Wernsing, Jenny v. Thompson, Odell ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3956
JENNY WERNSING, CHARLES
BINGAMAN and TROY CANNON,
Plaintiffs-Appellees,
v.
ODELL THOMPSON, JR.,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 01-1476—Michael M. Mihm, Judge.
____________
ARGUED MAY 13, 2005—DECIDED SEPTEMBER 9, 2005
____________
Before CUDAHY, EASTERBROOK and KANNE, Circuit
Judges.
CUDAHY, Circuit Judge. Three Internal Security In-
vestigators in the Office of the Inspector General of the
Illinois Department of Human Services brought suit under
42 U.S.C. § 1983, alleging that the Inspector General of
Illinois had (1) imposed a prior restraint on their Constitu-
tionally protected speech and (2) retaliated against them for
exercising their First Amendment rights after they voiced
concern over the Inspector General’s rumored plans to make
a key appointment. Plaintiffs requested both money
damages and an injunction prohibiting further restrictions
on their speech. Both sides moved for summary judgment.
2 No. 03-3956
The district court ruled that (1) the plaintiffs’ request for
injunctive relief is moot, (2) the Inspector General’s direc-
tive barring plaintiffs from speaking to any “external agent”
without his permission constituted an impermissible prior
restraint on speech, (3) questions of fact remained for trial
as to whether plaintiffs had suffered retaliation for exercis-
ing their First Amendment rights and (4) the Inspector
General is not entitled to qualified immunity as to either
claim. The Inspector General now appeals, claiming that he
is entitled to qualified immunity. We reverse and remand.
I. FACTUAL BACKGROUND AND DISPOSITION
BELOW
While this case presents several nuanced legal questions,
the underlying facts are not disputed.1 The plaintiffs served
as Internal Security Investigators II (ISI 2s) in the Office of
the Inspector General (OIG) in the Illinois Department of
Human Services (DHS) at all times relevant to this suit.2
The OIG is responsible for investigating reports of abuse
and neglect of the mentally ill and developmentally disabled
persons who receive DHS services. According to the job
description, an ISI 2
performs highly responsible, sensitive, and confidential
investigative work; conducts the gathering and analysis
of relevant facts and data concerning abuse and neglect
investigations; completes investigations by preparing
1
The facts in ths section are taken primarily from the dis-
trict court’s opinion below. Wernsing v. Thompson, 286 F. Supp.
2d 983, 989-91 (C.D. Ill. 2003).
2
Jenny Wernsing was hired as an ISI II in 1998, Charles
Bingaman was hired in 1997, and Troy Cannon was hired in
1996. Charles Bingaman later became an OIG Team Leader in
2000, giving him additional responsibilities from time to time.
No. 03-3956 3
reports, summarizing investigative activities and
recommends conclusions to findings.
SPECIFICALLY:
1. Conducts confidential, sensitive, and complex
investigations concerning reports of abuse and neglect
at State-operated facilities and community agencies:
gathers data and evidence, conducts interviews, re-
ceives reports and analyzes relevant evidence concern-
ing cases of abuse and neglect; ensures that case
reports are comprehensive and accurate; takes initial
statements from staff.
2. Prepares written investigative reports upon the
completion of the investigative process consisting of
a summary of actions taken, findings, preservations of
evidence and recommendation for corrective action
and/or case closure.
3. Maintains confidential files pertaining to cases
under investigation; ensures the security of all perti-
nent information gathered during the investigatory
process.
4. Recommends revisions to investigatory procedures
and practices.
5. Serves as an expert witness and provides testimony
in criminal and administrative hearings related to the
conducting of or results of the investigation.
6. Performs other duties as required or assigned which
are reasonably within the scope of the duties enumer-
ated above.
(Doc. 38, Wernsing Dep. Exh. M8.) In the fall of 2000, the
OIG was subdivided into four geographical Bureaus: the
North (Chicago), the Metro (the area surrounding Chicago),
the Central and the South. All ISI 2s report to a designated
Team Leader, who reports to the appropriate Bureau Chief,
4 No. 03-3956
who in turn reports to the Deputy Inspector General or the
Inspector General.
Defendant Odell Thompson, Jr. became the Inspector
General of the DHS on July 1, 2000. On or about November
27, 2000, Thompson received an e-mail from five employees
in the OIG’s Southern Bureau, including plaintiffs
Wernsing, Bingaman and Cannon, which stated:
Several investigators in the Southern Bureau have
some concerns we wish to discuss with you as soon as
possible. These concerns are relative as to who we
understand you are going to appoint as the Southern
Bureau Chief. These concerns are very important and
need your attention before any appointment is made.
(Doc. 38, Wernsing Dep., Exh. 1.) Thompson received the e-
mail but did not respond to it. On November 30, 2000,
Thompson received another e-mail from the same five
employees, stating in relevant part:
We contacted you on 11/27/00 asking that you meet
with us and discuss our serious concerns over who we
understand to be the tentative selection for Bureau
Chief. We have not heard from you. We once again ask
that you meet with us. We would like if at all possible
to keep this matter in house out of respect for the chain
of command and in keeping with respect for your
position. However, if we are not afforded this oppor-
tunity we will feel compelled to air our concerns to
the Secretary or those at the legislative level.
Again, Thompson did not respond to the request for
a meeting and made no inquiries into the basis for the
e-mail.
The concerns referenced in the two e-mails apparently
stemmed from rumors that Thompson was going to ap-
point Ron Fuentes as Bureau Chief of the OIG Southern
Bureau. Each of the plaintiffs had worked with Fuentes
No. 03-3956 5
when he had previously served as Bureau Chief, and they
had concerns about his ability to manage the Bureau
effectively. Specifically, plaintiffs allege that Fuentes
had presided over a large backlog of investigations which
caused staffing shortages in the DHS and delays in OIG
investigations, had misplaced OIG files which were later
found in the trunk of his car, had worked short days and
was on-site at the Bureau office only two days out of the
week and was generally considered an incompetent and
frustrating supervisor. (See Wernsing Br. at 12-14.) The
backlog in investigations was particularly troubling
since any delay in investigating cases of neglect or abuse
could compromise the investigators’ ability to gather
information (since many of the victims have difficulty
remembering what happened to them) or could render
grievances against offending DHS employees time-barred
under Illinois law.
Unaware of the specific concerns that lay behind the
two e-mails, Thompson became concerned at the suggestion
that the signatories might contact the Secretary of the DHS
or individuals “at the legislative level.” Thompson was
apparently in the midst of reorganizing the OIG, and he
feared that OIG employees might be trying to “sabotage”
these efforts. On or about December 5, 2000, Thompson sent
a letter to the five e-mail signatories that stated, in relevant
part:
The Office of Inspector General staff are not authorized
to communicate about Office of Inspector Gen-
eral policies or operations directly to the Secretary
[head of the DHS], to the press, or to any external agent
except with my prior knowledge and approval.
This directive was repeated in a second communication sent
to all employees in the OIG in January, 2001. Thompson
later testified that there was nothing other than the two e-
mails from the plaintiffs that led him to issue the December
6 No. 03-3956
5 directive and that his concern was that he “didn’t want to
be sabotaged in some way” because he “just didn’t know
what their motives were.” He admitted that he didn’t make
any effort to ascertain plaintiffs’ motives in threatening to
contact the Secretary of DHS or legislators. It is undisputed
that the release of confidential information by OIG employ-
ees and contacts with the press were already governed by
both statute and internal DHS rules.
