Yesterday, the Eleventh Circuit’s unpublished decision in Lane v. Franks, 523 F. App’x 709 (11th Cir. 2013) (per curiam), came before the Supreme Court for oral argument.
A transcript of the oral argument can be accessed here. As discussed below, the Eleventh Circuit's opinion did not fare well; not only was the reasoning and result widely panned, the Justices pointed out that the Eleventh Circuit appeared to have ignored one of its own prior precedents. All in all, a bad day for the Circuit.
I summarize the panel opinion and provide some commentary on the argument below.
The Panel Opinion:
The panel consisted of Circuit Judge Martin and Senior Circuit Judges Fay and Edmondson. Lane was employed as the director of a youth program who reported that a state legislator was being paid by the agency even though she never reported for work. Lane was later subpoenaed to testify against the representative at a criminal trial. He was subsequently fired by Franks.
Relevant to the Supreme Court’s grant of certiorari, the panel concluded that Lane failed to state a First Amendment retaliation claim. Garcetti v. Ceballos, 547 U.S. 410 (2006), held that, to establish a First Amendment claim, an employee must show that he spoke as a citizen on a matter of public concern. There were two relevant Eleventh Circuit precedents in this area relied upon by the panel:
(1) Abdur-Rahman v. Walker, 567 F.3d 1278 (11th Cir. 2009): Held that inspectors spoke as employees, not as citizens, when they reported concerns about sewer issues to their supervisors, because they were required to investigate the sewers pursuant to their job duties and the content of their reports concerned information they requested and investigations they performed for the purpose of fulfilling their job duties.
(2) Morris v. Crow, 142 F.3d 1379 (11th Cir. 1998): Held that a police officer’s speech consisting of an accident report and his subpoenaed deposition testimony reiterating the observations in his report was not speech as a citizen. Because the accident report was made in his role as an employee, not a citizen, and because the deposition testimony was given in compliance with a subpoena to testify truthfully, it was not considered to be speech on a matter of public concern.
The panel focused its analysis on Morris and held that: (1) Lane was acting pursuant to his official duties when he investigated the state representative’s misconduct; (2) when Lane testified about this investigation under subpoena, this act did not bring his speech within the First Amendment (nor was it dispositive that his official duties did not distinctly require him to testify at trial); and (3) it was pertinent that his testimony touched only on acts he performed as part of his official duties. (Note: The Morris panel consisted of then-Circuit Judges Cox and Black and Senior Circuit Judge Roney).
Based on Morris, then, the panel concluded that testimony pursuant to a subpoena was not “speech as a citizen” on a matter of public concern. The panel noted in a footnote that other circuits (including the Third and Seventh) had apparently reached opposite conclusions. The panel also stated in a footnote that because Lane did not state the violation of a federal right, he necessarily also could not establish the violation of a clearly established federal right, and Franks was accordingly entitled to qualified immunity.
The Oral Argument:
The Eleventh Circuit’s conclusion that speech pursuant to a subpoena was not “speech on a matter of public concern” was roundly criticized by almost every Justice who spoke at oral argument, and it appears a reversal is forthcoming.
Most of the parties before the Court agreed that the Morris decision was contrary to established jurisprudence. There was some discussion regarding the issue of qualified immunity, and whether that issue should be remanded to the Eleventh Circuit or decided outright by the Supreme Court.
Chief Justice Roberts also suggested that another Eleventh Circuit case, Martinez v. City of Opa-Locka, 871 F.2d 708 (11th Cir. 1992), was potentially controlling, even though it was never mentioned by the Lane panel. In that case, a city employee was subpoenaed to give testimony before the city commission. The panel there (Circuit Judge Hatchett, joined by Senior Judge Henderson, with Senior Judge Johnson in a separate dissent on an unrelated point) concluded that the city employee’s testimony at a hearing concerning the expenditure of public funds in violation of city ordinances was speech on a matter of public concern.
In other words, Martinez was closer to the facts of Lane than Morris, and it came to an opposite conclusion of the panels in Lane and Morris. It is somewhat embarrassing that neither the parties, nor the panel, located or briefed the applicability of Martinez.
Expect a straight reversal, certainly on the constitutional question, and probably on the qualified immunity issue as well, or, at least, a reversal along with a remand for consideration of the qualified immunity issue.
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