United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 11, 2010 Decided July 23, 2010
No. 09-7080
MATTHEW AUGUST LEFANDE,
APPELLANT
v.
DISTRICT OF COLUMBIA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-00217-HHK)
Matthew A. LeFande argued the cause pro se.
Carl J. Schifferle, Assistant Attorney General, argued the
cause for the appellee. Peter J. Nickles, Attorney General, Todd
S. Kim, Solicitor General, Donna M. Murasky, Deputy Solicitor
General, and Holly M. Johnson, Assistant Attorney General,
were on brief.
Before: GINSBURG, HENDERSON and GARLAND, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Matthew
LeFande appeals the district court’s dismissal of his complaint
alleging the District of Columbia Metropolitan Police
2
Department (MPD) violated the First Amendment to the United
States Constitution by terminating his position with the MPD
Reserve Corps in retaliation for his making protected speech.
LeFande argues the district court erred in holding his speech did
not relate to a matter of public concern and was therefore not
protected by the First Amendment. We agree and reverse.
I.
Taking as true the factual allegations in LeFande’s
complaint, see City of Harper Woods Employees’ Ret. Sys. v.
Olver, 589 F.3d 1292, 1298 (D.C. Cir. 2009), the relevant facts
are as follows. The MPD Reserve Corps is a body of “unpaid
volunteers who assist full-time officers of the [MPD] in the
provision of law enforcement services.” Griffith v. Lanier, 521
F.3d 398, 399 (D.C. Cir. 2008); see D.C. Code § 5-129.51(a)-
(b). LeFande joined in 1993. On October 29, 2003, the
Washington City Paper published a front-page article that
described his work as a Reserve Corps member1 and revealed
“numerous shortcomings” of the MPD administration. Compl.
¶ 14, LeFande v. District of Columbia, C.A. No. 09-217 (D.D.C.
Feb. 4, 2009). The MPD suspended him that same day and later
issued him an official reprimand, ostensibly for “conduct alleged
to have occurred on October 25, 2003,” the nature of which
conduct does not appear in the record. Id. ¶ 17. After the
suspension expired, however, the MPD did not reinstate him. In
1
Assuming the article’s accuracy, LeFande’s service in the
Reserve Corps has at times been nothing short of heroic. Having
pursued EMT training to build his public-service skill set, he once
saved an injured FBI agent’s life. The episode earned him a
commendation from the Director of the FBI. Moreover, “[s]everal
police officers, reserve and otherwise, say that LeFande has made
more arrests than a lot of paid cops, that he’s ‘brilliant,’ the ‘poster
boy’ for the reserves.” Jason Cherkis, Almost Blue, Washington City
Paper, Oct. 31, 2003, reprinted at Joint Appendix 39-40.
3
response, on January 27, 2005, LeFande sued the District,
alleging violations of the First and Fourteenth Amendments as
well as common-law defamation. The suit settled when the
District agreed to reinstate him as a Reserve Corps member.
Approximately one year later, the Reserve Corps changed.
Specifically, on March 28, 2006, the MPD issued General Order
101.03, which prescribes the organization, authority, and rules
of the MPD Reserve Corps. The General Order provides,
among other things, that Reserve Corps members generally lack
“the right to organize for collective bargaining purposes” and
that they may “have their services . . . discontinued by the Chief,
for any reason, at any time, without any right or process of
appeal.” MPD General Order 101.03 § IV.C.5, .7. The earlier
version of the General Order did not prohibit collective
bargaining and did not give the Chief such unchecked power to
terminate a reserve officer. Then, on June 9, 2003, the Chief of
the MPD published in the D.C. Register a “Notice of Emergency
and Proposed Rulemaking,” which announced his
implementation, “on an emergency basis,” of rules substantially
similar to those contained in the General Order. 53 D.C. Reg.
4581. The Chief also gave “notice of intent to take final
rulemaking action to adopt these rules” by amending the D.C.
Municipal Regulations. Id. The rules provided, among other
things, that “all Reserve Corps members shall serve at the
pleasure of the Chief, who shall, without limitation, have the
authority to . . . remove a Reserve Corps member from the
Reserve Corps” without “administrative review.” Id. § 1212.1.