Believing that these directives potentially barred her from
speaking to anyone outside of the OIG, Wernsing asked her
supervisor, Sandy Mott, if the directives applied to conver-
sations she might have with her union representative, an
attorney or her legislator. At Mott’s suggestion, Wernsing
telephoned Thompson on January 26, 2001, and Thompson
“yelled” at her, telling her she was “walking down the road
to getting fired” and accusing her of “playing games.” That
same day, Mott sent an e-mail to the Inspector General’s
Office relaying Wernsing’s question. Sydney Roberts, who
was then serving as the Deputy Inspector General at the
time, responded to Mott’s e-mail with two messages. The
first read simply: “Your people really want to try me don’t
they.” The second e-mail stated:
No one in the OIG is represented by a Union that is
in any sort of contractual agreement with DHS. Thus
we don’t have to honor anything that their union
representative requests unless it is consistent with
the rights all employees are entitled to by state or
federal law. In other words, they follow the direction of
their union representative at their own peril.
With respect to the statements made to union person-
nel, the courts have said that employers may regulate
the speech of certain employees in certain circum-
stances. Thus, they should know the law on this matter,
before discussing OIG matters with outside individuals.
(Italics in original.) On February 7, 2001, Mott then
No. 03-3956 7
e-mailed Wernsing the following response:
In answer to your question, Deputy I.G. Sydney Roberts
indicated to me that no one in the OIG is represented
by a Union that has a contractual agreement with DHS.
Thus, we don’t have to honor anything that their union
representative requests unless it is consistent with the
rights all employees are entitled to by state or federal
law. Further, with respect to statements made to union
personnel, the courts have said that employer may
regulate the speech of certain employees in certain
circumstances. Thus, you should know the law on this
matter before discussing OIG matters with outside
individuals.
In March 2001, Thompson attended a meeting of the
Southern Bureau staff where he finally met with the
plaintiffs and the other e-mail signatories face-to-face. He
asked them if they had any concerns they wanted to
discuss, and they told him of the rumors concerning
Fuentes’ imminent appointment, and of their grave con-
cerns about Fuentes’ ability to manage the Southern
Bureau effectively. They cited Fuentes’ work habits, the
enormous backlog of cases that had occurred under his
supervision and his general inability to manage the Bureau.
Plaintiffs allege that, on the heels of these e-mail ex-
changes, Thompson committed several acts of retaliation for
their inquiries and requests for a meeting. These included:
(1) Thompson’s denial of overtime pay and mileage to
Wernsing and Bingaman after requests for the same had
been approved by their immediate supervisor and the
Bureau Chief, (2) a warning to Wernsing by the Bureau
Chief to watch out because Thompson was watching
everything that she did, (3) the downgrading of Wernsing
and Bingaman’s annual performance evaluations, (4) the
introduction of false and misleading evidence at Bingaman’s
grievance hearing, (5) denial of Bingaman’s application for
8 No. 03-3956
the position of Southern Bureau Chief, (6) denial of appro-
priate and customary travel and lodging expenses for both
Wernsing and Bingaman on different occasions and (7)
Thompson’s denial of a pre-approved salary increase for the
time Bingaman served as acting Investigative Team Leader.
See Wernsing, 286 F. Supp. 2d at 997-98.
Plaintiffs also allege that, due to Thompson’s directives
prohibiting unapproved discussion of OIG business with
any “external agent,” they felt compelled to restrict their
communications with individuals outside the OIG. Specifi-
cally, Wernsing testified that she refused to answer ques-
tions about OIG policies from employees at state facilities
or community agencies, refrained from commenting publicly
on changes to an administrative rule that altered the
official definitions of abuse and neglect and refrained from
commenting on an OIG proposal to delegate preliminary
investigations concerning serious injuries to the local
facility where the injury in question occurred. Plaintiff
Cannon testified that he refrained from raising concerns
with his state legislators about Thompson’s qualifications
as Inspector General while the State Senate was consider-
ing his appointment. However, there is also evidence that
plaintiff Bingaman contacted both his local union steward
and a state legislator regarding his troubles with Thompson
in the months following Thompson’s directives.
On August 3, 2001, Wernsing brought the present
suit alleging that Thompson’s pre-clearance directive
constituted an unlawful prior restraint on speech that
infringes on her First and Fourteenth Amendment rights.
Bingaman and Cannon later filed a motion to intervene
alleging that Thompson had violated their free speech
rights by issuing the directive and had impermissibly
retaliated against them for exercising those rights. In
January 2003, Wernsing amended her complaint to add a
First Amendment retaliation claim as well. Plaintiffs
requested several types of relief, including an injunction
No. 03-3956 9
barring future enforcement of Thompson’s directive,
declaratory relief, and money damages for humiliation,
stress and emotional anguish resulting from the imposition
of the directive, as well as for losses stemming from Thomp-
son’s alleged reprisals against them.
The plaintiffs also named Thompson’s Deputy Inspector
General, Sydney Roberts, as a defendant in the suit. While
the suit was pending, Thompson’s tenure as Inspector
General ended, and he was succeeded by Roberts. Upon
assuming the post of Inspector General, Roberts submitted
an affidavit to the district court averring that she had
“taken no action as to any employee based on the [direc-
tives],” and that she does “not consider the . . . [directives]
to be the official policy of the Office of the Inspector Gen-
eral.”
After discovery, the plaintiffs filed a motion for partial
summary judgment, arguing that they are entitled to
judgment as a matter of law on their prior restraint claims.
Thompson responded with his own motion for summary
judgment, seeking judgment as a matter of law on both the
prior restraint claim and the retaliation claim. Thompson
argued that he did not violate any of plaintiffs’ constitu-
tional rights and that, in any event, he was entitled to
qualified immunity as to both claims. In pressing his claim,
Thompson asserted that the plaintiffs were confidential
“policymaking” employees—or that he reasonably believed
them to be “policymaking” employees—who could be fired
for disloyal speech, and that therefore he could also place
prior restraints on their expressive activity. Roberts, having
formally disavowed Thompson’s pre-clearance directive,
sought to be dismissed from the suit.
In October, 2003, the district court ruled on the parties’
motions for summary judgment. The court granted the
plaintiffs’ motion for summary judgment on the prior
restraint claim, holding that Thompson’s directives consti-
10 No. 03-3956
tuted a prior restraint on speech, plaintiffs’ speech was
constitutionally protected, Thompson’s interest in prevent-
ing the speech did not outweigh plaintiffs’ interest in
commenting on matters of public concern and plain-
tiffs were not policymaking or confidential employees.
Wernsing, 286 F. Supp. 2d at 992-97. The court next denied
Thompson’s motion for summary judgment on
the retaliation claim, holding that plaintiffs’ e-mails to
Thompson (and Wernsing’s inquiry regarding the scope of
his directive) were constitutionally protected speech and
material questions of fact remained as to whether this
speech was a motivating factor in Thompson’s alleged
retaliatory acts against them. Id. at 997-99. The district
court also rejected Thompson’s claim of qualified immunity,
holding that it was clearly established that Thompson’s
alleged actions restricting or retaliating against plaintiffs’
speech on matters of public concern violated plaintiffs’
constitutional rights. Id. at 999-1001. However, the district
court did grant Thompson’s motion for summary judgment
with respect to plaintiffs’ request for injunctive relief,
holding that there was no substantial likelihood that
Thompson’s successor as Inspector General (Sydney
Roberts) would enforce Thompson’s directives. Id. at 1001-
02. The court accordingly also dismissed Roberts as a
defendant in the case. Id.Thompson now appeals the ruling of the district court,
claiming that he is entitled to qualified immunity as to
all of plaintiffs’ claims.
