Nancy SPIEGLA, Plaintiff-Appellee,
v.
Edward HULL, Individually and as an employee of Westville Correctional Facility, Herbert Newkirk, Individually and as Superintendent of Westville Correctional Facility, and Bernard Johnson, Individually and as an Employee of Westville Correctional Facility, Defendants-Appellants.
No. 05-3722.
United States Court of Appeals, Seventh Circuit.
Argued September 12, 2006.
Decided March 30, 2007.
Michael K. Sutherlin (argued), Sutherlin & Associates, Indianapolis, IN, for Plaintiff-Appellee.
David L. Steiner (argued), Office of the Attorney General, Indianapolis, IN, for Defendants-Appellants.
Before EASTERBROOK, Chief Judge, and POSNER and SYKES, Circuit Judges.
SYKES, Circuit Judge.
This First Amendment retaliation case is before us for the second time. In the first appeal, we held that Indiana State Correctional Officer Nancy Spiegla engaged in protected speech by reporting a possible security lapse to an assistant superintendent at the Westville Correctional Facility where she worked. On remand, a jury found that the defendants—Westville's superintendent, assistant superintendent, and a senior corrections officer— retaliated against her on the basis of this protected speech and awarded her $210,000 in damages. The defendants appealed, and after briefing was completed, the Supreme Court decided Garcetti v. Ceballos, ___ U.S. ___,
The speech at issue here is a complaint Spiegla made about having been prevented by her immediate supervisor from investigating a possible security breach while she was on duty and stationed at the prison's main gate. Spiegla noted the incident in her log and later that same day reported it to an assistant superintendent. In bringing the possible security lapse to his attention, Spiegla was speaking not as a citizen but as a correctional officer charged with the duty to ensure the prison's safety and security. Accordingly, the First Amendment does not insulate her statements from employer discipline, and the judgment in her favor must be vacated.
I. Background
From 1985 to 2000, Nancy Spiegla was employed as a state correctional officer at the Westville Correctional Facility in Indiana. From 1993 to 2000, Spiegla worked essentially the same post at the prison's main gate on a 5-2 schedule (five days on, two off). Working the main gate involved controlling the traffic in and out of the prison, as well as searching the vehicles of visitors and employees for contraband. By all accounts Spiegla was an outstanding employee throughout her tenure at the prison.
On January 13, 2000, Spiegla was at her main-gate post alongside Sergeant Brian Moody, her immediate supervisor, when something in the parking lot caught her attention. She saw Major Eddie Hull and Captain Ernest Huff transfer bags from their private vehicles into the state-owned truck they were driving. When the two men approached the main gate in the truck, Spiegla intended to search their bags for possible contraband as part of the general search she performed on all vehicles entering the prison.1 But when she got up to leave the guard house, Moody dissuaded her from searching the truck, explaining that a recent change in prison policy exempted all state vehicles from search. Spiegla had not heard of any change and believed the correct policy was to search all vehicles, no exceptions. Frustrated that she "could not go out there and do [her] job," Spiegla noted the apparent breach of prison policy in her log.
Later that day, Spiegla recounted the incident to Assistant Superintendent John Schrader, who told her she should have searched Hull and Huff's truck. Schrader also promised to refer the matter to Superintendent Herbert Newkirk, which he did at an executive staff meeting later that day or the next. At the meeting Newkirk asked Assistant Superintendent Bernard Johnson (who was angry at the manner in which Spiegla's concerns were raised) to investigate the matter.
Four days later Spiegla was reassigned from the main gate to the perimeter, a 6-2 shift that involved walking around the prison's outer fence and delivering food to the towers. Upset over the transfer, Spiegla brought this action under 42 U.S.C. § 1983 against Johnson, Hull, and Newkirk, all of whom had authority to transfer her. She claimed she was transferred in retaliation for reporting the main gate incident to Schrader; these statements, she asserted, were protected speech under the First Amendment. The district court granted summary judgment for the defendants on the ground that Spiegla "was not speaking out as a citizen, but rather as an employee" and therefore had not engaged in protected speech.
On appeal we reversed and remanded, holding in part that the First Amendment did protect her statements to Schrader. Spiegla v. Hull,
The defendants appealed, asserting a number of trial errors. But after briefing was completed, the Supreme Court issued its decision in Garcetti, clarifying the threshold legal inquiry in First Amendment retaliation claims in the public employment context. The defendants requested a supplemental briefing schedule in light of Garcetti. We granted their request and ordered the parties to submit supplemental memoranda discussing the effect of Garcetti on this appeal.
II. Analysis
Our first inquiry is the application of Garcetti to Spiegla's claim; if Spiegla was not speaking as a "citizen" as understood in Garcetti, her speech was not protected by the First Amendment as a matter of law and we need not reach the trial errors asserted by the defendants. Garcetti made it clear that public employees have no cause of action for First Amendment retaliation unless they were disciplined for speaking as citizens about a matter of public concern.