Less than one month later, on July 6, 2006, LeFande filed
a class action against the Chief on behalf of two named and the
roughly two hundred unnamed Reserve Corps members,
challenging the legality of the General Order and the Notice of
Emergency and Proposed Rulemaking. He alleged the General
Order violated the D.C. Administrative Procedure Act because
the Chief issued it without allowing for public notice and
4
comment. See D.C. Code § 2-505(a) (“The Mayor and each
independent agency shall, prior to the adoption of any rule . . . ,
publish in the District of Columbia Register . . . notice of the
intended action . . . not less than 30 days prior to the effective
date . . . .”). He alleged the Notice of Emergency and Proposed
Rulemaking violated the same act because no predicate
emergency existed. See id. § 2-505(c) (“[I]f, in an emergency,
as determined by the Mayor or an independent agency, the
adoption of a rule is necessary for the immediate preservation of
the public peace, health, safety, welfare, or morals, the Mayor or
such independent agency may adopt such rules as may be
necessary in the circumstances, and such rule may become
effective immediately.”). And he alleged both the General
Order and the Notice of Emergency and Proposed Rulemaking
were illegal because they (1) denied Reserve Corps members
“the right to organize for collective bargaining,” in violation of
the First Amendment and the National Labor Relations Act;
(2) denied members the right to due process, in violation of the
Fourteenth Amendment; (3) conflicted with District laws
regarding MPD officers’ training, authority and obligations; and
(4) were enacted after the deadline set by their authorizing
statute. Compl. ¶¶ 32-55, MPD Reserve Officers v. Ramsey,
C.A. No. 06-1223 (D.D.C. July 6, 2006).
The district court dismissed LeFande’s federal claims
pursuant to Federal Rule of Civil Procedure 12(b)(6) and
declined to reach the District law claims. He appealed in this
court2 and, one week before oral argument, the Chief of Police
fired him. LeFande then filed the instant lawsuit, under 42
2
We affirmed the dismissal, holding that the challenged actions
left intact the plaintiffs’ “First Amendment freedoms to speak and
associate on matters related to collective bargaining” and that the
plaintiffs “lack[ed] the statutorily-protected property interest to ground
a due process challenge.” Griffith v. Lanier, 521 F.3d 398, 400, 404
(D.C. Cir. 2008). We did not review LeFande’s District-law claims.
5
U.S.C. § 1983, alleging the District violated the First
Amendment by firing him “in retaliation for filing and
prosecuting” the class action. Compl. ¶ 26, LeFande v. District
of Columbia, C.A. No. 09-217 (D.D.C. Feb. 4, 2009). The
district court dismissed his complaint, deciding that he had
failed to state a First Amendment retaliation claim upon which
relief could be granted because the action “did not relate to a
matter of public concern.” Mem. Op. at 6, LeFande v. District
of Columbia, C.A. No. 09-217 (D.D.C. June 25, 2009).3 Having
found no matter of public concern, the district court did not
address any of the other elements necessary to ground a First
Amendment retaliation claim. This appeal timely followed.
II.
A public employer “may not discharge an employee on a
basis that infringes that employee’s constitutionally protected
interest in freedom of speech.” Rankin v. McPherson, 483 U.S.
378, 383 (1987). A public employee’s right to speak, however,
has limits. Mindful of the government’s dual roles as sovereign
and employer, see Waters v. Churchill, 511 U.S. 661, 675
(1994), we seek to 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 employees.”
Connick v. Myers, 461 U.S. 138, 142 (1983) (quoting Pickering
v. Bd. of Educ., 391 U.S. 563, 568 (1968)) (alteration in
Connick). In order to achieve that balance, we use a four-part
test to determine if a public employee’s termination violated his
First Amendment rights:
3
LeFande also alleged common law defamation and breach of
contract but the district court declined to exercise supplemental
jurisdiction over the claims after dismissing their federal companions.
6
First, the public employee must have spoken as a
citizen on a matter of public concern. Second, the
court must consider whether the governmental interest
in promoting the efficiency of the public services it
performs through its employees outweighs the
employee’s interest, as a citizen, in commenting upon
matters of public concern. Third, the employee must
show that her speech was a substantial or motivating
factor in prompting the retaliatory or punitive act.
