Wednesday, January 16, 2019

Fifth Circuit Dismisses Whistleblower Retaliation Claim under First Amendment, Qualified Immunity

The Fifth Circuit dismissed the free-speech claim of a state-court staff attorney who suffered reprisal for reporting judicial misconduct. The court ruled that the defendant, the court's chief justice, was entitled to qualified immunity, because the First Amendment law wasn't clearly established at the time of the reprisal.

The case arose when a "briefing attorney" for a state-court judge reported judicial misconduct on the part of the court's chief justice. The chief justice then arranged for the attorney not to be hired for a staff-attorney position in another judge's chambers. The attorney sued, arguing that the chief's actions amounted to retaliation for his free speech in violation of the First Amendment. The chief argued that the attorney's actions were governed by the state code of judicial conduct (which requires state judges and their staff to report judicial misconduct), that the speech was therefore pursuant to the attorney's "official duty," and that it was therefore unprotected.

The Fifth Circuit ruled that circuit law says that required disclosures are not part of an employee's "official duty" (and therefore are protected by the First Amendment), but that caselaw established this principle only after the chief's retaliation. As a result, the law wasn't "clearly established" when the chief retaliated, and he was therefore entitled to qualified immunity. 

The court also ruled that the attorney's suit dodged Eleventh Amendment immunity problems under Ex Parte Young, because he sought only injunctive relief for an ongoing violation. But the relief he sought--appointment as a staff attorney for a judge on the court--was unavailable, because his original judge (the one who withdrew a job offer in light of the chief's retaliation) was no longer on the court, and because other judges selected their own staff attorneys. "There is no ongoing violation of federal law in the failure to hire Anderson for a different staff attorney position with a different judge."

https://lawprofessors.typepad.com/conlaw/2019/01/fifth-circuit-dismisses-whistleblower-retaliation-claim-under-first-amendment-qualified-immunity.html

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

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