March 10, 2010
Ninth Circuit Rules Government Contracting No Bar to Exercise of Free Speech Rights
Judge Louis H. Pollak, sitting by designation on the Ninth Circuit, authored the unanimous opinion in Marez v. Bassett, a case brought by a vendor who claimed that he was retaliated against for speaking out against the Las Angeles Department of Water and Power procurement process. Mr. Marez sold products to the Department for years and so was selected to join a Small and Local Business Advisory Committee established by the LA City Council. He then became the co-chair of a sub-committee on "Mega-Contracts." In that latter capacity, Mr. Marez received numerous complaints about a recent contract, and he spoke out against that contract and about the Department's procurement procedures more generally. According to the complaint, adverse actions followed almost immediately, ranging from harassment and threats to reforms in the procurement process that were intended to and did prevent Mr. Marez from winning bids which he claimed he should have won. Mr. Marez brought suit against various city employees in their individual capacities and against the Department, alleging First Amendment violations and relying on 28 U.S.C. § 1983
The District Court granted defendants' motion for summary judgment, finding that Mr. Marez had offered "no evidence" of any adverse action. The Ninth Circuit vacated the grant of summary judgment and remanded. The issue before the Ninth Circuit was whether Mr. Marez was barred by Garcetti v. Ceballos, which held that government employees speaking publicly in an official capacity do not enjoy First Amendment protections against employer discipline. The Ninth Circuit found that Garcetti was inapplicable because Mr. Marez was not an "employee" of the city simply by virtue of his service on an advisory committee. He was not paid for his service, and the court noted that he did not work for the city; he worked with it. The court further found that Mr. Marez's evidence of adverse retaliatory actions was sufficient to give rise to questions of material fact that could not be resolved on summary judgment.
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