Government employment

With a few exceptions, government employees are protected by the same laws as apply to all other employees. But the procedure for vindicating those rights is completely unlike anything in the private sector. In addition, most government employees have a number of additional rights as well. Unfortunately, these rights are contained in byzantine caselaw interpreting the Constitution, as well as a host of state and federal statutes, some of which only apply to one small subset of employees - for example, Miss. Code § 39-3-17, which gives due process rights to library employees in Mississippi.

National Experience with Government Employee Cases

The firm represents employees in these difficult cases. Joel Dillard previously worked in the General Counsel's office of the American Federation of Government Employees, and gained significant experience on federal employment issues. He also clerked on the Federal Circuit Court of Appeals, which hears federal employee appeals from the Merit Systems Protection Board. He worked in the Office of the Chair of the Equal Employment Opportunity Commission, and had the opportunity to author a decision for the Office of Federal Operations on a federal employee's age discrimination case. He now teaches a Continuing Education course for teachers concerning the law governing their employment. The firm has represented many government employees - from the federal government to the public schools to the state run hospitals and institutions.

We write about these issues a lot! Read more in these excerpts from the blog:

Since going into private practice, I've particularly enjoyed representing federal employees. It has been something of a homecoming for me.

In fact, my very first legal job was with the American Federation of Government Employees (AFGE), General Counsel's office. And after that, while working in the Office of the Chair of the Equal Employment Opportunity Commission (EEOC), I had the opportunity to write a federal employment decision for the Office of Federal Operations (OFO) - my first experience with judicial writing. And during my clerkship for Judge Dyk on the Federal Circuit Court of Appeals, I particularly enjoyed working on federal employee appeals from the Merit Systems Protection Board (MSPB) and Office of Special Counsel (OSC).

Federal employees in Mississippi need a local lawyer that understands the special laws of their workplace.

One of the most rewarding aspects of this work for me is knowing that it fills an important need in this area.

Federal employment is not like other jobs, and employees need to find an attorney that understands this. In addition to the full body of constitutional law, including the Due Process Clause and the First Amendment, there is also a mountain of detailed and sometimes contradictory regulations issued by the Office of Personnel Management (OPM) and the various federal agencies. For example, the Department of Defense and a number of other agencies have had statutory pilot programs and exceptions provided by Congress, which creates a totally new body of law just for one part or subpart of the government, while, for example, the Department of Veterans Affairs, the Department of Agriculture, and other agencies operate under a different set of OPM rules. For this reason, the OPM "rule of three" for merit selection doesn't apply to DOD - even though nothing on the face of OPM regulations would appear to indicate as much.

Complexity upon complexity: the example of FAA cases

Consider another example that is particularly baffling. Congress took a series of actions in the 1990s which created and eliminated various personnel programs for FAA employees. Then it partially restored the prior law, giving back authority to the Merit Systems Protection Board to hear appeals. But Congress somehow managed to create MSPB rights without giving the MSPB any meaningful power to protect employees - no back pay or attorney fees were available. See Gonzalez v. DOT, 551 F. 3d 1372 (Fed. Cir. 2009). The issue split the in banc Federal Circuit, which denied review of the panel decision by the narrowest possible margin, and with extensive opinions on each side.

Congress tried to fix the issue in 2012, again amending the law - retroactively - to restore the MSPB's authority to award back pay and attorneys' fees. But again, Congress somehow left something important out - this time attorneys' fees for appeals to the Federal Circuit itself. See Gallo v. DOT, 725 F. 3d 1306 (Fed. Cir. 2013). The result is that, if an employee loses at the MSPB, and then wins on appeal to the Federal Circuit, they don't get attorneys' fees for the time spent on their winning appeal, but they do get attoneys' fees for the time spent losing before the MSPB.

Meanwhile, the very same bizarre statutory provision resulted in what the Court of Claims considered an exclusion from an exemption to Fair Labor Standards Act (FLSA) overtime. The issue again split a panel of the Federal Circuit as to what Congress might have meant. See Abbey v. US, 745 F. 3d 1363 (Fed. Cir. 2014) Surprisingly, whereas in Gonzalez and Gallo the court read the statute literally, notwithstanding the anomalous result, in Abbey the court ignored the very same literal reading to consider the statute in its context - and the question whether this created or avoided an anomalous result is one that again split the court.

An experienced, Mississippi attorney for federal employees

For me, the challenge of a good puzzle like this is part of the fun of being a lawyer. It makes me very happy to use my experience and creativity to find the best solution to each employee's legal problem.

A federal court in Mississippi recently ruled that the Meridian-Lauderdale Public Library broke the law and deprived employee Sharon Smith of her constitutional rights. The case broke new legal ground and significantly expanded the rights enjoyed by all library employees in the state.

Sharon Smith was working as the public relations director at the library in Meridian. She was fired by library director Barbara Gough without cause - that is, for no reason - after only a few months on the job. Neither Ms. Gough nor anyone else at the library would tell her why she was fired. She asked for a hearing with the library's executive board. The board refused to hear what she had to say.

Jackson lawyer Joel Dillard brought a lawsuit against the government on behalf of Sharon Smith. The lawsuit asserted that Ms. Smith has a constitutional right to due process. Ms. Smith argued to the court that she should have been given notice of the reasons for her termination and an opportunity to explain her side of the story.

The government was represented by Butler Snow, a corporate firm with 131 attorneys in the Jackson office and 25 additional offices throughout the nation. The government argued that library employees are at will and can be fired for any reason or for no reason at all. They noted that almost all Mississippi employees are at will and have no due process rights.

