Chaklos, Richard v. Stevens, Kathleen ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3444
R ICHARD C HAKLOS and A NDREW W IST,
Plaintiffs-Appellants,
v.
K ATHLEEN S TEVENS, M ICHAEL S HEPPO,
D ONNA M ETZGER, and S USAN V ONDRAK,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 06 C 4063—J. Phil Gilbert, Judge.
A RGUED S EPTEMBER 22, 2008—D ECIDED M ARCH 30, 2009
Before E ASTERBROOK, Chief Judge, and R OVNER and
W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. When Richard Chaklos and
Andrew Wist discovered that the State of Illinois was
going to pay an out-of-state organization $750,000 to
train forensic scientists without first soliciting competi-
tive bids, they decided to take action and try to save the
2 No. 07-3444
taxpayers some money. They submitted a letter pro-
testing the State’s decision not to solicit bids and
proposing to provide the same training services for a
lower price through their own company. At the time,
however, the State employed Chaklos and Wist to train
forensic scientists. (They had formed their training com-
pany on the side.) Their supervisors (defendants) were
taken aback by this letter and suspended Chaklos and
Wist, who claim the suspension violated their First
Amendment rights.
Without deciding whether this amounts to a constitu-
tional violation, we hold that defendants are entitled to
qualified immunity because the law does not make clear
that their action was unconstitutional. See Pearson v.
Callahan, 129 S. Ct. 808 (2009). Although some statements
in the letter (those regarding Chaklos and Wist’s own
proposal for the state contract) do not rise to the level of
public concern, we conclude that, in main part, the letter
addresses wasteful government spending, which is a
matter of public concern. However, it is not obvious
whether Chaklos and Wist’s interest in making such
speech outweighs their employer’s interest in efficient
service. Due to several unusual facts in this case, resolving
the issue entails fine line-drawing, the very nature of
which entitles defendants to immunity. Therefore, we
affirm the grant of summary judgment in defendants’
favor.
I. BACKGROUND
In January 2004, the State of Illinois allocated money to
process a backlog of DNA evidence from rape victims
No. 07-3444 3
that had not been tested due to a shortage of forensic
scientists at the Illinois State Police Crime Lab. The
Illinois State Police (ISP) received money to hire and
train 14 (later 15) new forensic scientists. This case
arises from ISP’s plan to use some of that money.
Plaintiffs, Chaklos and Wist, were employed by ISP to
train forensic scientists. Wist trained scientists in DNA
analysis and Chaklos trained scientists in drug chemical
analysis. Shortly after the governor of Illinois approved
ISP’s request to hire additional scientists, members of
ISP’s Forensic Sciences Command discussed how best
to train the new scientists. They ultimately decided to
hire the National Forensic Science Training Center
(NFSTC), a not-for-profit company located in Florida.
Although NFSTC had conducted training for ISP person-
nel at no cost to the State of Illinois in the past, this
training was projected to cost the State nearly $750,000.
The State of Illinois encourages competitive bidding
for state contracts and purchases. However, contracts can
be awarded on a “sole source” or “no-bid” basis (rather
than competitively bid) if there is only one economically
feasible source able to meet the requirements of the
contract. In this case, although several people at ISP
thought the training contract should be competitively bid,
the Director of ISP recommended the contract be sole-
sourced based on the recommendation of Susan Vondrak
(Director of Training of ISP’s Forensic Sciences Com-
mand), Donna Metzger (Assistant Commander), and
Kathleen Stevens (Deputy Director of the Forensic
Services Command).
4 No. 07-3444
Chaklos and Wist became upset when they heard
about the contract. Wist had participated in some dis-
cussions regarding NFSTC’s involvement in the training
but had done so under the belief that its training services
would be free of cost to the State. Wist had also dis-
cussed alternative options such as training the new scien-
tists internally rather than outsourcing the training. When
he discovered that the State was paying for the services
(and overpaying, he thought, at that), however, he and
Chaklos decided the State could do better.
In addition to their duties with ISP, Chaklos and Wist
owned and operated Midwest Forensic Services, Inc.
(MFS). After the State’s no-bid contract with NFSTC was
published online pursuant to the State of Illinois Depart-
ment of Central Management Services (CMS) procedures,
Chaklos and Wist submitted a protest letter to Michael
Yokley, an ISP procurement official. The letter was on
MFS stationery and signed by Wist as President of MFS
and Chaklos as Vice President. The first line of the letter
stated that “[MFS] must protest the awarding of a no-bid
contract to NFSTC for the training of Personnel in DNA
analysis.” The letter also stated that MFS could provide
superior training at a lower cost “with substantial
savings to the State of Illinois” and includes attached
documentation regarding available space for the training,
a letter of credit from a bank, and a proposed training
outline. The letter also suggested problems with NFSTC,
specifically indicating that NFSTC did not have the
requisite experience to handle the training.