A. Procedural Arguments
Before turning to the impact of Garcetti on Spiegla's claim, we must first address her contention that the defendants' "efforts to use [Garcetti] to overturn the . . . verdicts" are procedurally defective. More specifically, Spiegla asserts (1) the defendants waived their Garcetti argument by failing to raise it in the district court or in their initial appellate briefs; and (2) the defendants' "motion to discuss supplemental authority [was] an improper method" of raising Garcetti. She is wrong on both counts.
Arguments not raised in the district court are generally waived on appeal, Belom v. Nat'l Future Ass'n,
The defendants' failure to raise a Garcetti-type argument on remand or in their initial appellate briefs in this second round of appellate proceedings was understandable. We had specifically rejected this line of argument in Spiegla I, holding that Spiegla "spoke as a private citizen on a matter of public concern when she brought the search policy and Hull and Huff's conduct to the attention of her superior." Spiegla I,
Spiegla also argues that the defendants picked the wrong procedural vehicle in which to raise Garcetti. She claims that rather than file a "motion to discuss supplemental authority," the defendants should have brought Garcetti to our attention by filing a letter pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure. The first flaw in Spiegla's argument is that a "motion to discuss supplemental authority" does not accurately characterize the defendants' post-Garcetti motion. Their motion simply requested a supplemental briefing schedule in light of Garcetti. Second, the defendants were right to respond to Garcetti by requesting additional briefing rather than submitting a Rule 28(j) letter. Rule 28(j) permits parties to briefly apprise the court of new or previously undiscovered authority pertinent to arguments made orally or in the briefs. FED. R. APP. P. 28(j) ("The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally."). It does not, however, provide a second forum in which to raise wholly new or different arguments. See United States v. Jones,
B. The Effect of Garcetti
We held in Spiegla I that Spiegla's speech was protected, but because the judgment in this case is not yet final, we are obliged to reevaluate that holding in light of Garcetti. See Harper v. Va. Dep't of Taxation,
Whether public-employee speech is protected is determined by reference to the two-part Connick-Pickering test. Spiegla I,
After Garcetti, however, the threshold inquiry is whether the employee was speaking as a citizen; only then do we inquire into the content of the speech. Mills v. City of Evansville,
Based on the record as a whole, we conclude that Spiegla was speaking pursuant to her official duties—not as a citizen—when she told Schrader about the conduct of Hull and Huff, and about Moody's action in preventing her from conducting a search. As a correctional officer assigned to the main gate, Spiegla's primary responsibility was to regulate and monitor the vehicle and foot traffic through the gate. This involved searching incoming vehicles and people for contraband, tasks for which she received specialized training. Written prison "post orders" dictated who and what were subject to search, and Spiegla's employment required her to faithfully follow those orders. As a correctional officer, she also had a more general responsibility to keep the facility secure and report any suspicious behavior by prison inmates, staff, or visitors to her superiors.
Spiegla became suspicious when she saw Hull and Huff transfer bags to their state truck from their private cars. As they approached the gate, she got up to discharge her official duty—search the truck (as she did all vehicles) and "make sure there was nothing in those bags." When her immediate supervisor, Sergeant Moody, told her not to search the truck, she disagreed based on her understanding that "regardless of who you are, you are to be searched." Upset that she "could not go out there and do [her] job," Spiegla noted the incident in her log.
Later that day while still in uniform and on duty at the main gate, Spiegla saw Assistant Superintendent Schrader and explained to him that Moody stopped her from searching the truck of two "higher ups" she believed should have been searched. Spiegla recounted the incident to Schrader pursuant to her responsibility as a correctional officer to inform her superiors of a possible breach in prison search policy, especially one involving two senior prison officers. In doing so she spoke as an employee, not a citizen, because ensuring compliance with prison security policy was part of what she was employed to do. See Garcetti,
We acknowledged in Spiegla I that Spiegla's statements were "consistent with her general duty as a correctional officer to keep the facility secure."
That Spiegla's statements highlighted potential misconduct by prison officers does not change the fact that she was speaking pursuant to her official responsibilities, not as a citizen "contributi[ng] to the civic discourse." Garcetti,
Similarly here, Spiegla "acted as a government employee" when she reported the possible misconduct to her superior and sought clarification of a security policy she felt may have been breached. She did not make a public statement, discuss politics with a coworker, write a letter to newspapers or legislators, or otherwise speak as a citizen. See id. at 1960, 1961 (listing examples of prototypical protected speech by public employees). Because Spiegla did not speak as a citizen under the standard articulated in Garcetti, she has no claim for First Amendment retaliation under § 1983.
Accordingly, the judgment entered in Spiegla's favor must be vacated, but not without our observation that the record and the jury's verdict substantiate that Spiegla was punished for simply trying to follow the rules. Garcetti instructed that public employers should, "`as a matter of good judgment,' be `receptive to constructive criticism offered by their employees.'" Garcetti,