But the plaintiff identified a state statute which said that library staff can be fired for good cause and that they have the right to a hearing before the library board. This particular argument was a new one which had never been heard in the courts before.

Federal Judge Carlton Reeves ruled on the case. He found that Ms. Smith was correct, and that library employees can only be fired for good cause under the statute, and therefore that they have a right to due process under the United States Constitution. He further ruled - in judgment on the pleadings - that Ms. Smith had proven her case, and that the library had violated her constitutional rights: It is undisputed that Smith did not receive any sort of notice or hearing prior to her termination. Ultimately, she received no process at all. Thus, Smith's motion for judgment on the pleadings in regards to her procedural due process claim is granted. The only remaining issue is the determination of damages. Read the full decision here.

This is a big victory, said Dillard in a statement concerning the case. For the first time, the courts have told the government that it must give its library staff basic due process. To throw away a career - without even telling the employee what went wrong - is the kind of arbitrary, callus behavior we expect in a dictatorship, not a free democracy. Everyone should be treated with dignity and respect - including by their boss. My mission is to bring democratic values of due process and free speech to every single employee in the state. This case is an important victory in that fight.

When I am doing my job and doing it well, Smith said it is really unfair to be blindsided like this. It is good to know that one person can stand up and make a difference. Not just for myself, but for everyone else who comes after me.

Many people at some time in their life are told - usually by a smug boss - that they can be lawfully fired at any time, without notice, for any reason or no reason. This is not exactly true, but it is not exactly untrue either. The truth is, most employees in the private sector can be fired at will, but the failure to identify a compelling reason opens the employer up to a variety of civil rights claims.

Government employment is a totally different story. Most government employees - including most state and local employees - have a right to due process, and can only be fired for cause. For example, in Mississippi the legislature created a Statewide Personnel System which protects all employees of state departments, agencies and institutions as defined herein, with only certain specific exceptions. Miss. Code § 25-9-107. The purpose is to ensure that hiring and firing are based on sound methods of personnel administration and to build a career service in government which will attract, select and retain the best persons. Miss. Code § 25-9-101; see also § 25-9-103. As a result, termination is only for cause. Miss. Code § 25-9-127. Similar civil service protections apply to most other civil servants as well, from the municipality, Miss. Code § 21-31-23; Miss. Code § 21-31-71, to the federal government, 5 U.S.C. § 7513.

In the rare case where a government employee is at will, the statute typically says so explicitly and in no uncertain terms, e.g.: However, any employee which the county administrator is authorized to employ may be terminated at the will and pleasure of the administrator. Miss. Code § 19-2-9(1). As the Fifth Circuit observed, the statutes are usually quite explicit about this: Many Mississippi statutes governing the employment practices of public employers expressly prescribe either a ‘terminable at will’ or a ‘for cause’ standard. Conley v. Board of Trustees of Grenada County Hosp., 707 F. 2d 175, 179 (5th Cir. 1983). At will termination is clearly the exception rather than the rule.

And for good reason. Robust civil service protections are perhaps the key weapon in the ongoing war against corruption and patronage, as a review of our history shows.

The founding fathers understood - as John Adams put it - that when the independence of the civil executive is compromised, it corrupts ‘as necessarily as rust corrupts iron, or as arsenic poisons the human body; and when the legislature is corrupted the people are undone.’ Henry Adams, Civil Service Reform, 109 The North American Review, No. 225, pp. 443-475 (Oct. 1869). The early Presidents maintained a strong but uncodified tradition of executive independence and rational administration over the first half-century or so of the nation. Id. But by the time of the Grant administration, things had definitely changed for the worse, as Adams’ great-grandson Henry observed: the executive which had originally been organized as a permanent system with a permanent and independent existence, and a temporary head, was wholly changed in its nature and as a result, civil servants were terminated for arbitrary or political reasons, resulting in profound corruption through all levels of government. Id. The evils of this system were obvious to all - particularly after President Garfield was assassinated by his own political operative, who was unhappy with the President’s decisions in awarding patronage. This resulted in his successor, President Arthur, signing into law the Pendleton Act of 1883, the first formal step toward preserving an independent corps of civil servants immune from patronage.

Adoption of similar systems in the states was uneven at first - political machines like Tammany Hall exerted enormous pressure to preserve their corruption and forestalled reformers repeatedly over the decades. But when Franklin Roosevelt crushed Tammany Hall by shutting off patronage, and tying the grant of funding to explicit civil service requirements, the fortunes of the reform movement began to turn, and, through slow and incremental progress, good government triumphed. Cf. Gergely Ujhelyi, Civil Service Rules and Policy Choices: Evidence from U.S. State Goverments, 6.2 American Economic Journal 338, 343-45 (2014). By 1950, more than half of states had comprehensive civil service protections. Id. at 347. By 1977, when Mississippi adopted comprehensive merit system protections, it was the 48th state in the nation to do so; robust civil service protections had become the norm. Id. Because patronage was the currency of machine politics, the direct result of the civil service system was to clean up the previously rampant corruption of the machine, from city hall to the state house.

There is a key difference between public and private employment: In the private sector, the at will employment doctrine protects private enterprise against government intervention. Indeed, the private employer’s right to fire employees is itself a property right of the private employer which cannot be deprived without due process. Brock v. Roadway Express, Inc., 481 U.S. 252, 260 (1987). By contrast, in the public sector, at will doctrine does just the opposite, shielding government corruption and arbitrary action. The at will doctrine in public employment explicitly countenances arbitrary action by government. That is a fundamental difference.