II. JURISDICTION
Subject to the standing requirements of Article III—to be
addressed in our discussion of plaintiffs’ prior restraint
claim—the district court had jurisdiction over this 42 U.S.C.
§ 1983 action pursuant to 28 U.S.C. §§ 1331, 1343(a). This
Court’s jurisdiction now rests on 28 U.S.C. § 1291, which
No. 03-3956 11
provides for appellate jurisdiction over all final orders
issued by the district court. Under the collateral order
doctrine, the district court’s denial of Thompson’s motion for
summary judgment based on qualified immunity is an
immediately appealable “final decision” within the meaning
of 28 U.S.C. § 1291 to the extent that it turns on legal
rather than factual questions. See Behrens v. Pelletier, 516
U.S. 299, 311 (1996); Mitchell v. Forsyth, 472 U.S. 511, 528-
30 (1985); Tangwall v. Stuckey, 135 F.3d 510, 515-16 (7th
Cir. 1998). However, a defendant invoking an immunity
defense “may not appeal a district court’s summary judg-
ment order insofar as that order determines whether or not
the pretrial record sets forth a ‘genuine’ issue of fact for
trial.” Johnson v. Jones, 515 U.S. 304, 319-20 (1995).
III. STANDARD OF REVIEW
This Court reviews de novo the district court’s denial of a
motion for summary judgment based on qualified immunity.
Upton v. Thompson, 930 F.2d 1209, 1211 (7th Cir. 1991).
Summary judgment is warranted when the evidence,
viewed in a light most favorable to the non-moving party,
presents “no genuine issue as to any material fact” such
that “the moving party is entitled to a judgment as a matter
of law.” FED. R. CIV. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986).
12 No. 03-3956
IV. DISCUSSION
Thompson appeals the ruling of the district court below,
claiming that he is entitled to qualified immunity on both
the First Amendment retaliation claim and the prior
restraint claim. In Harlow v. Fitzgerald, the Supreme Court
held that “governmental officials performing discretionary
functions generally are shielded from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” 457 U.S. 800, 818
(1982). Under Harlow and its progeny, a court evaluating a
claim of qualified immunity must conduct a now-familiar
two-step inquiry: First the court must determine whether
the disputed conduct, as alleged, violates a constitutional
right; second, the court must determine whether that right
was “clearly established” at the time of the alleged conduct.
Saucier v. Katz, 533 U.S. 194, 201 (2001). The Supreme
Court has explained the “clearly established” analysis as
follows:
This inquiry, it is vital to note, must be undertaken in
light of the specific context of the case, not as a broad
general proposition . . . . [T]he right the official is
alleged to have violated must have been “clearly estab-
lished” in a more particularized, and hence more
relevant, sense: The contours of the right must be
sufficiently clear that a reasonable official would
understand that what he is doing violates that right.
The relevant, dispositive inquiry in determining whether
a right is clearly established is whether it would be clear
to a reasonable officer that his conduct was unlawful in
the situation he confronted.
Id. at 201-02 (internal citations and quotations omitted)
(emphasis added). The plaintiff carries the burden of
establishing that a given right is “clearly established,” Rice
v. Burks, 999 F.2d 1172, 1174 (7th Cir. 1993), and to do so
No. 03-3956 13
the plaintiff must demonstrate either that a court has
upheld the purported right in a case factually similar to the
one under review, or that the alleged misconduct consti-
tuted an obvious violation of a constitutional right. Chan v.
Wodnicki, 123 F.3d 1005, 1008 (7th Cir. 1997). However,
“liability is not predicated upon the existence of a prior case
that is directly on point.” Nabozny v. Podlesny, 92 F.3d 446,
456 (7th Cir. 1996).
Mindful of these precedents, we can now address the
specific claims before us. For each claim we must determine
(1) whether plaintiffs have alleged violation of a valid
constitutional right and (2) whether that right was “clearly
established” at the time of the alleged misconduct. In
this case the relevant time frames begin on or about
December 5, 2000, for the prior restraint claim (the date
that Thompson sent his directive to the plaintiffs) and
January of 2001 for the retaliation claim (the date that
Thompson began a series of alleged reprisals against the
plaintiffs).
A. Prior Restraint Claim
1. Justiciability
Before addressing the merits of plaintiffs’ prior re-
straint claim,3 we must first consider threshold issues of
3
We note at the outset that the plaintiffs, in challenging an
internal e-mail as a “prior restraint” on speech, advance a
somewhat unconventional claim. Prior restraints frequently
arise in the form of judicial injunctions against certain types
of speech (to which the collateral-bar rule applies), or, perhaps
less commonly, in the form of formal statutes or regulations
barring or constraining certain expressive activity. But see Crue
v. Aiken, 370 F.3d 668, 679-80 (7th Cir. 2004) (characterizing
(continued...)
14 No. 03-3956
justiciability, which bear on our jurisdiction. “Jurisdiction
is the ‘power to declare law,’ and without it the federal
courts cannot proceed.” Hay v. Ind. State Bd. of Tax
Comm’rs, 312 F.3d 876, 879 (7th Cir. 2002) (quoting
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999)).
“Accordingly, not only may the federal courts police subject
matter jurisdiction sua sponte, they must.” Id. (emphasis in
original); see also Wingerter v. Chester Quarry Co., 185 F.3d
657, 660 (7th Cir. 1998) (“A court of appeals has an obliga-
tion to examine its jurisdiction sua sponte, even if the
parties fail to raise a jurisdictional issue.”).
First and foremost is the question of standing. “Article III
of the Constitution confines the federal courts to adjudicat-
ing actual ‘cases’ and ‘controversies.’ ” Allen v. Wright, 468
U.S. 737, 750 (1984). “[T]he core component of standing is
an essential and unchanging part of the case-or-controversy
requirement of Article III.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). The “irreducible constitu-
tional minimum” of standing requires three elements:
First, the plaintiff must have suffered an injury in
fact—an invasion of a legally protected interest which
is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical. Second, there
must be a causal connection between the injury and the
conduct complained of—the injury has to be fairly . . .
trace[able] to the challenged action of the defendant,
and not . . . th[e] result [of] the independent action of
3
(...continued)
a university president’s internal pre-clearance directive, dis-
seminated via e-mail, as a prior restraint on speech). Here, since
both sides have used the phrase “prior restraint” in marshaling
their arguments, we will also use that term. However, we offer
no view as to whether, as a general proposition, an e-mail
directive should always be analyzed in the same way as an
injunction, statute or a formal regulation.
No. 03-3956 15
some third party not before the court. Third, it must be
likely, as opposed to merely speculative, that the injury
will be redressed by a favorable decision.
Id. at 560-561 (internal citations and quotation marks
omitted).
Thompson argues that plaintiffs lack standing to chal-
lenge his pre-clearance directive since they have not
demonstrated any “actual injury or any imminent threat of
injury due to the directive.” (Thompson May 27, 2005 Supp.
