alleged that, due to defendant's directives
prohibiting unapproved discussion of OIG business with any
“external agent,” or the Secretary of DHS, they felt compelled
to restrict their communications with individuals outside the
OIG.
On August 3, 2001, Plaintiff Wernsing brought the present
suit alleging that defendant’s December 5, 2000 and January
2001 directives constituted an unlawful prior restraint on
speech that violated her First and Fourteenth Amendment
rights. The complaint sought declaratory and injunctive relief
as well as damages. Plaintiffs Bingaman and Cannon filed a
complaint in intervention over the same issues and added a
claim that defendant impermissibly retaliated against them for
exercising their First Amendment rights. Their complaint also
sought declaratory and injunctive relief as well as damages. In
January 2003, Plaintiff Wernsing amended her complaint to
add a retaliation claim.
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The plaintiffs also named OIG Deputy Inspector General,
Sydney Roberts, as a defendant in the suit. While the suit was
pending, defendant's tenure as Inspector General ended, and
he was succeeded by Roberts. Upon assuming the post of
Inspector General, Roberts submitted an affidavit to the
district court averring that she had "taken no action as to any
employee based on the [directives], and that she does “not
consider the . . . directives to be the official policy of the
Office of the Inspector General.” Plaintiff Wernsing, however,
submitted an affidavit stating that she had never been notified
that the directive was no longer the official policy of the OIG.
After discovery, the plaintiffs filed a motion for partial
summary judgment, arguing that they were entitled to
judgment as a matter of law on their prior restraint claims.
Defendant responded with his own motion for summary
judgment, seeking judgment as a matter of law on both the
prior restraint claim and the retaliation claim, raising the
defense of qualified immunity as to each. Then-defendant
Roberts sought to be dismissed from the suit.
In October 2003, the district court granted the plaintiffs’
motion for summary judgment on the prior restraint claim,
holding that defendant's directives constituted a prior restraint
on plaintiffs’ constitutionally protected speech, defendant's
interest in preventing the speech did not outweigh plair«.ffs'
interest in commenting on matters of public concern and
plaintiffs were not policymaking or confidential employees.
Wernsing v. Thompson, 286 F.Supp. 2d 983, 992-997 (C.D.
Iil. 2003). The court denied defendant's motion for summary
judgment on the retaliation claim, holding that material
questions of fact remained as to whether plaintiffs’
constitutionally protected speech was a motivating factor in
defendant’s alleged retaliatory acts against them. /d. at 997-
999.
eo
The district court also rejected defendant's claim of
qualified immunity, holding that it was clearly established that
his alleged actions restricting or retaliating against plaintiffs’
speech on matters of public concern violated plaintiffs’
constitutional rights. /d. at 999-1001. However, the district
court did grant defendant's motion for summary judgment
with respect to plaintiffs’ request for injunctive relief, holding
that there was no substantial likelihood that successor
Inspector General Sydney Roberts would enforce defendant’s
directives. /d. at 1001-1002. The court dismissed Roberts as
a defendant in the case. /d.
Defendant appealed to the U.S. Court of Appeals for the
Seventh Circuit , on the grounds that the district court’s order
denying defendant’s motion for summary judgment on
qualified immunity grounds was an immediately appealable
“final decision” within the meaning of 28 U.S.C. § 1291. The
Court of Appeals found that it had jurisdiction on that ground.
Wernsing v. Thompson, 423 F. 3d 732, 741 (7th Circuit
2005). It reversed the ruling of the district court with respect
to all claims favoring plaintiffs. Specifically, it held that
Plaintiffs’ claims for injunctive relief had been rendered moot
by Sydney Roberts’ apparent abandonment of defendant’s pre-
clearance directives - although it specified that “plaintiffs'
claims for monetary damages and declaratory relief still
present a live case or controversy.” /d. at 745-746.
With respect to the prior restraint claims, the Court held
that defendant was entitled to qualified immunity, because it
was not yet “clearly established,” as of December 5, 2000,
that his pre-clearance directives constituted an unlawful prior
restraint on speech. /d. at 747-750. in that regard, the Court
distinguished the case sub judice from the opinion of this
Court in United States v. Nat’! Treasury Employees Union 513
U.S. 454 (1995) (“NTEU”), on the ground that “the
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prerogatives of a government supervisor in managing the
communications of his own staff are far less clear” than was
set forth in NTEU; adding that the instant matter concerned a
“relatively informal supervisory directive aimed at close
subordinates.” /d. at 748."
Finally, the Court held that plaintiffs’ retaliation claims
failed because the initial speech in question — the November
27 and November 30, 2000 e-mail messages transmitted to
defendant - was too vague to be deemed “speech on a matter
of public concern.” /d. at 752-754. Im reaching that
conclusion, the Court rejected plaintiffs’ argument that their
meeting with defendant in March 2001 , where they articulated
their specific concerns regarding Fuentes’ possible
appointment as Southern Bureau chief, provided an alternative
basis for their retaliation claim. The Court held that, since that
argument was not presented to the district court, it was
waived. /d. at 751. The Court also rejected plaintiff's
argument that Waters v. Churchill, 511 U.S. 661, 677-78
(1994) established a “duty, before retaliating, to reasonably
inquire as to the nature of the concerns which Plaintiffs asked
' In this regard, the Court of Appeals was evidently laboring under
a false factual premise. On page 743, note 3 of its opinion, it
makes reference to an “internal e-mail” and an “e-mail directive”
as being the means by which defendant's pre-clearance directives
were issued to plaintiffs. This is a plain error of fact. it was
plaintiffs who raised their initial concerns by e-mail. Defendant's
December 5, 2000 directive was sent by letter, the receipt of which
plaintiffs were required to acknowledge, and his January 2000
directive was included in an internal departmental newsletter. The
record on appeal will verify this; the District Court’s opinion does
make clear that the former directive was sent by “letter” and the
latter was “sent to all employees” in the OIG. Wernsing, 286
F.Supp. 2d at 990.
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to express,” holding that “Waters stands for no such
proposition.” Id. at 753.
On these grounds, the Court of Appeals reversed and
remanded the case, “with instructions to grant Thompson
summary judgment with respect to ail claims on grounds of
qualified immunity.” Jd. at 754 (emphasis added). It provided
no rationale as to why plaintiffs’ claims seeking a declaratory
judgment should be denied on grounds of qualified immunity
or any other ground.
REASONS FOR GRANTING THE WRIT
I. TheSeventh 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.
Supreme Court Rule 10 instructs all petitioners to this
Court that the potentially compelling reasons for granting a
writ include those where a United States court of appeals’
decision conflicts with “the decision of another United States
court of appeals decision on the same important matter,” or
where it “conflicts with relevant decisions of this Court.” Sup.
Ct. R. 10. As is more fully explicated in the more specific
arguments set forth in sections Il - V, infra, the Seventh
Circuit’s decision in this case meets both of these vital criteria.
Few “matters” could be more “important” than the rights of
public employees to exercise free speech under the First
Amendment. Few decisions of this Court could be more
“relevant” to the exercise of those rights than the crucial
protections afforded by such decisions as United States v.
Nat'l Treasury Employees Union, 513 U.S. 454, 130 L. Ed.
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2d 964, 115 S. Ct. 1003 (1995) and Waters v. Churchill, 511
U.S. 661, 114 S. Ct. 1878 (1994).
Il. 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.
The Court of Appeals did not directly address plaintiffs’
claims for declaratory relief, except in_ correctly
acknowledging that they had not been rendered moot.
Wernsing, 423 F. 3d at 746. Yet it proceeded to issue an order
granting defendant summary judgment “with respect to all
claims on grounds of qualified immunity.” /d. at 754
(emphasis added). This flies in the face of settled precedent
that the doctrine of qualified immunity does not apply to
claims for equitable relief.
This Court’s landmark ruling on qualified immunity,
Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102
S. Ct. 2727 (1982), held that government officials “are
shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” /d. at 818 (emphasis added). Implicit in this holding
was the proposition that claims for equitable relief were
excluded from the scope of such protection, as, indeed, this
Court had indicated previously. See Wood v. Strickland, 420
U.S. 308, 314 n.6, 43 L. Ed. 2d 214, 95 S. Ct. 992 (1975)
(stating that “immunity from damages does not ordinarily bar
equitable relief as well”).
The rule that qualified immunity does not shield public
officials from claims for equitable relief has even been
considered axiomatic by the Seventh Circuit itself. See, e.g.,
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Denius v. Dunlap, 209 F.3d 944, 959 (7th Cir. 2000);
Burgess v. Lowery, 201 F.3d 942, 944 (7th Cir. 2000);
Eberhardt v. O'Malley, 17 F.3d 1023, 1028 (7th Cir. 1994);
Knox v. McGinnis, 998 F.2d 1405, 1412-1413 (7th Cir.
1993). Thus plaintiffs need not dwell on this argument; it is
glaringly evident that Seventh Circuit in this case regrettably
and simply - but the unmistakably - blundered. The most
elementary considerations of justice dictate that plaintiffs not
be deprived of all avenues of relief because of such an
oversight.
The alternative, highly improbable explanation — that the
Court of Appeals below sought to carve out new ground for
the doctrine of qualified immunity via a conscious omission -
would warrant an emphatic message from this Court,
considering that such a new rule runs contrary to Harlow and
Strickland, and would plainly create a split in the circuits as
well. See, e.g., Brown v. Bathke, 566 F.2d 588, 593 (8th Cir.
1977); Kessler v. Providence, 167 F. Supp.2d 482, 490-491
(D. Rhode Island 2001).
Ji. 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 N7EU, or
settled precedent in other circuits.
The Court of Appeals held that defendant was entitled to
qualified immunity because “it was not clearly established, at
the time the pre-clearance directive was first issued (December
5, 2000) that such a directive constituted an unlawful prior
restraint on speech.” Wernsing, 423 F. 3d at 747-750. It came
to that conclusion by distinguishing the “formal statutory bans
of certain speech activity by government employees,” at issue
in United States v. Nat'l Treasury Employees Union, 513 U.S.
454 (1995) (*“NTEU”), with what it characterized, in the
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instant case, as “the prerogatives of a government supervisor
in managing the communications of his own staff” and a
“relatively informal supervisory directive aimed at close
subordinates.” Wernsing, 423 F. 3d at 748.
The Court’s holding: a) rests on a false premise, b) cannot
be squared with N7EU, and c) has resulted in a clear split in
the circuits. As to the false premise, the characterization of
defendant’s directives as being limited to “his own staff” and
“relatively informal” are incorrect. The Court referred to an
“internal e-mail” and an “e-mail directive”-as being the means
by which defendant’s pre-clearance directives were issued to
plaintiffs. Id. at 743 n. 3. This is a plain error of fact. It was
plaintiffs who raised their initial concerns by e-mail.
Defendant’s December 5, 2000 directive was sent by letter,
the receipt of which plaintiffs were required to acknowledge,
and his January 2000 directive was included in an internal
departmental newsletter. The record on appeal will verify this;
the District Court’s opinion does make clear that the former
directive was sent by “letter” and the latter was “sent to all
employees” within OIG. Wernsing, 286 F.Supp. 2d at 990.
That the Court of Appeals was laboring under a
misapprehension of fact is further supported by its attempt to
distinguish its own precedent in Crue v. Aiken, 370 F.3d 668
(7th Cir. 2004) (upholding denial of qualified immunity
protection to university chancellor who issued pre-clearance
directive restricting speech aimed at prospective student
athletes). In the case at bar, the Court stated: “The e-mail
directive at issue in Crue, issued by the president [sic] of the
University of Illinois, applied not just to the president's own
staff or other University employees, but to all University
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students and all ‘others associated with the University.” 370
F.3d at 674-75.” Wernsing, 423 F. 3d at 748 n. 8.7
Thus, the Court of Appeals apparently believed that there
was an “e-mail directive at issue” in the instant matter, but
that the “e-mail directive” in Crue was distinguishable because
of the broad classes of persons covered. This is erroneous on
both counts: The directives at issue in the instant case were
not “informal” but were formalized edicts spelled out in print,
not e-mail. They were directed, not only at plaintiffs but at al/
employees of the OIG - a department, that, by defendant’s
own reckoning, encompassed “about 31 ISI 2s, four to six
team leaders, four bureau chiefs and one Deputy Inspector
General.” (Defendant’s Appellant’s Brief in Court below, at
6, citing to record Doc. 57 at 6.)
The Seventh Circuit’s opinion cannot be squared with, and
erroneously -narrows the breadth of First Amendment
protections established by this Court in, NTEU. In its efforts
to distinguish NTEU, the Court of Appeals maintained: “That
case involved a _ formal statutory ban _ ohibiting
unconditionally the receipt of honoraria by all government
employees. Such a sweeping legal enactment is clearly distinct
from the kind of informal, internal directive at issue here.”
Wernsing, 423 F. 3d at 750 n. 10.
Apart from the facts that defendant was a departmental
director, not a mere “supervisor,” and that his directives were
both formal and sweeping, this misapprehends N7EU’s
rationale. In NTEU, this Court did indeed make note of. he
? The panel in the case at bar essentially admitted that its own view
of qualified immunity was at odds with that of the panel in Crue.
Id. at 750 n. 9
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widespread impact of the honoraria ban” at issue in that case,
citing the number of federal employees affected, and
observing that it “gave rise to far more serious consequences
than a single supervisory decision.” NTEU, 513 U.S. at 468.
It then stated that this was one of the “reasons” why “the
Government’s burden is greater with respect to this statutory
restriction on expression than with respect to an isolated
disciplinary action” —-the other reason be'»z that it was a
“ban” that “chills speech before it happens.” Jd.
Read in context, the reference to a “single supervisory
decision” was plainly intended to contrast the enormity of the
prior restraint at issue in the case with the usual post hoc acts
of suppression of speech that the Court had dealt with in
“Pickering and its progeny.” Id. at 466-67, citing Pickering
v. Board of Ed. of Township High School Dist. 205, Will Cty.,
391 U.S. 563, 88 S. Ct. 1731 (1968). The passage in question
follows the sentence: “We normally accord a stronger
presumption of validity to a congressional judgment than to an
individual executive’s disciplinary action.” Id. at 468
(emphasis added). Thus, the Court was not contrasting the Act
of Congress at issue in NTEU with a prior restraint issued by
a “supervisor”; it was contrasting a prior restraint enacted by
Congress with the more typical post hoc acts of suppression
by supervisors.
Indisputably, the number of employees affected by
defendant’s edict in the case sub judice are considerably less
than the number of employees affected by the ban in NTEU,
viz., the entirety of the federal government. NTEU, 513 U.S.
at 457. However, the Court in N7EU neither stated nor
implied that employees of small government agencies enjoy
less protection under the First Amendment than employees of
large or multiple government agencies, and it would require
a strained interpretation of that opinion and a departure from
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common sense to reach that conclusion. Nor did the Court
state or imply that it was the formality of the Congressional
act, per se, that distinguished it from a supervisory-imposed
act of suppression. Rather, what plainly concerned the Court
above all was the scope of the ban in terms of the quantum of
speech affected: “The honoraria ban as applied to respondents
burdens speech far ‘more than our past applications of
Pickering because the ban deters an enormous quantity of
speech before it is uttered, based only on speculation that the
speech might threaten the Government’s interests.” NTEU,
513 U.S. at 467 (emphasis added).
The Court also gave considerable weight to the impact of
the ban on “the public’s right to read and hear what the
employees would otherwise have written and said.” /d. at 470
(emphasis added). This consideration appears to have escaped
the Seventh Circuit’s notice altogether — in a case in which the
plaintiffs sought to raise matters that affected the lives, health
and safety of some of the most vulnerable members of society.