If you are one of the thousands of Mississippians working for the VA, you should know that the law governing your work has been fundamentally transformed by Congress this summer. The President signed the "Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017" this summer, and just a few weeks ago signed the "Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017." Both statutes both weaken and strengthen the laws protecting VA employees in ways that it is crucial for all affected employees to understand.

LEARN MORE

Attend an hour-long seminar about these new changes in the law taught by Joel Dillard.

The seminar will be taught around shift changes in early December 2017 at convenient locations within a few blocks of the VA Hospital and VBO in Jackson, Mississippi.

ABOUT JOEL

Joel has worked for the General Counsel's office of the American Federation of Government Employees (AFGE), as well as the General Counsel's Office of the AFL-CIO. He has clerked for the Chair of Equal Employment Opportunity Commission (EEOC), and written EEOC Office of Federal Operations (OFO) opinions governing federal employees. He has clerked for Judge Dyk of the Federal Circuit, where he assisted in reviewing decisions of the Merit Systems Protection Board (MSPB). He has represented dozens of federal employees in disciplinary hearings, before the MSPB and the EEOC, as well as in federal court.

SIGN UP

Sign up online in two easy steps:

1. Register and select a seminar time by using the linked registration form: REGISTRATION FORM
2. Make a small registration payment of $19 to cover facilities and materials, using this link: Secure online payment. Enter "VA Seminar Registration" on the memo line.

Federal employees have a tremendously complicated procedure to vindicate their civil rights. An employee who has been unlawfully terminated can easily miss significant advantages by using the wrong procedure.

Three Choices and No Time to Make Them

A terminated permanent employee can either file a union grievance, file an Equal Employment Opportunity claim with the Agency's internal EEO office, or file with the Merit Systems Protection Board. The choice typically must be made within a matter of only a few weeks. The procedures are widely different. For our purposes right now, I will focus only on the EEO and MSPB.

1. EEO investigation - The employee contacts the EEO office and initiates an informal complaint. After 30 days of counseling the employee requests a formal investigation, and the Agency takes statements from all potential witnesses and gathers documents to complete a Report known as an ROI. The quality of these investigations varies dramatically from agency to agency.
2. MSPB - Within 30 days, the employee files an appeal with the MSPB. There is a lightning fast discovery period - the attorney had better be on his game for this - and then a trial, usually within six months.

If you take the EEO route, you can always short-circuit it any time after 120 days to start an MSPB case or go to federal court.

After the MSPB Initial Decision: Four Choices or More

After the MSPB Administrative Judge issues an initial decision against the employee the employee has four options to appeal.

1. Petition for Review by the full MSPB: An appeal to the Board permits the broadest kind of appellate style review. But right now there is only one MSPB member and the Board has no quorum. There are probably 1,500 petitions for review pending in front of the MSPB right now. So expect big delays and likely bad decisions as the Board affirms everything in sight in a desperate bid to catch up on the backlog.
2. Appeal to the EEOC: If you don't appeal to the MSPB but wait and let the decision become final, you can appeal the EEO claims in the case to the Equal Employment Opportunity Commission's Office of Federal Operations. But the EEOC OFO is also significantly backlogged. Expect more lengthy delays.
3. Appeal to the CAFC: The Court of Appeals for the Federal Circuit can also hear appeals from final MSPB decisions. Expect the judges to be most attuned to complex legal issues - rather than the basic fairness of the case.
4. New trial in District Court: Finally, the most aggressive option is to simply start over with a brand new trial in District Court. Depending where you live, your reception in court will vary. Here in Mississippi, you will be taking your chances; some judges are great, and others less so.

Seriatim

To make things still more complex, these aren't either/or options: you can often string them together. The most thorough method is probably to start the case with the EEO process, then, when the ROI is just finishing, request an MSPB appeal, then file a petition for review with the MSPB, then an EEOC appeal, and only then go into federal court for a brand new trial. The case can sometimes take a decade - particular if you win some of those appeals and there are remands along the way.

Getting Help

If you have enough interest in this topic to have read this far, chances are good that you may need the help of an attorney experienced in representing federal employees. There are no easy answers, but at least the attorney can help you understand the consequences of your choices.

The due process rights of students - and college students in particular - is an often murky area. This is no real surprise: Constitutional law is, unfortunately, among the least rational and clear of all areas of law. But here you can learn at least some general concepts and parameters.

State Action

The first concept to bear in mind is that - with the exception of the Thirteenth Amendment (slavery) - the Constitution only limits state action. This means that your private colleges and universities, like Belmont and Mississippi College, are not restricted by the Constitution. This is why - in case you were wondering - private colleges can be religious while e.g. school-mandated prayer is impermissible in public colleges. This does not mean that private schools can do whatever they want, but it means that the discussion which follows is inapplicable to them. This discussion will be limited to public schools like Ole Miss or Jackson State.

Is a college education property?

The due process clause prohibits the state from depriv[ing] any person of life, liberty, or property, without due process of law. And so the first question is whether a college student has any liberty or property interest in their studies. Let's start with property.

Because property itself is a creature of state law - your rights to your land, your car, your gun: all are created (and limited) by state law - the answer will depend on the particular laws of your state.

Thus, in Mississippi, the Mississippi Supreme Court has held that the cases involving public universities demonstrate that a student's interest in attending a university is a property right protected by at least the procedural protections of the due process clause. UMMC v. Hughes, 765 So. 2d 528, 538 (Miss. 2000).