Mem. at 4.) Specifically, he claims that, in order to make
out a concrete “injury in fact” for standing purposes,
plaintiffs must have sought permission to speak, been
denied, spoken out anyway and been subject to disci-
pline. (Id. at 9.) This argument is both conceptually and
legally flawed. First, the hypothetical chain of events
outlined by Thompson describes a First Amendment
retaliation case involving post-hoc punishment for dis-
favored speech, not a prior restraint which seeks to limit
expressive activity before it occurs. Thompson’s proposed
paradigm would preclude litigation of prior restraints
altogether.
Second and more fundamentally, the Supreme Court
and this Court have held that government policies placing
prior restraints on employee speech may be challenged
facially. That is, government employees whose speech is
limited by an internal policy or a pre-clearance directive
such as Thompson’s need not seek permission to speak or
violate the directive in order to challenge the directive in
court. See United States v. Nat’l Treasury Employees Union
(NTEU), 513 U.S. 454, 461-62 (1995) (allowing facial
challenge to a ban on honoraria for public speaking by
government employees); Crue v. Aiken, 370 F.3d 668, 679-80
(7th Cir. 2004) (allowing challenge to pre-clearance direc-
tive by both plaintiff who had sought permission to speak
and plaintiffs who had not); Harman v. City of New York,
16 No. 03-3956
140 F.3d 111, 118 (2d Cir. 1998) (allowing facial challenge
to city agency’s pre-clearance directive banning unapproved
speech to the media); Providence Firefighters Local 799 v.
City of Providence, 26 F. Supp. 2d 350, 354 (D.R.I. 1998)
(citing NTEU for this proposition).4
Yet establishing that plaintiffs may, as a general proposi-
tion, facially challenge a pre-clearance directive like Thomp-
son’s gets us only half way home. The undisputed evidence
reveals that Thompson’s directive is no longer in force, and
4
Thompson cites the Ninth Circuit’s decision in Portland
Police Association v. City of Portland, 658 F.2d 1272 (9th Cir.
1981), in support of his argument that plaintiffs lack standing.
However, Thompson’s reliance on Portland Police is misplaced. In
that case, the Ninth Circuit held that the Police Association could
not challenge a new order from the police chief requiring police
officers to prepare reports after “major incidents” and precluding
them from consulting with an attorney unless their superiors
determined that they might be exposed to employment sanctions
or criminal liability. The court determined that since injurious
application of the order to any single officer hinged on a number
of contingencies, none of which had come to pass, the plaintiffs’
claims of injury were too speculative and abstract to confer
standing in federal court. Id. at 1273-74.
Here, by contrast, the injurious effects of Thompson’s directive
do not depend on any external contingency. The very existence
of such a pre-clearance requirement raises the specter of self-
censorship, even among those who ultimately receive permission
to speak. See City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S.
750, 757 (1988) (“[T]he mere existence of the licensor’s unfettered
discretion, coupled with the power of prior restraint, intimidates
parties into censoring their own speech, even if the discretion and
power are never actually abused.”); Thornhill v. Alabama, 310
U.S. 88, 97 (1940) (“It is not merely the sporadic abuse of power
by the censor but the pervasive threat inherent in its very
existence that constitutes the danger to freedom of discussion.”);
Harman, 140 F.3d at 120 (same) (citing City of Lakewood). This is
precisely why facial challenges to such directives are permitted.
No. 03-3956 17
this raises the specter of mootness. Implicit in the “case-or-
controversy” requirement of Article III is the principle that
“federal courts may not give opinions upon moot questions
or abstract propositions.” Worldwide St. Preachers’ Fellow-
ship v. Peterson, 388 F.3d 555, 558 (7th Cir. 2004) (internal
quotations omitted). Here the district court did indeed find
the issue of plaintiffs’ requested injunctive relief to be moot.
286 F. Supp. 2d at 1001-02. The court reasoned that “[a]s
Defendants have sufficiently demonstrated that the policy
from which Plaintiffs sought relief no longer exists and that
the illegal prior restraint of speech at issue in this case
cannot reasonably be expected to reoccur, the claim for
injunctive relief is effectively moot, as there is no need to
enjoin prospective action that would violate federal law.” Id.This determination appears to be correct. While the
mootness doctrine does not necessarily apply to voluntary
cessation of illegal activity, United States v. W. T. Grant
Co., 345 U.S. 629, 632 (1953); Milwaukee Police Ass’n v.
Jones, 192 F.3d 742, 747 (7th Cir. 1999), or to actions
“capable of repetition yet evading review,” Krislov v.
Rednour, 226 F.3d 851, 858 (7th Cir. 2000), “the moving
party must still satisfy the court that injunctive relief is
required,” Milwaukee Police Ass’n, 192 F.3d at 748. “ ‘The
necessary determination is that there exists some cogniza-
ble danger of recurrent violation, something more than
the mere possibility which serves to keep the case alive.’ ”
Id. (quoting W.T. Grant, 345 U.S. at 633). The mere
“theoretical possibility” of a repeat violation is not enough.
Walsh v. United States Dep’t of Veterans Affairs, 400 F.3d
535, 537 (7th Cir. 2005); accord In re Associated Press, 162
F.3d 503, 511 (7th Cir. 1998) (requiring a “reasonable
expectation that the same complaining party would be
subjected to the same action again”) (internal quotations
omitted).
Here Sydney Roberts, Thompson’s successor, theoretically
could reimpose his pre-clearance directive, but nothing in
18 No. 03-3956
the record suggests that she is likely to do so. Her
uncontroverted affidavit states that she has “taken no
action as to any employee based on the [directive],” and that
she does “not consider the . . . [directive] to be the official
policy of the Office of the Inspector General.” The directive
at issue was personal to Thompson, and the possibility of a
recurrence remains purely speculative. Thus even assuming
that Thompson’s directive constitutes an impermissible
restraint on speech, there remains no misconduct for this
court to enjoin. We have quite recently held that where an
internal pre-clearance directive such as this one is perma-
nently withdrawn or disclaimed by
the government/employer, any claims for injunctive re-
lief are moot. See Crue v. Aiken, 370 F.3d 668, 677-78 (7th
Cir. 2004).
Plaintiffs’ argument that Thompson’s appeal does not
implicate the district court’s mootness determination—and
thus that the mootness issue is not properly before us—is
also unavailing. Mootness, like standing, “is always a
threshold jurisdictional question that we must address even
when it is not raised by the parties.” Peterson, 388 F.3d at
558; see also North Carolina v. Rice, 404 U.S. 244, 246
(1971). Plaintiffs’ claim for injunctive relief is moot and will
not figure in our analysis here.
However, plaintiffs also seek monetary damages for
humiliation, stress and emotional anguish resulting from
the imposition of the directive. Such claims are not moot,
even if the underlying misconduct which caused the injury
has ended. See Powell v. McCormack, 395 U.S. 486, 496
(1969) (holding that although injunctive relief was moot, a
case or controversy still existed since the plaintiff requested
declaratory relief and damages); Crue, 370 F.3d at 677-678(holding that although the plaintiff’s request for injunctive
relief was moot, the court had to consider the merits of the
case since requests for declaratory relief and damages
No. 03-3956 19
remained).5 Generally, any “person whose injury can be
redressed by a favorable judgment has standing to litigate,”
Fed. Deposit Ins. Corp. v. Ernst & Young LLP, 374 F.3d 579,
581 (7th Cir. 2004), and injuries compensable in monetary
damages can always be redressed by a court judgment.