The Court of Appeals attempted to support its conclusion
that the law on sweeping prior restraints such as those
imposed by defendant was not “clearly established” at the time
by citing to certain cases in which it, and this Court, had
“approved similar pre-clearance screening directives,”
Wernsing, 423 F. 3d at 748-749 - specifically citing to Zook
v. Brown, 865 F.2d 887, 891-92 (7th Cir. 1989) (Zook I);
Zook v. Brown, 748 F.2d 1161, 1165 (7th Cir. 1984) (Zook 1);
Muller by Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530,
1541 (7th Cir. 1996); Brown v. Glines, 444 U.S. 348, 62 L.
Ed. 2d 540, 100 S. Ct. 594 (1980); and Snepp v. United
States, 444 U.S. 507, 62 L. Ed. 2d 704, 100 S. Ct. 763
(1980). Notably, all but one of these cases were decided prior
to NTEU, and thus are essentially irrelevant to a determination
of what was “clearly established” in the law as of December
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5, 2000. The one exception - Muller - was not even an
employment case but “upheld elementary school rules.
requiring students to obtain prior approval of the school
principal before distributing private handbills.” Wernsing , 423
F. 3d at 748.
Both in its conclusions as to N7EU and in its reliance on
such cases as Snepp and Glines, the Seventh Circuit has now
created a split in the circuits on the issue of whether the law
was “clearly established” that sweeping prior restraints on
speech, requiring even a small class of public employees to
obtain advance permission before speaking to the media, “any
external agent,” or a higher-level supervisor, Wernsing, 423
F. 3d at 738, violate the First Amendment. For example, in
Swartzwelder v. McNeilly, 297 F.3d 228 (3rd Cir. 2002), a
Pittsburgh police officer challenged a departmental policy
barring officers from providing opinion testimony in any
criminal or civil proceeding without prior authorization from
the Chief of Police. /d. at 232. The defendant City raised an
argument similar to the rationale adopted by the Seventh
Circuit in the case at bar, viz., that, in contrast to NTEU, the
directive at issue “applies only to . . . the employees of a
single city department.” The Third Circuit emphatically
rejected the argument, holding that “nothing in N7EU implies
that the stricter standard applies only when a ‘vast group’ of
employees is involved... .” /d. at 237. It in turn cited to the
Second Circuit’s similar assessment in Latino Officers Ass'n
v. City of New York, 196 F.3d 458, 463 (2nd Cir. 1999).
In passing, the Third Circuit also distinguished Snepp on
the grounds that the City’s directive — like the directive in the
case at bar ~ was not limited to preventing the disclosure of
confidential information. Swartzwelder, 297 F.3d at 239.
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in Harman v. New York, 140 F.3d 111 (2nd Cir. 1998),
the Second Circuit also distinguished Snepp and Glines, in
giving a broader construction to NTEU than the Seventh
Circuit. In Harman, New York City’s child welfare
caseworkers, like plaintiffs in the instant matter, investigated
allegatior: of abuse and neglect, and had a legal duty to
protect the confidentiality of their clients. Jd. at 115. Like
defendant in the instant matter, the City agency that
administered child welfare programs attempted to use this duty
as a justification for a broad directive, requiring prior
clearance for “[aJll contacts with the media regarding any
policies or activities of the Agency.” /d. at 116. After
determining that N7JEU was applicable to a city agency
directive, id. at 118, the Second Circuit rejected the City’s
reliance on Snepp and Glines, on the ground that those cases
“concerned materials ‘essential to the security of the United
States and - in a sense - the free world.’” Jd. at 122, citing
Snepp, 444 U.S. at 512 n.7. It also distinguished the City’s
directive from that in Snepp on the ground that the City (like
defendant herein), “has not demonstrated that the asserted
harms are real, rather than conjectural.” /d. at 123.
With respect to a split in the circuits, this Court should
also consider Tukcer v. Department of Education, 97 F.3d
1204 (9th Cir. 1996) (citing to N7EU in striking down broad
prohibition on distribution of religious materials by California
Department of Education). Harman and Tucker were both
decided well before December 5, 2000, further undermining
the Seventh Circuit’s conclusion that the law on this subject
was not “clearly established” at that time.
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IV. In reversing the district court’s order on plaintiffs
retaliation claim, the Seventh Circuit constricted
this Court’s holdings in Waters y. Churchill and
Givhan v. Western Line Consolidated School District.
In Waters v. Churchill, 511 U.S. 661, 114 S. Ct. 1878
(1994), this Court addressed the duty of a public employer
supervisor or administrator to ascertain the facts about an
employee’s speech before it engages in retaliatory action. The
plurality opinion rejected the Seventh Circuit’s prior opinion
that “the inquiry must turn on what the speech actually was,
not on what the employer thought it was,” id. at 667, citing
. Waters v. Churchill, 977 F.2d 1114, 1127 (1992), as that
“would force the government employer to come to its factual
conclusions through procedures that substantially mirror the
evidentiary rules used in court.” Waters, 511 U.S. at 676. The
plurality concluded, however, that public employer
supervisors do have to use “the care a reasonable manager
would use before making an employment decision... .” 511
U.S. at 678. Such care is “necessary” to avoid “the possibility
of inadvertently punishing someone for exercising her First
Amendment rights.” Jd.
In reaching that conclusion the plurality made clear that,
where there was doubt as to what an employee actually stated,
this duty of reasonable care imposed a concomitant duty to
make a reasonable inquiry into the facts. It cited, as an
example of an unreasonable response, the instance of “an
employee . . . accused of writing an improper letter to the
editor, and instead of just reading the letter, the employer
decides what is said based on unreliable hearsay.” /d. at 677.
Justice Souter’s concurring opinion read the plurality opinion
in the same way: “I add these words to emphasize that, in
order to avoid liability, the public employer must not only
reasonably investigate the third-party report, but must also
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actually believe it.” /d. at 682-683 (Souter, J.,
concurring)(emphasis added).
In the case at bar, plaintiffs, in their e-mails to defendant,
expressed “concerns over who we understand to be the
tentative selection for Bureau Chief.” Wernsing, 423 F. 3d at
738. Plaintiffs argued in the Court below that Waters imposed
a duty on defendant to make a reasonable inquiry to learn what
plaintiffs’ “concerns” were, before retaliating; conversely,
that it was patently unreasonable for him to retaliate on the
basis of employees expressing such “concerns.” In sharp
contrast to its earlier opinion in Waters, the Seventh Circuit
here embraced the opposite extreme, narrowing the duty
Waters imposes on government supervisors to make a
reasonable investigation to circumstances in which, literally,
“the content of the speech at issue” or “the identity of the
relevant speakers” is in doubt “before disciplining their
employees for expressive activity.” Wernsing, 423 F. 3d at
753. The Court then dismissed the applicability of Waters,
stating that, since “there was no erroneous or unreasonable
belief about what plaintiffs said” (only what the underlying
concerns were), Waters was inapposite. Wernsing, 423 F. 3d
at 753.
To put it mildly, this gives short shrift to the larger
concern that prompted the plurality, and Justice Souter, in
Waters to adopt the “reasonable manager” rule: “the
possibility of inadvertently punishing someone for exercising
her First Amendment rights.” Waters, 511 U.S. at 678.
Here, defendant restrained speech and further retaliated
without knowing or bothering to make any inquiry as to the
underlying substance of plaintiffs’ stated concerns. Wernsing,
423 F. 3d at 738. Instead (it must be presumed, given the
procedural posture of this case), he restrained speech and
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retaliated because they dared to request a meeting with him at
which they would more fully express those concerns. The end
result was that defendant restrained plaintiffs’ speech and
punished them for trying to express matters of public concern.
The failure to act as a reasonable manager would, and make
a reasonable inquiry before restraining speech, led to
retaliation for an attempted exercise of protected speech.
The consequences of the Seventh Circuit's departure from
Waters are grave indeed. If allowed to stand, a public
employee who communicates any message to a supervisor that
does not, in itself, clearly articulate a matter of public concern
~ even a simple, “I request a time to meet with you” — has just
given that supervisor a license to retaliate, with no recourse to
the First Amendment whatsoever.
The Seventh Circuit’s opinion also conflicts with this
Court’s admonition in Givhan v. Western Line Consolidated
School District, 439 U.S. 410, 99 S. Ct. 693 (1979), that the
First Amendment’s protections extend to “the public employee
who arranges to communicate privately with his employer
rather than to spread his views before the public.”-439 U.S.
at 415-416. Here, ironically, plaintiffs initially sought to do
the very thing that defendant later ordered them to do — bring
their issues to him before going outside the OIG - and they
were retaliated against for it. The rule in Givhan makes such
retaliation unconstitutional.
Relatedly, that defendant sought to bar plaintiffs from
speaking, not only to the media and any “external agent,”
without prior approval, but also to Ais superior, the Secretary
of DHS, not only offends the legal principle underlying
Givhan, it offends soun’ yublic policy for obvious reasons and
creates yet another conflict with other circuits. See, e.g.,
Czurbanis v. Albanee, 721 F.2d 98, 105 (3rd Cir. 1983)
a ait
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(holding that chain of command policy which requires
employee to first raise issue with the responsible’ county
official prior to addressing county board “is incompatible with
the principles that underlie the first Amendment”).
V. 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 appellant.
As the record on appeal will establish, defendant, in his
Motion for Summary Judgment, did not raise the point that the
e-mails at issue in this case failed to give him notice of the
nature of the plaintiffs’ concerns. (Record on Appeal, Doc.
43.) His supporting Memorandum made only one passing
mention that the e-mails themselves failed to convey a
“message of public concern”; it was not central to his
argument. (Record on Appeal, Doc. 48 at 15.) Thus, plaintiffs
did not address it in their responses to defendant’s motion.
In ruling on the motion, the district court did not give the
slightest indication that it considered the vagueness of
plaintiffs’ e-mails to be an “argument” substantively raised by
defendant. Wernsing v. Thompson, 286 F.Supp. 2d 983 (C.D.
Ill. 2003). It did acknowledge that the e-mails themselves were
“vague,” but analyzed plaintiffs’ prior restraint claims in light
of the underlying issue of public concern, noting that the e-
mails “can reasonably be read to support Plaintiffs’ asserted
public purpose in speaking.” Jd. at 994 (emphasis added).
It was not until his interlocutory appeal on the qualified
immunity issue that defendant first presented a substantive
argument that, because the e-mails themselves did not specify
the substance of plaintiffs’ concerns, they did not sufficiently
apprise defendani that they were raising a matter of public
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concern, and therefore fell within a category of cases in which
the speech at issue was too vague. Thus, it was only in the
context of the appeal that plaintiffs responded by pointing out
that most of the acts of retaliation followed the March 2001
meeting in which they more fully informed defendant of the
nature of their concerns about Ron Fuentes ~ which irrefutably
put defendant on notice that they wished to discuss matters of
public concern.
The panel responded to this argument by holding that this
argument was waived: “Since the plaintiffs did not advance
their speech at the March 2001 meeting as a basis for their
retaliation claim before the district court, they have waived
any argument based on this speech. See Premcor USA, Inc. V.
Am. Home Assurance Co. , 400 F.3d 523, 530 (7th Cir. 2005)
. . . Williams v. REP Corp., 302 F.3d 660, 666 (7th Cir.
2002)... .” Wernsing, 423 F. 3d at 751.
That arguments not raised at the district court level are
ordinarily considered waived at the appellate level is a familiar
and oft-cited rule. However, it is a rule that has almost
universally been applied to appellants who try to raise new
arguments — as was the case in both Premcor and Williams.
_ Although plaintiffs’ research to date has not disclosed any
rule of law that is precisely on point, the application of the
rule to an appellee would seem to fall afoul of the rule of law
that
“The failure of an appellee to have raised all possible
alternative grounds for affirming the district court's
original decision, unlike an appellant's failure to raise
all possible grounds for reversal, should not operate as
a waiver. The urging of alternative grounds for
affirmance is a privilege rather than a duty.” Schering
23
Corp. v. Illinois Antibiotics Co., 89 F.3d 357, 358
(7th Cir. 1996) (emphasis added).
Transamerica Insurance Co. v. South, 125 F.3d 392, 399
(7th Cir. 1997).
It is not reasonable to impose on a non-movant for
summary judgment the burden of anticipating and responding
to every conceivable argument that might be raised by the
. movant. Since the argument regarding the insufficiently
informative character of the e-mails was barely mentioned, en
passam, by defendant at the district court level, it is not
reasonable to deem plaintiffs to have “waived” an argument
that they had no occasion to raise at the district court level.
The Court of Appeal’s holding on this score is at odds
with the rule quoted above in Transamerica. See also Bew v.
City of Chicago, 252 F.3d 891, 895 (7th Cir. 2001) (“when a
new argument supports a claim before the District Court, we
will usually address it.”). It also apparently conflicts with the
rule set forth by this Court ~ with respect to “new arguments”
raised for the first time on a petition for certiorari — in Yee v.
City of Escondido, 503 U.S. 519, 118 L. Ed. 2d 153, 112 S.
Ct. 1522 (1992).
In that case, where the petitioners had raised a Fifth
Amendment takings claim in the courts below, but where it
was unclear whether they were advancing a physical takings
claim or a regulatory takings claim, the respondents sought to
bar the latter, arguing that it had not been properly presented
in the courts below and was therefore waived. 503 U.S. at
534. While this Court ultimately declined to consider the
regulatory takings claim, because it had not been presented in
the petition for certiorari itself, id. at 535-538, it rejected the
argument that the issue had been waived by the petitioners in
the court below, holding that, “Once a federal claim is
24
properly presented, a party can make any argument in support
of that claim; parties are not limited to the precise arguments
they made below.” /d. at 534. It pointed out that there is a
vital distinction between “separate claims” and “separate
arguments in support of a single claim,” (emphasis in
original), and concluded that, since petitioners had raised the
claim in the courts below, “they could have formulated any
argument they liked in support of that claim here.” /d.
it should follow from this, especially considering the
procedural posture of this case, that plaintiffs should have
been afforded an opportunity to present “any argument they
liked” in support of their First Amendment retaliation claims,
when responding to what was defendant’s new argument, in
support of ifs motion for summary judgment, on an
interlocutory appeal that was predicated on the narrow
grounds of qualified immunity.
25
CONCLUSION
For the foregoing reasons, the petitioners Jenny Wernsing,
Charles Bingaman and Troy Cannon urge that this petition for
a writ of certiorari be granted.
Respectfully Submitted,
Ms. Mary Lee Leahy
Counsel of Record
Leahy Law Offices
308 E. Canedy
Springfield, IL 62703
(217) 522-4411
Of Counsel:
Richard J. Whitney Brian J. Heller
Speir & Whitney 200 Walnut
3200 Fishback Rd. P.O. Box 213
Carbondale, IL 62901 Washington, IL 61571
(618) 549-5159 (309) 444-9223
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 03-3956
[Filed October 25, 2005]
JENNY WENSING, CHARLES BINGAMON
and TROY CANNON,
Plaintiffs-Appellees,
_
ODELL THOMPSON, JR.,
»)
)
)
)
v. )
)
)
Defendant-Appellant. )
)
JUDGES: Before Hon. Richard D. Cudahy, Circuit Judge,
Hon. Frank H. Easterbrook, Circuit Judge, Hon.
Michael S. Kanne, Circuit Judge.
OPINION
On consideration of the petitions of both Plaintiffs-
Appellees for rehearing with suggestion for rehearing en banc
filed on September 23, 2005, all of the judges on the original
panel have voted to deny rehearing and none of the active
judges on the court have voted for a rehearing en banc.
Therefore, the petition for rehearing is DENIED.
APPENDIX B
—
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 03-3956
[Filed September 9, 2005}
JENNY WERNSING, CHARLES BINGAMAN,
and TROY CANNON,
Plaintiffs-Appellees,
ODELL THOMPSON, JR.,
)
)
)
| )
v. )
)
)
Defendant-Appellant. )
)
JUDGES: Before CUDAHY, EASTERBROOK and
KANNE, Circuit Judges.