In Texas, by contrast, the Courts have ducked the question and so it is still not entirely clear whether college students have a property right in college. University of Texas Med. School v. Than, 901 SW 2d 926 n.1 (Tex. 1995)

The liberty interest in college education

The liberty interest has been recognized based on harm to a college student's reputation and future prospects because of the expulsion: [W]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, the minimal requirements of due process must be satisfied. Goss v. Lopez, 419 U.S. 565, 574 (1975). This suggests that, to some extent, the scope of the liberty interest will depend on what the student is accused of doing, and how serious the discipline being imposed will be.

Disciplinary vs Academic actions

Disciplinary actions are one thing. But the Supreme Court has cautioned that the courts should not be involving themselves too heavily in second-guessing the academic decisions of public schools. As the Court said in a case involving a graduate medical school, court review of academic decisions would further enlarge the judicial presence in the academic community and thereby risk deterioration of many beneficial aspects of the faculty-student relationship. Board of Curators of Univ. of Mo. v. Horowitz, 435 US 78 (1978)

The upshot is that academic dismissals are not really subject to much due process under the Constitution.

But what exactly is an academic action? It would seem obvious: flunking out. But unfortunately, certain courts with a special hostility to students have hooked on to a minor footnote in Horowitz and blown it out of all proportion to suggest that virtually everything is academic and nothing disciplinary. Everything from lying to profanity to tardiness have - from time to time - been considered academic by certain courts. As one court admitted: The Court recognizes that this definition of academic dismissal is very broad and leaves a finding of disciplinary dismissal to a narrow range of cases. It justified its decision on pure policy grounds - again, trying to stay out of the school's business. These decisions are - at best - poorly reasoned. But that doesn't mean that they won't carry the day sometimes. Real people lost those cases.

What process is due?

Assuming this is a real disciplinary expulsion case coming from a state where college students have recognized property rights, the next question is what process is due. It depends on the gravity of the discipline - a suspension requires only notice and a chance to respond in an informal give and take with the student, as the Supreme Court noted in Goss.

But an expulsion - particularly an expulsion on extremely serious charges - may require more. The analysis is pretty vague, and involves the weighing of three factors:

1. How serious the threatened harm to liberty/property;
2. How useful particular procedural tools would be at making sure the right result is reached;
3. How annoying, expensive, or time-consuming the procedural tool would be to use.

Good facts and good lawyering are your best bet at success, but there are no guarantees whatsoever in this area of the law.

It is a crime to retaliate against a public employee for doing her job.

In my never-ending search for ways to protect the free speech rights of employees, I have recently developed a legal theory that I think has a lot of promise.

The problem: the law protecting internal whistleblowers in state/local government is weak or nonexistent

The problem is that, as discussed in a prior post, a government employee's whistleblowing up the chain of command is not protected by the First Amendment of the U.S. Constitution. And as discussed in another post, only official discipline is considered retaliation under the First Amendment. There is a Mississippi Whistleblower Protection statute, but it also only applies to a small category of protected speech - typically reports to specific public officials like the AG, DA, etc. that most whistleblowers never think to call.

After all, most government employers have strict (and illegal) rules prohibiting reporting misconduct outside the Agency, and act as if they have an open door policy (whatever that means) for reporting up the chain of command or to HR. (Guess what, it's a trap!) Which means that most whistleblowers have only made their reports internally. There are a lot of serious limits on our ability to protect these whistleblowers in state and local government using the U.S. Constitution.

The solution: McArn plus Miss. Code § 97-9-127

In Mississippi, the tort of wrongful discharge is named after the case​McArn v. Allied Bruce-Terminix Co., Inc., 626 So. 2d 603 (Miss. 1993). Under the​McArn doctrine, as subsequently developed, it is tortious to terminate any person’s employment because the employee reported a crime - either internally or externally. Morris v. CCA of Tenn., LLC, (Cause No. 3:15-CV-00163-MPM-RP​)(N.D. Miss. May 16, 2017).

So far so good. That solves the problem for reports up the chain of command. These are protected by McArn. But the trouble is that most such reports by whistleblowers are not necessarily of a crime - at least, you would not think so initially.

But what is very common is that the whistleblower makes a first report of misconduct, is threatened by the supervisor, and then reports both the threat and the original misconduct further up the chain. The key point here is that now we just may have a protected report of a crime on our hands. The key question is what the threat was. If the thing threatened is unlawful - not necessarily criminal - then the threat is a crime. If the employee is later fired, there may be a real McArn claim.

The crime is Retaliation, Miss. Code § 97-9-127. It is much, much broader than retaliation is under the First Amendment. A person commits the offense of retaliation if he intentionally or knowingly harms or threatens to harm another by any unlawful act in retaliation for anything lawfully done in the capacity of public servant, witness, prospective witness or informant. Retaliation is a Class 2 felony. Young v. State, 119 So. 3d 309 (Miss 2013) (holding that the threat itself need not be unlawful, so long as the threat is to do an unlawful act);​Wilcher v. State, No. 2015-KA-01008-SCT (Miss. March 23, 2017) (upholding statute from constitutional challenge). In the statute, threats are defined as any menace, however communicated and harm is defined as loss, disadvantage or injury, or ​anything so regarded by the person affected. This would clearly include threats to fire or discipline. (It may be possible to use the statute more directly to establish a public policy exception for terminations for reporting non-crimes as applicable to public employees.) As one court said, [i]n the court's view, this state law authority may well buttress plaintiff's state law claim that his termination was in violation of Mississippi public policy.Boisseau v. Town of Walls, Miss., 138 F. Supp. 3d 792, 808 (N.D. Miss. 2015). And the employee does not necessarily have to know about the statute to benefit from it, as long as he makes a good faith allegation of retaliation. Roop v. S. Pharm. Corp., 188 So. 3d 1179, 1188 (Miss. 2016). Though it still isn't airtight by any means, it solves many of the key problems with the First Amendment and McArn cases.

