Guffey v. Duff

Decision Date29 April 2020
Docket NumberCase No. 18-cv-1271 (CRC)
Citation459 F.Supp.3d 227
Parties Lisa GUFFEY and Christine Smith, Plaintiffs, v. James C. DUFF, Director, Administrative Office of the U.S. Courts, Defendant.
CourtU.S. District Court — District of Columbia

Arthur B. Spitzer, Scott Michelman, American Civil Liberties Union of the District of Columbia, Washington, DC, for Plaintiffs.

Julie Straus Harris, U.S. Department of Justice, Washington, DC, Michael Andrew Zee, U.S. Department of Justice, San Francisco, CA, for Defendant.


CHRISTOPHER R. COOPER, United States District Judge

The Administrative Office of the United States Courts ("AO") performs a wide range of administrative, policy-related, and legislative functions for the federal judiciary. It is an integral part of the judicial branch and its work is critical to the proper functioning of the federal court system. But, unlike federal courthouse personnel, its 1,100 or so employees toil mainly outside the public's view, and none of them are involved in handling or deciding individual cases. The question presented in this case is whether the First Amendment permits the AO, in the interest of maintaining public confidence in the impartiality of the federal judiciary, to ban its employees from engaging in virtually all forms of partisan political activity outside the workplace.

In 2018, the AO imposed significant new prohibitions on the partisan activities that its employees may undertake at all levels of electoral politics. The restrictions included bans on routine political expression like donating to a candidate, displaying a campaign bumper sticker or yard sign, attending a fundraiser, and being a member of a political party. The limitations were necessary, the AO's Director explained, to recognize the "unity of purpose" between the AO and the judicial branch as a whole by harmonizing the code of conduct that applies to AO employees with the code that applies to most federal courthouse staff across the country. The Director also indicated that the prohibitions were needed to preserve public confidence in the integrity and impartiality of the judicial branch.

Two AO employees responded by filing this lawsuit, alleging that the prohibitions violated their First Amendment rights to engage in core political speech. In an August 2018 ruling, the Court preliminarily enjoined the AO from enforcing all but two of the prohibitions. The Court held, first, that the AO's desire to treat its employees and courthouse staff the same cannot by itself "justify extending an existing speech restriction to a new group of employees whose job functions and workplace location distinguish them from those already covered." Guffey v. Duff, 330 F. Supp. 3d 66, 74 (D.D.C. 2018) (" Guffey I"). Second, the Court found that the AO's interest in protecting the appearance of judicial integrity and impartiality, compelling as it is, was likely to be outweighed by the substantial burdens that the new prohibitions placed on Plaintiffs' protected speech. Id. at 76–77. The Court reached that conclusion because the government had not "generate[d] a single concrete example—even a hypothetical one—where an AO employee's participation in the prohibited activities would cause a member of the public reasonably to question the impartiality or integrity of particular judges or the judiciary as an institution." Id. at 78–79.

The parties have now returned to the Court with cross motions for summary judgment on the merits of Plaintiffs' claim. The government downplays its "unity" rationale this time around but continues to assert its interest in preserving public confidence in the integrity of the courts as justification for the prohibitions. And, it now offers two new reasons for banning AO employees' partisan political activity: (1) to maintain the trust of federal judges to whom AO employees offer impartial advice and recommendations on judicial policy issues, and (2) to ensure that representatives of the other two branches of government—especially Congress—do not view AO employees as politically motivated in their dealings on matters affecting the courts.

Having carefully considered each side's arguments and governing precedent, the Court again concludes that while the AO's efforts to protect the judiciary from perceptions of political influence are laudable, the government has not, for most of the prohibitions, satisfied its burden of justifying the bans on AO employees' First Amendment-protected activities. The Court will, accordingly, grant summary judgment for Plaintiffs as to those prohibitions and enjoin their application to all AO employees except its most senior leadership.