OPINION
CUDAHY, Circuit Judge. Three Internal Security
Investigators in the Office of the Inspector General of the
Illinois Department of Human Services brought suit under 42
U.S.C. § 1983, alleging that the Inspector General of Illinois
had (1) imposed a prior restraint on their Constitutionally
protected speech and (2) retaliated against them for exercising
their First Amendment rights after they voiced concern over
the Inspector General’s rumored plans to make a key
\
>
3a
appointment. Plaintiffs requested both money damages and an
injunction prohibiting further restrictions on their speech.
Both sides moved for summary judgment. The district court
ruled that (1) the plaintiffs’ request for injunctive relief is
moot, (2) the Inspector General’s directive barring plaintiffs
from speaking to any “external agent” without his permission
constituted an impermissible prior restraint on speech, (3)
questions of fact remained for trial as to whether-plaintiffs had
suffered retaliation for exercising their First Amendment
rights and (4) the Inspector General is not entitled to qualified
immunity as to either claim. The Inspector General now
appeals, claiming that he is entitled to qualified immunity. We
reverse and remand.
I. FACTUAL BACKGROUND AND DISPOSITION
BELOW
While this case presents several nuanced legal questions,
the underlying facts are not disputed.' The plaintiffs served as
Internal Security Investigators II (ISI 2s) in the Office of the
Inspector General (OIG) in the Illinois Department of Human
Services (DHS) at all times relevant to this suit.? The OIG is
responsible for investigating reports of abuse and neglect of
the mentally ill and developmentally disabled persons who
' The facts in this section are taken primarily from the district
court’s opinion below. Wemnsing v. Thompson, 286 F. Supp. 2d
983, 989-91 (C.D. Ill. 2003).
? Jenny Wernsing was hired as an ISI II in 1998, Charles Bingaman
was hired in 1997, and Troy Cannon was hired in 1996. Charles
Bingaman later became an OIG Team Leader in 2000, giving him
additional responsibilities from time to time.
4a
receive DHS services. According to the job description, an
ISI 2
performs highly responsible, sensitive, and
confidential investigative work; conducts the gathering
and analysis of relevant facts and data concerning
abuse and neglect investigations; completes
investigations by preparing reports, summarizing
investigative activities and recommends conclusions to
findings.
SPECIFICALLY:
1. Conducts confidential, sensitive, and complex
investigations concerning reports of abuse and neglect
at State-operated facilities and community agencies:
gathers data and evidence, conducts interviews,
receives reports and analyzes relevant evidence ~
concerniug cases of abuse and neglect; ensures that
case reports are comprehensive and accurate; takes
initial statements from staff.
2. Prepares written investigative reports upon the
completion of the investigative process consisting of a
summary of actions taken, findings, preservations of
evidence and recommendation for corrective action
and/or case closure.
3. Maintains confidential files pertaining to cases
under investigation; ensures the security of all
pertinent information gathered during the investigatory
process.
4. Recommends revisions to investigatory procedures
and practices.
Sa
5. Serves as an expert witness and provides testimony
in criminal and administrative hearings related to the
conducting of or results of the investigation.
6. Performs other duties as required or assigned which
are reasonably within the scope of the duties
enumerated above.
(Doc. 38, Wernsing Dep. Exh. M8.) In the fall of 2000, the
OIG was subdivided into four geographical Bureaus: the
~North (Chicago), the Metro (the area surrounding Chicago),
the Central and the South. 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.
Defendant Odell Thompson, Jr. became the Inspector
General of the DHS on July 1, 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 concerns 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.
(Doc. 38, Wernsing Dep., Exh. 1.) Thompson 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 relevani part:
6a
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 [**6] afforded
this opportunity we will feel compelled to air our
concerns to the Secretary or those at the legislative
level.
Again, Thompson 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 apparently
stemmed from rumors that Thompson 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
previously served as Bureau Chief, and they had concerns
about his ability to manage the Bureau effectively.
Specifically, plaintiffs allege that Fuentes had presided over
a large backlog of investigations which caused staffing
shortages in the DHS and delays in OIG investigations, had
misplaced OIG files which were later found in the trunk of his
car, had worked short days and was on-site at the Bureau
office only two days out of the week and was generally
considered an incompetent and frustrating supervisor. (See
Wernsing Br. at 12-14.) The backlog in investigations was
particularly troubling since any delay in investigating cases of
neglect or abuse could compromise the investigators’ ability
to gather information (since many of the victims have
difficulty remembering what happened to them) or could
render grievances against offending DHS employees time-
barred under Illinois law.
7a
Unaware of the specific concerns that lay behind the two e-
mails, Thompson became concerned at the suggestion that the
Signatories might contact the Secretary of the DHS or
individuals “at the legislative level.” Thompson was
apparently in the midst of reorganizing the OIG, and he
feared that OIG employees might be trying to “sabotage”
these efforts. On or about December 5, 2000, Thompson 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. Thompson 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 plaintiffs’ motives in threatening to contact
_ the Secretary of DHS or legislators. 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.
Believing that these directives potentially barred her from
speaking to anyone outside of the OIG, Wernsing asked her
supervisor, Sandy Mott, if the directives applied to
conversations she might have with her union representative,
an attorney or her legislator. At Mott’s suggestion, Wernsing
8a
telephoned Thompson on January 26, 2001, and Thompson
“yelled” at her, telling her she was “walking down the road
to getting fired” and accusing her of “playing games.” That
same day, Mott sent an e-mail to the Inspector General’s
Office relaying Wernsing’s question. Sydney Roberts, who
was then serving as the Deputy Inspector General at the time,
responded to Mott’s e-mail with two messages. The first read
simply: “Your people really want to try me don’t they.” The
second e-mail stated:
No one in the OIG is represented by a Union that is in
any sort of contractual agreement with DHS. Thus we
don’t have to honor anything that their union
repi esentative requests unless it is consistent with the
rights all employees are entitled to by state or federal
law. In other words, they follow the direction of their
union representative at their own peril.
With respect to the statements made to union
personnel, the courts have said that employers may
regulate the speech of certain employees in certain
circumstances. Thus, they should know the law on this
matter, before discussing OIG matters with outside
individuals.
(Italics in original.) On February 7, 2001, Mott then e-mailed
Wernsing the following response:
In answer to your question, Deputy I.G. Sydney
Roberts indicated to me that no one in the OIG is
represented by a Union that has a contractual
agreement with DHS. Thus, we don’t have to honor
anything that their union representative requests unless
it is consistent with the rights all employees are
entitled to by state or federal law. Further, with
9a
respect to statements made to union personnel, the
courts have said that employer may regulate the
speech of certain employees in certain circumstances.
Thus, you should know the law on this matter before
discussing OIG matters with outside individuals.
In March 2001, Thompson attended a meeting of the
Southern Bureau staff where he finally met with the plaintiffs
and the other e-mail signatories face-to-face. He asked them
if the, had any concerns they wanted to discuss, and they told
him of the rumors concerning Fuentes’ imminent
appointment, and of their grave concerns about Fuentes’
ability to manage the Southern Bureau effectively. They cited
Fuentes’ work habits, the enormous backlog of cases that had
occurred under his supervision and his general inability to
manage the Bureau.
Plaintiffs allege that, on the heels of these e-mail
exchanges,- Thompson committed several acts of retaliation
for their inquiries and requests for a meeting. These included:
(1) Thompson’s denial of overtime pay and mileage to
Wernsing and Bingaman after requests for the same had been
approved by their immediate supervisor and the Bureau Chief,
(2) a warning to Wernsing by the Bureau Chief to watch out
because Thompson was watching everything that she did, (3)
the downgrading of Werusing and Bingaman’s annual
performance evaluations, (4) the introduction of false and
misleading evidence at Bingaman’s grievance hearing, (5)
denial of Bingaman’s application for the position of Southern
Bureau Chief, (6) denial of appropriate and customary travel
and lodging expenses for both Wernsing and Bingaman on
different occasions and (7) Thompson’s denial of a pre-
approved salary increase for the time Bingaman served as
acting Investigative Team Leader. See Wernsing, 286 F.
Supp. 2d at 997-98.
10a
Plaintiffs also allege that, due to Thompson’s directives
prohibiting unapproved discussion of OIG business with any
“external agent,” they felt compelled to restrict their
communications with individuals outside the OJG.
Specifically, Wernsing testified that she refused to answer
questions about OIG policies from employees at state facilities
or community agencies, refrained from commenting publicly
on changes to an administrative rule that altered the official
defiritions of abuse and neglect and refrained from
commenting on an OIG proposal to delegate preliminary
investigations concerning serious injuries te the local facility
where the injury in question occurred. Plaintiff Cannon
testified that he refrained from raising concerns with his state
legislators about Thompson’s qualifications as Inspector
General while the State Senate was considering his
appointment. However, there is also evidence that plaintiff
Bingaman contacted both his iocal union steward and a state
legislator regarding his troubles with Thompson in the months
following Thompson’s directives.
On August 3, 2001, Wernsing brought the present suit
alleging that Thompson’s pre-clearance directive constituted
an unlawful prior restraint on speech that infringes on her
First and Fourteenth Amendment rights. Bingaman and
Cannon later filed a motion to intervene alleging that
Thompson had violated their free speech rights by issuing the
directive and had impermissibly retaliated against them for
exercising those rights. In January 2003, Wernsing amended
her complaint to add a First Amendment retaliation claim as
well. Plaintiffs requested several types of relief, including an
injunction barring future enforcement of Thompson’s
directive, declaratory relief, and money damages for
humiliation, stress and emotional anguish resulting from the
imposition of the directive, as well as for losses stemming
from Thompson’s alleged reprisals against them.
lla
The plaintiffs also named Thompson’s Deputy Inspector
General, Sydney Roberts, as a defendant in the suit. While the
suit was pending, Thompson’s tenure as Inspector General
ended, and he was succeeded by Roberts. Upon assuming the
post of Inspector General, Roberts submitted an affidavit to
the district court averring that she had “taken no action as to
any employee based on the [directives],” and that she does
“not consider the . . . directives to be the official policy of the
Office of the Inspector General.”
After discovery, the plaintiffs filed a motion for partial
summary judgment, arguing that they are entitled to judgment
as a matter of law on their prior restraint claims. Thompson
responded with his own motion for summary judgment,
seeking judgment as a matter of law on both the prior restraint
claim and the retaliation claim. Thompson argued that he did
not violate any of plaintiffs’ constitutional rights and that, in
any event, he was entitled to qualified immunity as to both
claims. In pressing his claim, Thompson asserted that the
plaintiffs were confidential “policymaking” employees--or
that he reasonably believed them to be “policymaking”
employees--who could be fired for disloyal speech, and that
therefore he could also place prior restraints on their
expressive activity. Roberts, having formally disavowed
Thompson’s pre-clearance directive, sought to be dismissed
from the suit.
In October, 2003, the district court ruled on the parties’
motions for summary judgment. The court granted the
plaintiffs’ motion for summary judgment on the prior restraint
claim, holding that Thompson’s directives constituted a prior
restraint on speech, plaintiffs’ speech was constitutionally
protected, Thompson’s interest in preventing the speech did
not outweigh plaintiffs’ interest in commenting on matters of
public concern and plaintiffs were not policymaking or
12a
confidential employees. Wernsing, 286 F. Supp. 2d at 992-
97. The court next denied Thompson’s motion for summary
judgment on the retaliation claim, holding that plaintiffs’ e-
mails to Thompson (and Wernsing’s inquiry regarding the
scope of his directive) were constitutionally protected speech
and material questions of fact remained as to whether this
speech was a motivating factor in Thompson’s alleged
retaliatory acts against them. /d. at 997-99. The district
court also rejected Thompson’s claim of qualified immunity,
holding that it was clearly established that Thompson’s
alleged actions restricting or retaliating against plaintiffs’
speech on matters of public concern violated plaintiffs’
constitutional rights. /d. at 999-1001. However, the district
court did grant Thompson’s motion for summary judgment
with respect to plaintiffs’ request for injunctive relief, holding
that there was no substantial likelihood that Thompson’s
successor as Inspector General (Sydney Roberts) would
enforce Thompson’s directives. /d. at 1001-02. The court
accordingly also dismissed Roberts as a defendant in the case.
Id.
Thompson now appeals the ruling of the district court,
claiming that he is entitled to qualified immunity as to all of
plaintiffs’ claims.
Il. JURISDICTION
Subject to the standing requirements of Article III--to be
addressed in our discussion of plaintiffs’ prior restraint claim-
-the district court had jurisdiction over this 42 U.S.C. § 1983
action pursuant to 28 U.S.C. §§ 1331, 1343(a). This Court’s
jurisdiction now rests on 28 U.S.C. § 1291, which provides
for appellate jurisdiction over all final orders issued by the
district court. Under the collateral order doctrine, the district
court’s denia] of Thompson’s motion for summary judgment
13a
based on qualified immunity is an immediately appealable
“final decision” within the meaning of 28 U.S.C. § 1291 to
the extent that it turns on legal rather than factual questions.
See Behrens v. Pelletier, 516 U.S. 299, 311, 133 L. Ed. 2d
‘773, 116 S. Ct. 834 (1996); Mitchell v. Forsyth, 472 U.S.
511, 528-30, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985);
Tangwall v. Stuckey, 135 F.3d 510, 515-16 (7th Cir. 1998).
However, a defendant invoking an immunity defense “may
not appeal a district court’s summary judgment order insofar
as that order determines whether or not the pretrial record
sets forth a ‘genuine’ issue of fact for tial.” Johnson v.
Jones, 515 U.S. 304, 319-20, 132 L. Ed. 2d 238, 115 S. Ct.
2151 (1995).
II. STANDARD OF REVIEW
This Court reviews de novo the district court’s denial of
a motion for summary judgment based on qualified immunity.
Upton v. Thompson, 930 F.2d 1209, 1211 (7th Cir. 1991).
Summary judgment is warranted when the evidence, viewed
in a light most favorable to the non-moving party, presents
“no genuine issue as to any material fact” such that “the
moving party is entitled to a judgment as a matter of law.”
FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548
(1986).
IV. DISCUSSION
Thompson appeals the ruling of the district court below,
claiming that he is entitled to qualified immunity on both the
First Amendment retaliation claim and the prior restraint
claim. In Harlow v. Fitzgerald, the Supreme Court held that
“governmental officials performing discretionary functions
generally are shielded from liability for civil damages insofar
l4a
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would
have known.” 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S.
Ct. 2727 (1982). Under Harlow and its progeny, a court
evaluating a claim of qualified immunity must conduct a now-
familiar two-step inquiry: First the court must determine
whether the disputed conduct, as alleged, violates a
constitutional right; second, the court must determine whether
that right was “clearly established” at the time of the alleged
conduct. Saucier v. Katz, 533 U.S. 194, 201, 150 L. Ed. 2d
272, 121 S. Ct. 2151 (2001). The Supreme Court has
explained the “clearly established” analysis as follows:
This inquiry, it is vital to note, must be undertaken in
light of the specific context of the case, not as a broad
general proposition .. . . The right the official is
alleged to have violated must have been “clearly
established” in a more particularized, and hence more
relevant, sense: The contours of the right must be
sufficiently clear that a reasonable official would
understand that what he is doing violates that right.
The relevant, dispositive inquiry in determining
whether a right is clearly established is whether it
would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.
Id. at 201-02 (internal citations and quotations omitted)
(emphasis added). The plaintiff carries the burden of
esiablishing that a given right is “clearly established,” Rice
v. Burks, 999 F.2d 1172, 1174 (7th Cir. 1993), and to do so
the plaintiff must demonstrate either that a court has upheld
the purported right in a case factually similar to the one under
review, or that the alleged misconduct constituted an obvious
violation of a constitutional right. Chan v. Wodnicki, 123
F.3d 1005, 1008 (7th Cir. 1997). However, “liability is not
15a
predicated upon the existence of a prior case that is directly
on point.” Nabozny v. Podlesny, 92 F.3d 446, 456 (7th Cir.