The letter did not have the effect its authors might
have hoped. Rather than raising concerns about the no-bid
No. 07-3444 5
contract, the letter raised concerns within ISP about
Chaklos and Wist, and ISP launched an internal investiga-
tion into their work with MFS. ISP suspended plaintiffs
for thirty days for writing the letter on the ground that
the letter violated ISP’s policy regarding secondary em-
ployment. Michael Sheppo, along with Stevens, Metzger,
and Vondrak, made this decision. Despite the protest,
ISP proceeded with its plan to send the scientists to
NFSTC.
As it turns out, however, Chaklos and Wist were not the
only ISP employees with dual interests in this matter.
Michael Sheppo, who was the Commander of ISP’s Foren-
sic Sciences Command, was also President of the NFSTC’s
Board of Directors. His involvement was known to
several employees at ISP (including Stevens), and some
ISP employees had raised concerns about a potential
conflict of interest when NFSTC was being considered
for the training services contract. An initial investigation
led nowhere (based largely on the misleading representa-
tions of Sheppo and Stevens), but after the Office of
Executive Inspector General (OEIG) received a formal
complaint regarding NFTSC, it opened a full investigation
into Sheppo’s involvement with NFSTC. It determined
that Sheppo’s position with NFSTC created a conflict
of interest. It also concluded that Sheppo’s role in plain-
tiffs’ discipline was unethical and recommended that
their suspensions be rescinded.
Maintaining that their protest letter was protected
speech, Chaklos and Wist filed a First Amendment retalia-
tion suit under 42 U.S.C. § 1983. The district court deter-
6 No. 07-3444
mined that although the letter was protected speech,
defendants were entitled to qualified immunity. Chaklos
and Wist now appeal from the entry of summary judg-
ment against them.
II. ANALYSIS
We review the district court’s grant of summary judg-
ment de novo. Petts v. Rockledge Furniture LLC, 534 F.3d
715, 720 (7th Cir. 2008). Summary judgment is proper
only if “there is no genuine issue of material fact and
the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c).
A. Standing
Before addressing the merits of this case, we consider
defendants’ challenge to plaintiffs’ standing, which
defendants raise for the first time on appeal. According to
them, MFS wrote the letter and therefore has the First
Amendment right in this case, though it is not a party to
the suit. Chaklos and Wist are trying to litigate MFS’s
rights rather than their own, defendants assert, and to the
extent that plaintiffs suffered an injury, that injury did not
affect MFS.
We need not dwell long on this issue. To have standing,
an individual must have suffered an “injury in fact” that is
“fairly traceable to the challenged action.” Sierra Club v.
Franklin County Power of Illinois, LLC, 546 F.3d 918, 925 (7th
Cir. 2008). Chaklos and Wist wrote a letter protesting the
No. 07-3444 7
award of a no-bid contract. They signed their names and
indicated their respective positions at MFS. Defendants
punished plaintiffs themselves for writing this letter by
suspending them, which means plaintiffs suffered an
injury resulting from defendants’ action. As defendants
conceded at oral argument, a corporation acts through its
human members, and defendants cite no authority for their
argument that the corporate form (MFS) should be di-
vorced from its human members (Chaklos and Wist) for
purposes of this inquiry. As a result, we are satisfied that
Chaklos and Wist have standing.
B. Qualified Immunity Standard
Governmental actors performing discretionary functions
enjoy qualified immunity and 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.” Sallenger
v. Oakes, 473 F.3d 731, 739 (7th Cir. 2007) (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)).
At the time this case was argued, Saucier v. Katz man-
dated a sequential procedure for considering whether state
actors are entitled to qualified immunity. 533 U.S. 194, 201
(2001). We were required first to determine whether the
facts, taken in the light most favorable to plaintiffs, would
allow a reasonable fact finder to determine that they have
been deprived of a constitutional right. Katz, 533 U.S. at
201. Only if plaintiffs met that burden would we then
determine whether the particular constitutional right
8 No. 07-3444
was “clearly established” at the time of the alleged viola-
tion. Id.
The Supreme Court recently reconsidered Saucier and
decided “that while the sequence set forth [in Saucier] is
often appropriate, it should no longer be regarded as
mandatory.” Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).