Free speech at work is one of the big three issues the firm cares most deeply about. (The other two are due process and equal justice. And of course, unions are essential to all three.) The firm recently filed an important motion in the free speech case of Gunter v. Jackson Public Schools, which gives a perfect occasion for discussing some important free speech ideas. This will probably be a series of blog posts, so stay tuned.

The First Amendment limits what government can do, not private companies.

The first key idea to understand is that the First Amendment’s limitations only apply to government action, not private companies. In fact, it is not just people, but also private companies which are protected against government violations of free speech.

What this means is that the First Amendment will have no bearing on, for example, how Facebook punishes or regulates the speech of its users, or how Walmart punishes or regulates the speech of its employees. In fact, if Facebook or Walmart want to take a political stand on an issue and censor users or employees that disagree, the government and the courts typically cannot intervene because that would infringe the free speech rights of Facebook or Walmart.

There are exceptions, and private employees also have free speech rights of certain kinds, including whistleblowers which are protected by specific laws. So do not assume that a private employer like Walmart can do whatever it wants to employees that speak out in ways it does not like. But that has nothing to do with the First Amendment.

The bottom line for our purposes here is that, when you are talking specifically about the First Amendment and freedom of speech, you must always keep in mind that the key question is what is the government doing. The First Amendment only limits governmental action against free speech.

This is the second in a series of posts inspired by the free speech case of Gunter v. Jackson Public Schools.

The most fundamental rule of the First Amendment and freedom of speech is that the government cannot censor or punish speech because it disagrees with what was said.

One of the best examples of this is probablySchacht v. United States, 398 U. S. 58 (1970), where the Court struck down a law permitting actors to wear a military uniform while acting in a movie only if the portrayal does not tend to discredit that armed force. The Court noted that although the government could probably make a rule banning actors from wearing the uniform in any movie, it certainly could not single out and ban the speech which made the government look bad.

As the Supreme Court put it in another case:

It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. . . . Discrimination against speech because of its message is presumed to be unconstitutional. . . . When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.

In that case, a University refused to fund religious student magazines, while funding secular student magazines. This was unconstitutional. Although the government did not have to fund any student magazines, once it decided to fund some of them it could not discriminate based on the viewpoint taken in the magazines. Read more: Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 828-89 (1995).

The best overall discussion of this concept is probably found in RAV v. St. Paul, 505 U.S. 377, 381-86 (1992).

The bottom line: the government cannot make rules punishing people for saying something the government does not agree with. I think that a rule banning, for example, negative commentary to the media is very likely to be unconstitutional.

Overbreadth: even legitimate speech rules can become unconstitutional if they sweep too broadly.

This is the third in a series of posts inspired by the free speech case of Gunter v. Jackson Public Schools.

The First Amendment prohibits the government from interfering with or deterring the speech of citizens. But some speech can be dangerous, and rules may be necessary to protect people or preserve the peace. For example, it may make sense to outlaw threats to kill police officers.

But even a good rule limiting speech can become unconstitutional if it is too vague or broad. If it is too vague it will be hard to tell what speech is and is not allowed, and in this uncertainty people will be afraid to engage in important protected speech. Similarly, if the rule is too broad it will prohibit a great deal of speech that does not cause a problem, thus interfering with speech rights.

For this reason, the Courts say that a speech rule is unconstitutional if it covers a substantial number of unconstitutional applications judged in relation to the statute's plainly legitimate sweep. Seals v. McBee, 898 F. 3d 587, 593 (5th Cir. 2018); US v. Stevens, 559 U.S. 460 (2010).

In Seals, for example, a statute prohibiting threats to a police officer was found unconstitutionally overbroad. Although there was no problem with banning true threats of bodily harm, the word threat could be understood to cover other kinds of threats, such as the threat to sue or to boycott. These kinds of threats cannot be banned. The Court therefore said the rule was unconstitutionally overbroad.

What is a prior restraint on speech, and why is it unconstitutional?

It is among the most well-established ideas in constitutional law: prior restraints are typically unconstitutional.

Prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights . . . the Supreme Court has routinely held that prior restraints on protected speech are presumed to be constitutionally invalid.

But what does it actually mean? What is a prior restraint? No one seems to know. Chemerinsky, supra, at 918. The courts sometimes say that the difference is that a prior restraint prevents speech in advance and other rules merely punish them after the fact. But as a well-respected scholar put it, [a]ll punishment for speech - whether under prior restraints or other laws - occurs after the expression takes place.Chemerinsky, supra.

From my point of view, the answer is one of lexicographical ipse dixit: a prior restraint is whatever the courts call a prior restraint. In practice this means either a court-issued gag order, or a system of licensure and censorship. [T]he classic type of prior restraint is where the government requires a license or permit in order for speech to occur. Chemerinsky, infra, at 932 (discussing Lovell v. City of Griffin, 303 U.S. 444 (1938)). To invalidate such schemes - where speech is to be submitted to government censors before publication - was a core purpose for the First Amendment.