Finally, the employee must refute the government
employer’s showing, if made, that it would have
reached the same decision in the absence of the
protected speech.
Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C. Cir. 2007)
(internal quotations, citations and alterations omitted). The first
question—and the only question we reach—is whether the
employee’s speech “may be fairly characterized as constituting
speech on a matter of public concern.” Rankin, 483 U.S. at 384
(internal quotation omitted). If the speech is not on a matter of
public concern, “the employee has no First Amendment cause
of action based on his or her employer’s reaction.” Garcetti v.
Ceballos, 547 U.S. 410, 418 (2006).
Whether speech involves a matter of public concern is a
question of law, which we review de novo. Connick, 461 U.S.
at 148 n.7; Hall v. Ford, 856 F.2d 255, 258 (D.C. Cir. 1988).
Our analysis must take into account “the content, form, and
context” of the employee’s speech, “as revealed by the whole
record.” Connick, 461 U.S. at 147–48. Summarily put,
Speech by public employees may be characterized as
not of “public concern” when it is clear that such
speech deals with individual personnel disputes and
grievances and that the information would be of no
relevance to the public’s evaluation of the performance
of governmental agencies. On the other hand, speech
7
that concerns “issues about which information is
needed or appropriate to enable members of society” to
make informed decisions about the operation of their
government merits the highest degree of first
amendment protection.
Hall, 856 F.2d at 259 (quoting McKinley v. City of Eloy, 705
F.2d 1110, 1114 (9th Cir. 1983) (internal citations omitted)); see
also Tao v. Freeh, 27 F.3d 635, 640 (D.C. Cir. 1994) (quoting
McKinley); Murray v. Gardner, 741 F.2d 434, 438 (D.C. Cir.
1984) (same). In other words, “speech relates to a matter of
public concern” if it is “‘of political, social, or other concern to
the community.’” Hall, 856 F.2d at 259 (quoting Connick, 461
U.S. at 146).
Because determining whether speech addresses a matter of
public concern is such a fact-bound inquiry, we find it helpful to
review existing precedent, which provides examples of speech
that is—and speech that is not—a matter of public concern. On
the one hand, the United States Supreme Court has identified
several matters that are not of public concern, as have we. For
instance, in Connick, the “confidence and trust” the district
attorney’s staff members had in their supervisors was not of
public concern, nor was “the level of office morale,” nor “the
need for a grievance committee.” 461 U.S. at 148. In Murray,
the FBI practice of furloughing agents by lottery was not of
public concern; the employee’s speech merely amounted to “the
quintessential employee beef: management has acted
incompetently.” 741 F.2d at 438. And, in Barnes v. Small,
alleged assaults and false statements within the Army’s Military
Traffic Management Command were not matters of public
concern; the employee’s allegations “addressed only the
misbehavior of other employees in his office, and not matters
relating to any broader public interest.” 840 F.2d 972, 982 (D.C.
Cir. 1988).
8
On the other hand, both the Supreme Court and this court
have identified several matters that are of public concern. In the
seminal Pickering case, the Supreme Court held that a
“difference of opinion” regarding “the preferable manner of
operating the school system” is of public concern—particularly
as it related to the school board’s allocation of funds between
educational and athletic programs and the “methods of
informing, or preventing the informing of, the district’s
taxpayers” about the reasons additional funds were needed. 391
U.S. at 569, 571. Later, the Court enumerated several other
previously established issues of public concern, including “[a]
school district’s allegedly racially discriminatory policies,”
“whether [a] college should be elevated to four-year status,” and
whether a public school should adopt a dress code for its
teachers. Connick, 461 U.S. at 145-46 (citing Perry v.
Sindermann, 408 U.S. 593 (1972); Mt. Healthy City Bd. of Educ.
v. Doyle, 429 U.S. 274 (1977); Givhan v. W. Line Consol. Sch.
Dist., 439 U.S. 410 (1979)). Then, in Connick, the Court held
that whether assistant district attorneys “feel pressured to work
in political campaigns on behalf of office supported candidates”
is also a matter of public concern. Id. at 149.