Similarly, “[w]hen a claim for injunctive relief is barred but
a claim for damages remains, a declaratory judgment as a
predicate to a damages award can survive.” Crue, 370 F.3d
at 677.
Thus while plaintiffs’ claim for injunctive relief is moot,
plaintiffs’ claims for monetary damages and declaratory
relief still present a live case or controversy, and therefore
we must proceed to consider the substantive merits of
plaintiffs’ prior restraint claim.
2. The Merits
In granting summary judgment to the plaintiffs on their
prior restraint claims, the district court ruled that Thomp-
son’s directives chilled or actually prevented plaintiffs’
speech on a matter of public concern, were fatally overbroad
and were based on merely conjectural concerns regarding
both the content of plaintiffs’ speech and its potential
impact. 286 F. Supp. 2d at 992-97. Thompson’s main
argument on appeal—which the district court rejected, id.at 996-97—is that plaintiffs were “policymaking” or “confi-
dential” employees under Elrod v. Burns, 427 U.S. 347(1976), and Branti v. Finkel, 445 U.S. 507 (1980), and thus
that he could restrict their speech on matters relating to
OIG operations. The logic of Thompson’s argument is that
5
This approach squares with the general proposition that
“[w]here several forms of relief are requested and one of these
requests subsequently becomes moot, the Court has still consid-
ered the remaining requests.” Powell, 395 U.S. at 496 n.8.
20 No. 03-3956
since such “policymaking” employees may actually be fired
for disloyal expressive activity under Elrod and its progeny,
he should be able to take the less extreme measure of
restricting their speech in the first instance.
This line of argument is dubious on several levels. First,
it appears fairly clear that ISI 2s are not “policymaking”
officials under Elrod and it progeny. Notwithstanding the
fact that ISI 2s often handle sensitive or confidential
information, there is no indication that the position “autho-
rizes, either directly or indirectly, meaningful input into
government decisionmaking on issues where there is room
for principled disagreement on goals or
their implementation,” Nekolny v. Painter, 653 F.2d 1164,
1170 (7th Cir. 1981), or that “party affiliation is an appro-
priate requirement for performing the job.” Carlson v.
Gorecki, 374 F.3d 461, 464 (7th Cir. 2004); accord Branti,
445 U.S. at 518 (same test). At least one district court has
specifically held it to be clearly established that ISI 2s are
not policymaking employees. Thornburg v. Peters, 155 F.
Supp. 2d 984, 990-91 (C.D. Ill. 2001); see also 20 Ill. Comp.
Stat. 415/4a(2) (2005) (suggesting that ISI 2 positions are
not political appointments but are to be held based on
“merit and fitness”).
Yet even if this point could be disputed,6 the plaintiffs’
6
As the parties point out in their briefs, the case law pulls in
somewhat different directions on this point. Compare Americanos
v. Carter, 74 F.3d 138, 142-43 (7th Cir. 1996) (holding that an
Indiana Deputy Attorney General qualified as a policymaker since
he researched complex legal issues concerning cases in the AG’s
office and had “the direct ability to implement the policies and
goals of the AG for the State of Indiana”) and Hudson v. Burke,
913 F.2d 427, 431-32 (7th Cir. 1990) (holding that the district
court did not commit clear error by ruling that “investigators” or
“legislative aides” for the City of Chicago Finance Committee were
(continued...)
No. 03-3956 21
status as policymaking employees is not necessarily rele-
vant to the legality of Thompson’s directive. Even assuming
that Thompson could fire the plaintiffs for certain speech
activity, it does not follow that he should be able to restrain
their expressive activity ex ante. Certainly, from an individ-
ual employee’s perspective, outright termination might
appear the more extreme disciplinary measure. However,
purely as a matter of First Amendment freedoms, the public
ramifications of a prior restraint on speech may actually be
far more severe. Unlike ex post reprisals for speech activity,
a prospective restriction “chills potential speech before it
happens,” depriving the public of information that might
otherwise be disseminated. NTEU, 513 U.S. at 468. It is
therefore well settled that the government’s prospective
restriction of future speech is approached with a greater
presumption of unconstitutionality than post-hoc disciplin-
ary actions against specific employees for speech already
uttered. NTEU, 513 U.S. at 467-68; Crue v. Aiken, 370 F.3d
at 678; Milwaukee Police Ass’n, 192 F.3d at 749-50.7
6
(...continued)
policymaking employees since they “have ‘inherent’ in their
position the power to investigate, report facts and have input into
those areas of politically sensitive governmental decisionmaking”)
with Matlock v. Barnes, 932 F.2d 658 (7th Cir. 1991) (affirming a
jury verdict in favor of a Legal Investigator in the Gary, Indiana
City Legal Department, ruling there was ample evidence that he
was not a policymaking employee).
7
In order to justify such a prospective restriction, the govern-
ment “must show that the interests of both potential audiences
and a vast group of present and future employees in a broad range
of present and future expression are outweighed by that expres-
sion’s ‘necessary impact on the actual operation’ of the Govern-
ment.” NTEU, 513 U.S. at 468 (quoting Pickering, 391 U.S., at
571); see also Milwaukee Police Ass’n, 192 F.3d at 750 (same)
(quoting NTEU, 513 U.S. at 468). This is a more onerous burden
than that required to justify post-hoc reprisals for expressive
(continued...)
22 No. 03-3956
Accordingly, the Elrod policymaker rule is traditionally
applied only in cases of patronage hiring and firing,
see, e.g., Kiddy-Brown v. Blagojevich, 408 F.3d 346, 354-57
(7th Cir. 2005); Thompson v. Ill. Dep’t of Prof’l Regulation,
300 F.3d 750, 751-52 (7th Cir. 2002), or in cases of First
Amendment retaliation, see, e.g., Vargas-Harrison v. Racine
Unified Sch. Dist., 272 F.3d 964, 970, 971-72 (7th Cir.
2001); Bonds v. Milwaukee County, 207 F.3d 969, 977 (7th
Cir.), cert. denied, 531 U.S. 944 (2000). Accepting Thomp-
son’s novel rule would imply a bold and perhaps unwar-
ranted departure from both Supreme Court precedent and
traditional understandings of Elrod and its progeny.
Nothing in the case law anticipates an absolute
“policymaker” exception for prior restraint claims, and
this would fly in the face of the Supreme Court’s distinction
between prospective regulations and ad hoc retaliation for
specific instances of speech. The approach actually sug-
gested by the case law is probably one whereby the politi-
cally sensitive or secretive nature of the employment
context can factor into the court’s evaluation of the govern-
ment’s justification for prohibiting the speech, including the
“expression’s ‘necessary impact on the actual operation’ of
the Government.” NTEU, 513 U.S. at 468 (quoting
Pickering, 391 US. at 571).
Perhaps anticipating these difficulties, Thompson also
argues, in the alternative, that even if plaintiffs are not
considered policymaking employees, or even if the “policy-
maker” exception outlined in Elrod does not apply to prior
restraint claims, those propositions were not clearly
established at the time of his alleged misconduct. For these
reasons, Thompson claims he is entitled to qualified
immunity.