Although it recognized situations in which the Saucier
approach is beneficial, the Court concluded that the judges
of the district courts and the courts of appeals could
exercise their discretion in deciding which of the two
prongs to address first. Id.Deciding the constitutional question first is beneficial
when courts are able to clarify or elaborate on the law in a
manner that promotes its development. See Saucier, 533
U.S. at 201 (explaining that the threshold inquiry is in-
tended to “set forth principles which will become the basis
for a holding that a right is clearly established” in later
cases). But where “the constitutional question is so fact-
bound that the decision provides little guidance for future
cases,” a forced resolution of the constitutional question is
neither necessary nor prudent. Pearson, 129 S. Ct. at 819.
This case presents a paradigmatic example of such a case.
As discussed further below, the quirky facts of this case
complicate the constitutional inquiry. It is far from obvious
whether the speech in this case is constitutionally protected
and we do not think resolving the First Amendment issue
serves any jurisprudential purpose. Because defendants
did not violate clearly established law, we do not decide
whether the facts established a constitutional violation.
No. 07-3444 9
1. First Amendment Retaliation
Chaklos and Wist claim they were retaliated against and
suspended, in violation of their First Amendment rights, in
response to their letter protesting the award of a no-bid
contract to NFSTC. A First Amendment retaliation claim
involves a three-step analysis: “First, we must determine
whether the employee’s speech was constitutionally
protected. 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.” Spiegla v.
Hull, 371 F.3d 928, 935 (7th Cir. 2004). Defendants do not
dispute that they suspended plaintiffs for their speech so
the inquiry turns on whether that speech is protected by
the First Amendment.
a. Garcetti does not apply.
A public employee has a protected right, in certain
circumstances, to speak as a citizen addressing matters of
public concern. Garcetti v. Ceballos, 547 U.S. 410, 417 (2006).
However, “when public employees make statements
pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes, and
the Constitution does not insulate their communications
from employer discipline.” Id. at 421. Garcetti requires a
threshold determination regarding whether the public
employee spoke in his capacity as a private citizen or as an
employee. Renken v. Gregory, 541 F.3d 769, 773 (7th Cir.
2008).
10 No. 07-3444
Plaintiffs signed their letter as employees of MFS, an
outside company. They did not complain to their own
supervisors about matters relating to their jobs. Cf.
Renken, 541 F.3d at 773. So we do not agree with defendants
that Chaklos and Wist submitted their letter as part of their
official duties. Defendants nevertheless insist that Chaklos
and Wist wrote the letter pursuant to their job duties
because they had a duty to report their concerns about the
no-bid contract under the Illinois Procurement Code, 30
ILCS 500/50-40. That provision addresses the reporting of
“anticompetitive practices” and states:
When, for any reason, any vendor, bidder, contrac-
tor, chief procurement officer, State purchasing
officer, designee, elected official, or State employee
suspects collusion or other anticompetitive practice
among any bidders, offerors, contractors, propos-
ers, or employees of the State, a notice of the
relevant facts shall be transmitted to the Attorney
General and the chief procurement officer.
That ISP employees may have this general duty does not
by itself mean that all speech made by Chaklos and Wist
regarding anticompetitive practices was necessarily made
pursuant to their job duties. Indeed, plaintiffs did not
submit their concerns to the Attorney General or the chief
procurement officer as directed by the code. Furthermore,
in Garcetti, the Supreme Court rejected the idea “that
employers can restrict employees’ rights by creating
excessively broad job descriptions.” 547 U.S. at 424.
“Formal job descriptions often bear little resemblance to
the duties an employee actually is expected to perform,
No. 07-3444 11
and the listing of a given task in an employee’s written job
description is neither necessary nor sufficient to demon-
strate that conducting the task is within the scope of the
employee’s professional duties for First Amendment
purposes.” Id. Plaintiffs were employed as scientists, and
defendants do not demonstrate that they expected Chaklos
and Wist to write this letter protesting the no-bid contract
and proposing to provide the training services themselves.
That said, it is unnecessary to decide in this case
whether, if a state limits moonlighting by employees, it
may curtail bid protests that are designed to direct state
business in the direction of workers subject to that limit.
Cf. Broadrick v. Oklahoma, 413 U.S. 601 (1973). Defendants
have not argued that Illinois has a general rule limiting the
steps that public employees may take in pursuit of addi-
tional business within the state.
b. The letter addressed a matter of public con-
cern.