For example, in Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273 (5th Cir.2003), the Fifth Circuit held it was unconstitutional to require pre-approval from school officials before a petition could be circulated among attendees at a school board meeting. See also Brooks v. Auburn University, 412 F. 2d 1171 (5th Cir. 1969) (university president cannot require pre-approval of speakers on campus)

Three requirements must be met for a licensing scheme to be valid. Chemerinsky, supra at 933.

1. The purpose must be to address a clear and present dangerous threat to a protected competing interest. Wood v. Georgia, 370 U.S. 375 (1962).
2. There must be clear standards leaving almost no discretion to the licensing authority.City of Lakewood v. Plain Dealer Publishing Co., 486 US 750, 759 (1988).
3. Licensing can be required only if it takes place under procedural safeguards designed to obviate the dangers of . . . censorship. Freedman v. Maryland, 380 U.S. 51, 58 (1965). There must be a procedure that prevents the policy from being misused or abused, with appeal to court where necessary to correct a mistake or abuse.

The bottom line: any system of prior approval and censorship of the speech of private citizens is likely to be unconstitutional.

Unconstitutional rules restricting government employee speech

If you work for the government in Mississippi - whether it is a public school, a jail, a city, or a state agency - the chances are good that your boss has an unconstitutional policy restricting your speech. These policies seem to be rampant in the state.

Teachers, does this sound familiar? Teachers [are] not [to] discuss school matters with anyone - well, that’s an unconstitutional rule. How about this one: do not take any school problems other places, or discuss it with others - yep, unconstitutional.

Cops, recognize this one? Communications must be expressly forwarded for approval to your chain-of-command: completely unconstitutional.

And I’m sure you’ve all heard of this one: No making unfavorable comments on the operations and policies of the Department to the media or on social media: LOL unconstitutional.

These kinds of rules infringing government employee speech are subject toexacting scrutiny under the First Amendment:

A speech-restrictive law with widespread impact . . . gives rise to far more serious concerns than could any single supervisory decision. Therefore, when such a law is at issue, the government must shoulder a correspondingly heavier burden, and is entitled to considerably less deference in its assessment that a predicted harm justifies a particular impingement on First Amendment rights.

For example, in the recent case of Liverman v. City of Petersburg, a police department had a social media policy which forbid the dissemination of any information on social media that would tend to discredit or reflect unfavorably upon the Department, including negative comments on the internal operations of the Bureau or on the specific conduct of supervisors or peers. 844 F. 3d 400, 408 (4th Cir. 2016). The court correctly noted that this was a virtual blanket prohibition on all speech critical of the government employer and noted the astonishing breadth of the social networking policy's language. Id. The policy was clearly unconstitutional.

But even if it isn’t some official policy, even if it is just an email or a spoken comment from a supervisor, it can still be unconstitutional. For example, in Moonin v. Tice, the K9 chief sent an email stating that all communication by line employees with outside persons about the work must be expressly forwarded for approval to your chain-of-command. Communication will be accomplished by the appropriate manager/commander if deemed appropriate. Any violation of this edict will be considered insubordination and will be dealt with appropriately. 868 F. 3d 853, 859 (9th Cir. 2017). The rule was unconstitutional because [t]he troopers' freedom to offer their informed opinions about the direction of the K9 program on their own time, as concerned citizens, is a prerogative that the First Amendment protects but that Tice's edict forbids. Id. at 864.

The bottom line: if you work for the government in Mississippi, the chances are good that they are violating your constitutional free speech rights. Next week we will discuss the most effective ways to address the issue.

Government employees have more rights when they speak through their union

The Supreme Court said in 2018 that [w]hen a large number of employees speak through their union, the category of speech that is of public concern is greatly enlarged, and the category of speech that is of only private concern is substantially shrunk. Janus v. AFSCME, at 2473.

The Court therefore appears to embrace the idea that speech which might be an unprotected private grievance when one employee does it becomes protected by the First Amendment when the union is involved in supporting that grievance. This idea was central to the Court’s decision in Janus that, because union grievances and bargaining were of public concern, employees had a First Amendment right to choose for themselves whether to support them or not.

This dovetails nicely with many of the practical reasons that an employee engaged in free speech criticizing her government employer is more protected when she does it through and with her union:

• When you speak through the union, it is easier to be anonymous. You have the right to anonymous participation in the union.
• When you speak through the union, you have the power of the many other members standing at your back with you. This both makes your voice more effective and makes you less likely to suffer retaliation. Retaliating bosses typically prey on the weak, not the strong.
• Your union can negotiate avenues for effective speech up the chain of command and enforce them.

There is an initial hurdle, of course. Before the union can be effective it must have the support of a core of people determined to improve things at work. And the stronger it grows in membership and support, the more effective all of your speech will be.

But most people don’t realize that you do not need any outside union to come in and help you. You can start a real union all by yourself, with just a little simple paperwork and the support of your friends and coworkers.

And in the end there can be no question that government employees benefit from standing together with each other in a union, and speaking out about the issues that must be addressed to improve the job.

And when they do so, they are protected from retaliation by the First Amendment. A strong legal representative that understands this area of law is essential to every public employee union - particularly in a state like Mississippi.

Free Speech Fundamentals: Government employees have free speech rights only when they speak as private citizens.