For our part, we held in Hall that whether a public
university’s “administration [wa]s mismanaging the athletic
program” is a matter of public concern, as is the “structure of
academic and athletic programs” generally. 856 F.2d at 259.
Also, in O’Donnell v. Barry, we recognized as matters of public
concern “important issues of Police Department policy,”
including “how to rank the Department’s law-enforcement
priorities,” “how to reform the operations of the Property
Division,” “what priority to give an investigation of over a
hundred unsolved murders,” the impairment of “the
effectiveness of the Homicide Branch” as well as the police
chief’s “fitness for office.” 148 F.3d 1126, 1133-34 (D.C. Cir.
1998).
9
LeFande’s speech4 involves a General Order and an
emergency rulemaking issued by the Chief of the MPD, which
regulations, among other things, empowered the Chief to fire
Reserve Corps members without process. According to
LeFande, at the time of the Chief’s actions, District law
prohibited their dismissal without cause or process. See Griffith,
521 F.3d at 401; D.C. Code § 5-127.01 (“[N]o person shall be
removed from said police force except upon written charges
preferred against him . . . and after an opportunity shall have
been afforded him of being heard in his defense . . . .”). Thus,
LeFande maintained that, by asserting the power to fire Reserve
Corps members without cause, and by restricting other aspects
of the Corps’ authority and access to training, the Chief
substantially altered the rights and the role of the entire Reserve
Corps, whose stated mission—according to the General Order
itself—is to “play an integral part in the [MPD’s] endeavor to
provide high quality police service.” MPD General Order
101.03 § II (emphasis added). Moreover, according to LeFande,
the Chief made this change without providing the statutorily-
mandated public notice and comment, in the absence of any
enabling emergency.
We believe LeFande’s allegations of procedural
irregularities that unquestionably affect an integral component
of police service are “relevan[t] to the public’s evaluation” of
the MPD and its Chief. Hall, 856 F.3d at 259 (quoting
4
LeFande’s speech is in the form of a civil complaint in federal
court. Both parties correctly observe that we have not adopted the
Third Circuit’s position that a non-frivolous lawsuit by a public
employee against his employer warrants First Amendment protection
whether or not the suit relates to a matter of public concern. See San
Filippo v. Bongiovanni, 30 F.3d 424, 443 (3d Cir. 1994). And neither
party asks that we adopt that position. Thus, for simplicity’s sake, we
refer herein to LeFande’s “speech,” as opposed to his “petition,”
without opining on whether the distinction makes a difference.
10
McKinley, 705 F.2d at 1114). We think them more relevant than
intra-office squabbles in Connick, 461 U.S. at 148, and Barnes,
840 F.2d at 982, and more public than the speech in Murray, 741
F.2d at 438. Presumably the public is, and should be, at least as
concerned about these alleged defects as it was about, for
instance, rule violations by a university athletic department, see
Hall, 856 F.2d at 259, or teachers’ dress and its purported
relationship to the market for government debt, see Connick,
461 U.S. at 146 (citing Mt. Healthy, 429 U.S. 274 (1977)).
Still, the District says LeFande’s suit does not address a
matter of public concern because its allegations relate to a mere
“personnel matter.” But we reject the proposition that a
personnel matter per se cannot be a matter of public concern,
even if it may seriously affect the public welfare. For instance,
were the Chief of Police to assert the power to fire, without
process, all MPD officers, paid and unpaid, that action would
“be fairly considered as relating to [a] matter of political, social,
or other concern to the community,” Connick, 461 U.S. at 146,
although it relates to a “personnel matter.” And, while this case
may present a closer question, we conclude that LeFande’s
speech—alleging the Chief of Police violated District law and
the Constitution by significantly altering the framework by
which the Reserve Corps was governed, relying in part on an
emergency procedure when there was no emergency—also
implicates a “matter of political, social, or other concern to the
community.” Id.; see Hall, 856 F.2d at 259. It exceeds
“individual personnel disputes and grievances” and involves
“issues about which information is needed or appropriate to
enable the members of society to make informed decisions about
the operation of their government.” Hall, 856 F.2d at 259
(quoting McKinley, 705 F.2d at 1114) (internal quotations and
citations omitted). In short, it relates to a matter of public
concern. See id.; see also Jason Cherkis, Anger in Reserve,
Washington City Paper, Jul. 19, 2006, available at
http://www.washingtoncitypaper.com/blogs/citydesk/
11
2006/07/19/anger-in-reserve (elimination of Reserve Corps
members’ job security led them to “cut back on volunteering,”
which “hit hard on July 4, when the department fielded only a
fraction of its reserve phalanx”).5
In so holding, we get support from our sister circuits. See
Lindsey v. City of Orrick, Mo., 491 F.3d 892, 896, 899 (8th Cir.