1996).
Mindful of these precedents, we can now address the
specific claims before us. For each claim we must determine
(1) whether plaintiffs have alleged violation of a valid
constitutional right and (2) whether that right was “clearly
established” at the time of the alleged misconduct. In this case
the relevant time frames begin on or about December 5,
2000, for the prior restraint claim (the date that Thompson
sent his directive to the plaintiffs) and January of 2001 for the
retaliation claim (the date that Thompson began a series of
alleged reprisals against the plaintiffs).
A. Prior Restraint Claim
1. Justiciability
Before addressing the merits of plaintiffs’ prior restraint
claim,’ we must first consider threshold issues of
> We note at the outset that the plaintiffs, in challenging an internal
e-mail as a “prior restraint” on speech, advance a somewhat
unconventional claim. Prior restraints frequently arise in the form
of judicial injunctions against certain types of speech (to which the
collateral-bar rule applies), or, perhaps less commonly, in the form
of formal statutes or regulations barring or constraining certain
expressive activity. But see Crue v. Aiken, 370 F.3d 668, 679-80
(7th Cir. 2004) (characterizing a university president’s internal pre-
clearance directive, disseminated via e-mail, as a prior restraint on
speech). Here, since both sides have used the phrase “prior
restraint” in marshaling their arguments, we will also use that term.
However, we offer no view as to whether, as a general proposition,
an e-mail directive should always be analyzed in the same way as
l6a
justiciability, which bear on our jurisdiction. “Jurisdiction is
the ‘power to declare law,’ and without it the federal courts
cannot proceed.” Hay v. Ind. State Bd. of Tax Comm’rs, 312
F.3d 876, 879 (7th Cir. 2002) (quoting Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 577, 143 L. Ed. 2d 760,
119 S. Ct. 1563 (1999)). “Accordingly, not only may the
federal courts police subject matter jurisdiction sua sponte,
they must.” /d. (emphasis in original); see clso Wingerter v.
Chester Quarry Co., 185 F.3d 657, 660 (7th Cir. 1998) (“A
court of appeals has an obligation to examine its jurisdiction
sua sponte, even if the parties fail to raise a jurisdictional
issue.”).
First and foremost is the question of standing. “Article III
of the Constitution confines the federal courts to adjudicating
actual ‘cases’ and ‘controversies.’” Allen v. Wright, 468 U.S.
737, 750, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984). “The
core component of standing is an essential and unchanging
part of the case-or-controversy requirement of Article III.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 119 L.
Ed. 2d 351, 112 S. Ct. 2130 (1992). The “irreducible
constitutional minimum” of standing requires three elements:
First, the plaintiff must have suffered an injury in fact-
-an invasion of a legally protected interest which is (a)
concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical. Second,
there must be a causal connection between the injury
and the conduct complained of--the injury has to be
fairly . . . traceable to the challenged action of the
defendant, and not. . . the result [of] the independent
action of some third party not before the court. Third,
an injunction, statute or a formal regulation.
17a
it must be likely, as opposed to merely speculative,
that the injury will be redressed by a favorable
decision.
Id. at 560-561 (internal citations and quotation marks
omitted).
Thompson argues that plaintiffs lack standing to challenge
his pre-clearance directive since they have not demonstrated
any “actual injury or any imminent threat of injury due to the
directive.” (Thompson May 27, 2005 Supp. Mem. at 4.)
Specifically, he claims that, in order to make out a concrete
“injury in fact” for standing purposes, plaintiffs must have
sought permission to speak, been denied, spoken out anyway
and been subject to discipline. (/d. at 9.) This argument is
both conceptually and legally flawed. First, the hypothetical
chain of events outlined by Thompson describes a First
Amendment retaliation case involving post-hoc punishment
for disfavored speech, not a prior restraint which seeks to
limit expressive activity before it occurs. Thompson’s
proposed paradigm would preclude litigation of prior
restraints altogether.
Second and more fundamentally, the Supreme Court and
this Court have held that government policies placing prior
restraints on employee speech may be challenged facially.
That is, government employees whose speech is limited by an
internal policy or a pre-clearance directive such as
Thompson’s need not seek permission to speak or violate the
directive in order to challenge the directive in court. See
United States v. Nat’l Treasury Employees Union (NTEU),
513 U.S. 454, 461-62, 130 L. Ed. 2d 964, 115 S. Ct. 1003
(1995) (allowing facial challenge to a ban on honoraria for
public speaking by government employees); Crue v. Aiken,
370 F.3d 668, 679-80 (7th Cir. 2004) (allowing challenge to
18a
pre-clearance directive by both plaintiff who had sought
permission to speak and plaintiffs who had not); Harman v.
City of New York, 140 F.3d 111, 118 (2d Cir. 1998) (allowing
facial challenge to city agency’s pre-clearance directive
banning unapproved speech to the media); Providence
Firefighters Local 799 y. City of Providence, 26 F. Supp. 2d
350, 354 (D.R.I. 1998) (citing N7JEU for this proposition).*
* Thompson cites the Ninth Circuit’s decision in Portland Police
Association v. City of Portland, 658 F.2d 1272 (9th Cir. 1981), in
support of his argument that plaintiffs lack standing. However,
Thompson’s reliance on Portland Police is misplaced. In that case,
the Ninth Circuit held that the Police Association could not
challenge a new order from the police chief requiring police
officers to prepare reports after “major incidents” and precluding
them from consulting with an attorney unless their superiors
determined that they might be exposed to employment sanctions or
criminal liability. The court determined that since injurious
application of the order to any single officer hinged on a number of
contingencies, none of which had come to pass, the plaintiffs’
claims of injury were too speculative and abstract to confer standing
in federal court. /d. at 1273-74.
Here, by contrast, the injurious effects of Thompson’s directive
do not depend on any external contingency. The very existence of
such a pre-clearance requirement raises the specter of self-
censorship, even among those who ultimately receive permission to
speak. See City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S.
750, 757, 100 L. Ed. 2d 771, 108 S. Ct. 2138 (1988) (“The mere
existence of the licensor’s unfettered discretion, coupled with the
power of prior restraint, intimidates parties into censoring their own
speech, even if the discretion and power are never actually
abused.”); Thornhill v. Alabama, 310 U.S. 88, 97, 84 L. Ed.
1093, 60 S. Ci. 736 (1940) (“It is not merely the sporadic abuse of
power by the censor but the pervasive threat inherent in its very
existence that constitutes the danger to freedom of discussion.”);
19a
Yet establishing that plaintiffs may, as a general
proposition, facially challenge a pre-clearance directive like
Thompson’s gets us only half way home. The undisputed
evidence reveals that Thompson’s directive is no longer in
force, and this raises the specter of mootness. Implicit in the
“case-Or-controversy” requirement of Article III is the
principle that “federal courts may not give opinions upon
moot questions or abstract propositions.” Worldwide St.
Preachers’ Fellowship v. Peterson, 388 F.3d 555, 558 (7th
Cir. 2004) (internal quotations omitted). Here the district
court did indeed find the issue of plaintiffs’ requested
injunctive relief to be moot. 286 F. Supp. 2d at 1001-02. The
court reasoned that “as Defendants have sufficiently
demonstrated that the policy from which Plaintiffs sought
relief no longer exists and that the illegal prior restraint of
speech at issue in this case cannot reasonably be expected to
reoccur, the claim for injunctive relief is effectively moot, as
there is no need to enjoin prospective action that would
violate federal law.” /d.
This determination appears to be correct. While the
mootness doctrine does not necessarily apply to voluntary
cessation of illegal activity, United States v. W. T. Grant
Co., 345 U.S. 629, 632, 97 L. Ed. 1303, 73 S. Ct. 894
(1953); Milwaukee Police Ass'n v. Jones, 192 F.3d 742, 747
(7th Cir. 1999), or to actions “capable of repetition yet
evading review,” Krislov v. Rednour, 226 F.3d 851, 858
(7th Cir. 2000), “the moving party must still satisfy the court
that injunctive relief is required,” Milwaukee Police Ass'n,
192 F.3d at 748. “ ‘The necessary determination is that there
exists some cognizable danger of recurrent violation,
Harman, 140 F.3d at 120 (same) (citing City of Lakewood). This is
precisely why facial challenges to such directives are permitted.
20a
something more than the mere possibility which serves to
keep the case alive.’ “ Jd. (quoting W.7. Grant, 345 US. at
633). The mere “theoretical possibility” of a repeat violation
is not enough. Walsh v. Urited States Dep’t of Veterans
Affairs, 400 F.3d 535, 537 (7th Cir. 2005); accord United
States v. Ladd (In re AP), 162 F.3d 503, 511 (7th Cir. 1998)
(requiring a “reasonable expectation that the same
complaining party would be subjected to the same action
again”) (internal quotations omitted).
Here Sydney Roberts, Thompson’s _ successor,
theoretically could reimpose his pre-clearance directive, but
nothing in the record suggests that she is likely to do so. Her
uncontroverted affidavit states that she has “taken no action
as to any employee based on the [directive],” and that she
does “not consider the . . . [directive] to be the official policy
of the Office of the Inspector General.” The directive at issue
was personal to Thompson, and the possibility of a recurrence
remains purely speculative. Thus even assuming that
Thompson’s directive constitutes an impermissible restraint on
speech, there remains no misconduct for this court to enjoin.
We have quite recently held that where an internal pre-
clearance directive such as this one is permanently withdrawn
or disclaimed by the government/employer, any claims for
injunctive relief are moot. See Crue v. Aiken, 370 F.3d 668,
677-78 (7th Cir. 2004).
Plaintiffs’ argument that Thompson’s appeal does not
implicate the district court’s mootness determination: -and thus
that the mootness issue is not properly before us--is also
unavailing. Mootness, like standing, “is always a threshold
jurisdictional question that we must address even when it is
not raised by the parties.” Peterson, 388 F.3d at 558; see
also North Carolina v. Rice, 404 U.S. 244, 246, 30 L. Ed.
21a
2d 413, 92 S. Ct. 402 (1971). Plaintiffs’ claim for injunctive
relief is moot and will not figure in our analysis here.
However, plaintiffs also seek monetary damages for
humiliation, stress and emotional anguish resulting from the
imposition of the directive. Such claims are not moot, even if
the underlying misconduct which caused the injury has ended.
See Powell v. McCormack, 395 U.S. 486, 496, 23 L. Ed. 2d
491, 89 S. Ct. 1944 (1969) (holding that although injunctive
relief was moot, a case or controversy still existed since the
plaintiff requested declaratory relief and damages); Crue,
370 F.3d at 677-678 (holding that although the plaintiff's
request for injunctive relief was moot, the court had to
consider the merits of the case since requests for declaratory
relief and damages remained). Generally, any “person
whose injury can be redressed by a favorable judgment has
standing to litigate,” Fed. Deposit Ins. Corp. v. Ernst &
Young LLP, 374 F.3d 579, 581 (7th Cir. 2004), and injuries
compensable in monetary damages can always be redressed
by a court judgment. Similarly, “when a claim for injunctive
relief is barred but a claim for damages remains, a declaratory
judgment as a predicate to a damages award can survive.”
Crue, 370 F.3d at 677.
Thus while plaintiffs’ claim for injunctive relief is moot,
plaintiffs’ claims for monetary damages and declaratory relief
still present a live case or controversy, and therefore we must
* This approach squares with the general proposition that “where
several forms of relief are requested and one of these requests
subsequently becomes moot, the Court has still considered the
remaining requests.” Powell, 395 U.S. at 496 n.8.
22a
proceed to consider the substantive merits of plaintiffs’ prior
restraint claim.
2. The Merits
In granting summary judgment to the plaintiffs on their
prior restraint claims, the district court ruled that Thompson’s
directives chilled or actually prevented plaintiffs’ speech on
a matter of public concern, were fatally overbroad and were
based on merely conjectural concerns regarding both the
content of plaintiffs’ speech and its potential impact. 286 FP.
Supp. 2d at 992-97. Thompson’s main argument on appeal--
which the district court rejected, id. at 996-97--is that
plaintiffs were “policymaking” or “confidential” employees
under Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96
S. Ct. 2673 (1976), and Branti v. Finkel, 445 U.S. 507, 63
L. Ed. 2d 574, 100 S. Ct. 1287 (1980), and thus that he could
restrict their speech on matters relating to OIG operations.
The logic of Thompson’s argument is that since such
“policymaking” employees may actually be fired for disloyal
expressive activity under Elrod and its progeny, he should be
able to take the less extreme measure of restricting their
speech in the first instance.
This line of argument is dubious on several levels. First,
it appears fairly clear that ISI 2s are not “policymaking”
officials under Elrod and it progeny. Notwithstanding the fact
that ISI 2s often handle sensitive or confidential information,
there is no indication that the position “authorizes, either
directly or indirectly, meaningful input into government
decisionmaking on issues where there is room for principled
disagreement on goals or their implementation,” Nekolny v.
Painter, 653 F.2d 1164, 1170 (7th Cir. 1981), or that “party
affiliation is an appropriate requirement for performing the
job.” Carlson v. Gorecki, 374 F.3d 461, 464 (7th Cir.
23a
2004); accord Branti, 445 U.S. at 518 (sume test). At least
one district court has specifically held it to be clearly
established that ISI 2s are not policymaking employees.
Thornburg v. Peters, 155 F. Supp. 2d 984, 990-91 (C.D. Ill.
2001); see also 20 Ill. Comp. Stat. 415/4a(2) (2005)
(suggesting that ISI 2 positions are not political appointments
but are to be held based on “merit and fitness”).
Yet even if this point could be disputed,° the plaintiffs’
status as policymaking employees is not necessarily relevant
to the legality of Thompson’s directive. Even assuming that
Thompson could fire the plaintiffs for certain speech activity,
it does not follow that he should be able to restrain their
expressive activity ex ante. Certainly, from an individual
employee’s perspective, outright termination might appear the
more extreme disciplinary measure. However, purely as a
matter of First Amendment freedoms the public ramifications
* As the parties point out in their briefs, the case law pulls in
somewhat different directions on this point. Compare Americanos
v. Carter, 74 F.3d 138, 142-43 (7th Cir. 1996) (holding that an
Indiana Deputy Attorney General qualified as a policymaker since
he researched complex legal issues concerning cases in the AG’s
office and had “the direct ability to implement the policies and
goals of the AG for the State of Indiana”) and Hudson v. Burke,
913 F.2d 427, 431-32 (7th Cir. 1990) (holding that the district court
did not commit clear error by ruling that “investigators” or
“legislative aides” for the City of Chicago Finance Committee were
policymaking employees since they “have ‘inherent’ in their
position the power to investigate, report facts and have input into
those areas of politically sensitive governmental decisionmaking”)
with Matlock v. Barnes, 932 F.2d 658 (7th Cir. 1991) (affirming
a jury verdict in favor of a Legal Investigator in the Gary, Indiana
City Lega! Department, ruling there was ample evidence that he
was ne* a policymaking employee).
24a
of a prior restraint on speech may actually be far more
severe. Unlike ex post reprisals for speech activity, a
prospective restriction “chills potential speech before it
happens,” depriving the public of information that might
otherwise be disseminated. NTEU, 513 U.S. at 468. It is
therefore well settled that the government’s prospective
restriction of future speech is approached with a greater
presumption of unconstitutionality than post-hoc disciplinary
actions against specific employees for speech already uttered.
NTEU, 513 U.S. at 467-68; Crue v. Aiken, 370 F.3d at 678;
Milwaukee Police Ass’n, 192 F.3d at 749-50.’
Accordingly, the Elrod policymaker rule is traditionally
applied only in cases of patronage hiring and firing, see, e.g.,
Kiddy-Brown v. Blagojevich, 408 F.3d 346, 354-57 (7th Cir.
2005); Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d
750, 751-52 (7th Cir. 2002), or in cases of First Amendment
retaliation, see, e.g., Vargas-Harrison v. Racine Unified Sch.
