U.S. Supreme Court Hears Oral Arguments in Employee Speech Appeal

 WASHINGTON, D.C. — (Mealey’s) An employee’s testimony before a federal grand jury was protected under the First Amendment to the U.S. Constitution because he spoke as a citizen on a matter of public concern not pursuant to his job responsibilities, and that protection was well known at the time, the employee’s attorney argued before the U.S. Supreme Court on April 28 (Edward R. Lane v. Steve Franks, et al., No. 13-483, U.S. Sup.; See February 2014, Page 21) [lexis.com subscribers may access Supreme Court briefs for this case].

“In Ashcroft v. al-Kidd, [131 S. Ct. 2074, 2086 (2011)] [an enhanced version of this opinion is available to lexis.com subscribers], this court articulated the standard for qualified immunity as either there’s controlling precedent in the jurisdiction or there is a consensus of persuasive authorities.  And we’ve cited a couple of cases decided after Garcetti [v. Ceballos (547 U.S. 410 [2006])] [enhanced version]

 from other circuits holding that public employee speech was protected.  I don’t want that to obscure the fact that before Garcetti, there were many, many more cases.  There was an overwhelming consensus in the circuits that this type of testimony was protected,” Tejinder Singh of Goldstein & Russell in Washington argued on behalf of the employee.

Arguing on behalf of the United States as amicus curiae, Principal Deputy Solicitor General Ian H. Gershengorn of Washington told the court that “when government employees testify, they sometimes speak as citizens and they sometimes speak as employees.  We agree that petitioner here spoke as a citizen when he testified, but we disagree with the suggestion of some of the amici that government employees always speak as citizens.”

1st Amendment Violation

In September 2006, Edward Lane accepted a probationary position as director of Central Alabama Community College’s (CACC) Community Intensive Training for Youth Program (CITY), a program for at-risk youth.  Shortly after taking over, Lane audited CITY’s finances and discovered that then-state Rep. Suzanne Schmitz was listed on CITY’s payroll but was not reporting for work and had not otherwise performed any work for the program.

When Lane raised his concerns, he was warned by CACC’s then-president and CACC’s lawyer that terminating Schmitz’s employment could have negative repercussions for Lane and CACC.  Despite those warnings, Lane terminated Schmitz’s employment with CITY after Schmitz refused to report to work.

Schmitz filed a lawsuit seeking to get her job back.  Schmitz also told another CITY employee that she planned to “get [Lane] back” for terminating her.

FBI Investigation

Soon after Schmitz’s firing, the FBI began investigating Schmitz and contacted Lane for information.  Lane testified before a federal grand jury and — pursuant to a subpoena — testified at Schmitz’s August 2008 federal criminal trial for mail fraud and fraud involving a program receiving federal funds.

Lane testified that Schmitz had not reported to work and had not submitted time sheets.  Lane described a couple of telephone conversations he had with Schmitz during which Lane said Schmitz told him that she had gotten the job through her connections with the executive secretary of the Alabama Education Association.  Lane also said he instructed Schmitz to begin reporting daily to CITY’s Huntsville, Ala., office.  Schmitz refused.

Lane testified to these facts again at Schmitz’s second criminal trial in February 2009.

Layoffs Discussed

In late 2008, as a result of substantial budget cuts, Lane and Steve Franks, president of CACC, began discussing the possibility of employee layoffs, including laying off all probationary employees.

In January 2009, Franks sent termination letters to 29 CITY employees with less than three years of service, which included Lane.  A few days later, however, Franks rescinded nearly all of those terminations.  Lane was one of only two employees whose termination was not rescinded.  Franks claimed that he rescinded the other terminations after discovering that many of the CITY employees were not, in fact, probationary.

Lane then sued Franks, in both his official and individual capacities, alleging that Franks terminated him in retaliation for testifying against Schmitz.  Lane alleged in his complaint, filed in the U.S. District Court for the Northern District of Alabama, that his termination violated the First Amendment.

