Guffey v. Mauskopf, 20-5183

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Citation: 45 F.4th 442
• Docket Number: 20-5183,C/w 20-5208
• Parties: Lisa GUFFEY and Christine Smith, Appellees v. Roslynn R. MAUSKOPF, in Her Official Capacity as Director of the Administrative Office of the United States Courts, Appellant
• Decision Date: 16 August 2022

45 F.4th 442

Lisa GUFFEY and Christine Smith, Appellees
v.
Roslynn R. MAUSKOPF, in Her Official Capacity as Director of the Administrative Office of the United States Courts, Appellant

No. 20-5183
C/w 20-5208

United States Court of Appeals, District of Columbia Circuit.

Argued September 20, 2021
Decided August 16, 2022

Weili J. Shaw, Attorney, U.S. Department of Justice, argued the cause for appellant/cross-appellee. With him on the briefs were Brian M. Boynton, Acting Assistant Attorney General, and Scott R. Mcintosh, Attorney.

Scott Michelman argued the cause for appellees/cross-appellants. With him on the briefs was Arthur B. Spitzer.

Before: Henderson and Walker, Circuit Judges, and Edwards, Senior Circuit Judge.

Dissenting opinion by Circuit Judge Henderson.

Walker, Circuit Judge:

Lisa Guffey and Christine Smith work at the Administrative Office of the United States Courts. When they are away from work, they want to express support for their preferred candidates in partisan elections.

AO employees could do that for the first 79 years of the agency's history. But since 2018, the AO has forbidden it.

That prohibition violates the Free Speech Clause of the First Amendment.

I

We begin with some background on the Administrative Office, the work that Guffey and Smith do there, the AO's speech restriction, and the district court proceedings.

A

Congress created the AO in 1939. Pub. L. No. 76-299, 53 Stat. 1223 (Aug. 7, 1939). It is now an 1,100-employee agency within the Judicial Branch that provides a variety of valuable support services. For example, its employees:

• Assist judges and courthouse staff with information technology;

• Help courts connect with visiting judges and coordinate travel;

• Handle human resources and other support tasks for courts, probation offices, and federal-defender services;

• Recommend positions to the Judiciary's internal policymaking body, the Judicial Conference, on issues like codes of conduct, court administration, and defender services;

• Issue press releases and statements on behalf of the Judiciary;

• Advise judges on reimbursements, recusals, gifts, and other ethics issues; and

• Represent the Judicial Conference before Congress and the Executive Branch.

That far-from-exhaustive list shows the array of important tasks that AO employees

45 F.4th 445

handle. But note what is not on that list. AO employees do not decide cases — only judges do that. Nor do they make recommendations about the outcomes of individual cases, as law clerks and other legal advisors inside a courthouse often do.

B

When this case began, Guffey and Smith worked with the AO's Defender Services Office. Guffey still does, but Smith has since moved to the AO's Department of Technology Services.

Guffey makes sure that individual federal-defender offices and court-panel attorney programs are adequately resourced, operating effectively, and following administrative policies. That work includes occasional meetings with judges to report on federal-defender offices and assess court-panel programs. In a decade at the AO she has performed work related to an individual case exactly once, when she researched the appropriate level of funding for expert witnesses without making a recommendation.

Until somewhat recently, Smith was the IT Liaison for the Defender Services Office. She ensured that federal defenders' IT needs were met and that they had secure systems. She occasionally met with judges to advance those goals. In her new role, Smith leads cyber-security assessments.

C

For the first 79 years of the AO's history, its employees have been free to engage in certain partisan political expression outside the office. Both Guffey and Smith have engaged in partisan political activities away from the job while employed at the AO. There is nothing in the record to indicate that any such political activity by Guffey, Smith, or any other AO employee has had any adverse impact on the operations or reputation of the AO or the judicial branch. But despite that history, the AO revised its code of conduct in 2018 to prohibit partisan political expression by its employees, whether done on the clock or on their own time.