Dist., 272 F.3d 964, 970, 971-72 (7th Cir. 2001); Bonds v.
Milwaukee County, 207 F.3d 969, 977 (7th Cir.), cert.
denied, 531 U.S. 944, 148 L. Ed. 2d 273, 121 S. Ct. 340
(2000). Accepting Thompson’s novel rule would imply a bold
and perhaps unwarranted departure from both Supreme Court
7 In order to justify such a prospective restriction, the government
“must show that the interests of both potential audiences and a vast
group of present and future employees in a broad range of present
and future expression are outweighed by that expression’s
‘necessary impact on the actual operation’ of the Government.”
NTEU, 513 U.S. at 468 (quoting Pickering v. Board of Educ., 391
U.S., 563, 571, 20 L. Ed. 2d 811, 88S. Ct. 1731 (1968)); see also
Milwaukee Police Ass’n, 192 F.3d at 750 (same) (quoting N7EU,
513 U.S. at 468). This is a more onerous burden than that required
to justify post-hoc reprisals for expressive activity. See Sullivan v.
Ramirez, 360 F.3d 692, 698 (7th Cir. 2004).
25a
precedent and traditional understandings of Elrod and its
progeny. Nothing in the case law anticipates an absolute
“policymaker” exception for prior restraint claims, and this
would fly in the face of the Supreme Court’s distinction
between prospective regulations and ad hoc retaliation for
specific instances of speech. The approach actually suggested
by the case law is probably one whereby the politically
sensitive or secretive nature of the employment context can
factor into the court’s evaluation of the government’s
justification for prohibiting the speech, including the
“expression’s ‘necessary impact on the actual operation’ of
the Government.” N7EU, 513 U.S. at 468 (quoting
Pickering, 391 US. at 5/1).
Perhaps anticipating these difficulties, Thompson also
argues, in the aiternative, that even if plaintiffs are not
considered policymaking employees, or even if the “policy-
maker” exception outlined in Elrod does not apply to prior
restraint claims, those propositions were not clearly
established at the time of his alleged misconduct. For these
reasons, Thompson claims he is entitled to qualified
immunity.
We are satisfied that Thompson is entitled to qualified
immunity, though not for the precise reasons he advances.
Simply put, Thompson must prevail in the present suit since
it was not. clearly established, at the time the pre-clearance
directive was first issued (December 5, 2000), that such a
directive constituted an unlawful prior restraint on speech.
Of course the case law on prior restraints is replete with
decisions invalidating zoning ordinances, licensing schemes,
permit regulations and other official acts that limit expressive
activity. Additionally, our recent decision in Crue v Aiken,
where we held a similar pre-clearance directive to constitute
26a
an unlawful prior restraint on speech, casts serious doubt
upon the legality of Thompson’s directive. See Crue, 370
F.3d at 680 (hoiding unconstitutional a university chancellor’s
pre-clearance directive banning all speech directed toward
prospective student athletes without prior permission).
However, while the constitutional limits of restraints
applicable to the general public are well-settled, and while the
Supreme Court has struck down formal statutory bans of
certain speech activity by government employees, see NTEU,
513 U.S. 454, the prerogatives of a government supervisor in
managing the communications of his own staff are far less
clear. We emphasize that our analysis of qualified immunity
here is focused specifically and exclusively on this kind of
relatively informal supervisory directive aimed at close
subordinates.* In December 2000 case law touching on this
kind of internal pre-clearance directive was decidedly scant
and, to the extent that it existed at all, actually suggested that
such directives are permissible.
Indeed we have approved similar pre-clearance screening
directives before. In Zook v. Brown, a case that came before
this Court twice, we upheld a sheriff's department regulation
prohibiting officers from engaging in testimonials or
advertisements without prior approval of the sheriff. 865
F.2d 887, 891-92 (7th Cir. 1989) (Zook IN). We reasoned that
the sheriff had a legitimate interest in maintaining the
appearance of integrity and impartiality of the police force,
and the restrictions were sufficiently tailored to a narrow
<
* In this respect the present case differs significantly from Crue.
The e-mail directive at issue in Crue, issued by the president of the
University of Illinois, applied not just to the president’s own staff
or other University employees, but to all University students and all
“others associated with the University.” 370 F.3d at 674-75.
27a
category of problematic speech--ads and testimonials. /d.
Moreover, in our first treatment of Zook we actually held that
any legal infirmity in the sheriff's order was not clearly
established at the time of the order. Zook v. Brown, 748 F.2d
1161, 1165 (7th Cir. 1984) (Zook I). In a subsequent case, we
also upheld elementary school rules requiring students to
obtain prior approval of the school principal before
distributing private handbills. Muller by Muller v. Jefferson
Lighthouse Sch. , 98 F.3d 1530, 1541 (7th Cir. 1996). But see
Fujishima v. Bd. of Educ., 460 F.2d 1355 (7th Cir. 1972)
(holding unconstitutional a board of education rule prohibiting
any person from distributing any publications on school
premises without prior approval of the general superintendent
of schools).
Two earlier Supreme Court cases dealing with pre-
publication screening regulations in government agencies also
point in the same direction. In Brown y. Glines, 444 U.S.
348, 62 L. Ed. 2d 540, 100 S. Ct. 594 (1980), the Court
upheld Air Force regulations requiring service members to
obtain approval from their commanders before circulating
petitions on Air Force bases. In Snepp v. United States, 444
U.S. 507, 62 L. Ed. 2d 704, 100 S. Ct. 763 (1980), the Court
upheld the enforcement of an agreement signed by an agent
of the CIA whereby he promised not to publish any
information “relating to the Agency,” during or after his term
of employment, “without specific prior approval by the
Agency”. /d. at 507; cf. Weaver v United States Info. Agency,
318 U.S. App. D.C. 420, 87 F.3d 1429, 1443 (D.C. Cir.
1996) (upholding regulation requiring employees of U.S.
Information Agency and certain other federal agencies to
submit materials regarding matters of official concern to pre-
publication screening).
28a
To be sure, these cases are in some_ respects
distinguishable from the present case. The regulation at issue —
in Zook (which was limited to ads and testimonials) was far
more narrowly tailored than the one issued by Thompson
here, which simply prohibited all communication regarding
OIG operations with any “external agent.” Additionally, even
as it affirmed the sheriff's screening of police officer
advertisements and testimonials, the panel in Zook reiterated
its belief that the regulation would not prohibit speech on
matters of public concern and warned against broader
restrictions that might give “unfettered enforcement
discretion.” 865 F.2d at 892. Most of the other cited cases
also involve unique institutional settings such as an elementary
school (Muller), the armed forces (Brown) and the CIA
(Snepp), contexts where the government presumably has a
heightened interest in preempting certain types of speech.
Additionally, all of these cases predated the Supreme Court’s
more exacting pronouncements on prior restraints in NTEU
and Davis.
Yet all this is just to say that Thompson’s directive was
not clearly authorized by existing case law as of November
2000. The relevant question, however, is not whether his
actions were expressly authorized by existing law, but
whether they were clearly forbidden--i.e., whether a
reasonable official would have known the actions in question
were illegal. Saucier, 533 U.S. 194 at 202, 150 L. Ed. 2d
272 (“The relevant, dispositive inquiry in determining
whether a right is clearly established is whether it would be
clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.”). In the absence of a case
factually similar to the one at bar, an official is entitled to
qualified immunity unless the alleged misconduct constitutes
an obvious violation of a constitutional right. Chan, 123 F.3d
at 1008. Yet to the extent that these cases--distinguishable as
29a
they are--point in any direction, they suggest that pre-
clearance directives such as this one are permissible.
The institutional context of Thompson’s directive is also
relevant here. While it is not the CIA, the OIG is an agency
that depends on confidentiality and secrecy in carrying out its
public mission. In the course of its investigations the OIG
routinely handles extremely sensitive information, and its
employees must adhere to strict confidentiality requirements.
Under the circumstances--and given the state of the law at the
time--it may not have been unreasonable for Thompson to
think that he could instruct his own employees not to discuss
agency business with outside parties.
The district court, of course, arrived at a contrary ruling,
stating that “long before Thompson issued his directive, the
Supreme Court had held that ‘any prior restraint on
expression comes to this Court with a “heavy presumption”
against its constitutional validity,’” and asserting that “it was
equally well-established that prior restraints, often referred to
as a ‘most extraordinary remedy’, have been upheld ‘only
where the evil that would result from there portage is both
great and certain and cannot be militated by less intrusive
measures.’” 286 F. Supp. 2d at 999 (quoting CBS Inc. v.
Davis, 510 U.S. 1315, 1317, 127 L. Ed. 2d 358, 114 S. Ct.
912 (1994)). The district court concluded by stating that “it
was Clearly established prior to December 2000 that if
Plaintiffs wanted to speak on a matter of public concern, and
their interests in doing so outweighed any of Thompson’s
legitimate interests, precluding their speech without
substantial justification and retaliating against them for that
speech would be illegal.” /d. at 1000.
Yet this formulation is exactly what the Supreme Court
has instructed courts mot to do--it frames the clearly
30a
established inquiry in terms of a generai proposition rather
than the specific factual situation that confronted the defendant
official. The Court has been quite clear that “this inquiry . .
. must be undertaken in light of the specific context of the
case, not as a broad general proposition .. .. The relevant,
dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.”
Saucier, 533 U.S. at 201-02 (emphases added). If the clearly
established question could be resolved merely by observing
that unjustified prior restraints on speech are prohibited, then
no defendant could ever prevail on the clearly established
prong of the qualified immunity analysis--the inquiry would
always produce an outcome identical to that issuing from the
first prong of the immunity analysis (violation of a valid legal
right).°
In short, a reasonable official in Thompson’s position
could not have known definitively, in December 2000,
whether issuing such a pre-clearance directive violated
plaintiffs’ First Amendment rights. See Saucier, 533 U.S. at
202. Accordingly, Thompson’s motion for summary judgment
based on qualified immunity must be granted."°
_~
* It appears that the panel in Crue may have similarly misframed the
clearly established analysis, see 370 F.3d at 680, however we have
no occasion to offer any ruling on this point.
'° Contrary to the district court’s suggestion, the Supreme Court’s
decision in NTEU does not itself resoive the “clearly established”
inquiry. That case involved a formal statutory ban prohibiting
unconditionally the receipt of honoraria by all government
employees. Such a sweeping legal enactment is clearly distinct from
the kind of informal, internal directive at issue here.
3la
B. First Amendment Retaliation Claim
Unlike plaintiffs’ prior restraint claim, there is to doubt
that the retaliation claim presents a live case or controversy.
The sole question here concerns the merits of Thompson’s
motion for summary judgment on grounds of qualified
immunity.
It is by now well established that the government may not
arbitrarily silence the constitutionally-protected speech of its
employees. Government workers do not forfeit their First
Amendment rights simply by accepting pubic-sector
employment. Claims of retaliation for exercise of First
Amendment rights in the public employment context are
evaluated through a now-familiar three-step analysis. “First,
the court must determine whether the employee’s speech was
constitutionally protected under the Connick-Pickering test.
Second, the plaintiff must establish that the speech was a
substantial or motivating factor in the retaliatory action.
Third, the defendant has an opportunity to establish that the
same action would have been taken in the absence of the
employee’s protected speech.” Sullivan v. Ramirez, 360 F.3d
692, 697 (7th Cir. 2004).
In order to determine whether speech is constitutionally
protected, we must engage in a two-part inquiry known as the
“Connick-Pickering test.” Id. (citing Coady v. Steil, 187 F.3d
727, 731 (7th Cir. 1999); Connick v. Myers, 461 U.S. 138,
75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983); Pickering v. Bd.
of Educ., 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731
(1968)). “Under Connick, we must determine whether the
speech addressed a matter of public concern. If the speech did
involve such a concern, under the Pickering balancing test, we
then must determine whether the government’s interest as an
employer in providing effective and efficient services
32a
outweighs the employee’s interest as a citizen in commenting
upon the matter of public concern.” /d. at 698. “The
determination of whether the speech is constitutionally
protected is a question of law for the court.” /d. (citing
Kokkinis v. Ivkovich, 185 F.3d 840, 843 (7th Cir. 1999)).
Here we need proceed no further than the Connick public
concern inquiry. Plaintiffs have failed to demonstrate that they
_.engaged in speech on a matter of public concern, and
therefore Thompson is entitled to qualified immunity as a
matter of law.
There are three incidents of potentially protected speech
at issue in this case: (1) Plaintiffs’ November 2000 e-mails to
Thompson requesting a meeting to discuss unspecified
concerns about a rumored appointment, (2) Wernsing’s
January 2001 inquiry requesting clarification of the scope of
Thompson’s directives and (3) plaintiffs’ meeting with
Thompson in March 2001 where they articulated their specific
concerns regarding Fuentes’ possible appointment as Southern
Bureau chief. Since the plaintiffs did not advance their speech
at the March 2001 meeting as a basis for their retaliation
claim before the district court, they have waived any
argument based on this speech. See Premcor USA, Inc. v.
Am. Home Assurance Co. , 400 F.3d 523, 530 (7th Cir. 2005)
(“Vee need not tarry over this argument; it was not presented
to the district court and was, therefore, waived.”); Williams
v. REP Corp., 302 F.3d 660, 666 (7th Cir. 2002) (“A party
waives any argument that it does not raise before the district
court . . . .”) (internal quotations omitted).
That leaves plaintiffs’ e-mails to Thompson and
Wernsing’s inquiry regarding the scope of Thompson’s
directive. Whether a government employee’s speech addresses
a matter of public concern depends upon “the content, form,
33a
and context of [the speech], as revealed by the Whole record.”
Connick, 461 U.S. at 147-48; see also Gustafson v. Jones,
290 F.3d 895, 906-07 (7th Cir. 2002) (quoting Connick);
Ramirez, 360 F.3d at 699 (same). Among these factors the
content of the speech is the most important. See Ramirez, 360
F.3d at 699. To satisfy the public concern requirement, the
speech in question “must relate to a community concern” and
may not be “merely a personal grievance of interest only to
the employee.” /d. (internal quotations omitted).
1. Plaintiffs’ e-mails
With respect to plaintiffs’ e-mails, the district court ruled
that, while the e-mails did not articulate any specific grievance
or concern, they nonetheless constituted speech on a matter of
public concern since “the speech involved an effort by
employees to bring to light claims of actual mismanagement
and gross negligence in the conduct of OIG business by
Fuentes... .” 286 F. Supp. 2d at 994. The court explained
that “although the e-mails were vague and lacking in specific
details, the text of the e-mails can reasonably be read to
support Plaintiffs’ asserted public purpose in speaking, as well
as the contention that their complaints were motivated by
considerations of pul lic safety and the welfare of the mentally
ill and developmentally disabled persons receiving DHS
services who did not receive adequate protection during
Fuentes’ alleged mismanagement of the Southern Bureau.” Jd.
Having determined that plaintiffs’ e-mails fit the bill, the
district court apparently did not reach the question whether
Wernsing’s inquiry qualified as oa on a matter of public
concern as well. >
This ruling was erroneous. Plaintiffs’ e-mails cannot be
considered speech on a matter of public concern for the
simple reason that they articulate no particular view-point,
34a
grievance or complaint; they merely request a meeting with
Thompson. In pressing their case, plaintiffs argue as if their
concerns about Fuentes had actually been aired in the two e-
mails. They had not. Regardless of whether the appointment
of an incompetent director to the OIG Southern Bureau
constitutes a matter of public concern,'' we need not mire
ourselves in hypotheticals because plaintiffs’ e-mails never
broached this topic. They said only that they wanted to meet
with Thompson to discuss unspecified “concerns” about a
potential appointment in the OIG.