Having concluded that Garcetti does not immunize
defendants’ actions here, we turn to whether the pro-
test/proposal letter addressed a matter of public concern.
Whether a statement rises to the level of public concern is
a question of law, and in answering this question we look
to the “content, form, and context” of the statement.
Connick v. Myers, 461 U.S. 138, 147-48, 148 n.7 (1983). Then
we balance “the interests of the [employee], as a citizen, in
commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its
12 No. 07-3444
employees.” Schad v. Jones, 415 F.3d 671, 674 (7th Cir. 2005)
(quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)).
The combination of these two inquiries is called the
Connick-Pickering test. Schad, 415 F.3d at 674.
It is by now well established that speech protesting
government waste addresses a matter of public concern
and is therefore entitled to constitutional protection. See,
e.g., Wainscott v. Henry, 315 F.3d 844, 849 (7th Cir. 2003)
(“An employee’s ability to highlight the misuse of public
funds or breaches of public trust is a critical weapon in the
fight against government corruption and inefficiency.”); see
also Miller v. Jones, 444 F.3d 929, 935 (7th Cir. 2006). Com-
petitive bidding for state contracts might prevent govern-
ment waste by ensuring that the state is getting the most
for its money. Generally speaking, when vendors compete
for state dollars, taxpayers benefit.1
Chaklos and Wist’s letter protests ISP’s award of a sole
source contract to NFSTC on the basis that the State could
save itself money by soliciting competitive bids. The matter
challenged (the use of public funds) is a matter of public
1
The Illinois Procurement Code states that it is the policy of
Illinois that “the principles of competitive bidding and economi-
cal procurement practices shall be applicable to all purchases
and contracts by or for any State agency.” 30 ILCS 500/1-5. To
that end, if the State plans to enter into a contract without
competitive bidding (a “sole source” contract), it must make
public its intent to do so and allow fourteen days for a chal-
lenge from another vendor before executing that contract. Ill.
Admin. Code tit. 44, § 1.2025.
No. 07-3444 13
interest, and we find it hard to imagine the residents of
Illinois would not be concerned with the State awarding a
$750,000 contract for services to an out-of-state organiza-
tion without shopping around. Additionally, the letter
suggests that NFSTC did not have adequate experience to
handle the training of the new scientists because its prior
training programs always relied on outside instructors.
The letter goes on to state that plaintiffs’ company (MFS)
could “provide the training at lower cost and, thus, with
substantial additional savings to the State of Illinois.”
Defendants seize upon this language to characterize the
letter as a self-interested bid for a service contract with the
State. They maintain that plaintiffs’ offer to provide
training services and the specifics of their proposal demon-
strate that the “point” of the letter was not to expose
wrongdoing on the part of the State but rather to further
plaintiffs’ purely private interest in securing the contract
for their own company. See, e.g., Kokkinis v. Ivkovich, 185
F.3d 840, 844 (7th Cir. 1999).
This would likely be a simpler case if the letter simply
lodged a protest regarding the award of a “no-bid” con-
tract without also soliciting the contract. Speech that
addresses “a private or personal interest, as opposed to a
community one, does not satisfy the standards for First
Amendment protection.” Spiegla v. Hull, 371 F.3d 928, 935
(7th Cir. 2004). However, we must look at the content of
the speech as a whole, Gazarkiewicz v. Town of Kingsford
Heights, Indiana, 359 F.3d 933, 942-43 (7th Cir. 2004), and in
doing so, we conclude that this letter addresses a matter of
public concern. It protests inefficient spending of public
14 No. 07-3444
funds on a service contract and contends that the State
could save itself money by soliciting competitive bids. By
itself, plaintiffs’ proposal may not address a matter of
public concern, but we do not agree with defendants that
this aspect of the letter nullifies the remainder of the letter
which does address a matter of public concern. See, e.g.,
Connick, 461 U.S. at 149 (speech addressed a matter of
public concern where only one question out of fourteen
related to a matter of public concern). Furthermore, the
details of the proposal demonstrate just how wasteful the
decision to award the contract without soliciting competi-
tive bids would be—the letter indicates plaintiffs would
save the State of Illinois roughly $200,000.
Defendants also argue that plaintiffs’ self-serving
motives outweigh the public importance of the speech. As
an initial matter, we note that content remains the most
important factor in determining whether speech addresses
a matter of public concern. See Cliff v. Bd. of Sch. Comm’rs of
City of Indianapolis, Ind., 42 F.3d 403, 410 (7th Cir. 1994)
(cautioning against using a speaker’s motive as “an
absolute litmus test [to] supplant content in terms of
overall importance to the public concern inquiry.”).