7
(...continued)
activity. See Sullivan v. Ramirez, 360 F.3d 692, 698 (7th Cir.
2004).
No. 03-3956 23
We are satisfied that Thompson is entitled to qualified
immunity, though not for the precise reasons he advances.
Simply put, Thompson must prevail in the present suit
since it was not clearly established, at the time the pre-
clearance directive was first issued (December 5, 2000), that
such a directive constituted an unlawful prior restraint on
speech.
Of course the case law on prior restraints is replete with
decisions invalidating zoning ordinances, licensing schemes,
permit regulations and other official acts that limit expres-
sive activity. Additionally, our recent decision in Crue v
Aiken, where we held a similar pre-clearance directive to
constitute an unlawful prior restraint on speech, casts
serious doubt upon the legality of Thompson’s directive. See
Crue, 370 F.3d at 680 (holding unconstitutional a university
chancellor’s pre-clearance directive banning all speech
directed toward prospective student athletes without prior
permission). However, while the constitutional limits of
restraints applicable to the general public are well-settled,
and while the Supreme Court has struck down formal
statutory bans of certain speech activity by government
employees, see NTEU, 513 U.S. 454, the prerogatives of a
government supervisor in managing the communications of
his own staff are far less clear. We emphasize that our
analysis of qualified immunity here is focused specifically
and exclusively on this kind of relatively informal supervi-
sory directive aimed at close subordinates.8 In December
2000 case law touching on this kind of internal pre-clear-
ance directive was decidedly scant and, to the extent that it
8
In this respect the present case differs significantly from Crue.
The e-mail directive at issue in Crue, issued by the president
of the University of Illinois, applied not just to the president’s own
staff or other University employees, but to all University students
and all “others associated with the University.” 370 F.3d at 674-
75.
24 No. 03-3956
existed at all, actually suggested that such directives are
permissible.
Indeed we have approved similar pre-clearance screen-
ing directives before. In Zook v. Brown, a case that came
before this Court twice, we upheld a sheriff’s department
regulation prohibiting officers from engaging in testimoni-
als or advertisements without prior approval of the sheriff.
865 F.2d 887, 891-92 (7th Cir. 1989) (Zook II). We reasoned
that the sheriff had a legitimate interest in maintaining the
appearance of integrity and impartiality of the police force,
and the restrictions were sufficiently tailored to a narrow
category of problematic speech—ads and testimonials. Id.Moreover, in our first treatment of Zook we actually held
that any legal infirmity in the sheriff’s order was not clearly
established at the time of the order. Zook v. Brown, 748
F.2d 1161, 1165 (7th Cir. 1984) (Zook I). In a subsequent
case, we also upheld elementary school rules requiring
students to obtain prior approval of the school principal
before distributing private handbills. Muller by Muller v.
Jefferson Lighthouse Sch., 98 F.3d 1530, 1541 (7th Cir.
1996). But see Fujishima v. Bd. of Educ., 460 F.2d 1355 (7th
Cir. 1972) (holding unconstitutional a board of education
rule prohibiting any person from distributing any publica-
tions on school premises without prior approval of the
general superintendent of schools).
Two earlier Supreme Court cases dealing with pre-
publication screening regulations in government agencies
also point in the same direction. In Brown v. Glines, 444
U.S. 348 (1980), the Court upheld Air Force regulations
requiring service members to obtain approval from their
commanders before circulating petitions on Air Force bases.
In Snepp v. United States, 444 U.S. 507 (1980), the Court
upheld the enforcement of an agreement signed by an agent
of the CIA whereby he promised not to publish any informa-
tion “relating to the Agency,” during or after his term of
employment, “without specific prior approval by the
No. 03-3956 25
Agency”. Id. at 507; cf. Weaver v United States Info. Agency,
87 F.3d 1429, 1443 (D.C. Cir. 1996) (upholding regulation
requiring employees of U.S. Information Agency and certain
other federal agencies to submit materials regarding
matters of official concern to pre-publication screening).
To be sure, these cases are in some respects distinguish-
able from the present case. The regulation at issue in Zook
(which was limited to ads and testimonials) was far more
narrowly tailored than the one issued by Thompson here,
which simply prohibited all communication regarding OIG
operations with any “external agent.” Additionally, even
as it affirmed the sheriff’s screening of police officer ad-
vertisements and testimonials, the panel in Zook reiterated
its belief that the regulation would not prohibit speech on
matters of public concern and warned against broader
restrictions that might give “unfettered enforcement discre-
tion.” 865 F.2d at 892. Most of the other cited cases also
involve unique institutional settings such as an elementary
school (Muller), the armed forces (Brown) and the CIA
(Snepp), contexts where the government presumably has a
heightened interest in preempting certain types of speech.
Additionally, all of these cases predated the Supreme
Court’s more exacting pronouncements on prior restraints
in NTEU and Davis.
Yet all this is just to say that Thompson’s directive
was not clearly authorized by existing case law as of
November 2000. The relevant question, however, is not
whether his actions were expressly authorized by existing
law, but whether they were clearly forbidden—i.e., whether
a reasonable official would have known the actions in
question were illegal. Saucier, 533 U.S. 202 (“The relevant,
dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted.”). In the absence of a case factually similar to
the one at bar, an official is entitled to qualified immunity
26 No. 03-3956
unless the alleged misconduct constitutes an obvious
violation of a constitutional right. Chan, 123 F.3d at 1008.
Yet to the extent that these cases— distinguishable as they
are—point in any direction, they suggest that pre-clearance
directives such as this one are permissible.
The institutional context of Thompson’s directive is also
relevant here. While it is not the CIA, the OIG is an agency
that depends on confidentiality and secrecy in carrying out
its public mission. In the course of its investigations the
OIG routinely handles extremely sensitive information, and
its employees must adhere to strict confidentiality require-
ments. Under the circumstances— and given the state of
the law at the time—it may not have been unreasonable for
Thompson to think that he could instruct his own employ-
ees not to discuss agency business with outside parties.
The district court, of course, arrived at a contrary ruling,
stating that “long before Thompson issued his directive, the
Supreme Court had held that ‘any prior restraint
on expression comes to this Court with a “heavy presump-
tion” against its constitutional validity,’ ” and asserting that
“it was equally well-established that prior restraints, often
referred to as a ‘most extraordinary remed[y]’, have been
upheld ‘only where the evil that would result from there
portage is both great and certain and cannot be militated by
less intrusive measures.’ ” 286 F. Supp. 2d at 999 (quoting
Davis, 510 U.S. at 1317). The district court concluded by
stating that “it was clearly established prior to December
2000 that if Plaintiffs wanted to speak on a matter of public
concern, and their interests in doing so outweighed any of
Thompson’s legitimate interests, precluding their speech
without substantial justification and retaliating against
them for that speech would be illegal.” Id. at 1000.
Yet this formulation is exactly what the Supreme Court
has instructed courts not to do—it frames the clearly
established inquiry in terms of a general proposition rather
than the specific factual situation that confronted the
defendant official. The Court has been quite clear that
No. 03-3956 27
“[t]his inquiry . . . must be undertaken in light of the specific
context of the case, not as a broad general proposition . . . .