Apparently recognizing this fundamental difficulty,
plaintiffs argue in their brief that the content “desired to be
communicated” is a key consideration, and they ask us to
focus our inquiry on the “underlying speech--the speech that
the Plaintiffs sought to bring to defendant’s attention by means
of the e-mails.” (Bingaman & Cannon Br. at 15 (emphasis in
original).) They cite Smith v. Fruin, 28 F.3d 646, 651 (7th
Cir. 1994), for the proposition that “the pointof the speech in
question” is relevant to the public concern inquiry. Jd.
- (emphasis in original). This line of argument is nonsensical.
In their references to “underlying speech” that is “sought” to
be expressed, plaintiffs are actually referring to speech which
has not yet occurred, which, for First Amendment retaliation
purposes, is no speech at all. This Court’s precedents instruct
that the content of the speech is the most important factor in
determining the public concern element, see Ramirez, 360
'' Because we need not reach this issue, we decline to offer a
definitive ruling on the substantive nature of plaintiffs’ underlying
concerns. Aside from the fact that Article Three prohibits us from
issuing advisory rulings, sez Lujan, 504 U.S. at 560, the Supreme
Court appears poised to consider a similar question in Garcetti v.
Ceballos, which will be argued later this Fall, 161 L. Ed. 2d 188,
125 S. Ct. 1395 (2005) (granting certiorari).
35a
F.3d at 699, not the inchoate intentions or views that the
speaker privately holds.
We have previously held that otherwise unprotected
speech does not suddenly attain protected status simply
because it is animated by a viewpoint which, if actually
expressed, might itself merit First Amendment protection. For
example, in Colburn v. Trustees of Indiana University, 973
F.2d 581 (7th Cir. 1992), we ruled that university faculty
members’ request for external review of a faculty committee
that made recommendations on professional adva.:cement did
not touch upon a matter of public concern, even though
plaintiffs had claimed that the committee was biased against
faculty members who had not joined the faculty union. /d. at
586. We noted that while speech relating to unionizing and
collective activity may be a matter of public concern, the
speech at issue--the request for an external review--failed to
specify that this was the nature of the committee’s bias.'? Id.
Similarly, in Yoggerst v. Hedges, 739 F.2d 293 (7th Cir.
1984), we ruled that an employee’s expression of happiness
upon hearing a rumor that the director of her office had been
fired’? was not speech that touched on a matter of public
concern. Id. at 296. We explained that although the question
whether the director was adequately qualified would constitute
a matter of public concern, the plaintiff's bare statement of
approval conveyed no information about the director’s actual
'? This lack of specificity was not the only basis for our ruling on
the public concern issue in Colburn. We also noted that the
plaintiffs were not attempting to inform the public about the matter-
-their primary motivation concerned their own standing within the
university. See 973 F.2d at 586.
'3 Plaintiff merely asked a co-worker: “Did you hear the good
news?”
36a
qualifications and would provide no basis for determining
them. Jd."*
In the retaliation context, speakers simply may not invoke
the protections of the First Amendment based on unexpressed
viewpoints or unuttered thoughts. Government officials are
not mind readers. The fact that members of the OIG wanted
to meet with the Inspector General about the rumored
appointment of an unspecified person does not, by itself,
constitute a matter of concern to the public.
Perhaps recognizing that Thompson’s psychic powers are
limited, the plaintiffs next argue that Thompson should have
attempted to ascertain the unspecified “cencerns” that lay
behind plaintiffs’ cryptic e-mails; they assert that any
wncertainty as to their viewpoints or motives was caused by
Thompson's failure to follow up or investigate. The plaintiffs
argue that Waters v. Churchill, 511 U.S. 661, 677-78, 128 L.
Ed. 2d 686, 114 S. Ct. 1878 (1994), establishes a general
“duty, before retaliating, to reasonably inquire as to the
nature of the concerns which Plaintiffs asked to express.”
'* Our disposition here also finds support in Connick itself--the very
font of the modern public concern analysis. The Court in Connick
ruled that several internal survey questions circulated by the
plaintiff did not touch on matters of public concern since “if
released to the public, [the questions] would convey no information
at all other than the fact that a single employee is upset with the
status quo.” 461 U.S. 138, 148, 75 L. Ed. 2d 708, 103 S. Ct.
1684 (1983). Similarly, plaintiffs’ e-mails here contained no
information that would have been useful or noteworthy to the public
at large, and if disseminated would reveal only that several OIG
staff members sought a meeting with the Inspector General to air
unspecified concerns about an unspecified appointment.
37a
(Wernsing Br. at 29.) Waters stands for no such proposition.
Waters holds that government supervisors must make a
reasonable investigation into the content of ihe speech at issue
and the identity of the relevant speakers before disciplining
their employees for expressive activity. It articulates a factor
that courts should consider in evaluating an employer’s
response to speech under the Pickering balancing test, and it
helps to clarify “what should happen if the defendants hold an
erroneous and unreasonable belief about what plaintiff said.”
Id. at 678.
Here, of course, there was no erroneous or unreasonable
belief about what plaintiffs said--Thompson received the full
text of both e-mails and correctly identified all the authors.
More fundamentally, Waters and its progeny do not address
the antecedent question whether the speech at issue,
considered in its own right, addresses a matter of public
concern, and it certainly does not enshrine any duty to
investigate the possible meaning of a facially innocuous
communication or random missive from an employee.” It
would be unduly onerous to place a legal duty on government
employers to ascertain whether employees who make vague
requests for meetings might have something of public concern
in mind.
'S The other cases cited by plaintiffs, e.g., Jefferson v. Ambroz, 90
F.3d 1291, 1299 (7th Cir. 1996) (Rovner, J., concurring), similarly
bear on the reasonableness of a supervisor’s response to speech, not
the public concern aspect of the speech itself.
38a
2. Wernsing’s Inquiry
This brings us to Wernsing’s request for clarification of
Thompson’s directive--specifically, her inquiry as to whether
the directive permitted her to discuss office business with her
union representative, an attorney or a legislator. This act of
“speech” meets the same fate as plaintiffs’ e-mails. While it
might be of mild interest to the public that Thompson had
issued such a pre-clearance directive--and plaintiffs’ briefs
make a weak gesture in this direction--Wernsing clearly was
not seeking to protest the directive, disseminate information
or express any particular viewpoint about it. She was merely
seeking clarification as to how the directive applied to her
individually. The posture of Wernsing’s inquiry is analogous
to the internal questionnaire circulated by the plaintiff in
Connick, who
did not seek to inform the public that the District
Attorney’s office was not discharging its governmental
responsibilities in the investigation and prosecution of
criminal cases. Nor did {the plaintiff] seek to bring to
light actual or potential wrongdoing or breach of
public trust on the part of Connick and others. Indeed,
the questionnaire, if released to the public, would
convey no information at all other than the fact that a
single employee is upset with the status quo.
461 U.S. at 148; cf. Colburn, 973 F.2d at 586-87 (request by
faculty members for an independent review of a faculty
evaluation committee did not raise a matter of public concern
since, while “the public would be displeased to learn that
faculty members at a public university were evaluating their
colleagues based on personal biases,” the request was
“principally of importance to the few faculty members who
had to tolerate the bickering”).
39a
Internal communications regarding office personnel
policies, which allege no malfeasance or wrongdoing, simply
are not the stuff of protected speech. Accordingly, Wernsing’s
inquiry does not constitute speech on a matter of public
concern.
Since the expressive activity underlying plaintiffs’
retaliation claim does not constitute speech on a matter of
public concern, we reverse the district court’s ruling with
respect to this claim. Thompson’s motion for summary
judgment on grounds of qualified immunity should have been
granted.
V. CONCLUSION
For the foregoing reasons, we REVERSE the ruling of the
district court and REMAND this case with instructions to
grant Thompson summary judgment with respect to all claims
on grounds of qualified immunity.
APPENDIX C
UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF ILLINOIS,
PEORIA DIVISION
No. 01-1476
[Filed October 9, 2003]
JENNY WERNSING, CHARLES BINGAMON,
and TROY CANNON,
Plaintiffs,
ODELL THOMPSON, JR.,
)
)
)
)
Vv. )
)
)
Defendant. )
)
JUDGES: Michae! MM. Mihm, United States District
Judge.
{YPINION
This matter is before the Court on several motions for
summary judgment. For the reasons set forth below,
Wernsing’s Motion for Partial Summary Judgment [# 36] is
4la
GRANTED. Bingaman' and Cannon’s Motion for Partial
Summary Judgment [# 41] is GRANTED, and Defendants’
Motion for Summary Judgment [# 43] is GRANTED IN
PART and DENIED IN PART.
Factual and Procedural Background
Plaintiff, Jenny Wernsing (“Wernsing”), is an Internal
Security Investigator II (“ISI 2") in the Inspector General’s
Office (“OIG”) for the Department of Human Services
(“DHS”) of the State of Illinois. Plaintiffs Charles Bingaman
(“Bingaman”) and Troy Cannon (“Cannon”) were also ISI 2s
during the time relevant to this proceeding, although
Bingaman also had other duties at various times. The OIG
investigates reports of abuse and neglect toward mentally ill
and developmentally disabled persons who receive services
provided by the DHS. According to the job description, an ISI
y
Performs highly responsible, sensitive, and
confidential investigative work; conducts the gathering
and analysis of relevant facts and data concerning
abuse and neglect investigations; completes
investigations by preparing reports, summarizing
investigative activities and recommends conclusions to
findings.
' The Court notes that Plaintiff Bingaman’s name is spelled no less
than three different ways in the pleadings of both parties:
Accordingly, the proper spelling of his name is unclear, and the
Court will use the spelling that appears on his personnel documents
of record for purposes of this motion.
SPECIFICALLY:
1. Conducts confidential, sensitive, and complex
investigations concerning reports of abuse and neglect
at State-operated facilities and community agencies:
gathers data and evidence, conducts interviews,
receives reports and analyzes relevant evidence
concerning cases of abuse and neglect; ensures that
case reports are comprehensive and accurate; takes
initial statements from staff.
2. Prepares written investigative reports upon the
completion of the investigative process consisting of a
summary of actions taken, findings, preservations of
evidence and recommendation for corrective action
and/or case closure.
3. Maintains confidential files pertaining to cases
under investigation; ensures the security of all
pertinent information gathered during the investigatory
process.
4. Recommends revisions to investigatory procedures
and practices.
5. Serves as an expert witness and provides testimony
in criminal and administrative hearings related to the
conducting of or results of the investigation.
6. Performs other duties as required or assigned which
are reasonably within the scope of the duties
enumerated above.
In the fall of 2000, the OIG was organized as follows: The
State was divided into four geographical Bureaus: the north
43a
(Chicago), the metro (the area surrounding Chicago), the
central, and the south. Personnel statewide consisted of
approximately 31 ISI 2s, four to six team leaders, four Bureau
Chiefs, the Deputy Inspector General, and the Inspector
General, as well as various support personnel. ISI 2s reported
to a team leader, who reported to the appropriate Bureau
Chief, who reported to the Deputy Inspector General or to the
Inspector General.
Defendant, Odell Thompson (“Thompson”), became the
Inspector General of the DHS on July 1, 2000. On or about
November 27, 2000, Thompson received an emaii from five
employees in the OIG’s Southern Bureau, including
Wernsing, Bingaman, and Cannon. The email stated:
Several investigators in the Southern Bureau have
some concerns 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.
Thompson did not respond to the email. On November 30,
2000, Thompson received another email from the same five
employees in the Southern Bureau, which stated in relevant
part:
We contacted you on 11/27/03 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
44a
opportunity we will feel compelled to air our concerns
to the Secretary or those at the legislative level.
Again, Thompson did not respond to the request for a meeting
with the five signatories and made no inquiries into the basis
for the email.
The espoused concerns apparently stemmed from the fact
that Wernsing had heard that Thompson was going to appoint
Ron Fuentes (“Fuentes”) as Bureau Chief over the Southern
Bureau. Each of the signatories had worked with Fuentes
when he had previously served as Bureau Chief, and had
concerns about a backlog in cases and other acts of alleged
mismanagement that had developed during his tenure.
On or about December 5, 2000, Thompson sent a letter to
the five 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 admonition was repeated in a second communication that
was sent to all employees in the OIG in January 2001.
Wernsing understood these directives to mean that she
could not ta!k to anyone about anything to do with OIG. She
then asked her supervisor, Sandy Mott (“Mott”) if the
directives applied to conversations that she might have with
her union representative, an attorney, or her legislator. On
January 26, 2001, Mott sent an email to the Inspector
General’s Office relaying the question. Defendant Sydney
Roberts (“Roberts”), who was at that time Deputy Inspector
45a
General, responded with two email messages. The first read
“Your people really want to try me don’t they.” The second
email from Roberts stated:
No one in the OIG is represented by a Union that is in
any sort of contractual agreement with DHS. Thus we
don’t have to honor anything that their union
representative requests unless it is consistent with the
rights all employees are entitled to by state or federal
law. In other words, they follow the direction of their
union representative at their own peril.
With respect to the statements made to union
personnel, the courts have said that employers may
regulate the speech of certain employees in certain
circumstances. Thus, they should know the law on this
matter, before discussing OIG matters with outside
individuals.
(Italics in original.) On February 7, 2001, Mott emailed
Wernsing with the following response:
In answer to your question, Deputy I.G. Sydney
Roberts indicated to me that no one in the OIG is
represented by a Union that has a _ contractual
agreement with DHS. Thus, we don’t have to honor
anything that their union representative requests unless
it is consistent with the rights all employees are
entitled to by state or federal law. Further, with
respect to statements made to union personnel, the
courts have said that employer may regulate the
speech of certain employees in certain circumstances.
Thus, you should know the law on this matter before
discussing OIG matters with outside individuals.
46a
Thompson testified that there was nothing other than the
two emails from Wernsing, et al., that caused him to issue the
directives and that his concern was that he “didn’t want to be
sabotaged in some way or some manner” because he “just
didn’t know what their motives were.” He also admitted that
he didn’t make any effort to determine what the motives of the
five signatories to the emails were in suggesting
communications with the Secretary of DHS or legislators and
that the release of confidential information by OIG employees
and contacts with the press were already covered by both
statute and DHS rules. Thompson also indicated in a meeting
with Bingaman in Spring 2001 that he believed that contacting
a legislator about him would have been a violation of his
directives.
On August 3, 2001, Wernsing brought this suit alleging
that the above directives constitute a prior restraint on speech
that infringes on her First and Fourteenth Amendment rights,
as well as First Amendment retaliation. Bingaman and Cannon
were subsequently added as Plaintiffs. The parties have now
filed motions for summary judgment, which are fully briefed
and ready for resolution. This Order follows.
Standards for Summary Judgment
Summary judgment should be granted where “the
pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c). The moving party has the responsibility of
informing the Court of portions of the record or affidavits that
demonstrate the absence of a triable issue. Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct.
2548 (1986). The moving party may meet its burden of
47a
showing an absence of disputed material facts by
demonstrating “that there is an absence of evidence to support
the non-moving party’s case.” Jd. at 325. Any doubt as to
the existence of a genuine issue for trial is resolved against the
moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Cain v.
Lane, 857 F.2d 1139, 1142 (7th Cir. 1988).
If the moving party meets its burden, the non-moving
party then has the burden of presenting specific facts to show
that there is a genuine issue of material fact. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 89
L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Federal Rule of Civil
Procedure 56(e) requires the non-moving party to go beyond
the pleadings and produce evidence of a genuine issue for
trial. Celotex, 477 U.S. at 324. Nevertheless, this Court must
“view the record and all inferences drawn from it in the light
most favorable to the [non-moving party}].” Holland v.
Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1312.(7th Cir.
1989). Summary judgment will be denied where a reasonable
jury could return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L.
Ed. 2d 202, 106 S. Ct. 2505 (1986); Hedberg v. Indiana Bell
Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995).