The District Court granted Franks’ motion for summary judgment, opining that Lane’s speech was made pursuant to his official duties as CITY’s director, not as a citizen on a matter of public concern.  Lane appealed.

Speech Not Protected

The 11th Circuit U.S. Court of Appeals affirmed.  “No one disputes that Lane was acting pursuant to his official duties as CITY’s Director when he investigated Schmitz’s work activities, spoke with Schmitz and other CACC officials about Schmitz’s employment, and ultimately terminated Schmitz’s employment.  That Lane testified about his official activities pursuant to a subpoena and in the litigation context, in and of itself, does not bring Lane’s speech within the protection of the First Amendment.  Furthermore, because formal job descriptions do not control, that Lane’s official duties did not distinctly require him to testify at criminal trials falls short of triggering First Amendment protection,” the panel held.

Lane petitioned the U.S. Supreme Court on Oct. 15, 2013.  The petition was granted Jan. 17.  Susan Burrow was added to the case as a respondent after the petition was granted because she has assumed the position which Franks formerly held.

President’s Response

Attorney General Luther J. Strange III of Montgomery, Ala., presenting oral arguments on Burrow’s behalf, argued that Lane was entitled to First Amendment protection and that Franks was entitled to qualified immunity. 

He told the justices that the fundamental test is “[w]hether the employee’s job duties encompassed the speech in question.  That’s not an exact test, but it’s a test that certainly in our view protects Mr. Lane in this situation.  He was a director of a program for at-risk youth.  He wasn’t anticipated or expected to testify in any forum.  Certainly he is knowledgeable about his job and what happened there.  He was a valuable witness in this case.”  However, he argued, Franks is immune from the claims based on the 11th Circuit precedent at the time.

Mark T. Waggoner of Hand Arendall in Birmingham, Ala., representing Franks, also argued for qualified immunity for his client.  In addition, he claimed that Lane’s speech was not protected.  “[U]nder the citizen analog test or inquiry that the Court began to articulate in Garcetti, if the testimony is factual, based solely on the job duties, as it was here, inseparable from the job duties, and it is information that a citizen would not know, that only the testifier would know, then that is not protected speech under Garcetti,” he argued.

Counsel

Singh and Thomas C. Goldstein of Goldstein & Russell in Washington represent Lane. 

Strange and Solicitor General Andrew L. Brasher of Montgomery, Ala., represent Burrow.  Waggoner of Hand Arendall in Birmingham, Ala., represents Franks.

Floyd Abrams of Cahill, Gordon & Reindel in New York filed an amicus brief on behalf of the First Amendment Coalition.  Lisa S. Blatt of Arnold & Porter in Washington filed an amicus brief on behalf of the American Civil Liberties Union and the American Civil Liberties Union of Alabama.  David A. Cortman of Alliance Defending Freedom in Lawrenceville, Ga., represents Alliance Defending Freedom.

Matthew J. Delude of Primmer, Piper, Eggleston & Cramer in Manchester, N.H., filed an amicus brief on behalf of The International Municipal Lawyers Association and the International Public Management Association for Human Resources.  Gershengorn and Solicitor General Donald B. Verrilli Jr. of Washington filed an amicus brief on behalf of the United States.

Matthew J. Ginsburg of Washington filed an amicus brief on behalf of the American Federation of Labor and Congress of Industrial Organizations.  Stephen M. Kohn of Kohn, Kohn & Colapinto in Washington filed an amicus brief on behalf of the National Whistleblower Center.  J. Michael McGuinness of The McGuinness Law Firm in Elizabethtown, N.C., filed an amicus brief on behalf of The National Association of Police Organizations.

Alice M. O’Brien of National Education Association in Washington filed an amicus brief on behalf of National Education Association, Service Employees International Union and American Federal of State, County and Municipal Employees, AFL-CIO.  Andrew J. Pincus of Mayer Brown in Washington filed an amicus brief on behalf of Government Accountability Project.  Paul M. Secunda of Bayside, Wis., filed an amicus brief on behalf of law professors. 

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