The relevant, dispositive inquiry in determining whether a
right is clearly established is whether it would be clear to
a reasonable officer that his conduct was unlawful in the
situation he confronted.” Saucier, 533 U.S. at 201-02
(emphases added). If the clearly established question could
be resolved merely by observing that unjustified prior
restraints on speech are prohibited, then no defendant could
ever prevail on the clearly established prong of the qualified
immunity analysis—the inquiry would always produce an
outcome identical to that issuing from the first prong of the
immunity analysis (violation of a valid legal right).9
In short, a reasonable official in Thompson’s position
could not have known definitively, in December 2000,
whether issuing such a pre-clearance directive violated
plaintiffs’ First Amendment rights. See Saucier, 533 U.S. at
202. Accordingly, Thompson’s motion for summary judg-
ment based on qualified immunity must be granted.10
B. First Amendment Retaliation Claim
Unlike plaintiffs’ prior restraint claim, there is no doubt
that the retaliation claim presents a live case or contro-
versy. The sole question here concerns the merits of Thomp-
son’s motion for summary judgment on grounds of qualified
9
It appears that the panel in Crue may have similarly misframed
the clearly established analysis, see 370 F.3d at 680, however we
have no occasion to offer any ruling on this point.
10
Contrary to the district court’s suggestion, the Supreme
Court’s decision in NTEU does not itself resolve the “clearly
established” inquiry. That case involved a formal statutory ban
prohibiting unconditionally the receipt of honoraria by all
government employees. Such a sweeping legal enactment is
clearly distinct from the kind of informal, internal directive
at issue here.
28 No. 03-3956
immunity.
It is by now well established that the government may not
arbitrarily silence the constitutionally-protected speech of
its employees. Government workers do not forfeit their First
Amendment rights simply by accepting pubic-sector employ-
ment. Claims of retaliation for exercise of First Amendment
rights in the public employment context are evaluated
through a now-familiar three-step analysis. “First, the court
must determine whether the employee’s speech was consti-
tutionally protected under the Connick- Pickering test.
Second, the plaintiff must establish that the speech was a
substantial or motivating factor in the retaliatory action.
Third, the defendant has an opportunity to establish that
the same action would have been taken in the absence of
the employee’s protected speech.” Sullivan v. Ramirez, 360
F.3d 692, 697 (7th Cir. 2004).
In order to determine whether speech is constitutionally
protected, we must engage in a two-part inquiry known as
the “Connick-Pickering test.” Id. (citing Coady v. Steil, 187
F.3d 727, 731 (7th Cir. 1999); Connick v. Myers, 461 U.S.
138 (1983); Pickering v. Bd. of Educ., 391 U.S. 563 (1968)).
“Under Connick, we must determine whether the speech
addressed a matter of public concern. If the speech did
involve such a concern, under the Pickering balancing test,
we then must determine whether the government’s interest
as an employer in providing effective and efficient services
outweighs the employee’s interest as a citizen in comment-
ing upon the matter of public concern.” Id. at 698. “The
determination of whether the speech is constitutionally
protected is a question of law for the court.” Id. (citing
Kokkinis v. Ivkovich, 185 F.3d 840, 843 (7th Cir. 1999)).
Here we need proceed no further than the Connick public
concern inquiry. Plaintiffs have failed to demonstrate that
they engaged in speech on a matter of public concern, and
therefore Thompson is entitled to qualified immunity as
No. 03-3956 29
a matter of law.
There are three incidents of potentially protected speech
at issue in this case: (1) Plaintiffs’ November 2000 e-mails
to Thompson requesting a meeting to discuss unspecified
concerns about a rumored appointment, (2) Wernsing’s
January 2001 inquiry requesting clarification of the scope
of Thompson’s directives and (3) plaintiffs’ meeting with
Thompson in March 2001 where they articulated their
specific concerns regarding Fuentes’ possible appointment
as Southern Bureau chief. Since the plaintiffs did not
advance their speech at the March 2001 meeting as a basis
for their retaliation claim before the district court, they
have waived any argument based on this speech. See
Premcor USA, Inc. v. Am. Home Assurance Co., 400 F.3d
523, 530 (7th Cir. 2005) (“We need not tarry over this
argument; it was not presented to the district court and
was, therefore, waived.”); Williams v. REP Corp., 302 F.3d
660, 666 (7th Cir. 2002) (“A party waives any argument that
it does not raise before the district court . . . .”) (internal
quotations omitted).
That leaves plaintiffs’ e-mails to Thompson and
Wernsing’s inquiry regarding the scope of Thompson’s
directive. Whether a government employee’s speech ad-
dresses a matter of public concern depends upon “the
content, form, and context of [the speech], as revealed by
the whole record.” Connick, 461 U.S. at 147-48; see also
Gustafson v. Jones, 290 F.3d 895, 906-07 (7th Cir. 2002)
(quoting Connick); Ramirez, 360 F.3d at 699 (same). Among
these factors the content of the speech is the
most important. See Ramirez, 360 F.3d at 699. To satisfy
the public concern requirement, the speech in question
“must relate to a community concern” and may not be
“merely a personal grievance of interest only to the em-
ployee.” Id. (internal quotations omitted).
30 No. 03-3956
1. Plaintiffs’ e-mails
With respect to plaintiffs’ e-mails, the district court ruled
that, while the e-mails did not articulate any specific
grievance or concern, they nonetheless constituted speech
on a matter of public concern since “the speech involved
an effort by employees to bring to light claims of actual
mismanagement and gross negligence in the conduct of OIG
business by Fuentes. . . .” 286 F. Supp. 2d at 994. The court
explained that “[a]lthough the e-mails were vague and
lacking in specific details, the text of the e-mails can
reasonably be read to support Plaintiffs’ asserted public
purpose in speaking, as well as the contention that their
complaints were motivated by considerations of public
safety and the welfare of the mentally ill and developmen-
tally disabled persons receiving DHS services who did
not receive adequate protection during Fuentes’ alleged
mismanagement of the Southern Bureau.” Id. Having
determined that plaintiffs’ e-mails fit the bill, the district
court apparently did not reach the question whether
Wernsing’s inquiry qualified as speech on a matter of public
concern as well.
This ruling was erroneous. Plaintiffs’ e-mails cannot
be considered speech on a matter of public concern for
the simple reason that they articulate no particular view-
point, grievance or complaint; they merely request a
meeting with Thompson. In pressing their case, plaintiffs
argue as if their concerns about Fuentes had actually been
aired in the two e-mails. They had not. Regardless of
whether the appointment of an incompetent director to the
OIG Southern Bureau constitutes a matter of public
concern,11 we need not mire ourselves in hypotheticals
11
Because we need not reach this issue, we decline to offer a
definitive ruling on the substantive nature of plaintiffs’ underly-
(continued...)
No. 03-3956 31
because plaintiffs’ e-mails never broached this topic. They
said only that they wanted to meet with Thompson to
discuss unspecified “concerns” about a potential appoint-
ment in the OIG.
Apparently recognizing this fundamental difficulty,
plaintiffs argue in their brief that the content “desired to be
communicated” is a key consideration, and they ask us to
focus our inquiry on the “underlying speech—the speech
that the Plaintiffs sought to bring to defendant’s attention
by means of the e-mails.” (Bingaman & Cannon Br. at 15
(emphasis in original).) They cite Smith v. Fruin, 28 F.3d
646, 651 (7th Cir. 1994), for the proposition that “the point
of the speech in question” is relevant to the public concern
inquiry. Id. (emphasis in original). This line of argument is
nonsensical. In their references to “underlying speech” that
is “sought” to be expressed, plaintiffs are actually referring
to speech which has not yet occurred, which, for First
Amendment retaliation purposes, is no speech at all. This
Court’s precedents instruct that the content of the speech is
the most important factor in determining the public concern
element, see Ramirez, 360 F.3d at 699, not the inchoate
intentions or views that the speaker privately holds.