Although we consider the motive of the speaker as part of
the “context” in which the speech was made, see Miller, 444
F.3d at 937, “we have emphasized that speech of public
importance is only transformed into a matter of private
concern when it is motivated solely by the speaker’s
personal interests.” Gazarkiewicz, 359 F.3d at 942 (emphasis
in original).
That is not the case here. Plaintiffs may have been
motivated in part by some personal interest but they also
No. 07-3444 15
were concerned that the State was wasting money and that
NFSTC did not have adequate experience to handle the
training. 2 Recall that NFSTC was supposed to remedy ISP’s
lack of forensic scientists so it could begin to process its
DNA backlog. Given that ISP had decided to grant the
contract to an organization that (according to plaintiffs)
was not equipped to deal with a problem that had attracted
significant public attention, we find that the circumstances
in which Chaklos and Wist protested the no-bid award
demonstrate that the speech was not based on a “purely
personal interest.”
For these reasons, we find plaintiffs’ letter addressed a
matter of public concern and was not motivated solely by
personal interests.
c. Balancing of interests
But that does not end our inquiry. The government is
entitled to restrict speech that addresses a matter of public
concern “if it can prove that the interest of the employee as
a citizen in commenting on the matter is outweighed by the
interest of the government employer in promoting effective
2
The OEIG’s report suggests these concerns may have been
legitimate. The report documents the concerns of ISP employees
who felt, after the training had occurred at NFSTC, that “the
decision to use NFSTC instead of conducting the training in-
house resulted in a huge waste of state resources.” Those
employees expressed several problems with NFSTC’s training
and indicated that they would not recommend sending
more scientists to NFSTC in the future.
16 No. 07-3444
and efficient public service.” McGreal v. Ostrov, 368 F.3d
657, 675-76 (7th Cir. 2004); Pickering, 391 U.S. at 574. We
have identified seven related factors to be considered as
part of the Pickering analysis: (1) whether the speech would
create problems in maintaining discipline or harmony
among co-workers; (2) whether the employment relation-
ship is one in which personal loyalty and confidence are
necessary; (3) whether the speech impeded the employee’s
ability to perform her responsibilities; (4) the time, place,
and manner of the speech; (5) the context within which the
underlying dispute arose; (6) whether the matter was one
on which debate was vital to informed decision-making;
and (7) whether the speaker should be regarded as a
member of the general public. McGreal, 368 F.3d at 675-76.
Defendants bear “the burden of justifying a particular
disciplinary action, and a stronger showing may be neces-
sary when an employee’s speech more substantially
involves matters of public concern.” Id. at 681-82.
Defendants’ main argument is that their interest in
making sure ISP avoids “apparent” conflicts of interest and
enforcing ISP’s policy against secondary employment
outweighs plaintiffs’ speech interest. They submit that
plaintiffs’ work at MFS conflicted with their duties as
employees of ISP. To determine whether defendants
violated the First Amendment, we must weigh this interest
against plaintiffs’ interest in protesting government waste.
Although the proper balance of these competing interests
is a question of law, Wainscott, 315 F.3d at 851, we do not
think the law makes clear whether plaintiffs’ interest
outweighs defendants’ interest in this case. A complication
No. 07-3444 17
arises from the dual purpose of the letter. Although the
letter touched upon a matter of public concern, it did so
only in part. The remainder of the letter (which proposes
to provide training services) does not touch upon a matter
of public concern.
Defendants contend that the proposal was disruptive.
There are problems with this argument. To begin, defen-
dants provide no evidence regarding the actual disruptive
effect of the letter other than their bald assertion that it
surprised people. Although we must give “substantial
weight to government employers’ reasonable predictions
of disruption,” in order to be “reasonable” the predictions
must be “supported with an evidentiary foundation and be
more than mere speculation.” Gazarkiewicz, 359 F.3d at 944.
In fact, the OEIG report indicates that seeking competitive
bids for the training contract would not have slowed the
training process substantially. Rather than demonstrating
that the letter disrupted ISP’s plans, the record indicates
that defendants did not seriously consider Chaklos and
Wist’s protest or proposal, and that NFSTC was awarded
the contract without further ado (and without competi-
tion).3
3
Most of defendants’ evidence of disruption is similarly
speculative. For example, defendants complain that if plaintiffs
had been awarded the contract, plaintiffs would have left their
jobs at ISP, that plaintiffs did not have a permit to develop
MFS’s training programs, and that allowing MFS to train the
new scientists would create a conflict of interest for plaintiffs.
