Nahmod Law

Cert Granted in New Public Employee Free Speech Case: Lane v. Franks

Certiorari Granted in Lane v. Franks

The Supreme Court granted certiorari on January 17, 2014, in a potentially significant public employee free speech case.  The case, Lane v. Franks, No. 13-483, arises out of an unpublished Eleventh Circuit decision, Lane v. Central Alabama Community College, 523 Fed. Appx. 709 (11th Cir. 2013).

In Lane, the plaintiff, the probationary director of a community college’s training program for at-risk youth, discovered that a state representative was getting paid to work for the program he ran even though she had performed no work. He raised these concerns internally but was warned that terminating her would cause problems. He terminated her nonetheless. Thereafter the FBI investigated the state representative with the result that the plaintiff testified before a federal grand jury and, pursuant to a subpoena, testified at the representative’s federal criminal trial for fraud. Subsequently, the plaintiff was terminated by Franks, the president of the community college.

Plaintiff filed a First Amendment retaliation claim under section 1983 against Franks in his individual and official capacities, alleging that plaintiff was fired because of his testimony. The district court ruled for the defendant, and this decision was affirmed by the Eleventh Circuit on the ground that the plaintiff’s speech was made pursuant to his official duties within the meaning of Garcetti v. Ceballos, 547 U.S. 410 (2006), or at least owed its existence to his professional responsibilities. The speech was thus not the speech of a citizen on a matter of public concern: rather, the plaintiff  was acting pursuant to his official duties when he discovered that the state representative was not doing work, when he terminated her employment and when he testified pursuant to subpoena. Accordingly, the First Amendment did not apply to protect the plaintiff.

Questions Presented

1. Is the government categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities?

2. Does qualified immunity preclude a claim for damages in such an action?

Comments

If you are familiar with my highly critical article on Garcetti, you will recall I argued that Garcetti was unsound and that, at the very least, the “pursuant to official duties” criterion should be narrowly interpreted so as to give as much breathing space as possible to whistleblowers. See my post of December 8, 2009 entitled Public Employee Free Speech: The New Regime.

Note that Lane does not deal with alleged retaliation arising out of the plaintiff’s internal report about the state representative, which is rather clearly speech pursuant to his official duties under Garcetti. Instead it deals with the plaintiff’s subpoenaed testimony, which should be considered the speech of a citizen on a matter of public concern.

Lane will be argued and decided this Term.

 

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Written by snahmod

January 20, 2014 at 3:16 pm

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