Discussion
I. Prior Restraint
The Plaintiffs argue that Thompson’s December 2001 and
January 2002 directives constitute a prior restraint on speech,
as they prohibit all OIG staff from communicating about OIG
policies or operations to the Secretary of DHS, the press, or
any “external agent” without prior approval from Thompson.
Specifically, they contend that the directives restrict a certain
48a
type of speech, vest absolute discretion in the Inspector
General as the reviewing body by authorizing judgment about
the content of any proposed speech or other expressive
activity, place no constraints upon the review process, refer
to no appeals process, and present the likelihood of self-
censorship by eliminating the possibility of anonymous
speech.
Individuals do not forfeit their First Amendment rights
merely by virtue of the fact that they accept employment with
a governmental unit or agency. Pickering v. Board of
Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88S. Ct. 1731,
1734 (1968). However, it is equally well-settled that the
government “may impose restraints on the job-related speech
of public employees that would be plainly unconstitutional if
applied to the public at large.” United States v. NTEU, 513
U.S. 454, 130 L. Ed. 2d 964, 115 S. Ct. 1003, 1012 (1995).
In evaluating the constitutional propriety of a restraint on
government employee speech, courts must attempt to “arrive
at a balance between the interests of the [employee], as 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, 88 S. Ct. at 1734-35; Wainscott v.
Henry, 315 F.3d 844, 848 (7th Cir. 2003). Where a ban
“chills potential speech before it happens . . . the Government
must show that the interests of both potential audiences and a
vast group of present and future employees in a broad range
of present and future expression are outweighed by that
expression’s ‘necessary impact on the actual operation’ of the
Government.” NTEU, 115 S. Ct. at 1014.
Plaintiffs contend that Thompson’s directives operate as a
prior restraint on speech. It is well-established that “any prior
restraint on expression comes to this Court with a ‘heavy
49a
presumption’ against its constitutional validity.” CBS v.
Davis, 510 U.S. 1315, 127 L. Ed. 2d 358, 114 S. Ct. 912,
914 (1994). While the presumption against prior restraints “is
by no means absolute, the gagging of publication has been
considered acceptable only in ‘exceptional cases.’” Jd. , citing
Near v. Minnesota, 283 U.S. 697, 75 L. Ed. 1357, 51 S. Ct.
625, 631 (1931). As the Supreme Court recognized in Davis:
Even where questions of allegedly urgent national
security, or competing constitutional interests, are
concerned, we have imposed this “most extraordinary
remedy” only where the evil that would result from
the reportage is both great and certain and cannot be
militated by less intrusive measures.
114 S. Ct. at 914. The elements of a prior restraint are:
(1) the speaker must apply to the decisionmaker before
engaging in the proposed communication; (2) the
decisionmaker is empowered to determine whether the
applicant should be granted permission based on
his/her review of the proposed content of the
communication; (3) approval of the request requires
affirmative action by the decisionmaker; and (4)
approval is not a matter of routine, but involves the
“appraisal of facts, the exercise of judgment, and the
formation of an opinion” by the decisionmaker.
Crue v. Aiken, 204 F. Supp. 2d 1130, 1137 (C.D.IIl. 2002),
citing Southeastern Promotions, Ltd. v. Conrad, 420 U.S.
546, 554, 43 L. Ed. 2d 448, 95 S. Ct. 1239 (1975).
Here, the directives on their face ban all speech on OIG
policies aj’ operations without prior permission from
Thompson, which is at least to some degree content-based. It
50a
also seems clear that the directive “chills potential speech
instead of merely punishing actual speech already
communicated” and imposes a “bianket policy designed to
restrict expression by a large number of potential speakers.”
Milwaukee Police Assn. v. Jones, 192 F.3d 742, 750 (7th Cir.
1998); Harman v. City of New York, 140 F.3d 111, 118 (2nd
Cir. 1998). Thus, they would appear to operate as prior
restraints even under the Seventh Circuit’s most recent
pronouncements in MacDonald v. City of Chicago, 243 F.3d
1021, 1032-36 (7th Cir. 2001, and Thomas v. Chicago Park
District, 227 F.3d 921 (7th Cir. 2000), as the directives on
their face reduce certain categories of speech, vest more than
considerable discretion in Thompson as the reviewing body,
place no time constraints upon the review process that prevent
the proposed commentary from becoming moot by delay,
refer to no appeals process, and present the likelihood of self-
censorship by eliminating the possibility of anonymous speech
that may discourage potential speakers from coming forward.
Under the guidance of these cases, the Court finds that
Thompson’s directives trigger the NTEU standard.
Milwaukee Police Assn., 192 F.3d at 749-50.”
The first step in applying this standard is to determine
whether the speech at issue is a matter of public concern, for
? Defendants cite Messman v. Helmke, 133 F.3d 1042, 1047 (7th
Cir. 1998), for the proposition that the high level of scrutiny
employed in NTEU is not applicable to lesser restrictions on speech
or association. While the Court agrees with this assertion in
principle, it is inapposite here as the restriction in this case is a
blanket restriction on speech applicable to all OIG staff, is not
closely related to the legitimate harms that Thompson purportedly
sought to avoid, operates to cut off many, if not all, venues for
employees to voice their concerns and is therefore materially
distinguishable from the lesser restriction in Messman.
Sla
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 managiig their offices, without intrusive oversight
by the judiciary in the name of the First Amendment.
Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S.
Ct. 1684 (1983). In determining whether the speech is a
matter of public concern, the content, form, context, and
motivation of the speech must be considered, with content
being tle most important factor. Horwitz v. Board of
Education of Avoca School District No. 37, 260 F.3d 602,
618 (7th Cir. 2001), citing Button v. Kibby-Brown, 146 F.3d
526, 529 (7th Cir. 1998); Connick, 461 U.S. 138, 103 S. Ct.
1690.
Here, the facial content of Plaintiffs’ emails is essentially
undisputed, as the emails in question are of record. On their
face, the text of the emails express the writers’ desire to
communicate unspecified concerns over who they thought was
going to be appointed as the Bureau Chief for the Southern
Bureau and stress that the concerns are “very important” and
“serious” without further elaboration. Wernsing and the other
signatories have testified that their concerns were based on
their knowledge of Fuentes’ poor performance during his
prior tenure as Bureau Chief. Specifically, they feared that
Fuentes’ appointment would result in a return to a substantial
case backlog (such as one that caused over a year’s delay in
the investigation of a death) and missing confidential files
(which were subsequently found in the trunk of his car) that
occurred during Fuentes’ previous appointment.
Thompson contends that this case is analogous to Taylor
v. Carmouche, 214 F.3d 788 (7th Cir. 2000), in which the
Court of Appeals found criticism of an appointed supervisor
to be a purely personal concern as employees and therefore
52a
unprotected. In Taylor, a lawyer and secretary deemed the
newly appointed city attorney a “racist” and complained that
she was a stern taskmaster, condescending, insensitive, and
touchy. /d. at 790-91. These are clearly personal complaints
going to the plaintiffs’ relationship with the new city attorney
as employees rather than any concern by them as citizens to
prevent official misconduct. Such is not the case here, where
there was a prior restraint on speech, and the speech involved
an effort by employees to bring to light claims of actual
mismanagement and gross negligence in the conduct of OIG
- business by Fuentes, which had placed the recipients of DHS
services in physical danger during his tenure due to seriously
delayed investigations. This is not merely speech on internal
personnel matters, but rather addresses a more far reaching
issue of public concern. Although the emails were vague and
lacking in specific details, the text of the emails can
reasonably be read to support Plaintiffs’ asserted public
purpose in speaking, as well as the contention that their
complaints were motivated by considerations of public safety
and the welfare of the mentally ill and developmentally
disabled persons receiving DHS services who did not receive
adequate protection during Fuentes’ alleged mismanagement
of the Southern Bureau.
Additionally, Wernsing has stated that the directives have
chilled her from several specific types of speech, namely: (1)
responding to inquiries about OIG policies from persons
working at community facilities; (2) commenting publicly on
recent changes to Administrative Rule 50, which governs
investigations of alleged abuse or neglect in state-operated
facilities; and (3) commenting on the fact that the OIG was
going to delegate investigations of serious injuries at
community health centers to the facilities themselves.
Thompson argues that this assertion contradicts her deposition
testimony, in which she responded to a question about who
53a
she wanted to speak to by stating “there wasn’t anything ar
that point except for my union rep with my grievance.”
(Emphasis added.) In this respect, Wernsing is now clarifying
that while there wasn’t initially other communication that she
had in mind, she was chilled from speaking out on other
topics that arose as time went on under Thompson’s tenure.
For example, Wernsing inquired about talking to her union
representative in January 2001, while the record indicates that
Thompson issued a document containing the changes to
Administrative Rule 50 in May 2002. Accordingly, the Court
disagrees that the assertions contained in Wernsing’s affidavit
were inconsistent with her deposition testimony.
This would qualify as speech on a matter of public
concern, because an “employee’s ability to highlight . . .
breaches of public trust is a critical weapon in the fight against
governmental corruption and inefficiency.” Wainscott, 315
F.3d at 849. Defendants do not make any real effort to argue
otherwise, making only the casual comment that no message
of public concern was actually conveyed in the emails.
However, this misses the point, because it ignores the context
of the communications. The essence of a prior restraint is that
it preempts or chills communications that have not yet
happened, such as the comments that Plaintiffs desired to
make to the DHS Secretary or their legislators after
Thompson declined to give them an audience.
Having found the speech to be of public concern, the
Court must next “balance the interest of the public employee,
as a citizen, in commenting upon matters of public concern
with the interest of the State, as an employer, in promoting
effective and efficient public service.” Pickering, 391 U.S.
at 571. Defendants bear the burden of demonstrating that its
interests outweigh not only the interests of the Plaintiffs in
speaking, but also the interests of both potential audiences and
54a
a vast group of present and future employees in a broad range
of present and future expression.
Plaintiffs argue that the balance of interests weighs against
Thompson’s directives, as “the general public and the
legislature . . . have a strong interest ip hearing from OIG
employees regarding the failures of the OiG to faithfully carry
out its duty to see that the most vulnerabie among us are not
abused.” Plaintiffs clearly have an interest in exposing
mismanagement or poor performance by the individuals
charged with investigating and protecting the rights of the
mentally or physically disabled, and the public has a
substantial interest in receiving this type of information. The
question then becomes what interests Thompson was
attempting to serve by imposing the restriction on their
speech.
It is not difficult to see that the OIG would have a
substantial interest in protecting the confidentiality of its
investigations. However, the confidentiality of these
investigations is already mandated by Illinois statute (e.g. , 740
ILCS 110/1 et seq.) and other OIG policies. “Where the
government singles out expressive activity for special
regulation to address anticipated hartns, the government must
‘demonstrate that the recited harms are real, not merely
conjectural, and that the regulation will in fact alleviate these
harms in a direct and material way.” Harman, 140 F.3d at
121. This point is well taken, as there has been no evidence
of harm to date, such as incidents in which employees have
previously released confidential information from OIG
investigations. Nor has there ever veen evidence that
employees were likely going to release confidential
information from their investigations.
55a
Moreover, neither the directives implemented in this case
nor the clarifying statements that were subsequently made to
the Plaintiffs are remotely tailored to serve the asserted
interest in a direct or material way and are overbroad in that
they go far beyond any legitimate interest Thompson may
have had in assuring the confidentiality of OIG investigations.
On their face, the directives bar all communications regarding
OIG policies or operations to any “external agent”, which
Thompson subsequently defined as any individual who was
not privy to information relating to an ongoing or closed
investigation. Moreover, the facially unrestricted scope of the
directives actually purports to limit even communications that
are expressly protected by other Illinois statutes, specifically
the disclosure of mismanagement, abuse of authority, criminal
misconduct, and other similar communications that are
protected by the Whistleblower Protection Act and Personnel
Code.
Thompson conceded in his deposition that he made no
attempt to find out what the concerns of the Plaintiffs and the
other signatories to the email were prior to issuing the
directive. He further stated that he really had no idea where
they were coming from or what they wanted to talk about.
There is nothing in the record to suggest that Thompson had
any reason to believe that Plaintiffs’ proposed communications
had anything to do with confidential information from OIG
investigations. Despite Thompson’s best efforts to
recharacterize the scope of the directives in his summary
judgment briefs, he has yet to articulate what real and
nonconjectural harms he was trying to prevent by suppressing
speech and further admitted that his rationale for issuing the
directives was that he was new to the position, knew about
litigation that had been going on regarding another
appointment in the OIG, and “didn’t want to be sabotaged in
some way or some manner” because he “just didn’t know
56a
what their motives were.” Thompson has also indicated that,
in his opinion, an employee contacting a legislator about him
would violate the directive, which suggests that his motive
was not assuring that OIG investigations remain confidential
as required by Illinois statute.
Thus, the only asserted rationale for implementing the
directives that a reasonable jury could find to be supported by
the record was Thompson’s personal concern to avoid being
“sabotaged”, rather than any purported interest in improving
the efficient provision of public services or protecting the
confidentiality of the investigative process. Such a concern is
clearly outweighed by Plaintiff's interest in speaking out on a
matter involving alleged administrative incompetence that
could uitimately implicate the public safety. Thompson has
simply failed to carry his burden of demonstrating that the
interests of both potential audiences and a vast group of
present and future employees in a broad range of present and
future expression are outweighed by any ‘necessary impact on
the actual operation’ of the Government that Plaintiffs’
proposed speech may have had. Plaintiffs’ speech was
therefore entitled to constitutional protection.
Thompson argues that he is protected by the so-called
“policymaker” exception set forth in Elrod v. Burns, 427
U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976), based on
the contention that Plaintiffs were policymakers or
confidential employees, and cites precedent to the effect that
a public employer may discharge a policymaking or
confidential employee who publicly takes a_ position
inconsistent with that of his employer. However, as the Court
previously stated at the motion to dismiss stage of this
litigation, the precedent cited involves disciplinary action
taken after the speech in question had occurred and does not
establish that the “policymaker” exception (even assuming its
57a
applicability in this case) applies in the same manner to cases
involving prior restraints on speech, where preclearance
requirements may have a broad inhibiting effect on all
employees by causing “self-censorship by speakers in order
to avoid being denied a license to speak.” City of Lakewood
v. Plain Dealer Pub. Co., 486 U.S. 750, 759, 100 L. Ed. 2d
771, 108 S. Ct. 2138 (1988).
Whether the “policymaker/confidential employee”
exception is applicable in the context of a prior restraint on
speech appears to be an issue of first impression.
Nevertheless, even assuming arguendo that the exception can
be extended to apply under the facts of this case, and making
the highly improbable assumption that Plaintiffs are in fact
“confidential employees” or “policymakers” within the
meaning of the exception,’ Thompson has shown only that
Plaintiffs had access to confidential files, had a preexisting
duty to maintain the confidentiality of their investigations
pursuant to statute and DHS regulations, and that Thompson
was afraid that they might sabotage him by breaching
confidence. The record reveals no legitimate basis for his
presumption that their speech involved the OIG’s confidential
investigations, would constitute a breach of confidentiality, or
amounted to interference from disloyal employees.
Furthermore, it is well-settled in this circuit that an
employee’s access to confidential information and an
employer’s fear that the employee will possibly breach
confidence is insufficient to satisfy the policymaker exception
as a matter of law. Matlock v. Barnes, 932 F.2d 658, 663
(7th Cir. 1991), citing Meeks v. Grimes, 779 F.2d 417, 421
(7th Cir. 1985). Thompson has therefore failed to meet his
* See Thornburg v. Peters, 155 F. Supp. 2d 984 (C.D.Ill. 2001).
58a
burden of justifying the restriction pursuant to the
policymaker exception.
Il. Retaliation
Thompson also moves for summary judgment on
Plaintiffs’ § 1983 retaliation claim. Section 1983 creates a
federal cause of action for the “deprivation, under color of
[state] law, of a citizen’s rights, privileges, or immunities
secured by the Constitution and the laws of the United
States.” Livadas v. Bradshaw, 512 U.S. 197, 132, 129 L.