The Supreme Court has said that government employees do not leave their constitutional rights at the door when they go to work. They have the same rights to free speech as any other citizen. But things can be tricky because - in a sense - they are the government. And the people in charge in government are supposed to be able to control what the government does, including its speech. In other words, when government employees speak, and the speech is part of their job as government employees, then the government boss can control the speech as it wishes.

This is the reason for the Supreme Court's Garcetti rule. Among other things, the Garcetti rule says that a government employee's speech is protected only if they are speaking as a private citizen, and not as a public employee.

This should be pretty straightforward. It should mean that PR people and others with responsibility for speaking to the public or the media are unprotected when engaging in that public speech. Unfortunately, the Court has interpreted it far too broadly, to include even purely internal speech, such as when an employee blows the whistle on a supervisor's misconduct by reporting it up the chain of command. The Court says this is usually part of the government job, and so unprotected.

But there is a limit. When an employee goes outside the chain of command and blows the whistle directly to the public or the media, it is typically not part of the job. The courts have made it quite clear in caselaw interpreting Garcetti that when a public employee takes his job concerns to persons outside the workplace in addition to raising them up the chain of command at his workplace, then those external communications are ordinarily not made as an employee, but as a citizen. Davis v. McKinney,​518 F.3d 304, 313 (5th Cir. 2008). This remains true when speech concerns information related to or learned through public employment. Lane v. Franks, 134 S. Ct. 2369, 2377 (2014). The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties. Id. at 2379.

One interesting Fifth Circuit case on this point is Anderson v. Valdez, 845 F. 3d 580 (5th Cir. 2016). In​Anderson, a staff attorney for a state court sent a letter to the state supreme court and filed a disciplinary complaint with the State Commission on Judicial Conduct describing what he believed to be malfeasance by one of his bosses. His boss (the judge he had reported) retaliated by preventing him from working with another judge. The Court held that it was well established law that these sorts of complaints to people outside the employer are typically speech as a private citizen, and thus protected by the First Amendment.

Unfortunately, however, that was not the end of the saga. Three years later (five years after the retaliation) the case was still dragging on, and the employer tried again to throw the case out and made a slightly different argument. Anderson v. Valdez, 913 F. 3d 472 (5th Cir. 2019). This time the government claimed that the staff attorney had promised - as part of his job duties and oath of office - that he would report misconduct to the state commission. For this reason, the report was part of his job and not speech as a private citizen. This time, the Fifth Circuit agreed with the employer and noted that this was an exception to the usual rule. Because his job duties specifically included reporting to the commission it was not protected speech.

The Anderson saga provides many, many lessons for us as lawyers - sad, unfortunate, cynical lessons. But for the employee the main lesson should be to take great care to consult with an attorney about what will and will not be protected speech if you are planning to go out on a limb and blow the whistle on your boss. The steps you need to take are likely to be counterintuitive.

This post is part of a series on free speech rights of government employees. Read the rest below:

• Government employees have more rights when they speak through their union - 2/12/2020
• Free Speech fundamentals: Unconstitutional rules restricting government employee speech - 2/6/2020
• Free Speech fundamentals: Prior Restraints - 1/29/2020
• Free Speech fundamentals: Overbreadth and vagueness - 1/20/2020
• Free Speech fundamentals: Viewpoint discrimination - 1/15/2020
• Free Speech fundamentals: State action - 1/8/2020
• First Amendment Free Speech Rights of Government Employees - 10/15/2018

Free Speech Fundamentals: How bad does it have to get before you have a retaliation lawsuit?

The firm is pretty preoccupied right now with the issue of free speech, particularly the free speech rights of government employees. It is something we've written about before. (Links are at the bottom of this post.)

The issue for today is: how bad does the retaliation have to be for you to have a federal case for free speech retaliation? The Supreme Court gave one answer in an interesting footnote, the First Amendment . . . already protects state employees . . . from even an act of retaliation as trivial as failing to hold a birthday party for a public employee . . . when intended to punish her for exercising her free speech rights. Rutan v. Republican Party of Ill., 497 U.S. 62, 75 n.8 (1990) (quotations omitted).

What have the courts done with that? The answer: it depends where you live. The courts are split on the issue. In almost the entire country, there is one answer, but in Mississippi, Louisiana, and Texas we have a different answer.

Most places have tried to scale back a little bit on that broad language. They say that only things which would actually deter speech are actionable. In New England, the court said the question is whether an employer's acts, viewed objectively . . . would have a chilling effect on the employee's exercise of First Amendment rights. Barton v. Clancy, 632 F.3d 9, 28 (1st Cir. 2011). In the upper Mid-Atlantic, the court said the question is whether the alleged retaliatory conduct was sufficient to deter a person of ordinary firmness from exercising his First Amendment rights. Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000). In the Mid-West, the court said that anything likely to deter the exercise of free speech is actionable. Power v. Summers, 226 F.3d 815, 820 (7th Cir.2000). And in the West and West Coast the court has said the same. Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000);Dahlia v. Rodriguez, 735 F.3d 1060, 1078-79 (9th Cir. 2013).

But what about here in the freedom-and-small-government deep south? Surely the Fifth Circuit - which covers Texas, Louisiana and Mississippi - will be true to the Supreme Court's dicta on this one.

I'm joking, of course. The Fifth Circuit's version of the analysis is far worse. Only official discharges, demotions, refusals to hire, refusals to promote, and reprimands are actionable.​Pierce v. Texas Dept. of Crim. Justice, Inst. Div., 37 F. 3d 1146, 1149 (5th Cir. 1994). Even oral threats or abusive remarks and investigations are not actionable retaliation. Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000). Even though it is pretty obvious that this retaliation would frighten and silence the employees, the court does not care. The court has declined to expand the list. . . . noting that some things are not actionable even though they have the effect of chilling the exercise of free speech, because expanding the list may enmesh federal courts in relatively trivial matters. Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000).