We have previously held that otherwise unprotected
speech does not suddenly attain protected status simply
because it is animated by a viewpoint which, if actually
expressed, might itself merit First Amendment protection.
For example, in Colburn v. Trustees of Indiana University,
973 F.2d 581 (7th Cir. 1992), we ruled that university
11
(...continued)
ing concerns. Aside from the fact that Article Three prohibits
us from issuing advisory rulings, see Lujan, 504 U.S. at 560,
the Supreme Court appears poised to consider a similar ques-
tion in Garcetti v. Ceballos, which will be argued later this Fall,
125 S. Ct. 1395 (2005) (granting certiorari).
32 No. 03-3956
faculty members’ request for external review of a faculty
committee that made recommendations on professional
advancement did not touch upon a matter of public concern,
even though plaintiffs had claimed that the committee was
biased against faculty members who had not joined the
faculty union. Id. at 586. We noted that while speech
relating to unionizing and collective activity may be a
matter of public concern, the speech at issue—the request
for an external review—failed to specify that this was the
nature of the committee’s bias.12 Id. Similarly, in Yoggerst
v. Hedges, 739 F.2d 293 (7th Cir. 1984), we ruled that an
employee’s expression of happiness upon hearing a rumor
that the director of her office had been fired13 was not
speech that touched on a matter of public concern. Id. at
296. We explained that although the question whether the
director was adequately qualified would constitute a matter
of public concern, the plaintiff’s bare statement of approval
conveyed no information about the director’s actual qualifi-
cations and would provide no basis for determining them.
Id.14
12
This lack of specificity was not the only basis for our ruling
on the public concern issue in Colburn. We also noted that
the plaintiffs were not attempting to inform the public about
the matter—their primary motivation concerned their own
standing within the university. See 973 F.2d at 586.
13
Plaintiff merely asked a co-worker: “Did you hear the good
news?”
14
Our disposition here also finds support in Connick itself—the
very font of the modern public concern analysis. The Court in
Connick ruled that several internal survey questions circulated by
the plaintiff did not touch on matters of public concern since “if
released to the public, [the questions] would convey no informa-
tion at all other than the fact that a single employee is upset with
the status quo.” 461 U.S. 138, 148 (1983). Similarly, plaintiffs’ e-
mails here contained no information that would have been useful
(continued...)
No. 03-3956 33
In the retaliation context, speakers simply may not
invoke the protections of the First Amendment based on
unexpressed viewpoints or unuttered thoughts. Government
officials are not mind readers. The fact that members of the
OIG wanted to meet with the Inspector General about the
rumored appointment of an unspecified person does not, by
itself, constitute a matter of concern to the public.
Perhaps recognizing that Thompson’s psychic powers
are limited, the plaintiffs next argue that Thompson should
have attempted to ascertain the unspecified “concerns” that
lay behind plaintiffs’ cryptic e-mails; they assert that any
uncertainty as to their viewpoints or motives was caused by
Thompson’s failure to follow up or investigate. The plain-
tiffs argue that Waters v. Churchill, 511 U.S. 661, 677-78
(1994), establishes a general “duty, before retaliating, to
reasonably inquire as to the nature of the concerns which
Plaintiffs asked to express.” (Wernsing Br. at 29.) Waters
stands for no such proposition. Waters holds that govern-
ment supervisors must make a reasonable investigation
into the content of the speech at issue and the identity of
the relevant speakers before disciplining their employees
for expressive activity. It articulates a factor that courts
should consider in evaluating an employer’s response to
speech under the Pickering balancing test, and it helps to
clarify “what should happen if the defendants hold an
erroneous and unreasonable belief about what plaintiff
said.” Id. at 678.
Here, of course, there was no erroneous or unreasonable
belief about what plaintiffs said—Thompson received the
14
(...continued)
or noteworthy to the public at large, and if disseminated would
reveal only that several OIG staff members sought a meeting with
the Inspector General to air unspecified concerns about an
unspecified appointment.
34 No. 03-3956
full text of both e-mails and correctly identified all the
authors. More fundamentally, Waters and its progeny do not
address the antecedent question whether the speech at
issue, considered in its own right, addresses a matter of
public concern, and it certainly does not enshrine any duty
to investigate the possible meaning of a facially innocuous
communication or random missive from an employee.15
It would be unduly onerous to place a legal duty on govern-
ment employers to ascertain whether employees who make
vague requests for meetings might have something of public
concern in mind.
2. Wernsing’s Inquiry
This brings us to Wernsing’s request for clarification of
Thompson’s directive—specifically, her inquiry as to wheth-
er the directive permitted her to discuss office business with
her union representative, an attorney or a legislator. This
act of “speech” meets the same fate as plaintiffs’ e-mails.
While it might be of mild interest to the public that Thomp-
son had issued such a pre-clearance directive—and plain-
tiffs’ briefs make a weak gesture in this
direction—Wernsing clearly was not seeking to protest the
directive, disseminate information or express any particular
viewpoint about it. She was merely seeking clarification as
to how the directive applied to her individually. The posture
of Wernsing’s inquiry is analogous to the internal question-
naire circulated by the plaintiff in Connick, who
did not seek to inform the public that the District
Attorney’s office was not discharging its governmental
15
The other cases cited by plaintiffs, e.g., Jefferson v. Ambroz,
90 F.3d 1291, 1299 (7th Cir. 1996) (Rovner, J., concurring), sim-
ilarly bear on the reasonableness of a supervisor’s response to
speech, not the public concern aspect of the speech itself.
No. 03-3956 35
responsibilities in the investigation and prosecution
of criminal cases. Nor did [the plaintiff] seek to bring to
light actual or potential wrongdoing or breach of public
trust on the part of Connick and others. Indeed, the
questionnaire, if released to the public, would convey no
information at all other than the fact that a single
employee is upset with the status quo.
461 U.S. at 148; cf. Colburn, 973 F.2d at 586-87 (request by
faculty members for an independent review of a faculty
evaluation committee did not raise a matter of public
concern since, while “the public would be displeased to
learn that faculty members at a public university were
evaluating their colleagues based on personal biases,” the
request was “principally of importance to the few faculty
members who had to tolerate the bickering”).
Internal communications regarding office personnel
policies, which allege no malfeasance or wrongdoing, simply
are not the stuff of protected speech. Accordingly,
Wernsing’s inquiry does not constitute speech on a mater of
public concern.
* * *
Since the expressive activity underlying plaintiffs’
retaliation claim does not constitute speech on a matter of
public concern, we reverse the district court’s ruling with
respect to this claim. Thompson’s motion for summary
judgment on grounds of qualified immunity should have
been granted.
V. CONCLUSION
For the foregoing reasons, we REVERSE the ruling of the
district court and REMAND this case with instructions to
grant Thompson summary judgment with respect to all
claims on grounds of qualified immunity.
36 No. 03-3956
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-9-05