Spiegla v. Hull

• Decision Date: 30 March 2007
• Docket Number: No. 05-3722.,05-3722.
• Citation: 481 F.3d 961
• Parties: 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.
• Court: U.S. Court of Appeals — Seventh Circuit

481 F.3d 961

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. ___, 126 S.Ct. 1951, 1960, 164 L.Ed.2d 689 (2006), holding that the First Amendment does not protect statements made pursuant to a public employee's official duties because that employee is not speaking as a "citizen" but as an employee. Because our first holding addressed the degree of First Amendment protection afforded public employees under then-existing case law, we must now reexamine its soundness in light of Garcetti.

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, 371 F.3d 928, 939 (7th Cir.2004) ("Spiegla I") (concluding that Spiegla "spoke as a private citizen on a matter of public concern"). The case ultimately went to trial on the remaining issues of fact—namely, causation and whether the defendants would have taken the same action in the absence of the protected speech. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). The jury found for Spiegla and awarded her $210,000 in damages.

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. 126 S.Ct. at 1958, 1960. When public employees make statements pursuant to their official duties, they are not speaking as citizens and "the Constitution does not insulate their communications from employer discipline." Id. at 1960. In other words, if Spiegla's statements to Schrader were made pursuant to her official duties as a correctional officer, it was not protected speech and she has no claim for First Amendment retaliation.

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, 284 F.3d 795, 799 (7th Cir.2002), but here the defendants did make a Garcetti-type argument before the district court. Most significantly, they moved for summary judgment on the basis that "speech required in the course of public employment is not protected by the First Amendment." This argument anticipated the ultimate holding in Garcetti, and moving for summary judgment on this ground was sufficient to preserve the issue for appellate review. See Pond v. Michelin N. Am., Inc., 183 F.3d 592, 597 (7th Cir.1999).

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, 371 F.3d at 939-40. Accordingly, the law of the case doctrine barred the defendants from raising the issue again on remand or in their appeal from the judgment entered on the jury's verdict. See EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 796 (7th Cir.2005). When the defendants filed their opening and reply briefs in this second appeal, they had no basis to challenge anew our holding in Spiegla I. Only the Supreme Court's decision in Garcetti a few weeks later called Spiegla I into question and opened the door for a reexamination of that decision in this appeal. Key v. Sullivan, 925 F.2d 1056, 1060 (7th Cir.1991) (stating that "a decision of the Supreme Court after the first review" triggers an exception to law of the case). Waiver under Rule 28(a)(5) of the Federal Rules of Appellate Procedure occurs when a party omits an available argument. United States v. Feinberg, 89 F.3d 333, 340-41 (7th Cir.1996). A party cannot, however, waive an argument that did not exist when he submitted his brief. Id.; see United States v. Henningsen, 387 F.3d 585, 591 (7th Cir.2004).

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...