Ed. 2d 93, 114 S. Ct. 2068 (1994). It is not itself a source of
substantive rights; instead it is a means for vindicating federal
rights conferred elsewhere. Baker v. McCollan, 443 U.S.
137, 144 n.3, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979). The
initial step in any § 1983 analysis is to identify the specific
constitutional right which was allegedly violated. Graham v.
Connor, 490 U.S. 386, 394, 104 L. Ed. 2d 443, 109 S. Ct.
1865 (1989). Here, Plaintiffs claim that they were retaliated
against for having exercised their First Amendment rights by
sending the emails to Thcmpson.
“It is well established that ‘an act taken in retaliation for
the exercise of a constitutionally protected right violates the
Constitution.’” Abrams v. Walker, 307 F.3d 650, 654 (7th
Cir. 2002), citing DeWalt v. Carter, 224 F.3d 607, 618 (7th
Cir. 2000). In order to establish a prima facie case of First
Amendment retaliation, a plaintiff must establish that: (1) his
or her conduct was constitutionally protected, and (2) that his
or her conduct was a “substantial factor” or “motivating
factor” in the defendant’s challenged actions. /d. The Seventh
Circuit has further held “that even if a defendant was
‘brimming over with unconstitutional wrath’ against a § 1983
plaintiff, that plaintiff cannot prevail unless he or she
establishes that the challenged action would not have occurred
59a
‘but for’ the constitutionally protected conduct.” /d., citing
Button v. Harden, 814 F.2d 382, 383 (7th Cir. 1987). If the
plaintiff can make this showing, the burden then shifts to the
defendant to show that he wo :d have taken the same actions
even absent the protected conduct. Id.
Here, Plaintiffs allege acts of retaliation including not only
the prior restraint of their speech contained in the directives,
but also: (1) an incident vhen Thompson yelled at Wernsing
and threatened her with termination after she inquired about
the definition of “external agent” contained in the directives;
(2) Thompson’s denial of overtime pay and mileage to
Wernsing and Bingaman after the requests had been approved
by their immediate supervisor and the Bureau Chief; (3)
Wernsing was warned by the Bureau Chief to watch out
because Thompson was watching everything that she did; (4)
the downgrading of Wernsing and Bingaman’s annual
performance evaluations following the emails; (5) the
introduction of false and misleading evidence at Bingaman’s
grievance hearing; (6) the Jenial of Bingaman’s application
for the position of Southern Bureau Chief; (7) the denial of
appropriate/customary travel and lodging expenses for both
Wernsing and Bingaman on different occasions; and (8)
Thompson’s denial of an approved salary differential for the
time when Bingaman served as acting Investigative Team
Leader.
The Court has previously found that Plaintiffs’ attempt to
communicate with Thompson on matters going to the
competency and efficiency of the OIG and revealing past
instances of mismanagement that arguably impacted public
safety were matters of public concern and that Plaintiffs’
interest in communicating this information outweighed any
legitimate interest Thompson may have had in preventing the
communication, as he made no effort to determine the nature
60a
of Plaintiffs’ speech before implementing fatally overbroad
directives that were not materially related to the subject of the
proposed speech. Thus, the Court has found that Plaintiffs’
speech was entitled to constituti protection. When the
record is viewed in the light most favoqable to Plaintiffs as the
non-moving pasties, as the Court mu Swat this stage of the
litigation, they have demonstrated for pu of this motion
that their speech was a substantial or nfOtivating factor in
Thompson's issuance of the directives, as Thompson admitted
in his deposition that there was nothing other than Plaintiffs
emails that caused him to draft and sent out his directives.
They have also met their burden of showing a qualitative
change in the terms and conditions of their employment for
purposes of resolving this Motion. See Johnson v. Cambridge
Industries, Inc., 325 F.3d 892, 901 (7th Cir. 2003).
Accordingly, the burden shifts to Thompson to establish
that he would have taken the same actions but for Plaintiffs’
speech. In this respect, the Court finds a genuine issue of
material fact that remains for trial. While Thompson has
introduced evidence suggesting that his actions were
motivated by other considerations, Plaintiffs’ have introduced
the testimony of Mott that Thompson called her in response to
Plaintiffs’ emails and threatened consequences if the
Signatories contacted any legislators and remarked that he
“could play that game.” Mott also testified that Thompson
expressed his anger at Wernsing to her, yelling, “What is it
with you people; I’m tired of these games; I am angry.” Mott
indicated that after she had completed evaluations for
Wernsing and Bingaman following their emails to Thompson,
Thompson changed the policy on evaluations so that he could
play a more active role and implemented criteria that required
her to downgrade Plaintiffs in part for their role in sending the
emails. After Mott served as Bingaman’s technical advisor at
his grievance hearing, she was suspended even though she
6la
was under a subpoena to appear at the hearing. Mott further
testified that Bingaman was the only acting investigative team
leader who was not promoted to Bureau Chief but was
actually demoted to an investigator’s position, and she was
informed by the DHS personnel director that she was
appointed to Southern Bureau Chief in order to deny the
position to Bingaman. A reasonable jury could find that
Mott’s testimony links Thompson’s alleged retaliatory acts to
Plaintiffs’ speech, providing a sufficient nexus between the
protected activity and Thompson's actions to survive summary
judgment.
There are other examples of evidence in the record on
both sides of this question. However, the Court need not
address every possible example, as it is clear that there is a
genuine issue of material fact requiring resolution by a jury
and precluding the entry of summary judgment in favor of
Thompson on Plaintiffs’ retaliation claim.
III. Qualified Immunity
Thompson also argues that he is entitled to qualified
immunity. In Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed.
2d 396, 102 S. Ct. 2727 (1982), the United States Supreme
Court enunciated the “modern standard to be applied in
qualified immunity cases.” Auriemma v. Rice, 895 F.2d 338,
341 (7th Cir. 1990). The Court stated:
Governmental officials performing discretionary
functions generally are shielded from liability for civil
damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known.
62a
Harlow, 457 U.S. at 818. The test for qualified immunity is
“whether the law was clear in relation to the specific facts
confronting the public official when [he or she] acted.”
Green v. Carlson, 826 F.2d 647, 649 (7th Cir. 1987). In
deciding whether a defendant will enjoy qualified immunity,
courts must determine: “(1) whether the plaintiff has asserted
a violation of a federal right, and (2) whether the
constitutional standards implicated were clearly established at
the time in question.” Eversole v. Steele, 59 F.3d 710, 717
(7th Cir. 1995), citing Kernats v. O'Sullivan, 35 F.3d 1171,
1176 (7th Cir. 1994). The first issue is a threshold one. If the
plaintiff fails to state a violation of a federal right, then the
piaintiff’s claim fails altogether and the court need not go on
to decide whether the law was clearly established at the time
of the offense. See Marshall v. Allen, 984 F.2d 787, 793 (7th
Cir. 1993); Zorzi v. County of Putnam, 30 F.3d 885, 892
(7th Cir. 1994); Eversole, 59 F.3d at 717. In outlining the
approach a court must take in addressing qualified immunity,
the Seventh Circuit has advised:
Once the defendant’s actions are defined or
characterized according to the specific facts of the case
this characterization is compared to the body of law
existing at the time of the alleged violation to
determine if constitutional, statutory, or case law
shows that the now specifically defined actions
violated the clearly established law.
Landstrom v. Ill. Dept. of Children & Family Serv. , 892 F.2d
670, 675 (7th Cir. 1990), quoting Rakovich v. Wade, 850
F.2d 1180, 1209 (7th Cir. 1988) (en banc), cert. denied, 109
S. Ct. 497, 488 U.S. 968, 102 L. Ed. 2d 534 (1989).
Based on the record before the Court, Plaintiffs have
established that Thompson’s directives operated as a prior
63a
restraint in violation of their First Amendment right to
freedom of speech and have survived summary judgment on
their retaliation claim. The question then becomes whether
their right to be free from such a restriction was clearly
established on December 5, 2000, when the first directive was
issued. The Court notes that long before Thompson issued his
directive, the Supreme Court had held that “any prior restraint
on expression comes to this Court with a ‘heavy presumption’
against its constitutional validity.” Davis, 114 S. Ct. at 914;
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225, 107 L.
Ed. 2d 603, 110 S. Ct. 596 (1990). In fact, it was equally
well-established that prior restraints, often referred to as a
“most extraordinary remedy”, have been upheld “only where
the evil that would result from the reportage is both great and
certain and cannot be militated by less intrusive measures.”
Davis, 114 S. Ct. at 914.
More specifically on the issue of First Amendment
retaliation, the Seventh Circuit has held:
It was . . . clear in June 1996 that government
employees had a First Amendment right to speak on
matters of public concern that must be weighed against
the employer's right to punish insubordination. [The
employer] cannot claim not to have known that
disciplining [the employee] under these circumstances
would not implicate her right to free speech.
Myers v. Hasara, 226 F ~+ °?1, 829 (7th Cir. 2000). Thus,
it was clearly establish ! prior to December 2000 that if
Plaintiffs wanted to speas. on a matter of public concern, and
their interests in doing so outweighed any of Thompson’s
legitirnate interests, precluding their speech without
substantial justification and retaliating against them for that
speech would be illegal.
64a
Thompson has made no showing that the proposed speech ~
presented a likelihood of imminent lawless action or that the
speech would have materially and substantially interfered with
the requirements of appropriate discipline in the operation of
the OIG. To the contrary, all that has been demonstrated is
Thempson’s subjective belief that the proposed speech might
be an attempt to. somehow sabotage his appointment. This is
plainly insufficient to justify the broad prior restraint on
speech imposed by the directives under the precedent cited
above, and it should have been apparent to a reasonable
official that attempting to enforce the directives against
Plaintiffs or other OIG employees would violate their
constitutional rights.
Thompson suggests that Plaintiffs must cite to cases with
very similar facis in order to overcome qualified immunity
and note a lack of authoritative cases finding similar conduct
to be uniawful in factually similar circumstances. However,
this is a somewhat inaccurate articulation of how qualified
immunity operates. In Hope v. Pelzer, 536 U.S. 730, 153 L.
Ed. 2d 666, 122 S. Ct. 2508, 2515 (2002), the Supreme Court
stated:
For a constitutional right to be clearly established, its
contours “must be sufficiently clear that a reasonable
official would understand that what he is doing
violates that right. This is not to say that an official
action is protected by qualified immunity unless the
very action in question has previously been held
unlawful... .
The Court went on to note that a “fundamentally similar” or
“materially similar” factual situation is not required in order
for a right to have been “clearly established”; rather, the state
of the law must only be such as to give a defendant
65a
“reasonable” and “fair” warning that his conduct would
deprive an individual of a constitutional right. Jd. The Court
further cited to its 1997 decision in United States v. Lanier,
520 U.S. 259, 270-71, 137 L. Ed. 2d 432, 117 S. Ct. 1219
(1997), in noting that “general statements of the law are not
inherently incapable of giving fair and clear warning” and “a
general constitutional rule already identified in the decisional
law may apply with obvious clarity to the specific conduct in
question, even though ‘the very action in question has [not]
previously been held unlawful.’” In other words, although the
unlawfulness of the conduct in question must be apparent in
the light of preexisting law, there is in fact no requirement
that a plaintiff cite to cases with “very similar” facts, as
suggested by Thompson, and an “officials can still be on
notice that their conduct violates establ:. hed law even in novel
factual circumstances.” Hope, 122 S. Ct. at 2516.
As the above-cited case law was in existence prior to
December 2000 and was sufficien' to give Thompson fair
warning that his prior restraint of Plaintiffs’ speech was
unconstitutional, the Court finds that Thompson’s issuance of
the directives violated clearly established statutory or
constitutional rights of which a reasonable person would have
known and is therefore not exempt from suit under the
doctrine of qualified immunity. Likewise, as it has been
clearly established since 1996 that retaliation for the exercise
of First Amendment rights would be unlawful, and Plaintiffs
have raised a genuine issue of material fact re~ «iring
resolution by a jury as to whether Thompson acted in
_ retaliation for their speech, Defendant Thompson is not
entitled to qualified immunity on this claim as well.
66a
IV. Continuing Violation
Defendants argue that Plaintiffs have made no attempt to
establish that they are being subjected to a continuing
violation of federal law, as the directives were issued by
Thompson, and he is no longer the Inspector General. In
Friends of the Earth, Inc. v. Laidlaw Environmental Services,
Inc., 528 U.S. 167, 189, 145 L. Ed. 2d 610, 120 S. Ct. 693
(2000), the Supreme Court held that voluntary cessation of
allegedly illegal conduct does not render a case moot unless
the defendant can demonstrate that it is “absolutely clear that
the allegedly wrongful behavior could not reasonably be
expected to occur.” The rationale for this is that in the
absence of such a rule, a defendant could voluntarily cease the
challenged conduct in order to moot the lawsuit, and then
immediately “return to his old ways” once the coast was
clear. United States v. W.T. Grant Co., 345 U.S. 629, 632,
97 L. Ed. 1303, 73 S. Cx BOE TSS) Defendants bear a
heavy burden in making this showing that the matter is moot.
Id. at 633.
Defendants have now submitted the sworn affidavit of
Roberts, who succeeded Thompson as the Inspector General
in February 2003. In her affidavit, Roberts states:
Confidential issues relating to the Office of the
Inspector General are covered by statutes and the
Illinois Administrative Code. The employee handbook
promulgated by the Department of Human Services of
the State of Illinois coniains provisions relating to
media contacts and legislative inquiries. Affiant has
not issued any directives dealing with the issue of
confidentiality of agency operations. I am familiar
with the allegations contained in the matter entitled
Wernsing v. Thompson, No. 01-3237 (USDC
67a
C.D.Ill.). I have reviewed the letter sent by Odell
Thompson to the plaintiffs and I have reviewed the
January 2001 newsletter which is at issue in the case.
I have sent no letters or newsletters to any employee
of DHS which contains the language which is at issue
in that case, and I have taken no action as to any
employee based on the newsletter. I do not consider
the above referenced letter and newsletter to be the
- official policy of the Office of the Inspector General.
(Roberts Affidavit, PP3-6.) Although this is not the clearest
disavowal of the continued viability of Thompson’s directives,
the Court does find Roberts’ uncontroverted affidavit
marginally adequate to establish that she does not consider the
directives to be in force under her tenure as Inspector General
and that there is not a substantial likelihood of future
enforcement or reinstatement of Thompson’s directives. As
Defendants have sufficiently demonstrated that the policy
from which Plaintiffs sought relief no longer exists and that
the illegal prior restraint of speech at issue in this case cannot
reasonably be expected to reoccur, the claim for injunctive
relief is effectively moot, as there is no need to enjoin
prospective action that would violate federal law. The
exception of Ex Parte Young, therefore, does not apply to lift
the bar of sovereign immunity otherwise imposed by the
Eleventh Amendment against claims that are effectively
against the State of Illinois, and Defendants are entitled to
judgment in their favor on this aspect of Plaintiffs’ Complaint.
As Roberts was only named as a Defendant for purposes of
injunctive relief, she is no longér a necessary party to this
litigation and is hereby dismissed.
68a
Conclusion
For the reasons set forth above, the Motions for Partial
Summary Judgment [# 36 & # 41] by Wernsing, Bingaman,
and Cannon are GRANTED in that the Court finds as a matter
of law that their speech was entitled to constitutional
protection and that Thompson’s directives operated as an
unlawful prior restraint. Defendants’ Motion for Summary
Judgment [# 43] is GRANTED IN PART and DENIED IN
PART. Defendant Roberts is hereby TERMINATED as a
party in this matter. The final pretrial conference remains set
as previously scheduled for 11:00 a.m. on October 30, 2003,
in person in Peoria.
ENTERED this 9th day of October, 2003.
Michael M. Mihm
United States District Judge
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.