As is relevant here, the AO's code of conduct now prohibits:

1. Publicly expressing opinions about partisan candidates or political parties, including on social media;

2. Wearing or displaying partisan badges, signs, or buttons;

3. Contributing money to a party, candidate, or political action committee;

4. Attending partisan fundraisers;

5. Attending a partisan candidate's campaign events;

6. Attending party conventions, rallies, and meetings;

7. Being a member of a partisan political organization;

8. Driving voters to the polls on behalf of a party or candidate; and

9. Organizing events for a partisan candidate.

Those restrictions apply to partisan politics at all levels of government, from a presidential election to a race for the county register of deeds.¹

D

Guffey and Smith sued the AO, seeking an injunction. They want to be able to continue engaging in certain partisan political

45 F.4th 446

expression outside the office — when they are in no way affiliating themselves with the AO. While the suit proceeded, they also moved for a preliminary injunction. Guffey v. Duff , 330 F. Supp. 3d 66, 68 (D.D.C. 2018).

The district court granted a preliminary injunction as to the first seven restrictions listed above (all but the restrictions on driving voters to the polls and organizing events). Id. at 81. Then, at the summary-judgment stage, the district court granted Guffey and Smith partial summary judgment and permanently enjoined the same seven restrictions. Guffey v. Duff , 459 F. Supp. 3d 227, 232 (D.D.C. 2020). Its injunction covered "all AO employees except the six high-level ‘designated employees’ " to whom a different set of restrictions applied. Id. at 256. It granted the AO summary judgment on Guffey and Smith's challenge to the driving and organizing restrictions. Id. at 252.

Both parties appealed their losses.

II

Because the First Amendment prohibits the government from "abridging the freedom of speech," the AO's restrictions on Guffey and Smith's off-duty political speech and activities are unconstitutional. U.S. Const. amend. I.

A

The government has unique interests in its employees' conduct. See United States v. National Treasury Employees Union , 513 U.S. 454, 465-66, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995). Those interests allow it to regulate some of its employees' speech, including even political speech, in ways it could not regulate the general public. Id.

But the government cannot condition public employment on the complete surrender of a citizen's First Amendment rights. Id. at 465, 115 S.Ct. 1003 ; see also Janus v. American Federation of State, County, and Municipal Employees , ––– U.S. ––––, 138 S. Ct. 2448, 2471, 201 L.Ed.2d 924 (2018). Instead, the government must justify prospective restrictions on its employees' off-duty speech by showing that the speech's " ‘necessary impact on the actual operation’ of the Government" outweighs the employees' right to speak and the nation's need to hear them. National Treasury Employees , 513 U.S. at 468, 115 S.Ct. 1003 (quoting Pickering v. Board of Education , 391 U.S. 563, 571, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) ).²

In this case, the weight of AO employees' right to express their political opinions outside the office is considerable. Time and again, the Supreme Court has held that political speech must receive "the highest level of First Amendment protection." Williams-Yulee v. Florida Bar , 575 U.S. 433, 443, 135 S.Ct. 1656, 191 L.Ed.2d 570 (2015). That's in large part because of "the close connection between our Nation's commitment to self-government and the rights protected by the First Amendment. The First Amendment creates an open marketplace in which differing ideas about political, economic, and social issues can compete freely for public acceptance without improper government interference."

45 F.4th 447

Knox v. Service Employees International Union, Local 1000 , 567 U.S. 298, 308-09, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012) (cleaned up).

In light of the weight of the employees' interest in political expression, the AO has a "heavy" burden. National Treasury Employees , 513 U.S. at 466, 115 S.Ct. 1003. It must identify a commensurate threat to its operations that justifies banning its employees' off-duty speech. Id. at 475, 115 S.Ct. 1003.

That threat must be "real, not merely conjectural" — "mere speculation" is not enough. Id. (quoting Turner Broadcasting System, Inc. v. FCC , 512 U.S. 622, 664, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) ). And as with any application of heightened scrutiny, what it takes to show a real threat "will vary up or down with the novelty and plausibility of the justification raised." Nixon v. Shrink Missouri Government PAC , 528 U.S. 377, 391, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000).

To see the difference between "mere speculation" and a "real" threat, compare United States v. National Treasury Employees t...