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Jan. 17 --The U.S. Supreme Court Jan. 17 agreed to review whether a state employee who alleges he was fired by an Alabama community college president because he testified under subpoena in a federal criminal trial against a state legislator raises a First Amendment retaliation claim for damages under the Civil Rights Act of 1871 (42 U.S.C. § 1983) (Lane v. Franks, U.S., No. 13-483, cert. granted 1/17/14).
The court granted a petition filed by Edward Lane, former director of the Community Intensive Training for Youth (CITY) program at Central Alabama Community College, who alleged college president Steven Franks violated the First Amendment by firing Lane after he testified before a federal grand jury and at two criminal trials against Suzanne Schmitz, an Alabama state legislator convicted of mail fraud for creating a no-show job for herself at CITY and stealing federal funds.
Lane alleged Franks, in concert with Schmitz's political allies, fired Lane because he had testified against Schmitz at trial. Franks and the college argued Lane, a probationary employee, and other CITY workers were terminated as a budget-cutting move. Lane initially sued both the community college and Franks, but he dropped his claims against the college and ultimately pursued only the Section 1983 claim against Franks.
A federal district court in Alabama granted summary judgment to Franks, ruling that Lane's compelled testimony in the Schmitz trial was not entitled to First Amendment protection because Lane was speaking pursuant to his official job duties rather than as a citizen on a matter of public concern.
In a July 2013 unpublished decision, the U.S. Court of Appeals for the Eleventh Circuit affirmed Lane's speech was not entitled to First Amendment protection and said even if it were, Franks had immunity from damages under Section 1983 ( 2013 BL 234043 (11th Cir. 2013)).
In his petition for review, Lane said the Eleventh Circuit's ruling that a public employee's subpoenaed testimony does not enjoy First Amendment protection is a “uniquely restrictive interpretation” that conflicts with contrary decisions from three other federal circuits.
“The fact that those courts have decided multiple cases specifically rejecting the rationale adopted by the Eleventh Circuit demonstrates that the conflict is intractable and cannot be resolved without this [Supreme] Court's intervention,” Lane said.
The Eleventh Circuit decision also conflicts with Supreme Court precedents regarding both public employee speech and the role of sworn testimony, Lane said.
Under Garcetti v. Ceballos, 547 U.S. 410, 24 IER Cases 737 (2006) , Lane's sworn testimony is protected because he spoke as a citizen on a matter of public concern by opposing official corruption and the societal interest in encouraging public employees to blow the whistle on fraud outweighs any competing employer interest, Lane said.
“Public employees have vital information relating to fraud, waste and abuse in the government,” Lane said. “If the First Amendment fails to protect them when they speak out, there is a substantial risk that they will be deterred from coming forward in the first instance, especially in cases like this one involving powerful public figures who express their willingness to retaliate against whistleblowers.”
The “societal interest in public employee speech is at its zenith” when the employee is called upon to testify in court under a subpoena, Lane said.
The public employee in such a case is indistinguishable from any citizen responding to a subpoena and his employee status offers no shield against testifying, Lane said. Such an employee must therefore be deemed “a citizen addressing matters of public concern” under those circumstances, he said.
The appeals court also erred in reasoning that because Lane's testimony touched on his job as CITY director, he necessarily was speaking as an employee on matters of purely private concern, Lane said.
“It makes no sense to hold, as the Eleventh Circuit did, that speech offered in a public forum far removed from petitioner's place of employment, for a purpose unrelated to that employment, is unprotected merely because it related to facts that [Lane] learned on the job,” he said. “This [Supreme] Court's cases stand for exactly the opposite proposition: that the public has a strong interest in hearing from public employees on matters of public concern that implicate those employees' specialized knowledge.”
Lane urged the justices to grant review and reverse the Eleventh Circuit decision. “Any other result would sanction retaliation against a citizen who did nothing more than his duty--as a citizen--to tell the truth in support of a federal criminal investigation,” he said.
Thomas C. Goldstein of Goldstein & Russell in Washington is counsel of record for Lane.
In opposing review, Franks said the Supreme Court should decline to reach the First Amendment issue because both sovereign and qualified immunity “clearly bar” Lane's suit for damages.
“This is because, at the very least, [Franks] was not on fair notice, and [Lane] has never shown, that it was clearly established at the time of [Lane's] August 2008 testimony that (1) [his] testimony was not made pursuant to his official duties as director of CITY but rather was citizen speech protected by the First Amendment, and (2) that testimony pursuant to a subpoena is always protected,” Franks said.
Even if the Supreme Court does consider the First Amendment issue, the Eleventh Circuit's conclusions that Lane's speech was “made pursuant to his duties” as CITY director and that his written job description did not control that inquiry are consistent with Garcetti and raise no issue warranting review, Franks said.
Mark T. Waggoner of Hand Arendall LLC in Birmingham, Ala., is counsel of record for Franks.
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