Monday, July 2, 2018

Fifth Circuit Clarifies: Nonfinal Decisionmaker Can Be Liable for Retaliation for Free Speech

The Fifth Circuit ruled last week in Sims v. City of Madisonville, that a nonfinal decisionmaker can be liable for a retaliatory discharge against an employee in violation of the First Amendment.

The ruling clarifies the law in the Fifth Circuit and aligns the court with all the other circuits to have addressed the issue. It also means that future nonfinal decisionmakers in the Fifth Circuit are now on notice (and the law is clear, for qualified immunity purposes): You may be liable for actions you take against employees in retaliation for their protected First Amendment speech.

The case involved a police officer's lawsuit against the city and another officer (but not the final decisionmaker) for retaliatory discharge in reprisal for his speech about the defendant-officer's official conduct. The defendant-officer sought qualified immunity.

In a somewhat unusual move, the court took up the first prong of the two-part qualified immunity test in order to get to its holding on the plaintiff's right. Qualified immunity shields an official from a constitutional tort unless (1) the official violated the plaintiff's constitutional rights and (2) the right was clearly established at the time. Because courts can address either prong  first, they often (or almost always) address the second prong first, and grant qualified immunity because a right wasn't clearly established. But this means that they don't get to the first prong--whether there was a constitutional violation in the first place. That leaves the law unsettled, which then invites qualified immunity on the second prong in future like cases. Or as the court said: "Continuing to resolve the question at the clearly established step means the law will never get established."

That's exactly what happened here. Fifth Circuit law took a detour on the issue after courts misread an earlier ruling. That led to confusion in the circuit about what the law was. And that, in turn, led to a string of dismissals on qualified immunity grounds because, well, the right wasn't clearly established.

So the court joined all the other circuits to have addressed the issue and ruled that nonfinal (mid-level) decisionmakers can be liable for retaliatory action, so long as their actions were a "causal link" in the retaliatory action.

As numerous courts of appeals have recognized, individual liability for a government official who violates constitutional rights, including First Amendment ones, turns on traditional tort principles of "but-for" causation. If an individual defendant's animus against a coworker's exercise of First Amendment rights is a link in the causal chain that leads to a plaintiff's firing, the individual may be liable even if she is not the final decisionmaker.

The ruling did nothing for the plaintiff in this case, though. That's because at the time of the action (before the court ruled in this case), the law was still unsettled in the circuit--there was no clearly established right--and so the court granted qualified immunity to the defendant under the second prong.

The court also rejected the plaintiff's due process claims.

https://lawprofessors.typepad.com/conlaw/2018/07/fifth-circuit-says-nonfinal-decisionmaker-can-be-liable-for-retaliation-for-free-speech.html

Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink

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