2007) (whether city council “pass[ed] city ordinances without
public discussion” in violation of local law was “clearly” matter
of public concern); Dishnow v. Sch. Dist. of Rib Lake, 77 F.3d
194, 197 (7th Cir. 1996) (school board’s violation of a state law
requiring meetings be open to the public was matter of public
concern); Zamboni v. Stamler, 847 F.2d 73, 74, 77-78 (3d Cir.
1988) (county prosecutor’s “reorganization plan” entailing
“changes in certain personnel policies and procedures” was
matter of public concern). And, while LeFande’s allegations
probably did not lead any editor to shout “Stop the presses!” (or
even “Update the website!”), when the Supreme Court held
speech on matters of public concern to be protected, “they did
5
The District “assumes” the First Amendment protects LeFande’s
speech even though he is an unpaid volunteer. Appellee’s Br. 7 n.1.
We do too. See Connick, 461 U.S. at 144 (First Amendment rights
may not “be infringed by the denial of or placing of conditions upon
a benefit or privilege”); Hyland v. Wonder, 972 F.2d 1129, 1136 (9th
Cir. 1992) (“[V]olunteer status . . . is a valuable governmental benefit
or privilege that may not be denied on the basis of constitutionally
protected speech.”) (citing Janusaitis v. Middlebury Volunteer Fire
Dep’t, 607 F.2d 17 (2d Cir. 1979)). The District argues, however, that
“[i]t is doubtful whether Mr. LeFande was even exercising his First
Amendment rights in representing a client in a lawsuit.” Appellee’s
Br. 8. This argument ignores that fact that LeFande’s “proposed
Plaintiff Class consist[ed] of all MPD Reserve Officers,” of which he
was one. Compl. ¶ 11, MPD Reserve Officers v. Ramsey, C.A. No.
06-1223 (D.D.C. July 6, 2006). He was not, therefore, simply
“representing a client;” he was speaking for himself as well and he
“had a personal First Amendment right at stake.” Appellee’s Br. 8.
12
not mean matters of transcendent importance, such as the origins
of the universe or the merits of constitutional monarchy; they
meant matters in which the public might be interested, as
distinct from wholly personal grievances . . . and casual
chit-chat.” Dishnow, 77 F.3d at 197. LeFande’s speech was
more than a personal grievance; it was a challenge to the
implementation, without notice, of the framework by which the
Reserve Corps was to be governed.
To be sure, as LeFande admits, the context of his speech
affects him privately. See Appellant’s Br. 10-11, 27. In seeking
to preserve procedural and collective bargaining rights, he was
also working to secure his own position. As we explained in
O’Donnell, however, “the presence of a personal motivation for
an employee’s speech, although certainly a factor in the
public-concern analysis, need not destroy the character of a
communication as one of public concern. . . . Indeed, it may be
that those employees who are dissatisfied with their workplaces
are precisely those who are likeliest to notice malfeasance, and
be willing to speak up about it.” 148 F.3d at 1134 (internal
citation omitted). Here, as in O’Donnell, notwithstanding the
employee’s private motive, his speech nonetheless implicated a
matter of public concern and thus warranted protection under the
First Amendment.6
***
For the foregoing reasons, we reverse the district court’s
dismissal of LeFande’s complaint and remand for further
proceedings consistent with this opinion.
So ordered.
6
We express no opinion regarding LeFande’s ability to satisfy the
remaining three elements of his retaliation claim, see Wilburn, 480
F.3d at 1149, as the district court has yet to reach them.