Critically, however, defendants present no evidence that MFS
(continued...)
18 No. 07-3444
Nor are defendants able to identify any law or policy that
forbids such a proposal. Instead, they rely on policies
prohibiting unapproved secondary employment even
though, according to plaintiffs, their work at MFS was
approved by ISP.4 It is undisputed that ISP allows its
employees to engage in approved secondary employment.
And to the extent that defendants believed bidding for a
state contract while employed by ISP created the “appear-
ance of an impropriety,” their argument that this created a
disruption is undermined by Sheppo’s involvement with
NFSTC (the other contender to whom the State was going
to award the contract without soliciting competing bids).
The fact that defendants acted on this concern on certain
occasions and not others indicates that the concern is not
legitimate.5 See McGreal, 368 F.3d at 680 (disparate treat-
ment of similar behavior raises a genuine issue as to
3
(...continued)
actually would have received the contract, thereby validating
defendants’ fears regarding conflicts of interest or secondary
employment.
4
Defendants dispute this, maintaining that Wist’s work at
MFS fell outside the scope of his permit, but at this stage of
the proceedings we accept Wist’s version of the facts.
5
We note further that Sheppo, unlike Chaklos and Wist, was
involved with a company that actually received the state con-
tract while employed by ISP, and this seems to have raised no
problems for defendants. According to the OEIG report, Sheppo
was also heavily involved with the decision to train the
scientists off-site rather than in-house, which is significantly
more disconcerting than Wist’s peripheral discussions re-
garding the training options.
No. 07-3444 19
whether an employer is actually acting out of a fear of
potential disruption rather than out of displeasure with the
content of an employee’s statements).
These factual problems weigh in favor of Chaklos and
Wist. But if there had been no mention of a “protest” in the
letter, defendants might have acted within their right to
suspend plaintiffs for making such a proposal, even if their
reason for doing so was erroneous or unreasonable. See
Connick, 461 U.S. at 146 (“When employee expression
cannot be fairly considered as relating to any matter of
political, social, or other concern to the community,
government officials should enjoy wide latitude in manag-
ing their offices, without intrusive oversight by the judi-
ciary in the name of the First Amendment.”). Plaintiffs’
proposal did not touch on a matter of public concern and
they provide no case law demonstrating that they have a
constitutional right to make such proposals while em-
ployed by the State.
“For a constitutional right to be clearly established, its
contours must be sufficiently clear that a reasonable official
would understand that what he is doing violates that
right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal
quotation marks omitted). Should it have been sufficiently
clear to defendants that they could not punish Chaklos and
Wist for their letter without violating the Constitution? We
think not. It is clear, as plaintiffs maintain, that a public
employer may not retaliate against an employee who
exercises his First Amendment speech rights. See Miller, 444
F.3d at 939; McGreal, 368 F.3d at 683. But, as this discussion
demonstrates, the letter’s entitlement to First Amendment
20 No. 07-3444
protection is not obvious. If the letter’s only purpose was
to lodge a complaint against the no-bid contract, we would
have no difficulty concluding, in this case, that defendants
should have known their actions were unconstitutional.
But in light of the unusual circumstances of this case,
which include the dual nature of the letter at issue, the
State’s split-the-baby approach toward secondary employ-
ment, and defendants’ questionable enforcement of the
State’s policies, we think it unnecessary to determine
whether this letter is constitutionally protected, and thus
whether defendants’ actions were unconstitutional.
In so holding, we emphasize that plaintiffs did not need
to present a case involving a “protest/proposal letter.” The
question is not whether there is a prior case “on all fours”
with the current claim. McGreal, 368 F.3d at 68; Hope, 536
U.S. at 741 (“[O]fficials can still be on notice that their
conduct violates established law even in novel factual
circumstances.”). But plaintiffs’ cases regarding the
impropriety of First Amendment retaliation in general do
not provide fair warning to defendants that their conduct
was unconstitutional. As the Supreme Court recognized in
Hope, “general statements of the law are not inherently
incapable of giving fair and clear warning, and in other
instances a general constitutional rule already identified in
the decisional law may apply with obvious clarity to the
specific conduct in question, even though ‘the very action
in question has [not] previously been held unlawful.’ ” 536
U.S. at 740 (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). This case falls into the former category so defen-
dants are entitled to qualified immunity.
No. 07-3444 21
III. CONCLUSION
The judgment of the district court is AFFIRMED.
3-30-09