9th Circuit: Garcetti Poses Mixed Question of Law and Fact

Scales Thanks to Ross Runkel for providing this summary of an interesting new Garcetti public employee free speech case, Posey v. Lake Pend (9th Cir. 10/15/2008), considering whether the determination of if an employee is speaking pursuant to his official duties is a question of law or fact.  Of course, this is an important question because it goes to whether these cases can be disposed of by the court on summary judgment:

Posey sued the public employer, asserting a claim for 1st Amendment retaliation.  The trial court granted summary judgment in favor of the employer.  The 9th Circuit reversed.

The court framed the primary issue on appeal as “whether, following the Supreme Court’s recent decision in Garcetti v. Ceballos, 547 IS 410 (2006), the inquiry into the protected status of speech in a First Amendment retaliation claim remains a question of law properly decided at summary judgment or instead now presents a mixed question of fact and law.”

The court held that “following Garcetti, the inquiry into whether a public employee’s speech is protected by the First Amendment is no longer purely legal and presents a mixed question of fact and law.”  The court explained, “the determination whether the speech in question was spoken as a public employee or a private citizen presents a mixed question of law and fact.”  The court reasoned, “[b]ecause the task of determining the scope of a plaintiff’s job responsibilities is concrete and practical rather than abstract and formal, we are confident that a factual determination of a plaintiff’s job responsibilities will not encroach upon the court’s prerogative to interpret and apply the relevant legal rules.”

The court noted that there is a split among the circuits on this issue, and that it was adopting the approach taken by the 3rd, 7th, and 8th Circuits.  The 5th, 10th, and DC Circuits have adopted a contrary approach.

The finding of this case is good news for public employees with free speech claims.  By finding the Garcetti questions represents a mixed question of law and fact, the court has taken the decision out of the hands of the judge and placed it squarely in front of the jury.  This is important not only because juries tend to be more sympathetic to the plight of these public employees, but more importantly because such a characterization is consistent with the fact-sensitive inquiry that must be done under Garcetti.

Though many courts have missed the boat in this regard, most specifically in federal employee cases decided by the Federal Circuit and MSPB, it is necessary for the job duties of the employee to be closely scrutinized to determine whether they are speaking in accordance with those duties.  There is no formalistic way to go about this.

Because of the split of the circuits, and because most of the circuits have now considered the question, there might be a chance to clarify the Garcetti holding on future Supreme Court dockets.

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