I. Background
A. The Administrative Office of the U.S. Courts

The following facts are undisputed. Established in 1939, the Administrative Office of the U.S. Courts furnishes "legislative, legal, financial, technology, management, administrative, and program support services to federal courts." U.S. Courts, Judicial Administration, (last visited April 28, 2020). The AO's headquarters are on Capitol Hill in Washington, D.C., about a half mile from the Supreme Court, and 900 of the AO's approximately 1,100 employees work out of that building.1 The AO is comprised of three broad departments—Technology Services, Administrative Services, and Program Services—each of which contains offices dedicated to specific subject areas. Technology Services helps develop and implement the judiciary's information technology policies across the federal courts. Administrative Services provides human resources, finance, and facilities-related support. Program Services tackles a wider array of issues, ranging from evaluating the judiciary's case-management systems to overseeing the operations of federal probation and pretrial services offices across the country. The AO is led by a Director, who is selected by the Chief Justice of the United States and effectively serves as the chief administrative officer of the federal courts. None of the AO's employees work in federal courthouses or interact directly with the general public as part of their work. Nor are they involved in the processing or adjudication of individual cases.

AO employees work under the supervision and direction of the Judicial Conference, the group of judges who set the policy prerogatives for the federal courts.2 Some AO employees, drawn from each of the three departments, work closely with the approximately 250 federal judges who serve at any given time on the Judicial Conference's twenty-five committees. Duff. Decl. ¶¶ 9–10. These committees help establish policy and formulate the position of the judicial branch in such areas as: the creation and elimination of judgeships; changes to the federal rules of practice, procedure, and evidence; the operation of probation and pretrial services offices; the provision of legal representation to indigent criminal defendants; the judiciary's budget; information technology; space and facilities; courthouse security; and judicial salaries and benefits. Id. AO staff who serve in this capacity assist the committees by conducting research and analysis on relevant issues and submitting written recommendations for the committees to consider. Id. ¶¶ 10–11. If their proposals are accepted by their committee, and ultimately the Judicial Conference, they become the judiciary's official policies. Id.

AO employees also serve the judiciary in other ways. Those in the Judicial Services Office and Office of the General Counsel provide counsel to judges on ethics issues, including recusals, participation in outside activities, and acceptance of gifts. Id. ¶¶ 11–12; Decl. of James R. Baugher ("Baugher Decl.") ¶ 8, ECF No. 24-4. Employees in the Office of Legislative Affairs act as liaisons for the judiciary in its dealings with Congress and the Department of Justice. Duff Decl. ¶ 14(d). They represent the judiciary's views on various issues, including the creation of new judgeships, the construction of new courthouses, the judiciary's budget, and particular legislative proposals affecting the judiciary that Congress or the executive branch may be considering. Id.; Baugher Decl. ¶¶ 5-6. Additionally, employees in the AO's Office of Public Affairs serve as points of contact between the judicial branch and the media, including by issuing press releases and statements on behalf of the judiciary. Duff Decl. ¶ 14.

B. The New Code of Conduct

AO employees are subject to a code of conduct. In 2015, AO Director James C. Duff began the process of revising the code for the first time in twenty years, in accordance with his authority to "prescribe[e] standards of conduct for Administrative Office employees." 28 U.S.C. § 604(f).

Under previous versions of the code, most AO staff were allowed "to take an active part in political activities." Decl. of Lisa Guffey ("Guffey Decl.") Ex. D § 260(a)(1) ("2016 AO Code"), ECF No. 2-8. Employees were permitted to publicly express opinions on political subjects, join political parties, donate to political organizations, and attend partisan fundraisers. Id. § 260(a)(2)(A), (b)(1), (e)(1). With regard to all campaigns for elective office, employees could also wear political paraphernalia, sign nominating petitions, and act as poll watchers on behalf of a political party or candidate. Id. § 260(c)(1)(2), (4). With regard to local and state (but not federal) campaigns, employees were permitted to endorse or oppose a political candidate, drive voters to polls on behalf of a partisan organization or a candidate, and organize fundraisers. Id. § 260(c)(8) & (10), (e)(2)(C). While engaging in any political activity, however, AO employees could not "use their position, title, or authority in connection with the activity." Id. § 260(a)(4). Nor could they engage in any political activity "while on duty" or while "utiliz[ing] any federal resources." Id. § 260(a)(5). More...

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