Let that one sink in. Apparently, the Breaux court thinks chilling free speech is a trivial matter. As wrong-headed as it may be, the Fifth Circuit's test does have one benefit - it is (in theory) pretty easy to apply. Any official disciplinary action is covered, and anything else is not. For example, in Harris v. Victoria Independent School Dist., 168 F. 3d 216 (5th Cir. 1999), the court held that a teacher had retaliation case because, among other things, she was given an official reprimand by her supervisor because of her protected speech.

The term “reprimand” in the caselaw is a business term used in the sense of the act of telling somebody officially that they have done something wrong, whether verbally or in writing. Cambridge Business English Dictionary, Cambridge University Press, 2011. Of course, every employer uses its own language to describe this kind of discipline - and some may have reprimands in many different flavors with different names indicating different severity. They may call it an admonishment or a counseling or a write-up or a reprimand, but this is not the legal issue: the legal question is whether this is employment discipline by the employer itself or mere criticism on the supervisor’s own initiative.

More on free speech of government employees:

• Free Speech Fundamentals: Government employees have free speech only when they speak as private citizens - 6/12/2020
• Government employees have more rights when they speak through their union - 2/12/2020
• Free Speech fundamentals: Unconstitutional rules restricting government employee speech - 2/6/2020
• Free Speech fundamentals: Prior Restraints - 1/29/2020
• Free Speech fundamentals: Overbreadth and vagueness - 1/20/2020
• Free Speech fundamentals: Viewpoint discrimination - 1/15/2020
• Free Speech fundamentals: State action - 1/8/2020
• First Amendment Free Speech Rights of Government Employees - 10/15/2018

How seemingly meaningless awards make constitutional rights meaningful

The Supreme Court recently decided an important case I've been watching all year. The issue was whether you can bring a case for only $1 in nominal damages in federal court. The answer given March 8, 2021, in an 8-1 decision in the case Uzuegbunam v. Preczewski from the Supreme Court, is yes - and it's a good thing too.

So why, you may be wondering, would anyone bring a lawsuit for one dollar? Actually, this is much more common than you might think, and much more important than it might seem at first glance. The facts of Uzuegbunam itself are a great example of why.

Chike Uzuegbunam was a student at Georgia Gwinnett College, a state school run by the State of Georgia. He went to the commons where his classmates gather and began sharing his religious conversion experience with classmates and handing out religious literature. A campus cop came up and ordered him to stop because distributing religious literature was against the rules outside the free speech zone and without a permit. Uzuegbunam stopped. He eventually got a permit as instructed and then went to the free speech zone to share his story.

And yet, again, a campus cop came up and told him to stop because his speech was disturbing the peace and someone had complained. Uzuegbunam was threatened with discipline. He stopped speaking. Based on Uzuegbunam's experience, another classmate also decided not to speak about his religion on campus.

Both students sued. Now, neither had been harmed financially, physically or emotionally in any meaningful way. But their constitutional rights had clearly been violated. They sought two forms of relief:

1. an injunction, which is a court order to prohibit the school from doing this again and requiring them to change their policy, and
2. nominal damages of $1

The state initially claimed that they had done nothing wrong and the policy was constitutional. They later admitted otherwise (because the argument was garbage and they had no other choice) and changed their policy.

Once the state changed the policy, the state claimed the case should be dismissed because it was moot, which is a legal term meaning that there is no longer anything really at stake. Uzuegbunam and his classmate didn't go to school there anymore, and the policy had been changed, so there was no reason for injunctive relief at that point. Uzuegbunam disagreed, and said he still wanted to recover his $1 in nominal damages and sought to keep pursuing the case.

But why would Uzuegbunam want to keep fighting this case at that point? Hadn't he won what he really wanted? The answer is no - not really - because although the policy had changed, his lawyers had fought like hell for years to make it happen, and he had also spent money on filing fees and deposition costs. In other words, Uzuegbunam had actually been harmed because the College didn't immediately admit their misconduct and he'd had to fight hard to force them to change their tune.

Normally, when you win a civil rights case like this one the state has to pay your costs including attorney fees under 42 USC 1988. But - and this is key - the Supreme Court has previously said that when the state voluntarily changes their policy because you sued, you did not technically win the case, and so you do not get your costs and fees awarded. The Court has also previously held that attorney fees and costs are not enough to save the case from mootness by itself.

Thus, Uzuegbunam needs to actually win and to win something other than just fees and costs. He still needs to fight on for his $1 in nominal damages, because only when he gets that will the state also have to pay his costs including attorney fees.

You can see why this case is important to me. If it comes out the other way, the state can simply fight you forever and then, at the last minute - maybe even while the jury is out deliberating - they can just change the policy and then everyone that worked so hard to make them change it are left with nothing to show for it. No one would ever bring a civil rights case for injunctive relief ever again.

Although attorney fees barely came up in the Supreme Court's discussion, at oral argument it was clear that the Court understood that this was the key issue in the background. In order to preserve any real constitutional rights at all, nominal damages need to be available to keep the suit going to the point of judgment, or there will be no lawyers willing to take these cases.

This is particularly important in the First Amendment context because such cases are rarely about money damages, and are about the right to the speech itself.

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